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LOANPRO SOFTWARE SERVICE AGREEMENT FOR SOFTWARE AS A SERVICE (SAAS)
THIS SERVICE AGREEMENT (the “Agreement”), dated effective as of the date this Agreement is accepted by Customer, is by and between LoanPro Software, LLC, a Utah limited liability company (“LoanPro”), and the customer whose name and contact information is set forth in the Contract Documents (“Customer”). AUTHORIZED USERS: IF YOU ARE AN AUTHORIZED USER OF THE LOANPRO SERVICE AND SOFTWARE, THE LIMITATIONS AND RESTRICTIONS IN THIS AGREEMENT APPLY TO YOU. READ THIS END USER LICENSE AGREEMENT BEFORE USING THIS SOFTWARE, ESPECIALLY SECTIONS 3.3 AND 3.4. BY CLICKING “YES” BELOW OR BY USING THE SOFTWARE, YOU INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, CLICK “NO” BELOW AND DO NOT USE THE SOFTWARE. ALL CUSTOMERS AND USERS ARE REQUIRED TO ACCEPT THIS CLICK-THROUGH SAAS SERVICE AGREEMENT ASSOCIATED WITH THE SERVICE. HOWEVER, IF CUSTOMER HAS SIGNED A CUSTOM FORM OF SAAS SERVICE AGREEMENT WITH LOANPRO, THAT CUSTOM SERVICE AGREEMENT WILL TAKE PRECEDENCE WHERE THERE IS A DISCREPANCY BETWEEN THE CUSTOM FORM AND THIS AGREEMENT. FOR ANY CUSTOM TERMS NEGOTIATED BETWEEN LOANPRO AND CUSTOMER, PLEASE REFER TO THAT CUSTOM FORM OF AGREEMENT. LoanPro has developed certain Software, as defined below, which Customer desires to use for its internal business purposes. Customer will be provided access to the Software as a cloud web-based application. In consideration of the mutual covenants and agreements contained herein, the sufficiency of which is hereby acknowledged, Customer and LoanPro agree as follows: 1.
“Account” means each individual loan or lease on the LoanPro system that is associated with Customer's subscription. Accounts are designated either as Live Accounts or Archived Accounts:
“Live Account” means any Account in the Software that has been created, regardless of status, and that is not currently archived.
“Archived Account” means any Account for which, at the instruction of Customer, the action of “Archive Account” has been processed and is currently in an archived state. Archived Accounts do not allow any modifications, updates or calculations to occur on them, either manually or by the LoanPro Service.
“Create Account” means the action of creating a new (permanent or temporary) Account in LoanPro, regardless of the method of doing so. Create Account methods include, without limitation, Standard, Preconfigured, Custom Boarding, Quick Quote Tool, Import Tool, API creation.
“Account Modification” is the act of using a LoanPro tool to make modifications to the terms of a Live Account after it is set up in the LoanPro system. This includes the ability to change the settings, frequency, balance, interest rate, and other setup terms of the Account. Only Account adjustments that use the LoanPro Account Modification tool will be considered Account Modifications, as several Account adjustments can be performed with other tools, or combinations of tools. 1
“Activation Date” means the date this contract is signed.
“Active Agent User” means an Authorized User that is marked as “Active” on the tenant (i.e., the Software’s virtual environment exclusive to Customer, inclusive of the production tenant or the optional sandbox tenant).
“Administrative User” means Customer’s primary contact person with LoanPro, who has full access to the Software and has the right and ability to control access for all other Authorized Users (i.e., can grant or restrict Software access for other Authorized Users). Each tenant is limited to only one (1) Administrative User, at any given time.
“Archive Account” means the action of setting an Account as Archived Account status.
“Authorized User(s)” means any person that Customer allows to have access to the Software and Customer’s account, including Customer’s employees and staff and any third parties that Customer allows to view or use the LoanPro Service.
“Autopay” is a LoanPro tool to schedule a payment profile to process with the elected processor, including offline NACHA processing, or bypassing processor options at a date/time in the future, including recurring Autopays. Each hour the Autopay tool processes all Autopays that have a scheduled time within the prior hour. Success of an Autopay is determined by the settings and processor responses. For LoanPro purposes, an Autopay is deemed successful if the processor does not reject the Autopay submission of the transaction. Autopay requires an active PCI Wallet account.
“Billable Account” means the number of Accounts that are charged a marginal monthly per unit fee. The Billable Account number will be calculated by taking the greatest number from the following metrics for the applicable Billing Cycle: a. Live Accounts -- Highest Number of Live Accounts during the Billing Cycle. b. Customer Account Limits -- If the number of Customers at the end of the Billing Cycle is more than a multiple of two and one tenth (2.1) of the sum of the number of Live Accounts plus Archived Accounts at the end of the Billing Cycle, then this value is calculated as the number of Customers at the end of the Billing Cycle divided by 2.1; otherwise this value shall equal zero (for purposes of calculating the Billable Accounts). c.
Autopay Limits -- If the number of Autopays processed during the Billing Cycle is more than the value from subsection (a) for that Billing Cycle multiplied by four (4), then this value is calculated as the number of Autopays processed during the Billing Cycle divided by four (4); otherwise this value shall equal zero.
d. Account Modification Tool Limits -- If the number of Account modifications performed during the Billing Cycle using the Account Modification Tool is more than ten percent (10%) of the number found in subsection (a) for that Billing Cycle, then this value is calculated as the number of Account modifications performed during the Billing Cycle multiplied by ten (10); otherwise this value shall equal zero. e. Collector Queue Limits -- If the total count of times that any Account is processed via a Collector Queue tool during a particular Billing Cycle (“Occurrences”) is greater than the number found in subsection (a) for that Billing Cycle multiplied by twenty-five (25), then this value is calculated by taking the total count of Occurrences divided by twenty-five (25); otherwise this value shall equal zero. f.
Custom Form Limits – If the total number of custom forms generated during the Billing Cycle is greater than five (5) times the number in subsection (a) for that Billing Cycle, then this value is calculated as the total number of custom forms generated during the 2
Billing Cycle divided by the number from subsection (a); otherwise this value shall equal zero. g. Rule Evaluation Limits – If the total number of Rule Evaluations that the system performs during the Billing Cycle exceeds Seven Hundred Fifty (750) times the number found in subsection (a) above, then this shall be calculated as the total number of Rule Evaluations performed during the Billing Cycle divided by Seven Hundred Fifty (750); otherwise this value shall equal zero. 1.11
“Billing Cycle” means each calendar month.
“Collector Queue Tool” is a tool developed by LoanPro that allows for lists of Accounts to be submitted to Authorized Users to process in designated sequence to provide servicing of the Accounts. This tool provides a user interface and tracking tool to manage Authorized Users and assign tasks. An Account is deemed to have been “processed” by the Collector Queue Tool if it is both (a) included in a collector queue, and (b) an Authorized User has navigated via the Collector Queue Tool and logged any time inside of the collector queue on that specific Account.
“Confidential Information” means all proprietary and confidential information exchanged by the parties or to which access is provided by one party to the other, including the Software; trade secrets; the substantive terms of this Agreement; a party’s non-public business, strategic and financial information; any plans, programs or forecasts; intellectual property; Customer Data; any written materials marked as confidential and any other information, including visual or oral information, which reasonably should be understood to be confidential. Confidential Information does not include information that the receiving party can prove: (a) is now or later becomes generally available to the public without fault of the receiving party; (b) was rightfully in the receiving party’s possession prior to its disclosure by the disclosing party; (c) is independently developed by the receiving party without the use of any Confidential Information of the disclosing party; or (d) is obtained by the receiving party without obligation of confidentiality from a third party who has the right to disclose it. The receiving party may also disclose Confidential Information to the extent required under a judicial or legislative order or proceeding; provided that the receiving party gives the disclosing party, if feasible, prior notice and an opportunity to respond or object to such disclosure.
“Contract Documents” means this Agreement, the welcome/activation email from LoanPro to Customer listing the services being purchased by Customer, the Pricing Table, Appendix A Pricing, and the proof of electronic signature from DocuSign or a similar service.
“Custom Forms Tool” is a tool developed by LoanPro that provides custom formatting of HTML into desired format, including the mail merge of variables from the context engine in LoanPro. These are then formatted and merged into the output file format of .pdf. These include billing statements, contracts, collection letters, and other custom communications via the .pdf medium.
“Customer Account” means a customer record in the LoanPro Service. The search result of the Customer Account can be found in the Customer Manager page.
“Customer Data” means all information and data input by Customer and its Authorized Users into the Software, including all usernames, passwords, and other data provided by Customer and its clients. However, Customer Data does not include the usage data relating to customers’ use of the Software, or the results or information provided by third party vendors in response to requests or queries of Connections customers, except to the extent such results or information contain data that is individualized to the customer.
“Data Import” means use of the Software’s data import tool; specifically, use of the LoanPro system to import data, including through .csv file formats, and to upload, validate, and import accounts, transactions, settings, and other properties into the Software.
“Data Storage” for billing purposes, is comprised of all Customer Data stored on the cloud storage system used by the LoanPro Service (currently AWS S3), which is primarily made up of uploaded documents, images attached to Accounts or customer profiles. This also includes Customer Data stored on behalf of Customers in their private tables in the database. This does not include Customer Data stored in backups, as outlined in LoanPro Data Backup Policy.
“Delete Account” means the action of deleting an Account. This removes the Account from the database entirely. A deleted Account may be recovered through a Restore Account action for a limited time after the date of deletion, until it is fully purged from all databases.
“Documentation” means the user instructions and/or user manual for the LoanPro Service either provided directly to Customer or made publicly available by LoanPro, which are in electronic format, as may be updated by LoanPro from time to time.
“Hosted Website” means a website that allows Customer’s clients to login online and manage their Accounts.
“LoanPro Service” means a web-based service that is hosted on servers of LoanPro or its agents, through which Customer is provided access to the Software via the Internet. The specific Software and services provided to Customer as part of the LoanPro Service are listed in the Contract Documents. The LoanPro Service may include other Simnang Family Products, including those marketed by LoanPro under other names, including LoanPro Software, LeasePro Software, Origimate, and others. Some software or services may be licensed under the terms of this Agreement; others may require a separate license or service agreement, or an addendum to this Agreement.
“Pricing Table” means the pricing table set forth in Appendix A, for various products and services, as included in Customer’s Contract Documents, which may be updated by LoanPro from time to time pursuant to Section 6.2.
“Restore Account” means the action of recovering a Deleted Account. A fee will apply for each Restore Account action, as set forth in Section 6.1.04. It may not be possible to restore all deleted Accounts; the ability to restore an Account depends upon the amount of time that has passed since the Account was deleted.
“Resurrect Account” means the action of recovering an Archived Account.
“Rule” means a condition by which the LoanPro Service will evaluate Accounts (e.g., “If principal balance is less than $10,000”), written as a formula and specified by Customer’s settings.
“Rule Evaluation” means when Customer submits a Rule to the LoanPro Service’s Rule service for evaluation, which may be in either of two formats. (a) TRUE/FALSE results or (b) Formula Resulting in Numeric Value. When the LoanPro Service performs a Rule Evaluation, it checks the conditions of an Account to see if it qualifies under that Rule; if so, the LoanPro Service will take the action specified by the applicable tool (e.g., send an email, update a setting, etc.). The Rule service is critical and core functionality to LoanPro Service. Rules are evaluated for at least the following areas of the Software: Recurring Charges, Computation Fields, Rules Applied, Flags, Stoplights, Trigger Notifications, and others. A Rule Evaluation is considered to have occurred regardless of the result of the evaluation. Rule Evaluations are designed to run at least once per day and, depending on the tool utilizing the Rule service, Rule Evaluations may be run each time a change is made on an Account, or running the calculator on an Account.
“Simnang Family Products” means all products (including SaaS services) provided by any company that is a subsidiary of Simnang, LLC, the parent company of LoanPro. This includes the LoanPro Service and Software, Origimate, Connections, PCI Wallet, Note Exchange, AutoPal Software, Simnang Operating Service, and other products or services.
“Software” means the LoanPro computer software that Customer is licensed to access and use as part of the LoanPro Service, as specifically listed in the Contract Documents, including all systems, modules, web pages, websites, databases, software code, technology, etc., provided by LoanPro. “Software” includes all Software Modifications, and all Documentation and updates thereof.
“Software Modifications” means bug fixes, updates, upgrades, enhancements, new versions, and other modifications to the Software and LoanPro Service that are provided by LoanPro to its SaaS customer base as part of support and maintenance services.
2. FREE TRIAL. 2.1
Free Trial Terms. If so specified in the Contract Documents, LoanPro will make the LoanPro Service available to Customer on a trial basis free of charge, in the form of a private, trial demo account, until the earlier of (a) the end of the free trial period for which Customer has registered or is registering to use the LoanPro Service, or (b) the start date of any purchased LoanPro Service ordered by Customer. Additional trial terms and conditions may appear on the trial registration web page or documentation. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. DURING THE FREE TRIAL PERIOD THE LOANPRO SERVICE IS PROVIDED “AS IS” WITHOUT ANY WARRANTIES OR INDEMNITIES OF ANY KIND, NOTWITHSTANDING SECTION 8.
Trial Data. ANY DATA CUSTOMER ENTERS INTO THE LOANPRO SERVICE DEMO ACCOUNT DURING THE FREE TRIAL PERIOD MAY BE TEMPORARY ONLY. UPON ACTIVATION OF THE PAID LOANPRO SERVICE, CUSTOMER WILL BE PROMPTED TO CHOOSE IF IT WISHES TO RETAIN PRIOR ENTERED DATA, OR IF SUCH DATA SHALL BE PURGED PRIOR TO ACTIVATION. IF CUSTOMER DOES NOT ACTIVATE THE LOANPRO SERVICE AS A PAID SERVICE UPON COMPLETION OF THE TRIAL PERIOD OR DOES NOT ELECT TO RETAIN THE TRIAL PERIOD DATA, LOANPRO MAY PURGE AND DELETE THAT TRIAL PERIOD DATA AT ANY TIME AFTER EXPIRATION OF THE TRIAL PERIOD. LOANPRO MAY USE TRIAL PERIOD DATA FOR THE PURPOSES SPECIFIED IN SECTION 4.2.
Associated Free Trial Accounts. When a Customer signs up for a free trial of LoanPro Services, LoanPro may automatically subscribe Customer for free trial accounts of other Simnang Family Products, and provide linking between the LoanPro trial account and the other trial accounts. This is done at no cost to the Customer, and Customer may elect at any time not to participate in or use any or all other Simnang Family Products. Customer acknowledges that each such product will have its own contract and associated fees if the Customer wishes to use any product after its trial period. Each product is also available for direct membership or subscription.
3. LICENSE OF LOANPRO SERVICE AND SOFTWARE. 3.1
LoanPro Service. LoanPro grants Customer the non-exclusive right and license to access and use the LoanPro Service, including the Software, subject to the terms and conditions of this Agreement. LoanPro will make the LoanPro Service available for Customer to access during the term of this Agreement, subject to the terms and limitations set forth herein. The LoanPro Service may be hosted on LoanPro’s servers or, at LoanPro’s option, on the servers of a third party that is in the business of hosting web-based applications. LoanPro hereby grants to Customer, for the internal use of Customer only, a personal, non-transferable and non-exclusive license to use the Documentation provided hereunder to support its authorized use of the LoanPro Service during the term of this Agreement.
Access and URL. During the term of this Agreement, from and after the Activation Date, provided that Customer has paid all fees due and owing and is in compliance with the terms of this Agreement, Customer and its Authorized Users will be able to access the LoanPro Service and use the Software. LoanPro will provide a URL for a website for use by Customer in the form of a sub-domain of LoanPro’s registered URL as chosen by LoanPro. If Customer chooses to sub5
mask or forward a different URL to the URL provided by LoanPro, then Customer is solely responsible to independently purchase, retain ownership of and uphold terms and conditions of such URL. 3.3
Authorized Users. Authorized Users are granted a nonexclusive, non-transferable right to access and use the LoanPro Service and Software pursuant to the license rights granted to the Customer. However, LoanPro’s commitments, representations, and indemnities set forth in this Agreement apply only to Customer. The Software is made available to Authorized Users on an “AS IS” basis, and LoanPro disclaims any and all liability to Authorized Users. An Authorized User’s right and license to use the LoanPro Service and Software will terminate automatically (i) if this Agreement terminates for any reason, or (ii) if the Authorized User’s employment or engagement with Customer terminates for any reason. Customer or LoanPro may also terminate an Authorized User’s rights under this Agreement at any time if the Authorized User breaches the terms of this Agreement.
Restrictions. Customer and its Authorized Users will comply with the following restrictions and limitations: (a) not copy the content on the LoanPro Service website or the Documentation, other than Customer Data; provided that Customer may make copies of training or similar materials for use by Authorized Users; (b) not modify, alter, create derivative works of, reverse engineer, decompile or disassemble the Software, or modify the Documentation; (c) not sublicense, distribute or sell the LoanPro Service or Software or its license thereto, or allow any third parties to use or access the LoanPro Service or Software in a “service bureau” mode; (d) comply with all applicable federal, state and local laws in connection with this Agreement and its use of the LoanPro Service; and (e) take all reasonable precautions to prevent Customer’s employees and consultants from making unauthorized copies of the Software or misusing the Software in any way that would constitute a breach of this Agreement. If Customer discovers any such problems, it will promptly notify LoanPro and take commercially reasonable actions to resolve the problem, including any actions reasonably requested by LoanPro, as soon as reasonably possible. LoanPro reserves the right, at its expense, to audit Customer’s use of the Software, upon five (5) business days’ prior written notice to Customer (except with respect to Section 5.2, where no notice is required), to confirm that Customer’s use of the Software is in compliance with the terms of this Agreement.
Administrative User. Customer will assign one Authorized User to be its Administrative User. An authorized representative of Customer will notify LoanPro of the name and contact information for the Administrative User, and any changes to such information. The Administrative User is given administrative access to Customer’s account on the Software and is responsible for granting or restricting Software access for other Authorized Users. The Administrative User is also the primary contact person for Customer with LoanPro or its agents, and such person’s instructions and requests to LoanPro or its agents will have priority over the instructions or requests of any other employee or representative of Customer. Any cross-tenant access requests must be submitted to LoanPro from the Administrative User on both of the tenants requesting cross access.
Customer Support; Updates to LoanPro Service.
(a) LoanPro has contracted with Simnang Operating Service, LLC (“SOS”) to provide all support and consulting services related to the LoanPro Service directly to customers. Customer may enter into a separate agreement with SOS for such services. (b) The LoanPro Service and Software are subject to periodic updates and changes from time to time at LoanPro’s sole discretion, including the addition, modification or deletion of any features or functions in the Software. New optional features may also be made available, which may have additional costs not outlined in this Agreement and will be subject to Customer’s acceptance of such features and any additional costs.
Business Opportunities for Customer. LoanPro may from time to time notify Customer of services, products, lending or other business opportunities arising out of LoanPro’s business, including its dealings with other customers and vendors. In each case Customer will have the right to elect whether or not to participate in such transaction or to receive additional information, on an “opt-in” basis.
Sandbox License. If Customer enables the sandbox account in connection with the LoanPro Service, this will include one (1) private sandbox tenant of the Software to be used only for the intended purpose of testing. This tenant will be fully independent from the production tenant and at the present time is located in the production environment for access at https://LoanPro.simnang.com. For billing purposes each tenant will be treated independently. See Appendix A for billing details on Sandbox tenant.
LoanPro Rights. LoanPro and/or its licensors retain all right, title and interest, including without limitation all patents and patent rights, trademarks, service marks, copyrights, trade secrets and other proprietary rights, in and to the LoanPro Service, including the Software, Documentation and all content provided by LoanPro as part of the LoanPro Service, including any derivative works, subject to the licenses set forth in this Agreement. LoanPro also owns all right, title and interest in and to (i) the usage data relating to customers’ use of the Software, and (ii) the results or information provided by third party vendors in response to actions or queries of customers (excluding any information personal to Customer that is contained within the vendor’s response). LoanPro specifically reserves all rights not expressly granted to Customer in this Agreement.
Customer Data. Customer owns and shall retain all right, title and interest in and to Customer Data, subject to LoanPro’s rights as set forth below. LoanPro will use commercially reasonable efforts to safeguard the security, confidentiality and integrity of Customer Data. Customer grants LoanPro the right to use, reproduce, modify and distribute Customer Data as necessary or appropriate to transmit, store, encrypt, calculate, and analyze the Customer Data, create and distribute reports, and to provide, modify and improve the LoanPro Service and Software. To the extent permitted by applicable law, Customer also grants LoanPro the right to share Customer Data with third parties in connection with LoanPro’s general activities of conducting business, including providing Customer with possible solutions to their business needs, and developing and providing third party integrations with the Software (pulling credit, data decoding, data lookup, automated telephone calls, merchant services, etc.). LoanPro also has the right to collect, aggregate and remove all personally identifiable information from Customer Data, and to retain, use and disclose such de-identified data (the “De-Identified Data”) for any purpose permitted by law, including without limitation benchmarking, product and service development, development of best practices, making it available to third parties, and research and statistical purposes without reimbursement or notification to, or consent or authorization from, Customer. LoanPro shall own all De-Identified Data, including any calculations, functions, features, or other modifications of the Customer Data, excluding the Customer Data in its raw form.
CUSTOMER OBLIGATIONS. 5.1
Obligations. Customer will: 7
(a) be responsible for its Authorized Users’ compliance with this Agreement; (b) be responsible for the accuracy, quality and legality of Customer Data and of the means by which Customer acquired such data; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the LoanPro Service, and notify LoanPro promptly of any such unauthorized access or use; (d) use the LoanPro Service only in accordance with its Documentation and applicable laws and government regulations; (e) not make the LoanPro Service available to anyone other than Authorized Users, (f) not use the LoanPro Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (g) not use the LoanPro Service to store or transmit any virus, Trojan, worm, or other malicious or harmful computer software code or routines, (h) not interfere with or disrupt the integrity or performance of the LoanPro Service or third party data contained therein, (i) not attempt to gain unauthorized access to the LoanPro Service or its related systems or networks, and (j) conduct itself, and require that its employees conduct themselves, in a professional manner during interactions with all LoanPro personnel.
Usage Limitations. The Service may be subject to other limitations, such as, for example, limits on storage space, on the number of calls Customer are permitted to make against LoanPro’s API (application programming interface), and, for any portion of the Service that enables Customer to provide Hosted Websites, on the number of page views by visitors to those websites. Enforcement of these limitations will be determined by an algorithm that will assess if a customer’s use is excessive or abusive compared to average per-loan use of other LoanPro customers. LoanPro’s policy is to provide three notices to customers of excessive or abusive use, over a period of three days. LoanPro may impose bandwidth or usage limitations after sending the third notice.
Customer Security Requirements. Customer is solely responsible for the security of data residing on server(s) owned or operated by Customer or a third party designated by Customer (e.g., a web hosting company, processor, or other service provider), including being responsible for the security of all data residing outside of the LoanPro Service, as well as keeping confidential all usernames and passwords of Authorized Users in order to avoid unauthorized access to the LoanPro Service.
LoanPro Security Requirements. LoanPro will use commercially reasonable efforts to safeguard the security of the LoanPro Service, including processes of encryption of data, incident management policies, data backup policies and other procedures to ensure both the safety and security of the Customer Data residing in the LoanPro Service. In compliance with PCI-DSS, LoanPro is responsible for the security of cardholder data that resides on the LoanPro Service. This includes securing cardholder data that is stored, processed, or transmitted on behalf of the Customer, to ensure the security of cardholder data and its environment.
TERMS OF PAYMENT. 6.1
Fees & Costs: All pricing and transactions between LoanPro and Customer will be in U.S. Dollars, at the rates outlined in Appendix A. Customer is responsible for any and all fees incurred based on actual usage. All fees are charged at the time of purchase, subscription, usage, or approval of 8
charge, as applicable to that particular type of fee. All fees are non-refundable. If the fee category in Appendix A has an asterisk next to the label of that fee type, that indicates that fee is a recurring monthly charge and not a per use fee. In the event of a conflict between Appendix A and any other terms in this Agreement, the terms of Appendix A shall control. The fees in Appendix A and set forth below will apply for the Initial Term, defined below, except as set forth in Section 6.2: 6.1.01 Activation Fee – this is the one-time activation fee is due at the time of activation. 6.1.02 Membership Fee – this fee is a monthly fee calculated by taking the highest number of Active Agent Users during the prior Billing Cycle and applying the associated monthly fee from the Tiers in Appendix A, as applicable. 6.1.03 Billable Account Fees – This fee is calculated by taking the number of Billable Accounts from the prior Billing Cycle and applying that count of Billable Accounts to the marginal fee rate schedule in Appendix A, as applicable. 6.1.04 Usage Fees – These are fees based on optional activities and actions performed in the LoanPro Service, as listed in Appendix A. 6.1.05 Custom Programming Fees – Customer may submit a written request to have LoanPro developers create new Software features or alter the way the Software operates. LoanPro reserves the right to accept or reject these requests in its sole discretion. If LoanPro is willing to make such changes for Customer as a custom programming job, LoanPro will provide to Customer a quote containing the estimated fees and costs of development, as applicable, and an estimated time for implementation. LoanPro reserves the right to charge a separate fee to prepare a custom programming quote, subject to Customer’s approval of such fee prior to LoanPro beginning the work of preparing the quote. Customer may accept or reject the custom programming quote in its sole discretion. If Customer approves the quote, the Parties will execute a separate agreement or statement of work with the project specifications and terms. Custom programming services are performed on an ad hoc basis, with individual pricing and approval. The initial agreed payment for custom programming (which shall be at least 50% of the full price) is due in full at the time of Customer’s approval of the custom programming quote, prior to the start of the custom programming services and the remaining balance will be due upon LoanPro’s providing the final deliverable to Customer, provided that the deliverable is in accordance with the agreed project specifications. The parties agree to cooperate and work together to ensure that the project meets the agreed-upon specifications in the quote, including any changes to the specifications or additional or modified requests set forth in a mutually approved change order. All customized Software is subject to Section 4.1 and will be owned solely by LoanPro, notwithstanding Customer’s payment of the development fees, if any, and will be licensed to Customer under the terms and conditions of this Agreement. LoanPro may incorporate customized Software into the Software for general use by its customers. 6.1.06 Fees for Other Simnang Family Products – LoanPro integrates with other products in the suite of Simnang Family Products. These integrated products may or may not have associated fees. All fees within each of those separate products will be governed by the agreement between Customer and the applicable third party company providing such Simnang Family Product.
6.1.07 Dedicated RDS Fees -- Customer may request that its tenant database be separated onto its own dedicated AWS relational database service (RDS) database server at any time during the term of this Agreement, so that LoanPro administrators can create database users who will have direct read-only access to the operating database. This service can be provided for a fee. Quotes will be provided upon request. Payment for such service is due in full at the time of quote acceptance by Customer. 6.1.08 Other Third Party Fees – LoanPro integrates with other products and services, and the providers of such products and services may charge separate fees. Customer is responsible for all fees for the third party products and services that it uses. 6.1.09 New Features – LoanPro may add services or features to the Software or LoanPro Service that will be available to Customer on an optional basis and may be subject to an additional fee. Fees for these new features or services will be on a per use basis. 6.2
Pricing Changes All pricing is locked for the Initial Term (defined below). Pricing is subject to change at the time of contract renewal, to LoanPro’s then-current standard prices and fees. However, any pricing changes will be limited to a three percent (3%) increase on Membership fees, Billable Account Fees, and Usage Fees.
Billing Method. Customer is required to either pay in advance or be enrolled for automatic withdrawal with a valid payment profile. The primary payment profile that is on file will be automatically processed for payment on the day after the end of the Billing Cycle. If Customer elects automatic withdrawal, Customer hereby authorizes LoanPro to collect this automatic payment, using the payment profile selected by Customer, for the balance due each Billing Cycle. Customer’s activation payment profile will automatically be set to the primary payment profile upon activation, unless Customer changes that setting. Customer may manage this payment profile in the Software, currently located at: My Account>Billing & Statements>Payment Profiles.
Late Fees. If Customer’s account is past due beyond the 2nd day of the Billing Cycle, then a late fee will be assessed in the amount of the greater of $30 or 5% of the amount past due.
Remedies for Nonpayment. If Customer’s account is more than 10 days past due, LoanPro has the option and right to require payment on the account by partially or fully suspending and blocking Customer’s and its Authorized Users’ access to the Software until all past-due amounts are paid. Customer’s account may be assessed additional fees for blocking or unblocking the account due to late payment, and Customer hereby consents to this collection practice.
Taxes. Customer is responsible for all applicable taxes on the fees paid by Customer to LoanPro, including, without limitation, any and all sales, use, and value-added taxes, (excluding taxes on LoanPro’s net income).
7. CONFIDENTIAL INFORMATION. The party receiving Confidential Information will not disclose it to any person or use it for any purpose, except as expressly permitted by this Agreement. The receiving party may disclose Confidential Information only to its employees, representatives and contractors who need to know such information and who are bound to keep such information confidential. The receiving party will give Confidential Information at least the same level of protection as it gives its own confidential information of similar nature or sensitivity, but not less than a reasonable level of protection. The receiving party will maintain Confidential Information in a safe and secure place and will not copy such information, except to the extent reasonably necessary for the purposes of this Agreement. 8.
WARRANTIES AND LIMITATION OF LIABILITIES. 8.1
Customer Warranties. Customer represents and warrants that: (a) Customer has the necessary right, power and authority to execute this Agreement and to perform Customer's obligations herein; 10
(b) no authorization or approval from any third party is required in connection with Customer's execution, delivery or performance of this Agreement; (c) this Agreement constitutes a legal, valid and binding obligation of Customer, enforceable against Customer in accordance with its terms; (d) Customer's obligations under this Agreement do not violate any law or breach any other agreement to which Customer is bound; (e) all representations and statements made by Customer in this Agreement, or in any other document relating hereto by Customer or on Customer's behalf, are true, accurate and complete in all material respects; (f) Customer is engaged in a lawful business that includes the sale of products and/or services, including the underwriting, funding, and servicing of loans/leases, and Customer is duly licensed to conduct such business under the laws of all applicable jurisdictions in which Customer conducts such business; and (g) Customer will comply, at its sole expense, with all laws, policies, guidelines, regulations, ordinances or rules applicable to Customer and this Agreement. 8.2
LoanPro Warranties. LoanPro represents and warrants that: (a) LoanPro has the necessary right, power and authority to execute this Agreement, to grant the rights herein granted to Customer, and to perform LoanPro's obligations herein; (b) no authorization or approval from any third party is required in connection with LoanPro's execution, delivery or performance of this Agreement; (c) this Agreement constitutes a legal, valid and binding obligation of LoanPro, enforceable against LoanPro in accordance with its terms; and From and after the Activation Date, LoanPro will use commercially reasonable efforts to allow Customer to access the LoanPro Service seven (7) days per week, twenty-four (24) hours per day with a goal of ninety-eight percent (98%) reliability to the LoanPro Service, excluding downtime (i) scheduled in advance for maintenance on a periodic basis, or (ii) due to unscheduled emergency maintenance, (iii) due to faults caused by Customer or Customer’s system, or (iv) due to other causes outside of the reasonable control of LoanPro, including without limitation malfunction or cessation of Internet services by any third party network or ISP. All uptime shall be measured by the endpoints provided for customers to track at https://statusLoanPro.simnang.com/. To the extent reasonably feasible, LoanPro will provide Customer reasonable advance notice for emergency maintenance or Software performance interference issues, which will be published on this status page.
Limitation of Warranties; Disclaimers. LoanPro uses diligent efforts to ensure that the Software and the LoanPro Service are available, uninterrupted, and provide timely and secure functionality. However, LoanPro does not warrant or guarantee that the Software or the LoanPro Service will be uninterrupted, error-free, or free from any potential or actual security threats. Except as expressly set forth above in this Section 8, the LoanPro Service and Software, and other services of LoanPro, are provided to Customer and its Authorized Users on an “AS IS, AS AVAILABLE” basis. LOANPRO AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITH RESPECT TO MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS OF THE LOANPRO SERVICE OR SOFTWARE FOR ANY PARTICULAR PURPOSE OR INTENDED USE. LOANPRO MAKES NO WARRANTIES WHATSOEVER AND IS NOT LIABLE FOR ANY LOSS OR DAMAGE THAT MAY BE INCURRED BY CUSTOMER AS A RESULT OF USING ANY THIRD PARTY SERVICE OR SOFTWARE, EVEN IF LINKED TO OR INTEGRATED IN THE LOANPRO SERVICE OR SOFTWARE. LoanPro is not responsible or liable for damage, 11
malfunction, or performance failures resulting from misuse, physical abuse, improper operation, the environment or other causes beyond LoanPro’s exclusive control. No employee of LoanPro or any third party has the right to make any representation or warranty regarding the LoanPro Service, except as expressly set forth in this Agreement. Without limiting the foregoing, LoanPro does not make any representation, warranty or guarantee as to the results that may be obtained from Customer's use of the LoanPro Service or Software or as to the accuracy or reliability of any information therein, or with respect to any third party product or service, whether integrated with the LoanPro Service or not, or recommendations or information offered by any LoanPro personnel or third parties. Customer expressly acknowledges and agrees that Customer's use of the LoanPro Service does not in any way guarantee the security or reliability of Customer's website. Customer understands and agrees that LoanPro shall bear no risk with respect to Customer's sale, products or services, including the making of loans and/or leases, without limitation, any risk associated with the security of Customer's website, credit card fraud or chargebacks, or any risk associated with Customer's failure to register with the appropriate governmental agencies or obtaining the appropriate licenses to conduct business, including charging interest, and finance charges, or any other regulatory requirements. LoanPro provides software products to customers that operate in many regulated spaces. LoanPro is not responsible and does not assume any obligations for any regulatory compliance or disclosures required of Customer or Customer’s clients. LoanPro is not responsible for any customized forms that Customer creates or uses. LoanPro’s loan servicing Software has many features allowing Customer to manipulate loans, such as Roll Schedule, Roll Payment, Reg Z, Smooth, Force, Change Due Date, Advance/Credit, and Account Modification. It is SOLELY Customer’s responsibility and liability to ensure that its operations are in compliance with law and regulation and that its disclosures are complete and accurate. Customer expressly agrees that LoanPro shall not be liable for any loss or damages whatsoever arising from or caused by (i) Customer's failure to properly download, activate, integrate or manage the Software; (ii) any fraudulent transactions processed through Customer's payment gateway account(s); (iii) disruption of the LoanPro Service; (iv) actions or inactions of any third party, including without limitation, merchant service providers, payment processors, bank URL support, email systems, or any products or services with which the LoanPro Service is integrated; or (v) any person’s unauthorized access to Customer Data (including credit card number and other personally identifiable information), transaction data or personal information. 8.4
Limitations of Liability. IN NO EVENT WILL LOANPRO, ITS AFFILIATES OR LICENSORS BE LIABLE FOR LOST DATA, LOST PROFITS OR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE FURNISHING, PERFORMANCE, OR USE OF ANY SOFTWARE OR SERVICES PROVIDED FOR IN THIS AGREEMENT. LOANPRO’S AND ITS AFFILIATES’ AND LICENSORS’ TOTAL AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF THE CLAIM(S), INCLUDING INDEMNIFICATION, WILL NOT IN ANY EVENT EXCEED THE AMOUNTS PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE ONE-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. This limitation shall apply whether or not the alleged breach by LoanPro is a breach of condition or fundamental term, or a fundamental breach.
Legal Compliance; Use of LoanPro Forms. Customer acknowledges that LoanPro’s personnel are not financial experts, attorneys, accountants or experts on the applicable laws of any state or jurisdiction. LoanPro personnel may consult with Customer’s Authorized Users and provide assistance and recommendations, but Customer is solely responsible for compliance with any applicable laws, regulations and professional standards. This includes, without limitation, whether it is legal or appropriate, under the laws and regulations that govern Customer, to use any form documents provided by LoanPro for use in connection with the LoanPro Service (“Forms”), whether generic, standard Forms or Forms that have been customized by LoanPro and/or Customer for Customer’s use. LoanPro provides Forms as a convenience to customers but Customer is responsible for determining whether it is legal or appropriate to use any Form in 12
Customer’s business, in unmodified or modified form. LoanPro is NOT liable for any claims whatsoever by Customer or any third party arising out of or related to the content or use of any Form. THE FINAL DECISION ABOUT ANY ASPECT OF CUSTOMER’S BUSINESS, INCLUDING WITHOUT LIMITATION COMPLIANCE WITH LAWS IN CONNECTION WITH CUSTOMER’S USE OF THE SOFTWARE AND LOANPRO SERVICE, IS THE SOLE AND EXCLUSIVE RESPONSIBILITY OF CUSTOMER. 9.
9.1 By LoanPro. LoanPro will defend Customer against any and all third party claims or suits (each a “Claim”) that the LoanPro Service infringes any third party U.S. patent that has issued as of the effective date, copyright or trademark or misappropriates any trade secret, and pay any liabilities, damages, costs and expenses (including reasonable attorneys’ fees) finally awarded therein or paid in settlement. LoanPro may, at its option and expense, participate in the defense of the Claim with counsel of its own choosing. If the LoanPro Service is finally held or believed by LoanPro to infringe, LoanPro shall use reasonable efforts to obtain a license under the rights that have been infringed, to modify the LoanPro Service so it is noninfringing or to provide to Customer a substitute service and/or software that is noninfringing; provided that if such options are not commercially reasonable, LoanPro may terminate the applicable LoanPro Service or this Agreement upon written notice to Customer, in which event LoanPro shall refund to Customer all prepaid fees paid for any period after termination of this Agreement, as well as any period prior to termination during which Customer was prevented from accessing the LoanPro Service. LoanPro shall have no liability for infringement based on modification of the LoanPro Service by any party other than LoanPro or the combination or use of the LoanPro Service with any software, equipment, product or process not furnished by LoanPro, if use of the LoanPro Service alone and in its current, unmodified form would not have been an infringement. LoanPro shall have the right to assign and transfer its indemnification obligations under this Section 9.1 to the owner and licensor of the LoanPro Software if such company agrees to assume these obligations. THIS SECTION STATES LOANPRO’S AND ITS LICENSORS’ ENTIRE OBLIGATION WITH RESPECT TO ANY CLAIM FOR INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. 9.2
By Customer. If any action is instituted by a third party (including any client or business partner of Customer) against LoanPro (a) arising out of or relating to Customer’s use of the LoanPro Service or Software, including without limitation (i) any breach or alleged breach by Customer of any of its representations, warranties, or obligations set forth in this Agreement; (ii) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by Customer or its employees, agents or clients; or (iii) any claims associated with the provision of services by Customer to its clients; or (b) alleging that the Customer Data, or the use of Customer Data pursuant to this Agreement, infringes the intellectual property or other right of a third party or otherwise causes harm to a third party, Customer will defend such action at its own expense on behalf of LoanPro and shall pay all damages attributable to such claim which are finally awarded against LoanPro or paid in settlement of such claim. Customer shall have no obligation under this Section for any claim or action that is described in Section 9.1 above or arises out of a breach of this Agreement or misconduct by LoanPro.
Indemnification Procedure. Any party that is seeking to be indemnified under this Section 9 (an “Indemnified Party”) for a third party Claim must (i) promptly notify the other party (the “Indemnifying Party”) of the Claim; and (ii) give the Indemnifying Party the sole control over the defense of such Claim. However, if an Indemnified Party fails to notify the Indemnifying Party promptly, the Indemnifying Party will be relieved of its obligations under this Section 9 only if and to the extent that its ability to defend the Claim is materially prejudiced by such failure. The Indemnifying Party may settle or compromise a Claim without the Indemnified Party’s prior approval of any such settlement or compromise only if (a) such settlement involves no finding or admission of any breach by an Indemnified Party of any obligation to any third party, (b) such settlement has no effect on any other claim that may be made against an Indemnified Party or any defense that an Indemnified Party may assert in any such claim, and (c) the sole relief provided in connection with such settlement is monetary damages that are paid in full by the Indemnifying Party. Upon the Indemnifying Party’s assumption of the defense of such Claim, the Indemnified Party will reasonably cooperate with the Indemnifying Party in such defense, at the Indemnifying Party’s expense. 13
TERM AND TERMINATION. 10.1
Term. The initial term of this Agreement is twelve (12) months from the Activation Date (the “Initial Term”). This Agreement will remain in effect for as long as Customer has access to the LoanPro Service and Software, subject to termination as set forth below.
Automatic Renewal – This Agreement will automatically renew for twelve (12) months (each a “Renewal Term” and together with the Initial Term, the “Term”) upon the expiration of the Initial Term and each subsequent Renewal Term, except as set forth below in this Section 10.
Termination. Either party may terminate this Agreement and Customer’s subscription to the LoanPro Service, effective at the end of the Initial Term or then-current renewal term of this Agreement, provided that such party (in Customer’s case, the Administrative User) notifies the other party in writing at least fifteen (15) days before the end of such term. All billing written information should be sent to [email protected] If neither party provides notice of termination in a timely manner, then this Agreement will automatically renew as outlined in Section 10.2
No Cause Early Termination: If Customer terminates this Agreement before the end of the Initial Term or any Renewal Term, other than for cause under Section 10.5, then at the time of termination Customer is required to pay LoanPro the entire balance of Customer’s fees due through the termination effective date specified in Section 10.3 (i.e., the end of the then-current term), including any usage fees or other fees, in accordance with Appendix A. If LoanPro terminates this Agreement before the end of the Initial Term or any Renewal Term, other than for cause under Section 10.5, then at the time of termination LoanPro will refund Customer, on a prorated basis, any fees paid in advance for services not performed or delivered by LoanPro, as applicable.
Termination for Cause. Either party may terminate this Agreement at any time if the other party commits a material breach of this Agreement and does not cure such breach within thirty (30) days of written notice specifying the nature of such breach (except for breaches by a party of its confidentiality obligations or payment obligations, for which the cure period will be ten (10) business days after receipt of written notice of such breach, including by an on-screen nonpayment notification to Customer within the Software). LoanPro may also terminate or suspend Customer’s account and this Agreement immediately, without prior notice, if LoanPro determines that Customer is conducting an illegal business or if LoanPro is instructed to terminate or suspend Customer’s account by federal or state regulatory authorities.
Effect of Termination. In the event of termination of this Agreement for any reason, Customer shall immediately cease using the LoanPro Service and Software. After termination Customer will not have any access to the Software or the Customer Data stored therein; it is Customer’s sole responsibility to copy or remove such Customer Data from the Software prior to termination. After termination, LoanPro has no obligation whatsoever to maintain or store Customer Data and LoanPro may, in its sole discretion, delete or remove Customer Data from its system. LoanPro reserves the right to store the Customer Data after termination to comply with applicable laws and regulations, use the Customer Data in accordance with Section 4.2, or for any other lawful purpose, subject to ongoing compliance with the confidentiality and security provisions of this Agreement. Each party shall promptly return to the other party or destroy all Confidential Information of the other party. Customer shall pay all accrued charges and fees within thirty (30) days of the date of termination. Sections 3.4, 4, 5.1, 6, 7, 8, 9, 10 and 11 shall survive any termination of this Agreement.
Transition Services. Upon request by Customer, and provided that this Agreement was not terminated as a result of Customer’s non-payment or material breach, LoanPro agrees to provide Customer the LoanPro Services (subject to Customer’s payment of the fees for the posttermination provision of the LoanPro Service at the then-current rates) and additional appropriate transition services mutually agreed by the parties (including with respect to the fees for such services) for a period of up to twelve (12) months in accordance with the terms of the Agreement, 14
regardless of any termination thereof. In such event, LoanPro agrees to reasonably work with Customer Authorized Users and any third parties designated by Customer to perform certain transition services, as mutually agreed, to facilitate the conversion to a third party, at LoanPro’s customary rates. The parties will document in writing Customer’s transition services requirements and, if LoanPro is unable to fulfill upon any such transition requirements, LoanPro will reasonably cooperate with any other providers designated by Customer to deliver such requirements. 11.
Assignment. Customer will not assign this Agreement or transfer, lease, export or grant a sublicense of the rights and licenses granted herein to any third party, without LoanPro’s prior written consent. LoanPro’s consent to an assignment of this Agreement by Customer is subject to LoanPro’s credit review and approval of the proposed assignee. Subject to the foregoing, this Agreement shall inure to the benefit of, and shall be binding on, each Party’s respective successors and assigns.
Governing Law. This Agreement shall be governed by the laws of Utah (excluding conflicts of laws provisions). The parties submit to the exclusive jurisdiction and venue of Utah State and federal courts with respect to any action between the parties relating to this Agreement. The prevailing party in any action shall be entitled to an award of its reasonable costs and attorneys’ fees from the other party. Notwithstanding the foregoing, claims for equitable relief may be brought in any court with proper jurisdiction in the United States.
Injunctive Relief. Customer acknowledges that the LoanPro Service and other Confidential Information are highly valuable to LoanPro and its licensors, and that money damages would not be a sufficient remedy for any breach of Customer’s obligations herein with respect to confidentiality and misuse of LoanPro’s or its licensors’ proprietary materials and information. Therefore, in the event of any breach by Customer of its obligations with respect to the scope of its licenses or confidentiality, LoanPro or its licensors shall be entitled to seek specific injunctive relief as a remedy for such breach, in addition to all other available legal or equitable remedies, without the necessity of posting bond or other security.
Severability. In the event that any of the terms or provisions herein are determined by a court of competent jurisdiction to be unenforceable or invalid for any reason whatsoever, such terms shall be severed, and the enforceability or validity of the remaining terms shall not be affected thereby.
Entire Agreement; Amendment; Waiver. This Agreement, including Contract Documents and addenda attached hereto, which are incorporated herein by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof and that this Agreement supersedes all proposals, oral or written, all previous negotiations, and all other communications between the parties with respect to the subject matter hereof. Any terms and conditions of any purchase order or other instrument issued by Customer in connection with this Agreement which are in addition to or inconsistent with the terms and conditions of this Agreement shall not be binding on LoanPro and shall not apply to this Agreement unless mutually executed by Customer and LoanPro. Except as otherwise specifically set forth herein, this Agreement may be amended only by a written document signed by authorized representatives of both parties. The waiver by either party of any default, breach or obligation hereunder shall be ineffective unless in writing, and shall not constitute a waiver of any subsequent breach or default.
Notices. All notices or other communications required under to this Agreement shall be in writing and shall be deemed given if delivered personally or mailed by registered or certified mail, return receipt requested, or by commercial overnight delivery service with provisions for a receipt, or by confirmed facsimile or e-mail, to the address of the receiving party set forth below or such other address a party may specify by written notice. Notwithstanding the foregoing, notices from Customer to LoanPro regarding changes to or termination of Customer’s subscription to the LoanPro Service may also be sent to the email address designated in Section 10.3.
Force Majeure. LoanPro shall be excused from delays or failure to perform the LoanPro Service or other services pursuant to this Agreement to the extent such delays or failure result from acts of nature, strikes, fire, riots, war, acts of public enemies, fires, epidemics, labor disputes, or any other causes beyond its reasonable control (each a “Force Majeure” event). In the event of a delay in implementation and related services or other failure to perform obligations due to any Force Majeure event, the date or dates of performance of such services or obligations shall be extended for a period equal to the time lost by reason of the delay. If a party’s performance is affected by an event of Force Majeure, including Customer’s payment obligation, it will promptly inform the other party and will use commercially reasonable efforts to fulfill its obligations under this Agreement and to remove or avoid any disability and mitigate any damages caused by such event of Force Majeure at the earliest time and to the greatest extent as is reasonably feasible.
Independent Contractors. The parties are independent contractors, and this Agreement shall not be construed to create any agency, fiduciary relationship, franchise, or partnership between them. Further, it is not the intention of this Agreement or of the Parties to confer a third party beneficiary right of action upon any third party or entity whatsoever, and nothing in this Agreement will be construed so as to confer upon any third party or entity other than the Parties hereto a right of action under this Agreement or in any manner whatsoever.
Counterparts. This Agreement may be executed in any number of counterparts, and each such counterpart shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement. This Agreement shall become effective when one or more counterparts have been signed by the parties hereto and delivered to the other parties, it being understood that the parties need not sign the same counterpart. Facsimile signatures or signatures received as a portable document format (PDF) attachment to electronic mail shall be treated as original signatures for all purposes hereunder.