TERMS OF SERVICE
VERSION DATE: 3/21/2023
BY INDICATING YOUR ACCEPTANCE OF THESE TERMS OF SERVICE OR ACCESSING OR USING ANY SERVICE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, YOU MAY NOT USE ANY SERVICE. YOU AGREE THAT THESE TERMS OF SERVICE ARE ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.
IF YOU ARE USING ANY SERVICE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR OTHER ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THESE TERMS OF SERVICE, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO. THE RIGHTS GRANTED UNDER THESE TERMS OF SERVICE ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
These HaloPrograms Terms of Service (“Terms of Service”) are entered into by and between Continuity Programs, Inc. dba HaloPrograms (“HP”), a Michigan-based SaaS (Software as a Service) company, and the entity or person that has agreed to an Agreement (“Client” or “you”). These Terms of Service govern the use of and access to HP’s Services (defined below) by Client. By signing an Agreement or by accessing or using any Services that are offered subject to these Terms of Service, Client is agreeing to be bound by these Terms of Service. Please read them carefully.
HP provides customer relationship management (CRM), marketing, and related services (“Services”) for housing industry professionals including, but not limited to, realtors, real estate brokerages, real estate sales teams, home mortgage lenders, banks, credit unions, heating and cooling companies, contractors, and other fields. The Services include HP’s HaloPrograms CRM software-as-a-service offering (“HaloPrograms” or “CRM”) provided on a subscription basis (“Subscription”) and other optional services offered by HP for additional fees as set forth in the Agreement. Optional services offered by HP may include graphic design, direct mail marketing, and printing and mailing media services.
The Services to be provided by HP will be specified in a HP written agreement signed by both Client and HP that specifies the pricing and any commercial terms for use of the HP Services, and that references these Terms of Service (“Agreement” and, together with these Terms of Service, the “Contract”). These Terms of Service are incorporated into and are part of each Agreement.
Eligibility and Access
Client is eligible to receive the Services, provided that Client is, if an individual, of legal age to form a binding contract and is not a person barred from receiving Services under the laws of the United States or other applicable jurisdiction. In order to access certain Services, Client may be required to provide current, accurate identification, contact, and other information as part of the registration process or continued use of the Services.
User IDs and Passwords
Client is responsible for maintaining the confidentiality of its user IDs, account passwords, and other authentication credentials, and is responsible for any and all activities that occur under Client’s account or using Client’s user IDs, passwords or other authentication credentials. Client agrees to immediately notify HP of any unauthorized use of Client’s user IDs, passwords, or account or any other breach of security or if any user who has access to a user ID, password, or other authentication credentials, is no longer permitted to access and use the Services on behalf of Client. HP cannot and will not be liable for any loss or damage arising from Client’s failure to provide HP with accurate information or to keep Client’s user ID and password secure.
Use of Client Trademarks and Branding
Client grants to HP a nonexclusive, royalty-free, nontransferable license to reproduce, use, transmit and display Client’s company name and logo and any other Client designated trademarks, service marks and logos as necessary for HP to provide the Services in accordance with the terms of the Contract.
Client agrees to allow HP to discreetly display HP’s logo indicating that the Services are “Powered By” HP on the direct mail, email, and other work product produced as part of the Services.
Client Content and Data
Client shall provide to HP all information, data, text, email, listings, graphics, photos, videos, music, sound, logos, messages, and other materials necessary for HP to provide the Services (“Content”), including the following information regarding Client’s customers: loan officer name, customer name, borrower type, customer address, customer city, customer state, customer zip code, customer email address, and customer birth date, and could also consist of loan amount, loan rate, monthly payment, terms, loan program, loan type, closing date, mortgage insurance company, mortgage insurance policy, customer phone number, referral partners, referral partner’s contact information, loan number, loan to value, credit scores, current balance, current average balance, checking, savings, and other banking services (“Client Data”). Client is responsible for uploading all Content into the CRM in an electronic format and ensuring that it is legible and decipherable. Illegible or incomplete customer names may not be input or processed until HP receives legible and complete information from Client.
Client owns the Content that Client submits, posts, or displays on or through the CRM or other Services. Client agrees that it is responsible for any Content that it uploads, posts, creates, emails, transmits, or displays via the CRM or while using the Services. Client is responsible for updating HP regarding all Content changes, including customers unsubscribing from Client’s email campaigns, Client changes, Loan Officer changes, and Client Data changes in relation to fulfilling the Services. HP does not control the Content posted via the CRM and, as such, does not guarantee the accuracy, integrity or quality of the Content. Under no circumstances will HP be liable in any way for any Content, including for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content via the CRM.
Client represents and warrants that all Content it discloses or delivers to HP for use under the Contract is the property of Client, or that Client has the rights to disclose or deliver the Content to HP for use and distribution in the direct mail, email and other Services, and that the Content does not infringe any patent, copyright, trademark, trade secret or other right of a third party and will not contain any content or materials which are obscene, threatening, malicious, which violate any applicable law or regulation, or which otherwise expose HP to civil or criminal liability. For all Content, Client will, at its cost and expense, secure any necessary authorizations, licenses or consents from owners of intellectual property rights in the Content to allow such content to be integrated into, copied, distributed, and publicly performed in the direct mail, email, and other work product produced as part of the Services. HP reserves the right but shall have no obligation, to pre-screen, flag, filter, refuse, modify or move any Content available via the Services. Client hereby grants to HP a non-exclusive, worldwide, royalty-free license for the term of the Contract to modify, adapt, translate, display, reproduce, distribute, and otherwise use the Content to provide the Services to Client and to respond to support related issues. In addition, Client agrees that HP may generate and derive usage, statistical, and other data and information from the Content and use of the Services, and HP has the right to make such data and information available to third parties provided that the data and information does not incorporate any identifiable information or identify Client.
By using the Services, Client acknowledges and agrees that HP may access, preserve, and disclose Client’s account information and any Content associated with that account if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to: (a) satisfy any applicable law, regulation, legal process or enforceable governmental request, (b) enforce the Contract, including investigation of potential violations thereof, (c) detect, prevent, or otherwise address fraud, security or technical issues (including, without limitation, the filtering of spam), or (d) protect against imminent harm to the rights, property or safety of HP, its users or the public as required or permitted by law.
Client shall not provide to HP, or post to the CRM, any Prohibited Information. “Prohibited Information” includes (i) any sensitive personally identifiable information, including social security numbers, driver’s license number, government-issued identification number, and customer payment card or other financial number, (ii) protected health information, as defined in 45 C.F.R. § 160.103; or (iii) any information relating to an identified or identifiable natural person who is a resident of the European Economic Area (namely the European Union Member States along with Iceland, Liechtenstein and Norway) covered under the General Data Protection Regulation 2016/679 of the European Parliaments as updated from time to time. Client agrees that HP has no liability under the Contract for Prohibited Information received from Client, notwithstanding anything to the contrary herein.
To the extent that any Content posted to the CRM or otherwise provided by Client to HP includes any Personal Information (as defined by the California Consumer Privacy Act of 2018 (“CCPA”)) about a California resident, HP is acting as a service provider on behalf of Client and agrees that HP will not: (a) retain, use, or disclose the Personal Information except as permitted in the Contract and under the CCPA; or (b) sell the Personal Information.
If Client co-markets listings with other mortgage, title or real estate agents, Client attests that it has full right and privilege to use and supply the content in the co-marketing project. If Client co-markets HVAC equipment and services with a distributor or manufacturer through a co-op marketing program, Client attests that it has full right and privilege to use and supply the content in the co-marketing project.
Customer support is provided by live chat, email, phone, and the HP Help Center during HP’s standard business hours listed on the HP’s support page. General support questions or issues related to errors in, or the improper functioning of, the services are provided at no cost by HP. All other requests for training, customization, and other services will be billed based upon then current HP pricing.
Client understands that Client uses the Services at Client’s own risk. Client agrees that Client is responsible for Client’s own conduct and for any consequences thereof. Client agrees to use the Services only for purposes that are legal, proper, and in accordance with the Contract. Client agrees that Client will not engage in any activity that interferes with or disrupts the Services or servers or networks connected to the Services.
Compliance with Applicable Laws
Client acknowledges and agrees that it is wholly responsible for compliance with all applicable laws and regulations in connection with its activities, use of the Services, and any Content provided to Client. Specifically, Client agrees to comply with all applicable laws and regulations, including but not limited to: the Telephone Consumer Protection Act of 1991, the FTC National Do-Not-Call Registry, the Real Estate Settlement Procedures Act (RESPA), the Dodd-Frank Bill, the S.A.F.E. Mortgage Licensing Act of 2008, the CANSPAM Act of 2003, and any state and local do-not-call, mail, solicit requirements. HP does not make any representation or warranty with respect to compliance with any applicable law or regulation for the Services provided or regarding any fees or payments made by or imposed on any co-marketer.
HP Privacy Statement
HP’s Privacy Statement may be viewed at https://www.haloprograms.com/legal/privacy-statement
Grant of Use
The Contract permits Client to use a single login, on a single domain name (URL). Each Subscription is a single service, for an individual user, or group of users for multiple user Subscriptions. The Contract requires that each user of the CRM be a subscriber, either individually, or as part of a group. A multi-user Subscription provides for a specified number of users to use the CRM at any time. This does not provide for concurrent use across multiple domain names (URL’s) unless specifically agreed upon and ordered as such at an additional cost above the normal Subscription fee. Each user of the CRM must be covered either individually, or as part of a group multi-user Subscription. The CRM is in use on a computer when it is accessed via web browser, a user logs in, or the software is hyperlinked from any source. The CRM may only be contained (whether built in or framed) within one primary domain name (URL), unless specifically agreed upon in the service agreement.
Client may use CRM for its internal business operations only and not by, or for the benefit of, any third party, nor may CRM be used for service bureau services.
Client acknowledges and agrees that all materials provided by HP through the Services, including information, documents, products, logos, graphics, sounds, images, reports, and services (the “Materials”), are provided by HP and contain proprietary and confidential information that is protected by applicable copyright, trademark and other intellectual and industrial property laws. Materials do not include Content provided by Client. Except as stated in the Contract, (i) none of the Materials may be used, copied, reproduced, accessed, distributed, republished, downloaded, displayed, posted, exported, transferred, assigned or transmitted in any form or by any means, including electronic, mechanical, photocopying, recording, or other means, without the prior express written permission of HP, and Client and anyone acting on Client's behalf shall not modify the Materials, create any derivative works of the Materials, or sell, grant access to, or sublicense the Materials, or any portion of the Materials, to any third party.
HP is the owner or licensee of, and shall have and retain all rights, title and interests, including all copyrights and other intellectual property rights, in and to the Services, any software code used in connection with the Services, and the Materials. All rights not expressly granted to Client in the Contract are reserved by HP, and Client may not use the Services or the Materials in any manner not expressly authorized by the Contract.
Except as expressly authorized by HP in the Contract, no rights are granted to do any of the following, and Client shall not, and shall not cause or allow anyone else, to do any of the following: (1) remove or destroy any proprietary rights marks or legends on or in the Services; (2) modify, enhance, adapt, or translate the Services; (3) transfer, distribute, assign, sublicense, rent, lease, export, loan, or sell the Services; (4) reverse engineer, decompile, disassemble, or derive source code or, or create derivative works based on, the Services or copy the Services; (5) use the Services in excess of or beyond the term of the Contract and other restrictions set forth in the Contract; or (6) 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 or other rights. No logo, graphic, sound or image from the Services may be copied or retransmitted unless expressly permitted by HP.
Subject to the terms of the Contract, Client agrees not to access the Services by any means other than through the interface that is provided by HP for use in accessing the Services except as specifically authorized in a separate written agreement. Except as expressly authorized by HP, Client agrees not to use, copy, imitate, or incorporate any trademark, service mark, certification mark, trade dress, company name, or product name in a way that is likely to cause confusion among consumers. Client also agrees not to remove, obscure, or alter HP or any third party’s copyright notice, trademarks, certification marks or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Services.
Client agrees to take all reasonable steps necessary to protect the Services and the Materials from unauthorized access, distribution, copying or use. Additionally, Client agrees to never use crawlers, rogue bots, site scrapers or any automated script/software or method that attempts to mine the listing content on Client’s own or any other accounts in the system. Client acknowledges that HP may block access to HP’s servers or membership, and if misuse is discovered, Client’s account will be immediately terminated without prior notice, and without refund of any payments made to HP.
MLS/LOS/Other Data Services
HP provides certain Services that are provided in part by third-party Multiple Listing Services (MLS), Loan Origination System (LOS), and data providers (“Third Party Providers”). Client’s use of such Services is subject to the terms and conditions set forth by each Third Party Provider. In most cases, Client must have an active contract or membership with the Third Party Provider in order to participate in MLS/ LOS/ data services provided by the Third Party Provider and HP. Client is also solely responsible for any fees charged by the Third Party Provider. HP and the Third Party Providers will provide Client with all necessary documentation, contracts, and fees required to participate in the Third Party Provider services. HP will cooperate with Client’s local Third Party Provider to comply with Client’s local Third Party Provider’s rules and regulations. HP is not responsible for the accuracy, completeness, functionality, usability, availability or merchantability of the Third Party Provider services provided by Third Party Providers. The use of Third Party Providers data services is strictly at Client’s own risk and there is no guarantee or implied warranties provided by HP.
Client hereby agrees as follows: (1) Client shall not use the Services for “spamming,” as determined by HP in its reasonable discretion; (2) Client shall keep secure any identification, password, and other confidential information relating to Client’s account and shall notify HP immediately of any known or suspected unauthorized use of the Services or breach of security, including loss, theft or unauthorized disclosure of passwords or other security information; (3) Client shall not use the Services for any unlawful purpose; (4) Client shall not engage in any other conduct that restricts or inhibits any other person from using or enjoying the Services, or which, in the judgment of HP, exposes HP or any of its customers or suppliers to any liability or detriment of any type; and (5) Client shall be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of the Services, and Client shall be responsible for all charges related thereto.
Texting and SMS Messaging Services
Users should limit daily texting to a maximum of 200 text per day to avoid being flagged as a spamming or phishing text message sender and to prevent the number from being “black-listed.” The initial message should clearly identify the user’s name, on behalf of the Client name, and that this is a dedicated number for business text messages to confirm contact is opting-in. Contacts and consumers have the right to STOP or UNSUBCRIBE from text messages, like email unsubscribe rights. If a user receives a STOP or UNSUBCRIBE reply to a text message, user must not respond in anyway; a message confirming that the consumer will no longer receive SMS message from this number is allowed if that is Client’s policy but not recommended by HP.
HP may automatically report version number or other diagnostic information and may automatically apply upgrades to update, enhance and further develop HP Services, including providing bug fixes, patches, enhanced functions, missing plug-ins and new versions.
General Practices Regarding Use and Storage
Client agrees that HP has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted by HP Services. HP reserves the right to establish or modify general practices and limits concerning use of the Services, including, without limitation, the maximum number of days that Content will be retained in any particular section of the Services, the maximum disk space that will be allotted on HP's servers on Client's behalf, and the maximum number of individual contacts (e.g., emails, telephone numbers, addresses, etc.) that may be uploaded into Client's CRM portal.
Modifications to Service
HP reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, HP Services (or any part thereof) with or without notice. Client agrees that HP shall not be liable to Client or to any third party for any modification, suspension, or discontinuance of the Services. Client agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by HP regarding future functionality or features.
Fees and Billing
Billing amounts and frequencies are as outlined in the Agreement. Once payments are collected, refunds are not available.
HP’s fees do not include any taxes. Client is responsible for paying all taxes associated with the Services (excluding taxes assessable against HP based on HP’s income, property and employees). If HP has the legal obligation to pay or collect taxes for which Client is responsible hereunder, HP will invoice Client and Client will pay that amount unless Client provides HP with a valid tax exemption certificate authorized by the appropriate taxing authority.
HP’s payment terms are Net 30 and Client agrees to pay HP according to such terms. HP has the right to discontinue, suspend, or cancel any and all portions of the Services without additional notice if Client has not timely paid its invoices due HP. If Client has lapsed on their payments due HP, in order for Services to resume, Client must pay HP for all overdue invoices. Once Client has paid in full, HP will re-commence the Services. Client may choose to inactivate any of their Client Data records from the marketing campaigns. Monies shall not be refunded or returned to Client upon an inactivation of their Client Data records.
If Client is using a credit card to pay for any HP Services, Client acknowledges that Client has the authority to enter into a credit card agreement and agree to pay for all charges from HP. In the event credit card charges are refused or rejected by Client’s credit card company, the Services may be disabled by HP without notice until remedied. Additionally, Client explicitly authorizes recurring and other charges to Client’s credit card for recurring Subscription Services and any optional Services.
HP reserves the right to pass through to Client any Third Party Provider data surcharge levied to HP as a vendor by Client’s Third Party Provider when the data feed fees incurred by HP exceed that deemed to be reasonable by HP, and HP alone, as compared with the national norm.
Non-usage of an account is not proof of termination of Service. Client is responsible for full payment on all accounts whether or not the account is ever utilized until such time as the account is terminated by appropriate notice.
HP reserves the right to increase or decrease the fees for the Services from time to time. Fee increases shall not exceed 20% (Twenty Percent) within a calendar year, excluding pass through costs such as postage. HP may give notice by means of a general notice on HP's web site, HP’s CRM, electronic mail to Client's contact person e-mail address on record in HP's Client information, or by written communication sent by first class mail to Client's address on record with HP's Client information.
The Services may provide, or third parties may provide, links to other World Wide Web sites or resources. HP may have no control over such sites and resources and Client acknowledges and agrees that HP is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. Client further acknowledges and agrees that HP shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods, or services available on or through any such site or resource.
HP reserves the right to publish new customer signups, positive feedback, and testimonials at HP’s corporate website and other public forums, such as news websites, blogs, and other industry-specific websites and social media. Client grants HP the right to use Client’s name and logo for promotional purposes, including on HP’s website and in HP’s press releases, publications, sales collateral, marketing materials, social media, and case studies. If Client does not want HP to quote Client’s positive experiences or announce Client’s use of HP’s Services Client must notify HP in advance. If notice is received after initial publication date, HP will remove any notices generated from these said announcements promptly. Client shall indemnify and hold harmless HP, its affiliated companies and third-party vendors against any and all claims, losses, damages, liabilities, costs, and expenses (including reasonable attorney fees) arising out of or relating to these announcements.
The parties acknowledge that, in the course of their dealings hereunder, each may acquire confidential information about the other. For the purpose of the Contract, “Confidential Information” means any information presented to the other party in any form or format, excluding information which has been publicly disclosed by either party, or which becomes generally known in the trade through no fault of the receiving party. Client agrees that the Services, the Materials, and the techniques used to create the reports, information, and other Materials sent to Client as part of the Services, as well as the pricing of the Services to Client, is Confidential Information. HP agrees that the Client’s customer list and Content is Confidential Information. Each party agrees not to disclose to any third party information disclosed to it by the other than as required to fulfill its obligations under or as permitted by the Contract, and agrees that it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance.
Client shall hold harmless and indemnify HP and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers, and partners (collectively “HP and Partners”) from and against all claims, suits, damages, losses, costs, and expenses (including reasonable attorney fees) arising from or in any way related to: (i) any inaccuracies, errors, and omissions in the Content submitted by Client or its officers, employees, or representatives; (ii) Client’s breach of the Contract; and (iii) any third party claim that the Content or other materials provided by Client infringe a third party’s patent, copyright, trademark, trade secret or other intellectual property right and/or violates a third party’s contract or other rights. In such a case, HP will provide Client with written notice of such claim, suit or action.
Limited Warranty and Disclaimer
HP warrants that for a period of 30 (thirty) days from the effective date of the Agreement (the “Warranty Period”) the Subscription Services will operate in substantial conformity with the applicable documentation. HP’s sole liability (and Client’s sole and exclusive remedy) for any breach of the foregoing warranty shall be, in HP’s sole discretion and at no charge to Client, to use commercially reasonable efforts to provide Client with an error correction or work-around that corrects the reported non-conformity. The limited warranty set forth in this Section shall not apply: (i) unless Client makes a claim within the Warranty Period, or (ii) if the error was caused by misuse, unauthorized modifications, or third-party hardware, software or services used by Client.
EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH ABOVE IN THIS SECTION, HP PROVIDES THE SERVICES AND DATA ON AN ‘AS IS’ BASIS WITH NO WARRANTIES, AND HEREBY DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, TRADE USAGE, OR TRADE PRACTICE. HP DOES NOT WARRANT THAT THE SERVICES OR DATA WILL MEET CLIENT’S REQUIREMENTS OR BE ERROR FREE OR OPERATE WITHOUT INTERRUPTION, THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF HP SERVICES WILL BE ACCURATE OR RELIABLE, THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CLIENT THROUGH THE SERVICES WILL MEET CLIENT’S EXPECTATIONS, OR THAT ANY ERRORS IN THE SERVICES WILL BE CORRECTED. HP DOES NOT WARRANT THAT CLIENTTRACKER CONTAINS ALL HOMES THAT HAVE BEEN ADVERTISED FOR SALE IN A PARTICULAR AREA, CONTAINS ALL NAMES OF CUSTOMERS THAT MAY HAVE HAD ADDRESS OR OTHER CHANGES, OR THAT ANY ERRORS REGARDING THE QUALITY OF DATA WILL BE CORRECTED. CLIENTTRACKER PURCHASE LEAD(S) ARE PROVIDED ON A NON-EXCLUSIVE BASIS TO CLIENT.
No advice or information, whether oral or written, obtained by Client from HP or through or from HP Services shall create any warranty not expressly stated in the terms.
Limitation of Liability
In no event shall HP be liable to Client in relation to the Contract or the Services, regardless of the form of action or theory of recovery, for any: (a) indirect, incidental, consequential, special, punitive or exemplary damages, regardless of whether HP has been made aware of their possibility; (b) lost profits, loss of data or business interruption losses; or (c) direct damages in an amount in excess of the fees paid by Client to HP under the Contract during the 12 (twelve) month period immediately prior to the occurrence of the event giving rise to the applicable claim. Any claims relating to the Contract shall be brought within 1 (one) year after the party asserting the claim knew, or reasonably should have known, of the existence of the claim.
Exclusions and Limitations
Nothing in the Contract is intended to exclude or limit any condition, warranty, right or liability, which may not be lawfully excluded or limited. Some jurisdictions do not allow the exclusion of certain warranties or conditions or the limitation or exclusion of liability for loss or damage caused by negligence, breach of contract or breach of implied terms, or incidental or consequential damages. Accordingly, only the above limitations, which are lawful in Client’s jurisdiction, will apply to Client and HP’s liability will be limited to the maximum extent permitted by law.
Failure or delay by either party to enforce compliance with any term or condition of the Contract shall not constitute a waiver of such term or condition. A waiver of any breach or default under the Contract shall not constitute a waiver of any subsequent breach or default.
If any term or provision of the Contract, or the application thereof, shall to any extent be invalid or unenforceable, and the intent of the parties hereto in entering into the Contract is not materially frustrated or negated thereby, the remainder of the Contract, or the application of such term or provision to circumstances other than those to which it is invalid or unenforceable, shall not be affected thereby, and shall be enforced to the full extent permitted by law.
No Third-Party Beneficiaries
Client agrees that, except as otherwise expressly provided in the Contract, there shall be no third party beneficiaries to the Contract.
Client agrees that HP may provide Client with notices, including those regarding changes to the Contract, by email, regular mail, or postings on HP websites.
The Contract may be terminated by either party for cause if the other party commits a material breach of the Contract and fails to cure such breach within 30 (thirty) days of its receipt of written notice of the breach from the non-breaching party.
Unless HP terminates the Contract for Client’s material breach, HP shall remain responsible for performing all additional customer retention mailings and emails (additional fee programs ordered) to the Client’s customers that were paid-in-full prior to the effective date of termination as long as the Client agrees to pay HP a monthly Subscription fee per Loan Officer in the amount indicated in the Subscription section of the Agreement. This Subscription fee is required before HP will continue to send paid-in-full campaigns after termination of the Contract.
All provisions of the Contract relating to confidentiality, ownership, indemnification, limitations of liability, and any other subject that would, by its nature, be deemed to survive termination of the Contract (whether or not so expressly stated), will survive the termination or non-renewal of the Contract.
These Terms of Service together with the Agreement and any documents expressly reference herein and therein constitute the entire agreement between Client and HP and govern Client’s use of the Services, superseding any prior agreements between Client and HP for the use of the Services. Client also may be subject to additional terms and conditions that may apply when Client uses or purchases certain other HP services, partner services, third-party content, or third-party software.
Changes to Terms of Service and Agreement
HP may change these Terms of Service. HP will inform Client of any such changes by posting the revised version(s) to its website at the same URL as the original version(s). Unless otherwise agreed by the parties, any such changes will take effect after HP has posted them to its website. Continued use of the Services after the effective date of the changes will constitute Client’s acceptance of the modified terms. Any other amendment or modification to the Contract must be in writing signed by both parties.
Nature of Relationship
The relationship between HP and Client is that of independent contractor. Nothing in the Contract shall be construed as creating a relationship between HP and Client of joint ventures, partners, employer-employee, or agent. Neither party has the authority to create any obligations for the other, or to bind the other to any representation or document.
Governing Law and Jurisdiction
The Contract is governed by the laws of the State of Michigan without regard to conflicts-of-law principles that would require the application of any other law. The parties consent to the exclusive jurisdiction of the appropriate federal court in the U.S. District Court for the Eastern District of Michigan, Southern Division or of the state courts in Oakland County, Michigan for any legal or equitable action or proceeding arising out of, or in connection with, the Contract. Each of HP and Client specifically waives any and all objections to venue in such courts.
Waiver of Jury Trial
HP and Client acknowledge that the right to trial by jury is a constitutional one, but that it may be waived. Each of HP and Client, after consulting (or having the opportunity to consult) with counsel of its choice, knowingly, voluntarily and intentionally waives any right to trial by jury in any action or other legal proceeding arising out of or relating to the Contract.
Client shall not assign the Contract, in whole or in part, without HP’s prior express written consent. Any attempted assignment without such consent shall be void. The Contract will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
Neither party shall be responsible or liable for any delay or failure in performing its obligations under the Contract if such delay or failure is the direct result of causes outside of that party’s reasonable control.
Execution and Counterparts
The Contract may be executed in one or more counterparts, and signatures of the parties transmitted by facsimile, PDF, or other electronic format shall be deemed to be original for all purposes. The Contract may be maintained as an electronic record, which shall be deemed an original, and the parties agree to conducting business by electronic records.
The section headings used in the Contract are for reference and convenience only and shall not enter into the interpretation hereof. Words of inclusion in the Contract shall not be construed as terms of limitation, so that references to included matters shall be regarded as non-exclusive, non-characterizing illustrations.