Filogix Expert is operated in Canada by D+H Mortgage Technology Corporation (“Finastra”, “we” or “us”) through its https://expert.dhltd.com website. These terms and conditions (the “Agreement”) govern your (the “Customer Agent” or “you”) use of the Services. If you agree to be bound by the terms of this Agreement, select “I agree” on the Filogix Expert login page. That action is the equivalent of your signature and indicates your acceptance of this Agreement and that you intend to be legally bound by it.
If you agree to accept to be bound by the terms of this Agreement you may proceed to use Filogix Expert and the related documentation (the “Software”). If you do not agree to be bound by the terms of this Agreement, you will not be able to use the Software.
This Agreement operates in conjunction with your agreement with the brokerage firm with whom you are associated (the “Customer”) that has entered into an agreement with Finastra with respect to Filogix Expert. You may only proceed to use the Software if you have an existing agreement with the Customer and you are not in breach of that agreement. If you do not have an agreement in place, if your agreement with the Customer has been terminated or if you are in breach of your agreement, you may not use the Software. If you do not agree to the terms of this Agreement, you must promptly cease using the Software and destroy all copies of the Software in your possession, together with accompanying items (including written materials), if any.
- Finastra and its affiliates have established a network of lenders, internet users, mortgage brokers and other users that provides information via a variety of means (the “Marketplace”) where parties can access, use, provide, exchange and receive information and data in connection with mortgage transactions, related activities and ancillary services (“Data Access Rights” and together with the Software, the “Services”)
- The Customer Agent is an employee or independent contractor of the Customer who originates or fulfils residential mortgages.
- In connection with the Customer, Finastra has agreed to grant certain rights to the Customer Agent in accordance with the terms of this Agreement.
For good and valuable consideration, the receipt and sufficiency of which is acknowledged, it is agreed as follows:
- Electronic Documents. . You hereby consent to the exchange of information between you and Finastra electronically over the internet and that this Agreement in electronic form shall be the equivalent of an original written paper agreement between you and Finastra.
- Changes to Agreement. We may change the terms of this Agreement at our sole discretion at any time. Your use of the Services after changes are made to this Agreement means that you agree to be bound by those changes.
- Provision of Services. Finastra agrees to provide you the with Services. You agree to provide true, accurate, current and complete information as requested. Registration is required for each individual wishing to have access to the Services as further described in the Access and Use of Password section below.
- Grant of Licence. Subject to the terms and conditions of this Agreement, Finastra grants to the Customer Agent, a non-exclusive, non-transferable, licence during the Term of this Agreement to use Data Access Rights and to use the Software. This use must be personal, is restricted to use in Canada, and is solely for internal business purposes of the Customer Agent as a mortgage broker.
- Software. Customer Agent acknowledges that the Software consists of confidential and proprietary information, trade secrets and ownership rights belonging to Finastra and that Customer Agent’s rights to the Software are strictly limited to those specifically granted in this Agreement. Customer Agent agrees that during the Term, and after the expiration or termination of this Agreement for any reason whatsoever, it shall hold the Software in strict confidence and shall not make any use of it other than as a user of the Marketplace and in accordance with the terms of this Agreement. Customer Agent agrees it will not at any time during the Term or after the expiration or termination of this Agreement for any reason whatsoever, use (other than in accordance with the express terms of this Agreement), copy or otherwise duplicate (other than in accordance with the express terms of this Agreement), modify the code for, reverse engineer, internally examine and/or emulate the Software in any way. Customer Agent further agrees that it will not, at any time during the Term, develop or participate in the development of, any software similar to the Software or which accomplishes the same, similar, or substantially the same or similar tasks as the Software. Customer Agent acknowledges that it has been advised by Finastra that the breach of this section would cause serious and irreparable harm to Finastra which could not be adequately compensated for in damages. In the event of any breach of this section by Customer Agent, Finastra may seek an injunction against Customer Agent, restraining it from any further breach of this Agreement.
- Marketplace Rules. Customer Agent shall comply with all specifications, information, requirements, standards, policies and operating procedures relating to the operation and use of the Marketplace from time to time, whether set out in this Agreement or as communicated by Finastra from time to time to the Customer Agent (the “Marketplace Rules”), including with respect to, without limitation: (a) the use of Finastra’s trade-marks or those of other users of the Marketplace, which may not be used in any manner except with the prior written approval of Finastra; (b) the use and retention of standard forms; (c) the content, style and media of advertising conducted by Customer Agent that mentions or advertises Customer Agent as a user or member of the Services or the Marketplace; (d) a requirement that, at all times, Customer Agent remain duly licensed (or exempt by legislation) as a mortgage broker, and otherwise comply with all applicable laws, regulations and policies including, without limitation, any broker, real estate, consumer protection, privacy or similar legislation or policies of regulatory bodies or associations; (e) the installation and maintenance of telecommunication equipment or services necessary for the most efficient use of the Services and the Marketplace, (f) any requirements, procedures, policies or regulations of third party service providers. Customer Agent acknowledges that in order to use the Software and the Marketplace it will comply with the operating procedures and instructions contained in any “help” or similar files contained in or delivered with the Software; and (g) methods and procedures pertaining to the Marketplace and the Services and the Software, including:
- Unless otherwise permitted by Finastra, Customer Agent shall use the most current form of the Software that is available from time to time and may only use it in association with one computer
- Customer Agent shall not use Data Access Rights to transmit, upload, download, e-mail, access or otherwise make available content that is contrary to law, violates third party rights of any kind, harmful, threatening, abusive, libelous, hateful or racially, ethically or otherwise objectionable, harmful computer code, interferes with or disrupts (by way of unreasonable bandwidth use or otherwise) the Marketplace, or to solicit, directly or indirectly, other users of the Marketplace, to become employees or be associated with the Customer Agent or to buy, purchase or license products or services which have not been authorized by Finastra;
- Customer Agent shall submit mortgage loan applications destined for a lender by utilizing the Marketplace;
- Customer Agent shall submit a mortgage loan application to one lender only, for acceptance or rejection and, only after a loan application or commitment is rejected, shall the loan application from the same borrower be submitted to another lender and so on from time to time so that no more than one lender at a time is considering a loan application from any one borrower, provided, however, a loan application shall be deemed to have been rejected by a lender if a lender does not respond within four (4) hours of the time that Customer Agent submits the application; and
- The Customer Agent shall ensure it maintains in the Marketplace the current status of all mortgage loan applications.
- Limitations on Use
- Canadian Residents Only. The Services are intended for Canadian residents only. To register for the Services you must have a valid Canadian address.
- Access and Use of Password. Only you may access the Services using your user name or password during the Term of this Agreement. You are responsible for keeping your password confidential and for all activities that occur using your password. You must notify Finastra immediately of any unauthorized use of your password, or any other breach of security by contacting us at (800) 732-5638 . In no event will Finastra be liable to you for any liability or damages resulting from or arising out of any compromise of the confidentiality of your password or any unauthorized access or use of your password, whether with or without your knowledge. Additionally, you agree you will not access or attempt to access secure or non-public areas of the Software. Unauthorized individuals attempting to access prohibited areas of the Software website may be subject to prosecution.
- Data. Customer Agent shall not make use of or otherwise copy, file, transcribe, duplicate, or otherwise retain any data placed or entered on the Software including all information relating to interest rate quotations and credit bureau information except for data relating to customers of Customer or Customer Agent placed on the Software by Customer or Customer Agent (“Customer Data”) in the Marketplace for its own use or the use of third parties, except as specifically authorized in accordance with this Agreement. Customer Agent acknowledges and agrees that Finastra, its employees and agents, take no responsibility for the accuracy of the information submitted through the Marketplace by third parties, and that it is Customer Agent’s sole and exclusive responsibility to verify the accuracy of any and all information or other data provided through the Marketplace. Customer Agent acknowledges and agrees that Finastra is not responsible for the manner in which lenders and trading partners using the Marketplace use Customer Data.
- Fee. Finastra agrees to provide the Services to the Customer Agent on a complimentary basis and without charge to the Customer Agent. Customer Agent acknowledges that Finastra is entitled to compensation for the grant of Data Access Rights to the Customer Agent from the Customer or other parties
- Allocation of Risk
- Limitation of Liability. In no event will Finastra, Finastra’s affiliates and each of their respective directors, officers, employees, agents and contractors or their successors and assigns be liable for any direct, indirect, incidental, consequential, punitive, exemplary, aggravated or economic damages, howsoever caused, arising out of your use of the Services or otherwise related to this Agreement, even if Finastra has been advised of the possibility of such damages or claim.
- No Warranty Finastra does not warrant or guarantee the timeliness, sequence, accuracy, authenticity or completeness of any information that is made available to Customer Agent or its customers by or through the Marketplace, and Finastra assumes no liability or responsibility to Customer Agent or its customers for any reliance on that information. Customer Agent expressly acknowledges and agrees that the use of and access to the Marketplace is at Customer Agent’s sole and exclusive risk. Except as expressly provided in this Agreement, Finastra does not make or give any representation, warranty, guarantee or condition of any kind with respect to the Software, the Services, or the Marketplace, whether express or implied, statutory or otherwise, including without limitation warranties as to uninterrupted or error free transactions, privacy, security, merchantability, quality, title, non-infringement or fitness for a particular purpose, or those arising out of a course of dealing or usage of trade
- Indemnity and Waiver. You shall indemnify Finastra, its successors and assigns and each of its and their respective directors, officers, employees, consultants and agents (collectively the “Finastra Indemnitees”) from and against any and all liability, damages, losses, claims (including reasonable legal fees) resulting in any way from your use of the Services or the Marketplace or resulting from any breach of this Agreement whether such breach is caused by you or by any other person using your password, arises out of your data, your use of the Software, your connection to the Software or your violation of any third party rights. Furthermore, you hereby acknowledge that use of the Services is done at your own discretion and risk and that you waive any right to bring any claim or action against any Finastra Indemnitee for any loss, damage or injury arising from use of the Services or the Marketplace.
- Survival. This section shall survive the cancellation or earlier termination of this Agreement.
- General Provisions
- Links to Third Party Sites. The Software may contain hyperlinks to websites operated and owned by parties other than Finastra. Those hyperlinks are provided solely for your reference and Finastra makes no representations or warranties with respect to those sites or their contents. Any hyperlinks to third party websites do not imply any endorsement of the material contained on those websites or any association to their operators or owners.
- Modifications or Discontinuance of the Services. Finastra may modify or discontinue the Services (or a part thereof) with or without notice to you. Finastra shall not be liable to you or any third party for any modification, suspension or discontinuance of the website.
- Calculations. Various tools and functions of the Software perform calculations and provide, among other things, estimated costs (the “Tools“). These Tools are offered free of charge by Finastra and are provided on an “as is” basis without any representations or warranties (expressed or implied) and subject to the terms and conditions of use of this Agreement. The calculations and scenarios used in the Tools are for illustrative and information purposes only. Finastra does not guarantee the accuracy, reliability or completeness of any information, formulas or calculations provided through the use of the Tools and does not guarantee that the Tools will apply or be accurate in your situation. Finastra does not accept, and by using the Software (including without limitation the Tools) you explicitly acknowledge and agree that Finastra will not have, any liability for any loss or damage whatsoever and howsoever arising in relation to or in connection with or resulting from the use of or access to the Tools.
- Assignment. Finastra may assign or subcontract any or all of its rights and obligations under this Agreement at any time without notice to you. You acknowledge that you may not without the prior written consent of Finastra assign, transfer, rent, sub-licence or lease the rights granted hereunder or dispose of your obligations under this Agreement whether in part or in whole.
- Notices. All notices given by Finastra to you will be given by (i) e-mail, or (ii) by prominent posting on the portions of the Software reserved for notices to users. You are responsible for regularly checking your email and the Software to make yourself aware of any such notices. Notices will be effective when transmitted or posted. You must notify us in the event of a change to your designated e-mail address for purposes of the Services. We are not responsible for any loss of communications if you deactivate the e-mail address you provided.
- Entire Agreement. This Agreement constitutes the entire agreement between you and Finastra and supersedes any prior agreements, arrangements, statements and understandings between you and Finastra in respect of the subject matter of this Agreement including any oral statements made by Finastra representatives. To the extent that anything in or associated with the Agreement is in conflict or inconsistent with website terms and conditions posted in the Software, this Agreement takes precedence. The section titles and other headings are for convenience only and have no legal effect.
- Waiver. A waiver by Finastra of any breach by any Customer Agent of any of the terms, provisions or conditions of this Agreement or the acquiescence of Finastra to any act (whether of commission or omission) which but for such acquiescence would be a breach as aforesaid does not constitute a general waiver of such term, provision or condition or of any subsequent act contrary thereto.
- No Partnership/Joint Venture. This Agreement does not create a joint venture, partnership or employment relationship between the parties, nor does either party have the right, power or authority to create any obligation or duty, express or implied, on behalf of the other.
- Governing Law. The laws of the Province of Ontario govern all matters relating to the performance of or otherwise arising out of this Agreement. The only venue for disputes arising out of this agreement is the appropriate provincial or federal court located in Toronto, Ontario, and Customer Agent hereby submits to the exclusive jurisdiction of those courts.
- Severability. . If any part of this Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of this agreement is not affected.
- Force Majeure. Finastra is not be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including, without limitation, acts of war, acts of God, terrorist activities, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, defaults by subcontractors, governmental act or failure of the internet or other computer services.
- Disputes. All questions or disputes regarding the Services, the Software, its contents or this Agreement must be submitted in writing within ninety (90) days of the query where applicable, to: Finastra, 120 Bremner Blvd, Suite 3000, Toronto, Ontario M5J 0A8