By utilizing the LoanDocSolutions service and accepting documents from LoanDocSolutions, each LoanDocSolutions Client (and each Lender and named assignee for which Client orders documents) shall be bound by and deemed to have agreed to all of the following LoanDocSolutions Terms and Conditions. Please read and consider the LoanDocSolutions Terms and Conditions carefully, since agreement to the LoanDocSolutions Terms and Conditions is a condition to the use of the LoanDocSolutions service and entitlement to receive and use any documents prepared by LoanDocSolutions.
A. Terms; Pricing. The term "LDS" means LoanDocSolutions, a California corporation, and its successors and assigns. The term "Client" means an LDS client using the LDS website and/or their Client Website to obtain loan document preparation services from LDS, and its successors and assigns. The term "Lender" includes Client (for any document prepared by LDS in which Client is named as a lender) as well as any other person or entity named as a lender in any document prepared by LDS at the request of Client, and any of their successors and assigns. Unless otherwise provided in any written contract between LDS and Client, LDS may change its loan document package pricing or other pricing at any time. Only new loan document orders (other than GoDocs® orders) are counted in determining eligibility for quantity discounts — redraw, single document orders, legal service requests and modification/assumption document orders are not counted.
B. Payment of Custom Setup Charges. Setup charges, if any, are due and payable at the time setup is ordered and such payment shall be a condition precedent to commencement of setup work.
C. Payment of Document Preparation Charges. LDS generates an invoice soon after each document order is submitted, which shall be transmitted electronically to Client. LDS fees are incurred at the time each order is submitted (regardless of whether an order is thereafter cancelled before documents are completed), are nonrefundable and are not contingent upon the loan closing (we require payment regardless of whether the loan has closed). If any of Client's invoices remain unpaid for more than thirty days, then (i) Client agrees to pay a late charge of ten percent of the invoice amount, and (ii) LDS may deny access to Client's password protected access on its web server ("Client's Website") and refuse further document orders. In the event any check received by LDS is dishonored for any reason, or in the event there are insufficient funds in the designated account to cover any authorized debit, then, without limiting any other charges or remedies, Client shall pay to LDS a processing fee of $100.00 for each such event. Invoice Clients: For banks, credit unions and other clients that LDS has agreed in writing not to require advance payment ("Invoice Clients"), all document preparation invoices are due and payable upon receipt and delinquent if not paid within thirty days. LDS may, in its discretion, convert any Invoice Client to a Credit Card Client upon notice to such Client. Credit Card Clients: Clients other than Invoice Clients ("Credit Card Clients") will be required to pay for each loan document order upon receipt of the invoice by means of credit or debit card (Visa, MasterCard or American Express), confirmed ACH deposit or cashier's check. Document orders submitted by Credit Card Clients are not considered to be submitted for turnaround purposes until payment is received and confirmed.
D. Additional Setup. If any additional document templates or other setup items are requested by Client in the future, then LDS shall charge its standard setup charges then in effect, or such other charges as LDS may quote for non-standard setup items. All bills for additional setup items requested by Client shall be due and payable upon receipt and delinquent if not paid within thirty days.
E. Software License. During the term of Client's contract, LDS hereby grants to Client a nonexclusive license to use the software developed and owned by LDS and used to provide Client's Website. The form of Client's Website shall be in the same form as the LDS Sample Website as initially previewed to Client (customized for Client's loan programs), and as such Client's Website may be further customized, enhanced and developed by LDS during the term of Client's contract. Such license is for the nonexclusive use of the software as provided on Client's Website only and does not include any rights to source code or to download or install the software on any other computer or in any other location. Client acknowledges that the concept, implementation, html code, script code, databases, data tables, web design, templates and related software pertaining to Client's Website and the provision of LDS services are the exclusive property of LDS and Client agrees that it shall not (whether during or after the term of Client's contract) appropriate, duplicate, reverse-engineer, emulate, alter or reuse any of said property except as expressly permitted by these Terms and Conditions. The software license granted to Client shall terminate upon the termination of Client's contract.
F. Prohibition Against Unauthorized Use of Documents. LDS is a service company and does not sell its documents or document templates for re-use by clients, lenders, their attorneys or any other party. LDS retains sole ownership of all automated document templates and does not release the actual encoded templates to its clients or otherwise (even if the template was prepared based on Client-supplied language or based on a Fannie Mae, Freddie Mac or other form). Aside from our entitlement to a fair fee for our intellectual property, our templates are complex, and it would be legally perilous to "cut and paste" from any individual document in order to use the document on a transaction other than that for which it was specifically prepared. To protect ourselves against unauthorized use, Client and Lender agree that neither Client nor any Lender, assignee, attorney, agent or affiliate of Client or Lender shall, either during or after the term of Client's contract, use any documents prepared by LDS (or any language contained therein) as a basis for preparing other documents or loan document packages. Nevertheless, if Client or any Lender, attorney, agent or affiliate of Client or Lender ever uses any document(s) prepared by LDS as a basis to prepare other documents or loan document packages without our authorization and in violation of such prohibition, then (without limiting any other remedies of LDS) Client and Lender agree to pay upon demand an unauthorized use fee of for each document or loan document package that uses any LDS document in violation of such prohibition. The unauthorized use fee for each document or loan document package shall be the greater of: (a) $5,000.00; or (b) five times the fee that LDS would have charged for the document or loan document package in question if the document or loan document package had been ordered on a Rush priority basis. Neither Client nor Lender shall release, distribute, forward or circulate any editable version (e.g. Word file or unprotected PDF) of any LDS document (other than to Client's legal counsel who has first agreed in writing to be bound by these Terms and Conditions, and a copy of which writing shall have been provided to LDS). Client and Lender shall be liable for any unauthorized use of LDS documents resulting from any violation of the preceding sentence, including unauthorized use fees as set forth in this paragraph.
G. Maintenance of Client's Website. LDS shall maintain Client's Website during the term of Client's contract. Client's Website is for use in connection with Client's and Lender's lending transactions, and Client shall request logins to Client's Website only to such employees, agents, lenders and attorneys who have a need to access Client's Website in connection with Client's lending transactions ("Permitted Users"). Client shall notify LDS in writing of all Permitted Users that Client wishes to be granted login rights to Client's Website. LDS shall immediately implement any password changes as may be requested a Permitted User. LDS shall have the right to disable access to Client's Website if no document orders are submitted by Client for a period of one year. Client shall be solely responsible to notify LDS in writing when Client wishes to revoke access rights of any of Client's Permitted Users (such as, for example, when a Permitted User's employment with Client is terminated). Permitted Users are required to reaffirm Client's agreement to these Terms and Conditions when submitting each document order, and Client represents and warrants that each of Client's Permitted Users have full authority to do so. Client acknowledges and agrees that LDS may delete Client's data records that are more than 180 days old and may further delete Client's data records upon the termination of Client's contract.
H. Client's Approval of Templates; Proof Documents. At the conclusion of the setup process, for each document template included in the setup order, LDS may prepare one or more "proof documents" for Client's review and approval. If requested by Client, the proof documents may be specially prepared proofs, but otherwise the first document transmitted to Client for each document type (or the first new variation of a previously prepared document type) shall be considered to be the proof document for that document type or new variation thereof. In either case, all proof documents shall be deemed approved by Client and Lender unless or until Client notifies LDS in writing (by email or fax) of any comments or corrections, in which case LDS and Client shall agree upon the exact changes to the template and LDS may generate a new proof document for Client's review and approval (if no specially prepared proof documents are so generated then the first document transmitted to Client after such changes shall be considered the proof document). As before, the new proof documents shall be deemed approved by Client and Lender unless or until Client notifies LDS in writing (by email or fax) of any comments or corrections, in which case the above process shall be repeated. Client's failure to notify LDS of any comments or corrections to proof documents or any document package that contains substantive deviations not previously approved shall conclusively be deemed to constitute Client's and Lender's approval of the proof documents and the underlying document templates. Client and Lender agree that LDS shall have no concern, liability or responsibility with respect to any legal deficiency, unenforceability, error, inconsistency, ambiguity, damage or loss which is, directly or indirectly, related to: (a) any changes or additions to or deviations from LDS standard document provisions requested by Client (including any such changes, additions or deviations reflected in any approved proof document as described in paragraph H of these Terms and Conditions), or (b) any custom or client-supplied) document or language furnished to Lender for inclusion in Client's document packages.
I. Standard Priority Service. LDS works on a daily cycle with a Cutoff Time of 1:00 p.m. Pacific Time on Business Days. Orders received after the Cutoff Time (or on Non-Business Days) will be processed with the following day's orders, and will be treated as having been received the following Business Day. For orders received before the Cutoff Time, LDS will use commercially reasonable efforts to complete standard priority orders by the Cutoff Time the next Business Day for typical orders. Modification documents, assumption documents, and especially complex transactions typically require at least one additional business day. Business Days include most days that both national banks and the New York Stock Exchange are open for business. Business Days exclude days (which days shall be posted in advance on the LDS website) in which LDS is closed for employee training, continuing education, hardware upgrades, software upgrades and/or company events. Next Business Day service can only be provided in cases where LDS has previously set up all of the document templates required for the loan document package and there are no special instructions or transaction terms requiring custom drafting. Allow at least three (3) Business Days to set up new document templates. For both Standard Priority and Rush Priority orders, LDS cannot be responsible for possible delays resulting from hardware failures, network difficulties, unscheduled employee absences, unusually heavy order volume, natural disasters, and other causes beyond the reasonable control of LDS. Although LDS meets or exceeds its turnaround goals on the vast majority of loan document orders, these turnaround goals are not an absolute guaranty. Accordingly, LDS will not be responsible for delays that may occasionally occur on both Standard Priority and Rush orders, nor shall the fees due LDS be adjusted in such instances. If timing is especially critical on a particular order, please contact LDS by telephone to inform us of this fact and obtain a time estimate for completion of the documents.
J. Rush Priority Service. Client may request Rush Priority Service if Client desires faster turnaround than our Standard Priority Service, and LDS will often be able to accommodate such requests. If Client anticipates needing Rush Priority Service, Client should notify LDS as far as possible in advance and obtain from LDS an estimated turnaround goal. The likelihood of LDS being able to comply with Rush Priority Service requests increases when LDS receives advance notice of desired Rush orders. In cases where LDS has previously set up all of the document templates required for the loan document package and there are no special instructions requiring custom drafting, Rush Priority orders can frequently be completed and transmitted to Client in as little as four LDS Business Hours. “LDS Business Hours” are 7:30 a.m. to 4:00 p.m. Pacific Time on Business Days. Although LDS meets its turnaround goals for the vast majority of Rush Priority orders, these turnaround goals are not an absolute guaranty.
K. Data Entry; Preparation of Documents. Client shall be solely responsible for the entry of data into Client's Website and for proofing such data prior to submitting document orders. LDS shall use commercially reasonable efforts to prepare documents accurately using Client's data and the templates approved by Client. LDS disclaims any legal responsibility or liability for failing to recognize or notify Client of or to correct any errors in Client's data entry. All loan terms, including without limitation loan amounts, payment amounts, interest rates, dates, names, signatory titles, legal descriptions, and loan documentation options, will be used in the documents exactly as entered by Client except for corrections or changes made according to Client's instructions or with Client's consent. Without limiting the foregoing, Client shall be solely responsible for determining and entering the signing parties and entities for each loan transaction, as well as their respective capacities and titles. LDS shall have no responsibility or liability in connection with the authority of signers or any consents or approvals that may be required under the entity documents of any signing entities or under applicable laws.
L. CommercialDocs®; ApartmentDocs®; InvestorDocssm LDS represents that it has exercised reasonable care and diligence in the preparation of CommercialDocs®, ApartmentDocs® and InvestorDocs® document templates. Without limiting the foregoing, LDS has exercised reasonable care and diligence to incorporate appropriate state-by-state variations into the core loan document templates (promissory notes, and security instruments [mortgages and deeds of trust]) so that the security instruments prepared by LDS are legally sufficient to create a lien or security interest securing the indebtedness evidenced by the promissory note, in connection with a typical loan secured by commercial real property, non-owner occupied residential real property and/or business assets, in which the proceeds of the loan will be used solely for business purposes and not for any personal or household purposes of any individual borrower or guarantor, or any equity owner of any entity borrower or guarantor, assuming accurate data entry and proper recordation of the mortgage or deed of trust and/or filing of financing statements. While LDS does not guaranty that every provision of every document will be enforceable, LDS will continue to exercise reasonable care and diligence to maintain the CommercialDocs® ApartmentDocs® and InvestorDocs® document templates during the term hereof and to incorporate such changes as LDS deems appropriate from time-to-time in order to respond to any changes in applicable state law. LDS shall promptly incorporate any updates or changes to the CommercialDocs® ApartmentDocs® and InvestorDocs® document templates into Client's loan document packages as such updates or changes are made during the term of Client's contract.
M. Fannie Mae Multifamily Documents. LDS represents that it shall use reasonable care to prepare Fannie Mae multifamily loan documents ordered by Client according to the current applicable Fannie Mae forms utilizing the loan data entered by Client. LDS shall use reasonable care to update its templates to reflect any changes to the Fannie Mae multifamily loan document forms so that the documents prepared by LDS are in conformity with the current Fannie Mae language for each applicable Fannie Mae form as of the date that the documents are prepared (or variations of such language approved by Fannie Mae or specified by Client).
N. Business Purpose Loans. LDS documents are intended for use solely in transactions which are secured by commercial real properties and non-owner occupied residential properties in which the proceeds of the loan will be used solely for business purposes and not for any personal or household purposes of any individual borrower or guarantor, or any equity owner of any entity borrower or guarantor. In the event, at Client’s or any Lender’s request, LDS prepares any document or document package for any loan (i) the proceeds of which will not be used solely for business purposes, or (ii) which is to be secured by any residential property consisting of less than five units (less than seven units in New York, New Jersey and Illinois) that is or will be occupied by any individual borrower or guarantor, or any equity owner of any entity borrower or guarantor, then Client and Lender acknowledge and agree: (a) that any such documents or document package shall be considered as drafts only; (b) that Client or Lender shall engage competent legal counsel familiar with applicable federal and state laws and regulations to review, revise and supplement the draft documents prepared by LDS as necessary to assure legal compliance and provide all necessary disclosures; and (c) that LDS shall have no responsibility or liability for any legal deficiencies or any noncompliance with any applicable laws or regulations in connection with such documents or the related transaction.
O. Custom (Client-Supplied) Documents. LDS represents that it shall use reasonable care to prepare each loan document that utilizes custom templates based on Client-supplied or Lender-supplied forms or language, utilizing the loan data entered by Client. Client shall be solely responsible for supplying LDS with any desired updates to any Client-supplied or Lender-supplied forms or language.
P. GoDocs® Service. LDS may offer GoDocs® expedited turnaround and discounted pricing to certain clients for recurring, standardized transactions. GoDocs® service is available only for limited transaction types and requires custom programming and maintenance of a minimum order volume. The availability, pricing, initial custom programming costs, transaction parameters, minimum order volume and other terms applicable for GoDocs® service shall be determined by LDS on a case-by-case basis for each client. Pricing, terms and availability of GoDocs® service is subject to change at any time at the discretion of LDS. GoDocs® orders do not count toward determination of quantity discounts.
Q. Disclaimers; Limitations on Liability. To the fullest extent allowed by law LDS disclaims any warranties or liabilities other than those expressly set forth in these Terms and Conditions. Accordingly, Client agrees that LDS shall have no liability in connection with the provision of its services and software except as expressly set forth in Client's contract. LDS is not a law firm and does not practice law or render legal advice or services. Client represents and agrees that it will obtain a lender's policy of title insurance insuring its lien in each and every loan transaction and that the title insurer shall have primary liability in the event of any matter covered by such title insurance policy. Client and Lender agree that LDS shall have no concern, liability or responsibility with respect to Client's or any Lender's compliance or non-compliance generally or in any transaction with: (i) any usury laws, high-cost or high-risk mortgage laws or other laws regulating the amount of interest, prepayment premiums, late charges or other charges that may be lawfully collected; (ii) any legal, licensing or regulatory restrictions, registrations or qualification requirements applicable to Client's lending business, or to any Lender, investor or borrower in any transaction; (iii) any RESPA, truth-in-lending or other consumer protection laws applicable to consumer transactions; or (iv) any state "unauthorized practice of law" statutes or other statutes requiring that local legal counsel be retained in connection with the final preparation of loan documents. Client and Lender agree that LDS shall have no concern, liability or responsibility with respect to any legal deficiency, unenforceability, error, inconsistency, ambiguity, damage or loss which is, directly or indirectly, related to: (a) any changes or additions to or deviations from LDS standard document provisions requested by Client (including any such changes, additions or deviations reflected in any approved proof document as described in paragraph H of these Terms and Conditions), or (b) any custom or client-supplied document or language furnished by Client or any Lender for inclusion in Client’s or such Lender’s document packages. Client and Lender agree to indemnify and hold harmless LDS from any loss, damage, expense or liability, including attorneys' fees and costs, incurred by LDS as a result of or relating to the matters described in clauses (a) and (b) of the preceding sentence. Client shall be responsible to retain local counsel as required by the laws of the jurisdiction where the security property is located in order to finalize any documents which, under the laws of the property jurisdiction, must be prepared by legal counsel licensed in the property jurisdiction, and any such documents prepared by LDS shall be considered as drafts only, to be reviewed, revised and supplemented as necessary by legal counsel licensed in the property jurisdiction. Client represents that all loans for which loan document preparation orders are submitted shall be for solely for commercial, business or corporate purposes and not for personal or consumer purposes. In no event shall LDS have any liability for any cost, damages, losses or liability for any errors or omissions on the part of LDS unless and until Client has exhausted all remedies against the borrower, any guarantors, the title insurer and/or any other parties that may be liable for such matters, and until Client thereafter obtains a final, non-appealable judgment against LDS for any remaining deficiency expressly found by the court to have been caused solely due to an error or omission of LDS. LDS shall have no liability in connection with missing or inaccurate data entry by Client or in connection with changes made to documents after preparation by LDS. All LDS loan document packages contain documents and/or provisions requiring the borrower to correct any clerical and other errors in the documents. LDS shall have no liability for any clerical or other errors in loan documents unless and until Client has exhausted all possible efforts to obtain a correction of any such errors pursuant to the terms of such documents and/or provisions requiring the borrower to correct any clerical and other errors. Such efforts shall include without limitation, declaring a default and instituting the default rate of interest if the borrower fails to execute correction document(s) within the time required by the loan documents. All of LDS services and software are provided pursuant to these standard Terms and Conditions, as such standard Terms and Conditions may be revised from time-to-time. The current version of these LDS standard Terms and Conditions shall at all times be available at www.loandocsolutions.net/terms. In no event shall LDS be liable to Client or any person for any incidental, indirect, special or consequential damages, including without limitation, loss of profits, loss of data, or any and all other similar damages or loss, even if LDS has been advised of the possibility of such damages. In no event shall LDS's total liability to Client or any other person exceed the total amount of fees paid by Client to LDS for the documents or services from which such liability arises.
R. Terms of Contract. The term "Client's contract" as used herein shall mean these Terms and Conditions, as modified from time to time, each of which Client shall be deemed to have agreed to, accepted and reaffirmed whenever Client submits a document order, together with the terms of any separate written contract between LDS and Client. Unless otherwise specified in any separate written contract between LDS and Client, Client is under no obligation to order any minimum number of document packages. LDS reserves the right to terminate Client's contract or discontinue services previously offered to Client, with or without cause, upon thirty (30) days prior written notice to Client. Any changes to these Terms and Conditions shall be effective and applicable to Client (and any Lender for which Client orders documents) commencing on the date that the changed Terms and Conditions are posted at www.loandocsolutions.net/terms. Termination of Client's contract for any reason shall only terminate Client's access to Client's Website and ability to order documents from LDS, but otherwise all terms, conditions, covenants, obligations and agreements of the Client, Lender and LDS shall survive such termination, and shall continue to govern all documents and services provided prior to termination.
S. Agreement by Lenders Other than Client. Prior to ordering any documents in which a Lender other than Client is to be named as a lender or as an assignee of the lender(s) named in the loan documents, Client shall inform the Lender or assignee of the LDS Terms and Conditions, and obtain such Lender's or assignee's written agreement to the LDS Terms and Conditions. As a condition to preparation and/or release of documents naming any Lender or assignee other than Client, LDS may require a written acknowledgment and agreement to the LDS Terms and Conditions from such Lender or assignee, in such form as LDS may require. Failure of LDS to require such written acknowledgment and agreement shall not relieve Client of its obligation to obtain such written acknowledgment and agreement from each Lender or assignee for which Client orders documents, nor relieve any such Lender or assignee from any term or provision contained in the LDS Terms and Conditions. Client shall indemnify and hold LDS harmless from any loss, expense or liability, including attorneys' fees, in connection with any claim by any Lender or assignee other than Client that has not agreed in writing to the LDS Terms and Conditions.
T. Governing Law; Jurisdiction and Venue Client's contract shall be governed by the laws of the State of California. Client consents to the jurisdiction and venue of the state and/or federal courts located in Orange County, California for any dispute relating to Client's contract or the services provided to Client by LDS.
U. Dispute Resolution. The following procedures shall be adhered to in any disagreement (“Dispute”) that arises out of or relating to Client’s contract, or the breach thereof, or the services provided to Client or any Lender by LDS, prior to the escalation of a Dispute to arbitration. In the event of a Dispute, either party shall notify the other party in writing of the nature of the Dispute with as much detail as possible. Client and/or the applicable Lender and a designated LDS representative shall confer, in person or by telephone, within ten (10) Business Days of the date of notification for the purpose of negotiating a resolution of the Dispute and, if applicable, determining the corrective action to be taken by the respective parties. If the parties are unable to resolve the Dispute or to agree upon the appropriate corrective action to be taken within twenty (20) Business Days of such meeting, or if any of the completion dates in the corrective action plan are later exceeded, then either party may initiate arbitration proceedings.
V. Arbitration. Unless the parties mutually agree otherwise, any controversy or claim arising out of or relating to Client's contract, or the breach thereof, or the services provided to Client or any Lender by LDS, which is not resolved pursuant to paragraph U of these Terms and Conditions, shall be resolved by arbitration in accordance with American Arbitration Association's then-prevailing Commercial Arbitration Rules with Expedited Procedures, as modified by Client's contract. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration and venue for any legal action, arbitration or alternative dispute resolution regarding Client's contract or the services provided to Client by LDS shall be in Orange County, California, or at such other place as may be selected by mutual agreement. The provisions of this arbitration clause shall survive the termination or expiration of this Agreement.
W. Attorney's Fees. In the event of any claim, controversy or action relating to Client's contract or the provision of services hereunder, the prevailing party shall be entitled to its reasonable attorney's fees and costs in an amount to be determined by the court.
X. Miscellaneous. These Terms and Conditions, together with any written contract between Client and LDS, represent the whole and only agreement with respect to the subject matters herein and supersede all prior agreements, oral and written. No amendment to Client's contract or these Terms and Conditions (except for changes to these Terms and Conditions made by LDS and posted on the LDS website as set forth herein) shall be valid or effective unless embodied in a written instrument signed by the party to be charged. All notices required or contemplated herein shall be sufficient and deemed delivered if in writing and deposited with the United States Postal Service, postage prepaid via certified mail, or sent via nationally recognized courier service with proof of delivery, addressed to LDS at 19700 Fairchild, Ste. 265, Irvine CA 92612, or to Client at the notice address initially provided to LDS, or to such other address as may be changed from time to time by notice duly given to LDS.
Y. WAIVER OF JURY TRIAL. CLIENT, LENDER AND LDS EACH (A) COVENANT AND AGREE NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS CONTRACT OR THE RELATIONSHIP BETWEEN THE PARTIES THAT IS TRIABLE OF RIGHT BY A JURY, AND (B) WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUES TO THE EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF OR THE OPPORTUNITY TO RETAIN COMPETENT LEGAL COUNSEL.