The following sets out terms and conditions that are applied to the use of The Financing Hub Inc. (TFH) platform, the Financing Hub, and any affiliated sites (collectively “the TFH Platforms”). These terms and conditions apply to all users of the TFH Platforms regardless of the programs or status of the user.
By agreeing to utilize the TFH Platforms, as evidenced by the user’s request for access, the user agrees to be bound by and subject to these terms and conditions, or where applicable, the execution of an N-Abler or Financing Hub Services Agreement.
These Terms & Conditions are effective as at August 1, 2015 and are applicable to all TFH Platforms agreements and user term arrangements entered into by a User and TFH after that date.
The balance of this documents sets out the terms & conditions and their applications.
“Affiliate” has the meaning given to the word “affiliate” in the Business Corporations Act (Ontario).
“Agents” means those individuals authorized by the User to access and use the Services.
“Business Day” means any day other than Saturday, Sunday or a statutory or civic holiday, on which Schedule “I” chartered banks are open for business in Toronto, Ontario.
“Client Data” means the information entered into the TFH Platforms or provided to TFH which it maintains about an individual or a transaction that has been provided by the User or other Program Partner, and uses in the course of supplying the Services.
“Effective Date” means the date the User is issued their TFH Platforms access credentials, or where applicable, the execution of an N-Abler or Financing Hub Services Agreement.
“Including” means “including without limitation” and “includes” means “includes without limitation.”
“Input Data” means any information entered into, or provided to the TFH Platforms that will be required to utilize Services.
“Output Data” means the information TFH produces utilizing Input Data to provide certain services, but does not include Input Data.
“Personnel” mean a party’s employees, officers, directors, agents and sub-contractors.
“Program” means an individual financing offering and its related grouping of Services, terms and conditions made available to the User through the TFH Platforms and its affiliated applications.
“Program Partner” means any party the User has the option to connect with utilizing the TFH Platforms or through the TFH Platforms or through an TFH Platforms program to deliver a related service or provide funding for a Referral.
“Proprietary & Confidential Information” means any and all information disclosed by a disclosing party relating to the disclosing party and its business which, at the time of disclosure, is designated as Proprietary & Confidential, is disclosed in circumstances of confidence or would be understood by the parties, exercising reasonable business judgment, to be confidential and includes information which is derived or prepared using Proprietary & Confidential Information. The foregoing is subject to section K of this document.
“Referral” means a financing application referred by the User to a Program Partner using the TFH Platforms.
“Services” means a service TFH or a Program Partner supplies to or performs for the User, individually or grouped, utilizing the TFH Platforms, under this UTA.
“SP” means any third party supplier whose services have been retained by the User to receive, host, store, archive and/or in any way processes, analyzes or reports on TFH Services, or any other information derived from the Services on behalf of the User.
“Standard Access Time” means Business Days from 8:00 AM to 8:30 PM Eastern time.
“Supplement UTA” means future changes to the Services or some other element(s) of the UTA between the User and TFH that have been documented and executed by both parties.
“TFH” means The Financing Hub Inc. its affiliates, assigns and those agents it authorizes to access, provide, or use the Services.
“TFH Platforms” means the multi-functional lender support technology platform developed, owned, and managed by TFH, which delivers the Programs and Services under this UTA.
“User” means any individual or entity, its personnel, affiliates or agents it authorizes to access and use the Services.
“UTA” means this document establishing the user terms and conditions arrangements.
B. Use of Services:
i. TFH gives the User a non-exclusive, non-transferable, revocable authorization to use the Services, including information received as a result of using them, in accordance with the UTA and subject to any conditions described in any attached schedule or any applicable Supplemental UTA.
ii. Where the User, is providing Input Data that by law requires consent, that party is responsible to obtain any consent from, and give any notice to, the individual or entity who is the subject of that Input Data. Such notices or consents must be in the form required by law at the time the individual or entity is providing Input Data used in or by the Services.
iii. When requesting and/or using the Services or otherwise performing any activities and obligations contemplated under this UTA, the User agrees to comply with all federal, provincial, state and local laws, including, but not limited to, the various consumer reporting acts or equivalent, the Personal Information Protection and Electronic Documents Act (Canada) or equivalent privacy acts, and any regulations, judicial actions and/or orders of an administrative tribunal, as now or as may become effective throughout the term of this UTA.
iv. The User will be responsible for the availability and performance of any computer system infrastructure, program, leased lines, modems or other communication devices the User uses in the course of its use of the Services, in addition to those of any SP the User may use. The User shall ensure that it or its SP maintains the confidentiality of non-public information and protects the non-public information from unauthorized access, destruction, use, modification or disclosure. The User is responsible for all security breaches emanating from any computer system infrastructure, program, leased lines, modems or other communication devices the User or SP uses in the course of the use of the Services. The User shall be liable for all actions and omissions of its SP, including without limitation SP’s compliance with this UTA.
v. TFH is not a party to any contractual arrangement entered into between the User and SP, and is not liable for any dispute that arises between the User and SP. Furthermore, the User understands and agrees that SP shall not be entitled as a third party beneficiary or otherwise, to take any action or have any recourse against TFH in respect of any claim based upon any actual or alleged failure to perform under this UTA.
vi. The User acknowledges that when it authorizes an agent, affiliate or third party to access or use the Services the User is solely responsible to ensure that party does so in compliance with all UTA terms and conditions and that any non-compliance by that party has the same effect as it does if the User was in the same non-compliance itself and the User is responsible for all actions arising from the non-compliance.
vii. TFH shall have no liability in relation to a) the User’s passwords or information, including those it provides to any third party, or, b) access codes misuse or any unauthorized access using the User’s passwords or access codes. The User acknowledges that TFH shall assume that the individual(s) logging or accessing TFH’s systems using the specific code(s) and password(s) assigned to the User are in fact authorized to do so by the User. The User shall be liable for all actions and omissions of its passwords, including without limitation compliance with this UTA.
vii. Nothing in this UTA is intended to allow the User to purchase the Services for the purpose of selling or otherwise providing them, or the information contained or derived from Services, to any third party, except as specifically provided hereunder, including as needed in connection with processing a loan application or funding a loan.
C. Access to Services:
i. TFH will make best efforts to have the Services available to the User during Standard Access Time, except, as noted below, or in circumstances beyond TFH’s control. Use of the Services outside of Standard Access Time will be accessible only on an as-available basis. Outages, errors and support requests will only be addressed within the Standard Access Time.
ii. Should an unforeseen disruption to the Services occur during Standard Access Time TFH will make commercially reasonable efforts to clear the disruption within three (3) hours.
iii. Planned network, application changes to product systems and normal service maintenance will be completed during non-critical period(s) outside of Standard Access Time.
D. Services Support:
i. TFH will make best efforts to have customer support available to the User during Standard Access Time except in circumstances beyond TFH’s control.
ii. The User and TFH agree all communication required related to the ongoing Services will be conducted via e-mail sent to email@example.com or firstname.lastname@example.org.
iii. Copies of all e-mail records sent through email@example.com and firstname.lastname@example.org will be held for a period of 6 months for subsequent reference. At six (6) months previous e-mail records will be deleted.
E. Training & Program Information:
i. The User grants TFH the authorization to issue periodic emails to the User, its personnel, agents and affiliates in order to keep the User and related parties updated for the purpose of training or to keep them informed of developments or general updates related to TFH, the TFH Platforms and its programs and applications.
F. Referrals & Related Matters:
i. The User will refer lending applications to the Program Partners meeting the acceptance criteria the Program Partners may provide from time to time (a “Referral”).
ii. The User shall not provide the Program Partners with any non-public information relating to any Referral that it is prohibited from sharing. For greater certainty, the User shall comply with all applicable laws, including the Personal Information Protection and Electronic Documents Act, when collecting, using, and disclosing information related to any Referral.
iii. The User will assist with the collection and execution of transaction documentation for any transaction it has referred on to a Program Partner, when asked to do so. A Program Partner will have the right to advise TFH if the Program Partner determines the User has not met its obligations related to this aspect of the program.
iv. For certainty neither TFH or any Program Partner will have any obligation or liability to the User related in any way to a referred transaction.
v. The parties acknowledge and agree that any arrangements under which the User receives a referral or placement fee is made outside of this UTA on a unique basis between the User and the Program Partner and all dealings, distributions, or responsibilities related to such fees are solely those of the User or Program Partner and have nothing to do with TFH.
vi. The User agrees that where the User refers an application on to a Program Partner it will use the TFH Platforms and its applicable applications to do so. Any changes or amendments to that Referral will be processed through the TFH Platforms.
vii. Where a Referral is completed outside of the TFH Platforms, regardless of any changes or amendments that may have been made to that Referral, the User is responsible to inform TFH the Referral was completed. Failure to inform TFH makes the User liable for any system fees TFH would have otherwise received.
viii. The Program Partners are solely responsible for all application processing adjudication, decisioning, loan condition and documentation fulfillment, regulatory mandates, collections, loan servicing and other activities it would otherwise be required to undertake if the transaction was processed without the involvement of the TFH Platforms or its applicable application.
ix. The User acknowledges and agrees that each Program Partner may, at its sole and complete discretion, approve or deny a Referral for any of the Program Partner’s loan, lease or mortgage products. The User or any other third party will not advise or otherwise imply to any applicant that the Referral has been or will be approved for a loan, lease or mortgage product offered by a Program Partner prior to the Program Partner’s review and formal approval.
G. Program Participation:
i. The User will make best efforts to only submit Referrals to Program Partners where the parameters of the application are in line with the Program Partner’s acceptance parameters if disclosed. The User will limit the submission of any Referral to a maximum of four (4) Program Partners at any time, and will only submit that Referral to additional Program Partners where previous submissions have been withdrawn, cancelled or declined.
ii. The User will provide accurate updates as to the status of a Referral to TFH where TFH directly contacts the User with the request.
H. Intellectual Property Rights:
i. TFH shall own all copyrights, patents, trade secrets, trademarks and other intellectual property rights, programming code, application design, title and interest in or pertaining to all works (including computer programs) developed by TFH for purposes of providing Services, this UTA or developed by TFH as part of its overall lender support services.
ii. For certainty TFH retains all intellectual property rights in and to the Services, Programs and all subsequent changes that may be made to the Services and Programs.
iii. The party providing Input Data retains all intellectual property rights in and to any relevant Input Data.
iv. No party shall gain, by virtue of this UTA, any rights of ownership of copyrights, patents, trade secrets, trademarks or any other intellectual property rights owned by TFH or the User.
I. Termination & Suspension:
i. Either party may terminate this UTA for any reason at any time and without penalty:
a) by giving the other at least 15 days’ written notice; or
b) immediately upon giving notice if the User has failed to correct a material breach of any terms or conditions of this Services UTA within 30 days of being given notice to do so.
c) immediately upon failure of the User to pay any fees that are due and payable within a period of 30 days of the date of that such fees are due, unless some portion of the Services related to the unpaid fees are in dispute; or
d) immediately, without any liability to the User, if, at any time and for any reason, as a result, the User is no longer eligible to use the Services under applicable laws or TFH’s policies.
Such notices will be considered to be delivered when TFH issues the notice(s) to the email address provided by the User as part of its initial sign-up process, or such other email address the User subsequently provides to TFH as sent to email@example.com.
ii. Termination of the UTA, does not relieve the User of the obligations under the terms of this UTA.
iii. In all instances of termination, regardless of the reasons TFH will not be held liable in any way, by any party, for any impact resulting from the termination of the Services.
iv. TFH may, indefinitely suspend the supply of all, some or any part of the Services immediately, subject to prior notice to the User and the opportunity for the User to cure the alleged breach, if TFH:
a) reasonably believes that the User is not using the Services in compliance with this Services UTA or an applicable Supplemental UTA; or
b) non-disputed invoices are unpaid for a period greater than 30 days from the invoice date; or
c) is required to stop supplying the Services in order to comply with applicable law.
J. Limitation of Liability:
i. In no event shall TFH be liable for consequential, special, opportunity costs or other costs even if TFH has been advised of their possible existence.
ii. The Services, all related Input Data, information, functionality and resulting Output Data are provided “as is” and “as available”. TFH does not provide any warranties or representations regarding the Input Data, the Output Data, or the functionality of the Services.
i. Proprietary & Confidential Information of the disclosing party shall be treated as safeguarded hereunder by the receiving party (i) for a period of 24 months after the date of disclosure and (ii) in the same manner that the receiving party treats its own Proprietary Information of like kind.
ii. For certainty the User acknowledges the receiving parties include, but may not be limited to TFH and Program Partners attached to the processing, adjudication or funding of the User’s loan, lease or mortgage applications.
iii. Except as required to do so by law or regulatory body, the receiving party agrees that it will not disturb, disclose, or disseminate Proprietary & Confidential Information of the disclosing party in any way, to anyone except to its employees and consultants who are involved in a consideration or evaluation of the Proprietary & Confidential Information, provided that said employees and consultants have been advised of the obligations to protect the Proprietary & Confidential Information. Where legal disclosure is required the receiving party will provide the disclosing party with prompt notice of the disclosure to the extent permitted by applicable law. It is acknowledged that the receiving party may disclose Proprietary & Confidential Information to its regulators, auditors or external counsel upon request.
iv. Proprietary & Confidential Information shall not include information which falls within any of the following:
a) Information which has come within the public domain through no fault of or action by the receiving party or its employees or consultants; or
b) Information which is rightfully available to the receiving party prior to its disclosure hereunder to the receiving party; or
c) Information which becomes rightfully available from any third party;
d) Information which was or is developed by the receiving party or any of its affiliates who have not had access to Information disclosed hereunder.
v. Within 5 business days of its receipt of a request from the disclosing party, TFH shall certify the destruction of, all notes, correspondence, documents or other records, including all copies thereof, then in TFH’s possession, furnished by the disclosing party or created by TFH hereunder. Such return, however, does not abrogate the continuing obligations of the receiving party under this UTA.
vi. The parties agree that notwithstanding any of the terms and conditions above the administration and dissemination of all information received and provided as a result of this UTA will be managed in accordance with the various consumer reporting acts or equivalent, the Personal Information Protection and Electronic Documents Act (Canada) or equivalent privacy acts, and any regulations, judicial actions and/or orders of an administrative tribunal, as now or as may become effective throughout the term of this UTA.
L. Ownership of Information & Record Retention:
i. The parties hereby agree and acknowledge that all of the information and data regarding the Client Data, and the Input Data, in any form whatsoever, provided to a party under this UTA or otherwise obtained by a party in performing or utilizing the Services, is Confidential Information belonging to that party providing the information and, is the sole property of the providing party.
ii. The User hereby agrees and acknowledges that all of the information and data regarding the Output Data, or the production of the Output Data in any form whatsoever, provided to the User or otherwise obtained by the User in performing the Services is Proprietary & Confidential Information belonging to TFH and is the sole property of TFH.
iii. The User acknowledges that TFH can use all data collected in providing the Services over the period of the UTA, for industry analysis, product development, and benchmark reporting, provided neither the User or any party who should reasonably expect to have the privacy maintained under applicable privacy laws and regulations is in any way identifiable. Such data shall not be considered Proprietary & Confidential Information under this UTA.
iv. Each party shall, at its own expense, maintain data, information, records and documents relating to its respective businesses and the transaction of business with prospective borrowers, in such manner and for such time period as is required by applicable law or is necessary to ensure compliance with the terms hereof. If a party has reasonable grounds to believe a default has occurred under this UTA, that party shall have the right to remotely (and not at the physical location of the other party) review the records of the other party upon written notice, provided that the requesting party shall be entitled to review only those payment activity records necessary to determine the existence and extent of a default hereunder.
i. Any notices issued under, or in respect to, the Services or the UTA shall be deemed to be delivered when sent to a) in the case of TFH, to firstname.lastname@example.org or email@example.com; and b) in the case of the User, to the email address a) provided by the User through the TFH Platforms sign-up process; b) such alternative email address subsequently provided to TFH through firstname.lastname@example.org or email@example.com; or where applicable, the notification address included in any N-Abler or Financing Hub Services Agreement.
i. Acceptance – The User is deemed to have accepted all terms and conditions of this UTA by virtue of its actions to accept the terms as part of its initial sign-up process and the activation of its user credentials, or where applicable, the execution of an N-Abler or Financing Hub Services Agreement.
ii. No Partnership – TFH and the User are not partners or joint ventures with each other, and nothing herein shall be construed so as to make them partners or joint ventures, or impose any liability as such on either of them.
iii. Waiver – A waiver of any default, breach or non-compliance under this UTA is not effective unless in writing and signed by the party to be bound by the waiver. No waiver will be inferred from or implied by any failure to act or delay in acting by a party in respect of any default, breach or non-observance or by anything done or omitted to be done by such other party. The waiver by a party of any default, breach or non-compliance under this UTA will not operate as a waiver of that party’s rights under this UTA in respect of any continuing or subsequent default, breach or non-observance (whether of the same or any other nature).
iv. Governing Law – This UTA shall be governed by the laws of the Province of Ontario and the laws of Canada applicable therein and TFH and the User attorn to the exclusive jurisdiction of the Courts of the Province of Ontario.
v. Severability – Any term, covenant, agreement or provision of this UTA which is illegal, invalid, prohibited, void or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of such illegality, invalidity, prohibition, void-ability or unenforceability and will be severed from the balance of this UTA, all without affecting the remaining terms, covenants, agreements or provisions of this UTA or affecting the validity or enforceability of such term, covenant, agreement or provision in any other jurisdiction.
vi. Assignment – TFH has the right to assign any and all rights and interests in this UTA or where applicable, an N-Abler or Financing Hub Services Agreement, at any time to any party without notification. The User may not assign any rights or interests in this UTA without written consent from TFH.
vii. Currency – All statements of or references to dollar amounts (without more) in this UTA shall mean lawful money of Canada, unless otherwise specified.
viii. Day Not a Business Day – In the event that any day on or before which any action is required to be taken hereunder is not a Business Day, then such action shall be required to be taken on or before the requisite time on the first Business Day thereafter.
ix. Entire UTA – This UTA constitutes the entire agreement between the parties pertaining to the subject matter of this UTA and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written. There are no conditions, warranties, representations or other agreements between the parties in connection with the subject matter of this UTA (whether oral or written, express or implied, statutory or otherwise) except as specifically set out in this UTA.
x. Language – The parties hereto expressly request and require that this UTA and all related documents be drawn up in English. Les parties aux presentes conviennent et exigent que la present entente et tous les documents qui s’y arattachent soient rediges en anglais.
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