Terms and Conditions
Section 1. This Software Services Agreement, including Sections 1 through 23 (and the definitions set forth in Section 26), is entered at and as of the date (the "Effective Date") when Subscriber accepts this Agreement or begins utilizing the Service. This Agreement is by and between NPL Swap LLC, a Florida limited liability company ("NPL Swap"), and Subscriber.
NPL Swap Software as a Service. NPL Swap grants Subscriber a non-exclusive, non-transferable, limited right to access and use the Service within the United States during the Term of the Agreement solely for Subscriber's internal business purpose of buying or selling notes and other negotiable instruments and related security agreements and instruments (e.g., mortgages) (collectively being the "Mortgages"). As of the date of this Agreement, the Service is a marketplace permitting:
- Subscribers seeking to sell one or more Mortgages ("Seller Subscribers") to upload information concerning each such Mortgage, as well as information about the related property ("Mortgage Related Documentation") to the Service for advertisement to third party subscribers; and
- Subscribers seeking to acquire Mortgages ("Buyer Subscribers") to view Mortgage Related Documentation and other Content provided by Seller Subscribers; and
Buyer Subscribers and Seller Subscribers to:
- communicate via the Service to negotiate price and terms and, if determined by them, to tentatively agree to the purchase price and sale of a Mortgage; and
- conduct a due diligence review of Mortgage Related Documentation to determine whether or not to purchase on the terms of the tentative agreement such Mortgage; and
- arrange for, and consummate the purchase and sale of Mortgages through third party escrow agents, selected by NPL Swap (each being an "Escrow Agent").
In the event that Subscriber and a third party subscriber agree to the purchase and sale of a Mortgage through the Service, the purchase and sale shall be consummated on terms agreed to by them, and the proceeds and Mortgage disbursed via an Escrow Agent in accordance with the terms of the Escrow Agreement attached hereto as Exhibit A. The Escrow Agent or a third-party Document Custodian shall first inspect the Mortgage Related Documentation to ascertain whether or not it is the original documentation. Subscriber authorizes and directs the Escrow Agent to pay the Fees due NPL Swap from Subscriber as and when same become due from the amounts held by Escrow Agent for Subscriber. The arrangement between Escrow Agent and Subscriber shall be based upon the terms and conditions of the Escrow Agreement between them and NPL Swap shall have no liability or obligation, and Subscriber shall not look to NPL Swap for or concerning, the actions and undertakings of the Escrow Agent or of the other subscriber party to the Mortgage purchase and sale transaction. NPL Swap may, from time to time, for the convenience of Subscriber provide a form written purchase and sale agreement that Subscriber may elect, in Subscriber's sole and absolute discretion, to use to consummate a purchase and sale; provided that, Subscriber acknowledges and agrees that NPL Swap is not providing legal, financial or other professional advice and shall have no liability or obligation whatsoever concerning any such purchase and sale agreement. NPL Swap strongly suggests that Subscriber secure appropriate third party professional advice concerning any purchase or sale of a Mortgage.
Section 2. Username. After the provision of all required information, including, without limitation, an e-mail address, NPL Swap shall provide Subscriber with a unique identifier to use to access and use the Service (the "Username"). Only Subscriber shall be entitled to use such Username and the Username may not be transferred to any other person or entity. Subscriber shall not permit any other person to use the Username or to have access the Service as, by or through Subscriber. From the time the Username is issued until NPL Swap acknowledges that it has been deleted or changed, all acts, communications, agreements and transactions undertaken under the Username shall be the acts, communications, agreements and transactions of Subscriber.
Section 3. Content. ALL CONTENT IS PROVIDED AS-IS, WHERE-IS WITH NO REPRESENTATIONS OR WARRANTIES WHATSOEVER. NPL Swap does not screen or otherwise analyze or review Content at or prior to or after the time it is uploaded to the Service and, except for the license granted it below, makes no claim to any Content. NPL Swap's sole obligation concerning the Content shall be to display it. Subscriber provides NPL Swap with a fully paid non-terminable license to: (A) utilize the Content provided by Subscriber to the Service from time to time, in connection with the Service; to undertake NPL Swap' other obligations under this Agreement; and to generate, publish and otherwise utilize aggregate anonymized information about the Service; and (B) make copies of the Content. NPL Swap may, in its sole and absolute discretion and without notice to Subscriber, remove, revise, amend or otherwise correct any Content that NPL Swap believes infringes the intellectual property rights of any person or entity, or is libelous, scandalous, false, fraudulent or provided for a purpose other than that for which the Service is permitted to be utilized. NPL Swap has not obligation whatsoever to store or retain any Content and Subscriber agrees to retain copies of all Content he, she or it deems necessary.
- access or use the Service via any automated means, including, without limitation, using any scripted, robotic or software means, except for such scripts or processes as may be provided by NPL Swap from time to time;
- reproduce, duplicate, copy, sell, resell or exploit access to the Service, use of the Service, or any portion of the Service, including, but not limited to, the software coding or visual design elements;
- modify, reverse engineer, adapt or otherwise tamper with the Service or modify another website so as to falsely imply that it is associated with the Service, NPL Swap, or any other software or service provided by NPL Swap;
- knowingly use the Service in any manner that: (1) infringes or may infringe any third party intellectual property or moral rights; or (2) is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or in violation of the terms of this Agreement;
- remove any copyright or other intellectual property notices of NPL Swap; and
- knowingly use the Service to upload, post, host, or transmit any unsolicited bulk e-mail (e.g., spam), viruses, destructive, malicious or self-replicating computer software.
Section 5. Non-Circumvention. In exchange for the ability to access and use the Service and access to the Confidential Information, Subscriber agrees that he, she or it will not: (A) communicate with any other subscriber concerning any Mortgage other than via the Service; (B) suggest, imply or otherwise cause any other subscriber to deal with Subscriber except through the Service, whether or not it relates to a Mortgage that was or wasn’t posted to the Service; (C) close or consummate and purchase any Mortgage, except in accordance with the Service and through an Escrow Agent. For avoidance of doubt, Subscriber is prohibited from purchasing ANY Mortgage from any other subscriber outside of the service, if the underlying relationship between the subscribers consummated as a result of the Service. Subscriber acknowledges that, without the restrictions set forth in this Section 5, NPL Swap would not grant Subscriber access to and the right to use the Service or access to the Confidential Information. NPL Swap shall be entitled to recover liquidated damages in the amount of $20,000 for each violation of the provisions of this Section 5, it being the understanding of the parties that the actual damages of NPL Swap for each such violation will be difficult to determine and the foregoing amount reflects their best estimate of such damages as of the date of this Agreement.
Section 6. Availability. NPL Swap shall have the right at any time, and from time to time, to modify or discontinue the Service, temporarily or permanently, with or without notice, in whole or in part; and to temporarily suspend Subscriber's access to the Service for operational or other purposes, including, but not limited to, maintenance, repairs or installation of upgrades and emergencies, but will endeavor to provide notice prior to any non-emergency suspension.
Section 7. Ownership of Services. The Service, the software utilized to provide the Service, and all intellectual property and moral rights therein shall be and remain the property solely of NPL Swap and, except for access to the Service on the terms set forth herein, Subscriber shall not have or receive any rights or interests in any of the foregoing.
Obligations Concerning Confidential Information. Subscriber shall:
- not disclose, or allow any person or entity access to Confidential Information;
- not make any use, commercial or otherwise, of the Confidential Information;
- exercise reasonable diligence to maintain the confidential, secret or proprietary nature of all Confidential Information and to prevent its use, utilizing such security measures as may reasonable under the circumstances, but not less than that utilized by the Receiving Party for its own Confidential Information.
Notwithstanding the foregoing, Subscriber may: (AA) disclose Confidential Information: (1) to your professional advisers who are under an obligation of confidentiality to Subscriber and who are providing professional services to Subscriber in connection with Subscriber's purchase or sale to which the Confidential Information applies; or (2) if and only if: (a) compelled by, and solely to the minimum extent necessary to comply with, bona fide unaffiliated third party initiated legal process (including, but not limited to, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar legal process); and (b) reasonable advance written notice is provided to the Disclosing Party (to the extent not prohibited by applicable law) including the relevant details of the legal process so as to enable the Disclosing Party to protect its rights in and to the subject Confidential Information; and (BB) use Confidential Information in connection with a due diligence review of a Mortgage for purchase, with making a Mortgage available for sale via the Service, and with consummating a purchase or sale through the Service and via an Escrow Agent. Upon Subscriber's acquisition of a Mortgage, the restrictions of this Section 8 shall not apply to Confidential Information of or pertaining to such Mortgage. It is understood and agreed by Subscriber that until an acquisition of a Mortgage is consummated, that all information relating to or pertaining to such Mortgage should be considered Confidential without further need for other subscribers to indicate as such.
Section 8. Fees. Subscriber shall pay NPL Swap a fee (the "Fee") of one percent of the purchase price of each Mortgage that is either purchased or sold by Subscriber. The Fee shall be due and payable at the time the purchase price is either paid by Subscriber or received by Subscriber, and Subscriber directs and authorizes the Escrow Agent to deduct the Fees from the purchase price at the time of the closing and consummation of each purchase or sale, and to pay such Fees to NPL Swap. Payments received by NPL Swap more than ten (10) days from when they are due shall be subject to a late fee of the greater of 5% of the amount due or $50.00, to offset NPL Swap's costs incurred in connection with late payments, and all amounts due and unpaid shall bear interest from the date due until paid at the lesser of 1.5% per month or the highest rate permitted by applicable law. NPL Swap may also provide other services from time to time or incur 3rd party costs at Subscribers direction, for which Subscriber will be responsible for paying. Such services or costs may include but are not limited to: (a) 3rd party valuation services such as BPOs, Appraisals, Desktop Reviews, etc.; (b) Title & Escrow services; (c) Legal Review services; (d) Underwriting Review (TPR) services for data verification; (e) Original Document Custody & Review/Audit services; (f) Other services that may be added from time to time. To find out current rates and fees, please go to: https://support.NPL Swap.com/general-usage-questions/what-does-your-NPL Swap-fee-include. Should there be any difference between the fees contained herein and the fees found at the web page in the preceding sentence, the web page will control. If Subscriber does not complete the sale, NPL Swap retains the right to collect any fees owed and retain any fees paid if Subscriber was negligent in completing the closing based on NPL Swap's discretion.
Section 9. Term and Termination. The term (the "Term") of this Agreement shall commence on the Effective Date and continue until terminated in accordance herewith. Either party may terminate this Agreement on written notice to the other party; provided that, if termination is by Subscriber and the purchase or sale of a Mortgage is pending, termination shall not occur until the consummation or termination of such purchase or sale. Upon a termination of this Agreement for any reason whatsoever, NPL Swap may terminate Subscriber's access to the Service and Subscriber shall immediately cease using the Service.
WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SPECIFICALLY SET FORTH HEREINBELOW, NPL SWAP MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED CONCERNING OR RELATING TO ANY OF THE SERVICE OR THE ESCROW AGENT, INCLUDING, BUT NOT LIMITED TO: (A) NO WARRANTIES OF MERCHANTABILITY; (B) NO WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; AND (C) NO WARRANTY CONCERNING INTELLECTUAL PROPERTY RIGHTS. NPL SWAP ONLY WARRANTS THAT IT CAN PROVIDE SUBSCRIBER THE ACCESS TO THE SERVICE.
Section 10. Improvements and Suggestions by any Customer. All right, title and interest in and to, and the right to pursue protection for, improvements, enhancements and modifications the Service or its use or applicability that are suggested or made by Subscriber (being "Improvements") shall vest solely with NPL Swap, and Subscriber does hereby assign all such Improvements to NPL Swap. No license is granted to Subscriber in, to or under any Improvements or other intellectual property or moral right owned or otherwise assertible by NPL Swap by express or implied grant, estoppel or otherwise, except solely when and if incorporated into a future revision of the Service. All benefits from the use of any such Improvements shall inure solely to NPL Swap.
Section 11. LIMITATION OF LIABILITY. NPL SWAP SHALL NOT BE LIABLE TO SUBSCRIBER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF BUSINESS OR OTHER ECONOMIC DAMAGE, OR INJURY TO PROPERTY. IN ADDITION, IN NO EVENT SHALL THE DAMAGES PAYABLE BY NPL SWAP TO SUBSCRIBER OR ANY PERSON OR ENTITY CLAIMING THROUGH SUBSCRIBER EXCEED THE GREATER OF $1,000.00 OR THE FEES PAID BY SUBSCRIBER TO NPL SWAP IN THE PARTICULAR TRANSACTION AT ISSUE. EACH PARTY ACKNOWLEDGES THAT: THIS SECTION REFLECTS AN INFORMED, VOLUNTARY ALLOCATION OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THE ARRANGEMENTS SET FORTH IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE USE OF THE SERVICE, STORAGE AND DISSEMINATION OF THE CONTENT AND THE EXERCISE OF THE LICENSED RIGHTS; AND SUCH VOLUNTARY RISK ALLOCATION WAS A MATERIAL PART OF THE BARGAIN BETWEEN THE PARTIES; AND THE ECONOMIC AND OTHER TERMS OF THIS AGREEMENT WERE NEGOTIATED AND AGREED TO BY THE PARTIES IN RELIANCE ON SUCH VOLUNTARY RISK ALLOCATION.
Section 12. Indemnification. Subscriber shall hold NPL Swap and its members, managers and employees, collectively and individually, harmless from and against any Losses arising out of or incurred as a result of or in connection with: (A) Subscriber's material breach of this Agreement; or (B) a third party claim based on Subscriber's: (1) use of the Services; or (2) Content; excluding therefrom all Losses arising from NPL Swap' breach of this Agreement.
Section 13. Entire Agreement, Waiver and Modification. This Agreement sets forth the entire understanding of the parties concerning the subject matter of this Agreement and incorporates all prior negotiations and understandings. There are no covenants, promises, agreements, conditions or understandings, either oral or written, between them relating to the subject matter of this Agreement other than those set forth herein. No purported waiver by any party of any default by another party of any term or provision contained herein shall be deemed to be a waiver of such term or provision unless the waiver is in writing and signed by the waiving party. No such waiver shall in any event be deemed a waiver of any subsequent default under the same or any other term or provision contained herein. Except as set forth in Section 16, no alteration, amendment, change or addition to this Agreement shall be binding upon any party unless in writing and signed by the party to be charged.
Section 14. NPL Swap Amendment by Notice. NPL Swap may at any time and from time to time amend this Agreement by providing not less than five (5) days advance notice (the "Amendment Notice") to Subscriber setting forth the substance of such amendment. If Subscriber does not terminate this Agreement within the foregoing period, the amendment shall be effective as of the date set forth in the Amendment Notice.
Section 15. Successors and Assignment. All of the provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and, except as otherwise specifically provided in this Agreement, their respective permitted successors and assigns. No Customer may assign or delegate its, his or her, rights or obligations under this Agreement. NPL Swap may assign and delegate its rights and obligations under this Agreement without notice to any Customer at any time and from time to time.
Section 16. Notices. Any consent, waiver, notice, demand, request or other instrument required or permitted to be given and effective under this Agreement shall be in writing and deemed to have been properly given upon: (A) actual delivery if hand delivered; (B) the next business day after: (1) transmission by overnight express courier service (e.g., Federal Express), freight prepaid to the address for such party set forth herein; or (2) in the case of a notice provided by NPL Swap, being sent to the e-mail address for the Subscriber associated with the Username; (C) the next business day after transmission by facsimile (with receipt showing successful transmission) to the facsimile number for such party set forth in the records for the Service; or (D) three (3) business days after being sent by certified United States mail, return receipt requested, postage prepaid, to the address for such party set forth in the records for the Service. Either party may change its address or facsimile number for notices by changing it on the records for the Service.
Section 17. Captions. The captions and paragraph letters appearing in this Agreement are inserted only as a matter of convenience. They do not define, limit, construe or describe the scope or intent of the provisions of this Agreement.
Section 18. Partial Invalidity. If any term or provisions of this Agreement, or the application thereof to any person or circumstance, shall be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances, other than those as to which it is held invalid, shall both be unaffected thereby and each term or provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
Section 19. Applicable Law and Venue and Forum. The provisions of this Section are a material part of the agreement of the parties. But for the provisions of the Section, NPL Swap would not enter this Agreement, grant the Licensed Rights, or provide any Customer with access to the Service. THIS AGREEMENT SHALL BE CONSTRUED AND GOVERNED UNDER AND BY THE LAWS OF THE STATE OF NEW YORK FOR CONTRACTS EXECUTED AND TO BE PERFORMED IN NEW YORK. EXCLUSIVE VENUE FOR ANY LEGAL ACTION AUTHORIZED HEREUNDER OR RELATING HERETO SHALL BE IN NEW YORK COUNTY, NEW YORK.
Section 20. Third Party Beneficiaries. There are no intended, express or implied third party beneficiaries to this Agreement.
Section 21. WAIVER OF JURY TRIAL. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE ALL OF THEIR INDIVIDUAL AND COLLECTIVE RIGHTS TO A TRIAL BY JURY ON ANY AND ALL ISSUES PERTAINING TO OR ARISING OUT OF THIS AGREEMENT AND THE PRODUCTS.
Section 22. Attorneys' Fees. In the event any litigation, mediation, arbitration, or controversy between the parties hereto arises out of or relates to this Agreement or the Service, the Prevailing Party in such litigation, mediation, arbitration or controversy shall be entitled to recover from the other party all reasonable attorneys' fees, expenses and suit costs, including any associated with any appellate proceedings and any post-judgment collection proceedings.
Section 23. Definitions.
Agreement means this entire Software Services Agreement (Sections 1 through 23), as may be amended from time to time in accordance herewith. Confidential Information means:
all confidential or proprietary information of, about, or relating to:
- NPL Swap; or
- other subscribers that is received or accessed via the Service; or
- Mortgages, Mortgage Related Documentation, and property that is the subject of a mortgage that is received or accessed via the Service, as well as offers and transactions concerning or relating to Mortgages; or
- all information provided by any subscriber of NPL Swap other than Subscriber; provided, that, "Confidential Information" shall not, in any event, include any information that becomes generally known or publicly available upon reasonable inspection other than information that became generally known or publicly available as a result of a breach of an obligation of confidentiality to any of Seller or the Company.
Content means any information uploaded or posted to the Service by Subscriber, including, without limitation, information about Subscriber or any Mortgage offered for sale by Subscriber.
Prevailing Party means, generally, the party in any litigation, mediation, arbitration or other controversy (each being a "Dispute") that prevails on substantially the majority of the issues in the Dispute; provided that, if one party provides an offer of judgment or settlement in any Dispute and the outcome of the Dispute is not material different that such offer, the party making the offer shall be the Prevailing Party in such Dispute. For purposes of this definition, materially different shall include, in the case of money damages, the outcome of the Dispute provides for damages in excess of 115% of such offer.
Service means the services provided from time to time by NPL Swap through its NPL Swap Software-as-a-Service offering.
Document Custodian means a 3rd party service provider such as, but not limited to US Bank, Wells Fargo or Dietche Bank who regularly engages in document custody, review and issuance of trust certificates.
Survival. Sections 3, 4, 5, 7, and 8 through 23 shall survive the termination, cancellation or expiration of this Agreement by whatever means for whatever reason.