This MASTER SERVICES AGREEMENT, together with any Order Form, appendices, schedules and exhibits attached or incorporated by reference (collectively, this “Agreement”), dated as of the effective date identified in the Order Form (the “Effective Date”), is entered into by Qoosh Technology, Inc, (DBA Quilo), a Delaware corporation (“Quilo”) and that certain entity identified in the Order Form (“Financial Institution” or “FI”). Financial Institution and Quilo may be referred to in this Agreement individually as a “Party” and collectively as the “Parties.”

WHEREAS, Quilo administers a Program (as defined below) in which Quilo may administer, among other services as described in the Service Schedules (as defined below) to this Agreement, a software as a service platform in which chartered financial institutions or licensed financial services providers (including lenders) may provide financial services or products pursuant to the terms hereof (collectively, with the services described in the Service Schedules to this Agreement, the “Quilo Services” or ”Services” or individually, the services described in a particular Service Schedule, the “Quilo Service” or “Service”); and        

WHEREAS, FI desires to receive access to the Quilo Services in order to provide financial services or products that meet FI’s Selected Underwriting Criteria (as defined below);

NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which the Parties acknowledge, the Parties agree as follows:

1. Definitions and Rules of Construction.

1. Definitions. The following terms shall have the following meanings in this Agreement:

“ACH” means the Automated Clearinghouse network, governed by the rules of NACHA.

“Affiliate” of a Person, corporation or other entity means any Person, corporation or other entity Controlling, Controlled by or under common Control with such Person, corporation or other entity.

“Agreement” has the meaning given to it in the preamble to this Agreement.

“Applicable Law” means (a) any international, national, State, local or other law or statute that applies to a Party; (b) any regulation, rule, supervisory or administrative guidance, directive, or interpretation promulgated or published by any Governmental Authority, whether formal or informal, relating to the Program, the Quilo Services or the      Financial Services, or that is otherwise applicable to or binding upon either of the Parties; or (c) any judicial, administrative or other governmental order, judgment, decree, decision, permit, or ruling that is binding upon or otherwise applicable to a Party, as any of the foregoing may be amended and in effect from time to time during the Term.

“Applicant” means a Person who has applied for a      Product from FI through Services.

“Audit Findings” has the meaning given to it in Section 9(b).

“Available Underwriting Criteria” means a set of criteria for Products that is made available to FI through Workspace and that may be modified from time to time by Quilo                                    

“Borrower” means a Person who has applied for and has been approved for a Loan by FI through the Services in conformance with the Selected Underwriting Criteria.

“Business Day” means any day, other than Saturday, Sunday or holiday observed by the Federal Reserve Bank of New York.

“Claims has the meaning given to it in Section 14(a).

“Confidential Information” means: (a) (i) all Personal Data, (ii) all proprietary, secret or nonpublic information, in tangible or intangible form, relating to a Party’s businesses, operations, finances, employees, products, or services, (iii) any such information relating to any Affiliate, customers, or potential customers of that Party, that such Party discloses to the Receiving Party (as defined in Section 7) or its Representatives, or both, either before, on or after the Effective Date, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not identified as confidential; and (b) any materials or reports prepared by or for the Receiving Party or its Representatives that contain, are based on, or reflect, in whole or in part, the information in (a).  For the avoidance of doubt, Workspace is Quilo’s Confidential Information, and Applicant or Borrower information is FI’s Confidential Information.

“Control” means, with respect to any corporation or legal entity, having, directly or indirectly, the power to direct or cause the direction of the management and policies of a Party, whether through the ownership of voting securities, by contract or otherwise. “Controlling” and “Controlled” shall have a correlative meaning.

“Customer” means a Borrower.

“Daily Lending Limit” means the daily limit which FI must not exceed in providing its Lending Services, with such amount being as set forth in the Selected Underwriting Criteria.

“Data Security Plan” has the meaning given to it in Section 7(f)(iv).

“Data Subject” means an identified or identifiable Person.

“Disclosing Party” has the meaning given to it in Section 7(a).  

“Dispute” means any dispute, claim or controversy of any kind or nature arising under or in connection with this Agreement, whether based on contract (including disputes as to the creation, validity, interpretation, breach or termination of this Agreement), tort, common law, equity, statute, regulation, order or otherwise, whether arising before or after termination or expiration of this Agreement. “Dispute” includes any dispute, claim or controversy of any kind or nature arising under or in connection with the obligations of the Parties under this Agreement or the transactions contemplated thereby.

“Effective Date” has the meaning given to it in the preamble to this Agreement.

“Failed SLA” has the meaning given to it in Section 5(j)(ii).

“FDIC” means the Federal Deposit Insurance Corporation

“Fees” means the fees to be paid by FI to Quilo as set forth on the Order Form.

“FI Data Files” has the meaning given to it in Section 8(a)(ii).

“Financial Institution” or “FI” has the meaning given to it in the preamble to this Agreement.

“Financial Services” means Lending Services or other services provided by FI to Customers through the Program.

“FinCEN” means the federal Financial Crimes Enforcement Network.

“Force Majeure Event” has the meaning given to it in Section 17(h).

“GLBA” means the Gramm-Leach-Bliley Act and implementing regulations.

“Governmental Authority” means any international, federal, territorial, State or local governmental authority, quasi-governmental authority, instrumentality, court, government or self-regulatory organization, commission, tribunal or organization or any regulatory, administrative or other agency, or any political or other subdivision, department or branch of any of the foregoing having jurisdiction over FI or Quilo, as applicable, and its respective Affiliates.

“Indemnified Party” has the meaning given to it in Section 14(c)(i).

“Indemnifying Party” has the meaning given to it in Section 14(c)(i).

“Initial Term” has the meaning given to it in Section 15(a).

“Inquiry” has the meaning given to it in Section 5(b)(iv).

“Launch Date” has the meaning given to it in the Order Form.

“Lending Services” means the services of FI related to the origination by FI of one or more Loans or the purchase by FI of a participation interest in one or more Loans initially originated by another financial institution or lender as the lender of record, and in either of the foregoing cases, the Loan is through the Services pursuant to the terms and conditions of this Agreement.

“Loan” means the extension of credit to a Person, provided that additional limitations as to the type of extension of credit may be set forth in the Order Form next to “Loan Types.”

“Losses” has the meaning given to it in Section 14(a).

“Marks” means trademarks and service marks (whether registered or at common law), trade names, business names, logos, symbols and internet domain names or any abbreviation or contraction thereof.

“Material Duties” means the duties of third parties that have access to, transmit, or store FI’s Confidential Information.

“NACHA” means the National Automated Clearing House Association and its successors and assigns.

“NCUA” means the National Credit Union Administration.

“OFAC” means the U.S. Treasury Department’s Office of Foreign Assets Control.

“Operating Account” has the meaning given to it in Section 4(a).

“Order Form” means that certain Order Form entered into by and between Quilo and FI which incorporates this Agreement and is made part of this Agreement.

“Parties” has the meaning given to it in the preamble to this Agreement.

“Party” has the meaning given to it in the preamble to this Agreement.

“PCI DSS” means Payment Card Industry Data Security Standard.

“Person” means an individual natural person.

“Personal Data” means any information that is linked or linkable, or is reasonably capable of being associated with, a Person, including “non-public personal information” as defined in the GLBA. “Personal Data” includes equivalent terms in other Applicable Law, such as the California Consumer Privacy Act-defined term “Personal Information,” as context requires.

“Privacy Policy” has the meaning given to it in Section 7(f)(iii).

“Product” means a Loan or other service provided by FI to Customers through the Program.

“Program” is the software as a service platform administered by Quilo that chartered financial intuitions or licensed financial services providers (including lenders) may utilize in order to provide financial services or products pursuant to the terms hereof, which may include the origination and servicing Loans, the purchase of participation interests in Loans or other Financial Services and Products. “Program” includes Workspace.

“Program Information” means and includes materials and information found in or relating to the Program description, financial information regarding Quilo, and information regarding (a) other financial services providers, lenders or financial institutions or Quilo (as applicable), including their use of the Program or Quilo Services or relating to the Program, (b) Quilo’s Program activities that relate to the use of the Financial Services, (c) information regarding Quilo’s compliance with this Agreement or Applicable Law, and (d) information regarding Workspace and other digital or web-based platforms utilized in, or made available through, the Program.

“Provisional Relief” has the meaning given to it in Section 16(b)(iii).

“Quilo” has the meaning given to it in the preamble to this Agreement.

“Quilo Data Files” has the meaning given to it in Section 8(a)(i).

“Quilo Service” has the meaning given to it in the preamble to this Agreement.

“Quilo Services” has the meaning given to it in the preamble to this Agreement.

“Receiving Party” has the meaning given to it in Section 7(a).  

“Renewal Term” has the meaning given to it in Section 15(a).

“Representatives” means one or more of the directors, officers, employees, Affiliates, advisors, consultants, subcontractors, and agents of a Party.

“Reserve Account” has the meaning given to in Section 4(b).

“Reserve Account Minimum” means the minimum amount which FI must maintain in the Reserve Account, as provided in Workspace.

“Resolution Period” has the meaning given to it in Section 16(b)(i).

“Response to Audit Letter” has the meaning given to it in Section 9(b)(ii).  

“Security Breach” means a confirmed breach of security of the Program, Quilo Services or Financial Services that caused an accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal data, or an event that qualifies as a reportable breach under Applicable Law and any failure by Quilo or FI to comply with its privacy and data protection obligations set forth in Section 7(f).

“Selected Underwriting Criteria” means the criteria which FI selects from the Available Underwriting Criteria through Workspace and which FI may manage in Workspace from time to time, provided that with respect to any changes or modifications to criteria, the changes will only go into effect after Quilo has a reasonable amount of time to process and effectuate FI’s changes or modifications. For the avoidance of doubt, Quilo’s records with respect to Selected Underwriting Criteria shall control.

“Service Schedule” means a schedule, deemed to be a part hereof and incorporated into this Agreement by reference, containing the specific terms and conditions by which Quilo will provide the Quilo Service as described therein. As of the date hereof, the Service Schedules include: (i) Loan Origination and Participation Service Schedule; (ii) Retail Origination Service Schedule. Following execution of this Agreement, Quilo may make available new Service Schedule(s), which may be incorporated into this Agreement in accordance with Section 17(j)(i).

“Services Addendum” means an addendum, if any, that both Parties may enter into to describe specific service level(s) set forth therein, pursuant to this Agreement.

“SLA” has the meaning given to it in Section 5(j)(i).

“SLA Corrective Action Plan” has the meaning given to it in Section 5(j)(ii).

“State” means a state within the United States of America.

“Supervisory Request” means a formal or informal request for information or data, or for action or inaction, that is received by a Party from any Governmental Authority.

“Term” has the meaning given to it in Section 15(a).

“Workspace” means Quilo’s hosted digital application or interface tool which Quilo makes available to FI for FI to set up and manage FI’s access to the Program pursuant to the terms and conditions described herein. For example, through said application or tool, FI may adjust its Selected Underwriting Criteria or access information relating to the Products and Applicants or Customers.  

2. Rules of Construction. Except as otherwise expressly provided in this Agreement, the following rules shall apply hereto: (i) The singular includes the plural and the plural includes the singular; (ii) the terms “Include”, “including” and their variants shall mean “including without limitation”; (iii) A reference to any agreement or other contract includes any permitted modifications, supplements, amendments and replacements; (iv) A reference in this Agreement to a Section, Schedule or Exhibit is to the referenced Section of this Agreement, Schedule to this Agreement or the referenced Exhibit to this Agreement unless otherwise expressly provided; (v) A reference to a Section or paragraph in this Agreement shall, unless the context clearly indicates to the contrary, refer to all sub-parts or sub-components of any said Section or paragraph; (vi) Words such as “hereunder,” “hereto,” “hereof,” and “herein,” and other words of like import shall, unless the context clearly indicates to the contrary, refer to the whole of this Agreement and not to any particular clause hereof; (vii) To the extent this Agreement requires the mutual agreement or consent of any matter by both parties hereto, unless the text clearly indicates to the contrary, such agreement or consent shall be granted or denied in each such party’s reasonable business judgment, acting in good faith; (viii) To the extent this Agreement requires the agreement or consent of one party or the other, unless the text clearly indicates to the contrary, such agreement or consent shall be in writing and shall be exercised in good faith; (ix) To the extent this Agreement requires the approval of one party or the other, such approval or disapproval must be in writing, unless otherwise indicated, and must be obtained from the party or its designee prior to taking the specified action; (x) No inference in favor of or against any party shall be drawn from the fact that such party or such party’s counsel has drafted any portion hereof; (xi) All references in this Agreement to a separate instrument are to such separate instrument as the same may be amended or supplemented from time to time pursuant to the applicable provisions thereof; (xii) A reference in this Agreement contemplating certain action by a party “after consultation with” or “in consultation with” the other party (or other similar language) shall not mean that the consent or approval of such other party is required or contemplated in connection with such action; (xiii) The term “he” and “his” and similar references shall be deemed to be gender neutral; (xiv) references to “dollars” or “$” shall be to United States dollars; (xv) any reference made in this Agreement to a statute or statutory provision shall mean such statute or statutory provision as it has been amended through the date as of which the particular portion of the Agreement is to take effect, or to any successor statute or statutory provision relating to the same subject as the statutory provision so referred to in this Agreement, and to any then applicable rules or regulations promulgated thereunder, unless otherwise provided; and (xvi) unless the context otherwise requires or unless otherwise provided herein, the terms defined in this Agreement that refer to a particular agreement, instrument or document also refer to and include all renewals, extensions, modifications, amendments and restatements of such agreement, instrument, or document.

3. Service Schedules. Each Service Schedule shall set forth: (i) a description of the Quilo Service to be furnished by Quilo, and (ii) such additional terms and conditions. The terms of a Service Schedule shall apply solely with respect to the applicable Quilo Service referenced therein. Each Service Schedule shall be deemed to incorporate the provisions of this Agreement as though such provisions were set forth therein in their entirety, subject to and except as modified by such Service Schedule. In the event of a conflict or inconsistency between the main text of this Agreement and the terms of any Service Schedule, the terms of the Service Schedule shall govern.

2. The Program.

1. Description. Quilo is the administrator of the Program and, among other things, provides administrative, technical, and ministerial services to operate the Program. Pursuant to, and subject to FI’s compliance with, this Agreement and the Service Schedules, FI may receive access to Quilo’s Program.  The Parties acknowledge and agree that: (i) FI is providing financial services or products under the Program; (ii) Quilo is not acting as a provider or originator of any financial services or product, depository institution, custodian, bank account holder or custodian, broker, lender, servicer or financer; and (iii) Quilo is a service provider to FIs and Merchants. Quilo acknowledges that upon notice to Quilo, FI shall not be obligated, and may on a commercially reasonable basis refuse or decline, to provide Financial Services, except that FI is obligated to provide the Financial Services if the Selected Underwriting Criteria matches a Product through the Quilo Services.  

3. Pre-Launch Responsibilities; Financial Services; Authorization.

1. Responsibilities Prior to Launch. 

1. FI Pre-Launch Responsibilities. Following the Effective Date, but prior to the Launch Date, FI shall complete the following (and maintain the following subsequent to the Launch Date throughout the Term): (i) activate its Workspace account; (ii) apply, through Workspace, for third-party services in connection with this Agreement; (iii) ensure that all required Operating Account(s) and Reserve Account(s) have been established in accordance with the terms hereof; (iv) provide full participation and assistance as Quilo may reasonably require to provide FI with access to the Program (including Workspace) pursuant to the terms hereof and to enable FI’s access to the Quilo Services and the Program subject to the terms hereof; and (v) participate in orientation sessions as may be required by Quilo to effectuate launch as contemplated herein.

2. Quilo Pre-Launch Responsibilities. Following the Effective Date, but prior to the Launch Date, Quilo shall complete the following (and maintain the following subsequent to the Launch Date throughout the Term): (i) provide FI with access to Workspace pursuant to the terms hereof; (ii) facilitate application review and approval by the third-party service providers; (iii) provide orientation sessions as may be required by Quilo to effectuate launch as contemplated herein; (iv) activate FI’s access to a Workspace account; and (v) coordinate with FI in order for Quilo to receive access to the Operating Account and Reserve Account in accordance with the terms hereof.

2. Financial Services. To the extent FI is providing any Financial Services, each Product, through the Services and Program, meeting the Selected Underwriting Criteria will be provided by FI. This includes the following:

1. to the extent FI is providing any Lending Services, each Loan, through the Services and Program, meeting the Selected Underwriting Criteria will be: (A) originated by FI as a direct lender of record; or (B) initially originated by another financial institution or lender as the lender of record, with FI taking the position of a purchaser of a participation interest in the Loan from said financial institution or lender. Quilo is not a lender, broker, servicer or funder of any Loans and does not have any interest as a lender or funder with respect to the Loans.

3. Authorization. To the extent FI is providing any Financial Services, FI hereby authorizes Quilo to effectuate the Product origination by FI through Quilo’s Program according to the Selected Underwriting Criteria provided by FI from time to time as contemplated by this Agreement. To facilitate Quilo’s provision of Quilo Services, FI shall submit, through Workspace, timely, complete and accurate Selected Underwriting Criteria at all times during the Term. FI is responsible for any errors and any losses, liabilities, damages, costs and expenses, including reasonable attorneys’ fees and expenses resulting from incomplete or inaccurate Selected Underwriting Criteria, unauthorized use of Workspace, or an unauthorized or otherwise flawed, incorrect, or erroneous requests or changes to Selected Underwriting Criteria or Workspace; provided that such incomplete or inaccurate Selected Underwriting Criteria or flawed, incorrect, or erroneous request or changes in the Selected Underwriting Criteria is not attributable to Quilo’s gross negligence or willful misconduct.  

4. Operating Account and Reserve Account.

1. Operating Account. FI will establish and maintain at all times during the Term, one or more operating accounts (an “Operating Account”) which FI shall maintain during the Term with funds no less than the Daily Lending Limit. Quilo may debit the Operating Account to cover FI’s Financial Services obligations, Quilo’s Fees and any other costs and expenses owed to Quilo by FI from time obligations (including expense reimbursement and indemnity obligations), in addition to any other debits or deductions from the Operating Account as may be authorized under this Agreement. If amounts in the Operating Account fall below the minimum amount required to be maintained under this Section or are insufficient to pay costs, expenses or Fees owed to Quilo by FI, FI shall, upon notice from Quilo of such deficiency, immediately restore the Operating Account balance to the required levels, but in any case no longer than one (1) Business Day after posting of such notice through Workspace.

2. Reserve Account. FI will establish and fund one or more separate reserve accounts (a “Reserve Account”) with a third party financial institution of Quilo’s choice, for the purpose of securing Quilo against the risk that FI will fail to perform any of its obligations (including indemnity obligations) under this Agreement. Commencing prior to the Launch Date, FI shall maintain, at all times during the Term (and for a period of three (3) months following the end of the Term) the Reserve Account in an amount equal to the Reserve Account Minimum that is provided in Workspace. Quilo shall have sole control of any Reserve Account and may use i to cover any costs, expenses, Fees, or other amounts provided for under this Agreement for any reason, as well as to pay or reimburse Quilo for any other unpaid obligations (including expense reimbursement and indemnity obligations) owed by FI to Quilo. As such, Quilo is authorized to debit or withdraw funds from the Reserve Account. FI shall cure any deficiencies in any Reserve Account balance within one (1) Business Day after posting of notice of such deficiency through Workspace.  

5. Quilo Obligations.

1. Program Information. 

1. Upon request of FI, Quilo agrees to provide FI with Program Information reasonably related to this Agreement from time to time, in form and content reasonably satisfactory to FI. If Program Information is needed by FI in connection with a Supervisory Request, FI shall promptly notify Quilo of such request. Quilo shall aim to provide the requested information by such date as may be specified by FI as necessary for FI to meet the Supervisory Request, provided Quilo shall be provided a reasonable amount of time to provide the requested information.

2. Inquiries and Complaints.

1. Governmental Authority. Quilo shall, to the extent not prohibited by Applicable Law, within ten (10) Business Days, notify FI and provide copies to FI of, to the extent materially adverse to the Financial Services, any formal complaints, notice of inquiries, investigations, examinations, demands, litigation, audit results (except to the extent that the auditors have restricted disclosure) or findings or similar materials or documents received by Quilo, in each case, regarding the Financial Services (or of which it otherwise becomes aware) that Quilo receives from a Governmental Authority.

2. Other Formal Inquiries. Quilo shall, to the extent not prohibited by Applicable Law, within ten (10) Business Days, notify FI and provide FI with copies of, to the extent materially adverse to the Financial Services, any other formal complaints, inquiries, investigations, examinations, demands, litigation, audit results (except to the extent that the auditors have restricted disclosure) or findings or similar materials or documents received by Quilo regarding the Financial Services (or of which it otherwise becomes aware) .

3. Informal Inquiries. To the extent not prohibited by Applicable Law, by the end of each quarter of the calendar year during the Term, Quilo shall provide to FI a summary of complaints received by Quilo regarding the Financial Services (or of which it otherwise becomes aware) that allege that FI is not in compliance with any consumer-facing terms and conditions or consumer-facing privacy notices applicable to the Financial Services.

4. Inquiries relating to Personal Data. Notwithstanding the foregoing Section 5(b)(i)-(iii), If Quilo receives any type of request or inquiry from a governmental, legislative, judicial, law enforcement, or regulatory authority (e.g. the Federal Trade Commission or the Attorney General of a U.S. state), or faces an actual or potential claim, inquiry, or complaint in connection with the Parties’ processing or handling of Personal Data (collectively, an “Inquiry”), Quilo will notify FI without undue delay unless such notification is prohibited by Applicable Law (or, to the extent initially prohibited by Applicable Law, without undue delay if and when no longer prohibited by Applicable Law). If requested by Quilo, FI will provide Quilo with information relevant to the Inquiry to enable Quilo to respond to the Inquiry. Upon request, FI will provide relevant information to Quilo, including but not limited to facilities, records, personnel, books, accounts, data, reports, papers, and computer records, to fulfill Quilo’s obligations (if any) to conduct data protection impact assessments or prior consultations with data protection authorities.

3. Disaster Recovery. During the Term, Quilo shall maintain disaster recovery, business resumption, and contingency plans, and the capacity to implement such plans, appropriate for the nature and scope of the Program, and under this Agreement and the Program. Such plans must enable Quilo to promptly resume the performance of its obligations hereunder and under the Program in the event of a natural disaster, destruction of Quilo’s facilities or operations, utility or communication failures, or similar interruption in either Quilo’s operations or the operations of any third party that materially affects the Quilo’s ability to operate. Such disaster recovery plans must: (i) identify a recovery site or sites for all locations where Program services are performed or Program data is stored, (ii) address business continuation, disaster recovery, and crisis management issues, (iii) be designed to restore Program operations as soon as reasonably practical under the circumstances after a declared disaster, (iv) provide for ongoing testing of such plans, and (v) be regularly updated as needed to comply with evolving risks and Applicable Law. At FI’s request, Quilo shall make available to FI (i) written summaries of all such disaster recovery, business resumption, and contingency plans and any changes to such plans, and (ii) such additional information as reasonably requested by FI in connection with such summaries.

4. Third Party Service Providers. Quilo may utilize third parties for the provision of any duties described hereunder or in connection with the Program. No use of a subcontractor or third party service provider by Quilo shall release Quilo of any of its obligations under this Agreement, and Quilo shall remain liable to FI for any breach of this Agreement caused by its subcontractor or third party to the same extent as if such obligations were performed by it.

5. Financial Statements. Upon FI’s reasonable request, Quilo shall, within thirty (30) days of such request, provide FI with Quilo’s most recent financial statements (including a balance sheet, income statement and statement of cash flows), which may include quarterly or annual audited financial statements to the extent they are available.

6. Periodic Program Review. Quilo will promptly comply at all times with all reasonable diligence and information requests from FI in connection with the Program or the use of the Financial Services. At FI’s request, Quilo shall meet with FI from time to time to review the Program and its performance and to attempt to resolve any issues FI may have with Quilo’s or the Program’s compliance with this Agreement or Applicable Law.

7. PCI DSS Compliance. Quilo will maintain all applicable PCI DSS requirements to the extent Quilo possesses, stores, processes or transmits cardholder data, or to the extent that it could impact the security of the cardholder data environment.

8. Record Retention and Retrieval. Quilo shall retain records of Financial Services transactions on Quilo’s Program and records regarding other matters related to Quilo’s performance of its obligations under this Agreement for at least five (5) years following the transaction or matter to which the record relates, in readily retrievable form, or for such longer period as may be required by Applicable Law. Upon reasonable request of FI from time to time, Quilo shall provide access or copies of such records to FI.

9. Employees and Representatives.  Quilo shall each be responsible for the conduct and active monitoring and training of its employees and Representatives with respect to all aspects of its performance of its obligations under this Agreement and the Services, including their respective compliance with this Agreement and Applicable Law.

10. Service Level Agreement (SLA) Standards.  

1. Quilo shall provide all Quilo Services contemplated by this Agreement with promptness and diligence and in a professional and workmanlike manner, and, as applicable, at least in accordance with any specific service levels set forth in any Services Addendum (each, an “SLA”).

2. If any Services are not provided in accordance with the SLAs (each instance, a “Failed SLA”), Quilo shall, for each Failed SLA: (i) promptly investigate and report to FI on the causes of the problem; (ii) provide a root cause analysis of such failure as soon as practicable after such failure or FI’s request; (iii) initiate remedial action to correct the problem and resume meeting the relevant SLA(s) as soon as practicable but, in any event, within five      (5) Business Days of the date of the occurrence of the Failed SLA; and (iv) advise FI, as and to the extent requested by FI, of the status of remedial efforts being undertaken with respect to such problem and, within five (5) Business Days, provide FI reasonable evidence that the causes of such problem have been corrected on a permanent basis (such steps, an “SLA Corrective Action Plan”).

6. FI Obligations.

1. Provision of Financial Services; Daily Lending Limit. FI shall provide Financial Services in accordance with the terms of this Agreement. In providing the Lending Services, FI agrees that it will not exceed the Daily Lending Limit.  

2. Use of Quilo Services. The use of the Quilo Services shall be solely in accordance with the terms of this Agreement and at the direction of Quilo. FI shall implement all reasonably necessary instructions provided by Quilo and provide all reasonably necessary information requested or otherwise required by Quilo for Quilo to perform its obligations under this Agreement and Applicable Laws.

3. Licenses and Approvals. As of the Effective Date, FI maintains all approvals, licenses and registrations necessary to provide the Financial Services contemplated by this Agreement, including those required pursuant to Applicable Law, and FI agrees to continue maintaining all approvals, licenses and registrations necessary for the Financial Services from time to time and throughout the Term.

4. Inquiries and Complaints.

1. Governmental Authority. FI shall, to the extent not prohibited by Applicable Law, within ten (10) Business Days, notify Quilo and provide copies to Quilo of, to the extent materially adverse to the Program or Quilo Services, any formal complaints, notice of inquiries, investigations, examinations, demands, litigation, audit results (except to the extent that the auditors have restricted disclosure) or findings or similar materials or documents received by FI, in each case, regarding the Program or Quilo Services (or of which it otherwise becomes aware) that FI receives from a Governmental Authority.

2. Other Formal Inquiries. FI shall, to the extent not prohibited by Applicable Law, within ten (10) Business Days, notify Quilo and provide Quilo with copies of, to the extent materially adverse to the Program or Quilo Services, any other formal complaints, inquiries, investigations, examinations, demands, litigation, audit results (except to the extent that the auditors have restricted disclosure) or findings or similar materials or documents received by FI regarding the Program or Quilo Services (or of which it otherwise becomes aware) .

3. Informal Inquiries. To the extent not prohibited by Applicable Law, by the end of each quarter of the calendar year during the Term, FI shall provide to Quilo a summary of complaints received by FI regarding the Program or Quilo Services (or of which it otherwise becomes aware) that allege that Quilo is not in compliance with any consumer-facing terms and conditions or consumer-facing privacy notices applicable to Quilo or the Financial Services.

4. Inquiries relating to Personal Data. Notwithstanding the foregoing Section 5(d)(i)-(iii), If FI receives any type of request or inquiry from a governmental, legislative, judicial, law enforcement, or regulatory authority (e.g. the Federal Trade Commission or the Attorney General of a U.S. state), or faces an actual or potential claim, inquiry, or complaint in connection with the Parties’ processing or handling of Personal Data (collectively, an “Inquiry”), FI will notify Quilo without undue delay unless such notification is prohibited by Applicable Law (or, to the extent initially prohibited by Applicable Law, without undue delay if and when no longer prohibited by Applicable Law). If requested by FI, Quilo will provide FI with information relevant to the Inquiry to enable FI to respond to the Inquiry. Upon request, Quilo will provide relevant information to FI, including but not limited to facilities, records, personnel, books, accounts, data, reports, papers, and computer records, to fulfill FI’s obligations (if any) to conduct data protection impact assessments or prior consultations with data protection authorities.

5. Disaster Recovery. During the Term, FI shall maintain disaster recovery, business resumption, and contingency plans, and the capacity to implement such plans, appropriate for the nature and scope of the Financial Services and FI’s obligations under this Agreement. Such plans must enable FI to promptly resume the performance of its obligations hereunder and the Financial Services in the event of a natural disaster, destruction of FI’s facilities or operations, utility or communication failures, or similar interruption in either FI’s operations or the operations of any third party that materially affects FI’s ability to operate. FI’s disaster recovery plans must: (i) identify a recovery site or sites for all locations where Financial Services are performed or Program data is stored, (ii) address business continuation, disaster recovery, and crisis management issues, (iii) be designed to restore Financial Services operations as soon as reasonably practical under the circumstances after a declared disaster, (iv) provide for ongoing testing of such plans, and (v) be regularly updated as needed to comply with changing risks and Applicable Law. At Quilo’s request, FI shall make available to Quilo: (i) written summaries of all such disaster recovery, business resumption, and contingency plans and any changes to such plans, and (ii) such additional information as reasonably requested by Quilo in connection with such summaries.

6. Fees; Expenses; Taxes.

1. Fees. FI shall pay Quilo the Fees set forth on the Order Form. Quilo will debit the Operating Account daily for the Fees owed to Quilo for such day. If funds in an Operating Account are insufficient to pay the Fees or other amounts due under this Agreement, Quilo may debit from the Reserve Account or invoice FI for such Fees or the remaining unpaid balance of such Fees, as applicable. FI shall pay each invoice, in United States dollars, by electronic transfer within fifteen (15) days after the date of such invoice. Quilo may change the Fees that will apply to any Renewal Term upon ninety (90) days’ notice to FI prior to the conclusion of the then-current Term.

2. Expenses. Except as otherwise provided herein, each Party shall bear and pay all direct costs and expenses incurred by it or on its behalf, or assessed against it or on its behalf, in connection with negotiating this Agreement, including the fees and expenses of its own financial and other consultants, accountants and counsel.

3. Taxes. FI will be responsible for the payment of all taxes and similar charges imposed by any governmental authority arising out of the provision of the Services, excluding any (i) applicable stamp duty and taxes; (ii) taxes based on gross or net income earned by Services; (iii) franchise, business or occupation taxes payable by Quilo for its respective franchise, business or occupation; (iv) payroll taxes or other taxes payable by Quilo for its respective employees; or (v) property taxes payable by Quilo for its respective properties.

7. Record Retention and Retrieval. FI shall retain records of statements of accounts and transactions in connection with this Agreement or the Financial Services for the longer of: (i) the time established pursuant to Applicable Law; or (ii) the time established pursuant to FI’s applicable policies, procedures and practices. Upon reasonable request of Quilo from time to time, FI shall provide access or copies of such records to Quilo.

8. Automated Clearing House Functionality. The Quilo Services require FI to utilize the ACH network. As such, FI agrees to comply with NACHA rules and originate file formats in accordance with such rules and the format requirements of the Quilo Services, and to that extent, FI will accept and process ACH payments (including the initiation of direct debits) through FI’s core processing or banking platform.

7. Confidential Information; Personal Data.

1. Confidentiality. Each Party agrees to maintain in confidence all Confidential Information disclosed to it by the other Party (a “Disclosing Party”). A Party receiving the Confidential Information of a Disclosing Party (a “Receiving Party”) shall, except as authorized in writing by the Disclosing Party, (i) use all Confidential Information only to carry out the purposes of this Agreement and as permitted by this Agreement; (ii) limit access to Confidential Information only to Representatives who have a need to access the Confidential Information and only for use with the Program and the Financial Services; (iii) advise its Representatives, with written agreement, who have access to the Confidential Information that they must comply with confidentiality obligations at least as restrictive as the terms of this Agreement; (iv) safeguard all Confidential Information by using a reasonable degree of care, but not less than the degree of care used by the Receiving Party in safeguarding its own similar information; (v) not copy, change, or create other works from the Confidential Information except as necessary to carry out the purposes of this Agreement; (vi) may use the Confidential Information in response to a requirement under Applicable Law or from a Governmental Authority or in connection with any regulatory report, audit, inquiry or other request for information form a Governmental Authority; and (vii) not disclose any Confidential Information to third parties other than to its Representatives as allowed under this Agreement; provided that the terms of this Agreement may be disclosed to potential investors, acquirers, or lenders of a Party that are (i) not direct competitors of the other Party and (ii) subject to confidentiality restrictions no less strict than set forth in this Agreement. In the event that a Receiving Party receives notice of a sought disclosure or seeks disclosure of Confidential Information of the type described in clause (vi) of this Section 7(a), such Receiving Party shall, if legally permissible, (i) notify the Disclosing Party thereof promptly after notice (but before disclosure if legally permissible); (ii) consult with the Disclosing Party on the advisability of taking steps to resist or vary such request; and (iii) if disclosure is required or deemed advisable, cooperate with the Disclosing Party in any attempt that it may make to obtain a protective order or other reliable assurance that confidential treatment shall be accorded to the Confidential Information (with any reasonable out-of-pocket expenses incurred by a Party in connection with the foregoing shall be the responsibility of the Receiving Party subject to the notice or need of the type described in clause (vi) of this Section 7(a). Each Receiving Party will promptly notify the Disclosing Party upon discovery of any unauthorized use or disclosure of such Confidential Information. The existence of this Agreement, the fact that FI is providing the Financial Services, and the general description of the Financial Services is not confidential.

2. Exceptions. The obligations of confidentiality contained in Section 7(a) will not apply to the extent that such Confidential Information: (i) was already known to the Receiving Party, other than under an obligation of confidentiality, at the time of disclosure by the Disclosing Party; (ii) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the Receiving Party; (iii) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the Receiving Party in breach of this Agreement; (iv) was disclosed to the Receiving Party, other than under an obligation of confidentiality, by a third party who had no obligation not to disclose such information to others; or (v) was developed independently by the Receiving Party without any use of, or reference to, Confidential Information of the Disclosing Party. In addition, the Receiving Party may comply with an order or request from a court or other Governmental Authority of competent jurisdiction and disclose the Disclosing Party’s Confidential Information in compliance with that order only if the Receiving Party gives the Disclosing Party prior notice regarding such disclosure if permitted by the Governmental Authority and reasonably cooperates with the Disclosing Party, if possible, in seeking a protective order, confidential treatment, or such other measures reasonably applicable to oppose or limit such disclosure. The Receiving Party shall not release any more of the Disclosing Party’s Confidential Information than is necessary to comply with that order. Further, notwithstanding the foregoing, with respect to transactional and account information regarding an Applicant or Customer generated from this Program, Quilo shall be permitted to disclose and discuss said information to the applicable Applicant or Customer without prior notice to FI.

3. Rights. As among the Parties, each Party shall retain all right, title and interest in and to any proprietary and intellectual property rights in its respective Confidential Information and nothing contained herein is intended to operate to transfer any proprietary and intellectual property rights.

4. Injunctive Relief.  Each Receiving Party agrees that any unauthorized use or disclosure of Confidential Information of the Disclosing Party might cause immediate and irreparable harm to the Disclosing Party for which money damages might not constitute an adequate remedy. In that event, the Receiving Party agrees that injunctive relief may be warranted in addition to any other remedies the Disclosing Party may have.

5. Proper Destruction of Records.  Upon the request of a Disclosing Party, or upon termination or expiration of this Agreement, the applicable Receiving Party will promptly return or destroy any copies of the Disclosing Party’s Confidential Information in its possession, with the exception of Confidential Information stored as part of the Receiving Party’s standard back-up policies and procedures or Confidential Information required to be retained pursuant to Applicable Law which shall maintain the designation of Confidential Information subject to the terms of this Agreement applicable to Confidential Information for so long as such Confidential Information is retained by the Receiving Party. In connection with any destruction of information required under this Agreement during the Term, the destructing Party shall use commercially reasonable measures designed to properly destruct all records (including those containing personally identifiable information), whether in paper, electronic, or other form, including adhering to policies and procedures that require the destruction or erasure of electronic media so that the information cannot practicably be read or reconstructed.  

6. Additional Requirements Applicable to Personal Data. As to the Personal Data of Persons under its possession or control in connection with the Program, each Party shall also comply with the following requirements:

1. General Compliance. Each Party represents and warrants that it is compliant with and shall continue to comply with (A) all Applicable Law relating to the privacy, confidentiality or security of the Program or Personal Data; and (B) all provisions of the Party’s written information security policies, procedures and guidelines that apply to the Program or Financial Services. To the extent that each Party receives Personal Data in connection this Agreement, each Party shall share, use and disclose such Personal Data solely for the following purposes: (i) to exercise its rights and perform its obligations under this Agreement, including in connection with providing the Quilo Services or Financial Services; (ii) to protect against or prevent actual or potential fraud, unauthorized transactions, claims, or other liability; (iii) to comply with Applicable Law, respond to judicial process, or comply with a civil, criminal or regulatory investigation; or (iv) such other purposes as the Parties may agree upon in writing.

2. Safeguards. Each Party agrees to maintain a comprehensive written information security program that includes technical, physical, and administrative/organizational safeguards designed to (A) ensure the security and confidentiality of (i) Personal Data and (ii) Program Information received under this Agreement; (B) protect against any anticipated threats or hazards to the security and integrity of such information; (C) protect against any actual or suspected unauthorized processing, loss, or acquisition of such information; (D) ensure the proper disposal of such information; and (E) regularly test or otherwise monitor the effectiveness of such safeguards. Except to the extent prohibited by Applicable Law, each Party shall promptly notify the other Party of any known or suspected unauthorized disclosure of or access to any of such information. Each party shall not introduce into any software or computer programs belonging to or used by the other Party in connection with this Agreement, any viruses, trojan horses, worms, logic bombs or other material that is or could be malicious or technologically harmful to the other Party.

3. Privacy Policy. Each Party shall adopt a privacy notice meeting the requirements of Applicable Law, including GLBA (and, if applicable, an opt-out notice), that accurately describes the Party’s privacy policies and practices (the “Privacy Policy”) and shall timely deliver such notice (and opt-out notice) to each Applicant. Such Privacy Policy shall accurately describe the privacy practices contemplated under this Agreement. If the Party discloses Personal Data in a manner that does not meet an exception to the Applicant opt-out rights under GLBA, the Party shall track all opt-out elections and abide by them accordingly.

4. Personal Data Security Plan. Each Party shall establish and maintain an information security plan and associated practices containing appropriate measures designed to (i) ensure the security and confidentiality of Personal Data; (ii) protect against any unanticipated threats or hazards to the security or integrity of such Personal Data, (iii) protect against the unauthorized access to or use of Personal Data or other information that could result in substantial harm or inconvenience to the other Party or any Applicant or Customer; and (iv) guarantee the proper disposal of Personal Data upon termination of this Agreement (the “Data Security Plan”). The Data Security Plan shall comply with all Applicable Laws, including GLBA and the Federal banking agencies’ Interagency Guidelines Establishing Information Security Standards and Interagency Guidance on Response Programs for Unauthorized Access to Customer Information and Customer Notice applicable to FI. Each Party shall ensure that any of its third party service providers having access to Personal Data be obligated to cooperate in the implementation of similar security measures and response programs.

5. Storage. Each Party will only store Personal Data at data center locations within the United States.

6. Testing and Assessment. Each Party shall internally review and test its Data Security Plan at least annually. Upon request from the other Party on an annual basis, the results from each such audit of a Party shall be promptly provided to the other Party in writing. Each Party agrees to take immediate action to remedy any weaknesses in its security controls discovered during an internal review or annual penetration test.

7. Security Breach Response. Each Party shall develop an appropriate incident response plan to properly identify, report, investigate, and escalate incidents involving the Program, including Security Breaches. If a Party discovers a Security Breach, the Party shall take appropriate actions to immediately limit, stop, mitigate, or otherwise remedy such Security Breach, including immediately notifying the other Party of any such incident and cooperating with the instructions of any Governmental Authority. Upon reasonable request, and to the extent necessary to fulfill any obligations a Party has to investigate or notify authorities, each Party agrees to provide any information necessary regarding a Security Breach to the other Party. Notifications to the other Party of a Security Breach must include estimates of the effect of the Security Breach on the other Party and must specify the corrective action being taken by the Party. Each Party agrees that if a Security Breach described in this Section has occurred, the other Party may engage an assessor to determine the extent of the Security Breach. Each Party shall give the assessor access to the other Party’s facilities, records, and personnel, as requested by the assessor, and shall be responsible for all reasonable costs, expenses, and fees of the assessor. The Party shall provide the other Party, upon receipt, any reports or documents prepared by or received from the assessor relating to the Security Breach.

8. Security Breach Fines and Penalties. If a Security Breach occurs, the Party responsible for the Security Breach shall be responsible for paying any fines or penalties assessed against the other Party by any Governmental Authority in connection with any Security Breach.

9. Data Subject Requests. The Parties will provide each other with reasonable assistance to enable each to comply with their obligations to respond to Data Subjects’ requests to exercise rights that those Data Subjects may be entitled to under Applicable Law.

8. Data Use, Quilo’s System and Testing.

1. Data Use.

1. Data Use by FI. FI and its third party service providers shall have the right to use data (other than Quilo’s Confidential Information) transmitted to FI in the course of providing any Financial Services under this Agreement (such data, the “Quilo Data Files”) for: (i) fraud prevention, including protecting against or preventing actual and potential fraud, unauthorized transactions, claims, or other liability; (ii) analyzing or improving its Financial Services, except that any Personal Data utilized in such analysis will be in aggregated, anonymized form; (iii) preparing and furnishing analyses and other internal and external reports of aggregated, anonymized information (any necessary aggregation and de-identification of Personal Data shall be conducted in accordance with commercially reasonable industry standards); (iv) for providing other products or services including those involving data analytics to Quilo and other customers or third parties, except that any Personal Data utilized in such products or services will only be disclosed or provided in aggregated, anonymized form; (v) for the purpose of complying with Applicable Law, including, as may be required or requested by any judicial process or Governmental Authority; and (vi) for other purposes for which consent has been provided to FI or its third party service providers by the individual to whom the Data Quilo Data Files relate in accordance with Applicable Law. Any necessary anonymization and de-identification of Personal Data for the data use described above shall be conducted in accordance with commercially reasonable industry standards and FI agrees to not, and to cause its third party service providers to no, re-identify, or attempt to re-identify, the data.

2. Data Use by Quilo. Quilo and its third party service providers shall have the right to use data transmitted to Quilo in the course of offering the Program under this Agreement (such data, the “FI Data Files”) for: (i) fraud prevention, including protecting against or preventing actual and potential fraud, unauthorized transactions, claims, or other liability; (ii) analyzing or improving its services, including the security of the Program, except that any Personal Data utilized in such analysis will be in aggregated, anonymized form; (iii) preparing and furnishing analyses and other internal and external reports of aggregated, anonymized information (any necessary aggregation and de-identification of Personal Data shall be conducted in accordance with commercially reasonable industry standards); (iv) for providing other products or services including those involving data analytics to FI and other customers or third parties, except that any Personal Data utilized in such products or services will only be disclosed or provided in aggregated, anonymized form; (v) for the purpose of complying with Applicable Law, including, as may be required or requested by any judicial process or Governmental Authority, or Quilo’s applicable policies, procedures or practices; and (vi) for other purposes for which consent has been provided to Quilo or its third party service providers by the individual to whom the FI Data Files relate in accordance with Applicable Law. Any necessary anonymization and de-identification of Personal Data for the data use described above shall be conducted in accordance with commercially reasonable industry standards and Quilo agrees to not, and to cause its third party service providers to no, re-identify, or attempt to re-identify, the data.

2. Quilo’s System and Systems Testing.

1. Quilo is responsible for having all applicable hardware, software, and the means to provide the Program. Quilo shall ensure that Quilo’s systems shall: (A) transmit data to, and receive data from, FI as contemplated by the Program; and (B) permit FI to perform the Financial Services pursuant to the Selected Underwriting Criteria.

2. Prior to the subsequent introduction by Quilo of any material modification to the Program systems, the Parties shall coordinate to conduct comprehensive testing to ensure all technical aspects of the Program and FI’s and Quilo’s systems meet the requirements of this Agreement and permit FI to perform the Financial Services to the Parties’ reasonable satisfaction. If either Party disagrees as to the results of such systems testing, senior technical Representatives of each Party will meet to attempt to resolve the disagreement. FI has no obligation to provide Financial Services subsequent to the introduction by Quilo of any material modification the Program systems, until such systems testing is complete and deficiencies are remediated to FI’s reasonable satisfaction.

9. Compliance with Laws; Policies; Audit and Examination; Insurance.

1. Compliance with Laws.

1. Generally. Each Party shall comply with Applicable Law in the performance of its obligations under this Agreement, including, as applicable, 12 C.F.R. 701.22.

2. BSA/AML/OFAC Compliance. Each Party shall cooperate with the other Party in the implementation of FI’s Bank Secrecy Act, anti-money laundering, counter-terrorist financing, and OFAC compliance programs. To facilitate FI’s compliance with the foregoing requirements, Quilo shall develop, administer, and maintain a written anti-money laundering program consistent with the requirements of the federal Bank Secrecy Act and its implementing rules as interpreted and enforced by FinCEN as applicable to banking institutions (31 C.F.R. Part 1020), in each case to the extent applicable; and procedures for complying with U.S. sanctions laws and other requirements enforced by the OFAC.

3. Fraud Prevention. To the extent applicable with respect to any of the Quilo Services, the Parties shall cooperate with respect to any implementation of a fraud prevention program designed to detect, prevent, and mitigate identity theft and other fraud in connection with the Quilo Services. In such cases, the fraud prevention program shall be designed to comply with the provisions of 12 CFR 41.90-41.91 and 571.90-571.91 as well as the Interagency Guidelines on Identity Theft Detection, Prevention, and Mitigation set forth at Appendix J to 12 CFR Part 41, as applicable to each of the Quilo Services.

2. Policies and Procedures. 

1. Operating Policies and Procedures. Each Party shall maintain written policies and procedures associated with fulfilling its responsibilities and obligations contained in this Agreement and required by Applicable Law.

2. Corrective Action Plans.  Quilo shall prepare a written response to FI (a “Response to Audit Letter”) to all criticisms, recommendations, deficiencies, and violations of Applicable Law of it identified in reviews conducted by or on behalf of FI or any Governmental Authority (“Audit Findings”). The Response to Audit Letter shall be delivered to FI within thirty (30) days of Quilo’s receipt of such Audit Findings, unless directed otherwise by a Governmental Authority.

3. Periodic Program Review.  Each Party will use its commercially reasonable efforts to promptly comply with all reasonable diligence and information requests from the other Party in connection with this Agreement. At each Party’s request, the Parties shall meet from time to time to review the Agreement and each of their respective performance and to attempt to resolve any issues the Party may have with the other Party’s compliance with this Agreement or Applicable Law.  

3. Audit and Examination. During the Term and for the applicable retention period, FI and Quilo shall keep all necessary records in order to comply with this Agreement and Applicable Laws. Quilo agrees that FI (either directly or by the use of accountants or other agents or Representatives subject to entering into nondisclosure agreements reasonably acceptable to Quilo) may, once per calendar year, audit, inspect and review its files, records and books that pertain to duties and obligations under this Agreement and which FI may reasonably require in order to comply (or ensure compliance) with Applicable Law or to respond to any examination by or request from a Governmental Authority. Quilo also agrees that any Governmental Authority with supervisory authority over FI may inspect, audit, and examine all of Quilo’s facilities, records and personnel relating to the Program at a time so as to minimize disruption to Quilo’s business upon reasonable notice and may make abstracts from Quilo’s books, accounts, data, reports, papers, and computer records to the extent applicable to the Program or this Agreement. Quilo shall make all such facilities, records, personnel, books, accounts, data, reports, papers, and computer records available to FI or such Governmental Authority, as applicable, for the purpose of conducting such inspections and audits. All such audits, reviews, inspections or examinations by FI described in this Section 9(c) shall be conducted at FI’s sole cost and expense and upon reasonable notice during Quilo’s regular business hours and conducted so as to not unduly interfere with Quilo’s normal business operations. With respect to new agreements entered into after the Effective Date, Quilo shall also secure the right of any Governmental Authority to exercise similar audit and examination rights in connection with any subcontractor or third party that is fulfilling Material Duties to Quilo under the Program.

4. Insurance.

1. Coverage. Each Party shall, at its own cost and expense, obtain and maintain in full force and effect throughout the Term, with financially sound and reputable insurers having A.M. best ratings of at least A- (VII) or better, the limit of which shall be no less than $1,000,000 per occurrence or $2,000,000 aggregate, for each of the following categories:

1. a comprehensive general liability policy, including contractual liability, bodily injury, death and/or property damage;

2. a comprehensive crime policy, including employee dishonesty/fidelity coverage, with respect to the work or operations done in connection with this Agreement;

3.      a cyber policy;

4. a comprehensive errors and omissions policy; and

5. a workers’ compensation policy in at least the minimum amounts required by any Applicable Law

2. Limitations. Notwithstanding the foregoing, Quilo may fulfill its obligations under this Section by being appointed as an additional insured on policies obtained and maintained by its Affiliates that meet the requirements of this Section. A copy of each policy and any certificates of insurance evidencing the existence of such policy shall be provided to the other Party from time to time upon reasonable request.  Each Party shall promptly provide notice to the other Party in the event of any notice of nonrenewal or cancellation, lapse, termination or reduction in any insurance coverage required to be maintained pursuant to this Section.

10. Use of Marks.

1. Use of Marks. The Parties intend and agree that Quilo shall have the right to use FI’s Marks in furtherance of Quilo’s administration and provision of the Program and related Quilo Services. For the avoidance of doubt, Quilo shall be entitled to use the FI’s Marks (including name) in disclosures and information associated with the Program, and Quilo may use FI’s Marks in its disclosure of the FI’s Financial Services as part of the Quilo Services to Applicants. Except for the foregoing rights of Quilo, if a Party believes it necessary to use the other Party’s Marks in connection with this Agreement, the Party seeking to use the other Party’s Marks must first obtain such other Party’s written approval, which shall not be unreasonably withheld, for all materials bearing such other Party’s Marks prior to the use of such materials. Prior to such use, Quilo will provide the proposed materials that will contain the FI’s name to FI for review and approval. FI will act in good faith to review such materials and approve or reject such use within ten (10) Business Days. If FI rejects such use, FI shall provide the good faith reasons for doing so and allow Quilo to resubmit proposed materials.

2. Rights. Except for the permissive uses identified herein, each Party acknowledges the ownership right of the other Party in the Marks of such other Party and agrees that all use of the other Party’s respective Marks shall inure to the benefit, and be on behalf of, the other Party, respectively. Except for the permissive uses identified herein, each Party acknowledges that its utilization of the other Party’s Marks will not create in it, nor will it represent it has, any right, title or interest in and to such Marks. Each Party agrees not to do anything to contest or impair the existing intellectual property rights in the Marks of the other Party.

11. Ownership; License. Nothing in this Agreement shall be construed or interpreted as granting to FI any rights or licenses, including any rights of ownership or any other proprietary rights, in or to the Program or the Quilo Services, Program Information, any other software or technology of Quilo or its licensors, or any intellectual property rights embodied within any of the foregoing, except that, subject to FI’s compliance with the terms and conditions of this Agreement, Quilo grants FI a limited, revocable, non-exclusive, non-transferrable, non-sublicensable license, during the Term, to access and use the Program and Workspace only as expressly permitted by and in accordance with this Agreement. FI’s use of and activation of an account on Program or Workspace may be subject to additional terms and conditions applicable to the Program or Workspace, including Quilo’s designated terms of use and privacy policy.

12. Representations and Warranties. Each Party’s representations and warranties in this Agreement are deemed to be made as of the Effective Date and with continuing effect during the Term.

1. Organization; Authority. Each Party represents and warrants to the other Party that it is duly organized, validly existing and in good standing under Applicable Law and has full power and authority to enter into and carry out the provisions of this Agreement.

2. Binding Agreement. Each Party represents and warrants to the other Party that this Agreement: (i) contains legal and valid obligations binding upon such Party; and (ii) is enforceable in accordance with its terms. The execution and delivery of this Agreement and the performance of its terms by such Party does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any Applicable Law.

3. Licenses. Each Party represents and warrants to the other Party that it has and will maintain in good standing all necessary authorities, licenses, registrations, approvals and means required by Applicable Law to conduct its business.

13. Limitation of Liability; Damages; Risk Allocation; Disclaimer of Warranties.

1. Limitation of Liability. EACH PARTY’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ALL LOSS, DAMAGE OR OTHER HARM TO CLIENT IS LIMITED TO AN AMOUNT EQUAL TO THE AGGREGATE FEES PAID TO QUILO UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE SUCH LOSS, DAMAGE OR OTHER HARM AROSE. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LOSS, DAMAGE OR OTHER HARM TO CLIENT ARISING FROM, OR RELATED TO, A CLAIM FOR: (A) ANY ACT OF FRAUD BY EITHER PARTY; (B) CRIMINAL ACTIVITY BY EITHER PARTY; (C) BREACH OF CONFIDENTIALITY OBLIGATIONS IN THIS AGREEMENT BY EITHER PARTY; (D) GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF EITHER PARTY; (E) EITHER PARTY’S DISCLOSURE OF PERSONAL DATA IN BREACH OF THIS AGREEMENT OR SECURITY BREACHES EXPOSED BY EITHER PARTY; (F) INFRINGEMENT OF EITHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; (G) FAILURE OF FI TO ADVANCE OR DISBURSE FUNDS RELATED TO ITS, OR MAKE PAYMENTS ON, FINANCIAL SERVICES AS REQUIRED UNDER THIS AGREEMENT; OR (H) INDEMNIFICATION OBLIGATIONS OF EITHER PARTY UNDER THIS AGREEMENT

2. Damages. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND UNLESS OTHERWISE AGREED, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, EVEN IF SUCH PARTY HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE LIMITATIONS SET FORTH IN THIS SECTION 13(b) SHALL NOT APPLY TO OR IN ANY WAY LIMIT THE INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT.

3. Risk Allocation. Each Party agrees that the limitations of liability and exclusions set forth in this Section 13 are a reasonable allocation of risk. These limitations shall apply notwithstanding any failure of essential purpose or of any failure or inadequacy of remedy. Each Party acknowledges and agrees that the pricing and the other terms of this Agreement are predicated on the limitations of liability set forth in this Section 13 and acknowledges that the other Party would not enter into this Agreement without such limitations. Each Party shall have no liability for Losses which result from an act or omission of the other Party.

4. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT (INCLUDING ANY SERVICE SCHEDULE, ADDENDUM, OR EXHIBIT), ALL PRODUCTS AND SERVICES PROVIDED BY EACH PARTY HEREUNDER, INCLUDING ALL DOCUMENTATION AND ALL UPDATES OR MODIFICATIONS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE FINANCIAL SERVICES, THE QUILO SERVICES, THE PROGRAM, OR ITS CONFIDENTIAL INFORMATION AND TECHNOLOGY PROVIDED OR USED HEREUNDER, AND EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS NOT EXPRESSLY SPECIFIED IN THIS AGREEMENT, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

14. Indemnification.

1. Indemnification by Quilo. Quilo shall indemnify, defend and hold harmless FI, its parent, subsidiaries or Affiliates, and their respective officers, directors, employees and permitted assigns, against any and all out-of-pocket expenses or losses, liabilities, damages, costs or other direct expenses (collectively, “Losses”) from any third party claims or counterclaims arising from any action, claim, demand, allegation or proceeding (such third party claims, “Claims”) made or brought as a result of: (i) any breach of a warranty, representation or covenant made by Quilo in this Agreement; (ii) any Security Breach that is: (a) directly or indirectly caused by Quilo or its Representatives or vendors or contractors; or (b) directly or indirectly attributable to access to data maintained by Quilo and which is due to unauthorized access directly caused by Quilo or its Representatives or vendors or contractors; and/or (iii) a Claim that Quilo’s Program or its services or systems infringe upon any third-party intellectual property right; provided, that the foregoing provisions shall not apply to the extent such Losses or Claims result from (A) an act of fraud or criminal activity by FI or its Representatives, (B) FI’s or its Representative’s gross negligence or intentional misconduct or (C) the failure of FI or its Representatives to comply with, or to perform its or their obligations under, this Agreement or any Financial Services such as to give rise to such Loss or Claim.

2. Indemnification by FI. FI shall indemnify, defend and hold harmless Quilo, its parent, subsidiaries or Affiliates, and their respective officers, directors, employees, and permitted assigns, against any and all Losses from any Claims made or brought as a result of: (i) any breach of a warranty, representation or covenant made by FI in this Agreement; (ii) any Security Breach that is: (a) directly or indirectly caused by FI or its Representatives or vendors or contractors; or (b) directly or indirectly attributable to access to data maintained by Quilo and which is due to unauthorized access directly caused by FI or its Representatives or vendors or contractors; (iii) any disbursement of proceeds related to a Loan or purchase of a participation interest in a Loan that is made in reliance on, or in conformance with, the Selected Underwriting Criteria; (iv) any act or omission of FI relating to FI’s Financial Services or the Selected Underwriting Criteria; and/or (v) Financial Services or Products conforming with the Selected Underwriting Criteria (including Claims by Applicants, Customers, former or prospective Applicants or Customers or any Governmental Authority relating to aspects of the Financial Services or Products conforming with the Selected Underwriting Criteria); provided, that the foregoing provisions shall not apply to the extent such Losses or Claims result from (A) an act of fraud or criminal activity by Quilo or its Representatives, (B) gross negligence or intentional misconduct by Quilo or its Representatives, or (C) the failure of Quilo or its Representatives to comply with, or to perform its or their obligations under, this Agreement such as to give rise to such Loss or Claim.

3. Indemnification Procedures. 

1. Right to Defend. If any Claim is commenced or asserted against a Party that gives rise, or any knowledge is received of a state of facts which, if not corrected, may give rise, to a right of indemnification under the provisions of subsections (a) or (b) above of the Party (the “Indemnified Party”), written notice of such Claim or facts shall promptly be given by the Indemnified Party to the Party from whom indemnification may be sought (the “Indemnifying Party”). The failure to give such notice shall not, however, relieve the Indemnifying Party of its indemnification obligations except to the extent that the Indemnifying Party is materially prejudiced thereby. The Indemnifying Party shall have the right to defend any such Claim in its name and at its expense, shall select the counsel for the defense of such Claim as approved by the Indemnified Party, and shall cooperate with the Indemnified Party in the conduct of the defense against such Claim.

2. Indemnifying Party Election. If the Indemnifying Party elects and is entitled to compromise or defend such Claim it shall within thirty (30) days (or sooner, if the nature of the Claim so requires) notify the Indemnified Party of its intent to do so, and the Indemnified Party shall, at the expense of the Indemnifying Party, cooperate in the defense of such Claim. In such case, the Indemnified Party shall have the right to participate in the defense of any Claim with counsel selected by it. Except as provided in this Section, the fees and disbursements of such counsel shall be at the expense of the Indemnified Party.

3. Indemnifying Party Obligation. The Indemnifying Party shall have no obligation to pay the monetary amount of the settlement of any Claim entered into by the Indemnified Party without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed). Notwithstanding the Indemnifying Party’s right to direct the defense against any Claim, the Indemnifying Party shall not have the right to compromise or enter into an agreement settling any claim, suit, demand or action without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed).

15. Term and Termination.

1. Term. The term of this Agreement shall commence on the Effective Date and shall continue until the date that is identified as the “Initial Term Conclusion Date” on the Order Form (the “Initial Term”), unless earlier terminated in accordance with this Agreement. This Agreement shall automatically renew with respect to the Program for additional two (2) year periods (each a “Renewal Term” and collectively with the Initial Term, the “Term”) until terminated by either Party as set forth in Section 15(b) below.

2. Termination/Suspension.

1. Either Party may terminate this Agreement for convenience by providing at least one hundred and twenty (120) days’ written notice.

2. Either Party may terminate this Agreement if the other Party has materially breached this Agreement and does not cure such breach within twenty (20) Business Days after receipt of written notice.

3. This Agreement shall automatically terminate if Quilo (or a direct or indirect parent or holding company of Quilo): files a voluntary petition in bankruptcy or any pleading seeking any reorganization, liquidation, or dissolution under any law; admits or fails to contest the material allegations of any such pleading or involuntary petition in bankruptcy filed against it; has an order for relief or bankruptcy declaration entered against it under Applicable Law; is adjudicated as insolvent, or a receiver or liquidator is appointed for a substantial part of its assets; is the subject of or undertakes an abatement of the claims of creditors or an assignment for the benefit of the creditors, or any similar disposition of its assets under any law; or ceases to conduct its normal and customary business operations.

4. Notwithstanding Section 15(b)(ii) above, FI may terminate this Agreement:

1. with immediate effect upon written notice if: (Y) a change in Applicable Law has occurred that precludes or materially interferes with FI’s ability to perform any of the Financial Services in compliance with Applicable Law, provided FI is not entitled to this termination right if it has not engaged in commercially reasonable efforts to comply with the change in Applicable Law; or (Z) FI’s provision of any of the Financial Services constitutes an unsafe or unsound banking practice as determined by a Government Authority; or

2. with thirty (30) days’ prior written notice, during which period Quilo may cure the applicable change, if there is any material adverse change in Quilo’s financial position or business.

5. Notwithstanding Section 15(b)(ii) above, Quilo may terminate this Agreement:

1. With immediate effect upon written notice if: (X) a change in Applicable Law has occurred that precludes or materially interferes with Quilo’s ability to provide the Program or the Quilo Services as contemplated in this Agreement in compliance with Applicable Law, provided Quilo is not entitled to this termination right if it has not engaged in commercially reasonable efforts to comply with the change in Applicable Law; (Y) Quilo reasonably believes that FI’s provision of any of the Financial Services, or of FI’s other programs or business, does not comply with Applicable Law and FI is unable to or unwilling to adapt to comply with Applicable Law; or (Z) FI is unable to provide the any of the Financial Services contemplated in this Agreement.  

2. Immediately, in the event FI is deemed by the appropriate federal banking or credit union agency to be critically undercapitalized, is placed into conservatorship or receivership or proceedings are commenced and remain unstayed for a period of at least thirty (30) days to wind up, dissolve, liquidate or reorganize FI, files for any protections under bankruptcy or other insolvency law,  becomes insolvent or the subject of a bankruptcy proceeding, commits an act of bankruptcy, makes an assignment for the benefit of creditors, is subjected to the appointment by any Governmental Authority of any person to take charge of it or it’s assets or deposits or all or substantially all FI’s capital stock, assets or deposits are sold to another entity in connection with FDIC or NCUA receivership or a similar event.

3. Effects of Termination.

1. Accrued Rights and Obligations. Termination or expiration of this Agreement for any reason shall not release a Party from any liability or obligation that, at the time of such termination, has already accrued to the other Party or that is attributable to a period prior to such termination, nor shall it preclude a Party from pursuing any rights and remedies it may have under this Agreement or at law or in equity with respect to any breach of this Agreement.

2. Fees. Upon the termination or expiration of this Agreement, FI shall immediately pay Quilo all Fees and other amounts due and remaining payable hereunder for services provided prior to termination.

3. Effect on Services. Upon termination or expiration of this Agreement, all pending transactions under any of the Financial Services that have not yet been originated/issued shall immediately be canceled. Notwithstanding anything contained in this Agreement to the contrary, to the extent that, pursuant to the Services, there are Products originated/issued and outstanding at the time of termination or expiration of this Agreement, the terms and conditions of this Agreement that are applicable to the origination/issuance, administration, servicing, and collection of the Product shall survive for those applicable Products until the Products are paid off or are charged-off (with final resolution of collection proceedings by the Originator on the applicable Loan) in the ordinary course of business.

4. Survival. Notwithstanding anything contained in this Agreement to the contrary, all of Quilo and FI’s respective obligations, representations and warranties under this Agreement which are not, by their express terms, fully to be performed while this Agreement is in effect, will survive the termination of this Agreement. In addition and without limitation, provisions will survive where necessary to give effect to their meaning, including: Sections 4 (Operating Account and Reserve Account), 7 (Confidential Information; Personal Data), 13 (Limitation of Liability; Damages; Risk Allocation; Disclaimer of Warranties), 14 (Indemnification), 15(c) (Effects of Termination), 16 (Resolution of Disputes), and 17 (Miscellaneous).

16. Resolution of Disputes.

1. General.  FI and Quilo shall initially address any Dispute through informal meetings.  To the extent any Dispute cannot be resolved by discussions among the FI and the Quilo, either Party may refer such Dispute to the Chief Executive Officers of the respective Parties by sending a notice to the other Party that it wishes to have the Chief Executive Officers of the Parties (or a designated executive officer) resolve a Dispute.  Any Dispute that cannot be resolved by the Chief Executive Officers (or their designee) shall be resolved in accordance with the procedures set forth in this Section 16.  Each Party covenants to the other Party that it shall not resort to judicial remedies with respect to a Dispute except for relief in aid of arbitration (including maintenance of the status quo pending arbitration) and except as allowed pursuant to the provisions of this Section 16.

2. Alternative Dispute Resolution.

1. Informal Resolution.  In the event that any dispute or controversy arises out of or relates to this Agreement, the Parties hereby agree and acknowledge that they will attempt to privately resolve said dispute or controversy among themselves for a period of thirty (30) days after said dispute of controversy arises (the “Resolution Period”).  During the Resolution Period, the Parties acknowledge and agree that they shall not communicate or discuss the dispute or controversy with any outside or unrelated parties other than their respective legal counsel.  In the event that a dispute or controversy cannot be resolved within the Resolution Period, then the dispute or controversy may be addressed and resolved in a binding arbitration proceeding, as described below.  

2. Binding Arbitration.  After the completion of the Resolution Period, any remaining unresolved dispute or controversy arising out of or relating to this Agreement shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association, and judgment upon the award rendered by the arbitral tribunal may be entered in any court having jurisdiction thereof. The arbitration tribunal shall consist of a single arbitrator mutually agreed upon by the Parties, or in the absence of such agreement within thirty (30) days from the first referral of the dispute to the American Arbitration Association, designated by the American Arbitration Association. The place of arbitration shall be New York City, New York for claims initiated by FI and shall be the local county and state of the FI’s legal address for claims initiated by Quilo, unless the Parties shall have agreed to another location within fifteen (15) days from the first referral of the dispute to the American Arbitration Association. The arbitral award shall be final and binding. The Parties waive any right to appeal the arbitral award, to the extent a right to appeal may be lawfully waived. Each Party retains the right to seek judicial assistance: (i) to compel arbitration, (ii) for Provisional Relief, and (iii) to enforce any decision of the arbitrator, including the final award. The Parties understand that arbitration fees shall be split equally between claimant(s), on the one hand, and the respondent(s), on the other, however, the arbitrator shall have the discretion to order that the prevailing Party be reimbursed for the attorney’s fees, arbitration fees, and costs incurred.

3. Provisional Relief.  The Parties agree and acknowledge that either Party, in addition to any other rights or remedies which they may possess, shall be entitled to injunctive and other equitable relief to prevent or remedy a breach of this Agreement which may be requested from a state or federal court of competent jurisdiction if so required to prevent further or irreparable damage or injury (“Provisional Relief”).  However, this narrow exception to the Parties’ agreement to arbitrate shall in no way operate to invalidate or otherwise circumvent the agreement to arbitrate the Parties’ claims as set forth in this Agreement, nor shall a Party’s attempt to seek such relief be regarded a breach of this Agreement.

4. Confidentiality of Proceedings. The arbitration proceedings contemplated by this Section shall be as confidential and private as permitted by Applicable Law; provided, however, that the Parties are permitted to disclose the proceedings to accountants, legal counsel, professional advisors and Governmental Advisors. To that end, the Parties shall not disclose the existence, content or results of any proceedings conducted in accordance with this Section, and materials submitted in connection with such proceedings shall not be admissible in any other proceeding; provided, however, that this confidentiality provision shall not prevent a petition to vacate or enforce an arbitral award, and shall not bar disclosures required by any Applicable L

5. WAIVER OF TRIAL BY JURY; CLASS ACTION WAIVERS; REPRESENTATIVE ACTIONS WAIVERS.  EACH PARTY ALSO, KNOWINGLY AND WILLINGLY, AND FOLLOWING CONSULTATION WITH COUNSEL, HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY RIGHTS TO A TRIAL BY JURY, CLASS ACTION, OR ACTION ON A REPRESENTATIVE BASIS FOR OTHER PARTIES OR PERSONS IN CONNECTION WITH ANY DISPUTE ARISING UNDER THIS AGREEMENT.

3. Other Remedies.  Notwithstanding the foregoing:

1. The Dispute resolution process described in this Section 16 shall not limit either Party’s right to give notice of termination or otherwise pursue its right to terminate this Agreement or other rights set forth in this Agreement.

2. Exceptions.  Notwithstanding the foregoing, the Parties agree that the provisions of this Section 16 shall not apply with respect to any third-party claim in the event such third party:

1. has initiated a lawsuit or other judicial, administrative, or arbitration proceedings against or involving either or both of the parties in which a Dispute will be resolved; or

2. is a necessary participant in any judicial, administrative, or arbitration proceedings to resolve a Dispute and cannot be joined by either or both of the parties in a resolution of such Dispute pursuant to the procedures set forth in this Section 16 and as such the procedure set forth in this Section 16 is or will be ineffective as to such Dispute;

3. provided, however, that the procedure set forth in this Section 16 shall apply in the event a Dispute in connection with the foregoing events set forth in this Section 16(c)(ii) relates to whether any Claims in connection with such third-party claim is indemnifiable by either Party.

17. Miscellaneous.

1. Non-exclusivity. FI understands and agrees that the customer relationships with the Customers or Applicants established as a result of FI’s receipt of the Services are non-exclusive to FI, and each Party shall have the right to market other products and services to Customers based upon information obtained with respect to a Product, or the Applicant’s application for a Product, subject to compliance with Applicable Law; provided that FI shall not offer financing intended to prepay any Loan or compete directly with any Loan, unless Quilo has consented to such financing offer. All products and services offered must be confined to the Quilo and FI agreement. Quilo will not offer or market any FI product originating outside this agreement.  FI will share information with Quilo for such purposes based on the written authorization of the Applicant or Customer to FI to share information with Quilo.

2. Assignment.  Neither Party may assign or transfer this Agreement or its rights or obligations granted under this Agreement by operation of law, contract or otherwise, without the other Party’s prior written consent; provided, however, that either Party may, with the consent of the other Party, delegate any obligations under this Agreement or assign this Agreement to an Affiliate.  Any purported assignment in contravention of the foregoing sentence shall be null and void.  Notwithstanding the foregoing, either Party may assign this Agreement or its rights under this Agreement in connection with a sale of substantially all of its assets or a merger.  Such Party shall use reasonable efforts to give the other Party written notice of any such assignment, transfer or delegation, and if to do so would not cause such Party to be in breach of any obligation (including confidentiality obligations) to any third parties or Governmental Authority.  Except as stated in the next sentence, this Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the Parties.  No assignee for the benefit of creditors, custodian, receiver, trustee in bankruptcy, debtor-in-possession, or other Person or entity who takes custody of a Party’s assets or business, will have any right to continue or to assume or to assign this Agreement.

3. Governing Law; Jurisdiction.  This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to its conflicts of laws principles.  Subject to the binding arbitration provisions set forth above, each Party irrevocably consents to the exclusive jurisdiction of the courts of the state and federal courts located in Wilmington, Delaware in connection with all proceedings related to this Agreement and waives any objection to venue in such courts.

4. Publicity.  Neither Party shall issue any news release, public announcement, advertisement, or any other form of publicity in connection with this Agreement without first obtaining the written approval of the other Party.

5. Independent Contractors. The Parties are independent parties, and the nature and extent of their arrangement is set forth in this Agreement and other written documents and agreements setting forth their rights, duties and obligations with respect to their various relationships. Unless otherwise agreed, Parties are independent contractors, and are not partners, and nothing contained in this Agreement shall be construed as creating a partnership, joint venture or any similar relationship other than as independent contracting parties.

6. Further Assurances. Each Party shall execute all such further documents and instruments and to do all such further things as the other Party may reasonably request in order to give effect to and to consummate the transactions contemplated by this Agreement.

7. Severability. If any provision of this Agreement conflicts with the law under which this Agreement is to be construed or is held invalid by a court with jurisdiction over the Parties, (i) such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with Applicable Law; and (ii) the remaining provisions of this Agreement will remain in full force and effect.

8. Force Majeure. If any Party is unable to carry out the whole or any part of its obligations under this Agreement by reason of a Force Majeure Event, then the performance of the obligations under this Agreement of such Party as they are affected by such cause shall be excused during the continuance of the inability so caused, except that should such inability not be remedied within thirty (30) days after the date of such cause, any Party not so affected may at any time after the expiration of such thirty (30) day period, during the continuance of such inability, terminate this Agreement on giving written notice to such Party and without payment of a termination fee or other penalty.   To the extent that any Party not affected by a Force Majeure Event is unable to carry out the whole or any part of its obligations under this Agreement because a prerequisite obligation of the Party so affected has not been performed, the Party not affected by a Force Majeure Event also is excused from such performance during such period.  A “Force Majeure Event” as used in this Agreement shall mean an unanticipated event that is not reasonably within the control of the affected Party or its subcontractors (including, but not limited to, acts of God, pandemic (excluding the COVID-19 pandemic), acts of governmental authorities, strikes, war, riot and any other causes of such nature), and which by exercise of reasonable due diligence, such affected Party or its subcontractors could not reasonably have been expected to avoid, overcome or obtain, or cause to be obtained, a commercially reasonable substitute therefor.  No Party shall be relieved of its obligations hereunder if its failure of performance is due to removable or remediable causes which such Party fails to remove or remedy using commercially reasonable efforts within a reasonable time period.   Each Party rendered unable to fulfill any of its obligations under this Agreement by reason of a Force Majeure Event shall give prompt notice of such fact to the other Parties, followed by written confirmation of notice, and shall exercise due diligence to remove such inability with all reasonable dispatch.

9. Headings. The captions and headings used in this Agreement are included for convenience only and shall not affect the meaning or interpretation of this Agreement.

10. Amendments; Waiver. 

1. Amendments by Quilo. Quilo may update, amend, restate or supplement from time to time the Agreement by providing FI with ninety (90) days prior written or electronic notice. FI’s continued use of the Program or any of the Quilo Services after Quilo’s designated effective date with respect to any such action will constitute FI’s acceptance of the updated, amended, restated or supplemented Agreement terms and FI’s agreement to be bound by them. If FI does not want to accept such updated, amended, restated or supplemented Agreement terms, it must not use the Program or any of the Quilo Services subsequent to such effective date, provided that any existing Products (if any) will continue to be governed by the Agreement terms existing prior to said update, amendment, restatement or supplement.

2. Other Amendments. Except for Section 17(j)(i), this Agreement may not be modified except by written agreement dated after the date of this Agreement and signed by an authorized representative of each of the Parties.

3. Waiver. The failure of a Party to insist upon or enforce strict performance by the other Party of any provision of this Agreement, or to exercise any right under this Agreement, shall not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect.

11. Cumulative Remedies. Except where otherwise specified, the rights and remedies granted to a Party under this Agreement are cumulative and in addition to, and not in lieu of, any other rights or remedies which a Party may possess at law or in equity.

12. Notices. 

1. Consent to Electronic Disclosures and Notices. By entering into this Agreement, FI consents to the written or electronic provision of all disclosures and notices from Quilo, including those required by Applicable Law.

2. Methods of Delivery. FI agrees that Quilo can provide all disclosures and notices relating to this Agreement to FI through Workspace, or by mailing disclosures and notices to FI’s email or physical addresses identified in the Order Form or in Quilo’s records (including any saved email or physical addresses found in Workspace). Notices and disclosures may include notifications about changes to the Program, the Services or other information Quilo is required to provide to FI. FI also agrees that electronic delivery of a disclosure and notice has the same legal effect as if Quilo provided FI with a physical/written copy. FI has an ongoing obligation to check the Workspace, its email, and physical address for any disclosures and notices (including for updates or changes to this Agreement).

3. Requirements for Delivery. FI will need a computer or mobile device, Internet connectivity, and an updated browser to access Workspace and review the disclosures and notices provided to FI.

4. Notices to Quilo. All notices to Quilo hereunder will be sent in writing to the following address or to such other address as Quilo may advise FI in writing—If to Quilo: Qoosh Technology, Inc, 220 South Complex Drive, Kalispell, MT 59901, Attn: Legal.

13. Counterparts. This Agreement and/or the Order Form may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. The use of electronic signatures shall be permitted.

14. Entire Agreement. This Agreement (including the Order Form) constitutes the entire agreement between the Parties hereto with respect to its subject matter, supersedes all prior and contemporaneous agreements (oral or written) between the Parties with respect to that subject matter and may not be modified, amended or otherwise changed in any manner as permitted by Section 17(j).

15. No Third-Party Beneficiaries. Except as set forth herein, this Agreement does not confer upon any Person or entity other than the Parties any rights or remedies under this Agreement.