Terms of Use
Date of Last Revision: August 5th, 2024
1. Definitions.
"Affiliate" means, with respect to any entity, any other entity controlling, controlled by, or under common control with, such entity at the time in question. For the purposes of this definition, "control", "controlled", or "controlling" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity through record or beneficial ownership of voting securities, by contract or otherwise.
"Agreement" means collectively these Terms of Use, the Order Form(s), and all schedules, attachments, and exhibits thereto and additional terms referenced therein.
"Analytics Data" means data that has been processed by Company such that it does not (i) identify Customer (either directly or through the exercise of reasonable efforts), or (ii) otherwise contain any Personally Identifiable Information, including technical logs, metadata, support issues, and metrics.
"Applicable Laws" means, with respect to any party, any applicable laws (including common law and national, federal, state, provincial and local laws), codes, statutes, ordinances, rules, regulatory bulletins, comprehensive privacy laws, and guidance (including those of any regulatory bodies or agencies), regulatory examinations or orders, decrees and orders of any governmental entity, all as may be amended and in effect from time to time during the Term.
"Customer" means the party set forth in an Order Form.
"Customer Data" means data input to or collected through the Services by, from, or on behalf of Customer (including its borrower customers). For the avoidance of doubt, Customer Data does not include Analytics Data.
"Documentation" means Company's user guides, documentation, knowledge articles, and training materials, as updated by Company from time to time accessible via https://tidalwave.ai or login to the Services.
"GLB Act" means the Gramm-Leach-Bliley Act, regulations promulgated thereunder and regulatory interpretations of the foregoing (including the Interagency Guidelines Establishing Information Security Standards adopted by federal bank regulatory agencies, such as the Office of Comptroller of the Currency and the Board of Governors of the Federal Reserve System), as amended and supplemented from time to time.
"Intellectual Property Rights" means, on a worldwide basis, any and all intellectual and industrial property rights of every kind and nature, however designated, whether arising by operation of law, contract, license, or otherwise.
"Order Form" means an order form for Services executed by Customer and Company.
"Personally Identifiable Information" or "PII" means "nonpublic personal information" as defined by the Gramm-Leach-Bliley Act, generally, information, other than publicly available information, provided by a consumer to a financial institution, resulting from any transaction with the consumer or any service performed for the consumer; or otherwise obtained by the financial institution.
"Services" means the software-as-a-service (SaaS) platform and the accompanying features and functionality made available by or on behalf of Company to its customers including as set forth on an Order Form and as described in the Documentation.
2. Services.
2.1 Access and Use. Subject to the terms and conditions of this Agreement, Company grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Services during the Term solely for use in the ordinary course of Customer's business. Customer shall use the Services only in accordance with this Agreement, the Documentation, and Applicable Laws. For clarity, Company will configure the Services to make decisions regarding lending and borrowing based upon Customer's requirements ("Customer Requirements"), and Customer shall be responsible and liable for all outcomes, decisions, approvals, and/or rejections the Services render pursuant to Customer Requirements. Additionally, Company will utilize Customer's accounts, usernames, password and similar credentials on Customer's behalf ("Customer Accounts") to query third party vendors, such as credit reporting agencies, at Customer's expense, and Customer will remain responsible and liable for all Customer Accounts.
2.2 Affiliate Use. The Services may be used by Customer and any one or more of Customer's Affiliates and any of those parties (such as customer, prospective customers and third-party service providers) with whom Customer or any of its Affiliates has a commercial relationship. Customer shall (i) remain obligated to perform its commitments (including payment obligations) under this Agreement with respect to any Services used by its Affiliates and any such additional parties, and (ii) act as the single point-of-contact with Company with respect to Services used by its Affiliates and any such additional parties.
2.3 Restrictions. Customer shall not (i) permit unauthorized access to, or use of, the Services or Documentation (and shall notify Company promptly upon any such threatened or actual unauthorized access or use), (ii) make the Services available to anyone other than Customer's employees, representatives, consultants, agents, partners, customers, or other persons permitted by Customer to access or use the Services, (iii) sell, resell, license, sublicense, distribute, rent or lease the Services, (iv) use the Services 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, (v) use the Services to store or transmit code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses, (vi) interfere with or disrupt the integrity or performance of the Services, (vii) attempt to gain unauthorized access to the Services or its related systems or networks, (viii) create derivative works based on the Services, (ix) copy, frame or mirror any part or content of the Services (other than for Customer's own internal business purposes), (x) modify, decompile, disassemble or reverse engineer the Services, (xi) access the Services to build a competitive product or service, (xii) permit any third party engaged or planning to engage in cloud-based financial technology services to access or use the Services or Documentation without Company's prior written consent; or (xiii) violate any law, statute, ordinance, regulation, directive or policy, including without limitation, the obligation to obtain all necessary consents from each user related to data collection/processing, or use of any data to unlawfully make decisions regarding financial lending/mortgage approval (e.g., discrimination, civil rights violations).
2.4 Support Services. Company will use commercially reasonable efforts to provide Customer support services as set forth in Schedule 1 below or as set forth in the Order Form (the "Support Services").
2.5 Professional Services. Company may provide Customer professional services under a separate professional services agreement, statement of work, or other order for professional services executed by the Parties, as applicable.
3. Fees and Payment.
3.1 Fees. Customer shall pay Company the fees set forth on the Order Form for the Services (the "Fees"). In addition, Customer shall reimburse Company for any expenses set forth on the Order Form ("Expenses").
3.2 Invoicing and Payment. Fees and Expenses are invoiced as set forth in the Order Form. Customer is responsible for maintaining accurate billing and contact information in the interface provided with the Services. Fees and Expenses are due fifteen (15) days from the invoice date. Invoices will be sent to Customer's email address listed in the Order Form.
3.3 Overdue Payments. If any amounts invoiced are not received by Company by the payment due date, then at Company's discretion, such charges may accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If any amounts invoiced are fifteen (15) days or more overdue, Company may, without limiting its other rights and remedies, suspend Customer's access to the Services until such amounts are paid in full. Company will not exercise its rights under this section if the applicable charges are under reasonable and good-faith dispute and Customer is diligently cooperating to resolve the dispute.
3.4 Taxes. Unless otherwise stated in writing, the Fees do not include any taxes, levies, duties or other similar government assessments of any nature, including but not limited to value added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively "Taxes"). Customer is responsible for paying all Taxes associated with this Agreement except for Taxes assessable against Company based on its income, property and employees. Company will calculate Taxes based on the address set forth in the introductory paragraph to this Agreement. Customer will be responsible for self-assessing and paying any additional Taxes arising from Customer's use of Services at a different address. If Company has the legal obligation to pay or collect Taxes for which Customer is responsible pursuant to this Agreement, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Company with a valid tax exemption certificate recognized by the appropriate taxing authority.
4. Intellectual Property.
4.1 Customer IP; Customer License Grants. As between the parties, and except for the licenses granted hereunder, Customer owns all rights, title and interest, to the Customer Data and Customer Accounts, and Customer reserves all rights not expressly granted hereunder. Customer hereby grants Company the right and license to reproduce, store, and process Customer Data (i) to provide the Services, and (ii) to improve the Services and to create Analytics Data. Additionally, Customer hereby grants Company the right and license to utilize its Customer Accounts in order for Company to provide the Services.
4.2 Company IP. As between the parties, Company (or, if applicable, its licensors) exclusively owns all rights, title, and interest in and to the Services, Analytics Data, Documentation, all improvements, modifications, updates, upgrades, enhancements and derivative works thereof, and all Intellectual Property Rights therein, and any recommendations, enhancement requests, corrections, suggestions, or other feedback provided by Customer relating to the Services ("Feedback"). Company reserves all rights not expressly granted hereunder. For the avoidance of doubt, nothing in this Agreement shall limit Company's rights with respect to any data or information to which it has acquired any rights independently of this Agreement, including without limitation any data provided by Customer's customers.
5. Safeguarding of Data and Information.
As between the parties, Customer shall have sole responsibility for the legality, reliability, integrity, accuracy, and quality of Customer Data. Company acknowledges Customer Data (i) may contain Personally Identifiable Information and (ii) that Customer is subject to the GLB Act, and accordingly:
(I) Company shall protect and keep confidential all Customer Data in accordance with Applicable Laws.
(II) Company shall establish and maintain commercially reasonable safeguards designed to protect against the destruction, loss or alteration of Customer Data in the possession or control of Company which are no less rigorous than those maintained by Company for its other customers' information of a similar nature, but in no event less than an industry standard.
(III) For as long as it retains Customer Data, Company shall maintain administrative, technical, and physical safeguards designed to (a) ensure the security and confidentiality of such Customer Data, (b) protect against any anticipated or reasonably likely threats or hazards to the security or integrity of such Customer Data, (c) protect against unauthorized access to or use of such Customer Data, (d) ensure the proper disposal of Customer Data, and (e) without limiting the generality of items (a) through (d) preceding, with regard to Personally Identifiable Information, comply with the requirements contained in Section 501(b) of the GLB Act and the Interagency Guidelines Establishing Information Security Standards adopted by federal bank regulatory agencies.
(IV) Company will notify Customer promptly, and in any event within forty-eight (48) hours, upon becoming aware of a breach by Company of the security safeguards required by this Section resulting in an actual or reasonably suspected unauthorized disclosure of Customer Data (a "Security Breach"). Such notification shall, to the extent then known, include the time of the Security Breach and, if available, Company's plan for corrective action. Company shall promptly inform Customer of proposed corrective actions and take such corrective action to address incidents of unauthorized access to or use of Customer Data or any data security vulnerabilities highlighted by a Security Breach. Upon receipt of notice of a Security Breach, Customer may take all reasonable and appropriate steps to (a) protect Customer Data, (b) execute any obligations it may have under state or federal Security Breach requirements and (c) implement its data security breach response program.
(V) Customer shall ensure that, at all times during the Term of this Agreement, (a) all Customer Confidential Information residing within the Services shall be encrypted when stored or otherwise "at rest," and (b) the Services shall be configured in accordance with Company's applicable "Gold Standard Best Practices" as published from time to time by Company.
(VI) Company shall maintain internal audit controls necessary to monitor Company's compliance with Applicable Laws. In addition, Company shall conduct audits and inspections of or pertaining to the Services in such manner and at such times as is consistent with the audit practices of well-managed operations performing services similar to the Services.
6. Term and Termination.
6.1 Term. This Agreement commences on the effective date of the first Order Form and continues until all Order Forms have expired or have been terminated.
6.2 Termination. Either party may terminate this Agreement for cause (i) upon thirty (30) days' written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding related to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
6.3 Effect of Termination. Upon the termination, cancellation, or expiration of this Agreement (i) any undisputed unpaid fees owed by Customer hereunder immediately shall be due and payable and all rights and licenses granted hereunder immediately shall cease to exist, and (ii) Customer shall no longer have access to the Services. The following provisions of this Agreement shall survive the termination of this Agreement: (a) any obligation of Customer to pay before termination and (b) any other provision of this Agreement that must survive to fulfill its essential purpose.
7. Confidentiality.
Each party will potentially share with the other certain confidential and proprietary information. Each party, as the recipient of such confidential and proprietary information ("Recipient"), agrees to protect and maintain such information of the disclosing party ("Discloser") as set forth below.
7.1 Definition. "Confidential Information" means information relating to Discloser's business including, without limitation, product designs, product plans, proprietary software and technology, services, financial information, marketing plans, business opportunities, pricing information, discounts, inventions, and know-how to the extent disclosed to Recipient hereunder. Customer Confidential Information shall also include Customer Data but does not include Analytics Data or Feedback.
7.2 Disclosure of Confidential Information. Recipient shall: (i) hold the Confidential Information in strict confidence and take reasonable precautions to protect the Confidential Information (including, without limitation, all precautions Recipient employs with respect to its own confidential information), (ii) not divulge any Confidential Information to any third party (other than to employees or contractors of Recipient as set forth below), (iii) not copy, decompile or reverse-engineer any Confidential Information, or remove any proprietary markings from any Confidential Information, and (iv) only use the Confidential Information in connection with the performance of this Agreement and for no other purpose. Any employee, agent or contractor of Recipient given access to any Confidential Information must have a legitimate "need to know" such information and Recipient shall remain responsible for each such person's compliance with this Agreement.
7.3 Confidentiality Period. Recipient's obligations with respect to Confidential Information under this Agreement expire five (5) years from the termination or expiration of this Agreement (except that with respect to any trade secrets, the obligations shall be perpetual).
7.4 Exclusions. This Agreement imposes no obligations with respect to information which (i) was in Recipient's possession before receipt from Discloser, (ii) is or becomes a matter of public knowledge through no fault of Recipient, (iii) was rightfully disclosed to Recipient by a third party without restriction on disclosure, or (iv) is developed by Recipient without use of the Confidential Information and such independent development can be shown by documentary evidence. Recipient may make disclosures to the extent required by Applicable Laws or legal or governmental authority provided that Recipient provides Discloser prompt notice of any such requirement (to the extent permissible under Applicable Laws) and reasonably cooperates with Discloser in any effort of Discloser to seek a protective order, injunction or to otherwise contest such disclosure, at Discloser's expense.
7.5 Deletion/Destruction. Upon termination of this Agreement, Recipient shall (i) promptly cease using the Confidential Information, (ii) delete, overwrite, or destroy the Confidential Information and all copies, notes or extracts thereof to Discloser within thirty (30) days of receipt of Discloser's request, except for Customer Data, which Company will delete or overwrite in accordance with its then-current policies and procedures, and (iii) if requested, confirm in writing that it has complied with these obligations. Nothing herein shall require Company to delete any Analytics Data upon termination of this Agreement.
8. Representations & Warranties; Disclaimers.
8.1 Customer Representations & Warranties. Customer represents and warrants to Company that: (i) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform under this Agreement; (ii) Customer has obtained all consents necessary for the collection, processing and storing of Customer Data, and such collection, processing and storage by Company will not violate the rights of any third party; (iii) Customer Requirements will not violate any Applicable Laws, including without limitation, equal protection, discrimination, or civil rights laws.
8.2 Company Representations & Warranties. Company represents and warrants to Customer that: (i) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform under this Agreement; (ii) it will provide the Services in a professional manner consistent with general industry standards and that the Services will perform in accordance with the Documentation in all material respects. Customer's exclusive remedy for breach of the foregoing warranty shall be, as determined by Company in its sole discretion, Company's (a) reperformance, or (b) termination of the applicable Order Form and a pro-rata refund of any pre-paid fees.
8.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES AND THE DOCUMENTATION ARE PROVIDED "AS IS" AND AS AVAILABLE, AND COMPANY MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, UNINTERRUPTED OR ERROR-FREE SERVICE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS.
9. Indemnification.
9.1 Indemnification by Customer. Customer shall defend Company and its Affiliates, and their directors, officers, employees, and agents ("Company Indemnitees") against any claim, demand, suit or proceeding made or brought against Company by a third party alleging that Customer Data, Customer Requirements (including all outcomes, decisions, and/or approvals the Service makes pursuant to Customer Requirements), Customer Accounts, Customer's use of the Services, or Customer's breach of this Agreement, infringes or misappropriates such third party's rights or violates Applicable Law, and will indemnify and hold Company Indemnitees harmless from any damages, attorney fees and costs finally awarded against Company Indemnitees as a result of, or for any amounts paid by Company Indemnitees under a court-approved settlement of, such claim, provided Company (i) promptly gives Customer written notice of such claim, (ii) gives Customer sole control of the defense and settlement of such claim (except that Customer may not settle such claim unless it unconditionally releases Company Indemnitees of all liability), and (iii) gives Customer all reasonable assistance (at Customer's expense).
9.2 Indemnification by Company. Company will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the use of the Services in accordance with this Agreement infringes or misappropriates such third party's Intellectual Property Rights, and will indemnify and hold Customer harmless from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a court-approved settlement of, such claim, provided Customer (i) promptly gives Company written notice of the claim, (ii) gives Company sole control of the defense and settlement of such claim (except that Company may not settle such claim unless it unconditionally releases Customer of all liability), and (iii) gives Company all reasonable assistance (at Company's expense). If Company receives information about an infringement or misappropriation claim related to the Service, Company may in its discretion and at no cost to Customer: (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching any of Company's warranties set forth herein, (ii) obtain a license for Customer's continued use of the Service in accordance with this Agreement, or (iii) terminate the applicable Order Form for the Service upon 30 days' written notice and refund Customer any prepaid fees covering the remainder of the term. The above defense and indemnification obligations do not apply to the extent a claim arises from Customer Data, Customer Requirements, or Customer's breach of the Agreement. Company will have no indemnification obligation for claims to the extent arising from: (a) Customer's (or any agent's) breach of the Agreement or misuse of the Services; (b) the combination of the Services with any item not provided by Company (if the claim would not have arisen without such combination); (c) infringement by any materials or data that Customer directs Company to procure on Customer's behalf; or (d) the modification of the Services by any party other than Company (if the claim would not have arisen without such modification).
10. Limitation of Liability.
(A) IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS OR LOST REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT, TORT OR OTHERWISE, AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY'S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.
(B) EXCEPT WITH RESPECT TO GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, IN NO EVENT WILL COMPANY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY COMPANY TO CUSTOMER HEREUNDER IN THE THREE (3) MONTHS PRECEDING THE CLAIM.
11. Miscellaneous.
11.1 Third Party Applications. Third parties may make available third-party products or services to use with the Services ("Third Party Apps"). Any use by Customer of such Third Party Apps, and any exchange of data between Customer and any Third Party App provider and Third Party App is solely between Customer and the applicable Third Party App provider. Company does not warrant or support Third Party Apps unless expressly provided in a written agreement between Customer and Company. If Customer chooses to use a Third Party App with the Services, Customer grants Company permission to allow the Third Party App, and its provider, to access Customer Data for the interoperation of such Third Party App with the Services. Company is not responsible for any disclosure, modification, or deletion of Customer Data resulting from access by such Third Party App. For the avoidance of doubt, Third Party Apps do not include hosting services or other products or services that Company provides (or resells) directly to Customer.
11.2 Use of Customer Logo. Company may use Customer's name, logo and marks to identify Customer as a customer of Company upon Customer's prior written approval (email to suffice).
11.3 Assignment. Neither party may assign any of its rights or obligations under this Agreement without the other party's prior written consent (not to be unreasonably withheld or delayed); provided, however, either party may assign this Agreement in its entirety without the other party's consent to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.4 Independent Contractors. Company and Customer are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
11.5 Governing Law & Venue. This Agreement shall be governed by the laws of the State of New York, without giving effect to its conflict of laws provisions. The parties consent to the personal and exclusive jurisdiction of the federal and state courts serving in New York City, New York.
11.6 Audit. Company will have the right during the Term to audit Customer's use of the Services to confirm compliance with this Agreement. Customer will reasonably cooperate with Company and will, without prejudice to any other rights of Company, promptly address any non-compliance identified by the audit.
11.7 Export Compliance. Customer may not export or re-export the Services except in compliance with the United States Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable.
11.8 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency.
11.9 Waiver. Neither party will be deemed to have waived any of its rights under this Agreement other than by an authorized representative of such party in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
11.10 Severability. In the event one or more of the provisions of this Agreement is found to be illegal or unenforceable under Applicable Law, this Agreement shall not be rendered inoperative but the remaining provisions shall remain in full force and effect.
11.11 Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the third business day after mailing by certified mail, or (iii) the first business day after sending by overnight delivery service. The mailing address for each party shall be as set forth in the Order Form. Notices to Company shall be addressed to the attention of Company's Chief Executive Officer. Either party may change its address or designee for notification purposes by giving the other party prior notice of the new address or designee in accordance with the provisions of this Notices section.
11.12 Subcontracting. Company may subcontract or otherwise delegate its performance of the Services. Company shall remain responsible for the obligations, services, and functions performed by its subcontractors to the same extent as if such obligations, services, and functions were performed directly by Company.
11.13 Compliance with Laws and Policies. Each party shall perform its obligations in a manner that complies with all Applicable Laws (including identifying and procuring required permits, certificates, approvals and inspections) required of such party or for which such party is responsible hereunder or which otherwise relate to the provision or use of the Services, as applicable.
11.14 Entire Agreement; Amendment. This Agreement sets forth the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. This Agreement may not be amended except by the written and executed agreement of the parties.
11.15 Order of Precedence; Interpretation. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) these Terms of Use, and (3) the Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
11.16 Construction. This Agreement shall be fairly interpreted and construed in accordance with its terms and without strict interpretation or construction in favor of or against either party.
11.17 Counterparts. Any Order Form, amendment, or other document under this Agreement requiring signature by both parties may be executed electronically, by facsimile, and in counterparts, which taken together shall form one legal instrument.
Schedule 1
Support Services
1. Uptime. Company shall use commercially reasonable efforts to maintain 99.5% uptime of the Services, excluding scheduled maintenance.
2. Maintenance Periods. As a cloud-based technology platform, Company regularly releases system patches and security upgrades. Scheduled maintenance will occur during the hours of 8pm-7am eastern time. Company will alert Customer in advance of any necessary maintenance occurring outside the aforementioned hours or having a high impact on service availability.
3. Support Services. Company will provide email support Monday through Friday from 9am-5pm eastern time. Response times for email support will be 4 hours or less.
4. Responsibility.
Company and Customer will handle the following support issues jointly:
- Customer will provide support for minor support questions involving user classification and setup for software administrators, loan officers, operations and production staff, management, real estate agent and settlement partners, and borrowers. Issues may include updating user photos, entering contact information, adding and removing users, and basic training on the technology.
- Company will serve as an escalation point for minor support issues when the Customer's support is unable to assist.
Company will handle the following:
- Troubleshooting data or functional problems that result from how the system is being used.
- Assisting local network technicians in evaluating connectivity and performance.
- Help with issues involving integrations.
- Reporting of a system issue (bugs or system not available).