LoanMLS reserves the right, in its discretion, to change or modify all or any part of this Membership Agreement at any time, effective immediately upon notice published on the Site. Member's continued use of the membership portions of the Site after publication of such notice constitutes Member's binding acceptance of and to the terms and conditions in this Membership Agreement, including any changes or modifications made by LoanMLS as permitted above. If at any time the terms and conditions of this Membership Agreement are no longer acceptable to you, it is Member's responsibility to and Member shall immediately cease use of the membership portions of the Site.
Corporations and other business entities and organizations may enable a Master Account in the LoanMLS.com Site to enable the authorization and use of Sub-Accounts for individual employees and other representatives of the Member, each with a separate password, , and other features. In this Agreement "Member's Representatives" means and includes an Administrator and Sub-Account Holders, as such terms are defined below.
A. Master Account Authority. As an Administrator for a Master Account, Member shall have the authority to perform the following functions for its Master Account:
i. open, modify, suspend and terminate Sub-Accounts;
ii. restrict access for any or all Sub-Accounts; and
iii. change passwords for Sub-Account Holders.
All Master Accounts shall have an Administrator to act on Member's behalf in performing the above functions. In addition, the Administrator shall be authorized to (i) sign any and all agreements and amendments relating to Member's Master Account; and (ii) appoint a Sub-Account holder as a temporary Administrator who shall have all of the foregoing authority in the absence of the Administrator.
Unless Member informs us in writing to the contrary, the individual who clicks “Agree” at the end of this Membership Agreement shall be the Administrator of a Master Account.
B. Sub-Accounts. "Sub-Accounts" are those Site accounts established by the Administrator under Member's user name. "Sub-Account Holders" are those of Member's employees or representatives who have Sub-Accounts and passwords established for them by the Administrator.
The only functions permitted within a Sub-Account are (i) the ability to email other Members, and (ii) the ability to access the Membership portions of the Site. Sub-Account Holders shall not be permitted to purchase Credits.
C. Conduct and Responsibility. As an Administrator for a Master Account, Member specifically agrees that Member is and shall at all times remain responsible for the conduct of Member's Representatives while accessing the Site or using the Content whether or not Member authorized the conduct. Without limiting the generality of the foregoing, Member agrees that the following conduct by any of Member's Representatives shall be solely at Member's risk and expense:
As a Master Account, Member agrees that each of Member's Representatives shall be the age of majority in Member's jurisdiction and/or the jurisdiction of the residence of the Member's Representative, as the case may be.
Credits are the currency of the LoanMLS Site. Credits can be purchased from the Credit Purchase Page within the Membership portion of the Site. Credits can be purchased online with VISA, MasterCard, or American Express.
The price of Credits purchased through the Site will be the price specified in the Site at the time of Member's purchase. Credits are non-refundable and expire one year after purchase.
Upon presentation of credit card information the purchaser warrants that he/she is the cardholder and that the billing information provided is accurate. By approving the purchase of the product or service, Member authorizes LoanMLS to charge the designated credit card, for the total amount of the purchase.
Use of Content
Member acknowledge that the Site contains or may contain information, software, photographs, flash files, data files, code snippets and other material (collectively, "Content") which is protected by copyright, trademark or other proprietary rights of LoanMLS and its affiliates or other third parties (including other members and other Site users who are not members).
Member further acknowledges that the Site contains or may contain internal calculations and computations designed to assist Members and Users in screening and evaluating potential opportunities, including but not limited to yield-to-maturity computations, and that such calculations and computations are estimates only and are provided for Member’s convenience with no assurance or guaranty of reliability. Member agrees not to rely on calculations and computations provided on the Site, including without limitation yield-to-maturity analyses, in making any decision to sell, purchase, or fund any loan asset referenced on the Site, and to conduct its own analysis and rely on its own independent judgment in making such decisions.
Except as otherwise expressly permitted in this Membership Agreement, Member may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, display, reverse engineer or in any way exploit any of the Content, in whole or in part. Member may view Content only in accordance with the terms of this Membership Agreement.
Member acknowledges and agrees that the user identification provided by LoanMLS to Member so that Member may access and utilize the Membership portions of the Site (the "Member Name"), any Sub-Account Holder name(s) provided by LoanMLS to a Administrator so that Member's Representatives may do so, and the password(s) selected and used by Member and Member's Representatives in conjunction with the Member Name and any Sub-Account Holder name(s), must be kept secret and confidential. Member agrees that Member shall not disclose any Member Name or Sub-Account Holder name, or any password, to any person without the express written permission of LoanMLS. Sub-Account Holder names issued under the Master Member's Member name, or any password used in conjunction therewith strictly for purposes of facilitating the Master Account Member's efficient use and allocation of Sub-Account Holder privileges and Credits.
Member acknowledges and agrees that Member will be responsible for each and every access or use of the Membership portions of the Site that occurs in conjunction with Member's Member Name or any Sub-Account Holder names, and that LoanMLS is authorized to accept Member's Member Name and password or any Sub-Account Holder name and password as conclusive evidence that Member has authorized the access and use of the membership portions of the Site. Member understands and acknowledges that such passwords are unique to Member and that, although LoanMLS does have the ability to require passwords to meet certain requirements (such as a minimum or maximum number of characters) and to reset such passwords, LoanMLS does not have the ability to access the passwords themselves.
Rules of Conduct
Member agrees that Member will not use the Site for any purpose that is unlawful or not permitted by this Agreement. By way of example, and not as a limitation, Member agrees that when communicating via the Site, including in respect of any forums, chat-rooms, or other exchanges (each, a “Forum”) accessed on or through the Site, neither Member nor any of Member's Representatives shall do any of the following:
Member acknowledges that Forums are public and not private communications. Further, Member acknowledges that no third-party communication or Content is endorsed by LoanMLS and that LoanMLS may not and shall not be obligated to review, screen, monitor, or approve any third-party communication or Content, although LoanMLS hereby reserves the right to do so in its sole and absolute discretion. As explained below, LoanMLS further reserves the right for any reason, in its sole and absolute discretion, to remove without notice any communication, Content or other material posted to the Site.
Member also agrees not to use the Site in any manner that could damage, disable, overburden, or impair the Site or interfere with any other party's use and enjoyment of the Site. Member agrees not to attempt to gain unauthorized access to any other LoanMLS member accounts, computer systems or networks associated with the Site. Member also agrees not to obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Site.
Member Duty to Update Information
Member shall be obligated during the Term to update LoanMLS regularly and to keep LoanMLS reasonably up-to-date and informed with respect to the status of all loan assets posted to the Site, including without limitation whether any listing is active, pending, sold or funded, has been withdrawn from the online exchange. Status’ shall be updated within 3 days of the closing of a transaction. LoanMLS reserves the right to cancel or remove from the Site any posting or asset that LoanMLS determines, in its sole and absolute discretion, that such posting or asset is out-of-date, inactive, expired, withdrawn, or that Member has failed comply with this paragraph as to such posting or asset.
Member acknowledges that any Confidential Information (defined below) that Member obtains as a result of entering into this Membership Agreement and/or Member's access to or use of the Site constitutes valuable, confidential, proprietary information of LoanMLS, or of its Members and non-Member users, and its licensors, and Member agrees that during the term of this Membership Agreement and thereafter Member shall not, without the express written consent of LoanMLS or the owner of such Confidential Information, use or disclose to any other person any such Confidential Information, except as specifically authorized under this Membership Agreement or as required by applicable law.
For the purposes of this Membership Agreement, "Confidential Information" means any and all data, information, documents, software or materials relating to the business and management of LoanMLS, its members, affiliates, licensors or licensees, that is designated as confidential or ought reasonably to be considered confidential, including but not limited to: their respective business models and operations, processes, products, designs, pricing, promotions, business plans, business opportunities, finances, research, development, know-how, trade-secrets, training materials, personnel, clients, methodologies, Site content belonging to others, and other intellectual property.
As additional consideration for and as a condition precedent to Member's access to and use of membership portions of the Site, Member may be required to sign or electronically execute a separate Nondisclosure and Confidentiality Agreement with respect to Confidential Information to be disclosed by other Members through or in connection with the Site in connection with Member's membership and use of the Site. Any use of the membership portions of the Site, any content thereof, or any Confidential Information disclosed to or received by Member as a result of Member’s LoanMLS membership or access to or use of the membership portions of the Site, shall at all times be considered confidential. Member's confidentiality obligations as set forth in this Section and the Nondisclosure and Confidentiality Agreement shall survive the expiration or termination of this Membership Agreement.
Member's Representations and Warranties
Member represents and warrants that:
i. Member intends, by clicking "Agree" at the end of this Membership Agreement, to create legal obligations binding on Member, and Member's use of the membership portions of the Site shall be further proof of such authority;
ii. Member shall perform all of Member's obligations under this Membership Agreement in compliance with applicable laws and regulations; and
iii. Member shall keep all information contained on this site Confidential and shall not disclose the information to non-members without prior approval from LoanMLS, Inc.
If Member is also an Administrator for a Master Account, then Member additionally represents and warrants that:
i. the individual clicking "Agree" at the end of this Membership Agreement has all necessary corporate or organizational power and authority to, and Member intends that by clicking "Agree" such individual will, create legal obligations binding on Member, and Member's use of the membership portions of the Site shall be further proof of such authority;
ii. Member, if a corporation, is duly incorporated, if a limited liability company, is duly organized, and if a partnership, unincorporated association or other type or form of organization, is duly formed and constituted, Member is active, validly existing, and in good standing under the laws of Member's incorporating jurisdiction;
iii. the execution, delivery and performance of this Membership Agreement is within Member's corporate or organizational powers and has been duly authorized by all necessary corporate or organizational action;
iv. Member shall perform all of Member's obligations under the Membership Agreement in compliance with applicable laws and regulations; and
Member agrees to be liable to and to indemnify, defend and hold LoanMLS and its affiliates, and their respective directors, officers, employees, shareholders, partners, membership interest holders, and agents (collectively, the "LoanMLS Parties") harmless from and against any and all claims, liability, losses, costs and expenses (including attorneys' fees) incurred by any of the LoanMLS Parties in connection with:
i. any use or alleged use of the Site under Member's Member Name or any Sub-Account Holder name by any person, whether or not authorized by you;
ii. or resulting from any communication made under Member's Master Account or any Sub-Account Holder name; or
iii. any breach by Member of this Membership Agreement, the Nondisclosure and Confidentiality Agreement, or any other agreement executed by Member related to the Site, its use or content. LoanMLS reserves the right, at Member's expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, Member agree to cooperate with LoanMLS's defense of such claim.
Member's indemnity obligations as set forth in this Section shall survive the expiration or termination of this Membership Agreement.
Term and Termination
This Membership Agreement shall be immediately effective upon Member's acceptance of and agreement to its terms and conditions, as set forth herein, and shall be and remain effective until terminated, except for any provisions that are expressly made to survive the expiration or termination hereof. Member may terminate this Membership Agreement at any time by emailing help@LoanMLS.com or by such other means of written notice acceptable to LoanMLS which enables confirmation of Member's identity and Member's intention to terminate. LoanMLS reserves the right, in its sole and absolute discretion, to restrict, suspend or terminate Member's right to access the membership portions of the Site at any time for any reason without liability or prior notice to Member. LoanMLS may change, suspend or discontinue all or any aspect of the Site at any time, including the availability of any feature, database, or Content, without liability or prior notice.
LoanMLS may also terminate or suspend Member's access to the membership portions of the Site for inactivity, which is defined as failing to access the Membership portions of the Site for an extended period of time, as determined by LoanMLS in its sole and absolute discretion.
Termination of this Membership Agreement does not relieve Member of Member's responsibilities to pay any amounts due to LoanMLS under this Membership Agreement or Member's obligations to not use the membership portions of the Site or any Content other than in the manner permitted under this Membership Agreement. Termination of this Membership Agreement shall operate without prejudice to LoanMLS’s rights, defenses and limitations of liability provided under this Membership Agreement, which rights, defenses and limitations of liability shall survive termination of this Membership Agreement.
Upon termination of Member's access to the membership portions of the Site, Member agrees to forfeit all Credits remaining in Member's account.
DISCLAIMER OF WARRANTIES
THE SITE, INCLUDING ANY CONTENT CONTAINED THEREIN, ARE PROVIDED "AS IS," "WHERE IS" AND "WITH ALL FAULTS," WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. LOANMLS DOES NOT REPRESENT OR WARRANT THAT THE SITE OR THE CONTENT WILL MEET MEMBER'S REQUIREMENTS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR FREE.
LOANMLS DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ANY CONTENT AVAILABLE FOR DOWNLOADING THROUGH THE SITE WILL BE FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
LOANMLS DOES NOT REPRESENT OR WARRANT THAT MEMBER, OR ANY LOANMLS MEMBER, WILL REALIZE OR RECEIVE ANY RETURN OF OR ON ANY INVESTMENT OF TIME, EFFORT, OR CAPITAL MEMBER MAY MAKE RELATED TO ANY PURCHASE, SALE, FUNDING, OR OTHER OPPORTUNITY OR ACTIVITY MEMBER MAY ENGAGE IN AS A RESULT OF THE SITE OR ITS CONTENT. MEMBER IS RESPONSIBLE FOR MAKING ALL INQUIRIES AND INVESTIGATIONS THAT MAY BE NECESSARY OR ADVISABLE IN CONNECTION WITH ANY SUCH OPPORTUNITY OR ACTIVITY, AND FOR CONDUCTING ALL DUE DILIGENCE PRIOR TO MAKING ANY SUCH INVESTMENT, AND MEMBER SHALL NOT RELY ON THE SITE OR ITS CONTENT AS A SUBSTITUTE FOR ITS OWN INVESTIGATIONS AND DUE DILIGENCE.
LIMITATION OF LIABILITY
MEMBER ASSUMES ALL RESPONSIBILITY AND RISK FOR USE OF THE SITE INCLUDING WITHOUT LIMITATION ANY OF THE CONTENT OR INFORMATION CONTAINED THEREIN.
IN NO EVENT SHALL LOANMLS OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, LICENSORS OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS MEMBERSHIP AGREEMENT, INCLUDING WITHOUT LIMITATION MEMBER'S USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE SITE, THE CONTENT OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO MEMBER HEREUNDER, EVEN IF LOANMLS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.
IN ANY EVENT, LOANMLS’S TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS MEMBERSHIP AGREEMENT OR IN RESPECT OF THE USE OR EXPLOITATION OF ANY OR ALL PART OF THE SITE OR THE CONTENT IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO THE LESSER OF (A) FIVE ($5.00) U.S. DOLLARS, OR (B) THE LOWEST AMOUNT TO WHICH LOANMLS MAY LIMIT ITS TOTAL MAXIMUM AGGREGATE LIABILITY IN ACCORDANCE WITH APPLICABLE LAW.
SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF LOANMLS OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, OR AGENTS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
This Web site is controlled, operated and administered by LoanMLS from San Diego, California. This Web site can be accessed from anywhere in the United States, as well as from other countries around the world. Each of these jurisdictions has laws that may differ from those of California; by accessing the Site, Member acknowledges and agrees that all matters relating to access to or use of the Site or its Content shall be governed by the laws of the State of California and the federal laws of the United States of America, in each case without reference to conflicts of laws principles.
Member also agreed that any claims or disputes whatsoever arising hereunder shall be submitted to the exclusive jurisdiction and venue of the state and federal courts of, in, and for the State of California, and acknowledged that Member does so voluntarily. This Membership Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Member consents to service of any required notice or process upon Member by email, registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by Member at the time Member are first granted access to the membership portions of the Site, or such other address as Member may advise us in writing to use, from time to time.
Any and all disputes arising out of, under or in connection with this Membership Agreement, including without limitation, its validity, interpretation, performance and breach, shall be submitted to arbitration in San Diego, California, pursuant to the rules of the American Arbitration Association effect at the time arbitration is demanded.
The prevailing party in any action, suit, or proceeding to enforce or interpret any provision of this Membership Agreement shall be entitled to recover from the non-prevailing party the prevailing party's reasonable attorneys' fees, costs, and disbursements actually incurred in such action, suit, or proceeding.
LoanMLS’s failure in any instance or multiple instances to insist upon or enforce strict performance by you or any other person or entity of any provision of this Membership Agreement shall not be construed as a waiver of any provision or right and shall not be asserted or construed as a pattern, custom, or practice inconsistent with or in abrogation of any provision hereof.
If any provision or part thereof of this Membership Agreement is wholly or partially unenforceable the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place thereof an enforceable provision or provisions, or part thereof, that as nearly as possible reflects the terms of the unenforceable provision or part thereof.
This Agreement shall not be assigned by Member without LoanMLS’s prior written consent. LoanMLS may assign this Agreement without Member's consent to any other party so long as such party agrees to be bound by its terms.
If Member has concerns relating to the Site or this Membership Agreement, please contact LoanMLS at service@LoanMLS.com or via phone at (866) 659-7579.
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