Finmo (Finmo Financial Technologies Ltd.)

Terms of Use for Mortgage Brokers: Updated October 15, 2019

Welcome to Finmo Financial Technologies Ltd. (“FINMO”, “we”, “us” or “our” as the context dictates). We are a Canadian company that helps mortgage brokers work more efficiently with clients and elegantly submit client loan applications to lenders. The terms set out below (these “Terms of Use”, and in combination with our Privacy Policy and the frequently asked questions page (“FAQ”) on help.finmo.ca, which are incorporated by reference and available at our websites, are our “Terms”) govern your use of Finmo’s application (“App”) and any website or subdomains (“Website”) (collectively, the “Service”).

Please read our Terms (especially the clauses about liability and dispute resolution and class action waiver) carefully since they are legally binding. By using the Service, you confirm that you accept our Terms, that you agree to abide by them, and you are giving us permission to contact you as set out further herein. Please note that these Terms are subject to change from time to time.

_If you do not agree to our Terms, please do not use our Service. If you need clarification on the Service contact us at 1-855-575-0413. _

_Your use of the Service shall be a clear acknowledgement that you agree with our Terms. _

Understanding Our Role

You (the “Broker”, “you” or “your” as context dictates) can leverage our Service’s technical wizardry for the purposes of assembling and submitting to lenders the information package as required for loan application (“Application”) of prospective borrower (each a “Client”). Our Services only provide functioning data repository which enable you to offer a more efficient Application submission than has previously been generally available – you, the Broker, and your Clients continue to be responsible for compliance with any applicable laws and rules generally set out by a governmental and regulatory authority.

We provide the Service in our own personal or corporate capacities, and should not be considered an agent or representative of a Broker, a Client or a lender.

The “User” in these Terms of Use for Brokers refers to the person who is subscribing to our Service acting solely for the person’s own benefit or acting on behalf of others (e.g. brokerage corporate entity). If you are using the Service on behalf of an organization, you agree to our Terms on behalf of that organization, and represent you have authority to bind that organization to the terms contained herein.

Though your use of our Service is subject to our Terms, many aspects of the process to submit the Application and receive information from lenders may be subject to third parties’ policies and rules, including those relating to your lender intermediaries and the lenders, as well as the app stores where a Client downloads and uses our App. We encourage all parties to be aware of those policies and rules, as applicable since we do not control, track, or otherwise influence those third party rules.

How Our Service Works

Click here to learn about how Finmo works. If there are any questions that you have which aren’t answered in the FAQ or in these Terms of Use, contact us at support@finmo.ca.

Account Credentials - Management and Incidents

Your access to our Services requires you to register and create an account on the Website. Once your account is created, you must keep your account credentials safe and keep your account secure by limiting access to our Website. You must inform us immediately if your account has been compromised (e.g. you think someone may be able to use the Service using your credentials or a virus or other malware on your computer is impacting your ability to log in to our Website). If we suspect any unauthorized access to your account or if we see or suspect suspicious activity in relation to your account, we retain the right, but do not have the obligation, to suspend your account and take any other related action as we deem reasonable, and you agree to assist in executing such actions, which may involve your resetting of passwords or taking other measures as may be required. We will not be responsible for actions of another person if you do not notify us in a timely manner about the on the vulnerabilities posed to you.

If any communication you receive from us looks suspicious or has links that you do not expect, please do not open or click through. Instead, email us at support@finmo.ca

Cancellation

You may decide at any time to cancel your account by contacting us at 1-855-575-0413. We reserve the right to suspend, and if deemed appropriate, cancel your right to use the Service.

Fees and Payment

Use of Finmo is free for your Clients.

Brokers have the option to pay for "Finmo Pro" and other complimentary services at their own discretion.

Changing Plans. Any Broker team has the right to upgrade or downgrade a current Plan (Basic or Pro) at any time. In such an event, the Broker’s credit card on file with Finmo will automatically be charged with a Fee for the next payment interval with the rate stipulated in the new Plan.

Downgrading of the current Plan may cause the loss of features or capacity of the Account.

Free Trial. A Broker Team may be entitled to a Free Trial, unless the Broker team has applied for the Account as a result of an ongoing marketing campaign organized by Finmo in co-operation with its partners. The Broker team is not required to provide any credit card information during the period of Free Trial. If the period of Free Trial has expired, the Account will be automatically be downgraded to Basic. In order to prevent downgrading or to reactivate Finmo Pro, the Broker team is required to pay the first Fee.

In addition to the current collection of Plans, Finmo may offer special discounts and motivation schemes (for example finder’s fees, etc.).

Payment Card Authorization. Finmo may seek pre-authorization of a Broker’s payment card account prior to your purchase of Finmo Services in order to verify that the card is valid and has the necessary funds or credit available to cover your purchase. You authorize such payment card account to pay any amounts described herein, and authorize Finmo to charge all sums described in these Terms to such card account. You agree to provide Finmo updated information regarding your payment card account upon Finmo’s request and any time the information earlier provided is no longer valid.

Electronic Invoice. If some cases where Finmo may need to issue an invoice for Services. The Broker will be issued an electronic invoice for payment of the Fee of the next payment interval. Brokers must pay the invoice by the due date indicated on the invoice.

We retain the right to modify the fees and will notify you of any changes in fees applicable to you.

If we terminate, suspend or remove your account for any reason, including your violation of our Terms, we are not obligated to compensate you in any manner.

Representations, Warranties and Covenants

You acknowledge and agree that:

(1) you are 18 years old or older;

(2) you have the authority to bind yourself, or such other party which you may be representing, to our Terms;

(3) your use of the Service shall only be for purposes that are permitted by these Terms of Use, and

(4) you will comply with all applicable laws, including regulatory requirements and government orders of any kind applicable to your use of the Service and handling of Client data.

You promise that you shall not directly or indirectly:

(1) take any action, including placing statements, logos or trade-marks, which gives the impression to a person that another party created the Services we provide;

(2) register for more than one account when using our Service;

(3) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms in any part of the Service;

(4) use or allow the use of the Service for any purpose other than what is authorized by us;

(5) damage, disable, overburden or impair any part of the Services, including our servers or network, or interfere with any other party’s use and enjoyment of the Service;

(6) access the Service in order to build a commercially available product or service which competes with the Service;

(7) copy any features, functions, integrations, interfaces or graphics which are part of the Service;

(8) violate any laws;

(9) make statements, on any part of the Service on any topic associated with us, which could reasonably be considered false or misleading;

(10) willfully tamper with the security of the Service, including attempting to probe, scan or test the vulnerability of the Service or to breach its security or authentication measures;

(11) transmit any information, through the Service in any other manner, which may be: (i) unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, indecent, inflammatory, sexually explicit, pornographic or profane; (ii) in violation of a third party’s rights in inventions, discoveries, or improvements (whether patented or able to be patented and whether or not reduced to practice), including patents, patent applications, certificates of invention, utility models, continuations, continuations-in-part, provisionals, divisions, reissues, renewals, re-examinations and extensions thereof, trade secrets, know-how, designs, methodologies, processes, rights in data, and similar rights; the protection of works of authorship or expression and copyright (whether or not registered), trademark, trade names, service marks, logos, domain names and trade dress; and similar rights under any laws or international conventions throughout the world, whether now existing or hereafter arising or developed, including the right to apply for registrations, certificates, or renewals with respect thereto, the rights to prosecute, enforce, and obtain damages (“Intellectual Property Rights”) or is subject to Intellectual Property Rights; (iii) refutes or is contrary to what is set out anywhere in the Service; (iv) is considered “spam” (including machine or randomly-generated, constitutes unauthorized or unsolicited advertising, chain letters, any other form of unauthorized solicitation or any form of lottery or gambling); (v) contains or installs any viruses, worms, malware, Trojan horses or other content that is designed or intended to disrupt, damage or limit the function of any software, hardware or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party; and (vi) violates the privacy of any third party; or

(12) attempt to gain unauthorized access to the Service or our computer systems or networks through hacking, password mining or any other means.

We reserve the right to investigate and prosecute, to the fullest extent of the law, any violation of the above. We may suspend, modify or terminate your use of the Service immediately at our sole discretion.

Rights and Ownership

Rights in our Intellectual Property. **Finmo and its licensors own all Intellectual Property Rights in the Service including applicable copyrights, patents, trademarks and other proprietary rights. Other than usage rights, you don’t have any rights of any kind in our Service. Our Terms do not transfer any intellectual property between you and us, and we reserve all rights that are not expressly granted under our Terms.

**Your Data
. Given our Services’ function as repository of your and your Client’s data, we appreciate that your data is very important to you. You own your data. Finmo does not gain any ownership or use rights in such data other than as set out herein.

Rights to Handle Data. You grant us a non-exclusive and transferable right to handle your data and the data of your Clients to (i) enable you and your Clients to utilize the Service, and (ii) generate information derived from your and your Clients’ use of our Service, including, usage information, metrics and other data points which are not able to be reverse engineered to reveal your and your Clients’ identity (“Anonymized Information”). We will own all Anonymized Information and are free to use it in compliance with our Privacy Policy, including but not limited to improving our Services. For more examples of how we use anonymized data, read our help article.

You agree that all data which is handled by us may be, without further required consent by you, handled by a third-party, such as Amazon Web Services (AWS), for purposes which serve our business requirements, including data processing, monitoring or storage, or for regulatory or other reasons which are imposed on us in Canada. We respect your privacy and will handle your data in ways which are respectful and preserves your privacy as set out in our Privacy Policy.

Your Account and Customer Support. Finmo Customer Success is happy to assist by troubleshooting various issues you report. To do so, we may need to use a feature that allows us to access your account and client data. When necessary, and requested by the user, Customer Success representatives may ask you for permission to do this so we can look into an issue. Customer Success will be able to access all information that is available to the user and troubleshoot issues as needed.

Granting this permission allows us to access your client data, however our policy is to view client data for support purposes only. No changes, edits or manipulation to client data will be made by our representative. Customer Success will be able to access all information that is available to the user and troubleshoot issues as needed but any changes to client data must be made by the account holder.

Rights to Inputs. If you ever make, or are ever invited by us to make comments, improvement suggestions or provide other content (“Input”), you will do so without any expectation from us and we shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate such Input into our Service or our business as we see fit. We have no obligation to monitor the submission of, or make use of, such Input.

Rights in Clients’ Data. Apart from our rights in Anonymized Information, your Clients have rights in their personal under applicable law. We will comply with our obligations to your Clients as applicable herein, our Privacy Policy, and the End User Access Agreement.

Right to Modify Content. As agreed upon, we will offer you the ability to modify certain text blocks on our App or Website in order to tailor certain text for your business purpose. You will not expect, and we will not be obligated to provide, any review, approval, rejection, or check for legal compliance of the altered text. You will indemnify us from any liability arising from your modification of such text block as further set out under "Release and Modification” herein.

In the Event of Conflict Between Your Rights and Clients’ Requests

As part of your Clients’ use of our Services, their personal information (as such is defined under The Personal Information Protection and Electronic Documents Act (PIPEDA), shall reside on our or our subcontractors’ systems. PIPEDA sets out various obligation for us, including in respect of such Clients’ requests for disclosure of, access to, or removal of, their personal information from our systems. We are compelled to abide by Clients’ requests, subject to limited exceptions. We note you, as a Broker, must comply with certain data retention obligations in respect of Client personal information utilized in an Application. We will, in the event of a request for removal of such Client personal information from our system, notify you promptly of such request. We will also, to support your compliance of your data retention obligations under applicable law, not destroy or remove such Client personal information in violation of your data retention policies and obligations, and you agree that as set out under “Release and Indemnification” clause herein, you will indemnify us for our assistance to you in our preservation of Clients’ personal information contrary to Clients’ request.

In the Event of Conflict Between Your Rights and your Brokerages’ Requests

Finmo will recognize the owning brokerages need to access deals inside a team or agents account that they own. Common examples for why a brokerage owner will want to monitor a team is for compliance, payroll, underwriting support, or branding support. Authorized brokerage owners can get access to a team they own, similar to the structure used on Filogix Expert.

Customization of Consent Agreements / Credit Request in Finmo for your Clients.

It is your responsibility to ensure you adhere to your brokerages policies pertaining to gaining, retaining, and confirming lawful consent from your borrower(s) to request their credit reports (also referred to as credit bureau). Furthermore, it is your responsibility to ensure the consent text provided to your borrowers through Finmo as well as the process employed through Finmo is approved by your brokerage.

Permission for Communication

We may use email, texts and other electronic means to stay in touch with you and you must ensure that you obtain all requisite permissions from your Clients for you to be able to, in turn, communicate with you Clients. You agree that when you provide us your e-mail address or personally identifying information (e.g. name, phone number) during or prior to access of the Service, you: (i) consent to receive communications from us through electronic means, including via the email address or phone number you have provided us; and (ii) agree that our Terms, agreements, notices, disclosures and other communications that we provide you electronically satisfy any legal requirement that such communications would satisfy if they were in writing and physically presented to you.

Disclaimers

IN ADDITION TO ANY OTHER DISCLAIMERS SET OUT IN OUR TERMS, THE SERVICE PROVIDED, INCLUDING ALL CONTENT, TOOLS, AND FUNCTIONS, ARE “AS IS” WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND MADE BY US. WE EXPRESSLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, RELIABILITY OR ACCURACY, OR INTEGRATION WITH ANY SYSTEM, INCLUDING THAT BELONGING TO A LENDER OR A LENDER INTERMEDIARY.\
ALTHOUGH THE SERVICE MAY BE INTEGRATED WITH OR RUN ON THIRD PARTY SYSTEMS, WE ASSUME NO OBLIGATION AND PROVIDE NO GUARANTEES WHATSOEVER IN CONNECTION WITH THE PERFORMANCE OF THIRD PARTIES. WE ARE NOT RESPONSIBLE TO YOU FOR THE CONDUCT OF ANY SUCH THIRD PARTY OR FOR ANY RELATED DELAY, ERROR, INACCURACY, OR INACCESSIBILITY OF ANY MATERIAL OR SERVICE THEY SUPPLY.

WE DO NOT WARRANT THAT THE SERVICE OR THE FUNCTIONS THEREIN WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ANY TRANSMISSION TO AND FROM US OR COMMUNICATION BY YOU IS CONFIDENTIAL. YOU AGREE THAT YOUR USE OF THE SERVICE CREATES NO OBLIGATION UPON US, THE SERVICE PROVIDER, OTHER THAN AS AGREED UNDER OUR TERMS AND THERE IS NO RELATIONSHIP (WHETHER CONTRACTUAL, FIDUCIARY OR OTHERWISE) CREATED BETWEEN YOU AND US OTHER THAN PURSUANT TO OUR TERMS.

ALL THIRD PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY MATERIALS.

TO THE FULLEST EXTENT OF THE LAW, WE DO NOT REPRESENT THAT ANY INFORMATION EXCHANGED BETWEEN A PARTY IN THE PROVISION OF THE SERVICE IS SECURE, EVEN IF WE BECOME AWARE OF ANY, OR ARE TOLD ABOUT, A POTENTIAL BREACH.

Release and Indemnification

You agree to indemnify, defend and hold harmless Finmo, its officers, directors, employees, agents, successors and permitted assigns from and against any and all expenses, claims and demands, losses, costs, damages, actions, suits or other proceedings (“Claims) including legal fees and disbursements, arising out of: (i) your use of the Service, including your violation of any of the provisions in these Terms of Use and any modifications you make to any text blocks on our Website or App; (ii) allegation of facts that, if true, would constitute your breach of any of your representations, warranties, covenants or obligations under these Terms of Use; (iii) negligence or willful misconduct by you or any third party on your behalf in connection with the use of the Services provided by us; (iv) any breach of our end user access agreement by your Client; or (v) our denial of a Client’s request to remove the Client’s personal information from our system where such Client request is contrary to your data retention policy.

We may, at our sole discretion, choose to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without our written consent.

Limitation of Liability

Under no circumstances shall Finmo, its directors, officers, representatives, and affiliates be liable for:

(1) any indirect, incidental, special, consequential or exemplary damages arising from or relating to the use of the Service - this includes, but is not limited to, any loss of rewards or savings on purchases, profit, earnings, anticipated earnings, interruption or loss of service, or any consequential losses, problems, or fault howsoever arising out of the use of the Service; or

(2) the acts, omissions or conduct of any third party which interacts with the Services in the process of your use of the Services.

WITHOUT LIMITING THE FOREGOING IN THIS SECTION ENTITLED “LIABILITY” THE LIMIT ON TOTAL CUMULATIVE LIABILITY OWED BY FINMO (INCLUDING OUR REPRESENTATIVES AND AFFILIATES) TO YOU OR ANY PERSON FOR ANY CLAIMS ARISING FROM OR RELATING TO THE SERVICE SHALL BE LIMITED TO A MAXIMUM OF ONE (1) CANADIAN DOLLAR.

Term and Termination

Our Terms shall be deemed to be applicable to you upon your use of the Service and shall only cease to apply to you upon an actual deletion or deactivation of your account through the means stated in our Terms. Abandonment or non-use of the account will not lead to an automatic termination of your account and our Terms will continue to apply to you.\

We may terminate your access to all or any part of the Service at any time, with or without cause and with or without notice, effective immediately and for any reason deemed appropriate in our sole discretion.

Except for the provisions set out in the Surviving Provisions clause, these Terms of Use shall no longer be applicable to you if your account is cancelled or terminated.

Upon termination of your account (i) all rights, licenses and authorizations granted pursuant to these Terms of Use shall immediately terminate, and (ii) we may disable all Clients’ access to the Service.

Notwithstanding anything to the contrary in these Terms of Use, with respect to information and materials then in our possession or control, we may retain any of your data in our backups, archives and disaster recovery systems until such data is deleted in the ordinary course and all such retained data shall remain subject to all confidentiality, security and other applicable requirements of our Terms.

Our Terms May Change

We reserve the right, at our sole discretion, to amend these Terms of Use at any time.

If our Terms are modified in a way we consider significant, we shall post the amended Terms on Finmo.ca. Although we shall take reasonable steps to notify you of such significant changes made, you are expected to check our Terms periodically for any amendments. Your continued use of our Services following such notification shall constitute your affirmative acknowledgement of these Terms of Use, and your agreement to abide and be bound by our Terms, as amended. If at any time you choose not to accept our revised Terms, including following receipt of notification of any modifications made hereto, then please do not use the Service and as applicable, terminate your account.

Governing Law

Our Terms and any access to or use of the Service shall be governed by, and construed in accordance with the laws of the Province of Alberta and the federal laws of Canada therein, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the Province of Alberta.

Arbitration

If we cannot resolve a controversy, dispute, disagreement or claim between you and Finmo arising out of, relating to or in connection with our Terms, then you agree that you and Finmo will resolve the issue in English using a single arbitrator under International Commercial Arbitration Act (R.S.A. 2000, c. 1-5) (Alberta) _ _ (the “Rules”). Any decision of the arbitrator shall be final and binding on the parties with no right to appeal for any reason. Notwithstanding the foregoing, Finmo shall have the right to seek injunctive or other equitable relief, including in relation to violation of the Intellectual Property Rights set forth in these Terms of Use.

Waiver of Class Proceedings

Users hereby waive any right they may have to commence or participate in any class action lawsuit against Finmo related to any claim, dispute or controversy and, where applicable, you and any User hereby agree to opt out of any class proceeding against Finmo otherwise commenced.

Severability

If any portion or provision of our Terms shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of our Terms, or the application of such portion of provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of our Terms shall be valid and enforceable to the fullest extent permitted by law.

Assignment

We may assign or delegate the End User Terms in whole or in part, to any entity at any time with or without your consent and without prior notice to you.

You may not assign or delegate any rights or obligations under the End User Terms without our prior written consent and any unauthorized assignment and delegation by you is void.

Headings and Summaries

The headings, captions and summaries in these Terms of Use are for convenience only and in no way define or describe the scope or content of any provision of these Terms of Use.

Notices

Except as otherwise stated in our Terms or as expressly required by law, any notice to us, including for purposes of termination, shall be given in writing by certified postal mail to:

91 Wildwood dr. SW Calgary, AB T3C 3C6

Any notice to you shall be given to the most current email address in your account.

Other Rules of Interpretation and Definition

Any reference to gender includes all genders; words importing the singular number only shall include the plural and vice versa; the word** “oris not exclusive; the wordsincluding”, “includes” and “include” mean “including without limitation; and “shall” means “will” and “must”, all three of which can be changed interchangeably and shall not mean “may”. “handle” means to process, record, transfer, access, receive, use, disclose, retain, dispose of, destroy, manage, collect, store, or otherwise handle. “law” as used herein, means any statute, ordinance, regulation, rule, code, constitution, treaty, common law, governmental order or other requirement or rule of law of any governmental authority.

**No Waiver of Covenants


Failure by any party to insist upon the strict performance of any of the covenants, agreements, terms, provisions or conditions contained in our Terms or to exercise any election shall not be construed as a waiver or relinquishment of such covenant, agreement, term, provision or condition but the same shall continue and remain in full force. No waiver shall be deemed to have been made unless expressed in writing.

Surviving Provisions

Only the clauses in relation to Representations, Warranties and Covenants, Rights and Ownership, Permission for Communication, Release and Indemnification, Liability, Governing Law, Arbitration, Waiver of Class Proceedings, and Surviving Provisions in these Terms of Use shall survive following any termination or expiration of your account.

Entire Agreement and Understanding

These Terms of Use, our FAQ and the Privacy Policy by reference, constitute the entire agreement and understanding between you and Finmo. No other communication, written or oral, with respect to the subject matter of our Terms shall apply.