Terms of Use

In order to use the Services provided by OnGuard Lending, you represent that You:

• Are not misrepresenting your identity in any way, including but not limited to your name, contact information, licensing information, or affiliations.
• Will not upload invalid data, viruses, worms, malware, or other software applications and will not conduct any screen scraping or other automated activity in connection with your use of the Services and will maintain reasonable and appropriate cybersecurity and antivirus software on any device you use to access the Services.

In order to use the Services provided by OnGuard Lending, Lenders represent, in addition to all other representations in these Terms of Use, including those contained in the "User Representations" section, that You:

• Are adhering to all federal, state, local, and other jurisdictional laws and regulations regarding lending, licensing, advisory services, fair lending, fair housing, anti-money laundering, fair credit reporting, and any and all other applicable financial rules, regulations, and laws.
• Are adhering to all federal, state, local, and other jurisdictional laws and regulations regarding communications with individuals, including without limitation the Telephone Consumer Protection Act and related regulations and authority (the “TCPA”), the CAN-SPAMM Act, and/or any other federal, state, local and other jurisdictional laws and regulations governing the marketing, promotion, and/or sales of goods or services, including without limitation general consumer protection and privacy laws and regulations.
• Confirm that the content, trademarks, logos, testimonials, and other materials You submit to OnGuard Lending do not and shall not contain any content, materials, or advertising that is inaccurate or that infringes on or violates any intellectual property rights of any third party.
• Have in effect all licenses and authorizations required by all applicable authorities allowing You to offer loan products in the states in which You are doing business and using OnGuard Lending’s Services.
• Agree to allow OnGuard Lending to validate affiliations and licensing at any time.
• Agree to allow OnGuard Lending to display your contact information.
• Provide accurate mortgage terms and conditions while using all of the Services provided by OnGuard Lending. OnGuard Lending reserves the right to suspend or terminate your account for intentionally or unintentionally providing inaccurate or misleading information to any user of the site.
  
  reserves the right to suspend or terminate your account for misrepresenting yourself as a mortgage shopper.
• Will not use the services to submit mortgage quotes or bids to a mortgage shopper or to solicit application information from any mortgage shopper or prospective mortgage shopper other than through the protocols established from time to time by (and in the sole discretion of) OnGuard Lending for the conveyance of such information.
• Will not circumvent OnGuard Lending in any attempt to find and contact other users of OnGuard Lending service, including Lenders, Consumers, or Borrowers, except those that have chosen to contact you through OnGuard Lending Consumer Dashboard.
• Will respond quickly and clearly to any and all OnGuard Lending inquiries.

In order to use the Services provided by OnGuard Lending, Lenders shall retain copies of all documents relating to its transactions with consumers in accordance with applicable law. Lender acknowledges that OnGuard Lending may request a copy of these documents in connection with a regulatory examination, other request from a regulator (including any required annual report) or other governmental or regulatory requirement and in such event Lender shall provide OnGuard Lending with a copy of these documents, including, but not limited to, HUD-1s and GFEs (or Loan Estimate and Closing Disclosure), no later than ten (10) business days after OnGuard Lending makes a written request to Lender for such documents or such earlier timeframe as may be required by such regulator or requirement. Lender acknowledges that OnGuard Lending is under an obligation to produce loan documents for examination by its regulators, and that in the event Lender fails to produce such documents in a timely manner, OnGuard Lending may be subject to significant consequential damages. Therefore, Lender shall reimburse OnGuard Lending for all expenses associated with a failure by Lender to comply with these document maintenance and delivery requirements, in addition to paying a liquidated damages fee of fifty dollars ($50) per loan file that is requested and not timely delivered. Lender shall indemnify and hold OnGuard Lending harmless from any and all damages that may result from Lender’s failure to comply with this Section Lender Obligations.

Lender may not use the Services or Connections (defined below) for purposes of marketing or offering products and services other than those related to the Connection. Lender (i) shall not sell, transfer or otherwise disclose information to use and disclose Connection information only in accordance with applicable law; (iii) will not suggest or encourage consumers to contact OnGuard Lending for the purpose of having the consumer “cancel” their use of the Services and (iv) will not reveal any of OnGuard Lending’s pricing information to any third party without OnGuard Lending prior written consent. For purposes of clarity, all OnGuard Lending’s pricing information and App (defined below) design and experience is OnGuard Lending Confidential Information.

Each Lender applying to participate in the Services is required to submit certain personal and/or business information (“Lender Information”).

• Use of Information: OnGuard Lending may use Lender Information to determine, in OnGuard Lending’s sole discretion, whether to permit the Lender's participation in the Services. Lender agrees that OnGuard Lending may disclose Lender Information to third-parties who assist in license confirmations or other processes involved in the review of Lender Information.
• Warranty: Lender represents and warrants that all Lender Information, Submissions (as defined below) and other material provided by or on behalf of Lender to OnGuard Lending are, and will continue to be true, accurate, complete, and in compliance with applicable law. Additionally, Lender represents and warrants that Lender is in good standing with the jurisdiction where Lender may be licensed or, if applicable, organized and will remain in good standing in such jurisdiction so long as Lender participates in the Services.

OnGuard Lending’s technology and sites enable consumers to upload existing mortgage quotes (Loan Estimates) and shop them to find better deals across OnGuard Lending’s platform of approved Loan Professionals. Consumers may also provide personal information about their borrowing qualifications, preferences, and property information. OnGuard Lending analyzes and organizes uploaded documents and information provided by consumers to create packages of information for presentation to the Network (the “Offers”).

Lenders may join the Network by registering for an OnGuard Lending account with a maintained and updated in OnGuard Lending’s self-service interface via a private webpage (the “App”).

Once in the Network, Lenders may also access and review Offers and submit competitive pricing quotes (“Bids” or “Bidding”) to beat Offers in the App (the “Services”). Bids are presented to consumers on a custom webpage (“Dashboard”), and they may select Your Bid by clicking the button “Get This Offer” and then clicking the button “Connect Me” on a pop-up consent form. The consumer’s request and consent authorize OnGuard Lending to reveal the consumer’s contact details and connect the consumer with You to receive Your Bid (“Connections”). OnGuard Lending will create an email introduction for You and the consumer who chose Your Bid and present Lender Information to the consumer on their Dashboard for the Connection.

Lender agrees to promptly contact consumers when a Connection has been made through the Services. Any loan or other business conducted is between Lender and the consumer, and Lender is fully responsible for complying with all laws, rules, and regulations in connection with such business, including all obligations to provide consumers with relevant disclosures or any brochures. Consumers may provide ratings, reviews or other feedback with respect to Lender. Lender may not rate consumers or other lenders.

OnGuard Lending reserves the right to modify or terminate its Services at any time.

Lender Responsibility

Lender is solely responsible for its communication with and services for any consumer in connection with the Services. Lender agrees not to use the Services in any way that breaches OnGuard Lending’s Terms of Use. Lender agrees not to use the Services in any way that is unlawful, or harms OnGuard Lending, its service providers, suppliers or any consumer. Lender agrees to indemnify OnGuard Lending and its affiliates, and each of the foregoing’s officers, directors, employees, agents, and successors and assigns from and against any and all claims, demands, costs, actions, suits, liabilities, losses, settlements, judgments, expenses and damages (including attorneys' fees, costs, and expert witnesses' fees) arising out of or in connection with (i) the Lender's use of the Services or any part of the Services, (ii) violation of the Terms of Use, (iii) any loan, other business, or other communication by services provided by third parties with whom Lender has written or other agreements. Lender’s rights and responsibilities with respect to such third parties are governed by such agreements and applicable law, and any disputes directly or indirectly related to such agreements shall be between the Lender and the third party and shall not include OnGuard Lending or any of its affiliates, licensees or service providers. OnGuard Lending assumes no responsibility for any defect in a product or service provided by such third parties or breach of agreements between Lenders and such third parties.

Notwithstanding the foregoing, under no circumstances is OnGuard Lending obligated to provide instructions to, receive or store information or documentation transmitted by such third party service providers, or transmit data, documentation or other information to such third parties.

• Compliance with Laws: Lender will comply with all applicable federal and state laws, rules and regulations in all of its Submissions, its use of the Services and in any business operations conducted pursuant to these Terms of Use. The Lender shall ensure that the Lender and all of its employees, consultants, and business associates conducting business related to the Services are in compliance with all federal, state or other laws or regulations applicable to them in their professional capacities as mortgage bankers, mortgage brokers, mortgage professionals or any other regulated field or occupation, except as promptly disclosed, in writing, to OnGuard Lending. The Lender will only operate in, submit Bids in, and Connect with consumers from jurisdictions where the Lender is licensed or otherwise authorized to operate by applicable law. Each Lender will cooperate with OnGuard Lending to investigate or enforce these Terms of Use and applicable laws and regulations and with any inquiry or investigation by regulators or law enforcement officials related to the Services.
• Text Messages: To participate in the Services, Lender agrees to receive text messages that may be sent by OnGuard Lending, or a third party acting on behalf of OnGuard Lending, to any phone number provided by Lender. Lender is solely responsible for maintaining the appropriate wireless, cellular or other service necessary to receive text messages. OnGuard Lending shall have no responsibility or liability for any disruption to Lender’s wireless, cellular other service, or Lender’s ability to receive text messages. Standard text messaging charges applied by Lender’s wireless, cellular or other service carrier or provider may apply to text messages sent by OnGuard Lending.

or warranties regarding the validity or accuracy of Offer information or Connection details or creditworthiness of consumers. OnGuard Lending is not a lender, loan originator, loan processor, or underwriter. OnGuard Lending does not aid or assist consumers in obtaining loans, solicit consumers or Lenders for loans, offer or negotiate terms of loans, or make loans or credit decisions in connection with loans. OnGuard Lending does not take applications for credit or issue pre-qualification or pre-approval letters. Any submission of information through the Services, creation of an Offer, a Bid, or a Connection is not an application for credit and OnGuard Lending does not extend credit to consumers and does not attempt to fulfill any regulatory obligations, including notices or disclosures, which may be triggered by Lender’s receipt of or response Connections with consumers. OnGuard Lending does not endorse, refer or recommend any consumer, Lender or the products of any Lender. Nothing contained in the Services is an offer to lend or a commitment for a loan, and OnGuard Lending does not guarantee information provided by any consumer, any specific loan terms and conditions offered by a Lender, or that a consumer will be offered any type of loan by a Lender. OnGuard Lending is not an agent of either the consumer or Lender. OnGuard Lending is only providing an administrative service to consumers and Lenders. Decisions regarding Bids are made by Lenders and not OnGuard Lending. Decisions regarding Offers and Connections are made by consumers and not OnGuard Lending. OnGuard Lending assumes no responsibility for any result or consequence related directly or indirectly to any action or inaction that Lender takes based on the Services and any other information or other material on the Services. For the purposes of clarity, no provision of these Terms of Use shall be interpreted to require, and under no circumstances is OnGuard Lending required to, show all Offers to every Lender, deliver any minimum number of Connections to any Lender, at any time or present all Lender’s Bids to residents of every state or on any offer. OnGuard Lending will have full discretion with respect to which Offers and Bids are presented to consumers and Lenders in any particular jurisdiction at any time. OnGuard Lending’s obligations hereunder are limited to providing the OnGuard Lending Services.

• Licenses: OnGuard Lending, Inc. is a Delaware corporation, headquartered at 66 West Flagler Street, 9th Floor, Miami, FL 33130. OnGuard Lending’s Nationwide Mortgage Licensing System (NMLS) Identification Number is 2496069.
• Privacy: Through the Services, Lender may receive information relating to consumers which may be subject to state and federal laws and regulations pertaining to the privacy and disclosure of consumer and personal received through the Services for any purposes other than those specifically contemplated by these Terms of Use and shall not disclose any such information to any third party, other than to affiliates or service providers as necessary to effect the services contemplated by these Terms of Use or as required by law. Lender is solely responsible for ensuring that its affiliates and service providers maintain the privacy of consumer and personal information in accordance with these Terms of Use and applicable law.
• Security: At all times while Lender is a participant in the Services, and at all times thereafter while Lender may be in possession of information regarding consumers received through the Services, Lender shall maintain a written information security program designed to protect the confidentiality and integrity of any consumer information received through the Services. Lender will maintain at all times appropriate physical, technical, and administrative measures to protect all consumer information against accidental loss or unauthorized access, use, disclosure, acquisition, alteration, damage, or destruction. Lender is responsible for ensuring its compliance with these Terms of Use and applicable law when sharing consumer information with affiliates or service providers as permitted by these Terms of Use, and Lender shall ensure all that such third parties implement and maintain appropriate security safeguards.
• No Contact Information Outside of Permitted Locations: The Lender agrees not to provide contact information to OnGuard Lending consumers outside of the Services. For example, Lenders shall not include contact information in the "About" section of the Lender’s Information or in the “Notes” section of Bids in OnGuard Lending’s App.
• Fees Do Not Depend on Loan Application or Funding: OnGuard Lending does not receive loan applications, does not participate in any loan, and does not receive any fee that depends on which particular Lender a given consumer may choose to borrow from, whether an application is received, or whether a loan transaction is consummated.
• Free to Consumer: Use of the Services is free to consumers.
• Sharing of Lender Information: OnGuard Lending may provide Lender information in response to valid legal process, or to establish or exercise its legal rights or defend against legal claims. OnGuard Lending shall not be liable for any use or disclosure of such information by such third parties.
• Lender Account Information: To access and use certain areas or features of Services, Lender will need to register or create a OnGuard Lending account. Each promptly update, as necessary, Lender’s account information and Lender Information, (b) maintain the security of Lender’s account credentials, (c) be responsible for the acts or omissions of any third party who has authority to access or use Lender’s OnGuard Lending account on Lender’s behalf, and (d) immediately notify OnGuard Lending if Lender discovers or otherwise suspects any security breach related to Lender’s OnGuard Lending account. Lender also consents to receive electronic communication from OnGuard Lending of OnGuard Lending’s third-party service providers via email, notice posted on your OnGuard Lending account, text message, or any other method. These communications may include notices about your account (such as payment receipts or account change requests) and are part of your relationship with OnGuard Lending. Lender agrees that any notice, agreements, disclosures or other communications that OnGuard Lending sends will satisfy any legal communication requirements, including, but not limited to that such communications must be in writing. Lender should maintain copies of electronic communications from OnGuard Lending by printing a paper copy or saving an electronic copy.
• Disclosure to Lender’s Company or Employer: Lender agrees that OnGuard Lending may disclose information about Lender’s use of the Services (including, but not limited to, Monthly Budget and number of Connections received) to the company identified in the Lender Information or to any other subsequent company or employer associated with Lender.

When a Connection occurs after a consumer clicks “Get This Offer” and “Connect Me,” the Lender in the Connection that made the Bid will be charged. OnGuard Lending will automatically process a payment according to the Payment Plan detailed in the OnGuard Lending App. OnGuard Lending will use the credit card information provided by the Lender in the integrated Stripe Billing Portal for payments. Lender authorizes Finast to charge any of the credit cards provided to OnGuard Lending or in OnGuard Lending’s integrated Stripe Billing Portal and warrants that he/she is an authorized and lawful user of such credit card(s). OnGuard Lending uses Stripe to store your credit card information and billing details and to process payments. More information about Stripe’s Services can be found here: Stripe’s Services Agreement.

Lender agrees to pay in U.S. Dollars, using a valid credit card, all applicable fees and charges relating to OnGuard Lending’s Services and Connections according to the or suspend Lender’s payment obligations for any reason while using OnGuard Lending’s Services but may discontinue using OnGuard Lending’s Services at any time.

Lender is responsible for paying (i) all taxes and government charges, and (ii) reasonable expenses and attorneys’ fees OnGuard Lending incurs collecting unpaid amounts. To the fullest extent permitted by law, Lender waives all claims relating to charges based upon suspected click fraud (this waiver does not affect Lender’s credit card issuer rights). Lender acknowledges and agrees that any credit card and related billing payment information that the Lender provides to OnGuard Lending may be shared by OnGuard Lending with OnGuard Lending service providers, such as payment processors.

Notwithstanding the foregoing, prices, charges, and fees are subject to change at any time at OnGuard Lending’s sole discretion or in accordance with changes made by service providers or governments. OnGuard Lending will notify Lender by email of any pricing changes made by OnGuard Lending prior to the change. Upon such notification, Lender will be bound by any such pricing changes, regardless of Lender’s failure to review the then-current Payment Plan or to read or receive any such email for any reason.

Lender is responsible for updating Lender’s credit card and other payment information promptly to keep the account current, complete and accurate. This includes, but is not limited to, any changes to Lender’s credit card number, billing address and card expiration date. Lender can make changes and update credit card details in the Stripe Billing Portal by clicking “Manage Billing” in the Billing Information section of the OnGuard Lending App.

In the event that OnGuard Lending cannot charge Lender’s credit card or other payment method or a charge has been declined or failed, OnGuard Lending reserves the right to suspend or terminate Lender’s access to the Services and notify Lender of the failed payment. Lender authorizes OnGuard Lending to re-try one or more times any credit card associated with Lender’s account and Lender will have up to (3) business days after notification to provide OnGuard Lending with payment to reactivate Services. Failure to reconcile failed payments may result in permanent termination of Lender’s account and risks account being sent to collections.

consumers who contact the Lender through the Services. The Lender agrees otherwise not to reproduce, modify, distribute, decompile, disassemble or reverse engineer any portion of the Services.

In addition to and notwithstanding the foregoing, for so long as Lender maintains an account with OnGuard Lending, Lender grants OnGuard Lending an irrevocable, perpetual, worldwide license to use and publicize the trademarks, testimonials, trade names, service marks, logos, domain names, and other distinctive brand features of Lender in any medium or format whatsoever now existing or hereafter created for OnGuard Lending’s own advertising, publicity, promotion and other commercial and business purposes, without further consent from or royalty, payment or other compensation to Lender.

For any information submitted by or on behalf of a Lender or other materials, including without limitation Lender Information, any data, ads, artwork, copy, text, links, testimonials, video or photos and any other information, that the Lender provides to OnGuard Lending in connection with the Services (collectively, "Submission"), the Lender grants OnGuard Lending a royalty-free, irrevocable, perpetual, worldwide right and license to (a) use, copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, modify, and exploit the Submission in any form, media, software or technology of any kind and (b) sublicense these rights, to the maximum extent permitted by applicable law. OnGuard Lending will not pay the Lender in connection with any Submission or based on the number of Submissions.

OnGuard Lending may remove a Submission or any a part of a Submission at any time. For each Submission, the Lender represents and warrants that the Lender has all rights necessary to grant OnGuard Lending the rights in this paragraph and that the Submission complies with and will continue to comply with the Section “The Services – Compliance with Laws” above.

OnGuard Lending reserves the right to change these Terms of Use at any time in its sole discretion on a going-forward basis. OnGuard Lending will make commercially reasonable efforts to notify Lender of any material changes to these Terms of Use. Lender's continued use of the Services after the effective date of such changes will constitute acceptance of and agreement to any such changes. these Terms of Use. If the Lender does not agree with the updated Terms of Use,

OnGuard Lending has no obligation to refund Lender any amounts charged under any circumstances. If Lender is not satisfied with the Services, Lender may choose to discontinue any use of the Services, subject to any contractual obligation which Lender may have. These Terms of Use shall remain in effect until Lender terminates its participation in the Services or OnGuard Lending terminates Lender’s participation in the Services or discontinues the Services, whichever occurs first. Notwithstanding the foregoing, OnGuard Lending may interrupt or terminate a Lender’s participation in the Services or discontinue the Services at any time, for any reason or no reason at all.

The Services are the property of OnGuard Lending, and subject to the intellectual property rights of OnGuard Lending. 2021-2024 OnGuard Lending, Inc. All rights reserved.

OnGuard Lending PROVIDES THE SERVICES, APP, AND SITES "AS IS," "WITH ALL FAULTS" AND "AS AVAILABLE," AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE LENDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OnGuard Lending AND ITS SUPPLIERS MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED. OnGuard Lending AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY AND IMPLIED, INCLUDING WITHOUT LIMITATION (A) WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, ACCURACY, TITLE, QUIET ENJOYMENT, NO ENCUMBRANCES, NO LIENS AND NON-INFRINGEMENT, (B) WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE, AND (C) WARRANTIES OR CONDITIONS OF UNINTERRUPTED OR ERROR-FREE ACCESS OR USE.

Lender shall defend, indemnify and hold harmless OnGuard Lending and fees, expert costs and fees and reasonable attorneys’ fees) (collectively, “Losses”) resulting from a third-party claim, suit or investigation to the extent such Losses arise out of or are in connection with: (i) Lender’s breach of this Agreement, including without limitation any terms, covenants, warranties, or representations made within this Agreement; (ii) Lender’s violation of applicable law; (iii) infringement of intellectual property rights, contract rights or tort rights (including the right of publicity or right of privacy) of any third party; (iv) any act or omission of Lender including, without limitation, any acts or omissions relating to consumer privacy, applicable law, appropriate approvals and licenses; or (v) any negligent act or willful misconduct by Lender or Lender’s directors, officers, employees, agents or assigns; and Lender agrees to promptly pay and fully satisfy any and all Losses, incurred or sustained or reasonably likely to be incurred or sustained, by OnGuard Lending as a result of any claims of the types described in this Section Indemnification.

IN NO EVENT WILL OnGuard Lending OR ANY SUPPLIER BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF, BASED ON, OR RESULTING FROM THESE TERMS OF USE OR THE LENDER'S USE OF THE SERVICES, APP, OR SITES, EVEN OnGuard Lending HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS AND EXCLUSIONS APPLY WITHOUT REGARD TO WHETHER THE DAMAGES ARISE FROM (A) BREACH OF CONTRACT, (B) BREACH OF WARRANTY, (C) NEGLIGENCE, OR (D) ANY OTHER CAUSE OF ACTION, TO THE EXTENT SUCH EXCLUSION AND LIMITATIONS ARE NOT PROHIBITED BY APPLICABLE LAW. IN NO EVENT WILL THE AGGREGATE LIABILITY OF OnGuard Lending OR ANY SUPPLIER, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE SERVICES, THESE TERMS OF USE OR LENDER’S USE OF THIS SERVICES, APP OR SITES, EXCEED THE FEES PAID BY LENDER TO OnGuard Lending DURING THE THREE (3) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. These limitations shall apply to the fullest extent permitted by law.

“Recipient”) will receive in connection with this Agreement confidential information relating to the other party’s (the “Disclosing Party”) business, including but not limited to, information regarding the Disclosing Party’s products, services or offerings; planned marketing or promotion of the Disclosing Party’s products, services or offerings; the Disclosing Party’s business strategies, policies or practices; the Disclosing Party’s inventions, patents and patent applications, discoveries, ideas, concepts, software in various stages of development, designs, drawings, specifications, techniques, models, data, source code, object code, documentation, diagrams, flow charts, research, development, processes, procedures, “know-how,” trade secrets, any and all customer information, including without limitation, customer lists, customer names, addresses, property descriptions, credit information, and loan offer and approval information, and all other information related to customers, price lists and pricing policies; financial information, including budgets, forecasts, projections, operating results and financial statements; and information received from others that Disclosing Party is obligated to treat as confidential (collectively, “Confidential Information”). All pricing information, including, without limitation, the specific prices Lender pays, is OnGuard Lending Confidential Information. Except as otherwise set forth herein, each party agrees to protect and maintain the secrecy of the Disclosing Party’s Confidential Information by, among other things: (i) treating such information with at least the same standard of care and protection which such party accords its own confidential and proprietary information but in any event with no less than a reasonable degree of care; (ii) using care in the assignment of personnel who receive or have access to such information, and instructing and obtaining the prior written agreement of such personnel to take all reasonable precautions to prevent unauthorized use or disclosure thereof; and (iii) not using, disclosing or exploiting such information except as necessary to perform any services or obligations hereunder or as otherwise pre-authorized by the Disclosing Party in writing.

• Exceptions: Confidential Information does not include any information that the Recipient can demonstrate: (i) was in the public domain at the time it was received; (ii) enters the public domain through no fault of the Recipient; (iii) is independently developed by Recipient without use of or reference to the Disclosing Party’s Confidential Information; or (iv) is disclosed as required Information to a legal, judicial or governmental entity, or as required by the rules or orders of a court or governmental entity, provided that, before such disclosure, Recipient, if legally permissible, shall give reasonable advance written notice of such so that the Disclosing Party can seek a protective order or the appropriate protection for the Confidential Information and the Recipient uses reasonable efforts to have such information treated as confidential and under seal.
• Destruction of Confidential Information: Upon termination of this Agreement, and on written request of the Disclosing Party, the Recipient will promptly destroy, and provide satisfactory certification of such destruction, all tangible items containing the Disclosing Party’s Confidential Information; provided, however, that the Recipient shall be permitted to maintain a copy as required by Applicable Law, the record keeping requirements of any applicable authority and/or any internal compliance policies. Any Confidential Information retained pursuant to this Section shall remain subject to the confidentiality provisions contained in this Agreement for so long as it is retained by the Recipient.
• Injunctive Relief: Each party acknowledges that all of the Disclosing Party’s Confidential Information is owned solely by the Disclosing Party (or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury to the Disclosing Party, the degree of which would be difficult to ascertain. Accordingly, notwithstanding this Section, each party agrees that the Disclosing Party will have the right to seek an immediate injunction enjoining any breach or alleged breach of this Section, wherever it deems appropriate, as well as the right to pursue any and all other rights and remedies available at law or in equity in the event of such a breach or alleged breach.

Consumer Information

Lender understands that it may receive “Consumer Information” which may include, but is not limited to: a person’s name, address, e-mail address, social security number and telephone number. Lender will maintain such Consumer Information in accordance with this Section and in accordance with all applicable privacy laws, including the unauthorized action by a known or unknown person which, if successfully completed, would reasonably be considered one of the following: an attack, penetration, denial of service, disclosure of Confidential Information or Consumer Information, misuse of system access, unauthorized access or intrusion (hacking), virus intrusion, scan of Lender’s (or any third party vendor used by Lender) or OnGuard Lending’s systems or networks, or any other activity that could adversely affect Confidential Information or Consumer Information. Lender shall report to OnGuard Lending all known or suspected Electronic Incidents and shall provide the following information: (i) nature and impact of the Electronic Incident; (ii) actions already taken by Lender; (iii) Lender’s assessment of immediate risk; and (iv) corrective measures to be taken, an evaluation of alternatives and next steps. Lender shall continue providing appropriate status reports to OnGuard Lending regarding the resolution of the Electronic Incident and prevention of future such Electronic Incidents.

OnGuard Lending may require that a company’s accessing, processing or storing of Confidential Information or Consumer Information be suspended, connectivity with Lender be terminated, or other appropriate action be taken pending such resolution.

These Terms of Use are governed by the laws of the State of Arizona, without giving effect to its conflict of law provisions. The Lender agrees to submit to exclusive jurisdiction and venue in the state and federal courts sitting in Maricopa County, Arizona for any and all disputes, claims and actions arising from or in connection with the Services and/or these Terms of Use. In any dispute arising under these Terms of Use, the prevailing party will be entitled to reasonable attorneys' fees and expenses.

The Lender agrees not to export from anywhere any part of the Services provided to the Lender or any direct product thereof except in compliance with and with all licenses and approvals required under applicable export laws, rules and regulations. All Services used by the U.S. Government are provided with the commercial license rights described herein. If any part of these Terms of Use is determined to be invalid or unenforceable, then the invalid or unenforceable provision will be replaced with a valid, enforceable provision that most closely matches the intent of the original provision and the remainder part, at any time with or without notice to the Lender. The Lender may not assign these Terms of Use, or assign, transfer or sublicense the Lender's rights, if any, in the Services. OnGuard Lending shall not be liable for any nonperformance, delay, error, data loss or other loss caused by an event or conditions that are beyond the reasonable control of OnGuard Lending. OnGuard Lending's failure to act with respect to a breach by the Lender or others does not waive its right to act with respect to subsequent or similar breaches. Except as expressly stated herein, these Terms of Use constitute the entire agreement between the Lender and OnGuard Lending with respect to the Services and supersede all prior or contemporaneous communications of any kind between the Lender and OnGuard Lending with respect to the Services. OnGuard Lending and Lender are independent contractors, not legal partners or agents. Any notices to OnGuard Lending must be sent to OnGuard Lending, Inc., 66 West Flagler Street, 9th Floor, Miami, FL 33130, via registered mail with return receipt or air mail or overnight courier, and are deemed given upon receipt. Notice to Lender may be affected by sending an email to the email address provided by Lender and is deemed received when sent (for email).

Any controversy or claim arising out of or relating to these Terms of Use, or the breach thereof, shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its then existing Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered into court having jurisdiction thereof. The place of arbitration shall be Maricopa County, Arizona or any other place agreed upon at the time by OnGuard Lending and Lender (under this Section Arbitration, together, the “Parties” and each a “Party”). The arbitration shall be governed by the laws of the State of Arizona. Hearings will take place pursuant to the standard procedures of the Commercial Arbitration Rules that contemplate in person hearings. No demand for arbitration may be made after the date when the institution of legal or equitable proceedings based on such claim or dispute would be barred by the applicable statute of limitations. A Party may apply to the arbitrator seeking injunctive relief until an arbitration award is rendered or the dispute is otherwise resolved. A Party also may, without waiving any other remedy, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that Party pending the arbitrator’s appointment or decision on the merits of the dispute. The arbitrators will have no authority to award punitive or other damages not by a reasoned opinion. Except as may be required by law and for disclosure in confidence to the Parties’ respective attorneys, tax advisors and other similar representatives, neither a Party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both Parties.