Effective Date: January 1, 2018
Updated: June 22, 2021
Welcome to the Construction Finance Corporation (“CoFi”) software platform. This software platform is comprised of access and use of the CoFi software service (the “Service”) through the CoFi website and/or related websites or applications (collectively, the “Site”) for a limited period of time. Certain add-on features may only be available on a fee basis during as approved by both parties.
By using the Service, you (1) agree to the following terms and conditions of this service agreement (the “Service Agreement”) on behalf of yourself and the company or organization identified as the Service Order (a “Registrant”), (2) represent and warrant that you are authorized to accept this Service Agreement, and (3) confirm that you are over eighteen (18) years of age.
If you do not agree to this Service Agreement, you may not use the Service.
CoFi reserves the right to modify or replace this Service Agreement at any time and in CoFi’s sole discretion. Any changes will be effective immediately upon posting the revised version on the Site (or such later effective date as may be indicated at the top of the revised Service Agreement). Your continued use of the Service following the posting of any changes to this Service Agreement will constitute your acceptance of such changes. If you do not agree to the changes, you must stop using the Service. We encourage you to refer to the terms regularly to ensure your compliance. They can be found at www.cofisoftware.com/terms-of-service.
Registration; Account Security.
CoFi reserves the right to refuse registration, or to refuse or limit access to the Service or any features, to anyone in its sole discretion. YOU UNDERSTAND THAT ANY PERSON WITH YOUR USERNAME(S) AND PASSWORD(S) MAY BE ABLE TO ACCESS YOUR ACCOUNT (INCLUDING REGISTRANT INFORMATION, REPORT DATA, TRANSACTION INFORMATION, AND OTHER USER DATA (COLLECTIVELY, “CoFi CONTENT”) YOU OR OTHERS HAVE PROVIDED TO CoFi). YOU ACCEPT ALL RISKS OF UNAUTHORIZED ACCESS TO YOUR ACCOUNT BASED ON THE SHARING OR LOSS OF A USERNAME AND PASSWORD. You will promptly notify CoFi if you discover or otherwise suspect any security breaches related to the Site, including any unauthorized use or disclosure of a username or password.
Grants of Rights; Ownership; Use Restrictions
2.1 Grant of Rights. Subject to the terms of this Service Agreement, CoFi hereby grants Registrant a non-exclusive, non-transferable, worldwide right during the term of the Service Order to access and use the Service solely for Registrant’s purposes as contemplated by the Service Order and this Service Agreement.
2.2 Ownership. Subject to the rights granted to Registrant above, CoFi shall own and retain all right, title, and interest in and to the following (collectively, “CoFi Property”): (a) the Service, the Site, and all other software, hardware, technology, documentation, and information provided by CoFi in connection with the Service; (b) all ideas, know-how, and techniques that may be developed, conceived, or invented by CoFi during its performance under this Service Agreement; and (c) all worldwide patent, copyright, trade secret, trademark and other intellectual property rights in and to the property described in clauses (a), (b) and (c) above. Subject to the rights granted to CoFi above, Registrant owns and retains all right, title, and interest in and to all intellectual property rights therein.
2.3 Restrictions. Except as expressly permitted under this Service Agreement, Registrant shall not directly or indirectly do any of the following: (a) access, use, sell, distribute, sublicense, broadcast, or commercially exploit any CoFi Property or any rights under the Service Agreement, including without limitation any access or use of any CoFi Property on a service bureau basis or for any Registrant processing services beyond the scope specified in this Service Agreement (such as for any third parties on a rental or sharing basis); (b) copy, modify, or prepare derivative works based on CoFi Property; (c) reverse engineer, decompile, disassemble, or attempt to derive source code from any CoFi Property; or (d) remove, obscure, or alter any intellectual property right or confidentiality notices or legends appearing in or on any aspect of any CoFi Property.
Fees.
3.1 Fees. The fee (“Fee”) for any add-on feature (“Add-on Feature”) is described on the Site and may be changed by CoFi at any time by posting a revised description of the Fee on the Site. Any increase in the Fee posted on the Site will take effect at such date as may be specified on the Site. Your continued use of the Add-on Feature following the posting of any changes to the Fee for such Add-on Feature on the Site will constitute your acceptance of such change. If you do not agree to the change, you must stop using and de-register, if applicable, such Add-on Feature.
3.2 Payment. By registering for an Add-on Feature, Registrant agrees to pay the then- current fees applicable for Registrant’s usage of such Add-on Feature in connection with the Service, and authorizes CoFi (or its designated payment processor) to charge Registrant’s for such Fee using the applicable payment method for such Fee.
3.3 Refunds; Billing Inquiries. All Fees paid to CoFi are nonrefundable. Registrant may contact CoFi regarding billing or other questions by calling the CoFi client service center at support@cofisoftware.com.
Warranties and Limitations.
4.1 Warranty. Registrant each hereby represents, warrants, and covenants to CoFi that: (a) it has the authority to enter into this Service Agreement, to grant the rights granted by it under this Service Agreement, and to perform its obligations under this Service Agreement; (b) it will comply with all applicable laws and regulations that may be in effect during the term of this Service Agreement as they apply to Registrant’s obligations under this Service Agreement; and (c) the CoFi Content, and the use thereof by CoFi, does not and will not infringe, or constitute an infringement or misappropriation of, any intellectual property rights, privacy rights or other proprietary rights of a third party or breach the terms of any agreement with a third party.
4.2 Disclaimer of Warranties. THE SERVICE AND ANY THIRD PARTY SERVICES ACCESSED THROUGH THE SERVICE ARE PROVIDED “AS IS,” WITHOUT WARRANTIES OF ANY KIND. CoFi DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, AND GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICE OR ANY OTHER ITEMS OR SERVICES OR THIRD PARTY SERVICES ACCESSED THROUGH THE SERVICE COVERED BY OR FURNISHED UNDER THIS SERVICE AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY (A) OF MERCHANTABILITY, (B) OF FITNESS FOR A PARTICULAR PURPOSE, OR (C) ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. CoFi DOES NOT WARRANT THAT ANY ITEMS OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
4.3 Limitation of Liability. IN NO EVENT WILL CoFi BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES IN CONNECTION WITH THIS SERVICE AGREEMENT, THE SERVICES, AND ANY THIRD PARTY SERVICES ACCESSED THROUGH THE SERVICE, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY, EVEN IF CoFi HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Indemnification.
5.1 By Registrant. Registrant shall indemnify and hold harmless CoFi and its directors, officers, employees, agents, successors and assigns from and against any and all loss, damage, liability, and expense arising from any claim brought against any such indemnified party by any third party to the extent: (a) alleging that the CoFi intellectual property, or Registrant’s use of the Service (if in violation of the terms of this Service Agreement), infringes upon any patent, copyright, trademark, privacy, trade secret, or other proprietary right of, or otherwise harms, any third party or breaches a contract with any third party; or (b) resulting from the failure of Registrant to comply with its obligations under this Service Agreement or from the acts or omissions of Registrant or its employees, agents, account users, and affiliates, and each of the successors and assigns of the above persons or entities.
5.2 Defense; Procedure. For any indemnifiable claim described in this Section 5, at CoFi’s election upon notice to Registrant, Registrant shall, at its expense, defend any such claim, provided that, if any settlement requires any obligation of an indemnified party, then such settlement shall require CoFi’s prior written consent. CoFi may assume exclusive control over the defense of any such claim at any time by not electing to have Registrant assume responsibility for such defense or, if such election has been made, by giving notice to Registrant of CoFi’s resumption of exclusive control over such defense. If any compromise or settlement is made with respect to such claim, Registrant shall pay all amounts in settlement of such claim.Data Security. CoFi will use reasonable efforts to establish and maintain safeguards to protect the security and integrity of the Service and protect against the accidental or unauthorized access, use, alteration or disclosure of the CoFi Content in accordance with the Gramm-Leach-Bliley Act.
Term and Termination
7.1 Term. The term of this Service Agreement will commence on the Start Date referend in the Service Order and will continue until terminated in accordance with the Service Order. CoFi reserves the right to terminate this Service Agreement at any time, with or without cause and in its sole discretion, immediately upon written notice (which may be by email) or by terminating an account and redirecting login attempts to a notice regarding such termination. This Service Agreement will automatically terminate upon the end of the limited period of time specified in the Service Order.
7.2 Effect of Termination. Upon termination of this Service Agreement and the Service Order, all rights granted to Registrant under this Service Agreement shall immediately terminate, including the right to access and use the Service by all of Registrant’s users, unless the termination is due to Registrant’s subscription for use of the Service under a separate service agreement. Termination of this Service Agreement shall not be construed to waive or release any claim that a party is entitled to assert at the time of such termination, and the applicable provisions of this Service Agreement shall continue to apply to such claim until it is resolved. Without limiting the foregoing, Sections 3.1(b), 3.2, 3.3, 4, 5, 7.2 and 8 of Service Agreement shall survive the termination of this Service Agreement for any reason.
Digital Payments.
In order to use the payment functionality of CoFi’s application, you must open a “Dwolla Platform” account provided by Dwolla, Inc. and you must accept the Dwolla Terms of Service and Privacy Policy. Any funds held in or transferred through the Dwolla Account are held or transferred by Dwolla’s financial institution partners as described in the Dwolla Terms of Service. You authorize CoFi to collect and share with Dwolla your personal information including full name, date of birth, social security number, physical address, email address, and financial information, and you are responsible for the accuracy and completeness of that data. You understand that you will access and manage your Dwolla account through CoFi’s application, and Dwolla account notifications will be sent by CoFi, not Dwolla. CoFi will provide customer support for your Dwolla account activity, and can be reached at www.cofisoftware.com, support@cofisoftware.com, and/or (435) 557-0412 ext. 2.
Miscellaneous.
8.1 Relationship of Parties. CoFi and Registrant are independent contractors and this Service Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between CoFi and Registrant. Registrant shall not, and will have no power to, bind CoFi or incur obligations on CoFi’s behalf.
8.2 Assignment. Registrant may not assign or transfer this Service Agreement without the prior written consent of CoFi, and any attempted assignment without such consent will be void. CoFi may assign or transfer this Service Agreement at any time. Subject to the foregoing restriction on Registrant, this Service Agreement is binding on the parties hereto and their respective successors and permitted assigns.
8.3 Waiver and Severability. CoFi’s failure to enforce any term or condition of this Service Agreement shall not be deemed a waiver of the right to later enforce such term or condition or any other term or condition of this Service Agreement. If any provision of this Service Agreement is found to be void or unenforceable, that provision will be enforced to the maximum extent possible, and the remaining provisions of this Service Agreement will remain in full force and effect.
8.4 Excused Performance. CoFi shall not be liable for any delay or failure to perform due to causes beyond its reasonable control.
8.5 Entire Agreement. This Service Agreement contains the entire agreement and understanding between CoFi and Registrant with respect to the subject matter thereof and supersedes all prior agreements, negotiations, representations, and proposals, written and oral, relating to such subject matter.
8.6 Amendments. This Service Agreement shall not be deemed or construed to be modified, amended, or waived, in whole or in part, except as set forth above or by a separate written agreement duly executed by the parties to this Service Agreement.
8.7 Governing Law and Venue; Arbitration. This Service Agreement shall be governed by and construed in accordance with the laws of the State of Utah USA, applicable to agreements made and to be entirely performed within the State of Utah USA, without resort to its conflict of law provisions. Any claim, dispute, or controversy related to or arising out of this Service Agreement or the Service shall be resolved exclusively by binding arbitration pursuant to the Commercial Arbitration Rules (“AAA Rules”) of the American Arbitration Association (“AAA”), but the parties do not necessarily intend for the AAA to administer the arbitration. The arbitration will take place in Salt Lake City, Utah and the internal laws of the State of Utah (other than conflicts of laws rules) and of the United States of America shall apply. Part or all of the arbitration may be conducted by telephone or based on written submissions, and will not require the personal appearance of the parties or any witnesses unless otherwise agreed by the parties. The allocation of costs and fees for such arbitration shall be determined in accordance with the AAA Rules. The arbitration shall be conducted by a single, neutral arbitrator engaged in the practice of law who is mutually agreed upon by the parties or failing such agreement within 14 days from the delivery of the original arbitration demand, each party shall select one arbitrator and the two selected arbitrators shall mutually agree upon the selection of a third arbitrator within 30 days from the delivery of the original arbitration demand. The arbitrator’s decision and award shall be final and binding and may be entered in any court with jurisdiction. Nothing in this Service Agreement will prevent a party from seeking injunctive or other equitable relief with respect to the infringement, misappropriation or other violation of such party’s intellectual property or other proprietary rights in any court of competent jurisdiction. In the event the foregoing agreement to arbitrate is deemed unlawful, void, or for any reason unenforceable with respect to any claim, dispute or controversy, then you agree that any such claim, dispute or controversy shall be filed and adjudicated only in the state and federal courts located in Salt Lake County, Utah and Registrant hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of this Service Agreement.
8.8 Interpretation. This Service Agreement will not be construed in favor of or against any party by reason of the extent to which any party participated in the preparation of this Service Agreement.
