Terms

TERMS OF SERVICE

FOR EP MORTGAGE LEAD GENERATION SERVICE

Last update: May 25, 2018.

This Terms of Service, along with the Privacy Policy; and any Amendments, Exhibits, Rate Schedule(s), or Addenda (collectively, the "Agreement") is effective as of the date of ordering a Service on the EP Mortgage Services website or as of the date of signing of this Agreement, whichever earlier (“Effective Date”).  This Agreement is between EMPLOYEE POOLING, LLC, a limited liability company organized and existing under the laws of the State of Delaware (d/b/a EP MORTGAGE SERVICES and hereinafter referred to as “EP”), and You (a “Mortgage Firm”).  The parties hereinafter are each individually referred to as a “Party” and are referred to collectively as the “Parties”.

RECITALS:

  1. EP operates a business having its principal place of business at 2000 Glen Echo Road, Suite 111, Nashville, Tennessee, 37215, specializing in providing outsourcing services to the financial services, realty, and legal industries;
  2. The purpose of this agreement is an administrative services contract between the parties to replace work previously performed by Your employees. This agreement is not a replacement policy or additional coverage for errors and omissions for the parties or for third party claims.  Accordingly, EP is not acting as an insurer, guarantor, nor as an indemnitor for You except as hereinafter provided;
  3. You need administrative, management, and consulting services in connection with the operation of its business and EP has agreed to provide certain administrative, management, and consulting services to You on the terms and conditions set out herein; and

THEREFORE, in consideration of the mutual promises made in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, You and EP agree as follows:

TERMS:

  1. Definitions.

(a) “Services”: For the purposes of this Agreement and any Exhibits or attachments, “Services” shall mean: (i) mortgage marketing services (e.g., lead generation services); and (ii) any other administrative, customer support, or technical services that EP is generally known to provide in any of its divisions and/or is specified in this Agreement or any attachments and which specifically reference this Agreement and the incidental use of EP’s office equipment, facilities, and personnel in connection therewith.  However, Services shall not include any service or support of any kind related to mortgage loan processing services, unless any agreement is executed to the contrary and permitted by law.

(b) “Confidential Information”: For the purposes of this Agreement and any Exhibits or attachments, “Confidential Information” includes, but is not limited to, the Parties’ business practices and procedures; technologies; strategies; financial condition; the identity of and information relating to its customers, agents and clients, and the nature and extent of its business relationship with any of them; all computer systems, computer codes, software, data, and supporting technical information; documents; materials, including all source, object and running codes, any other computer codes; and all reports and materials in whole or in part developed by the Parties pursuant to this Agreement during the Term.  Confidential Information shall also include personally identifiable information (“PII”); i.e., any information that is used or could foreseeably be used on its own or with other information to identify, contact, or locate a specific individual.  Confidential information shall also include anything that is identified in the EP Privacy Policy as “Confidential Information” but is not already contained herein.

Confidential Information shall not include: (i) publicly available information in substantially the form in which it is publicly available; and (ii) information of a general non-proprietary nature acquired in a similar engagement with another company.

  1. Engagement. You engage EP to provide specialists to complete Services for the compensation described below in Section 5 (“Rates and Fees”).  EP is also engaged to consult with You from time to time on various business matters including, but not limited to, the implementation of administrative ideas and the improvement of administrative operations and any such services You request and provided by EP.  EP undertakes to provide the Services called for herein and to provide personnel including any other concern/firm/other organization anywhere in the world as decided by EP at its cost to fulfill this obligation.  Nothing in this Agreement shall prevent either Party from utilizing authorized agents or subcontractor(s) as necessary to perform the obligations in this Agreement, unless restricted by law.  Unless any agreement is executed to the contrary, You acknowledge and understand that EP shall not and does not act in any way as a mortgage loan originator or underwriter, or to perform any work related to these positions.  EP will also not assist or provide support for mortgage loan processing services under this Agreement.  You shall manage Your own loan mortgage processing services under this Agreement.
  2. Term. The “Term” of this Agreement shall commence as of the date that EP begins any Service (the “Start Date”) and then continue for 12 months.  Thereafter, the Term shall automatically renew and continue for a subsequent 12 months.  Terms shall automatically be renewed and continue thereafter until terminated by EP and/or You as provided in Section 7 (“Termination”) below.
  3. Exclusivity and Extent of Service. You acknowledge and agree that EP shall not be restricted from engaging with other person(s) or entity(s) and providing similar or other Services, advice, consultation, and assistance to, or from making investments in, other businesses or enterprises; provided, however, such other engagements and investments do not unreasonably interfere with the Parties’ material performance of any Services under this Agreement on a timely basis.
  4. Rates and Fees.

(a)        General Rates and Fees.  You will know the exact rate that will be used before service begins.  Except as otherwise stated in this Agreement or in this Section, the rates or prices that You are expected to pay shall be published on the EP website.

(b)        Process Changes.  EP will expect You to make process changes, and changes to the processes are expected as the Parties learn how best to work together.  Cost of the Services provided may change, plus or minus, but must be mutually agreed upon by the Parties.

(c)        Additional Fees.  Upon agreement and from time to time, You shall pay additional fees and charges as may be mutually agreed by and between the Parties in writing for extraordinary services or assistance which are outside the scope of Services to be provided to You under this Agreement.

  1. Method of Payment & Expenses. You shall compensate EP for Services rendered in accordance with the terms set forth herein upon receipt of the invoice and no later than 21 days after receipt of the invoice, the “Grace Period”.  Except with respect to amounts disputed in good faith, if payment is not received by the end of the Grace Period, a late notice will be generated and a late fee of the greater of $30 or 1% of the amount due will be added to the amount due.  You and EP shall each be responsible for paying their own expenses of conducting their respective business operations and for maintaining their respective offices.
  2. Termination. Once the Term starts, either Party may terminate this Agreement with fifteen (15) days’ advance written notice to the other Party by e-mail or mail.  The 15-day notice in this Section shall commence upon the date of sending or mailing such notice.  Once the 15-day notice expires, payment for Services delivered shall be settled between the Parties.  After payments are settled, neither Party shall have any further obligation hereunder other than obligations that by their nature should survive this Agreement and those stated in Section 25 (“Survival”).  You shall have the option to immediately stop all further disclosures of Confidential Information to EP.  In the event of a breach, threatened breach or repudiation, either Party may terminate with written notice and payment will be only for services due.
  3. Software and Systems. EP understands, acknowledges, and agrees that it has and shall acquire no ownership interest in any computer systems, computer code, software, data, supporting technical information, documents, or materials created, licensed, belonging to, or developed or used by You in the operation of Your business and that all of the same are and shall remain Your sole and exclusive property.  All computer systems, computer codes, software, data, supporting technical information, documents, and materials, including all source, object and running codes, and any other computer codes, and all reports and materials in whole or in part developed by EP for You during the Term, if any, are and shall be deemed works made for hire and shall be Your sole and exclusive property;  EP hereby assigns and transfers to You all of EP’s ownership rights and copyrights in all such computer systems, computer codes, software, data, supporting technical information, documents, and materials, including all source, object and running codes, and any other computer codes, and all reports and materials developed in whole or in part by EP for You during the Term as may be developed for or in conjunction with You.  EP further agrees to execute any and all documents and take any acts reasonably requested by You to properly transfer any Your property to You.
  4. Confidential Information. The Parties agree that all Confidential Information pertaining to the prior, current, or contemplated business of either Party constitute valuable assets which are and shall remain confidential.  The Parties shall each hold all such Confidential Information in trust and confidence and shall not, except as required in fulfilling its duties hereunder or otherwise and except as otherwise permitted or required by applicable law, publish, disseminate, sell, or disclose any such information to any person or entity other than in the course of performing its obligations under this Agreement, either during the Term or thereafter or as otherwise provided by law, without the prior written consent of the other Party.

The Parties agree not to use any of such Confidential Information in competing with each other or any of the other's affiliates, or for any other purpose, during the Term or at any time thereafter, without prior written consent of the other party.  Each Party shall comply with all laws, rules, and regulations applicable to the Party in connection with information which amounts to PII.  Each Party shall not disclose PII to any party outside this Agreement, unless stated otherwise herein or unless required by law.  The Parties acknowledge the need to protect and secure such information that will be shared by both Parties in accordance with the applicable laws.

  1. Return or Destruction and Disposal of Personally Identifiable Information upon Termination. Upon the termination of this Agreement, unless otherwise directed by You, EP shall either return or destroy all PII received from You or created or received by EP on Your behalf in which EP maintains in any form.  EP shall not retain any copies of such PII unless necessary for EP to continue its proper management and administration or to carry out its legal responsibilities.  Notwithstanding the foregoing, in the event that EP determines that returning or destroying the PII is infeasible upon termination of this Agreement, EP shall provide to You notification of the condition that makes return or destruction infeasible.  To the extent that it is not feasible for EP to return or destroy such PII, the terms and provisions of this Agreement shall survive such termination or expiration and such PII shall be used or disclosed solely as permitted by law for so long as EP maintains such PII.

 

  1. Dispute Settlement. You and EP each agree that in the event of any dispute arising out of or relating to this Agreement, the Parties first shall attempt in good faith to resolve the dispute promptly by negotiation between executives who have authority to settle the controversy.  If the Parties are unable to resolve the dispute through executive negotiations, the parties shall pursue non-binding, confidential mediation.  Mediation shall take place in Davidson County, Nashville, Tennessee unless otherwise agreed upon in writing.  The mediator shall be mutually agreed upon by the Parties in advance of the mediation.  The cost of mediation shall be divided equally between the Parties.  If the Parties are unable to resolve the dispute in good faith through mediation or a mediator cannot be mutually agreed upon, then the Parties may proceed with litigation in accordance with Section 14 (“Remedies”) below.
  2. Governing Law; Choice of Forum. This Agreement shall be governed by, construed, and interpreted in accordance with the law of the State of Tennessee.  Any dispute arising hereunder shall be resolved in accordance with the law of Tennessee, excepting that body of law relating to conflicts of laws.  In any action relating to this Agreement, each of the Parties irrevocably consents to the exclusive jurisdiction and venue of the federal and state courts located in the State of Tennessee.
  3. Remedies. You and EP each agree that the remedy at law of the other Party for any actual or threatened breach of this Agreement may be inadequate and that the other, non-breaching Party in addition to monetary damages, may be entitled to specific performance hereof or injunctive relief or both, by temporary or permanent injunction or such other appropriate judicial remedy, writ or order as may be entered by a court of competent jurisdiction.  The Parties to this Agreement hereby waive their right to any trial by jury if there is any dispute arising out of or relating to this Agreement or transaction.
  4. Legal Fees and Costs. Except as set forth in Section 17 (“Indemnification; Hold Harmless”), in the event either Party finds it necessary to file suit to commence any action under this Agreement between the Parties, the Parties agree each Party shall be responsible for its own legal fees, costs, and attorneys’ fees.
  5. Limitation of Liability. In no event shall either party be liable to the other party or such other party’s successors or assigns for any special, incidental, punitive, or consequential damages, including, but not limited to, any loss of profits, whether or not the possibility of such damages were disclosed in advance or could have been reasonably foreseen and regardless whether such damages may arise out of or be related to this Agreement.
  6. Indemnification; Hold Harmless. You, and any person or entity claiming through You, by You, or on Your behalf, hereby covenants and agrees to defend, indemnify and hold harmless EP, its officers, directors, employees, agents, successors and assigns from and against any and all losses, injuries, damages, claims, demands, causes of action, costs and expenses (including reasonable legal fees, costs and expenses) (collectively, “Losses”), which may result from EP’s performance under this Agreement, except to the extent any of the foregoing involves or results from EP’s willful misconduct, criminal activity, gross negligence or material breach of this Agreement.  EP, and any person or entity claiming through it, by it, or on its behalf hereby covenants and agrees to defend, indemnify and hold harmless You, Your officers, directors, employees, agents, successors and assigns from and against any and all Losses which may result from Your performance under this Agreement, except to the extent any of the foregoing involves or results from Your willful misconduct, criminal activity, gross negligence or material breach of this Agreement, gross negligence or material breach of this Agreement.
  7. Entire Agreement; Merger. This Agreement constitutes the entire agreement between the Parties.  This Agreement shall be amended only by an instrument in writing executed by both the Parties.  All prior understandings, representations, agreements, and negotiations between the Parties relating to the subject matter herein are superseded by and merged into this Agreement, which alone fully and completely expresses the agreement of the Parties.  The Parties acknowledge that they are not relying upon any advertisement, brochure, rendering, information, representation, or promise of the other, if any, except as may be expressly set forth in this Agreement.
  8. Additional Amendments and Modifications. EP and You agree to amend this Agreement from time to time to better reflect changes to the law; new regulatory requirements; or improvements, enhancements, or changes to the Services.  If an update affects Your use of the Services or Your legal rights as a user of the Services, EP will notify You prior to the new effective date of the updated Terms of Service by sending an e-mail to the email address associated with Your account.  If You do not agree to the updates EP makes, You should cancel Your account before the updated Terms of Service become effective.  By continuing to use or access the Services after the update(s) come into effect, You agree to be bound by the revised Terms.
  9. Severability. The Agreement is collectively referred to and consists of this document, the “Terms of Service”; the Privacy Policy; and any jointly executed amendments, exhibits, rate schedules, or addenda.  In the event of inconsistency among these documents, precedence will be as follows: (a) Amendments or Addenda, (b) the Terms of Service, (c) the Privacy Policy, and (d) any Rate Schedule(s) and/or Exhibit(s).  Should any portion of this Agreement be declared void or unenforceable, that portion will be considered independent and severable from the remainder, the validity of which shall remain unaffected, provided that this provision shall not be applied so as to defeat the primary intent of the Parties.
  10. Benefits. This Agreement is entered into for the benefit of You and EP.  The Parties agree that the terms of this Agreement shall apply only to themselves and are not for the benefit of any third-party beneficiaries.  No other person, firm, or entity, other than those mentioned in this Agreement, is an intended beneficiary hereof.  This Agreement shall not be transferred or assigned, directly or indirectly, by either party without the prior written consent of the other.  For purposes of this Agreement, the Parties agree that any transfer or assignment of any equity ownership interest in a party shall constitute a prohibited transfer hereunder by such party.
  11. No Principal-Agent Relationship; No Prior Assignment. You and EP agree and expressly recognize that in performing the duties prescribed by this Agreement, the Parties are independent entities and are authorized to do and perform the acts and duties only as specifically set forth in this Agreement.  EP is acting as an independent contractor on Your behalf and is authorized to do and perform the acts and duties only as specifically set forth in this Agreement.  Nothing in this Agreement, nor the acts of the parties to this Agreement, shall be construed to create a principal-agent, joint-venture, or partnership relationship between You and EP.  EP and You shall each be responsible for paying their own expenses of conducting their respective business operations and for maintaining their respective offices. EP and You shall each be responsible for making such disclosures and handling its own fiduciary duties with respect to the customers that each serve.
  12. Representations. EP and You each represent to the other Party in respect to this Agreement, that all representations made by it pursuant to this Agreement are true and accurate.
  13. Headings. The headings used in this Agreement are for convenience of reference only and are not to affect the construction of or to be taken into consideration in interpreting this Agreement.
  14. Survival.   The provisions of Sections 9, 10, 11, 12, 13, 14, 15, 16, and 17 shall survive any expiration or termination of this Agreement.
  15. Contact Us.   For questions or concerns about this Terms of Service, please contact us:
Employee Pooling, LLC
2000 Glen Echo Road
Suite 111
Nashville, TN 37215

 

Attn: Matthew Johnson, Associate Counsel
# 615 610 5585 (ex 204)
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