A. Terms; Pricing.
The term "LDS" means LoanDocSolutions, a California corporation, and its successors and assigns. The term "Customer" means an LDS Customer using the LDS customer website ("LDS Customer Website") to obtain loan documents from LDS. The term "Lender" includes Customer (for any document prepared by LDS in which Customer is named as a lender) as well as any other person or entity named as a lender or assignee in any document prepared by LDS at the request of Customer, and any of their successors and assigns. Unless otherwise provided in any written contract between LDS and Customer: (a) LDS may change its loan document package pricing or other pricing at any time; and (b) only new loan document orders (other than GoDocs and RoboDocs orders) are counted in determining eligibility for quantity discounts — GoDocs and RoboDocs orders, redraw orders, single document orders and modification/assumption document orders are not counted.
B. Software Provider; Not a Law Firm.
LDS is a software provider and provides non-legal support and technical assistance to Customers with the use of the LDS Customer Website and the LDS loan document templates. LDS is not a law firm and does not practice law or render legal advice or services. On orders other than GoDocs and RoboDocs, LDS staff also provides clerical assistance when necessary to clarify Customer's document orders and data entry, and to proof and finalize documents before releasing them to Customers. LDS software is designed to fulfill the role of a scrivener by assembling documents pursuant to pre-defined document templates approved by Customer as described in Section H of these Terms and Conditions. LDS may, solely as a convenience to Customer: (a) allow Customer to request certain ancillary legal services from law firms via the LDS Customer Website for, among other legal services, entity document review and custom drafting (provided by
Highland Law Corporation) and local counsel review; and (b) sub-bill local counsel review fees or fees for other legal services as expense items on LDS invoices. Neither the ability to request legal services nor the sub-billing of legal services as a convenience shall constitute any contractual agreement, arrangement, representation, warranty, liability, undertaking or relationship with LDS with respect to any such legal services. Such legal services shall be provided by the respective law firms and shall be governed solely by Customer's agreement and attorney-client relationship with the respective law firms. Customer's election to utilize the services of any law firm shall be at Customer's sole discretion and LDS does not recommend or warrant the services of any law firm. If any legal services for local counsel or otherwise are sub-billed by LDS as a convenience to Customer, LDS's sole responsibility in connection therewith shall be to forward any sums received from Customer with
respect to such legal services to the law firm providing the legal services. These legal fees are not LDS fees and LDS does not receive any portion of these fees or any referral fees or other compensation, nor do the respective law firms receive any portion of the LoanDocSolutions fees. Any legal fees incurred by any law firm in excess of the amount invoiced and collected by LDS from Customer shall be the sole obligation and responsibility of Customer and shall be paid by Customer directly to the law firm.
C. Payment of Document Preparation Charges.
LDS generates an invoice at the time (or soon after) each document order is submitted. For certain high-volume Customers LDS may in its discretion agree to provide monthly statements and receive payments on a monthly basis rather than on a per-order basis. LDS fees are incurred at the time each order is submitted (regardless of whether an order is cancelled before documents are delivered), are nonrefundable and are not contingent upon the loan closing (we require payment regardless of whether the loan has closed). If any of Customer's invoices remain unpaid for more than thirty days, then: (a) Customer agrees to pay a late charge of ten percent of the invoice amount; and (b) LDS may deny access to the LDS Customer Website and refuse further document orders. In the event any check received by LDS is dishonored for any reason, or in the event there are insufficient funds in the designated account to cover any authorized debit, then,
without limiting any other charges or remedies, Customer shall pay to LDS a returned item fee of $100.00 for each such event. Invoice Customers: For banks, credit unions and other Customers that LDS has agreed in writing not to require advance payment ("Invoice Customers"), all invoices are due and payable upon receipt and delinquent if not paid within thirty days. LDS may, in its discretion, convert any Invoice Customer to a Credit Card Customer upon notice to such Customer. Credit Card Customers: Customers other than Invoice Customers ("Credit Card Customers") will be required to pay for each loan document order at the time the order is submitted or upon receipt of an invoice by means of credit or debit card (Visa, MasterCard or American Express), confirmed ACH deposit or cashier's check. Document orders submitted by Credit Card Customers are not considered to be submitted for turnaround purposes until payment is received and confirmed.
D. Setup Charges.
LDS does not typically charge an initial setup charge unless Customer's setup requirements are extensive. Setup charges, if any, are due and payable at the time setup is ordered and such payment shall be a condition precedent to commencement of setup work. If any additional document templates or other setup items are requested by Customer in the future, then, if a setup charge will apply, LDS shall notify Customer and shall generate an invoice for the setup charge.
E. Software License.
During the term of Customer's Contract, Customer shall have a nonexclusive license to use the LDS Customer Website. Such license does not include any rights to source code or to download or install the LDS Customer Website software code or other software utilized by LDS in providing documents to Customer on any other computer or in any other location. Customer acknowledges that the concept, implementation, web application, html code, script code, databases, data tables, web design, document templates and related software pertaining to the LDS Customer Website and the provision of LDS documents are the exclusive property of LDS and Customer agrees that it shall not (whether during or after the term of Customer's Contract) appropriate, duplicate, reverse-engineer, emulate, alter or reuse any of said property except as expressly permitted by these Terms and Conditions. The software license granted to Customer shall terminate upon the termination of Customer's
F. Prohibition Against Unauthorized Use of Documents.
LDS provides a limited non-exclusive license to Customers to use its software as described in Section E above to generate documents for specific individual transactions, and does not sell its software, documents or document templates for re-use by Customers, lenders, their attorneys or any other party. LDS retains sole ownership of all of its software and automated document templates and does not release the actual encoded templates or software code to its Customers or otherwise (even if the template or software code was prepared based on Customer-supplied language or based on a Fannie Mae, Freddie Mac or other form). Aside from our entitlement to a fair fee for our intellectual property, our templates are complex, and it would be legally perilous to "cut and paste" from any individual document in order to use the document on a transaction other than that for which it was specifically prepared. To protect ourselves against
unauthorized use, Customer and Lender agree that neither Customer nor any Lender, assignee, attorney, employee, agent or affiliate of Customer or Lender shall, either during or after the term of Customer's Contract, use any documents prepared by LDS (or any language contained therein) as a basis for preparing other documents or loan document packages. If Customer or any Lender, assignee, attorney, employee, agent or affiliate of Customer or Lender ever uses or allows the use of any document(s) prepared by LDS as a basis to prepare other documents or loan document packages without prior written authorization from LDS in each instance, then (without limiting any other remedies of LDS) Customer and Lender agree to pay to LDS upon demand an unauthorized use fee in the amount of $5,000.00 for each document or loan document package that uses any LDS document in violation of such prohibition. Unless otherwise agreed to in writing by LDS, all documents shall be provided by
LDS in password-protected, non-editable PDF format only, and shall not be provided in Microsoft Word or other editable format. Neither Customer nor Lender shall extract, scan or otherwise create, release, distribute, forward or circulate any editable version (e.g. Word file or unprotected PDF) of any LDS document (other than to Customer's legal counsel who has first agreed in writing to be bound by these Terms and Conditions, and a copy of which writing shall have been provided to LDS). Customer and Lender shall be liable for any unauthorized use of LDS documents resulting from any violation of this Section F, including without limitation unauthorized use fees as set forth in this Section F.
G. Use of LDS Customer Website.
The LDS Customer Website is for use in connection with Customer's and Lender's lending transactions, and Customer may request logins to the LDS Customer Website only for such employees, agents, lenders and attorneys who have a need to access the LDS Customer Website in connection with Customer's lending transactions ("Permitted Users"). Customer shall notify LDS in writing of all Permitted Users that Customer wishes to be granted login rights to the LDS Customer Website. LDS shall have the right to disable access to the LDS Customer Website if no document orders are submitted by Customer for a period of six months. Customer shall be solely responsible to notify LDS in writing when Customer wishes to revoke access rights of any of Customer's Permitted Users (such as, for example, when a Permitted User's employment with Customer is terminated). Permitted Users are required to reaffirm Customer's agreement to these Terms and Conditions
when submitting each document order, and Customer represents and warrants that each of Customer's Permitted Users shall have full power and authority to do so. Customer acknowledges and agrees that LDS may delete Customer's data records that are more than six months old and may further delete Customer's data records upon the termination of Customer's Contract.
H. Customer's Approval of Templates; Proof Documents.
At the conclusion of the setup process, for each document included in the setup order, LDS may (but shall not be obligated to) prepare one or more sample documents ("Proof Documents") for Customer's review and approval. The Proof Documents may be specially prepared samples or proofs, but otherwise the first document transmitted to Customer for each document type (or the first new variation of a previously prepared document type) shall be considered to be the Proof Document for that document type or new variation thereof. In either case, all Proof Documents and the underlying document templates shall conclusively be deemed approved by Customer and Lender unless and until Customer notifies LDS in writing (by email addressed to email@example.com and to firstname.lastname@example.org
) of any comments or corrections, in which case LDS and Customer
shall agree upon the exact changes to be made and LDS may generate a new Proof Document for Customer's review and approval (if no specially prepared proof document is so generated then the first document transmitted to Customer after such changes are made shall be considered the Proof Document). As with prior Proof Documents, the new Proof Documents and the underlying document templates shall conclusively be deemed approved by Customer and Lender unless and until Customer notifies LDS in writing (by email addressed to email@example.com and to firstname.lastname@example.org
) of any comments or corrections, in which case the above process shall be repeated. Customer's failure to notify LDS of any comments or corrections to Proof Documents or any document package that contains material deviations from Proof Documents previously approved shall conclusively be deemed to constitute Customer's and Lender's approval of the
Proof Documents and the underlying document templates. Customer and Lender agree that LDS shall have no concern, liability or responsibility with respect to any legal deficiency, unenforceability, error, inconsistency, ambiguity, damage or loss which is, directly or indirectly, related to: (a) any changes or additions to or deviations from LDS standard document provisions requested by Customer (including any such changes, additions or deviations reflected in any approved Proof Document as described in this Section H), or (b) any custom or Customer-supplied document or language furnished to Lender for inclusion in Customer's document packages.
I. Standard Priority Service.
LDS works on a daily cycle with a cutoff time of 1:00 p.m. Pacific Time ("Cutoff Time") on Business Days. "Business Days" include most days that both national banks and the New York Stock Exchange are open for business. Business Days exclude days (which days shall be posted in advance on the LDS website) in which LDS is closed for employee training, continuing education, hardware upgrades, software upgrades and/or company events. Orders received after the Cutoff Time (or on non-Business Days) will be processed with the following Business Day's orders and will be treated as having been received the following Business Day. For orders received before the Cutoff Time, LDS will use commercially reasonable efforts to complete standard priority orders by the Cutoff Time the next Business Day for typical orders. Modification documents, assumption documents, and especially complex transactions typically require at least one additional Business Day.
Next Business Day service can only be provided in cases where LDS has previously set up all of the document templates required for the loan document package, Customer's data entry is correct and complete, and there are no special instructions or especially complex transaction terms. Allow at least three (3) Business Days to set up new document templates. For both Standard Priority and rush priority orders, LDS shall not be responsible or liable for possible delays resulting from hardware failures, network difficulties, unscheduled employee absences, unusually heavy order volume, natural disasters, and other causes beyond the reasonable control of LDS. Although LDS meets or exceeds its turnaround goals on the vast majority of loan document orders, these turnaround goals are not an absolute guaranty. Accordingly, LDS shall not be responsible or liable for delays that may occasionally occur on both Standard Priority and Rush orders, nor shall the fees due LDS be adjusted in such
instances. If timing is especially critical on a particular order, please contact LDS by telephone to inform us of this fact and obtain a time estimate for completion of the documents. Unless otherwise agreed in writing between Customer and LDS, the Standard Priority turnaround goal for GoDocs orders is five LDS Business Hours. "LDS Business Hours" are 7:30 a.m. to 4:00 p.m. Pacific Time on Business Days.
J. Rush Priority Service.
Customer may request rush priority service in instances where Customer desires faster turnaround than our Standard Priority Service, and LDS will often be able to accommodate such requests. If Customer anticipates needing rush priority Service, Customer should notify LDS as far as possible in advance to obtain an estimated turnaround goal. The likelihood of LDS being able to comply with rush priority Service requests increases when LDS receives advance notice of desired rush priority orders. In cases where LDS has previously set up all of the document templates required for the loan document package and there are no special instructions requiring custom drafting, rush priority orders can frequently be completed and transmitted to Customer in as little as four LDS Business Hours. Unless otherwise agreed in writing between Customer and LDS, the rush priority turnaround goal for GoDocs orders is as little as three LDS Business Hours. Although LDS meets
its turnaround goals for the vast majority of rush priority orders, these turnaround goals are not an absolute guaranty.
K. Data Entry; Preparation of Documents.
Customer shall be solely responsible for the entry of data into the LDS Customer Website and for proofing such data prior to submitting document orders. LDS shall use commercially reasonable efforts to prepare documents accurately using Customer's data and the templates approved by Customer pursuant to Section H of these Terms and Conditions. LDS disclaims any legal responsibility or liability for failing to recognize or notify Customer of or to correct any errors in Customer's data entry. All loan terms, including without limitation loan amounts, payment amounts, interest rates, dates, names, signatory titles, legal descriptions, and data entry options, will be reflected in the documents exactly as entered by Customer except for corrections or changes made according to Customer's instructions or with Customer's consent. Without limiting the foregoing, Customer shall be solely responsible for determining and entering the signatories and
entities for each loan transaction, as well as their respective capacities and titles. LDS shall have no responsibility or liability in connection with the authority of signatories or any consents or approvals that may be required under the entity documents of any entities or under applicable laws.
L. CommercialDocs; ApartmentDocs; InvestorDocs.
LDS represents that it has exercised reasonable care and diligence in the development of CommercialDocs, ApartmentDocs and InvestorDocs document templates. Without limiting the foregoing, LDS represents that it has exercised reasonable care and diligence to incorporate appropriate state-by-state variations into the core loan document templates (promissory notes, mortgages and deeds of trust) so that the security instruments prepared by LDS are legally sufficient to create a lien or security interest securing the indebtedness evidenced by the promissory note, in connection with a typical loan secured by commercial real property, multifamily property or non-owner occupied residential real property, in which the proceeds of the loan will be used solely for business purposes and not for any personal or household purposes of any individual borrower or guarantor, or any equity owner of any entity borrower or
guarantor, assuming accurate data entry and proper recordation of the mortgage or deed of trust and proper filing of financing statements. While LDS does not guaranty that every provision of every document will be enforceable, LDS will continue to exercise reasonable care and diligence to maintain the CommercialDocs ApartmentDocs and InvestorDocs document templates during the term hereof and to incorporate such changes as LDS deems appropriate from time-to-time in order to respond to any changes in applicable state law. LDS shall promptly incorporate any updates or changes to the CommercialDocs ApartmentDocs and InvestorDocs document templates into Customer's loan document packages as such updates or changes are made during the term of Customer's Contract. Customer and Lender consent to such updates and changes which shall conclusively be deemed approved by Customer and Lender in accordance with Section H of these Terms and Conditions.
M. Fannie Mae Multifamily Documents.
LDS represents that it shall use reasonable care so that its software generates any Fannie Mae multifamily loan documents ordered by Customer according to the current applicable Fannie Mae forms utilizing the loan data entered by Customer. LDS shall use reasonable care to update its templates to reflect any changes to the Fannie Mae multifamily loan document forms so that the documents generated by the LDS software consistent with the current Fannie Mae language for each applicable Fannie Mae form as of the date that the documents are generated (or variations of such language approved by Fannie Mae or specified by Customer).
N. Business Purpose Loans Only.
LDS documents are intended for use solely in transactions which are secured by commercial real property, multifamily real property and non-owner occupied residential real property in which the proceeds of the loan will be used solely for business purposes and not for any personal or household purposes of any individual borrower or guarantor, or any equity owner of any entity borrower or guarantor. In the event, pursuant to Customer's or any Lender's request or direction, LDS prepares any document or document package for any loan (i) the proceeds of which will not be used solely for business purposes, or (ii) which is to be secured by any residential property consisting of less than five units (less than seven units in New York, New Jersey and Illinois) that is or will be occupied by any individual borrower or guarantor, or any equity owner of any entity borrower or guarantor, then Customer and Lender acknowledge and agree: (a) that
any such documents or document package shall be considered as drafts only; (b) that Customer or Lender shall engage competent legal counsel familiar with applicable federal and state laws and regulations to review, revise and supplement the draft documents prepared by LDS as necessary to assure legal compliance and provide all necessary disclosures; and (c) that LDS shall have no responsibility or liability for any legal deficiencies or any noncompliance with any applicable laws or regulations in connection with such documents or the related transaction.
O. Custom (Customer-Supplied) Documents.
LDS represents that it shall use reasonable care to prepare each loan document that utilizes custom templates based on Customer-supplied or Lender-supplied forms or language, utilizing the loan data entered by Customer. Customer shall be solely responsible for supplying LDS with any desired updates to any Customer-supplied or Lender-supplied forms or language.
P. GoDocs; RoboDocs.
LDS may offer GoDocs and/or RoboDocs expedited turnaround to certain Customers for recurring, standardized transaction types. GoDocs and RoboDocs are available only for limited transaction types and most often require custom programming and maintenance of a minimum order volume. Documents and data entry for GoDocs orders receive minimal, if any, review by LDS staff, and LDS staff does not provide clerical assistance to clarify Customer's data entry or to finalize and proof documents before releasing them to Customer. For RoboDocs orders neither Customer's data entry nor the documents themselves are reviewed by LDS staff, and LDS staff does not provide clerical assistance to clarify Customer's data entry or to finalize and proof documents before releasing them to Customer. If, as a courtesy, LDS staff provides any data review or assistance on any GoDocs or RoboDocs orders: (a) Customer should not expect to receive such review or
assistance in connection with any other or future orders; and (b) such review or assistance shall not alter these Terms and Conditions or give rise to any obligation on the part of LDS to do so for any other or future orders. The availability, pricing, setup costs (if any), transaction parameters, minimum order volume and other terms applicable for GoDocs and and/or RoboDocs orders which are not otherwise addressed in these Terms and Conditions shall be agreed upon on a case-by-case basis between LDS and Customer. GoDocs and RoboDocs orders do not count toward determination of quantity discounts for standard document orders.
Q. Disclaimers; Limitations on Liability.
To the fullest extent allowed by law LDS disclaims any warranties or liabilities other than those expressly set forth in these Terms and Conditions. Accordingly, Customer agrees that LDS shall have no liability in connection with the provision of software, documents or services except as expressly set forth in these Terms and Conditions. Customer (and Lender if other than Customer) represents and agrees it shall obtain a lender's policy of title insurance insuring the validity and priority of its lien in each and every loan transaction and that the title insurer shall have primary liability in the event of any matter covered by such title insurance policy. Customer and Lender agree that LDS shall have no concern, liability or responsibility with respect to Customer's or any Lender's compliance or non-compliance generally or in any transaction with: (i) any usury laws, high-cost or high-risk mortgage laws or other laws regulating the
amount of interest, prepayment premiums, late charges or other charges that may be lawfully collected; (ii) any legal, licensing or regulatory restrictions, registrations or qualification requirements applicable to Customer's lending business, or to any Lender, investor or borrower in any transaction; (iii) any RESPA-TILA, truth-in-lending, disclosure or other consumer protection laws applicable to consumer or non-business purpose transactions; or (iv) any state "unauthorized practice of law" statutes or other statutes requiring that local legal counsel be retained in connection with the preparation of loan documents. Customer and Lender agree that LDS shall have no concern, liability or responsibility with respect to any legal deficiency, unenforceability, error, inconsistency, ambiguity, damage or loss which is, directly or indirectly, related to: (a) any changes or additions to or deviations from LDS standard document provisions requested by Customer (including any such changes,
additions or deviations reflected in any approved Proof Document as described in Section H of these Terms and Conditions), or (b) any custom or Customer-supplied document or language furnished by Customer or any Lender for inclusion in Customer's or such Lender's document packages. Customer and Lender agree to indemnify and hold harmless LDS from any loss, damage, expense or liability, including attorneys' fees and costs, incurred by LDS as a result of or relating to the matters described in clauses (a) and (b) of the preceding sentence. Customer shall be responsible to retain local counsel as required by the laws of the jurisdiction where the security property is located in order to finalize any documents which, under the laws of the property jurisdiction, must be prepared by legal counsel licensed in the property jurisdiction, and any such documents prepared by LDS shall be considered as drafts only, to be reviewed, revised and supplemented as necessary by legal counsel licensed in
the property jurisdiction. Customer represents that all loans for which loan document preparation orders are submitted shall be for solely for commercial, business or corporate purposes and not for personal or consumer purposes. In no event shall LDS have any liability for any cost, damages, losses or liability for any errors or omissions on the part of LDS unless and until Customer has exhausted all remedies against the borrower, any guarantors, the title insurer and/or any other parties that may be liable for such matters, and until Customer thereafter obtains a final, non-appealable judgment against LDS for any remaining deficiency expressly found by the court to have been caused solely by an error or omission of LDS. LDS shall have no liability in connection with missing or inaccurate data entry by Customer or in connection with changes made to documents after preparation by LDS. All LDS loan document packages contain documents and/or provisions requiring the borrower and any
guarantors to correct any clerical and other errors in the documents. LDS shall have no liability for any clerical or other errors in loan documents unless and until Customer has exhausted all possible efforts to obtain a correction of any such errors pursuant to the terms of such documents and/or provisions requiring the borrower and any guarantors to correct any clerical and other errors. Such efforts shall include without limitation, declaring a default and instituting the default rate of interest if the borrower or any guarantor fails to execute correction document(s) within the time required by the loan documents. In no event shall LDS be liable to Customer or any person for any incidental, indirect, special or consequential damages, including without limitation, loss of profits, loss of data, or any and all other similar damages or loss, even if LDS has been advised of the possibility of such damages. In no event shall LDS's total liability to Customer or any other person exceed
the total amount of fees paid by Customer to LDS for the documents or services from which such liability arises.
R. Customer's Contract.
The term "Customer's Contract" as used herein shall mean these Terms and Conditions, as modified from time to time, each of which Customer shall be deemed to have agreed to, accepted and reaffirmed whenever Customer submits a document order, together with the terms of any separate written contract between LDS and Customer. Unless otherwise specified in any separate written contract between LDS and Customer, Customer is under no obligation to order any minimum number of document packages. LDS reserves the right to terminate Customer's Contract or discontinue services previously offered to Customer, with or without cause, upon thirty (30) days prior written notice to Customer. Customer may terminate Customer's Contract at any time upon notice to Lender. LDS shall have the right to change these Terms and Conditions in its sole discretion at any time. Any changes to these Terms and Conditions shall be effective and applicable to Customer (and any Lender for
which Customer orders documents) commencing on the date that the changed Terms and Conditions are posted at on the LDS Website and which may be accessed by way of the following URL www.loandocsolutions.net/terms
. Termination of Customer's Contract for any reason shall only terminate Customer's access to the LDS Customer Website and ability to order documents from LDS, but otherwise all terms, conditions, covenants, obligations and agreements of Customer, Lender and LDS shall survive such termination, and shall continue to govern all documents, software, products and services requested by or provided to Customer and Lender prior to termination.
S. Agreement by Lenders Other than Customer.
Prior to ordering any documents in which a Lender other than Customer is to be named as a lender or as an assignee of the lender(s) named in the loan documents, Customer shall inform the Lender or assignee of the LDS Terms and Conditions, and obtain such Lender's or assignee's written acknowledgment and agreement to these Terms and Conditions. As a condition to preparation and/or release of documents naming any Lender or assignee other than Customer, LDS may require a written acknowledgment and agreement to these Terms and Conditions from such Lender or assignee, in such form as LDS may require. Failure of LDS to require such written acknowledgment and agreement shall not relieve Customer of its obligation to obtain such written acknowledgment and agreement from each Lender or assignee for which Customer orders documents, nor relieve Customer or any such Lender or assignee from any term or provision contained in these
Terms and Conditions. Customer shall indemnify and hold LDS harmless from any loss, expense or liability, including attorneys' fees, in connection with any claim by any Lender or assignee other than Customer, regardless of whether such Lender or assignee has agreed in writing to these Terms and Conditions.
T. Governing Law; Jurisdiction and Venue.
Customer's Contract shall be governed by the laws of the State of California. Customer and Lender consents to the jurisdiction and venue of the state and/or federal courts located in Orange County, California for any dispute relating to Customer's Contract or the documents, software, products or services provided to Customer or Lender by LDS.
U. Dispute Resolution.
The following procedures shall be adhered to in any disagreement ("Dispute") that arises out of or relates to Customer's Contract, or the documents, software, products or services provided to Customer or any Lender by LDS, prior to the escalation of a Dispute to arbitration or litigation. In the event of a Dispute, either party shall notify the other party in writing of the nature of the Dispute with as much detail as possible. Customer and/or the applicable Lender and a designated LDS representative shall confer, in person or by telephone, within ten (10) Business Days of the date of notification for the purpose of negotiating a resolution of the Dispute and, if applicable, determining the corrective action to be taken by the respective parties. If the parties are unable to resolve the Dispute or to agree upon the appropriate corrective action to be taken within twenty (20) Business Days of such meeting, or if any of the completion dates in the
corrective action plan are later exceeded, then either party may initiate arbitration proceedings.
Unless the parties mutually agree otherwise, any controversy or claim arising out of or relating to Customer's Contract, or the documents, products, software or services provided to Customer or any Lender by LDS, which is not resolved pursuant to Section U of these Terms and Conditions, shall be resolved by arbitration in accordance with American Arbitration Association's then-prevailing Commercial Arbitration Rules with Expedited Procedures, as modified by Customer's Contract. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration and venue for any arbitration, legal action or alternative dispute resolution regarding Customer's Contract, or the breach thereof, or the documents, products, software or services provided to Customer by LDS shall be in Orange County, California, or at such other place as may be selected by mutual agreement. The provisions of this arbitration clause shall survive
the termination or expiration of this Agreement.
W. Attorneys' Fees.
In the event of any claim, controversy, arbitration or action relating to Customer's Contract, or the documents, products, software or services provided to Customer or any Lender by LDS, the prevailing party shall be entitled to its reasonable attorneys' fees and costs in an amount to be determined by the arbitrator or the court, as the case may be.
These Terms and Conditions, as amended from time to time, together with any written contract between Customer and LDS, represent the whole and only agreement with respect to the subject matters herein and supersede all prior agreements, oral and written. Except for changes to these Terms and Conditions made by LDS and posted on the LDS website as set forth herein, no amendment to Customer's Contract shall be valid or effective unless embodied in a written instrument signed by the party to be charged. In the event any changes to these Terms and Conditions are made after the date of any separate written contract between LDS and Customer or any Lender acknowledgment, the changed Terms and Conditions shall be deemed to be substituted in place of the Terms and Conditions that were in effect as of the date of such separate written contract or Lender acknowledgment excepting only those changes which are in direct contravention of any specially negotiated the terms
set forth in the body of such separate written contract (not the exhibit to such separate written contract which sets forth the Terms and Conditions that were in effect as of the date of such separate written contract). All notices required or contemplated herein shall be sufficient and deemed delivered if in writing and deposited with the United States Postal Service, postage prepaid via registered or certified mail, or sent via a nationally recognized courier service with proof of delivery, addressed to LDS at: (if given on or before January 31, 2020) 19700 Fairchild, Ste. 265, Irvine CA 92612 (or, if given after January 31, 2020, at: 18650 MacArthur Blvd., Ste. 200, Irvine, CA 92612), or to such other address as may be hereafter posted on the LDS website, or to Customer at the notice address initially provided to LDS, or to such other address as may be changed from time to time by notice duly given to LDS.
Y. WAIVER OF JURY TRIAL.
CUSTOMER, LENDER AND LDS EACH (A) COVENANT AND AGREE NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS CONTRACT OR THE RELATIONSHIP BETWEEN THE PARTIES THAT IS TRIABLE OF RIGHT BY A JURY, AND (B) WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUES TO THE EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF OR THE OPPORTUNITY TO RETAIN COMPETENT LEGAL COUNSEL.