THIS AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES AND
LIMITATIONS OF LIABILITY CLAUSES. CAREFULLY READ ALL TERMS AND CONDITIONS OF THIS LICENSE AND USER
AGREEMENT PRIOR TO INSTALLING THE SOFTWARE OR UTILIZING ANY OF THE SOFTWARE
PRODUCTS OR SERVICES DESCRIBED HEREIN. BY CLICKING THE “I ACCEPT” BUTTON BELOW AND/OR USING ANY OF THE SOFTWARE
PRODUCTS OR SERVICES DESCRIBED HEREIN, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS
AGREEMENT; THAT YOU HAVE THE FULL POWER AND LEGAL RIGHT, AND HAVE BEEN DULY
AUTHORIZED, TO ENTER INTO THIS AGREEMENT AND TO ENGAGE IN THE TRANSACTIONS
CONTEMPLATED HEREIN; AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS
AND CONDITIONS OF THIS AGREEMENT.
DEFINITIONS. As used in this Agreement, the
following terms have the following meanings.
- "MBS" means Mortgage Banking Systems, Inc., a Virginia corporation doing
business as “ProClose®” and “MBS”, having its principal place of business at
1360 Beverly Road, Suite 200, McLean, VA 22101. “MBS” and “ProClose®” may be used interchangeably or in
combination, to mean the same thing.
- "Software Products" means the Software, the Software Documentation, the Web Service and any
corresponding support products, including, but not limited to White Papers,
Help files, Resource materials and output documents.
- "Licensee" or "USER" means the person who clicks the “I Accept” button
below, or if the individual who clicks the “I Accept” button below is an
employee acting on behalf of or retained by another person or entity, the
person or entity which employs or on whose behalf the individual who clicks the
“I Accept” button below is acting or retained and for whose benefit the
Software is installed or any of the Software Products or Services are
utilized. “Licensee” also means any
person or entity that uses the Software Products or Services.
- "Software" means the machine-readable object code version of
MBS ProClose® Classic or Platinum and related Mortgage Loan document
preparation computer program(s), including ProClose® Courier, ProMerge, whether
embedded on CD-ROM or other media, downloaded from the ProClose® website, or
otherwise, and all authorized corrections, bug fixes, enhancements, updates,
revisions or other modifications, including, without limitation, custom
modifications and replacements thereto, which MBS, in its sole discretion,
makes available from time to time.
- "Software Documentation" means any user manuals, help files, tutorials,
demonstrations, reports or any materials made available from time to time for
the Software, whether written or in electronic format, and all authorized
corrections, updates, revisions and other modifications, and any replacements
thereto, which MBS, in its sole discretion, makes available from time to time.
- "Web Service" means the ProClose® Platinum on line, internet-based
Mortgage Loan documentation preparation system. “Web Service” may be used interchangeably with “on line” or “web
based” or Internet based”.
- "Client Server Application" means the Virtual Basic edition of
ProClose® Classic, installed on the USERS server and workstations, resident
entirely on site, behind USERS firewall
- "Uniform Instruments" means the multi-state and/or state-specific security
instruments, promissory notes, riders, addenda, disclosures and special purpose
documents and other documents developed by Fannie Mae, Freddie Mac, the
Department of Veterans Affairs (“VA”), the Department of Housing and Urban
Development (“HUD” or “FHA”) or other government sponsored enterprise “GSE” for
use in the origination, sale and/or servicing of Mortgage Loans sold,
transferred or assigned to, and/or owned, guaranteed, insured, and/or
securitized by, Fannie Mae, Freddie Mac, VA, FHA and/or a GSE, as the case may
be, regardless of whether or note any Mortgage loans are so sold, transferred,
assigned, owned, guaranteed, insured or securitized.
ARTICLE I
GRANT OF LICENSE AND OWNERSHIP
1.1 Grant of
License. Subject to the terms of this Agreement, MBS hereby grants
USER a nonexclusive, non-transferable license to install and use the Software
in machine-readable object code form only, for use by the Licensee. Licensee may additionally copy the Software
only as reasonably needed for backup and/or archival purposes, provided that
Licensee reproduces on each copy all copyright and other proprietary rights or
notices set forth on or in the original Software. MBS will provide Licensee a license code key that enables the
Software to be used by the authorized users. MBS shall have the right to monitor usage of the Software under this
License to verify Licensee’s compliance with the below restrictions. USER agrees to keep the Software free and
clear of all claims, liens and encumbrances.
1.2 Restrictions. LICENSEE AGREES
THAT IT SHALL NOT, IN WHOLE OR IN PART, AT ANY TIME DURING THE TERM OF OR AFTER
ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT: (a) SELL, ASSIGN, SUBLICENSE, LEASE, RENT, TIMESHARE, GRANT A
SECURITY INTEREST IN, DISTRIBUTE OR OTHERWISE TRANSFER THE SOFTWARE; (b) COPY
OR REPRODUCE THE SOFTWARE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT; (c)
POST, DISCLOSE OR HOST THE SOFTWARE FOR THE PURPOSES OF PROVIDING ACCESS OR
DISTRIBUTING THE SOFTWARE TO ANY OTHER INDIVIDUAL OR ENTITY WITHOUT THE PRIOR
WRITTEN CONSENT OF MBS; (d) MODIFY, TRANSLATE, ADAPT, REVERSE ENGINEER,
DECOMPILE, DISASSEMBLE OR OTHERWISE ATTEMPT TO DISCOVER ANY SOURCE CODE FOR, OR
CREATE DERIVATIVE WORKS BASED ON THE SOFTWARE OR MERGE THE SOFTWARE INTO ANY
OTHER SOFTWARE; (e) ATTEMPT TO MODIFY OR TAMPER WITH THE NORMAL FUNCTION OF A
LICENSE MANAGER OR SIMILAR FUNCTION IN THE SOFTWARE THAT REGULATES USAGE OF THE
SOFTWARE; OR (f) ALLOW ANY THIRD PARTY TO DO ANY OF THE ACTS DESCRIBED IN
SECTIONS 1.2(a) THROUGH 1.2(e) ABOVE.
1.3 Ownership and Proprietary Rights. The Software, its structure,
organization and code, and all documentation relating to the Software, are the
confidential and proprietary property of MBS and/or its licensors, and all
right, title and interest in and to such property and any and all copies of the
Software (in any form in whole or in part) shall remain with MBS and/or its
licensors, both during the term and after any expiration or termination of this
Agreement. Licensee acknowledges that
MBS and/or its licensors have patent, copyright, trademark, trade secret and
other intellectual property rights in the Software under United States and
other foreign patent, copyright, trademark, trade secret and other intellectual
property laws and international treaties, and that all such rights remain the
exclusive property of MBS and/or its licensors at all times. Licensees shall not alter or remove any
copyright or other proprietary notices on the Software or any other materials
provided pursuant to this Agreement. Accordingly, USER shall have no ownership rights in said Software. The Software licensed by MBS is site specific
and accordingly, USER shall not relocate the Software to any other location
that is not designated in this Agreement without the written permission of
MBS. If USER should modify or change
the Software, any modification or change becomes the sole and exclusive
property of MBS. Upon termination of
this Agreement, USER, at its own expense, shall immediately deliver to MBS the
Software, including all accompanying manuals and forms, and USER agrees not to
retain any copies thereof.
ARTICLE II
SOFTWARE, SUPPORT, AND UPDATES
2.1 Support. MBS will provide
technical support and maintenance from time to time for the Software to
registered USERS in accordance with its standard technical support
policies. MBS shall maintain and make
available to USER Software updates and corrections of programming errors, if
any, as MBS may deem appropriate. Additionally, MBS shall maintain and update preprogrammed closing forms,
as it deems appropriate and as may be required by regulatory changes.
2.2 Software
Updates. USER agrees to have DSL, T-1 or a comparable Internet access
for the purpose of updating the Client Server application Software by
connection to the MBS delivery server or accessing the Web Service. For Client Server application, USER
acknowledges it is their sole responsibility to access the MBS FTP server on or
before the second business day of each month for the purpose of password
maintenance, compliance updates and billing and thereafter not less than once
each week for all updates to the Software. For Client Server applications only, USER shall be responsible for
maintaining and managing both the hardware and software relating to its computer
system, whether network or standalone. In the event of a USER hardware or software malfunction that involves
the Software, USER shall, at its own expense, provide the technical assistance
of its technical consultant or, if appropriate, its network vendor, to support
MBS in the resolution of the problem. USER is responsible for selecting personnel who are qualified to operate
the Software and are familiar with the information, calculations, and forms
that serve as input and output of the Software.
2.3 USER OBLIGATION. USER is obligated
to review Software Products and determine that the Software Products are
appropriate for your use in each Mortgage Loan transaction; Prior to usage, USER must adequately and
appropriately review, test and confirm that the hardware, software, networks,
web access and other items required to meet MBS’s published minimum system
requirements for the Software Products, and after installation and/or initial
use, test and confirm that the Software Products are properly functioning and
meet the needs of the Lender. Review each Mortgage Loan transaction to confirm
that the Software Products are in good working order, performing properly in
all material respects, including, by way of example, but not limited to,
confirming the accuracy of all Loan-Specific Information, that the correct
Uniform Instruments, Federally mandated, State mandated and Non-Uniform
documents are being selected and completed in accordance with the applicable
law, USER specifications and the specifications of any Mortgage Professional to
whom you may broker, sell, assign and otherwise transfer a given Mortgage Loan,
and are delivered to the appropriate person(s) at the appropriate time(s), it
being understood and agreed that USER is solely responsible for determining the
selection, use, accuracy and suitability of such Uniform Instruments,
Federally-mandated documents, State-mandated documents and Non-Uniform
instruments for your purposes; If, at
any time, USER becomes aware of any defect in any of the Software Products of
any kind, to stop using the defective Software Product immediately and give
immediate notice of the defect to MBS; to comply with all applicable federal, state and local laws, rules and regulations or ordinances, including without
limitation: TILA and Regulation Z
promulgated thereunder; ECOA and
Regulation B promulgated thereunder; the Home Mortgage Disclosure Act and
Federal Reserve Regulation C promulgated thereunder; HPA; the Fair Housing Act
and the National Flood Insurance Act of 1968; the Flood Disaster Protection Act
of 1973; RESPA and Regulation X promulgated thereunder; and laws, rules,
regulations or ordinances governing licensing or registration, the authorized
or unauthorized practice of law, privacy, usury, interest rates, variable
rates, Mortgage Loan origination, Mortgage Loan brokering, Mortgage Loan
processing, Mortgage Loan closings, Mortgage Loan servicing, Mortgage Loan
sales or transfers, prepayment charges, late charges, mortgage insurance,
predatory lending, covered high rate, high cost, or high fee Mortgage Loans,
unfair business practices, unconscionability, demand features, amortization or
negative amortization provisions, foreclosure provisions, arbitration
provisions, or sue-on-sale clauses; to read all emails sent to you by MBS,
update the Software Products and monitor MBS’s website on an ongoing basis; not
to use the Software Products in any way that would infringe any third party
intellectual property right or breach the terms of any agreement between USER
and any third party; and grant access to passwords, security devices, or access
control devices, if any, necessary to access the Software Products and/or the
Services only to personnel authorized by USER, and to instruct authorized
personnel to keep secret and secure these passwords, security devices or access
control devices, if any.
ARTICLE III
FORCE MAJEURE
3.1 Force Majeure. Should any event or
condition which wholly or partially delays or prevents such party from
performing any of its obligations hereunder and is beyond the reasonable control
of, and occurs without the fault or negligence of, the party affected thereby
including, without limitation, acts of God, acts of the public enemy,
insurrections, riots, attacks by computer hackers, the temporary shutting down
of networks due to government control, labor disputes, labor or material
shortages, fires, explosions, floods, breakdowns of or damages to plants,
equipment or facilities, in whole or in part, then such obligations shall be
suspended to the extent necessary by such Force Majeure during its continuance
or orders or acts of any court or government authority having jurisdiction or
any military authority. Should it
continue beyond a reasonable period, then the Agreement shall be terminated
upon ten (10) days prior written notice by the party unable to perform to the
other party.
ARTICLE IV
TERMINATION/CANCELLATION
4.1 Termination. After initial
registration for ProClose® Platinum, either party may terminate this Agreement
at will.
4.2 Termination for
Failure to Pay. Failure of USER to make any payment when due
which is not cured in five (5) days after receipt of written notice shall be
grounds for immediate termination by MBS. Failure of MBS to initiate termination after USER is delinquent with
payment shall not constitute a waiver of USER’s obligations under this
Agreement.
4.3 Cancellation for
Cause. If USER commits a breach of this Agreement,
MBS may cancel the Agreement by sending a Cancellation Notice describing the
noncompliance to the USER.
4.4 Effect of
Cancellation/Actions Upon Cancellation. Upon termination or cancellation of this
Agreement: (i) all rights of USER
hereunder will terminate, all license rights shall also cease and the Products
and Documentation and all copies thereof shall be returned to MBS or destroyed,
as directed by MBS; (ii) all amounts due to MBS hereunder will become
immediately due and payable; and (iii) the following sections will survive
termination of this Agreement: Articles
2, 5, 7, and 8.
ARTICLE V
CONFIDENTIALITY
5.1 Confidentiality. Under the terms of
this Agreement, the parties may have access to information that is
confidential. All non-public material
and information supplied by one party to the other, including but not limited
to, information concerning either party’s current or forecasted operations,
marketing plans, financial status or objectives, are confidential and
proprietary (“Confidential Information”). The parties agree to maintain the confidentiality of the Confidential Information
and to protect the trade secret of any portion of the other party’s
Confidential Information by preventing any unauthorized copying, use,
distribution, installation or transfer of possession of such information. Each party agrees to maintain at least the
same procedures regarding the other party’s Confidential Information that it
maintains with respect to its own Confidential Information.
USER Information: Any and all information or data, provided
by, through or on behalf of USER or any of its affiliates to MBS, about or
relating to any customer, prospective or former customer of USER or any of its
affiliates or any consumer of USER or any of its affiliates, including but not
limited to, any and all nonpublic personal information of USER or any of its
affiliates or their consumers/customers (as defined by Title V of the
Gramm-Leach-Bliley Act and its implementing regulations) made available to MBS.
MBS Information: Any and all confidential business, technical
or data processing information, trade secret or other proprietary information. Also, the Software in any form, including
all source and object code and documentation related to the Software and the
terms and pricing under this Agreement. Confidential Information also includes information relating to MBS’
business or financial affairs, such as financial results, business methods,
pricing, competitor information and all other information designated as
confidential.
5.2 Public
Information.Public information shall not be deemed
Confidential Information. With the
exception of the Software and Documentation, a party’s Confidential Information
shall not include any information which becomes part of the public domain
through no act or omission of the other party; is lawfully acquired by the
other party from a third party without breach of confidentiality; is
independently developed by the other party without breach of this Agreement; or
is already known to the other party without obligation of confidentiality and
other than by disclosure from the disclosing party.
5.3 Use and Term. Confidential
Information shall be used by each party solely in the performance of its
obligations pursuant to this Agreement and shall not otherwise be used,
disclosed or made available to anyone other than an employee of the receiving
party with a need to know, except as may be otherwise agreed upon in writing by
the disclosing party. The
confidentiality clause shall survive the termination or expiration of this
Agreement.
5.4 Compliance. The provisions of
Article V shall not prohibit either party’s compliance with a validly issued
subpoena, order of a court of competent jurisdiction, or request for
information from a governmental agency, seeking disclosure of the other’s
Confidential Information, provided the party receiving such subpoena, court order,
or request has given prompt notice thereof to the other party and has taken all
reasonable steps to protect the confidentiality of the other party’s
Confidential Information.
ARTICLE VI
REPRESENTATIONS
AND WARRANTIES
6.1 Performance. Subject to the
terms of this paragraph, MBS warrants that the Software will prepare closing
documents and reports. MBS warrants
that the Software documents accurately replicate industry standard forms, the
specific content and format of which are mandated and published by Fannie Mae,
Freddie Mac and/or The Department of Housing and Urban Development (HUD). MBS does not warrant the accuracy or
reliability of the calculations performed. MBS out sources the calculations to MathCorp, Inc. and is not in any way
partnered or in business with MathCorp. The relationship of the parties is that of independent contractors.
6.2 Disclaimer of
Warranty. EXCEPT FOR THE WARRANTIES
EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL PRODUCTS PROVIDED BY MBS, AND ANY
UPDATES THEREOF, ARE PROVIDED TO USER AS IS, AND MBS MAKES NO WARRANTY,
EXPRESS, IMPLIED, BY DESCRIPTION, BY SAMPLE, OR OTHERWISE, AND, IN PARTICULAR,
WITHOUT LIMITATION, MAKES NO IMPLIED WARRANTIES OF LEGAL ENFORCEABILITY,
MERCHANTABILITY OR FITNESS OF PURPOSE. USER IS SOLELY RESPONSIBLE FOR THE ACCURACY OF THE LOAN DATA ENTERED IN
THE SOFTWARE, THE ADEQUACY OF THE LANGUAGE USED IN THE DOCUMENTS AND REPORTS,
AND HAS INDEPENDENTLY CONCLUDED THAT THE SOFTWARE MEETS ALL OF USER’S
REQUIREMENTS FOR CLOSING MORTGAGE LOANS. USER ACKNOWLEDGES THAT MBS IS NOT QUALIFIED TO PRACTICE LAW IN ANY
JURISDICTION, AND ACCORDINGLY, MBS MAKES NO WARRANTY AS TO THE LEGALITY OR
SUITABILITY OF THE SPECIFIC LANGUAGE CONTAINED IN THE CLOSING DOCUMENTS IT
SUPPLIES WITH THE SOFTWARE.
6.3 Limitation of
Liability. IN NO EVENT SHALL MBS OR ITS
LICENSORS BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR
MALFUNCTION, PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, LOSS OF BUSINESS,
REVENUE, USE, DATA OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES ARISING OUT OF OR
RESULTING FROM LICENSEE’S POSSESSION OR USE OF THE SOFTWARE, EVEN IF MBS HAS BEEN
APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES. IN NO EVENT SHALL MBS OR ITS LICENSORS BE LIABLE FOR ANY DAMAGES IN
EXCESS OF THE AGGREGATE AMOUNT MBS HAS RECEIVED UNDER THIS AGREEMENT, EVEN IF
MBS HAS BEEN INFORMED OF THE POSSIBILTY OF SUCH DAMAGES, OR FOR ANY CLAIM BY
ANY OTHER PARTY. This limitation of liability will apply
regardless of the form of action, whether in contraCt or tort, including
negligence and independent of any failure of essential purpose of the limited
warranty and remedies provided hereunder.
6.4 u.s. Government Restricted Rights. The Software is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government and parties acting on its behalf is subject to the restrictions set forth in subparagraph (C)(1) and (2) of the Commerical Computer Software – Restricted Rights at 48 CFR 52.227-19, as applicable.
6.5 Copyright,
Patents and Marks. All
trademarks, service marks, patents, copyrights, trade secrets and other
proprietary rights in or related to the Software products are and will remain
the exclusive property of MBS or its licensors, whether or not specifically
recognized or perfected under international, federal, state or local applicable
law.
6.6 Export Restrictions. Licensee agrees not to export (including transferring
electronically over any network, including the Internet) or re-export the
Software, any part thereof, or any process or service that is the direct
product of the Software, to any country, person, or entity in violation of U.S.
and other applicable export laws, including without limitation the Export
Administration Regulations administered by the U.S. Department of Commerce and
the International Traffic in Arms Regulations administered by the U.S.
Department of State.
6.7 USER’s Corporate
Existence and Authority. USER represents and warrants that it is duly
organized, validly existing, and in good standing under the laws of the state
of its incorporation. USER warrants it
has all necessary corporate power and authority to enter into this Agreement
and to perform all of the obligations to be performed by it under the
Agreement.
6.8 No Existing
Claims. USER represents and warrants that there is
no claim, litigation, proceeding, arbitration, investigation or material
controversy pending, against or affecting the USER which will have a material
adverse effect on the ability of USER to consummate the transactions
contemplated hereby and, to the best of USER’s knowledge, no such claim,
litigation, proceeding, arbitration, investigation or material controversy has
been threatened or contemplated.
6.9 Indemnification. USER agrees to hold
MBS harmless and indemnify MBS from any direct damages or consequential
damages, including cost of litigation, resulting from the use of the
Software. MBS’ liability hereunder for
damages, regardless of the form of action, and regardless of whether the action
is brought by USER or a third party, shall not exceed the amount paid by USER
to MBS under this Agreement. MBS is not
liable for any lost profits. This
limitation of liability is intended to apply without regard to whether other
provisions of this Agreement have been breached or have proven ineffective.
ARTICLE VII
MISCELLANEOUS PROVISIONS
7.1 Waiver/Licensee
Rights. No waiver of any provision of this Agreement
or any rights or obligations of either party hereunder shall be effective,
except pursuant to a written instrument signed by the party or parties waiving
compliance, and any such waiver shall be effective only in the specific
instance and for the specific purpose stated in such writing. No remedy made available to MBS by any of
the provisions of this Agreement is intended to be exclusive of any other
remedy, and each and every such remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing at
law or in equity.
7.2 Entire Agreement/Jurisdiction. This Agreement constitutes the
entire agreement between MBS and USER with respect to the transactions
contemplated herein, and supersedes any and all prior or contemporaneous oral
or written communications relating to the subject matter hereof. This Agreement, and all of its terms and
conditions, shall be governed by the laws of the Commonwealth of Virginia, and
the parties mutually consent to and agree, that the sole and exclusive
jurisdiction and venue for any dispute, shall be in any state or federal court
located in the County of Fairfax, Commonwealth of Virginia.
7.3 Arbitration Clause. Any controversy or claim arising from or relating to this
contract or the breach thereof shall be settled by arbitration in Washington,
DC, administered by the American Arbitration Association under its Arbitration
Rules for the Real Estate Industry and judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof.
7.4 Assignment. Each party hereto shall have the right and power to assign any of
its obligations or duties of performance hereunder upon the written consent of
the other party, which consent shall not be unreasonably withheld. No such assignment shall relieve the
assignor of primary responsibility for and liability with respect to the
performance of its obligations hereunder.
7.5 Severability of Provisions. Whenever possible each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement is determined by a
court of applicable jurisdiction to be invalid, illegal or unenforceable for
any reason, such provision shall be modified or deleted in such a manner as to
make the modified Agreement valid, legal and enforceable, and the remainder of
the Agreement shall not be affected thereby.
7.6 Notices. All notices or other communications provided
for or permitted hereunder shall be made in writing and deemed to have been
duly given when delivered by hand-delivery, air courier, U.S. Mail with receipt
requested, or sent by facsimile to the following address:
If to MBS:
Mortgage Banking Systems, Inc.
Attn: Compliance Department
1360 Beverly Road, Suite 200
McLean, VA 22101
Tel: (703) 761-3148
Fax: (703) 761-4375
Notice not given in writing shall be effective only if acknowledged in writing by a
duly authorized representative of the party to whom it was given.
7.7 Modifications. Waivers,
alterations, modifications or amendments of a provision of this Agreement shall
not be binding unless such waiver, alteration, modification or amendment is in
writing and signed by the party to be bound.
ARTICLE VIII
FEES AND
PAYMENT
8.1 PAYMENT. USER agrees to pay
MBS for any and all transaction fees, additional product usage, and services
that USER selects or are incurred by usage, or as offered and selected on line
at the time of registration.
8.2 PAYMENT PLANS. MBS offers two payment options at time of registration: (1) Billed monthy for loan transactions at a flat rate per loan ("Bill me later") or (2) Pre-paid blocks of loans at a discounted rate that expire 3 months after the purchase date. USER may switch their payment option at any time after registration. The flat rate and the discounted rate are subject to change at any time.
8.3 REFUNDS AND RETURNS. Loans that do not go to closing are not refundable. USER
agrees to pay for all loans which pass through the ProClose® calculation engine or print
engine, regardless of their ultimate closing status. MBS will only
invoice one time per unique loan ID. No
alterations to the invoice should ever be made or assumed. All sales of pre-paid blocks of loans for ProClose® Platinum are final and non-refundable regardless of whether they are all used before the expiration date. If you believe there is a technical problem
with your invoice, please contact our office immediately at the address below:
Mortgage Banking Systems
1360 Beverly Road
Suite 200
McLean, VA 22101
billing@ProClose.com
703-761-3148
8.4 Taxes. USER shall pay any and all applicable taxes,
including without limitation, if applicable, sales, use, property, value added
or other taxes based on licenses granted or services provided, excluding taxes
on MBS’ net income.
8.5 Past Due Amounts. Time is of the
essence with regards to payments. Without limiting any of MBS' rights or remedies, late charges at the
rate of two percent (2%) per month or the maximum rate permitted by applicable
law, whichever is lower, shall accrue on any due and payable amounts that are
not paid within 30 days of receiving an invoice from MBS. Failure of MBS to enforce this late penalty
provision shall not constitute a waiver in regards to future late
payments. If any suit is brought to
enforce the collection of fees pursuant to this Agreement, USER agrees to pay
reasonable attorneys’ fees (of not less than twelve percent (12%) of such
amounts outstanding), and all court costs with interest on the unpaid fees at
the maximum legal interest rate. If USER fails to pay fees as specified in this Agreement, MBS may, at its option,
remove the Software from USER’s computer system. Removal of the Software or termination of this Agreement does not
relieve USER of the obligation to pay all fees due MBS. USER is responsible for paying any and all
state and local taxes as applicable.
CONTACT US
