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Lender Terms of Use
LENDER PLATFORM PARTICIPATION AGREEMENT (Updated as of 5/5/2025)
THIS LENDER PLATFORM PARTICIPATION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF THE FORO HOLDINGS, INC. (“FORO” ALSO REFERRED TO AS “BRIDGE”) SERVICES. BY ACCEPTING THIS AGREEMENT, EITHER BY INDICATING YOUR ACCEPTANCE OR BY EXECUTING A SEEPARTE DOCUMENT THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
BY ACCEPTING THIS AGREEMENT, YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “LENDER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE HOSTED SERVICES ON THE BRIDGE PLATFORM.
Each of Bridge and Lender are referred to herein as a “Party,” and collectively, the “Parties.” Capitalized terms used in this Agreement have the meanings set forth in Section 11 below. This Agreement was last updated on April 25th, 2025 (the “Agreement”).
Recitals
WHEREAS, Bridge operates an online platform to connect Borrowers with Participants who may wish to initiate discussions with Borrowers through the platform, for the purpose of making Loans to Borrowers (the “Platform”); and
WHEREAS, Lender desires to participate in the Platform, on the terms set forth in this Agreement, in order to have the opportunity to engage with Borrowers through the Platform, for the purpose of making Loans.
NOW, THEREFORE, in consideration of the terms, conditions and mutual covenants contained herein, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
Article I
GENERAL
1.1 Operation of the Platform. Bridge owns, operates and maintains the Platform in its sole discretion, including in its determination of (a) a Borrower’s eligibility to make RFPs or otherwise participate on the Platform; (b) a Participant’s eligibility to receive and evaluate RFPs, make RFP Responses and otherwise participate on the Platform; and (c) the terms and conditions of access and use of the Platform, including the Platform Terms and Conditions.
1.2 Platform Modifications. Bridge may modify the Platform, including any features, functionality or other aspect of the Platform, or amend the Platform Terms and Conditions, at any time and for any reason. Lender’s continued participation on the Platform, including its evaluation of RFPs, making RFP Responses or Engaging with Borrowers, shall constitute Lender’s agreement to such modification or amendment.
1.3 Access to and Use of the Platform.
(a) Subject to Bridge’s approval and Lender’s continued compliance with this Agreement, and any Platform Terms and Conditions, Bridge will provide Lender with access to the Platform during the Term in order for Lender to: (a) receive and evaluate RFPs from Borrowers; (b) make RFP Responses to such RFPs; and (c) perform such other activities as Bridge may permit on the Platform. The Platform is not intended to be used, and Lender agrees not to use the Platform, for any other purpose, including to host or deliver Loan applications, support the Loan application process, or issue a Loan.
(b) Lender will not (i) license, sublicense, sell, resell, rent, lease, transfer, assign or distribute the access and use rights described in Section 1.3(a) or otherwise make the Platform available to any third party, (ii) translate, modify, adapt, enhance, decompile, disassemble or reverse engineer any portion of the Platform or otherwise create any derivative works based on the Platform, (iii) extract ideas, algorithms, procedures, workflows or hierarchies from the Platform or otherwise use the Platform for the purpose of creating another product or service, or (iv) copy any features, functions, integrations, interfaces or graphics of the Platform or create internet links to the Platform or frame or mirror the Platform on any other server or wireless or internet-based device.
(c) Lender shall keep secure and confidential any Lender credentials required for Lender to access the Platform (including user IDs and associated passwords). Lender shall ensure that its credentials are used solely by Lender personnel that are authorized to access the Platform. In the event of any unauthorized use, misappropriation or other compromise of Lender’s credentials, Lender shall immediately notify Bridge by telephone and in writing.Lender shall inform Bridge in writing if any user with Lender credentials is no longer employed by Lender or no longer requires access to the Platform.
1.4 Required Information. Lender will provide all information required by Bridge, to verify Lender’s eligibility to participate on the Platform. Lender will keep such information current at all times during the Term and notify Bridge of any updates to such information promptly but in any event prior to providing any RFP Response to an RFP. Notwithstanding the foregoing sentence, Bridge may rely on Lender’s information as reported on the Platform and shall not be liable to Lender for Lender’s failure to update its information in a timely manner. Lender shall also promptly notify Bridge of any change in control of Lender. For purposes of the foregoing sentence, a “change in control” means the sale of all or substantially all of Lender’s assets, the merger of Lender with any other entity, or the transfer of more than 50% of the voting stock, shares or interests of Lender.
1.5 RFPs. Lender acknowledges that Borrowers are afforded sole discretion to determine which Participants (including Lender) may receive a Borrower’s RFP and that Lender may not receive any RFPs during the Term. Lender further acknowledges and agrees that (a) Lender’s participation on the Platform does not grant Lender any right to, and Bridge is under no obligation to present to Lender, any or all RFPs; (b) the presentment of any RFP to Lender does not constitute an approval, endorsement or other representation by Bridge of the Borrower’s eligibility for a Loan or the suitability of a Loan for a Borrower; and (c) Lender will use the RFP, and any information derived from such RFP, solely to evaluate whether or to not to make an RFP Response, and for no other purpose, including to solicit, request information from, offer products or services to, or otherwise contact the Borrower through any means other than through the Platform.
1.6 RFP Responses. If Bridge presents an RFP to Lender, Lender will; (a) perform a good faith evaluation of the RFP; (b) if Lender determines that it wants to make an RFP Response to the RFP, make its RFP Response via the Platform and not through any channels outside the Platform; and (c) ensure that its RFP Response is made in good-faith, including credit terms that Lender is ready, willing and able to make to the Borrower, to the extent the Borrower satisfies Lender’s Loan Criteria.
1.7 Engagements with Borrowers. If Bridge presents Lender’s RFP Response to a Borrower and Borrower agrees to Engage with Lender, Lender shall Engage with the Borrower in accordance with Lender’s Policies and Procedures and in any event in accordance with Applicable Law, in addition to its compliance obligations under this Agreement. Such Engagement may include communicating with Borrower via the Platform or access to Borrower’s Due Diligence Materials, subject to Borrower’s consent and any Platform Terms and Conditions applicable to such communications or access to Due Diligence Materials. Lender acknowledged and agrees that Bridge uses substantial labor and effort to provide the Platform, and specifically to make Borrower Information available to Lender. You represent and warrant that you will not circumvent or attempt to circumvent Bridge, the Platform, without Bridge’s prior written consent.
1.8 Lender’s Responsibilities. Lender is solely responsible for its own activities, whether on or off the Platform, including (a) its evaluation of RFPs and making of RFP Responses; (b) its Engagement with Borrowers; (c) its evaluation of a Borrower for a Loan; and (d) any activities relating to a Loan, including its Loan Criteria, the execution of Loan agreements and the servicing of Loans.
Article II
Reports and other feedback
2.1 Meetings; Reports. To the extent requested by Bridge, Lender will participate in periodic meetings (“Meetings”) through knowledgeable Lender personnel (telephonically or by video conference, or otherwise as mutually agreed by the Parties) with Bridge’s designated personnel on a monthly basis (or such other schedule as agreed by the Parties) during the Term to discuss Lender’s experience and progress on the Platform, including RFP Responses, Engagements and any consummated transactions with Borrowers (“Closed Deals”). With respect to each Closed Deal and Related Loan Transaction, by the earlier of (a) fourteen (14) days following the execution of such Closed Deal or Related Loan Transaction and (b) the date on which this Agreement terminates or expires, Lender shall report on the Platform or otherwise notify Bridge in writing of material information regarding such Closed Deal or Related Loan Transaction, including: (i) the aggregate principal amount of all loans (committed and uncommitted) referenced under such Closed Deal or Related Loan Transaction; Lender shall provide such other Platform-related reports or information (“Reports”) as may be reasonably requested by Bridge from time to time.
2.2 Feedback. Lender acknowledges and agrees that any information provided in any Report or Survey, or any comments, suggestions, observations or opinions from Lender, Lender’s personnel or any of Lender’s Affiliates or their personnel, regarding the Platform, whether made orally, in writing or otherwise, and whether provided to Bridge through the Platform, during any Meeting or otherwise (collectively, “Feedback”), may be used by Bridge for any purpose in accordance with Section 5.2.
Article III
Intellectual Property
3.1 Platform IP. As between the Parties, all Intellectual Property Rights in the Platform are and will be the property of, and exclusively owned, by Bridge.
3.2 Trademarks. Lender grants to Bridge a royalty-free, non-exclusive, non-transferable, non-sublicensable (except to permitted Affiliates) license during the Term to use the Lender Marks for Bridge’s performance of its activities and obligations contemplated under this Agreement, including to identify Lender on the Platform or in connection with Lender’s RFP Response. Bridge agrees to use the Lender Marks in accordance with Lender’s reasonable Trademark usage policies, if any, provided to Bridge in writing. Upon termination of this Agreement, Bridge shall, as soon as reasonably practicable, cease using any Lender Marks and remove any Lender Marks from the Platform.
3.3 Reservation of Rights. Each Party shall continue to own all right, title and interest in and to its Intellectual Property Rights, subject only to the rights expressly granted or licensed in this Agreement.
Article IV
Representations and Warranties; Covenants
4.1 Lender represents, warrants and covenants as follows on a continuing basis during the Term that:
(a) Authority. Lender (i) is organized and validly existing under the laws of its jurisdiction of incorporation or organization; (ii) has full corporate power and authority to transact any and all business contemplated by this Agreement and possesses all requisite authority, power, and licenses, permits and franchises to conduct business wherever it conducts business and to execute, deliver and comply with its obligations under the terms of this Agreement; and (iii) has taken all necessary action to authorize its execution, delivery and performance of this Agreement.
(b) Conflict with Existing Laws or Contracts. The execution and delivery of this Agreement and the performance of its obligations hereunder by Lender will not (i) conflict with or violate (A) its certificate of incorporation or by-laws or other organizing documents; or (B) any provision of any Applicable Law to which it is subject; or (ii) conflict with or result in a breach of or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under any of the terms, conditions or provisions of any understanding, agreement or instrument to which it is a party or by which it is bound or any order or decree applicable to it or resulting in the creation or imposition of any lien on any of its assets or property.
(c) Enforceability. This Agreement, and all the obligations of Lender hereunder, constitute the valid and binding obligations of Lender, enforceable against Lender in accordance with the terms if this Agreement, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting enforcement of creditors’ rights and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(d) Compliance with Laws. Lender will comply with all Applicable Laws and industry best practices in the performance of its obligations under this Agreement and the marketing, offering, consummation and servicing of any Loans, including with respect to Lender’s evaluation of RFPs, making RFP Responses, its Engagement with Borrowers, and its Loan Criteria and Lender’s Policies and Procedures.
(e) Accuracy of Information. All information provided by Lender on the Platform, including in Lender’s Application or in any RFP Response, shall be true, accurate and complete in all material respects.
(f) Anti-Bribery, Personal Dealings and Non-Subornation.
(i) In connection with this Agreement neither Lender nor any of its personnel has made or offered to make (or will make or offer to make), directly or indirectly, any unlawful payments to or has conferred or offered to confer (or will confer or offer to confer), directly or indirectly, any benefit upon any person, including for the avoidance of doubt (A) in any country or territory, any person who holds a legislative, administrative, judicial, executive or military position of any kind (whether appointed or elected) of any federal, state, provincial or local jurisdiction or exercises a public function for any jurisdiction, public agency or public enterprise (including any officer, official, employee or agent of any government, any government-owned or government-controlled entity or any public international organization or any person acting in an official capacity for or on behalf of any government entity), or (B) any political party, party official or candidate for public office, in violation of any anti-bribery-related Applicable Law, including the U.S. Foreign Corrupt Practices Act (FCPA).
(ii) Lender further represents, warrants and covenants that neither Lender nor any of its personnel has otherwise violated, or will violate, any anti-bribery-related Applicable Law, including the FCPA, or has made or offered to make (or will make or offer to make), directly or indirectly, any payments to or has conferred or offered to confer (or will confer or offer to confer), directly or indirectly, any benefit upon: (A) any employee, agent or fiduciary of any third party with the intent to influence the conduct of that employee, agent or fiduciary in any manner relating to this Agreement, or (B) any person (1) with the intent to induce (or to reward) the recipient or another person to do or omit to do any act in violation of his or her duties or responsibilities, to reward any conduct or to otherwise improperly influence any person in any manner relating to this Agreement, or (2) if that person’s acceptance of a payment or benefit would itself constitute a violation of his or her duties or responsibilities.
(iii) No Bridge personnel has received or will receive, directly or indirectly, anything of value of any kind from Lender or its personnel in connection with this Agreement.
(iv) Lender will conduct its business in compliance with this Section 4.1(f) and with Bridge’s Anti-Bribery and Corruption Program statement provided by Bridge to Lender, and any and all other Bridge anti-bribery and corruption statements, programs, policies and standards that Bridge has in effect or may put into effect and which have been provided to or otherwise made available to Lender (including through any Bridge external website).
4.2 Disclaimers. Except as otherwise expressly provided in this Agreement, the Platform and any information obtained from or provided by the Platform, including all Borrower Information, RFPs and Due Diligence Materials (collectively, “Platform Information”), are provided for use “as is” without warranty of any kind. To the maximum extent not prohibited by Applicable Law, Bridge disclaims (a) all warranties of any kind, whether statutory, express or implied, including all warranties, whether express, implied or statutory, including any implied warranties of title, non-infringement, accuracy, merchantability or fitness for a particular purpose; (b) all warranties that may arise from course of dealing, course of performance or usage of trade; (c) any warranty that the Platform will be uninterrupted, error-free or secure, will perform in the manner intended by Bridge or Lender or will meet the requirements of Lender, (d) any warranty that defects will be corrected; and (e) all responsibility and liability for the accuracy, adequacy or completeness of any Platform Information, or any representation by Bridge or any Borrower with respect to such Borrower, including such Borrower’s interest, capacity, or eligibility for any Loan or the suitability of any Loan or the results of any screening or due diligence of Borrower by Bridge. Lender acknowledges and agrees that (i) it is solely responsible for obtaining and maintaining all telecommunication facilities, computer hardware, software and other equipment, materials and third-party licenses and consents needed to access and use the Platform or any Platform Information, and for all related charges and costs; (ii) electronic access to systems through the Internet or other networks, whether public or private, may not be secure or may result in communication delays or failures; and (iii) Lender’s use of the Platform or any Platform Information, and any Engagement with a Borrower, including any Loans made to a Borrower, is entirely at Lender’s own risk.
4.3 Records. Lender will maintain accurate and complete records of all information necessary to determine its compliance with the Agreement during the Term and for as long as required by Applicable Law following termination or expiration of the Agreement.
4.4 Waiver of Claims Related to Borrower Performance.
Lender acknowledges and agrees that it is solely responsible for evaluating Borrowers and structuring Loans. Accordingly, Lender hereby irrevocably waives and releases any and all claims against Bridge arising out of or relating to any Borrower’s failure to repay a Loan, any Borrower’s creditworthiness, or any due diligence (or lack thereof) conducted by Bridge. Lender further covenants not to assert any claim against Bridge relating to Borrower defaults, credit risk, or the financial condition of any Borrower.
Article V
Data Use and Security
5.1 Borrower Information. Lender may use Borrower Information only as follows, and for no other purpose:
(a) If Bridge presents an RFP to Lender, Lender may use, internally within Lender’s organization, the RFP, and any information contained in such RFP (including any Borrower Information), solely for the purpose of preparing an RFP Response through the Platform.
(b) If a Borrower agrees to Engage with Lender, Lender may use, internally within Lender’s organization, any Borrower Information made available to Lender through the Platform (including the original RFP) for the purpose of negotiating with and making a Loan to the Borrower during such Engagement and such other purposes to which Borrower consents or otherwise as permitted by Lender under Applicable Law.
(c) If a Borrower does not agree to Engage with Lender, Lender shall (i) promptly delete the RFP, any information relating to such RFP (including any Borrower Information), and any information that Lender may have derived from such RFP, and (ii) refrain from, or discontinue, any further contact with the Borrower except as expressly permitted in this Agreement.
5.2 Lender Provisioned Data
(a) Bridge may use any information or other data provided by Lender pursuant to Section 1.4, contained in an RFP Response, or in any communications of Lender with a Borrower through the Platform and any Feedback (collectively, “Lender Provisioned Data”) for any purpose in Bridge’s sole discretion. Lender assigns to Bridge all rights in such Lender Provisioned Data, including all Intellectual Property Rights therein, and agrees that such Lender Provisioned Data will be deemed the property of and exclusively owned and controlled by Bridge, giving Bridge the unlimited right to use and modify such Lender Provisioned Data. At Bridge’s expense, Lender will take all reasonable actions that Bridge deems necessary to record, perfect and maintain its rights in and to all Lender Provisioned Data.
(b) Notwithstanding Section 5.2(a), during the Term and for a period of six (6) months thereafter, Bridge will not use Lender Provisioned Data to engage in any targeted marketing of Borrowers with respect to Bridge products or services that would compete with Loans offered by Lender through the Platform. For the avoidance of doubt nothing herein prohibits Bridge from marketing any Bridge products or services to Borrowers, provided that no information derived from Lender’s participation on the Platform will be used in such marketing efforts, or contacting Borrowers for any other purpose(s).
5.3 Data Security.
(a) Lender will safeguard Borrower Information transmitted to, or collected or received by, Lender through the Platform, in accordance with this Section 5.3 and all applicable Privacy Laws governing Lender’s collection and use of Borrower Information.
(b) With respect to any Borrower Information obtained through the Platform, Lender will: (i) keep and maintain such Borrower Information in strict confidence, using such degree of care as is appropriate to avoid unauthorized access, use or disclosure; and (ii) not, directly or indirectly, disclose Borrower Information to any person except as permitted by this Agreement or with the express prior written consent of Bridge.
(c) To the extent Borrower Information contains any individual personal information (“Personal Information”), Lender shall, with respect to such Personal Information: (i) comply with all Applicable Laws, including Privacy Laws, in the collection, storage and use of Personal Information, and (ii) implement and maintain administrative, technical and physical safeguards designed to: (A) ensure the security and confidentiality of Personal Information; (B) protect against any anticipated threats or hazards to the security or integrity of Personal Information; and (C) protect against unauthorized access to or use of Personal Information.
(d) Without limiting any of its obligations in Section 5.3(a) or (b), with respect to any Borrower Information, and any other information or other data relating to Borrower, that Lender collects, uses or stores during an Engagement (collectively, “Lender’s Borrower Data”), Lender agrees to collect, use and store Lender’s Borrower Data in accordance with Lender’s Policies and Procedures, and Bridge will have no responsibility or liability arising from or relating to Lender’s collection, use or storage of Lender’s Borrower Data.
Article VI
confidentiality
6.1 Confidential Information. The Parties acknowledge that each Party (the “Recipient”) may receive, in connection with this Agreement, confidential information relating to the other Party’s (the “Disclosing Party”) business, including but not limited to, information regarding the Disclosing Party’s products, services or offerings; planned marketing or promotion of the Disclosing Party’s products, services or offerings; the Disclosing Party’s business strategies, policies or practices; the Disclosing Party’s inventions, patents and patent applications, discoveries, ideas, concepts, software in various stages of development, designs, drawings, specifications, techniques, models, data, source code, object code, documentation, diagrams, flow charts, research, development, processes, procedures, “know-how,” trade secrets; or a Party’s financial information, including budgets, forecasts, projections, operating results and financial statements (collectively, “Confidential Information”). For the avoidance of doubt, and except as otherwise set forth in this Agreement, (i) the existence of and terms of this Agreement shall be deemed Confidential Information, (ii) Borrower Information shall be deemed Bridge’s Confidential Information. For clarity, Lender’s Borrower Data, even if any element thereof is the same as any element of Borrower Information, shall not be deemed Bridge’s Confidential Information. Each Party further agrees to use the Confidential Information of the other Party only for the purpose of performing such Party’s obligations under this Agreement.
6.2 Non-Disclosure and Non-Use. Each Party agrees to protect and maintain the secrecy of the Disclosing Party’s Confidential Information by, among other things: (a) treating such information with at least the same standard of care and protection which such Party accords its own confidential and proprietary information but in any event with no less than a reasonable degree of care; (b) using care in the assignment of personnel who receive or have access to such information, and instructing such personnel to take all reasonable precautions to prevent such unauthorized use or disclosure; and (c) not using, disclosing or exploiting such information except as necessary to perform any services or obligations hereunder or as otherwise pre-authorized by the Disclosing Party in writing.
6.3 Exceptions. Confidential Information does not include any information that the Recipient can demonstrate: (a) was in the public domain at the time it was received; (b) enters the public domain through no fault of the Recipient or wrongful act of Recipient or any third party; or (c) is independently developed or learned by Recipient without use of or reference to the Disclosing Party’s Confidential Information. In addition, Recipient may disclose the Disclosing Party’s Confidential Information to a legal, judicial or governmental entity, or as required by the rules or orders of a court or governmental entity, provided that, before such disclosure, Recipient shall, unless prohibited by Applicable Law, law enforcement or regulatory authority, give reasonable advance written notice of such disclosure so that the Disclosing Party can seek a protective order or the appropriate protection for the Confidential Information and the Recipient uses reasonable efforts to have such information treated as confidential and under seal. Bridge may further disclose Lender’s Confidential Information, as well as any Lender Provisioned Data, to any prospective buyer of or investor in the Platform, provided that such buyer or investor enters into a non-disclosure agreement with Bridge that imposes substantially the same restrictions on such buyer or investor as set forth in Section 6.1 and 6.2.
6.4 Destruction of Confidential Information. Following termination of this Agreement, and upon written request of the Disclosing Party, the Recipient will certify that all tangible items containing the Disclosing Party’s Confidential Information have been destroyed and that all of the Disclosing Party’s Confidential Information has been removed from the Recipient’s Systems; provided, however, that Recipient (a) shall be permitted to retain Confidential Information as required by Applicable Law, and (b) shall not be required to destroy Confidential Information to the extent it has been electronically archived by Recipient in accordance with Applicable Law and its automated security and/or archival purposes and/or disaster recovery procedures as in effect from time to time. Any Confidential Information retained pursuant to this Section 6.4 shall remain subject to the confidentiality provisions of this Agreement for so long as it is retained by Recipient irrespective of the term, termination or enforceability of this Agreement.
6.5 Injunctive Relief. Each Party acknowledges that the unauthorized disclosure or use of such Party’s Confidential Information would cause irreparable harm and significant injury to the Disclosing Party, the degree of which would be difficult to ascertain. Accordingly each Party agrees that the Disclosing Party will have the right to seek an immediate injunction enjoining any breach or alleged breach of this Article 6, wherever it deems appropriate, as well as the right to pursue any and all other rights and remedies available at law or in equity in the event of such a breach or alleged breach.
Article VII
INDEMNIFICATION
7.1 Lender Indemnification. Lender shall defend, indemnify and hold Bridge and its Affiliates and their respective directors, officers, employees and agents (the “Bridge Indemnified Parties”) harmless from and against any actual or threatened Claims made by or on behalf of (a) any governmental authority or regulator, or (b) a Borrower, in either case arising out of or relating to Lender’s Engagement with Borrowers (whether or not through the Platform) or Lender’s Loans, except to the extent such Claim arises from or relates to Bridge’s breach of this Agreement or its terms of use with Borrowers in connection with the Platform. Lender agrees to promptly pay and fully satisfy any and all Losses arising from such Claims, including costs of settlement, attorneys' fees, accounting fees, expert costs and fees, incurred or sustained by the Bridge Indemnified Parties as a result of any Claims of the types described in this Section 7.1.
7.2 Bridge Indemnification. Bridge shall defend, indemnify and hold Lender and its Affiliates and their respective directors, officers, employees and agents (the “Lender Indemnified Parties”) harmless from and against any actual or threatened Claims made by or on behalf of (a) any governmental authority or regulator, or (b) a Borrower, in either case arising out of or relating to a Borrower’s use of the Platform, except to the extent such Claim arises from or relates to Lender’s Loans, its Engagement with Borrowers or its breach of this Agreement. Bridge agrees to promptly pay and fully satisfy any and all Losses arising from such Claims, including costs of settlement, attorneys' fees, accounting fees, expert costs and fees, incurred or sustained by the Lender Indemnified Parties as a result of any Claims of the types described in this Section 7.2.
7.3 Procedures. A Bridge Indemnified Party or Lender Indemnified Party, as applicable (each an “Indemnified Party”) shall: (a) promptly notify Lender or Bridge, as applicable (each an “Indemnifying Party”) in writing of any Losses for which such Indemnified Party seeks indemnification, provided however, that failure to give such notice shall not relieve the Indemnifying Party of any liability hereunder (except to the extent the Indemnifying Party has suffered actual material prejudice by such failure); (b) provide reasonable cooperation, at the Indemnifying Party’s expense, to the Indemnifying Party and its legal representatives in the investigation of any matter which is the subject of indemnification; and (c) permit the Indemnifying Party full control over the defense and settlement of any matter subject to indemnification; provided that, the Indemnifying Party shall not enter into any settlement that affects the Indemnified Party’s rights or interests without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld or delayed. The Indemnified Party shall have the right to participate in the defense at its expense.
Article VIII
limitation of liability
8.1 Neither Party shall be liable to the other, (including any person claiming through the other Party) for the other Party’s incidental, consequential, special, indirect, exemplary, or punitive Losses, including, but not limited to, the loss of sales, revenue or profits arising out of or in any manner connected with this Agreement or its subject matter, regardless of the form of the action and whether or not the other Party has been informed of, or otherwise might have anticipated, the possibility of such damages.
8.2 Neither Party shall be liable to the other, in contract, tort, or otherwise, for any direct Losses resulting from performance or nonperformance under this Agreement, except that the limitation in this Section 8.2 shall not apply to a Party’s (a) breach of Article V (Data Use and Security) or Article VI (Confidentiality), (b) indemnification obligations under Article VII, or (c) gross negligence, willful misconduct, or fraud.
8.3 Cap on Liability. Notwithstanding anything to the contrary in this Agreement, Bridge’s total aggregate liability to Lender, for any and all claims arising out of or relating to this Agreement, whether in contract, tort or otherwise, shall not exceed the greater of (a) three (3) times the total fees actually paid by Lender to Bridge in the twelve (12) months preceding the event giving rise to the claim, or (b) One Million U.S. Dollars ($1,000,000). This limitation shall apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, and shall survive failure of the essential purpose of any limited remedy.
Article IX
Term and Termination
9.1 Term. This Agreement shall commence as of the Effective Date and continue as long as Lender continues to use the Platform (such time, “Term”), unless either Party terminates this Agreement pursuant to this terms hereof.
9.2 Termination for Convenience. Lender may terminate this Agreement upon ninety (90) days’ prior written notice to Bridge for any reason or no reason. Bridge may terminate this Agreement upon fifteen (15) days’ prior written notice to Lender for any reason or no reason.
9.3 Termination for Cause. Either Party may terminate this Agreement immediately upon written notice if the other Party is in material breach of any term of this Agreement. Additionally, Bridge may terminate this Agreement immediately in the event Bridge determines that (a) Lender is in material violation of any Platform Rule or the Platform Terms and Conditions; (b) the continuation of the matters contemplated by this Agreement is not consistent with any requirements of Applicable Law, (c) Lender’s actions may harm or otherwise have an adverse effect on the reputation or goodwill of Bridge, the Platform, Borrowers or any other Participant, as determined by Bridge in its sole discretion, (d) there has been a change in Control affecting Lender or (e) Lender is or soon will be insolvent as such term is defined under Section 101(32) of the U.S. Bankruptcy Code.
9.4 Effect of Termination.
(a) Upon the termination or expiration of this Agreement:
(i) If any Borrower agreed to Engage with Lender prior to the termination or expiration of this Agreement, Lender may continue to Engage with the Borrower outside of the Platform without further involvement from Bridge. For clarity, after the termination or expiration of this Agreement, Bridge is under no obligation to facilitate Lender’s continuing Engagement with a Borrower, including by making any aspect of the Platform, or any Borrower Information or Due Diligence Materials, available to Lender;
(ii) Lender will not be permitted to provide any RFP Response to any RFPs pending at the time of this Agreement’s termination or expiration; and
(iii) Bridge shall remove all references to Lender, including any of Lender’s RFP Responses, from the Platform, and shall remove Lender’s Marks from Bridge’s website and marketing materials.
(b) Notwithstanding anything to the contrary, any termination or expiration of this Agreement will not release Lender from any obligation, responsibility or liability that arose from or occurred in connection with this Agreement on or prior to the date of termination or expiration of this Agreement, including, without limitation and for the avoidance of doubt, with respect to any amounts owed by Lender to Bridge and related reports pursuant to Section 1.9 and/or pursuant to any applicable Order Form.
Article X
MISCELLANEOUS
10.1 Governing Law; Jurisdiction; Venue; Waiver of Trial by Jury.
(a) The Parties agree that this Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to any conflict of law provisions. Should a dispute arise under or in relation to this Agreement, jurisdiction over and venue of any suit arising out of this Agreement shall be exclusively in the state and federal courts of New York County, State of New York.
(b) TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY HEREBY EXPRESSLY WAIVES (ON BEHALF OF ITSELF AND ON BEHALF OF ANY PERSON OR ENTITY CLAIMING THROUGH THAT PARTY) ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR IN ANY MANNER CONNECTED WITH THIS AGREEMENT.
10.2 Notices. All notices, requests, consents, demands or other communications required to be given under this Agreement shall be in writing and shall be deemed to have been duly given by emailing, if to Lender at the email address listed on the applicable Order Form or within the Lender account on the Platform and if to Foro at the legal@foroio.
10.3 Waiver. No term or provision in this Agreement will be deemed waived or modified, and no variation of such terms or provisions shall be deemed consented to, unless such waiver or consent is in writing signed by the Party against whom such waiver or consent is sought to be enforced. Any delay, waiver or omission by either Party to exercise any right or power arising from breach or default of this Agreement by the other party shall not be construed to be a waiver by that party of any subsequent breach or default.
10.4 Independent Contractors. The Parties are acting as independent contractors to each other under this Agreement, and nothing contained in this Agreement shall create or suggest any affiliation, association, partnership, agency or joint venture between the Parties. Neither Party shall represent itself or act as the associate, partner, agent or joint venturer of the other Party in any way whatsoever. Neither Party shall have the authority to bind or commit the other Party for any purpose and will not hold themselves out as having the authority to do so.
10.5 Entire Agreement. This Agreement, the Terms of Use, any applicable Order Form along with all schedules hereto constitutes the entire agreement between the Parties relating to the subject matter of this Agreement, and all prior and contemporaneous negotiations, agreements and understandings, whether oral or written, are superseded hereby. Except as otherwise provided herein, this Agreement may not be amended or modified except by a writing signed by both Parties.
10.6 Interpretation. In the event of any conflict between the provisions of the Agreement and a schedule, the conflicting provisions of the Agreement will govern. Each Party acknowledges and agrees that any interpretation of this Agreement may not be construed against a Party by virtue of that Party having drafted the provisions.
10.7 Severability. If any provision of this Agreement is declared or found to be illegal, unenforceable or void, this Agreement shall be construed as if not containing that provision, and the rest of the Agreement shall remain in full force and effect.
10.8 Survival. Upon the expiration or termination of this Agreement, the Parties shall have the rights and remedies described herein. Upon such expiration or termination, all obligations of the Parties under this Agreement shall cease, except that the obligations of the Parties pursuant to Sections 1.3(b), 3.1 and 4.3, Articles V-VIII, Section 9.4, and Article X, and Lender’s non-disparagement obligations pursuant to Section 3.4, shall survive the expiration or termination of this Agreement.
10.9 No Assignment, Transfer, or Sublicense. Lender may not transfer, assign or sublicense this or any part of this Agreement without the prior written consent of Bridge. Bridge may assign this or any part of this Agreement (a) upon notice to Lender or (b) in connection with any assignment, sale or spin out (howsoever described) of the Platform.
10.10 Force Majeure. Nonperformance of either Party will be excused to the extent that performance is rendered impossible by strike, fire, flood, acts of terrorism, governmental acts or orders or restrictions, failure of suppliers, power outages, or any other reason where failure to perform is beyond the reasonable control of and is not caused by the negligence of the non-performing Party.
10.11
[Schedule I to follow]
Schedule 1
Definitions
The following terms shall have the following meanings when used in this Agreement:
“Affiliate” means a business entity now or hereafter Controlled by, Controlling or under common Control with a Party.
“Applicable Law” means, as applicable to each Party and for all U.S. federal, state and local: (i) laws (including common law), ordinances, regulations, and codes; and (ii) orders, requirements, directives, decrees, decisions, judgments, interpretive letters, guidance and other official releases of any governmental authority or regulator that are applicable to a Party or its Affiliates, or any other matters relating to the subject matter of this Agreement. Without limiting the foregoing, Applicable Law includes (a) all data protection, privacy or similar laws and regulations anywhere in the world applicable to persons in possession of commercial or personal information, or to the processing of commercial or personal information (individually and collectively, “Privacy Laws”), (b) any bribery, fraud, kickback or other similar anti-corruption law or regulation of any applicable country including the U.S. Foreign Corrupt Practices Act and the regulations promulgated thereunder; (c) the Truth in Lending Act, its regulations and other federal, state or local laws governing Loans (“Lending Laws”) (d) the Equal Credit Opportunity Act and the regulations promulgated thereunder or any similar federal, state or local laws and regulations (“Fair Lending Laws”); (e) the USA PATRIOT Act and the regulations promulgated thereunder; (f) any law or regulation addressing unfair, deceptive or abusive acts or practices; (g) any law or regulation addressing money laundering; and (h) any law or regulation related to economic sanctions.
“Application” means the application that a Participant must submit to Bridge in order to be considered for the Platform.
“Borrower” means a legal entity that Bridge allows to access the Platform to seek one or more RFP Responses through RFPs made through the Platform.
“Borrower Information” means any information or other data provided by or related to a Borrower that is made available through the Platform, including a Borrower’s RFP, or any information or other data that may be derived from such information or other data. For clarity, Borrower Information does not include Due Diligence Materials.
“Business Day” means any day, other than a federal holiday, Saturday or Sunday, on which Bridge is open for business at its U.S. headquarters.
“Bridge Indemnified Parties” has the meaning set forth in Section 7.1.
“Claim” means any claim, legal or equitable, cause of action, suit, litigation, proceeding (including a regulatory or administrative proceeding), grievance, complaint, demand, charge, investigation, audit, arbitration, mediation or other process for settling disputes or disagreements, including, without limitation, any of the foregoing processes or procedures in which injunctive or equitable relief is sought.
“Closed Deal” has the meaning set forth in Section 2.1.
“Confidential Information” has the meaning set forth in Section 6.1.
“Control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.
“Disclosing Party” has the meaning set forth in Section 6.1.
“Due Diligence Materials” means records or documentation relating to Borrower that a Borrower may upload to the Platform and permit a Participant to review in connection with its Engagement with such Participant. Due Diligence Materials does not constitute Borrower Information.
“Effective Date” shall mean the date the Lender accepts the terms of this Agreement.
“Engage” or “Engagement” means a Borrower’s interactions with Lender, whether on or off the Platform, pursuant to Borrower’s express election to initiate discussions with Lender regarding a Loan in reply to Lender’s RFP Response, solely as captured through functionality provided by the Platform.
“Fair Lending Laws” has the meaning set forth in the definition of “Applicable Law” in this Schedule 1.
“Feedback” has the meaning set forth in Section 2.3.
“Indemnified Party” has the meaning set forth in Section 7.3.
“Indemnifying Party” has the meaning set forth in Section 7.3.
“Intellectual Property Rights” means, on a worldwide basis, all intellectual property rights, including (a) copyrights, copyrighted works, works of authorship (including software), moral rights and database rights; (b) trade secrets and know-how; (c) patents, designs, inventions, algorithms and other industrial property rights; (d) other intellectual and industrial property rights of every kind and nature, however designated, whether arising by operation of law, contract, license or otherwise; (e) Trademarks, and (f) applications, registrations, renewals, extensions, continuations, divisions or reissues of any of the foregoing, now or hereafter in force (including any rights in any of the foregoing).
“Lender Indemnified Parties” has the meaning set forth in Section 7.2.
“Lender Marks” means those Trademarks owned by or licensed to Lender as depicted in Lender’s Application.
“Lender Provisioned Data” has the meaning set forth in Section 5.2(a).
“Lender’s Borrower Data” has the meaning set forth in Section 5.3(d).
“Lender’s Policies and Procedures” means Lender’s policies and procedures applicable to its Loan activities, including the applicability of its Loan Criteria or its collection, use or storage of Borrower information or other data (including any Personal Information), which shall meet or exceed industry standards and best practices.
“Lender’s Security Procedures” means Lender’s own data security policies and procedures applicable to Lender’s Loan customers.
“Lending Laws” has the meaning set forth in the definition of “Applicable Law” in this Schedule 1.
“Loan” means closed-end credit extended to a Borrower intended to be used for a business or commercial purpose, and not for any personal, family or household use.
“Loan Criteria” means the underwriting and other eligibility criteria that Lender applies in its review of any Loan application, including any know-your-customer, underwriting and sanctions reviews.
“Losses” means and includes any loss, assessment, fine, penalty, deficiency, interest, payment, expense, cost, debt, indebtedness, liability, lien, judgment or damage, which is actually sustained, incurred or accrued.
“Meetings” has the meaning set forth in Section 2.1.
“Participant” means an insured depository institution that has entered into an agreement with Bridge substantially in the form of this Agreement and permitted by Bridge to participate in the Platform.
“Personal Information” has the meaning set forth in Section 5.3(c).
“Platform” has the meaning set forth in the recitals, including any improvements, updates or other creations to or for the Platform made or developed by Bridge or otherwise in connection with the activities contemplated by this Agreement, including (a) configurations or options for features, interface templates or designs, (b) patches, corrections or other modifications or additions, and (c) enhancements, new features, capabilities or functionality.
“Platform Information” has the meaning set forth in Section 4.2.
“Platform Terms and Conditions” means those terms and conditions which govern Participants’ access to the Platform.
“Privacy Laws” has the meaning set forth in the definition of “Applicable Law” in this Schedule 1.
“Recipient” has the meaning set forth in Section 6.1.
“Related Loan Transaction” means (a) any loan transaction executed by Lender and Borrower and/or (b) any amendment or modification to a Closed Deal that results in an increase in the principal loan amount referenced thereunder, in each case that is executed within 60 days after the execution of a Closed Deal between Lender and such Borrower.
“Report” has the meaning set forth in Section 2.1.
“RFP” means a request submitted by a Borrower via the Platform to which Participants may provide an RFP Response.
“RFP Response” means Lender’s invitation to a Borrower to pursue a Loan with Lender based on the Borrower’s RFP.
“Systems” means, with respect to any Party, software, databases, computers, hardware, systems and networks owned, leased, licensed or operated by such party or its Affiliates or on behalf of such party or its Affiliates by third parties engaged by such party or its Affiliates. A System shall not be a System of a particular Party if access to or permission to use such System must be granted by the other Party or its Affiliates.
“Term” means the Initial Term and any Extension Term.
“Trademarks” means any service mark, trade dress, logo, trade name, internet domain name, corporate name, social and mobile media identifier or other source indicator and proprietary designation, and the goodwill associated therewith.