Womply Amended Developer Order Form — Benworth Capital Partners LLC (April 14, 2021) — Exhibit 3 to OTO Analytics Complaint — Oto Analytics v. Benworth

Record facts

Exhibit 3 to OTO Analytics Complaint, Case No. 3:23-cv-01034-GMM · No. 3:23-cv-01034-GMM · Doc. 1-3 · 2021-04-14 · Docket on CourtListener

Full text

Case 3:23-cv-01034-GMM Document 1-3 Filed 01/24/23 Page 1 of 4

EXHIBIT 3
Case 3:23-cv-01034-GMM Document 1-3 Fied 01/24/23 Page 2 of 4

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Womply Developer Order Form

Client: Benworth Capital Partners, LLC

Effective Date: April 14, 2021

API Access End Date: | The earlier of twelve (12) months from Effective Date or when this Order or
the Agreement is terminated.

API Package

Payments

Tax Documents

Business Fraud Analytics

Bank Data

Identity

Account Verification

PPP Portfolio Management System

$250 per funded PPP loan sourced
through the Services (the “API Fee’)
plus the Technology Fee set forth in
Section 2 below.

This Amended and Restated Womply Developer Order Form agreement (“Agreement”) is entered into as
of the Effective Date and is between Oto Analytics, Inc. d/b/a Womply (“Womply”) and the Client listed
above. This Agreement includes and incorporates (i) the above Order Form, (ii) any Order Forms
subsequently entered into by the parties, (iii) the Womply Master Developer Agreement located at
http://www.womply.com/mda (the “MDA”), and (iv) the Additional Terms and Conditions set forth below.
Unless set forth otherwise, undefined capitalized terms are defined in the MDA or Amended and Restated
PPP Loan Referral Agreement between the Parties (the “Referral Agreement”). To the extent there is a
conflict between the Order Form Terms and the MDA or the Referral Agreement, the Order Form Terms
shall take precedence. This Agreement supersedes all prior communications and writings and constitutes
the entire agreement between the parties with respect to the Services, including without limitation the
Womply Developer Order Form agreement between the parties dated February 25th, 2021.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.

Womply:
By: Cy
Name: Cory Capoccia

Title: President

Name ew nautca Wo ov vD
Title: Crest Sen. \
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Client:

Case 3:23-cv-01034-GMM Document 1-3 Fied 01/24/23 Page 3 of 4

Additional Terms and Conditions
1. Disclaimers.

1.1. WOMPLY MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT, AND HEREBY
DISCLAIMS ALL RESPONSIBILITY FOR, THE ACCURACY, LAWFULNESS, OR COMPLETENESS OF
ANY INFORMATION ACCOMPANYING A REFERRAL (I.E., OUTPUT MADE AVAILABLE VIA THE
SERVICES). FOR THE AVOIDANCE OF DOUBT, WOMPLY DOES NOT ENDORSE ANY REFERRAL.
CLIENT ASSUMES SOLE RESPONSIBILITY REGARDING WHETHER OR NOT ANY REFERRAL
SHOULD BE SENT TO THE SBA FOR REVIEW.

1.2, The Services includes integrations with and/or links to certain third-party service providers
(including, without limitation, Plaid, Docusign, LexisNexis, Teslar, Inscribe, Ocrolus, AWS Mechanical Turk,
Mindee, Persona, Twilio, Sendgrid, etc.) (“Third-Party Providers”). WOMPLY HAS NO CONTROL OVER
AND ASSUMES NO RESPONSIBILITY FOR THE ACTIONS, ERRORS, OR OMISSIONS OF THE THIRD
PARTY PROVIDERS.

1.3. Womply is not a lender or lender service provider as defined by the SBA.

2. Technology Fee.

2.1, Client shall pay Womply the technology fees described below for each loan originated by Client
under the PPP resulting from a Referral (which for purposes of clarity, the max percentage applies to
Referred Loans funded prior to achieving the Referred Loan Volume) (“Referred Loan’):

2.1.1. The percentage owed for any Referred Loan will be determined based on the Referred
Loan Tier for that specific loan (“Technology Fees’).

2.1.2. In the case where the Lender Processing Fee for a given Referred Loan is two-hundred
and fifty dollars ($250) or less:

2.1.2.1. There will be no Technology Fee due from the Client to Womply. (For avoidance
of doubt, the API Fee set forth above will be owed regardless of the Lender Processing Fee.)

2.1.2.2. Such Referred Loans will be disregarded when calculating the Referred Loan
Tiers.

2.1.3. Referred Loans will be assigned to a Referred Loan Tier based on the date each loan is
approved by the SBA.

Tier Referred Loan Tiers Technology Fee Percentage

50% of the Lender Processing Fee for each Referred

1 1 through 30,000 Referred Loans Loan

60% of the Lender Processing Fee for each Referred

2 30,001 through 45,000 Referred Loans Loan

70% of the Lender Processing Fee for each Referred

3 45,001 through 60,000 Referred Loans Loan

80% of the Lender Processing Fee for each Referred

4 60,001 through 300,000 Referred Loans Loan

70% of the Lender Processing Fee for each Referred

5 Greater than 300,000 Referred Loans Loan

2.2. The Technology Fee payable to Womply for any Referred Loan shall be reduced by any Referral
Fee paid to Womply for the same Referred Loan. By way of example, if a Referred Loan from Tier 1 above .
has a principal amount of $50,000 and if Client receives a Lender Processing Fee of $2,500, then the \
Technology Fees payable to Womply shall be calculated as follows:

|

v

Case 3:23-cv-01034-G

_ Document 1-3 hy 01/24/23 Page 4 of 4

Tier 1 Technology Fee = (Tier 1 Technology Fee Percentage X Lender Processing Fee) minus
Referral Fee (as determined by the Referral Agreement):

$750 = (50% X $2,500) - $500

2.3, Within fifteen (15) days of Client receiving the Lender Processing Fee from the SBA, Client will pay
Womply all associated Technology Fees for each applicable Referred Loan. Womply shall return any
Technology Fees paid in the event that the SBA or other governmental agency requires Client to return the
Lender Processing Fee. Additionally, Womply shall return any portion of the Technology Fees paid that the
SBA or other governmental agency determines were not in compliance with applicable SBA and/or PPP
Loan Program Requirements. Such return of fees will occur within fifteen (15) days of Womply receiving
notice of such return of fees from Client.

2.4, Each party shall be responsible for and pay any and all applicable taxes, customs, withholding
taxes, duties, assessments and other governmental impositions resulting from its own activities under this
Agreement.

2.5, Subject to having sufficient Referred Loans with approved SBA Loan numbers (“SBA Approved
Loans”), Client shall fund no less than five hundred million dollars ($500,000,000) of SBA Approved Loans
per calendar week (“Minimum Weekly Funding Commitment”), and if Client fails to achieve the Minimum
Weekly Funding Commitment in any such week, Client will pay Womply an under-funding fee of ten percent
(10%) times the funding amount below the Minimum Weekly Funding Commitment for each applicable
week Client falls below the Minimum Weekly Funding Commitment (the “Under-Funding Fee”). By way of
example, if Client funds $475,000,000 in a given calendar week, then the Under-Funding Fee will equal
$2,500,000 (calculated as the $25,000,000 below the Minimum Weekly Funding Commitment times 10%).

Notwithstanding, client shall not liable for the Under-Funding fee solely to the extent its failure to achieve
the Minimum Weekly Funding Fee results from acts beyond its reasonable control including, without
limitation, acts of God, acts of war or terrorism, shortage or interruption of money supply from Lender’s
bank or the Federal Reserve Board of San Francisco, breakdowns or malfunctions, interruptions or
malfunction of computer facilities, or loss of data due to power failures or mechanical difficulties with
information storage or retrieval systems, labor difficulties or civil unrest. In the event of such an
occurrence, Client shall make a good faith effort to fulfil its Minimum Weekly Funding Commitment.”

3. Representations and Warranties. Each party represents, warrants, and covenants that: (a) it has
the full right, power and authority to execute this Agreement and perform its obligations hereunder; (b) its
performance hereunder will not conflict with any obligation it has to any third party; and (c) it has and will
maintain such comprehensive general liability and other insurance as is necessary to cover any claims and
losses associated with its obligations under this Agreement.

4, Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws
of the State of California, without regard to the provisions of the conflict of laws thereof. Notwithstanding
the foregoing or any provision of this Agreement to the contrary, this Agreement is subject to all Applicable
Laws, including SBA Regulations. In the event of any conflict between the governing law and the SBA
Regulations, the SBA Regulations shall control. Without limiting a party’s right to seek injunctive or other
equitable relief in court, any dispute between the parties related to the subject matter of this Agreement will
be resolved by binding arbitration in the English language in San Francisco County, California under the
rules of JAMS; the decision of the arbitrator will be enforceable in any court. The prevailing party in any
action to enforce this Agreement shall be entitled to costs and attorneys’ fees.

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