End-user license and terms of service agreement.

Services.

This End-User License Agreement ("EULA") governs access to and use of the Capstack bank-to-bank loan marketplace and its services ("Service"). The Service permits you to use space provided by Capstack to electronically store and exchange/share important business and personal digital documents. This EULA is between Capstack Technologies ("Capstack," "we," "us," "our") and each customer using the Service ("Customer," "you," "your," "yours," "their"), together with any person you permit to access the Service. This EULA covers your and our rights and responsibilities concerning the Service Capstack offers. Capstack and Customer shall sometimes be referred to individually as a "Party" and collectively as the "Parties."

The EULA governs Capstack’s rights and Customer's responsibilities concerning the Service. You may use the Service only in compliance with the EULA. Capstack constantly modifies the Service to provide its customers with the best possible experience. The Service may continue to change over time as we refine and add more features. We may stop, suspend, or modify the Service without your notice. We may suspend the Service if your use is deemed inappropriate according to the terms in the EULA.

Your Information and Privacy.

You retain full ownership when you place your Information, files, and data ("Information") in the Service. We do not claim any ownership of any Information in the Service. The EULA does not grant us any rights to your Information except for the limited rights needed to provide the Service. We reserve the right to restrict certain file types and sizes that may impact the performance or security of the Service. We need your permission to do certain things you ask us to do with your Information, for example, hosting your Information, sharing Information at your direction and allowing us to back up Information to keep your Information safe. You permit us to do those things solely to provide the Service.  Aside from the rare exceptions we identify in our Privacy Policy, we won't share your Information with others, including law enforcement, for any purpose without your consent unless we are required to provide the Information by applicable law.

You agree that, following receipt of written notice from Capstack, you will promptly return or destroy all communications, documents, and information derived from or relating to (a) this EULA or the terms hereof, (b) any documents relating to a transaction initiated pursuant to the Service or the terms thereof, (c) any intellectual property and tangible and intangible information and materials made available by or on behalf of us in connection with the Services, (d) any non-public or personally-identifiable information of, or any information designated confidential by any Party, or (e) any business plan or strategy, commercial form or template, company policy or procedure, corporate opportunity or prospect, customer identity or information, employee handbook or manual, financial data or statement, investor identity or information, legal agreement or document, marketing research or study, nonpublic or proprietary information, operational process or method, organizational ownership or structure, personally-identifiable or proprietary information, or trade secret or invention of Capstack (“Confidential Information”), including, without limitation, all analyses, extracts, reproductions, and summaries thereof or based on said Confidential Information, in your possession, custody, or control; provided however, the foregoing obligation shall not prohibit the your retention of a copy of any Confidential Information pursuant to and in accordance with any regulatory requirement imposed upon you or any disclosure required by applicable law.  

In connection with the Services, Capstack will acquire both your loan portfolio data and data pertaining to specific loans exchanged in the marketplace (each, a “Loan”). Capstack shall retain this Loan data for the duration of the Loan term and for a minimum of five (5) years following the termination of the Loan (the “Data Retention Period”). Following the Data Retention Period, Capstack will continue to retain the Loan portfolio data and individual Loan data; provided that, following a request received from you after the expiration of the Data Retention Period, Capstack will purge any and all data derived from or pertaining to said Loan. Capstack will interface with you to determine the specific data and records that must be purged and will alert you when the requested purge is complete.

You agree that you will not use the Service for any illegal purpose. You are solely responsible for your conduct, the content of your files and folders, and your communications with others while using the Service. It's your responsibility to ensure that you comply with the EULA.

Company Branding.

You agree that Capstack has a revocable and non-exclusive right to use your logo and branding (substantially in the form set forth on your website or official documents) for any and all marketing purposes without the need to seek further consent or approval by you.

Access to the Service.

Access to the Service will require Customer authentication – using your login and password or access directly from an online system that has previously authenticated the Customer. Every person you authorize to view your account by providing your login and password will have access to the Service. Access may be refused if: (1) Capstack reasonably believes that access jeopardizes security; (2) Capstack has been provided Information that there are conflicting claims to the Information; (3) Capstack is required by law to deny access (e.g., court order) to the Service by any Customer(s); (4) payment has not been paid within 30 days of its due date at which time, in such event Capstack will be entitled to exercise the rights provided by the EULA and by law, which may include disposal of your Information; or (5) if your use of the Service is deemed inappropriate according to the terms in the EULA.

Hardware and Software Requirements.

To receive electronic Communications, you must have access to the following:

a currently supported version of Edge, Chrome, Safari or Firefox;

a connection to the Internet;

a currently supported version of a program that accurately reads and displays PDF files; and

a computer and an operating system capable of supporting all of the above.

We reserve the right to discontinue support of a currently supported version of a browser or software if, in our sole opinion, it suffers from a security flaw or other flaw that makes it unsuitable for use with internet banking services.

Agreeing to Electronic Communications.

The Electronic Signature Act ("E-Sign Act") applies to all electronic communication between you and us. We may provide documents, alerts, marketing and educational emails and notifications electronically. By completing the registration and using the Service, you agree to accept these items electronically.

Sharing your login information and password with others.

By sharing your login credentials, you create a joint access. A joint access means that each Customer and person who has received your login credentials shall have access (each, a “Joint Access User”), and there shall be no liability on the part of Capstack for misappropriation of the Information by any person/entity to whom or to which you have provided your login and password. Joint Access User have an interest in the Information held in the Service as to entitle the Joint Access User to the possession of the Information. No unauthorized access shall be inferable from proof of loss or damage to any contents in the Service. The Customer shall have sole access to the Service and exclusive knowledge and control of stored properties. Customer, in the event of loss or damage and subsequent suit against Capstack, in addition to other requirements imposed by law, has the burden to prove the nature and value of stored properties, the cause of any loss or damage, and the failure of performance of Capstack's obligations under the EULA.

Sharing Your Information.

The Service provides features that allow you to share your Information with others or to make it public. Please consider what Information you choose to share or make public. Capstack has no responsibility for your decisions.  Do not copy, upload, download, or share files unless you have the right to do so. You, the Customer, not Capstack, will be fully responsible and liable for what you copy, share, upload, download or otherwise use while using the Service.

Customer Responsibilities.

You understand and agree you may not use the Service to deposit any illegal or stolen documents, pornographic materials, spyware, or malicious software. If Capstack has reason to believe that the Customer has stored or permitted to be stored any of the items mentioned above or other similar items reasonably prohibited, Capstack shall immediately terminate the Customer's rights to the Service, and Capstack shall have the right, without prior notice to the Customer, to remove the Information. You, and not Capstack, are responsible for maintaining the Information in the Service, ensuring additional copies elsewhere, and protecting all your Information. Capstack will not be liable for any loss or corruption of your Information or for any costs or expenses associated with backing-up or restoring any of your Information. If your contact information or other Information related to your account changes, you must notify us promptly and keep your Information current.

Limitation of Liability.

THE CUSTOMER ACKNOWLEDGES THAT CAPSTACK, NOR ANY THIRD PARTY THAT PROVIDES THE SERVICE TO YOU, INSURES THE CONTENTS OF THE SERVICE. CAPSTACK, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, AND CAPSTACK'S SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR ORDINARY NEGLIGENCE DAMAGES ON ITS PART IN THE PERFORMANCE OF THE SERVICE. IT SHALL NOT BE RESPONSIBLE FOR LOSS OF, OR DAMAGE TO SAID CONTENTS, OR ANY PART THEREOF, CAUSED BY BURGLARY, THEFT, EMBEZZLEMENT OR ANY OTHER CAUSE WHATSOEVER, THE RISK OF SUCH LOSS OR DAMAGE BEING EXPRESSLY ASSUMED BY THE CUSTOMER. IN NO EVENT WILL CAPSTACK BE RESPONSIBLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS). IN THE EVENT OF ANY LOSS OF DATA, THE AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICE WILL NOT BE MORE THAN THE AMOUNTS PAID BY YOU TO CAPSTACK FOR THE PAST THREE MONTHS OF THE SERVICE IN QUESTION. 

Account Security.

Capstack encrypts your Information while in the Service using industry best practices and patented encryption. Capstack provides optional security PIN Codes and expiration date features on ShareLinks that are generated. All transmission of Information to and from the Service must be over a secure encrypted communication connection. Upon registration, your account will be issued a unique electronic key to open your Information. Your login and password protect the unique electronic key given to you. You are responsible for safeguarding the login information and password you use to access the Service, and you agree not to disclose your password to any third party. You are responsible for any activity using your account, whether or not you authorized that activity. You should immediately notify Capstack of any unauthorized use of your account via the contact information on our website.

Compliance with Laws.

Customer agrees to comply with all applicable local, state, national and foreign laws, rules and regulations concerning their access and use of the Service. Customer shall comply with all legal duties applicable to Customer as an Information controller by Customer submitting Information to or storing Information within the Service. Specifically, Customer shall provide the relevant persons and participants with all Information or notices Customer is required by applicable privacy and Information protection law to provide and, if necessary, obtain the consent of or provide choices to such persons and participants as required by such laws.

Service Updates.

Capstack grants you a limited, nonexclusive, nontransferable, revocable license to use the Service. Your license to use the Service is automatically revoked if you violate the EULA in a manner that infringes on our intellectual property rights. You must not reverse engineer or decompile the Service, nor attempt to do so, nor assist anyone else to do so. Capstack may update the Service automatically when a new version is available. Continued service use after each update indicates your acceptance of any new or canceled features and changes to the EULA.

Property Rights.

The EULA does not grant you any right, title, or interest in the Service except as expressly stated in the EULA. The software and other technology we use to provide the Service are protected by copyright, trademark, and other laws of the United States, Canada and foreign countries. We reserve all rights not expressly granted in the EULA. The EULA does not grant you any rights to use our trademarks, logos, domain names, or other brand features.

Termination/Suspension of Service.

We reserve the right to suspend or terminate your use and access to the Service at any time, with or without cause or notice. For example, we may suspend or terminate your use if you are not complying with the EULA or use the Service in any way that would cause us legal liability or disrupt others' use of the Service. If we suspend or terminate your use of the Service, we will inform you of our actions to the extent applicable law requires. However, in some cases (for example, but not limited to, repeatedly or flagrantly violating the EULA, breach of security, a court order, or danger to other users), we may, in our sole discretion, suspend your access immediately without notice.

Indemnification.

You agree to indemnify, defend and hold harmless Capstack, its parents, its affiliates and their respective officers, directors, employees, attorneys, representatives, third-party providers and agents from and against all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with your use of the Service (including any Information) or breach of the EULA.

Warranty and Representations.

THE SERVICE IS PROVIDED "AS IS" WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. CAPSTACK DOES NOT REPRESENT OR WARRANT THAT: (I) THE USE OF THE SERVICE WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR INFORMATION, (II) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR (III) ERRORS OR DEFECTS WILL BE CORRECTED. ALL OTHER CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY CAPSTACK. CAPSTACK WILL HAVE NO RESPONSIBILITY FOR ANY HARM TO YOUR COMPUTER SYSTEM, LOSS OR CORRUPTION OF INFORMATION, OR OTHER HARM THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE SERVICE.

Governing Law and Choice of Forum and Jurisdiction.

The Customer agrees that this EULA and any services provided under it shall be governed by and construed, and enforced under the laws of the State of Texas, including any laws and statutes governing fiduciaries' or non-account holders' access to digital data, digital assets, digital accounts and digital Information. The parties irrevocably submit to the jurisdiction and venue of any state or federal court in the State of Texas in any action or proceeding arising from or relating to this EULA.

Privacy Policy.

Capstack's Internal Privacy Policy is incorporated by reference into this EULA. Capstack's Internal Privacy Policy are set forth and can be accessed in the Service.

Miscellaneous Legal Terms.

The EULA binds the heirs, legal representatives, and successors of Customer and, unless expressly otherwise provided, shall apply to and govern all renewals or extensions of this Service. Amendments to the EULA and current fees will be provided as federal law requires. This Service shall be subject to such rules and regulations and such changes, including an increase in the annual rate assessed on the Service, as may be adopted by Capstack from time to time.

The EULA constitutes the entire and exclusive agreement between you and Capstack concerning the Service and supersedes and replaces any other agreements, terms and conditions applicable to the Service. You may not assign any of your rights in the EULA; any such attempt is void. Capstack may assign its rights to any affiliates, subsidiaries, or successor in the interest of any business associated with the Service. The EULA creates no third-party beneficiary rights. Capstack’s failure to enforce a provision is not a waiver of its right to do so later. If a provision is found unenforceable, the remaining provisions of the EULA will remain in full effect, and an enforceable term will be substituted, reflecting our intent as closely as possible.

Neither party will be responsible for any delay, interruption or other failures to perform under this EULA due to a force majeure event, but only for so long as such conditions persist. Force majeure events include but are not limited to natural disasters (e.g., lightning, earthquakes, hurricanes, floods); wars, riots, terrorist activities and civil commotions; activities of local exchange carriers, telephone carriers, wireless carriers, Internet service providers and other third parties; explosions and fires; embargoes, strikes and labor disputes; governmental decrees; and any other cause beyond the reasonable control of a party.

The failure of a party in any one or more instance(s) to insist upon strict performance of any of the EULA will not be construed as a waiver or relinquishment of the right to assert or rely upon any such term(s) on any future occasion(s). If any provision of the EULA is declared by a court of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be severed from this EULA, and the other provisions shall remain in full force and effect. In this case, the parties agree to comply with the remaining terms of this EULA in a manner consistent with the original intent of the EULA.