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Bridger Commercial Funding
Online Tools License and Terms of Use
Effective: May 1, 2007
This is an agreement
(“Agreement”) between Bridger Commercial Funding LLC, (“Bridger”) and any
person (“User”) who registers an account for, is given access to such
registered account, uses, or otherwise accesses any of Bridger’s web-based
services or Online Tools, including but not limited to Loan Quote, Bridger’s
Interactive Pricing System (BIPS)™, OnTrac®, BridgerDocs™,
Bridger University™, BankXchange®, and live interest rates (collectively, the “Online Services”). In addition
to the foregoing, references to Online Services, as used herein, shall include
any and all proprietary documents and materials made available through such
Online Services and any and all accompanying and supporting software, services,
whether or not provided online, content, and documentation. Bridger and User
are collectively referred to herein as the “parties.”
BY CLICKING THE ACCEPTANCE
BUTTON OR BY REGISTERING AN ACCOUNT, LOGGING INTO AN ACCOUNT, USING, OR
OTHERWISE ACCESSING ANY PART OF THE ONLINE SERVICES, USER EXPRESSLY AGREES TO
AND CONSENTS TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF USER DOES
NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, USER MUST SELECT THE BUTTON
INDICATING NON-ACCEPTANCE. IN SUCH EVENT, BRIDGER WILL PROMPTLY CANCEL THIS
TRANSACTION AND USER SHALL NOT REGISTER AN ACCOUNT, LOG INTO AN ACCOUNT, USE OR
OTHERWISE ACCESS ANY PART OF THE ONLINE SERVICES.
1.
Product Terms
a.
Description. The Online Services are proprietary to Bridger and
are protected by intellectual property laws and international intellectual
property treaties. User’s access to the Online Services is licensed and not
sold. Bridger reserves all rights not expressly granted to User, including,
but not limited to, the right to alter, modify, update, enhance, or improve the
Online Services.
b.
Online Services. Upon payment of any applicable fees or charges,
Bridger agrees to provide User with a non-exclusive, non-transferable account
enabling User to access and use the Online Services only for the internal
business needs of the institution of which User is an authorized representative
(and not for service bureau, time-sharing, or similar services). Users of
Online Services are solely limited to employees of the institution of which
User is an authorized representative or its wholly-owned affiliated entities.
User is responsible for ensuring that any other User accessing the Online
Services through User’s account is provided with a copy of the most current
version of this Agreement, and that such other User accepts the most current
version of this Agreement, before such other User accesses the Online Services.
c.
Accessibility of the Online Services. User understands and agrees that from time to time
the Online Services may be inaccessible or inoperable for any reason,
including, without limitation: (i) equipment malfunctions;
(ii) periodic maintenance procedures or repairs which Bridger may
undertake from time to time; or (iii) causes beyond the control of Bridger
or which are not foreseeable by Bridger.
d.
Equipment. User shall be solely responsible for providing,
maintaining and ensuring the compatibility of all hardware, software,
electrical and other physical requirements necessary for User’s use of the
Online Services, including, without limitation, telecommunications and internet
access connections and links, web browsers or other equipment, and programs and
services required to access and use the Online Services.
e.
Reverse Engineering. Modification, reverse engineering, reverse
compiling, or disassembly of the Online Services is expressly prohibited.
2.
Limitations
a.
Security. User shall be solely responsible for, and is herby
responsible for, the security, confidentiality and integrity of all information
that User receives or transmits through the Online Services. User shall be
solely responsible for any authorized or unauthorized access and use of User’s
account by any person. User agrees to bear all responsibility for the
confidentiality of User’s passwords and all use or charges incurred from use of
the Online Services through User’s account(s). User agrees to limit access to
its account and the Online Services to employees of the institution of which
User is an authorized representative or its wholly-owned affiliated entities
for such institutions’ internal business needs only.
b.
Privacy Policy. In an effort to address User’s privacy concerns,
Bridger has instituted the following Privacy
Policy (“Privacy Policy”) which is incorporated herein by this
reference. Bridger reserves the right to change the Privacy Policy as set
forth therein. User acknowledges that it has read and understands the Privacy
Policy and that User has the obligation to periodically review the Privacy
Policy from time to time. In the event any provisions contained in this
Agreement conflict with any terms, conditions or clauses contained in the
Privacy Policy, the provisions of this Agreement shall govern.
3.
Intellectual Property
The intellectual property utilized in
providing the Online Services is the valuable, confidential and copyrighted
property of Bridger. User may use the Online Services as permitted herein and
may not otherwise disclose, modify, adapt, translate, or create derivative
works based on the Online Services without the prior written consent of
Bridger. As between the parties, Bridger owns all right, title, and interest
in and to the Online Services, including without limitation, any and all
proprietary documents and materials made available through the Online Services
and all ancillary and interface software, all current and future enhancements,
revisions, new releases and updates thereof and any derivative works based thereon
and all documentation thereto, all copyrights, trade secrets, patents and
goodwill therein, and all images, photographs, illustrations, graphics, audio
and video therein. As between the parties, Bridger shall retain all rights in
any results generated, viewed or sent by User using the Online Services.
Bridger, Bridger Commercial Funding, Bridger’s Interactive Pricing System
(BIPS), FastApp®, OnTrac®, BridgerDocs, Bridger University, BankXchange®, and the Bridger
Commercial Funding logo are service marks of Company. All other trademarks,
service marks and logos used on the website or through the Online Services are
the trademarks, service marks or logos of their respective owners.
4.
User Representations
User represents and warrants
to Bridger that: (a) User is over the age of eighteen (18) and has the
power and authority to enter into and perform User’s obligations under this
Agreement; (b) all information provided by User to Bridger is truthful,
accurate and complete; (c) User shall comply with all terms and conditions
of this Agreement, including, without limitation, the provisions set forth in
Sections 5 and 6; (d) that User is an authorized representative of a
commercial bank, a mortgage bank subsidiary of a commercial bank, a savings and
loan, or a thrift, and thus qualifies to become a Bridger client; (e)
User has provided and will maintain accurate and complete registration
information with Bridger, including, without limitation, User’s legal name,
address and telephone number and the information of the institution that User
represents; (f) User’s access to and/or use of the Online Services does not and
will not constitute a breach or violation of any other agreement, contract,
terms of use, or similar policy or understanding to which User is or may be
subject; and (g) User will not use the Online Services to violate any statute,
law, rule or regulation or to otherwise violate the legal rights of Bridger or
any third person.
5.
Prohibited Uses
User is solely responsible
for any and all acts and omissions that occur under User’s account or password,
and User agrees not to engage in unacceptable use of the Online Services, which
includes, without limitation, use of the Online Services to:
(a) disseminate or transmit material that, to a reasonable person may be
abusive, obscene, pornographic, defamatory, harassing, grossly offensive,
vulgar, threatening or malicious; (b) disseminate, store or transmit
files, graphics, software or other material that actually or potentially
infringes the copyright, trademark, patent, trade secret or other intellectual
property rights of any person; (c) interfere, disrupt or attempt to gain
unauthorized access to other accounts on the Online Services or any other
computer network; (d) disseminate, store or transmit viruses, trojan
horses or any other malicious code or program; (e) disseminate or otherwise
make available any proprietary documents or materials made available through
the Online Services to third parties unrelated to the internal business needs
of the institution of which User is an authorized representative without the
prior written consent of Bridger; (f) violate any statute, law, rule or
regulation or otherwise violate the legal rights of a third person; and
(g) engage in any other activity deemed by the Bridger to be in conflict
with the spirit or intent of this Agreement.
6.
Confidentiality
By virtue of this
Agreement, User may have access to information that is confidential to Bridger
(“Confidential Information”). Bridger’s Confidential Information shall include,
but not be limited to, any documents or materials made available through the
Online Services, the Online Services, software, documentation, formulas,
methods, know how, processes, designs, new products, developmental work,
marketing requirements, marketing plans, customer names, prospective customer
names, terms and pricing, and any information clearly identified in writing or
which, by its nature, should reasonably be known by User at the time of
disclosure as confidential. In the event, Confidential Information is required
to be disclosed by law or other governmental authority, User shall not be
prohibited from disclosing such information by this Section provided that User
shall first have given prompt notice to Bridger to allow Bridger to make a
reasonable effort to obtain a protective order restricting or limiting the
disclosure of the Confidential Information to the extent possible. User
acknowledges that Bridger’s Confidential Information constitutes valuable trade
secrets and agrees that it shall use Bridger’s Confidential Information solely
in accordance with the provisions of this Agreement and shall not use or
disclose, or permit to be used or disclosed, the same, directly or indirectly,
to any third party without Bridger’s prior written consent. User shall
safeguard Bridger’s Confidential Information from unauthorized use and
disclosure using measures that are equal to the standard of performance used by
the institution of which User is an authorized representative to safeguard its
own Confidential Information of comparable value, but in no event less than
reasonable care.
7.
Termination
a.
General Termination of Online
Services. This Agreement is
effective upon User’s acceptance as set forth herein and shall continue in full
force until terminated. User may terminate this Agreement for any reason upon
thirty (30) days prior notice to Bridger. This Agreement shall terminate
automatically without notice from Bridger if User fails to comply with any
provision of this Agreement. Upon termination, User shall terminate use of the
Online Services, including, without limitation, User’s use of any and all
proprietary documents and materials made available through the Online
Services. Except as expressly granted under a provision of this Agreement,
User shall not be entitled to any refund on any portion of any fees or other
charges, if any, paid in connection with this Agreement.
b.
Additional Methods of Termination of
Online Services. Bridger reserves
the right, in its sole discretion and at any time and for any reason, to
terminate the terms of this Agreement as to the Online Services upon thirty
(30) days notice to User.
8.
Disclaimer of Warranties
THE ONLINE SERVICES ARE
PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. USER’S
ACCESS TO AND USE OF THE ONLINE SERVICES ARE AT USER’S SOLE RISK. BRIDGER DOES
NOT WARRANT THAT USER’S USE OF THE ONLINE SERVICES WILL BE UNINTERRUPTED OR
ERROR FREE, NOR DOES BRIDGER MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE
OBTAINED BY USE OF THE ONLINE SERVICES, NOR DOES BRIDGER PROVIDE ANY WARRANTY
RELATED TO THE TIMELINESS, SEQUENCE, ACCURACY, ADEQUACY OR COMPLETENESS OF ANY
DOCUMENTS, MATERIALS OR INFORMATION PROVIDED THROUGH THE ONLINE SERVICES.
BRIDGER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, IN RELATION TO THE ONLINE SERVICES.
9.
Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL
BRIDGER BE LIABLE TO USER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR
RELATING TO THIS AGREEMENT, THE ONLINE SERVICES OR THE INTERNET GENERALLY,
INCLUDING, WITHOUT LIMITATION, USER’S USE OR INABILITY TO USE THE ONLINE
SERVICES, ANY CHANGES TO OR INACCESSIBILITY OF THE ONLINE SERVICES, DELAY,
FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY
MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR
AGREEMENT ENTERED INTO THROUGH THE ONLINE SERVICES, OR ANY DATA OR MATERIAL
FROM A THIRD PERSON ACCESSED ON OR THROUGH THE ONLINE SERVICES, WHETHER SUCH
LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. IN NO EVENT
SHALL BRIDGER’S TOTAL LIABILITY FOR DIRECT DAMAGES EXCEED THE TOTAL PURCHASE
PRICE AND/OR FEES PAID, IF ANY, BY USER TO BRIDGER HEREUNDER. SOME STATES
PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES,
THUS THIS LIMITATION OF LIABILITY MAY NOT APPLY TO USER. IF USER IS
DISSATISFIED WITH THE ONLINE SERVICES, USER’S SOLE AND EXCLUSIVE REMEDY SHALL
BE FOR USER TO DISCONTINUE USE OF THE ONLINE SERVICES AND TERMINATE THIS
AGREEMENT IN ACCORDANCE WITH SECTION 7.
BRIDGER IS NOT AN INSURER
WITH REGARD TO PERFORMANCE OF THE ONLINE SERVICES. THE DISCLAIMER OF WARRANTIES
AND THE LIMITATION OF LIABILITY AND REMEDY ARE A REFLECTION OF THE RISKS
ASSUMED BY THE PARTIES IN ORDER FOR USER TO OBTAIN THE RIGHT TO USE THE ONLINE
SERVICES AT THE SPECIFIED PRICE, IF ANY. USER AGREES TO ASSUME THE RISK FOR:
(i) ALL LIABILITIES DISCLAIMED BY BRIDGER CONTAINED HEREIN; AND (ii) ALL
ALLEGED DAMAGES IN EXCESS OF THE AMOUNT, IF ANY, OF THE LIMITED REMEDY PROVIDED
HEREUNDER.
10.
Indemnification
User agrees to indemnify,
hold harmless and defend Bridger, its members, officers, employees and agents
from and against any action, cause, claim, damage, debt, demand or liability,
including reasonable costs and attorney’s fees, asserted by any person or
entity, arising out of or relating to: (a) this Agreement; (b) User’s
use of the Online Services, including any data or work transmitted or received
by User; and (c) any unacceptable use of the Online Services by User or
through User’s account, including, without limitation, any statement, data or
content made, transmitted or republished by User which is prohibited by this
Agreement.
11.
Miscellaneous
a.
Independent Contractors. The parties and their respective personnel, are and
shall be independent contractors and neither party by virtue of this Agreement
shall have any right, power or authority to act or create any obligation,
express or implied, on behalf of the other party.
b.
Amendment. Bridger shall have the right, at any time and
without notice, to add to or modify the terms of this Agreement concerning the
use of the Online Services, simply by delivering such amended terms to User by
email at the address provided to Bridger by User or by posting such amended
terms on Bridger’s web site. User’s access to or use of the Online Services
after the date such amended terms are delivered to User shall be deemed to
constitute acceptance of such amended terms. User acknowledges that User has a
responsibility to periodically review this Agreement for updates,
modifications, and amendments that govern User’s use of the Online Services.
c.
Assignment. User shall not assign or otherwise transfer its
license under this Agreement or any of it rights or duties hereunder to another
party, by operation of law or otherwise, without the prior written consent of
Bridger. Any attempted assignment or transfer in contravention of this
Agreement shall be void and of no effect.
d.
Waiver. No waiver of any term, provision or condition of
this Agreement, whether by conduct or otherwise, in any one or more instances,
shall be deemed to be, or shall constitute, a waiver of any other term,
provision or condition hereof, whether or not similar, nor shall such waiver
constitute a continuing waiver of any such term, provision or condition
hereof. No waiver shall be binding unless executed in writing by the party
making the waiver.
e.
Severability. If any provision of this Agreement is determined to
be illegal or unenforceable, then such provision will be enforced to the
maximum extent possible and the other provisions will remain fully effective
and enforceable.
f.
Notice. Unless otherwise provided in this Agreement, all
notices shall be in writing and shall be deemed to be delivered when sent by
first-class mail, postage prepaid, or when sent by facsimile or e-mail to
either party’s last known post office, facsimile or e-mail address, respectively.
User hereby consents to notice by email and posting on Bridger’s web site.
Unless otherwise provided in this Agreement, all notices shall be directed to
the parties at the respective addresses given above or to such other address as
either party may, from time to time, provide to the other party.
g.
Law. This Agreement shall be treated as though it were executed and were
to be performed in Marin County, California, USA. The rights and obligations
under this Agreement shall not be governed by the United Nations Convention on
Contracts or the International Sale of Goods, the application of which is
expressly excluded, but such rights and obligations will instead be governed by
the laws of the State of California, USA. This Agreement shall be interpreted
in accordance with and governed by the laws of the State of California, USA, without regard to conflict of law principles.
h.
Forum. All actions, claims or disputes arising under or
relating to this Agreement shall be brought in the federal or state courts
located in or serving Marin County, California, USA. The parties irrevocably
submit and consent to the exercise of subject matter jurisdiction and personal
jurisdiction over each of the parties by the federal and/or state courts
located in or serving Marin County, California, USA. The parties hereby
irrevocably waive any and all objections which any party may now or hereafter
have to the exercise of personal and subject matter jurisdiction by the federal
or state courts located in or serving Marin County, California, USA and to the
laying of venue of any such suit, action or proceeding brought in any such
federal or state court located in or serving Marin County, California, USA.
i.
Process. The parties irrevocably submit and consent, and
irrevocably waive any and all objections which any party may now or hereafter
have, to process being served in any such suit, action or proceeding referred
to in the preceding subsection pursuant to the rules of the applicable court,
including, without limitation, service by certified or registered mail, return
receipt requested. No provision of this section shall affect the right of any
party to serve process in any manner permitted by law or limit the right of any
party to bring suits, actions or proceedings to enforce in any lawful manner a
judgment issued by the state or federal courts located in or serving Marin
County, California, USA.
j.
Equitable Relief. The parties agree that breach of the provisions of
this Agreement, including, but not limited to, the unauthorized use or
duplication of the Online Services or any of the proprietary documents and
materials made available through the Online Services or a breach of the
confidentiality provisions of this Agreement, would cause irreparable harm and
significant injury to Bridger which would be both difficult to ascertain and
which would not be compensable by damages alone. As such, the parties agree
that Bridger has the right to enforce the provisions of this Agreement by
injunction (without necessity of posting bond), specific performance, or other
equitable relief without prejudice to any other rights and remedies Bridger may
have for User’s breach of this Agreement.
k.
Attorney’s Fees. If any action in law or in equity is necessary to
enforce the terms of this Agreement, the prevailing party will be entitled to
reasonable fees of attorneys, accountants, and other professionals, and costs
and expenses in addition to any other relief to which such prevailing party may
be entitled.
l.
Headings. The captions and headings of this Agreement are
included for ease of reference only and will be disregarded in interpreting or
construing this Agreement.
m.
Force Majeure. If the performance of any part of this Agreement by
either party (other than the payment of money) is prevented, hindered, delayed
or otherwise made impracticable by reason of any flood, riot, fire, judicial or
governmental action, labor disputes, act of God or any other causes beyond the
control of either party, that party shall be excused from such to the extent
that it is prevented, hindered or delayed by such causes.
n.
Survival. The terms and provisions of Sections 2(a), 3,
4, and 6-11 shall survive any termination or expiration of this Agreement.
o.
Entire Agreement. This Agreement constitutes the complete and
exclusive statement of the agreement between the parties with respect to the
Online Services and supersedes any and all prior or contemporaneous
communications, representations, statements and understandings, whether oral or
written, between the parties concerning the Online Services.
USER HAS READ,
UNDERSTANDS, AND AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
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