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User Access Agreement

You are requesting access to a private computer system. This system is for authorized use only and user activities are monitored and recorded by company personnel. Unauthorized access to or use of this system is strictly prohibited and constitutes a violation of federal and state criminal and civil law and applicable international laws. Violators will be prosecuted to the fullest extent of the law. By accepting this agreement you certify that you have read and you understood these terms and that you are authorized to access and use the system.

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Nexgen Network Access Agreement

This Network Access Agreement (the “Agreement”) governs the terms of use by you (“User”) of the Latitude Platform offered by Nexgen Mortgage Solutions, LLC (“Nexgen”) described herein. Please read this Agreement and indicated your acceptance by clicking the “ACCEPT” button at the end of the Agreement. This Agreement is made between you as the user and Nexgen as the provider of the Latitude platform. You acknowledge and agree by registering as User, clicking the “ACCEPT” button and/or using the Latitude Platform (i) to be bound by all of the terms in this Agreement, and (ii) that this Agreement replaces and supersedes any previous agreement between you and Nexgen governing your use of the Latitude Platform

1. Definitions

1.1. “Confidential Information” means all information disclosed under this Agreement, including, but not limited to, propriety and confidential matters concerning either party’s current or proposed business operations, security and financial information, technical data, inventions, developments, research, borrower information, marketing strategies, business methods, information related to pricing, the terms and conditions of this Agreement, any “nonpublic personal information” as the terms is defined under Gramm-Leach-Bliley Act (15 U.S.C §6801-6809, and as may be amended), and other similar information gained in connection with this Agreement, as well as the software, technology, ideas, formulae, know how, documentation, procedure, algorithms and trade secrets embodied in the software, technical documentation, solution methodology, user manuals, and other deliverables, including any developments and adaptations to the software.

Confidential information shall not include information that:

(a) is available to the receiving party on a non-confidential basis prior to disclosure by the disclosing party;
(b) is rightfully received from a third party without restriction and without breach of this Agreement
(c) becomes generally available to the public other than as a result of disclosure by the receiving party or its representatives or agents
(d) is developed independently by the receiving party without references to the disclosing party’s Confidential Information; or
(E) is approved for release by prior written authorization of the disclosing party.

1.2. “Customer” means an entity authorized by Nexgen to purchase or use the Latitude Platform

1.3. “Data” means all Documents, programs, messages, and other information provided or transmitted on, through, or in connection with the Latitude Platform.

1.4. “Document” means all documents, programs, messages, and other information provided or transmitted on, through, or in connection with the Latitude Platform.

1.5. “GLB” means the Gramm-Leach-Bliley Act (15 U.S.C §6801-6809, and as may be amended)

1.6. “Order” means a Customer offer or request transmitted through the Latitude Platform for one of the User’s products or services that User may or may not accept.

1.7. “Representatives” means, with respect to Nexgen, its Affiliates, agents, employees, officers, directors and representatives (including, but not limited to, accountants, attorneys and financial advisors).

1.8. “Service(s)” means any product or services electronically transmitted by User to a Customer by means of the Latitude Platform.

1.9. “Latitude Platform” means the then current release of Nexgen’s communication network that facilitates the performance of real estate-related transactions, including documentation, software, related application and communication systems.

1.10. “Transaction” means the successful transmission of an Order to User and User’s provision of Services including, as applicable, the return transmission of any Document or Data to the Customer.

2. Term

2.1. The Term commences on the date when User clicks the “ACCEPT” button at the end of the Agreement. The Agreement will remain in effect until terminated by either party as described in section 12 below (“Term”).

3. Latitude Platform License & Services

3.1. During the Term of this Agreement, Nexgen grants to User a limited, non-exclusive, revocable, nontransferable right to access and use the Latitude Platform in order to process Transactions. Nexgen is not a party to any Transaction and its responsibilities hereunder are only as a facilitator of Transactions between User and Customers.

3.2. Nexgen is not responsible for the content of any products, Services, information or data transmitted through the Latitude Platform, and specifically disclaim any liability for the accuracy, appropriateness or authenticity of any document or Data.

3.3. Nexgen assumes no liability or responsibility for any issues or obligations arising between User and Customer with respect to any Services.

3.4. Nexgen may add or remove Services from the Latitude Platform in its sole and exclusive discretion and without notice to User.

4. Additional Responsibility of User

4.1. Access Code. Nexgen will allow User to create a unique, secure access code to enable User to access the Latitude Platform. User agrees to secure its access code, not share the access code with any others, and is solely responsible for the security, distribution and use of the Latitude Platforms under User’s access code. Nexgen shall have no responsibility for any activity, including without limitation, the ordering or receipt of Services, Data, or Documents, under User’s access code.

5. User Representations and Warranties

5.1. Adverse Actions. User shall take no intentional action that (a) damages or causes any malfunction to the Latitude Platform, or (b) reflects adversely on the goodwill or reputation of the Latitude Platform, Nexgen, or any of its affiliated companies. User will take all commercially reasonable actions to ensure that any information it transmits over the Latitude platform is true and correct.

5.2. Non-Infringement. User’s development and transmission of Data and/or Services shall not in any way constitute infringement or other violation of any copyright, trade secret, trade or service mark(s) (whether or not registered), patent, design right, proprietary information or any other intellectual property rights or other rights of any third person or entity.

5.3. Viruses. User shall use all reasonable efforts to ensure that each Service and all Data shall be transmitted free of all bugs, viruses, so-called “time bombs” or other functions, routines, devices or instructions designed or available to create any unauthorized access to, or interruption in the functioning, the Latitude Platform.

5.4. Compliance. All Data and each service provided by User, and the provision of technical assistance in connection with transmission of such, including User’s use, shall comply with all applicable Federal, state and local laws, rules, statutes, ordinances, and regulations promulgated there under, and shall conform in all material respects to the commonly accepted standards and practices in the computer, software, real estate, financial services and other relevant industries.

6. Representations and Warranties; Disclaimer

6.1. Nexgen represents and warrants to User the following is true and correct.

6.1.1. Warranty. The Latitude Platform meets industry standards and will be rendered in a workmanlike manner.

6.1.2. DISCLAIMER. EXCEPT AS SET OUT HEREIN, NEXGEN DOES NOT MAKE AND EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING THE LATITUDE PLATFORM OR USER’S USE THEREOF, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEXGEN SPECIFICALLY DOES NOT WARRANT THAT THE LATITUDE PLATFORM OR ANY COMPONENT THEREOF WILL (i) PERFORM WITHOUT INTERRUPTION OR ERROR, OR THAT ALL IRREGULARITIES, ERRORS, PROBLEMS OR DEFECTS WILL BE CORRECTED, (ii) MEET USER’S REQUIREMENTS, OR (iii) BE ACCESSIBLE FROM THE CONFIGURATION WHICH USER MAY SELECT.

7. Network Fees

7.1. Standard Fees. Unless otherwise agreed to by written agreement with Nexgen, the fees charged by Nexgen for User’s access to process individual order’s via the Latitude Platform are $27.50 for each refinance order and $37.50 for each purchase order. In addition, Users shall be responsible for all federal, state, and local taxes, if any, arising out of the use by User or its Customer of the Latitude Platform pursuant to this Agreement (whether payable by User, Customer, or Nexgen), other than taxes determined by Nexgen’s net income. Additional fee and other terms may apply in connection with new Services added to the Latitude Platform.

7.2. Nexgen shall invoice User on a monthly basis for the fees and expenses. User shall pay Nexgen the invoiced amount in full within 15 days of the receipt of invoice. For any amounts not received within 15 days of the appropriate invoice, Nexgen may levy interest on the balance overdue at a rate equal to the lesser of (a) the prime rate plus 4% per annum as announced from time to time in the Wall Street Journal or (b) the highest rate permitted by law, in each case, for the number of calendar days from the payment due date up to and including the date payment is actually made by User (calculated on the basis of the actually calendar days in the applicable calendar year).

7.3. Fees may be adjusted by Nexgen at its discretion. Nexgen shall provide parties 30 days’ notice of any fee change by publishing its fees on its website or by notifying parties via email or written notice.

8. Limitation of Liability

8.1. In no event shall Nexgen, or any of its Representatives, successors or assigns, be liable for any punitive, exemplary, incidental, indirect, consequential or special damages for loss of profits, interest, revenue, data or use, or interruption of business, incurred by User or any third person or entity, whether based upon contract, tort (including, without limitation, negligence, duty to warn and strict liability), warranty or any other legal or equitable grounds, even if Nexgen has been advised of a possibility of such damages. The total cumulative liability of Nexgen, or any of this third-party licensors and its Representatives, successors and assigns, to User or any third person or entity for any losses, shall not exceed $10,000.

9. Confidential Information

9.1. Each party agrees that the Confidential information of the other party will be used solely for carrying out the purpose of this Agreement.

10. Intellectual Property Rights

10.1. Nexgen. Nexgen retains all right, title and interest in and to all intellectual property rights embodies in the Latitude Platform and Nexgen proprietary information and technology used by Nexgen, or provided to User, in connection with the Services, including, without limitation, the Latitude Platform and any and all improvements, updates, and modifications thereto. Nexgen shall have the exclusive right to sell, lease, license or otherwise dispose of any such intellectual property rights which are not the property of User and will not affect Nexgen’s ability to provide the Latitude Platform and Services to User under this Agreement. Any writing or work of authorship, regardless of medium, created or developed by Nexgen, User, or any other party in connection with the Latitude Platform, Services, under this Agreement and any contribution by User or its employees to the enhancement or modification of the Latitude Platform or Services provided hereunder, including all copyright interests therein, shall not be considered “works for hire” but rather shall be owned solely and exclusively by Nexgen. To the extent that any such works may be considered “works for hire” under applicable law, User agrees to assign and, upon their creation, automatically assigns to Nexgen the ownership of all copyright interest therein including, but not limited to, all software, information, internet services, programs, and documentation without the necessity of any further consideration to User.

10.2. No patent, copyright, trademark or trade secret protected right, or technology or other proprietary right and/or all related documentation of Nexgen (collectively, the “Protected Property”) is licensed, granted or otherwise transferred to User, except for the limited right to benefit from the use of such Protected Property strictly in accordance with the terms of this Agreement.

10.3. User shall (i) never remove or destroy any copyright or other propriety marking placed upon, contained with, or used in connection with the Latitude Platform; (ii) never create or authorize new versions, modification, or enhancements or derivative works to, nor translate, reverse engineer, de-compile or disassemble, the Latitude Platform or any portion thereof; and (iii) never sub-license, in whole or in part, or grant a security interest in, or otherwise transfer rights to the Latitude Platform or any portion thereof.

11. Indemnification

11.1. By User. User shall defend, indemnify and hold harmless Nexgen and its Representatives, successors and assigns, as such, from and against any claims, actions, losses, damages or other liability that arise out of or result from any claim of any third person or entity relating to (i) any dispute or alleged dispute between User and any Customer or between User and a third person or entity relating to any material, product or service sold or distributed by user, including, without limitation, any Service, whether in connection with the Latitude Platform or otherwise; (ii)any breach by User of any covenant, representation or warranty set forth in this Agreement or otherwise; (iii) any irregularity, error, problem or defect occurring on the Latitude Platform which is caused by User; (iv)any defamatory or illegal, or allegedly defamatory or illegal, material transmitted across the Latitude Platform by User (or any person or entity that gains access to the Latitude Platform through User pursuant to this Agreement or otherwise); or (v) a violation of Section 10. User shall also indemnify Nexgen against any violations of any laws, rules or regulations in User’s use of the Latitude Platform.

12. Termination

12.1. This Agreement may be terminated by either party for convenience upon 30 days’ prior written notice of its intent to terminate

12.2. In the event of a User breach of this Agreement, Nexgen, may, upon notice to User (in addition to the other rights or remedies Nexgen may have under this Agreement, at law in equity or otherwise): (i) suspend User’s access to the Latitude Platform, together with any other Services being provided to User, until such time that such circumstance is corrected (provided Nexgen shall not be prohibited from terminating this Agreement after suspending access); or (ii) terminate this Agreement.

12.3. In addition to the termination rights in sections 12.1 and 12.2, Nexgen may, without notice to User, automatically deactivate User’s access code following 90 days of inactivity on User’s account. Subject to sections 12.1 and 12.2, User may contact Nexgen to request reactivation of User’s access code in such event.

13. Changes to Terms

13.1. Changes. Nexgen reserves the right to change, amend or modify any terms and conditions of use without notice to User. Any such change, modification or amendment shall be effective immediately upon posting by Nexgen. User agrees to periodically review such changes, modification and amendments online. By accessing and continued use of the Latitude Platform, User agrees to be bound and abide by the then-current terms and conditions of use.

14. General

14.1. Injunctive Relief. User acknowledges that User’s breach of any of the provisions of this Agreement is likely to cause irreparable injury to Nexgen for which Nexgen will have no adequate remedy at law.

14.2. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements, written or oral, with respect thereto.

14.3. Assignment. User may not assign its rights nor delegate its duties under this Agreement without Nexgen’s prior written consent. Written consent may be given only at Nexgen’s sole discretion. Any purported assignment or attempt to assign, without Nexgen’s written consent shall be null and void.

14.4. No Wavier. No waiver of any provisions of this Agreement and no consent to any breach or default under this Agreement shall be effective unless the same is in writing and signed by the party against whom such wavier or consent is claimed. No wavier of any of the provisions of this Agreement shall be deemed to be a waiver of other provisions of this Agreement, and a wavier at any time of the provisions of this Agreement shall not be construed as a wavier at any subsequent time of the same provisions.

14.5. Severability. If any term of this Agreement is held to be invalid or unenforceable, this Agreement shall be construed without such invalid or unenforceable term.

14.6. Survival. The rights and obligations of the parties which by their nature must survive termination or expiration of this Agreement in order to achieve its fundamental purposes including, without limitation, the provisions concerning representations and warranties, limitation of liability, confidentiality, ownership, indemnification and this section shall survive any termination of this Agreement.

14.7. Governing Law. This Agreement shall be constructed in accordance with the internal laws, and not the law of conflicts, of the State of Rhode Island applicable to agreements made and to be performed in such state.

14.8. In the event of any dispute or disagreement between the parties hereto either with respect to (a) the interpretation of any provision of this Agreement, (b) the performance of either party of its duties hereunder, the matter shall be settled by binding arbitration before a single arbitrator in Newport, Rhode Island and in accordance with the rules of the American Arbitration Association (“AAA”). Judgment of any resulting aware may be entered into by any court having jurisdiction over the partier or their respective property. The arbitrator shall decide any issues submitted in accordance with the provisions and commercial purpose of this Agreement, provided that all substantive questions of law shall be determine in accordance with the state and Federal laws applicable in Rhode Island, without regard to internal principles relating to conflict of laws.

14.9. Force Majeure. No party shall be liable for any failure of performance hereunder caused by factors beyond its reasonable control, including without limitation acts of God, fire, explosion, vandalism, storm, war, riot, strike, or disturbance, or other similar catastrophes, man-made or natural.

14.10. Third Party Beneficiaries. The provisions of this Agreement are for the benefit of the parties and not for any other person or entity. Should any third party institute proceedings against the parties hereto, this Agreement shall not provide any such person or entity with any remedy, claim, liability, reimbursement, cause of action, or other right.

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