TERMS AND CONDITIONS
The following sets forth the Terms and Conditions of this Agreement (“Proposal,” or “Agreement”).
CONFIDENTIALITY AND SECURITY CONTROLS TO SAFEGUARD CUSTOMER INFORMATION
Any and all information disclosed by the Client or on behalf of the Client to Lenders Compliance Group, Inc. (LCG) relating in any way to (i) nonpublic personal information of customers of Client (“Customer Information”) as defined in Section 501(b) of the Gramm Leach Bliley Act and implementing regulations and (ii) Consumer Information as defined in the Interagency Guidelines Establishing Standards for Information Security shall be deemed to be confidential information. LCG acknowledges that, in addition to Customer Information and Consumer Information, all other information and documents of any kind, nature or description concerning matters affecting or relating to the business of the Client and disclosed by the Client or on behalf of Client to LCG, or which come to LCG’s attention during the course of its performance of services under this Agreement, constitute valuable assets of the Client, and also acknowledges that the Client has a responsibility to its customers and employees to keep Client records and information confidential (collectively “Confidential Information”
LCG shall not use Confidential Information, including Customer Information and Consumer Information, for any purpose other than as reasonably necessary to fulfill the terms of this Agreement or as permitted under the Gramm-Leach Bliley Act and other applicable privacy laws and regulations, and shall not disclose Confidential Information, including Customer Information and Consumer Information, to any third person, unless (i) the information is already in the public domain, (ii) Client agrees to the disclosure of the information, or (iii) the disclosure is made in accordance with the Gramm-Leach-Bliley Act and any other applicable privacy laws and regulations.
LCG shall not make Confidential Information, including Customer Information and Consumer Information, available to any employees, subcontractors or agents of LCG except those with a need to know. LCG shall enter into a confidentiality Agreement with its subcontractors or agents under which the subcontractors or agents will be restricted from disclosing, using or duplicating such Confidential Information, including Customer Information, except as consistent with this Agreement. In accordance with Section 501(b) of the Gramm-Leach-Bliley Act and implementing regulations, LCG shall implement appropriate measures to ensure the security and confidentiality of all Customer Information in its possession from time to time, including, protecting against any anticipated threats or hazards to the security or integrity of the Customer Information, and protecting against unauthorized access to or use of the Customer Information that could result in substantial harm or inconvenience to any customer of the Client. Upon request of Client, LCG shall provide Client from time to time with written certification of compliance with this section. LCG will take appropriate action to address incidents of unauthorized access to the Client’s Customer Information and other Confidential Information in the possession of LCG, including notification to the Client as soon as possible of any such incident. Such notification shall specify the corrective action taken. Confidential Information, including Customer Information and Consumer Information, shall be returned to the Client, upon Client request, or shall be properly disposed of in accordance with applicable requirements of the Interagency Guidelines Establishing Standards for Information Security, once the services contemplated by this Agreement have been completed or otherwise terminated, except that LCG may retain copies of reports prepared for, and correspondence with, the Client that includes Confidential Information, and such materials shall remain subject to the requirements of this section.
The Client agrees to keep the terms of the Agreement, including fees, confidential.
The provisions of this section shall survive the termination of this Agreement.
LCG’s role in the Client’s compliance program shall be as described above in this Agreement. It is understood and agreed by the Client that LCG will not implement the compliance function for the Client, and compliance with applicable laws and regulations is and remains the responsibility of the Client. Our risk assessment, compliance monitoring, and/or audit programs include procedures designed to provide reasonable assurance of detecting material noncompliance with Designated Laws and Regulations covered by this Agreement. There are inherent limitations in the risk assessment, monitoring, and audit processes, which are based on the concept of selective testing of the data being examined and are therefore subject to the limitation that instances of noncompliance with regulatory requirements, if they exist; however, they may not be detected, even with properly designed and executed risk assessment, monitoring, and/or audit programs. LCG will inform the Client of any instances of material noncompliance with Designated Laws and Regulations that come to our attention during the course of our risk assessment, compliance monitoring, audit, or otherwise during the course of performing services under this Agreement.
TERM This Agreement shall become effective as of the last date indicated below that either party accepts this Agreement and shall continue in full force and effect until terminated by either party in accordance with this Agreement.
PAYMENT -Through Credit Card.
RETAINER AND EXPENSES No retainer is required in connection with this Agreement. The Client hereby agrees to pay the fees for services stipulated in this Agreement. Client agrees to reimburse LCG for any incidental and customary out-of-pocket expenses incurred by LCG on the Client’s behalf, such as charges for shipping and postage, provided that such expenses shall not be incurred without the Client’s express authorization.
TERMINATION This Agreement may be terminated by either LCG or the Client upon written notice at any time. In the event that this Agreement is terminated after commencement of engagement, the fee will be pro-rated to the termination date. If LCG terminates the Agreement prior to commencement of engagement, Client will receive a full refund of any payments LCG collected pursuant to the Agreement.
CONTINGENCY PLAN An institution that enters into an outsourcing arrangement should maintain a contingency plan in case the arrangement is terminated in accordance with the notice of cancellation as previously stated. If this contract is terminated, at the Client’s request LCG will assist the Client in making an orderly transition from LCG to the person or entity to be appointed. The additional fee for these services is $250 per hour/per person.
MODIFICATION OF FEES LCG may modify the Scope and Out of Scope fees set forth in the Agreement as mutually agreed in writing between the parties.
LCG maintains Errors and Omissions insurance in the amount of $1,000,000. The policy covers professional services provided to our clients, pursuant to the terms and conditions of an Agreement(s) between the Client and LCG. Coverage includes wrongful acts, which means any actual or alleged breach of duty, neglect, act, error, omission, personal injury or breach of confidentiality committed solely in the performance of the professional services set forth in such Agreement(s
PRACTICE OF LAW LCG is a risk management firm, not a law firm. The guidance provided by LCG is not legal advice or legal opinion on any specific facts or circumstances. LCG provides a full range of guidance in transactional, regulatory compliance, investigative, due diligence, and audit services, for banks and non banks. Our cross-disciplinary teams include subject matter experts, whose expertise is in mitigating various risks, such as regulatory, strategic, operational, cybersecurity, enforcement, compliance, reputational, and financial risks. LCG is nationally recognized for providing guidance in the full range of federal and state consumer credit and banking laws. Such guidance is provided by Subject Matter Experts in all areas of mortgage banking, consisting of Directors; Group Administrators; Compliance Managers and Consultants; Compliance Attorneys, Analysts, and Auditors; and Operations Specialists.
EXTRANET LCG maintains a secure, encrypted extranet repository that is accessible to Client during term of Agreement. Upon termination of Agreement, Client shall have access to LCG’s extranet repository for a period of thirty (30) days at no additional charge. After thirty (30) days from termination of this Agreement, Client’s access to LCG’s extranet repository will be permanently disabled. LCG keeps copies of its findings and reports after the termination of Agreement, which shall be made available to the Client upon the Client’s written request.
TAXES The fees specified in this Agreement do not include taxes. If LCG is required to collect or pay sales, use, value-added, or other federal, state, or local taxes based on the services to be performed under this Agreement (other than LCG’s income taxes), then the Client will be billed for and agrees to pay such taxes.
ARBITRATION Any dispute, controversy, or difference which may arise between the parties out of or in connection with this Agreement, or for the breach thereof, will be finally settled by arbitration conducted according to the rules of the American Arbitration Association in a city to be mutually agreed upon by the parties, and judgment upon an award by the arbitrator may be entered in any court having jurisdiction thereof. The prevailing party shall be entitled to recover from the non-prevailing party all costs of such proceeding or action, including but not limited to, reasonable attorneys’ fees and expenses, through all levels of proceedings, including appeals. The parties hereby agree that Nassau County, New York, shall be the exclusive jurisdiction for any proceedings to this end, including but not limited to any court action that may arise thereafter.
LIMIT OF LIABILITY LCG will be liable to the Client for claims or causes of action that may be directly caused by the willful negligence, recklessness, or willful misconduct of LCG arising from the services to be performed pursuant to this Agreement, and in no other event will LCG, or its members, officers, employees, affiliates, agents, assignees, subcontractors, independent contractors, or representatives, be liable to the Client for any loss or damage claimed to have been sustained by the Client, directly or indirectly, or by third parties against the Client, arising from services to be performed by LCG pursuant to this Agreement. Except for that portion of a claim or cause of action directly resulting from the willful negligence, recklessness, or willful misconduct of LCG in the performance of services under this Agreement, the Client will indemnify and hold harmless LCG, its members, officers, employees, affiliates, agents, assignees, subcontractors, independent contractors, and representatives, against any and all claims or causes of action brought by anyone as a result of LCG’s services under this Agreement. Except for a signed, agreed-to indemnification or a breach of confidentiality, the maximum liability of another claim will not exceed the aggregate amount of fees that have been paid by the Client under this Agreement at the time that LCG has received written notice from the Client of a claim alleging willful negligence, recklessness, or willful misconduct. These limitations shall be applicable notwithstanding the fact that LCG may be advised of the possibility of such damages or losses.
WORKSPACE Client shall provide workspace and office equipment for use by LCG personnel that is necessary to perform contracted services, if services are performed on-site.
WORKPAPERS All workpapers created during the course of this engagement will be available to the Client, upon Client’s request.
HIRING OF PERSONNEL Without prior written consent of the other party, each party agrees not to solicit, directly or indirectly, any personnel who are or have been assigned to perform work until one (1) year after the termination of this Agreement. Notwithstanding the foregoing, nothing herein shall prevent either party from hiring any employee of the other party responding to a general advertisement for employment.
NOTICES All notices or other communications will be in writing and deemed given or delivered when delivered personally or when sent by registered or certified mail or by private courier or by overnight mail that produces written evidence of delivery to the other party at its address set forth below.
LENDERS COMPLIANCE GROUP, INC.
PO Box 360 East Rockaway, NY 11518
AGREEMENT EXPIRATION This Agreement is effective on the date last signed by either party, unless terminated or extended in writing for an additional period by an authorized representative of LCG.
GOVERNING LAW This Agreement shall be governed by and construed in accordance with the laws of New York without regard to its conflicts of law rules.
RELATIONSHIP OF THE PARTIES LCG is an independent contractor. Nothing herein contained will be deemed to create a joint venture, agency, or partnership between the parties hereto, nor will any work engaged in by LCG constitute the practice of law. Neither party will have any power to enter into any contracts or commitments in the name of, or on behalf of, the other party, or to bind the other party in any respect whatsoever.
WAIVER A waiver of a breach or default under this Agreement will not be a waiver of any subsequent breach or default. Failure of either party to enforce any term or condition of this Agreement will not constitute a waiver of that term or condition then or in the future.
COUNTERPARTS AND SIGNATURES This Agreement may be executed by original or electronic signature by the parties in several counterparts, each of which when so executed and delivered will be deemed an original and such counterpart will together, constitute and be one and the same instrument.
ENFORCEABILITY AND SEVERABILITY If any provision of this Agreement is or becomes or is deemed, by a court of competent jurisdiction, invalid, illegal or unenforceable under the applicable laws or regulations of any jurisdiction, either such provision will be deemed amended to conform to such laws or regulations without materially altering the intention of the parties or it will be stricken and the enforceability of the remaining provisions will not in any way be affected or impaired thereby and the remainder of this Agreement will remain in full force and effect.
ASSIGNMENT This Agreement will be binding upon and inure to the benefit of the successors and assigns of the parties. This Agreement may not be assigned without the prior written consent of the parties, which consent will not be unreasonably withheld, except that LCG may delegate work under this Agreement to subcontractors and LCG will remain responsible for any work so delegated. Any attempted assignment or transfer not permitted hereby is null and void.
CAPTIONS Caption and section headings are used for convenience of reference only and are not part of this Agreement and may not be used in construing it.
ENTIRE AGREEMENT This Agreement, and any documents incorporated herein by reference, contains the entire understanding of the parties and there are no representations, warranties, promises, covenants, or undertakings by either of them other than those expressly set forth herein. No change, modification, discharge, termination or waiver of any provisions of this Agreement, obligations hereunder, shall be valid unless in writing and signed and acknowledged by the parties hereto, or in case of waiver, by the party adversely affected thereby.