Xen, Inc., a Delaware corporation (“XEN”), develops, markets and licenses a proprietary on-line platform (a.k.a. Software-as-a-Service) to streamline and automate end-to-end loan processes (“Service”) for use by an entity (“Company”) and its employees, consultants, agents and Company-authorized borrowers, prospective clients, sales brokers and other similarly-situated third parties related to its business hereunder (collectively, “Users”; and together with Company, “Customer”). Company shall be liable for any Customers’ use and/or misuse of the Services. Company enters into this Agreement (defined below) on a subscription basis for specific Service(s) as follows: (1) Company clicked-through a website, banner, email or other means for XEN’s initial, freemium offering (“Initial Offering”), or (2) as set forth on one or more order form(s) submitted by Company and accepted by XEN (each an “Order Form”). The “Effective Date” of this Agreement is the date Company or its Users initially access the applicable Service; provided, however, that each Order Form has its own term, as set forth therein (“Subscription Term”). The (i) Order Form(s), (ii) these Terms and Conditions (“Terms”), and (iii) the Privacy Notice found at www.xenplatforms.com/privacy-notice, including any and all attachments, exhibits or schedules thereto and hereto, each and all attached and incorporated herein by reference, are collectively the “Agreement”. This Agreement specifically excludes and disavows any terms or conditions provided by Company in any invoice, purchase order, receipt, acknowledgement or other form or document and all such terms and conditions are void and without effect; in the event of a conflict between an Order Form and these Terms, the Order Form governs.

PLEASE READ THESE TERMS CAREFULLY. BY CLICKING ACCEPT OR ACCESSING OR USING THE SERVICE, OR AUTHORIZING OR PERMITTING ANY USERS TO ACCESS OR USE THE SERVICE, YOU REPRESENT AND WARRANT YOU HAVE THE AUTHORITY TO BIND THE COMPANY TO THESE TERMS; IF YOU DO NOT HAVE SUCH AUTHORITY, NO RIGHT OR LICENSE IS GRANTED HEREIN AND YOU MUST NOT ACCESS OR USE, OR PERMIT ANY ACCESS TO, THE SERVICES. COMPANY AGREES TO BE BOUND BY THESE TERMS. IF COMPANY DOES NOT AGREE TO ALL THESE TERMS, THEN DO NOT CLICK ACCEPT AND COMPANY AND ANY USERS HAVE NO RIGHT OR LICENSE TO, AND MAY NOT ACCESS OR USE, THE SERVICE.

XEN may, in its sole discretion, modify these Terms at any time in its sole discretion effective upon posting the modified Terms through the Service, with email notice from XEN to Company (or as otherwise may be notified through the Service). Company is responsible for regularly reviewing any information posted through the Service, including such modified Terms, if any. If Company does not agree to the modified Terms, Company agrees to immediately stop using the Service. CONTINUED ACCESS OR USE OF THE SERVICE AFTER SUCH POSTING (OR OTHER NOTIFICATION) MEANS COMPANY ACCEPTS AND AGREES TO BE BOUND BY THE MODIFIED TERMS.

SECTION 11 BELOW IMPACTS COMPANY’S RIGHT TO FILE A LAWSUIT IN COURT; READ CAREFULLY BEFORE ACCEPTING THESE TERMS.

1. SAAS SERVICES AND SUPPORT

1.1. Subject to the terms and conditions of this Agreement, XEN will provide Customers the selected Services. XEN hereby provides Customers with a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable license to use the Services and the Software (as defined below) on the terms and conditions set forth in this Agreement.

1.2. Subject to the terms and conditions of this Agreement and as may be set forth on an Order Form, XEN will provide Customers with reasonable technical support services in accordance with XEN’s standard practice.

1.3. Notwithstanding anything else to the contrary in these Terms, XEN may suspend Company’s and Customers’ access to the Services in the event of breach or threatened breach by any Customer. In such case, XEN will provide notice to Company as soon as possible, and will restore Customers’ access to the Services promptly after Company cures any such breach.

2. RESTRICTIONS AND RESPONSIBILITIES

2.1. Customers will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by XEN or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or for purposes other than their intended purpose or otherwise for the benefit of a third party; or remove any proprietary notices or labels from the Services.

2.2. Customers may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

2.3. Company represents, covenants, and warrants that Customers will use the Services only in compliance with XEN’s standard published documentation then in effect and all applicable laws and regulations. Company hereby agrees to indemnify and hold harmless XEN against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) incurred by XEN or any of its agents, employees, officers, directors or service providers in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customers’ use of Services. Although XEN has no obligation to monitor Customers’ use of the Services, XEN may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.4. Customers shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

3. REPRESENTATIONS & WARRANTIES

Each of XEN and Customer represents and warrants that:

3.1. It is an entity duly organized or formed, validly existing and in good standing under the laws of its state of incorporation or formation, and has all required power and authority to own its assets and to carry on its business as presently conducted and to execute, deliver and perform its obligations under this Agreement.

3.2. It has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all requisite action. When executed and delivered by each Party, this Agreement shall have been duly and validly executed by such Party and shall constitute a legal, valid and binding obligation, enforceable against such Party in accordance with its terms, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally and (ii) general principles of equity.

3.3. It will comply with applicable federal, state and local laws, rules and regulations relating to such Party’s performance of its obligations under this Agreement. It shall not engage in any unfair, deceptive, or abusive acts or practices.

4. CONFIDENTIALITY; PROPRIETARY RIGHTS

4.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information means any information provided by the Disclosing Party to the Receiving Party that is marked or otherwise identified as “confidential” or “proprietary” and concerning such Disclosing Party’s business or operations including, but not limited to, all tangible, intangible, visual, electronic, now-existing or future information such as: (a) trade secrets; (b) financial information, including pricing; (c) technical information, including research, development, procedures, algorithms, data, designs, code, and know-how; (d) business information, including operations, planning, marketing interests, and products; (e) the terms of this Agreement and any other potential agreement between XEN and Company and the discussions, negotiations and proposals related to such potential agreement; and (f) all other information which would, due to the nature of the information disclosed or the circumstances surrounding such disclosure, appear to a reasonable person to be confidential or proprietary (despite a lack of marking or other identification). Proprietary Information of Company includes non-public data provided by Company to XEN to enable the provision of the Services (“Company Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. To the extent the Receiving Party is required by law to disclose Confidential Information of the Disclosing Party, it shall provide notice thereof to the Disclosing Party (if permitted) and cooperate with the Disclosing Party in limiting any such disclosure.

4.2. Company shall own all right, title and interest in and to the Company Data. XEN shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services, Software or support, and (c) all intellectual property rights related to any of the foregoing, including but not limited to any patents, copyrights, copyright registrations and applications, trade secrets, and know-how, databases, data compilations and collections, customer and technical data, software applications, programs and code, trademarks, trade names, logos, service marks, designs, emblems, signs, insignia, slogans, other similar designations of source or origin, domain names and web addresses, and any registrations or applications for registration for any of the foregoing used in or relating to the provision of the Services or XEN’s business or operations more generally.

4.3. Notwithstanding anything to the contrary, XEN shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Company Data and data derived therefrom), and XEN will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other XEN offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

5. PAYMENT OF FEES

5.1. Company shall pay XEN the then-applicable, non-refundable fees described in the Order Form(s) for the Services in accordance with the terms therein (the “Fees”).

5.2. XEN reserves the right to change the Fees with thirty (30) days prior notice to Company (which may be sent by email). If Company believes that XEN has billed Company incorrectly, Company must contact XEN no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to XEN’s customer support department.

5.3. Default method of payment is first of the month, however, XEN may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by XEN thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all cost and expenses of collection. Failure to pay amounts owing in a timely manner may result in immediate suspension or termination of Services. Company shall be responsible for all taxes associated with Services other than U.S. taxes based on XEN’s net income.

6. TERM AND TERMINATION

6.1. Except as otherwise set forth in an Order Form, this Agreement commences on the Effective Date, continues for one (1) year and thereafter automatically renews for successive one-year periods (“Term”), unless either party provides notice of non-renewal at least ninety (90) days prior to the end of the then-current term. In the event of Company’s termination or non-renewal, Company shall not be eligible for any refund of fees paid, invoiced or due during the then-current Term. Except in the event of Company’s uncured breach under Section 6.2, any Order Form(s) with a Subscription Term that extends beyond expiration or termination of the Term shall survive.

6.2. In addition to any other remedies it may have, either party may terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and fails to cure such breach within the thirty-day period. In addition, XEN or Customer may terminate the Initial Offering upon thirty (30) days’ notice, with or without cause.

6.3. Upon any expiration or termination, XEN will make all Company Data available to Company for electronic retrieval for a period of thirty (30) days, but thereafter XEN may, but is not obligated to, delete stored Company Data. All sections of this Agreement which by their nature should survive termination will survive expiration or termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

7. WARRANTY AND DISCLAIMER

7.1. XEN shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by XEN or by third-party providers, or because of other causes beyond XEN’s reasonable control, but XEN shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. NOTWITHSTANDING THE FORGOING, XEN DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES, IMPLEMENTATION SERVICES AND CUSTOM DEVELOPMENT ARE PROVIDED “AS IS” AND XEN DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

8. INDEMNITY

8.1. XEN shall hold Company harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided XEN is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; XEN will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by XEN, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by XEN, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer(s) continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customers’ use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by XEN to be infringing, XEN may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customers a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.

8.2. Company shall hold XEN harmless from liability for any and all claims, disputes, actions, damages, costs and other expenses (including reasonably attorneys’ fees and costs) arising from or related to Customers’ use of the Services. In the event of any such claim from a third party (including without limitation Users), Company shall defend and indemnify XEN, its affiliates, and their employees, officers, directors and agents. XEN shall cooperate with Company in any such defense, at Company’s expense. Company shall not settle or otherwise dispose of any such claim without XEN’s prior written consent, not unreasonably withheld.

9. LIMITATION OF LIABILITY

9.1. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, XEN AND ITS OFFICERS, DIRECTORS, OWNERS, AGENTS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND XEN’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY COMPANY TO XEN FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT XEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10. PUBLICITY

10.1. Company authorizes XEN to use Company’s names and likenesses, the logo of Company and information provided by Company concerning XEN and Company’s use of XEN’s products and services (“Testimonial Information”), and to use such Testimonial Information in various advertisements, press releases, social media posts and other marketing tools, as XEN in its own discretion shall determine. This authorization shall extend to any and all reissues of the advertisements and other marketing tools which XEN, at its discretion, may choose to utilize in exploitation of its various products and services, including, but not limited to publicity, promotion and advertising.

11. GOVERNING LAW & VENUE

11.1. This Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles. In any action or suit to enforce any right or remedy under this Agreement, the prevailing Party will be entitled to recover its costs, including reasonable attorneys’ fees. Customer shall be liable and responsible to XEN for any breach or other misconduct by a User.

11.2. Each party hereby irrevocably consents to the exclusive jurisdiction and venue in the state and federal courts in New York City, New York, in connection with any action or dispute arising between the parties under or in connection with this Agreement.

11.3. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY AGREEMENT, DOCUMENT OR INSTRUMENT EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE PARTIES. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS AGREEMENT.

12. MISCELLANEOUS

12.1. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with XEN’s prior written consent. XEN may transfer and assign any of its rights and obligations under this Agreement without consent in the event of a merger, acquisition, or to a subsidiary or affiliate controlled by, or under common control with, XEN. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Company does not have any authority of any kind to bind XEN in any respect whatsoever. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. 

Last revised November 2024