HYLS Agreement

HIGH YIELD LENDING STRATEGY
HYLS UNDERWRITING GUIDE
TERMS OF USE

The following Terms of Use govern your use of the proprietary web-based HYLS Underwriting Guide (the “Guide”) accessed through and maintained on this web site (www.rexcuadvice.com) or such other web site as Lending Solutions Consulting, Inc. (“LSCI”) may operate from time to time (any such web site, the “Site”).  The Guide is owned by LSCI.  Please read the Terms of Use and if you agree to be legally bound by the Terms of Use and wish to use the Guide, click “I AGREE” at the end.  BY ACCESSING THE GUIDE, YOU (“Licensee”) ACCEPT AND AGREE TO BE BOUND BY THESE TERMS OF USE.  IF YOU DO NOT AGREE WITH THESE TERMS OF USE, CLICK “I DO NOT AGREE” AND YOU WILL NOT BE PERMITTED TO ACCESS THE GUIDE

  1. License Granted.  Upon and subject to acceptance by Licensee of the Terms of Use, LSCI hereby grants Licensee and Licensee’s lending and underwriting personnel (each, an “Authorized User”) a non-exclusive, non-transferable and non-sublicensable license to use the Guide subject in each instance to the Subscription Agreement between Licensee and LSCI and these Terms of Use.  LSCI will issue Licensee a unique password (“Password”) to access the Guide through the Site.  Licensee acknowledges and agrees that LSCI has and will retain all right, title, interest and ownership in and to the Site and the Guide, including, but not limited to, any trademarks, copyrights, patents and trade secrets with respect thereto or contained therein.
  2. License Fees.  In consideration for the License granted to Licensee, Licensee agrees to pay the License Fees specified in the Subscription Agreement, as they may be modified from time to time as provided in Section 13 hereof.  Licensee acknowledges that charges for use of the Guide will be imposed on a per-calculation basis and agrees to pay the charge for each calculation obtained through the Site using the Password.  Licensee shall also pay any sales, use, excise, personal property or other taxes of similar nature levied upon License Fees or Licensee’s use of the Guide (collectively, “Taxes”).  After an individual calculation is obtained from the Site, Licensee may view such calculation through the Site without additional charge for a period of thirty (30) days; however, if Licensee revises any data previously entered for an applicant and obtains a new calculation for the applicant, a License Fee shall be charged for such recalculation.  LSCI will issue monthly invoices to Licensee, which Licensee agrees to pay within forty-five (45) days of each invoice date.  If full payment is not received when due, LSCI may terminate the License and deactivate the Password without notice. 
  3. Use of Guide; Disclaimers.  The Guide is a judgmental system of credit analysis designed to be used as a supplemental tool to assist an Authorized User in considering various factors revealed in, or relating to, a loan application that may pertain to the likelihood of repayment.  The Guide uses only data relating to the applicant that is obtained and entered into the Site by the Authorized User, including the applicant’s credit score, and weighs the data using LSCI’s proprietary algorithm to render an opinion of how accurately the applicant’s credit score reflects the applicant’s creditworthiness.  Licensee acknowledges and agrees that:
    1. the Guide does NOT meet the definition of “an empirically derived, demonstrably and statistically sound credit scoring system” under Regulation B of the Equal Credit Opportunity Act (12 CFR Part 202) (“Regulation B”), and cannot be used or relied upon by Licensee as a “decision engine” to produce mechanically any decision to approve or deny credit or establish credit terms;
    2. Licensee is solely responsible for compliance with, and any disclosures required pursuant to, applicable federal, state or other laws and regulations, including, without limitation, the Equal Credit Opportunity Act and Regulation B, the Fair Credit Reporting Act, the Truth in Lending Act, relating to the conduct of Licensee’s business, the collection and handling of any borrower credit or other non-public information in connection with a credit application, and the making of any decision to extend or deny credit and establish the terms thereof (collectively, “Laws”);
    3. Licensee shall ensure that every Authorized User is trained on the proper use of the Guide including the limitations on its use pursuant to these Terms of Use and applicable Laws;
    4. the usefulness of the calculation and commentary generated by the Guide requires accurate information to be input; Licensee is solely responsible for obtaining and entering accurate base data, including without limitation, the applicant’s income and credit score;
    5. Licensee is solely responsible for complying with any contractual and/or legal obligations it may have to credit bureaus and credit score provider(s) with respect to obtaining and using credit score information;
    6. LSCI does not warrant or represent that the functions contained in the Guide will meet Licensee’s requirements or that access to the Site and/or operation of the Guide will be uninterrupted or error free.  All warranties relating to the Guide or the operation or use thereof, express or implied, are hereby disclaimed and excluded, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose or non-infringement;
    7. Licensee is solely responsible for its use of the results obtained from the Guide and the credit decisions it makes made with respect to its applicants and borrowers; and
    8. the result produced by the Guide is only an opinion and is not represented to be an accurate predictor of an applicant’s creditworthiness.  Licensee acknowledges and agrees that the Guide is only one of a combination of resources that should be used in considering the credit application of a potential borrower and that all decisions made by Licensee to extend or deny credit and establish the terms of credit are made at the sole risk of Licensee.
  4. Restrictions on Use.  Licensee shall not rent, lease, distribute or make available the Password, the Guide, or the Guide generated calculations to any person other than an Authorized User, including without limitation any borrower, for any purpose.  Licensee shall not reverse engineer or decompile the Guide.  Licensee shall be responsible for any use of the Guide by any person to whom Licensee makes its Password available.  Licensee will use the Guide for Licensee’s internal business purposes only, and will keep all calculations received in strict confidence except as required by law.
  5. Training.  Licensee is responsible for ensuring that all Authorized Users receive LSCI’s web-based training in the use of the Guide and the Site.
  6. Password and Licensee Security Obligations.  Licensee is responsible for notifying LSCI if Licensee needs a new Password for any reason.  Licensee shall:
  7. permit only Authorized Users to have access to the Password;
  8. be solely responsible for all access to the Guide using Licensee’s Password and payment of all License Fees and Taxes due in connection therewith;
  9. adopt and enforce such internal policies, procedures and monitoring mechanisms as are necessary or prudent to ensure that the Password and Guide are used only in accordance with these Terms of Use and the requirements of Laws;
  10. provide such assistance to LSCI as is requested by LSCI in the investigation of any unauthorized use or disclosure and any enforcement proceedings in connection therewith.
  11. Data Availability.  Data entered by Licensee for a prospective borrower will be retrievable for thirty (30) days and may be reprinted by Licensee without additional charge, provided no additional calculations are requested. 
  12. Access and Support.  Licensee is solely responsible for connectivity and for the cost of any hardware required to support access to the Site and use of the Guide. 
  13. Termination.  Either party may terminate Licensee’s use of the Guide without cause at any time.  Termination shall not relieve Licensee of any obligation to pay License Fees or other obligations accrued prior to the effective date of termination.
  14. Licensee agrees to indemnify, defend and hold LSCI harmless from any expense or damage arising or resulting from Licensee’s breach of these Terms of Use.
  15. Licensee hereby releases LSCI, its officers, employees, agents, affiliated companies and any third party contractors and suppliers from liability for any damages, losses, costs or expenses, whether direct or indirect, suffered or incurred by Licensee in connection with any credit transaction entered into by Licensee or any denial of credit by Licensee.
  16. Licensee hereby releases LSCI and its agents, employees, and independent contractors from liability for any loss or damage, including any special, indirect, incidental or exemplary damages and consequential damages including, but not limited to, loss of anticipated profits or economic loss, even if LSCI has been advised of the possibility of such loss or damage, in connection with or arising out of Licensee’s use of the Guide, or the interruption or loss of any service provided through the Site.
  17. Indemnity and Release; Limitation of Liability.
  18. Compliance with Laws.  Licensee agrees to comply with all Laws relating to its access to and use of credit information, and will not use the Site or the Guide for any illegal, improper or discriminatory purpose.  Licensee acknowledges and agrees that Licensee remains at all times solely responsible for any required validation of the basis on which its credit decisions are made.
  19. Notices.  Licensee will address any written notice to LSCI to 2200 Point Boulevard, Suite 110, Elgin, Illinois 60123, or another address designated in writing by LSCI to Licensee.  LSCI will address any written notice to Licensee to Licensee’s address listed on the signature page of the Subscription Agreement. 
  20. Agreement and Amendment.  These Terms of Use, together with the Subscription Agreement, are effective upon acceptance by Licensee through its access of the Site, supersede all prior agreements relating to the Guide, and constitute the entire agreement between Licensee and LSCI.  There are no written or oral understandings that are not fully expressed in these Terms of Use and the Subscription Agreement.  License Fees, and these Terms of Use, are subject to change by LSCI on thirty (30) days’ written notice to Licensee, which may be delivered by electronic mail or by posting on the Site.
  21. Enforcement.  These Terms of Use shall be governed by the laws of the State of Illinois without regard to choice of law principles.  The parties hereby agree to submit to the exclusive personal jurisdiction of state and federal courts situated in Cook County, Illinois with respect to any dispute arising under or in relation to this Agreement, and agree that such dispute shall be tried by the court sitting without a jury, hereby WAIVING ANY RIGHT TO TRIAL BY JURY.  The prevailing party in any such action shall be entitled to recover its costs and attorneys’ fees incurred in such action.

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