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1.PPP Loan Referral Ag reement
This PPP Loan Referral Agreement (the "Agreement") is made and entered into on May 1Q1h, 2021 (the "Effective
Date") by and between Oto Analytics, Inc. d/b/a Womply ("Womply") and BA Fin Orion, LLC ("Blueacorn"). In
consideration of the mutual promises and covenants contained herein, and for other good and valuable
consideration, Womply and Blueacorn hereby agree as follows:
WHEREAS, Blueacorn desires to engage in the marketing, initial underwriting, and submission to third-party lenders
of loans funded and created under the U.S. Small Business Administration ("SBA") Paycheck Protection Program
(the "PPP");
WHEREAS , Blueacorn and Womply desire to establish an independent contractor relationship whereby Womply
provides referrals to Blueacorn in connection with potential loan applicants seeking loans under the PPP from third-
party lenders; and
WHEREAS, Blueacorn and Womply specifically acknowledge that any third-party lender retains ultimate
responsibility for all loan decisions, including approvals, underwriting, closings, disbursements, due diligence, and
loan servicing actions (including those relating to loan deferments, loan forgiveness , and loan guarantees), as
required by the SBA, and Womply will exercise all best efforts to comply with all regulatory requirements of the
PPP.
NOW THEREFORE , in consideration of the mutual covenants, promises, and undertakings contained herein , and
for such other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto do hereby agree as follows:
1. Referrals.
1.1 . Womply may, from time to time, refer to Blueacorn such PPP loan applicants as Womply shall, in its sole and
absolute discretion, deem appropriate (each such applicant a "Referral"). Womply acknowledges that sometimes
the same borrower is submitted to Blueacorn by multiple referring parties. Womply will be the party paid if they were
the first to submit a complete package to Blueacorn for the requested loan .
1.2. WOMPLY SHALL EXERCISE COMMERCIALLY REASONABLE EFFORTS TO (I) COMPLY WITH THE
APPLICATION REVIEW PROCESS SET FORTH ON EXHIBIT A, AND (II) WOMPLY REPRESENTS AND
WARRANTS, TO ITS KNOWLEDGE AS OF THE EFFECTIVE DATE, THAT THE INFORMATION
ACCOMPANYING ANY REFERRAL COMPLIES WITH THE REGULATORY GUIDANCE FROM THE SBA.
NOTWITHSTANDING THE FOREGOING WOMPLY MAKES NO REPRESENTATIONS OR WARRANTIES
ABOUT, AND HEREBY DISCLAIMS ALL RESPONSIBILITY FOR THE ACCURACY OR COMPLETENESS OF
ANY AND ALL APPLICATION INFORMATION PROVIDED BY AN APPLICANT THAT IS DEEMD A REFERRAL
HEREUNDER. WOMPLY ACKNOWLEDGES AND AGREES THAT BLUEACORN WILL NOT CONDUCT AN
INDEPENDENT REVIEW OF THE REFERRED LOANS (AS DEFINED BELOW) PRIOR TO SUBMISSION TO A
THIRD PARTY LENDER.
1.3. Neither Blueacorn nor Womply is a lender or lender service provider as defined by the SBA.
2. Compensation .
2.1 . The Referral Fees described in this Section 2 will be paid out of the fees actually received by Blueacorn in
respect of Referred Loans (defined below) (the "Loan Fees").
2.2. In consideration of Womply providing Blueacorn with Referrals, Blueacorn shall pay to Womply the referral
fee set forth in the table below, which is expressed as a percentage of the outstanding balance of the Referred Loan
at the time of loan disbursement (such fees , the "Referral Fees") , for each loan originated by Blueacorn under the
PPP resulting from a Referral (such loan a "Referred Loan"). Blueacorn retains the right, in its sole and absolute
discretion, to refuse to submit any Referred Loan to a third party lender for any reason.
Referral Fee Amount 1.00% for each Referred Loan
2.3. Within five (5) days after Blueacorn receives its fees from the lender that submitted the Referred Loan to the
the SBA, Blueacorn will pay Womply all associated Referral Fees for such applicable Referred Loan. Womply shall
return any Referral Fees paid in the event that the SBA or other governmental agency requires Blueacorn to return
the Blueacorn Fee. Additionally, Womply shall return any portion of Referral Fees paid that the SBA or other
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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 Blueacorn.
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. Referral
Fee payments not made in accordance with the foregoing schedule are subject to a finance charge of 1.5% per
month or the maximum permitted by law, whichever is lower, plus all costs of collection . Except as expressly set
forth above, all Referral Fees paid are non-refundable, non-cancellable, and not subject to set-off. All payments
described in this Section 2 must be made by wire transfer.
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
any of its obligations under this Agreement.
4. Term: Termination .
4:1. The term of this Agreement shall be one (1) year from the Effective Date (the "Term"), and thereafter upon
the mutual written consent of both parties shall renew for successive one (1) year terms unless earlier terminated,
if Notice of Termination is timely provided, in accordance with this Section 4.
4 .2. Notwithstanding Section 4.1 above, either party may terminate this Agreement at its option by providing no
less than thirty (30) days' written notice ("Notice of Termination") to the other party. Either party may also terminate
this Agreement immediately upon delivery of a Notice of Termination if the other party is in material breach of any
warranty, representation, covenant or obligation under this Agreement or the Womply Developer Order Form and
is not able to cure such breach within seven (7) calendar days of receiving the Notice of Termination.
4.3. Upon Blueacorn's receipt of a Notice of Termination , Blueacorn may request from Womply, and Womply shall
reasonably provide to Blueacorn, a plan for transmitting to Blueacorn electronic copies of loan files in its possession
that relate to the Referred Loans, to the extent not otherwise in the possession of Blueacorn . Womply will not
unreasonably withhold its cooperation in such selection and transmission. Both parties shall agree upon a data
format and method of transmission . Womply shall reasonably provide such requested information to Blueacorn no
later than thirty (30) days following the termination of this Agreement.
4.4. The following Sections shall survive termination or expiration of this Agreement: 1.2, 2 (to the extent Referral
Fees remain outstanding), 3, 4 .3, 4.4, 4.5, and 5 through 17.
4 .5. Womply shall be entitled to all Referral Fees accrued in connection with Referred Loans pursuant to the terms
and provisions of Section 2 above, including services provided after termination of this Agreement pursuant to
Blueacorn's request.
5. Confidential Information .
5.1. During the course of performing this Agreement, each party may have access to confidential or proprietary
information of the other party, as well as confidential customer information that accompanies each Referral
("Confidential Information"). The protection of confidential customer information is required at all times and
Blueacorn and Womply shall at all times comply with relevant state and federal regulations regarding disclosure of
such Confidential Information, including if applicable the Gramm-Leach-Bliley Act (15 U.S.C. §§ 6801-6809) and
the Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.).
5.2 A party's Confidential Information shall not include any information which (i) becomes part of the public
domain through no act or omission of the other party; (ii) is lawfully acquired by the other party on a non-confidential
basis from a third party without any breach of a confidentiality obligation; (iii) is disclosed by such party to a third
party without any obligation of confidentiality; or (iv) was independently developed by the other party without
reference to such party's Confidential Information. Each party agrees to use the other party's Confidential
Information only as necessary to perform its obligations under this Agreement or to address any issues related to
fraud or investigations into fraud related to the Referred Loans and to maintain the confidentiality of the other party's
Confidential Information using at least the same degree of care in safeguarding the other's Confidential Information
as it uses in safeguarding its own Confidential Information, subject to a minimum standard of reasonable diligence
and protection to prevent any unauthorized copying , use, distribution , installation or transfer of possession of such
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information . If required by law, the receiving party may disclose Confidential Information of the disclosing party,
provided the receiving party gives adequate prior notice of such disclosure to the disclosing party to permit the
disclosing party to intervene and to request protective orders or other confidential treatment therefor.
Notwithstanding the foregoing, the confidentiality protections set forth in this Section 5 does not apply to the use of
the Confidential Information by any third-party lenders to which the Referrred Loans are sent for processing .
6. Indemnification .
6.1. Subject to Section 6.2, each party ("Indemnifying Party") shall indemnify, defend , and hold the other party,
its officers, directors, employees, representatives and agents ("Indemnified Parties"), harmless from and against
any Claim (defined below) to the extent resulting from (i) infringement, conflict with , or violation by the Indemnifying
Party of any intellectual property rights, contracts rights, or tort rights (including the right of publicity or right of
privacy) of any third party or (ii) a breach by the Indemnifying Part of Section 1.2(1) . Indemnifying Party agrees to
promptly pay and fully satisfy any and all Losses (defined below), including, without limitation, reasonable attorneys'
fees, actually incurred , or sustained , as a result of any Claims. "Claim" means any third-party claim, legal or
equitable, cause of action, suit, litigation, proceeding (including a regulatory or administrative proceeding),
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. "Losses" mean and include any loss, assessment, fine, penalty, deficiency, interest,
payment, expense, cost, debt, indebtedness, liability, lien , judgment, or damage, which is both (a) sustained ,
incurred, or accrued and (b) paid to an unaffiliated third party.
6.2. The Indemnified Party shall: (i) promptly notify the Indemnifying Party in writing of any Losses for which the
Indemnified Party seeks indemnification ; (ii) provide reasonable cooperation to the Indemnifying Party and its legal
representatives in the investigation of any matter which is the subject of indemnification; and (iii) permit the
Indemnifying Party to have full control over the defense and settlement of any matter subject to indemnification .
The Indemnified Party shall have the right to participate in the defense at its own expense.
7. Limitation of Liability . EXCEPT WITH RESPECT TO A BREACH OF SECTION 5 AND EACH PARTY'S
INDEMNIFICATION OBLIGATIONS HEREUNDER, (I) NEITHER PARTY WILL BE LIABLE OR OBLIGATED WITH
RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, TORT, STRICT
LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES WHATSOEVER, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE ,
RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS , REVENUE, DATA OR USE,
AND (II) NEITHER PARTY'S LIABILITY SHALL EXCEED THE AMOUNTS PAID AND PAYABLE (IN THE CASE
OF BLUEACORN'S BREACH ONLY) TO WOMPLY DURING THE TWELVE (12) MONTHS PRIOR TO THE
EVENT GIVING RISE TO SUCH LIABILITY.
8. Recitals . The recitals set forth above are hereby incorporated into this Agreement.
9. Choice of Law. 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 (defined below), the
SBA Regulations shall control. "SBA Regulations" means all PPP requirements and SBA guidelines under the
CARES Act, the Economic Aid Act, the PPP Flexibility Act, any rules or guidance that have been issued by SBA
implementing the PPP, including SBA regulations published at 86 Fed. Reg . 3692 (Jan. 14, 2021) and 85 Fed. Reg .
20811 (Apr. 15, 2020) and any subsequent Interim Final Rules and other guidance as may have been or may be
subsequently issued by SBA or the U.S. Department of the Treasury with respect to the origination, servicing and
forgiveness of loans under the PPP and Frequently Asked Questions, or any other applicable SBA loan
requirements, including those codified in 13 CFR part 120, in each case as amended, supplemented or modified
from time to time. In the event that this Agreement conflicts with any other contract or agreement between the
parties, now or in the future including the Womply Developer Order Form, this Agreement shall control with respect
to any Referred Loan unless the other contract or agreement specifically states that it supersedes this Agreement.
10. Arbitration . 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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11 . Independent Contractors. This Agreement is not intended to establish any partnership, joint venture,
employment, or other relationship between the parties except that of independent contractors. Neither party has, or
may represent that it has, any authority under or as a result of this Agreement to act on behalf of the other party in
any way.
12. Notices. Any notice or other communication required or permitted in this Agreement shall be in writing and
shall be deemed to have been duly given on the day of service if served personally or upon receipt if sent by
facsimile transmission with confirmation or if mailed by First Class mail, registered or certified, postage prepaid, and
addressed to the respective parties at the addresses set forth above, or at such other addresses as may be specified
by either party pursuant to the terms and provisions of this section.
13. Assignment. Neither party may assign, without the prior written consent of the other, its rights, duties or
obligations under this Agreement to any person or entity, in whole or in part; provided, however, that this Agreement
may be assigned by a party without the consent of the other to any successor corporation or entity whether by
purchase of all or substantially all of the assets relating to this Agreement, a sale of a controlling interest of the
capital stock of the assigning party, by merger, consolidation or otherwise. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
14. Force Majeure. Neither party will be liable for failure or delay in performance of any of its obligations under
this Agreement arising out of any event or circumstance beyond that party's reasonable control; provided, however,
that such party promptly notifies the other party of the nature and duration of the force majeure event and resumes
performance as soon as possible.
15. Severability. Any provision of this Agreement that is determined to be unenforceable or unlawful shall not
affect the remainder of the Agreement and shall be severable therefrom , and the unenforceable or unlawful
provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise
remain in full force and effect and enforceable.
16. Entire Agreement. Excluding separate agreements Blueacorn may have for the purchase of Womply's
products and services, this Agreement constitutes the entire agreement between the parties and supersedes any
and all prior communications or agreements between them, whether written or oral, with respect to the subject
matter hereof. This Agreement may not be amended, modified or any provision hereof waived, except in a writing
signed by the parties hereto. No waiver by either party, whether express or implied, of any provision of this
Agreement, or of any breach thereof, shall constitute a continuing waiver of such provision or a breach or waiver of
any other provision of this Agreement.
17. Press Releases. Any news release, public announcement, advertisement, or other publicity released by
either party concerning this Agreement shall be subject to the prior approval of the other party, which approval shall
not be unreasonably withheld or delayed. The parties will cooperate with each other to issue a joint press release
announcing their relationship established by this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Amendment Effective Date.
Womply: Blueacorn
By:
Name:
µ\
Toby Scammell
By:
Name:
w
Barry Calhoun
Title: Founder Title: CEO
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EXHIBIT A
APPLICATION REVIEW PROCESS
Attached Hereto
PPP Fast Lane Data Collection Overview
Updated May 11, 2021
Summary
The following conditions must be met individually prior to Womply sending an application to BlueAcorn:
• Email verified
• Phone verified
• Name, address, EIN, other basic info passes SBA form validation
• Business Activity check (as defined by Blue Acorn) passed
• Tax Document check passed
• KYC check passed
• Bank is verified and fundable based on global limits per bank account and RDFI rules
• Fraud is not detected
• Application info (email, phone, tax ID, bank account) has not been associated with any other
application that was declined for fraud
• Other less common criteria pass including First Draw PPP loan number
validation/disbursement, as appropriate.
KYC
Womply uses Persona as the primary KYC vendor for our lenders. In some cases we also use
Docusign ID Check (LexisNexis KBA).
Persona analyzes the following for each applicant:
• Database lookup (using DOB, SSN, Name)
• US Sanctions & watchlist check (including OFAC)
• Government ID authentication
• Government ID barcode scan (depends on other factors and ID type)
• Video Selfie
Persona automatically declines users with:
• foreign IPs and proxiesNPNs/Tor
• IDs that are expired (beyond the grace period set by states)
• >3 devices used across any inquiry
• Any selfie that fails their automated liveness check
Womply only passes applications through to lenders if the applicant has been "Approved" by Persona.
Their approval requires passing, at minimum, the government database check, the ID check, and the
selfie check.
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Furthermore, Womply manually reviews selfies & IDs prior to funding. This manual review may or may
not be conducted before the application is sent to BlueAcorn for their review. During manual review,
Womply's team visually reviews each ID & selfie and declines any applications that slipped through
automated filtering. For example, animations, deep fakes, and other info may be "Approved" by
Persona's automated review but declined by Womply's KYC team.
Additionally, Womply sometimes requires Docusign ID Check when users sign promissory notes (e.g. if
manual review of Persona KYC data hasn't been completed by that time).
We summarize KYC data on the KYC Details pdf file that is provided with each application .
Business Activity
For BlueAcorn, there are two ways that applicants can provide evidence that they were in business on
or around Feb 15, 2020:
1. Instant verification via Plaid looking for any transaction activity in February 2020. As of May
10th, we require that an applicant has at least 5 transactions in the month of February 2020.
2. Manual upload of bank statements from February 2020. Bank documents are analyzed for fraud
and OCR'd by one or more of our third party providers.
Applications are only sent to BlueAcorn if they meet one or more of the criteria set forth above for
business activity in February 2020.
We summarize bank data on the Bank Data pdf file that is provided with each application.
Tax Documents
Here's an overview of our tax document analysis:
Inst ant classification
Since March 14, we've been conducting real-time evaluations of 100% of the tax documents uploaded
during our PPP Fast Lane application flow. This provides a first pass to determine if the forms look
legitimate. We use a machine-learning platform to detect the type of document uploaded (e.g. Schedule
type, year) and to provide the Borrower with feedback about whether they provided the correct forms .
This significantly reduces error rates upfront and acts as our first fraud check. Applications that don't pass
this instant classification are unlikely to pass through to BlueAcorn without correction from the Borrower.
Second tax document review
100% of tax and bank documents uploaded in the application process go out for third party classification ,
verification, and data extraction . The extracted data goes through mathematical checks to determine if the
values and calculations on the forms would be permissible for submission under IRS rules. In all cases, a
human reviews the documents and confirms the OCR extraction is correct. We match the extracted tax
IDs to the application to ensure the form matches the applicant. We have seen an extremely low error
rate on this process (under 1%), which is significantly below the error rate we've seen from human-only
reviews. In cases where math errors or other problems are significant, the document is flagged as
suspicious.
Third tax document review
All documents flagged as suspicious by our second tax review undergo a third automated fraud review.
In addition , of the documents not flagged as suspicious by our third-party review, we sample about 1 in 3
documents for a third tax document review. This review involves a variety of checks to detect if the
document has been photoshopped or shows other evidence of tampering.
Final tax document review
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In cases where our secondary or tertiary review suggests the document is fraudulent, we perform another
human review. Ultimately, more than half of documents flagged for this final review are deemed to be not
fraudulent, despite the multiple checks and flags. This suggests to us that our filtering continues to be
quite strict. But it also highlights that, without a way to definitively confirm the data on the tax documents
(e.g., with an IRS API or Transcript), we are unable to distinguish between a well-executed fake
document and a real one. Visually, they will look identical. Nonetheless, to avoid program paralysis
based on the mere possibility of fraud, our process considers documents that pass through all of these
fraud checks acceptable.
Applications are only sent to BlueAcorn if they pass the review outlined above and they are the correct
form and year, with a tax ID that matches the application.
We summarize relevant tax documents on the Tax pdf provided with each application.
Bank Verification
Womply verifies the association of the applicant to the bank account in one or more of the following
ways:
1 Instant verification: We compare Plaid Auth data to the account number that's manually entered by
the user. We also use the Plaid Identity feature (where available) for comparison purposes to
application data.
2 Manual verification: We compare the uploaded documents (bank statement, direct deposit form,
and/or check) to the account number that's manually entered by the user.
• We exclude certain banks that have a high rate of KYC related fraud .
• We don't allow bank changes after an application is submitted .
• Once a reject is received on a bank account we prohibit that account from being used (by any
applicant across any lender).
• We limit the total number of deposits that can be made to a single bank account by any lenders
(4) and the total number of tax IDs that can be associated with a single bank account (2).
• We restrict deposits to new bank accounts as determined by logic that we've agreed upon with
various RDFls.
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Y HELLOSIGN Audit Trail
TITLE Worn ply - Blueacorn Referral Agreement & Womply Developer...
FILE NAME Womply Developer Agreement - Final.docx and 1 other
DOCUMENT ID e 103~c00bf0fa2d8e2e37ff2ef66181 b9495251 f
AUDIT TRAIL DATE FORMAT MM /DD/YYYY
STATUS • Completed
Document History
05/19/2021 Sent for signature to Barry Calhoun (barry@blueacorn.co) and
SENT 08:38:42 UTC-8 Toby Scammell (toby@womply.com) from pamela@womply.com
IP: 136.158.28.2
@ 05/19/2021 Viewed by Toby Scammell (toby@womply.com)
VIEWED 08:43:00 UTC-8 IP: 98.42.53.44
05/19/2021 Signed by Toby Scammell (toby@womply.com)
SIGNED 08:44:10 UTC-8 IP: 98.42.53.44
@ 05/19/2021 Viewed by Barry Calhoun (barry@blueacorn.co)
VIEWED 08:51 :04 UTC-8 IP: 107.126.40.17
05/19/2021 Signed by Barry Calhoun (barry@blueacorn.co)
SIGNED 08:56:35 UTC-8 IP: 107.126.40.17
0 05/19/2021 The document has been completed.
COMPLETED 08:56:35 UTC-8
Powered by Y HELLOSIGM
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Womply Developer Order Form
Client: Blue Acorn
Effective Date: May 101h, 2021
API Access End Date: The earlier of twelve (12) months from Effective Date or when this Order or the
Agreement is terminated (the 'Term").
Service Fees
Tax Documents The Technology Fee set forth in Section
3 below.
Bank Data
Identity
Account Verification
PPP Portfolio Management System
This 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, and (iii) the Additional Terms and Conditions set forth below. Unless set forth otherwise, undefined
capitalized terms are defined in the PPP Loan Referral Agreement between the Parties (the "Referral
Agreement"). To the extent there is a conflict between the Order Form Terms and the Referral Agreement,
the Order Form Terms shall take precedence.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
Womply: Client:
By:
Name:
µ\
Toby Scammell
By:
Name:
w
Barry Calhoun
Title: Founder Title: CEO
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Additional Terms and Conditions
1. Service.
1.1. Access. Subject to the Client's compliance with the terms and conditions of this Agreement,
Womply hereby agrees that during the Term, the Client has the non-exclusive right to: (i) use the Service
(detailed on the Order Form) with an application owned and operated by the Client (the "Client
Application") provided to end users (consumers or businesses) (the "End Users"), and (iii) use the End
User information and data provided via the Service (the "Output") solely in the Client Application for the
purpose of processing Referrals.
1.2. Restrictions. Unless Womply specifically agrees in writing, Client will not, and will use commercially
reasonable efforts to make sure third parties do not: (i) attempt to reverse engineer (except as permitted by
law), decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying
structure, ideas, or algorithms of the Service; (ii) modify, translate, or create derivative works based on the
Service; (iii) make the Service or Output available to, or use the Service or Output for the benefit of anyone
other than Client or End Users; (iv) sell , resell, license, sublicense, distribute, rent or lease any Service or
Output to any third party, or include any Service or Output in a service bureau , time-sharing , or equivalent
offering or (v) attempt to create a substitute or similar service through use of, or access to, the Services or
Output. Client will use the Service and Output only in compliance with (i) the rights granted hereunder and
(ii) any agreements between Client and End Users. All use of the Service and Output must be only as
provided herein and only in accordance with the rights of business partners in Womply's privacy policy and
applicable user documentation (and all other Womply-provided written instructions).
1.3. Ownership. Except for the rights expressly granted under this Section 1, Womply reserves and
retains all right, title, and interest in and to the Service and any related Output, software, products, works,
and other intellectual property created, used, or provided by Womply for the purposes of this Agreement.
To the extent the Client provides Womply with any feedback relating to the Service (including, without
limitation , feedback related to usability, performance, interactivity, bug reports and test results)
("Feedback"), Womply will own all right, title and interest in and to such Feedback (and the Client hereby
makes all assignments necessary to achieve such ownership).
1.4. Privacy and Authorization. The Client represents that its privacy policy shall, for the duration of this
Agreement, (a) be maintained in a manner that is compliant with applicable law and (b) obtain sufficient
consents and provide sufficient notice for Womply to use and process End User data in accordance with
Womply's Privacy Policy.
2. Disclaimers.
2.1. Section 1.2 of the Referral Agreement is hereby incorporated by reference.
2.2. 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.
2.3. Section 1.3 of the Referral Agreement is hereby incorporated by reference.
2.4. OTHER THAN AS SET FORTH IN SECTION 1.2 OF THE REFERRAL AGREEMENT, THE
SERVICE AND ANYTHING ELSE PROVIDED BY WOMPL Y HEREUNDER IS PROVIDED "AS IS." TO
THE FULLEST EXTENT PERMITTED BY LAW, NEITHER WOMPLY NOR ITS AFFILIATES, SUPPLIERS ,
LICENSORS , OR DISTRIBUTORS MAKE ANY WARRANTY OF ANY KIND, EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ANY
WARRANTY THAT THE SERVICE IS FREE FROM DEFECTS. EXCEPT AS EXPRESSLY SET FORTH
HEREIN, WOMPLY DOES NOT MAKE ANY OTHER WARRANTY AS TO THE OUTPUT THAT MAY BE
OBTAINED FROM USE OF THE SERVICE.
3. Technology Fee.
3.1. The Client agrees to the following :
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3.1 .1.The Client or any of the Client's third party lenders will not process any Second Draw Referred
Loans for any First Draw Referred Loans from Womply without the express consent and
direction from Womply.
3.2. If Womply collects forgiveness information and submits such info to the SBA on behalf of the Client
or the Client's lender, then the Client shall pay Womply $100 per loan. Womply will only participate in this
activity if both it and the Client agree.
3.3. Client shall pay Womply the technology fees described below for (i) each loan originated by Client
under the PPP resulting from a Referral plus, if applicable, (ii) each Second Draw loan associated with a
First Draw Referral (the "Technology Fees").
Referred Loan Volume Referral Fee Percentage
Womply shall receive the first $250 from any
1 through unlimited Referred Loans Lender Processing Fee, plus 1/3 of the remaining
Lender Processing Fee after the $250 is subtracted
3.4. The Technology Fee payable to Womply for any Referred Loan shall be reduced by any Referral
Fee paid to Womply in respect of such Referred Loan . By way of example, if the Referred Loan 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 as follows :
Lender Fee: $2,500
Referral Fee: $500 (i.e., 1% of the value of the Referred Loan , as defined the by the PPP Loan
Referral Agreement)
Technology Fee: $499.99 (i.e., ·$250 plus 1/3 of the $2,250 Lender Processing Fee less $500
Referral Fee (paid separately))
3.5. Within five (5) days after Blueacor'n receives its fees from the the lender that submitted the Referred
Loan to 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. All payments herein shall be made by
wire transfer.
3.6. 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.
3.7. Unpaid invoices are subject to a finance charge of 1.5% per month or the maximum permitted by
law, whichever is lower, plus all expenses of collection. All payments made are non-refundable, non-
cancellable, and not subject to set-off.
4. 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.
5. Term ; Termination.
5.1. The term of this Agreement shall be for the Term detailed in the Order Form.
5.2. Notwithstanding Section 5.1 above, either party may terminate this Agreement at its option by
providing no less than thirty (30) days' written notice ("Notice of Termination") to the other party. Either
party may also terminate this Agreement immediately upon delivery of a Notice of Termination if the other
party is in material breach of any warranty, representation , covenant or obligation under this Agreement or
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the Referral Agreement and is not able to cure such breach within seven (7) calendar days of receiving the
Notice of Termination .
5.3. Upon Client's receipt of a Notice of Termination, Client may request from Womply, and Womply
shall reasonably provide to Client, a plan for transmitting to Client electronic copies of loan files in its
possession that relate to the Referred Loans, to the extent not otherwise in the possession of Client.
Womply will not unreasonably withhold its cooperation in such selection and transmission. Both parties
shall agree upon a data format and method of transmission. Womply shall reasonably provide such
requested information to Client no later than thirty (30) days following the termination of this Agreement.
5.4. The following Sections shall survive termination or expiration of this Agreement: 1.2, 1.3, 1.4, 2, 3
(to the extent Referral Fees remain outstanding), 4, 5.3, 5.4, 5.5, and 6 through 16.
5.5. Womply shall be entitled to all Technology Fees accrued in connection with Referred Loans
pursuant to the terms and provisions of Section 3 above, including services provided after termination of
this Agreement pursuant to Client's request.
6. Confidentiality.
6.1. During the course of performing this Agreement, each party may have access to confidential or
proprietary information of the other party, as well as confidential customer information that accompanies
each Referral ("Confidential Information"). The protection of confidential customer information is required
at all times and Client and Womply shall at all times comply with relevant state and federal regulations
regarding disclosure of such Confidential Information, including if applicable the Gramm-Leach-Bliley Act
(15 U.S.C. §§ 6801-6809) and the Fair Credit Reporting Act (15 U.S.C. § 1681 et seq .).
6.2. A party's Confidential Information shall not include any information which (i) becomes part of the
public domain through no act or omission of the other party; (ii) is lawfully acquired by the other party on a
non-confidential basis from a third party without any breach of a confidentiality obligation; (iii) is disclosed
by such party to a third party without any obligation of confidentiality; or (iv) was independently developed
by the other party without reference to such party's Confidential Information. Each party agrees to use the
other party's Confidential Information only as necessary to perform its obligations under this Agreement or
to address any issues related to fraud or investigations into fraud related to the Referred Loans and to
maintain the confidentiality of the other party's Confidential Information using at least the same degree of
care in safeguarding the other's Confidential Information as it uses in safeguarding its own Confidential
Information, subject to a minimum standard of reasonable diligence and protection to prevent any
unauthorized copying , use, distribution, installation or transfer of possession of such information . If required
by law, the receiving party may disclose Confidential Information of the disclosing party, provided the
receiving party gives adequate prior notice of such disclosure to the disclosing party to permit the disclosing
party to intervene and to request protective orders or other confidential treatment therefor. Notwithstanding
the foregoing , the confidentiality protections set forth in this Section 6 do not apply to the use of the
Confidential Information by any third-party lenders to which the Referred Loans are sent for processing.
7. Indemnification.
7.1. Subject to Section 7.3, each party ("Indemnifying Party") shall indemnify, defend , and hold the other
party, its officers, directors, employees, representatives and agents ("Indemnified Parties"), harmless from
and against any Claim (defined below) to the extent resulting from infringement, conflict with , or violation
by the Indemnifying Party of any intellectual property rights, contracts rights , or tort rights (including the
right of publicity or right of privacy) of any third party. Indemnifying Party agrees to promptly pay and fully
satisfy any and all Losses (defined below), including, without limitation, reasonable attorneys' fees, actually
incurred, or sustained, as a result of any Section 7.1 Claims. "Claim" means any third-party claim , legal or
equitable, cause of action, suit, litigation , proceeding (including a regulatory or administrative proceeding),
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. "Losses" mean and include any loss, assessment, fine, penalty,
deficiency, interest, payment, expense, cost, debt, indebtedness, liability, lien, judgment, or damage, wh ich
is both (a) sustained, incurred, or accrued and (b) paid to an unaffiliated third party.
7.2. Subject to Section 7.3, the Client will defend, indemnify and hold Womply harmless from and
against all Claims to the extent resulting from Client breach of Section 1.2. The Client agrees to promptly
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pay and fully satisfy any and all Losses, including, without limitation, reasonable attorneys' fees, actually
incurred, or sustained, as a result of any Section 7.2 Claims.
7.3. The Indemnified Party shall: (i) promptly notify the Indemnifying Party in writing of any Losses for
which the Indemnified Party seeks indemnification; (ii) provide reasonable cooperation to the Indemnifying
Party and its legal representatives in the investigation of any matter which is the subject of indemnification ;
and (iii) permit the Indemnifying Party to have full control over the defense and settlement of any matter
subject to indemnification. The Indemnified Party shall have the right to participate in the defense at its own
expense.
8. Limitation of Liability. EXCEPT WITH RESPECT TO SECTION 1.2(1) AND SECTION 5 OF THE
REFERRAL AGREEMENT OR A BREACH OF SECTION 6 OF THIS AGREEMENT AND EACH PARTY'S
INDEMNIFICATION OBLIGATIONS HEREUNDER, (I) NEITHER PARTY WILL BE LIABLE OR
OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY
CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR
NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHATSOEVER, FOR ANY SPECIAL,
INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES,
INCLUDING LOSS OF PROFITS, REVENUE, DATA OR USE, AND (II) NEITHER PARTY'S LIABILITY
SHALL EXCEED THE AMOUNTS PAID AND PAYABLE (IN THE CASE OF CLIENT'S BREACH ONLY)
TO WOMPLY DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH
LIABILITY.
9. Choice of Law. 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 (defined below), the SBA Regulations shall control. "SBA Regulations" means all PPP
requirements and SBA guidelines under the CARES Act, the Economic Aid Act, the PPP Flexibility Act, any
rules or guidance that have been issued by SBA implementing the PPP, including SBA regulations
published at 86 Fed . Reg . 3692 (Jan . 14, 2021) and 85 Fed. Reg. 20811 (Apr. 15, 2020) and any
subsequent Interim Final Rules and other guidance as may have been or may be subsequently issued by
SBA or the U.S. Department of the Treasury with respect to the origination , servicing and forgiveness of
loans under the PPP and Frequently Asked Questions, or any other applicable SBA loan requirements ,
including those codified in 13 CFR part 120, in each case as amended, supplemented or modified from
time to time. In the event that this Agreement conflicts with any other contract or agreement between the
parties, now or in the future including the Womply Developer Order Form, this Agreement shall control with
respect to any Referred Loan unless the other contract or agreement specifically states that it supersedes
this Agreement.
10. Arbitration. 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.
11 . Independent Contractors. This Agreement is not intended to establish any partnership, joint
venture, employment, or other relationship between the parties except that of independent contractors.
Neither party has, or may represent that it has, any authority under or as a result of this Agreement to act
on behalf of the other party in any way.
12. Notices. Any notice or other communication required or permitted in this Agreement shall be in
writing and shall be deemed to have been duly given on the day of service if served personally or upon
receipt if sent by facsimile transmission with confirmation or if mailed by First Class mail, registered or
certified , postage prepaid , and addressed to the respective parties at the addresses set forth above, or at
such other addresses as may be specified by either party pursuant to the terms and provisions of this
section .
13. Assignment. Neither party may assign , without the prior written consent of the other, its rights ,
duties or obligations under this Agreement to any person or entity, in whole or in part; provided, however,
that this Agreement may be assigned by a party without the consent of the other to any successor
corporation or entity whether by purchase of all or substantially all of the assets relating to this Agreement,
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a sale of a controlling interest of the capital stock of the assigning party, by merger, consolidation or
otherwise. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
14. Force Majeure. Neither party will be liable for failure or delay in performance of any of its obligations
under this Agreement arising out of any event or circumstance beyond that party's reasonable control;
provided, however, that such party promptly notifies the other party of the nature and duration of the force
majeure event and resumes performance as soon as possible.
15. Severability. Any provision of this Agreement that is determined to be unenforceable or unlawful
shall not affect the remainder of the Agreement and shall be severable therefrom, and the unenforceable
or unlawful provision shall be limited or eliminated to the minimum extent necessary so that this Agreement
shall otherwise remain in full force and effect and enforceable.
16. Entire Agreement. Excluding the Referral Agreement, this Agreement constitutes the entire
agreement between the parties and supersedes any and all prior communications or agreements between
them, whether written or oral, with respect to the subject matter hereof. This Agreement may not be
amended, modified or any provision hereof waived, except in a writing signed by the parties hereto. No
waiver by either party, whether express or implied, of any provision of this Agreement, or of any breach
thereof, shall constitute a continuing waiver of such provision or a breach or waiver of any other provision
of this Agreement.
16. Press Releases. Any news release, public announcement, advertisement, or other publicity
released by either party concerning this Agreement shall be subject to the prior approval of the other party,
which approval shall not be unreasonably withheld or delayed. The parties will cooperate with each other
to issue a joint press release announcing their relationship established by this Agreement.
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