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Effective July 21, 2022

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Master Services Agreement

This MASTER SERVICES AGREEMENT, together with any Order Form, appendices, schedules and exhibits attached or incorporated by reference (collectively, this “Agreement”), dated as of the effective date identified in the Order Form (the “Effective Date”), is entered into by Qoosh Technology, Inc, (DBA Quilo), a Delaware corporation (“Quilo”) and that certain entity identified in the Order Form (“Financial Institution” or “FI”). Financial Institution and Quilo may be referred to in this Agreement individually as a “Party” and collectively as the “Parties.”

WHEREAS, Quilo administers a Program (as defined below) in which Quilo may administer, among other services as described in the Service Schedules (as defined below) to this Agreement, a software as a service platform in which chartered financial institutions or licensed lenders, may originate and service Loans (as defined below) or purchase participation interests in Loans originated and serviced by other financial institutions or lenders (collectively, with the services described in the Service Schedules to this Agreement, the “Quilo Services” or ”Services” or individually, the services described in a particular Service Schedule, the “Quilo Service” or “Service”); and

WHEREAS, FI desires to receive access to the Quilo Services in order to originate Loans, or purchase participation interests in Loans originated by other financial institutions or lenders, that meet FI’s Selected Underwriting Criteria (as defined below);

NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which the Parties acknowledge, the Parties agree as follows:


1. Definitions and Rules of Construction.

(a) Definitions. The following terms shall have the following meanings in this Agreement:

ACH” means the Automated Clearinghouse network, governed by the rules of NACHA.

Affiliate” of a Person, corporation or other entity means any Person, corporation or other entity Controlling, Controlled by or under common Control with such Person, corporation or other entity.

Agreement” has the meaning given to it in the preamble to this Agreement.

Applicable Law” means (a) any international, national, State, local or other law or statute that applies to a Party; (b) any regulation, rule, supervisory or administrative guidance, directive, or interpretation promulgated or published by any Governmental Authority, whether formal or informal, relating to the Program, the Quilo Services or the Lending Services, or that is otherwise applicable to or binding upon either of the Parties; or (c) any judicial, administrative or other governmental order, judgment, decree, decision, permit, or ruling that is binding upon or otherwise applicable to a Party, as any of the foregoing may be amended and in effect from time to time during the Term.

Applicant” means a Person who has applied for a Loan from FI through Services.

Audit Findings” has the meaning given to it in Section 9(b).

Available Underwriting Criteria” means a set of criteria for Loans which is made available to FI through Workspace, which may include criteria regarding the minimum cut-off score obtained from the Applicant’s credit report considered for a Loan, the maximum term of a Loan or the maximum amount of the principal balance of the Loan.

Borrower” means a Person who has applied for and has been approved for a Loan by FI through the Services in conformance with the Selected Underwriting Criteria.

Business Day” means any day, other than Saturday, Sunday or holiday observed by the Federal Reserve Bank of New York.

Claims" has the meaning given to it in Section 14(a).

Confidential Information” means: (a) (i) all Personal Data, (ii) all proprietary, secret or nonpublic information, in tangible or intangible form, relating to a Party’s businesses, operations, finances, employees, products, or services, (iii) any such information relating to any Affiliate, customers, or potential customers of that Party, that such Party discloses to the Receiving Party (as defined in Section 7) or its Representatives, or both, either before, on or after the Effective Date, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not identified as confidential; and (b) any materials or reports prepared by or for the Receiving Party or its Representatives that contain, are based on, or reflect, in whole or in part, the information in (a).  For the avoidance of doubt, Workspace is Quilo’s Confidential Information.

Control” means, with respect to any corporation or legal entity, having, directly or indirectly, the power to direct or cause the direction of the management and policies of a Party, whether through the ownership of voting securities, by contract or otherwise. “Controlling” and “Controlled” shall have a correlative meaning.

Daily Lending Limit” means the daily limit which FI must not exceed in providing its Lending Services, with such amount being as set forth in the Selected Underwriting Criteria.

Data Security Plan” has the meaning given to it in Section 7(f)(iv).

Data Subject” means an identified or identifiable Person.

Disclosing Party” has the meaning given to it in Section 7(a).  

Dispute” means any dispute, claim or controversy of any kind or nature arising under or in connection with this Agreement, whether based on contract (including disputes as to the creation, validity, interpretation, breach or termination of this Agreement), tort, common law, equity, statute, regulation, order or otherwise, whether arising before or after termination or expiration of this Agreement. “Dispute” includes any dispute, claim or controversy of any kind or nature arising under or in connection with the obligations of the Parties under this Agreement or the transactions contemplated thereby.

Effective Date” has the meaning given to it in the preamble to this Agreement.

Failed SLA” has the meaning given to it in Section 5(i)(ii).

Fees” means the fees to be paid to FI by Quilo as set forth on the Order Form.

FI Data Files” has the meaning given to it in Section 8(a)(ii).

Financial Institution” or “FI” has the meaning given to it in the preamble to this Agreement.

FinCEN” means the federal Financial Crimes Enforcement Network.“Force Majeure Event” has the meaning given to it in Section 17(h).

GLBA” means the Gramm-Leach-Bliley Act and implementing regulations.

Governmental Authority” means any international, federal, territorial, State or local governmental authority, quasi-governmental authority, instrumentality, court, government or self-regulatory organization, commission, tribunal or organization or any regulatory, administrative or other agency, or any political or other subdivision, department or branch of any of the foregoing having jurisdiction over FI or Quilo, as applicable, and its respective Affiliates.

Indemnified Party” has the meaning given to it in Section 14(c)(i).

Indemnifying Party” has the meaning given to it in Section 14(c)(i).

Initial Term” has the meaning given to it in Section 15(a).

Inquiry” has the meaning given to it in Section 5(b)(iv).

Launch Date” has the meaning given to it in the Order Form.

Lending Services” means the origination by FI of one or more Loans or the purchase by FI of a participation interest in one or more Loans initially originated by another financial institution or lender as the lender of record, and in either of the foregoing cases, the Loan is through the Services pursuant to the terms and conditions of this Agreement.

Loan” means the extension of credit to a Person, provided that additional limitations as to the type of extension of credit may be set forth in the Order Form next to “Loan Types.”

Losses” has the meaning given to it in Section 14(a).

Marks” means trademarks and service marks (whether registered or at common law), trade names, business names, logos, symbols and internet domain names or any abbreviation or contraction thereof.

Material Duties” means the duties of third parties that have access to, transmit, or store FI’s Confidential Information.

NACHA” means the National Automated Clearing House Association and its successors and assigns.

OFAC” means the U.S. Treasury Department’s Office of Foreign Assets Control.

Operating Account” has the meaning given to it in Section 4(a).

Order Form” means that certain Order Form entered into by and between Quilo and FI which incorporates this Agreement and is made part of this Agreement.

Parties” has the meaning given to it in the preamble to this Agreement.

Party” has the meaning given to it in the preamble to this Agreement.

PCI DSS” means Payment Card Industry Data Security Standard.

Person” means an individual natural person.

Personal Data” means any information that is linked or linkable, or is reasonably capable of being associated with, a Person, including “non-public personal information” as defined in the GLBA. “Personal Data” includes equivalent terms in other Applicable Law, such as the California Consumer Privacy Act-defined term “Personal Information,” as context requires.

Privacy Policy”  has the meaning given to it in Section 7(f)(iii).

Program” is the software as a service platform administered by Quilo which chartered financial intuitions or lenders may utilize in order to originate and service Loans or purchase participation interests in Loans. “Program” includes Workspace.

Program Information” means and includes materials and information found in or relating to the Program description, financial information regarding Quilo, and information regarding (a) other lenders or financial institutions or Quilo (as applicable), including their use of the Program or Quilo Services or relating to the Program, (b) Quilo’s Program activities that relate to the use of the Lending Services, (c) information regarding Quilo’s compliance with this Agreement or Applicable Law, and (d) information regarding Workspace and other digital or web-based platforms utilized in, or made available through, the Program.

Provisional Relief” has the meaning given to it in Section 16(b)(iii).

Quilo” has the meaning given to it in the preamble to this Agreement.

Quilo Data Files” has the meaning given to it in Section 8(a)(i).

Quilo Service” has the meaning given to it in the preamble to this Agreement.

Quilo Services” has the meaning given to it in the preamble to this Agreement.

Receiving Party” has the meaning given to it in Section 7(a).  

Renewal Term” has the meaning given to it in Section 15(a).

Representatives” means one or more of the directors, officers, employees, Affiliates, advisors, consultants, subcontractors, and agents of a Party.

Reserve Account” has the meaning given to in Section 4(b).

Reserve Account Minimum” means the minimum amount which FI must maintain in the Reserve Account, as provided in Workspace.

Resolution Period” has the meaning given to it in Section 16(b)(i).

Response to Audit Letter” has the meaning given to it in Section 9(b)(ii).  

Security Breach” means a confirmed breach of security of the Program, Quilo Services or Lending Services that caused an accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal data, or an event that qualifies as a reportable breach under Applicable Law and any failure by Quilo or FI to comply with its privacy and data protection obligations set forth in Section 7(f).

Selected Underwriting Criteria” means the criteria which FI selected from the Available Underwriting Criteria through Workspace and which FI may manage in Workspace from time to time, provided that with respect to any changes or modifications to criteria, the changes will only go into effect after Quilo has a reasonable amount of time to process and effectuate the FI’s changes or modifications. For the avoidance of doubt, Quilo’s records with respect to Selected Underwriting Criteria shall control.

Service Schedule” means a schedule, deemed to be a part hereof and incorporated into this Agreement by reference, containing the specific terms and conditions by which Quilo will provide the Quilo Service as described therein. As of the date hereof the Service Schedules include: (i) Loan Origination and Participation Service Schedule; and (ii) Retail Origination Service Schedule. Following execution of this Agreement, the Parties may enter into new Service Schedules which are to be incorporated into this Agreement only with the express written consent of both Parties.

Services Addendum means an addendum, if any, that both Parties may enter into to describe specific service level(s) set forth therein, pursuant to this Agreement.“SLA” has the meaning given to it in Section 5(i)(i).

SLA Corrective Action Plan” has the meaning given to it in Section 5(i)(ii).

State” means a state within the United States of America.

Supervisory Request” means a formal or informal request for information or data, or for action or inaction, that is received by a Party from any Governmental Authority.

Term” has the meaning given to it in Section 15(a).

Workspace” means Quilo’s hosted digital application or interface tool which Quilo makes available to FI for FI to set up and manage FI’s access to the Program pursuant to the terms and conditions described herein. For example, through said application or tool, FI may adjust its Selected Underwriting Criteria or access information relating to the Loans and Applicants or Borrowers.

(b) Rules of Construction. Except as otherwise expressly provided in this Agreement, the following rules shall apply hereto: (i) The singular includes the plural and the plural includes the singular; (ii) “Include” and “including” shall not be limiting; (iii) A reference to any agreement or other contract includes any permitted modifications, supplements, amendments and replacements; (iv) A reference in this Agreement to a Section, Schedule or Exhibit is to the referenced Section of this Agreement, Schedule to this Agreement or the referenced Exhibit to this Agreement unless otherwise expressly provided; (v) A reference to a Section or paragraph in this Agreement shall, unless the context clearly indicates to the contrary, refer to all sub-parts or sub-components of any said Section or paragraph; (vi) Words such as “hereunder,” “hereto,” “hereof,” and “herein,” and other words of like import shall, unless the context clearly indicates to the contrary, refer to the whole of this Agreement and not to any particular clause hereof; (vii)To the extent this Agreement requires the mutual agreement or consent of any matter by both parties hereto, unless the text clearly indicates to the contrary, such agreement or consent shall be granted or denied in each such party’s reasonable business judgment, acting in good faith; (viii) To the extent this Agreement requires the agreement or consent of one party or the other, unless the text clearly indicates to the contrary, such agreement or consent shall be in writing and shall be exercised in good faith; (ix) To the extent this Agreement requires the approval of one party or the other, such approval or disapproval must be in writing, unless otherwise indicated, and must be obtained from the party or its designee prior to taking the specified action; (x) No inference in favor of or against any party shall be drawn from the fact that such party or such party’s counsel has drafted any portion hereof; (xi) All references in this Agreement to a separate instrument are to such separate instrument as the same may be amended or supplemented from time to time pursuant to the applicable provisions thereof; (xii) A reference in this Agreement contemplating certain action by a party “after consultation with” or “in consultation with” the other party (or other similar language) shall not mean that the consent or approval of such other party is required or contemplated in connection with such action; (xiii) The term “he” and “his” and similar references shall be deemed to be gender neutral; (xiv) references to “dollars” or “$” shall be to United States dollars; (xv) any reference made in this Agreement to a statute or statutory provision shall mean such statute or statutory provision as it has been amended through the date as of which the particular portion of the Agreement is to take effect, or to any successor statute or statutory provision relating to the same subject as the statutory provision so referred to in this Agreement, and to any then applicable rules or regulations promulgated thereunder, unless otherwise provided; and (xvi) unless the context otherwise requires or unless otherwise provided herein, the terms defined in this Agreement that refer to a particular agreement, instrument or document also refer to and include all renewals, extensions, modifications, amendments and restatements of such agreement, instrument, or document.

(c) Service Schedules. Each Service Schedule shall be deemed to incorporate the provisions of this Agreement as though such provisions were set forth therein in their entirety, and all terms and conditions of this Agreement (excluding the terms and conditions of any other Service Schedule) shall apply to such Quilo Service, subject to and except as modified by such Service Schedule. Each Service Schedule shall set forth: (i) a description of the Quilo Service to be furnished by Quilo, and (ii) such additional terms and conditions. The terms of a Service Schedule shall apply solely with respect to the applicable Quilo Service referenced therein. In the event of a conflict or inconsistency between the main text of this Agreement and the terms of any Service Schedule, the terms of the Service Schedule shall govern.


2. The Program.

(a) Description. Quilo is the administrator of the Program and, among other things, provides administrative, technical, and ministerial services to operate the Program. Pursuant to, and subject to FI’s compliance with, this Agreement and the Service Schedules, FI may receive access to Quilo’s Program.  The Parties acknowledge and agree that: (i) FI is providing lending and financing services under the Program to the extent that it originates a Loan or purchases a participation interest in a Loan; and (ii) Quilo is not acting as a broker, lender, servicer or financer. Quilo is a service provider to FIs and Merchants, and FI will originate and service, or purchase a participation interest in, Loans pursuant to the Lending Services described herein. Quilo acknowledges that upon notice to Quilo, FI shall not be obligated, and may on a commercially reasonable basis refuse or decline, to provide Lending Services, except that FI is obligated to provide the Lending Services if the Selected Underwriting Criteria matches a Loan through the Quilo Services.


3. Pre-Launch Responsibilities; Lending Services; Authorization.

(a) Responsibilities Prior to Launch.
(i) FI Pre-Launch Responsibilities. Following the Effective Date, but prior to the Launch Date, FI shall complete the following (and maintain the following subsequent to the Launch Date throughout the Term): (i) activate its Workspace account; (ii) apply, through Workspace, for third-party services in connection with this Agreement; (iii) ensure that all required Operating Account(s) and Reserve Account(s) have been established in accordance with the terms hereof; (iv) provide full participation and assistance as Quilo may reasonably require to provide FI with access to the Program (including Workspace) pursuant to the terms hereof and to enable FI’s access to the Quilo Services and the Program subject to the terms hereof; and (v) participate in orientation sessions as may be required by Quilo to effectuate launch as contemplated herein.
(ii) Quilo Pre-Launch Responsibilities. Following the Effective Date, but prior to the Launch Date, Quilo shall complete the following (and maintain the following subsequent to the Launch Date throughout the Term): (i) provide FI with access to Workspace pursuant to the terms hereof; (ii) facilitate application review and approval by the third-party service providers; (iii) provide orientation sessions as may be required by Quilo to effectuate launch as contemplated herein; (iv) activate FI’s access to a Workspace account; and (v) coordinate with FI in order for Quilo to receive access to the Operating Account and Reserve Account in accordance with the terms hereof.

(b) Lending Services. To the extent FI is providing any Lending Services, each Loan, through the Services and Program, meeting the Selected Underwriting Criteria will be: (i) originated by FI as a direct lender of record; or (ii) initially originated by another financial institution or lender as the lender of record, with FI taking the position of a purchaser of a participation interest in the Loan from said financial institution or lender. Quilo is not a lender, broker, servicer or funder of any Loans and does not have any interest as a lender or funder with respect to the Loans.  

(c) Authorization. To the extent FI is providing any Lending Services, FI hereby authorizes Quilo to effectuate the Loan origination by FI through Quilo’s Program according to the Selected Underwriting Criteria provided by FI from time to time as contemplated by this Agreement. To facilitate Quilo’s provision of Quilo Services, FI shall submit, through Workspace, timely, complete and accurate Selected Underwriting Criteria at all times during the Term. FI is responsible for any errors and any losses, liabilities, damages, costs and expenses, including reasonable attorneys’ fees and expenses resulting from incomplete or inaccurate Selected Underwriting Criteria, unauthorized use of Workspace, or an unauthorized or otherwise flawed, incorrect, or erroneous requests or changes to Selected Underwriting Criteria or Workspace; provided that such incomplete or inaccurate Selected Underwriting Criteria or flawed, incorrect, or erroneous request or changes in the Selected Underwriting Criteria is not attributable to Quilo’s gross negligence or willful misconduct.  


4. Operating Account and Reserve Account.

(a) Operating Account. FI will establish and maintain at all times during the Term, one or more operating accounts (an “Operating Account”) which FI shall maintain during the Term with funds no less than the Daily Lending Limit. Quilo may debit the Operating Account to cover its Lending Services obligations, Quilo’s Fees and any other costs and expenses owed to Quilo by FI from time obligations (including expense reimbursement and indemnity obligations), in addition to any other debits or deductions from the Operating Account as may be authorized under this Agreement. If amounts in the Operating Account fall below the minimum amount required to be maintained under this Section or are insufficient to pay costs, expenses or Fees owed to Quilo by FI, FI shall, upon notice from Quilo of such deficiency, immediately restore the Operating Account balance to the required levels, but in any case no longer than one (1) Business Day after posting of such notice through Workspace.

(b) Reserve Account. FI will establish and fund one or more separate reserve accounts (a “Reserve Account”) with a third party financial institution of Quilo’s choice, for the purpose of securing Quilo against the risk that FI will fail to perform any of its obligations (including indemnity obligations) under this Agreement. Commencing prior to the Launch Date, FI shall maintain, at all times during the Term (and for a period of six (6) months following the end of the Term) the Reserve Account in an amount equal to the Reserve Account Minimum that is provided in Workspace. Quilo shall have sole control of any Reserve Account and may use i to cover any costs, expenses, Fees, or other amounts provided for under this Agreement for any reason, as well as to pay or reimburse Quilo for any other unpaid obligations (including expense reimbursement and indemnity obligations) owed by FI to Quilo. As such, Quilo is authorized to debit or withdraw funds from the Reserve Account. FI shall cure any deficiencies in any Reserve Account balance within one (1) Business Day after posting of notice of such deficiency through Workspace.  


5. Quilo Obligations.

(a) Program Information.
i. Upon request of FI, Quilo agrees to provide FI with Program Information reasonably related to this Agreement from time to time, in form and content reasonably satisfactory to FI. If Program Information is needed by FI in connection with a Supervisory Request, FI shall promptly notify Quilo of such request. Quilo shall aim to provide the requested information by such date as may be specified by FI as necessary for FI to meet the Supervisory Request, provided Quilo shall be provided a reasonable amount of time to provide the requested information.

(b) Inquiries and Complaints.
(i) Governmental Authority. Quilo shall, to the extent not prohibited by Applicable Law, within ten (10) Business Days, notify FI and provide copies to FI of, to the extent materially adverse to the Lending Services, any formal complaints, notice of inquiries, investigations, examinations, demands, litigation, audit results (except to the extent that the auditors have restricted disclosure) or findings or similar materials or documents received by Quilo, in each case, regarding the Lending Services (or of which it otherwise becomes aware) that Quilo receives from a Governmental Authority.
(ii) Other Formal Inquiries. Quilo shall, to the extent not prohibited by Applicable Law, within ten (10) Business Days, notify FI and provide FI with copies of, to the extent materially adverse to the Lending Services, any other formal complaints, inquiries, investigations, examinations, demands, litigation, audit results (except to the extent that the auditors have restricted disclosure) or findings or similar materials or documents received by Quilo regarding the Lending Services (or of which it otherwise becomes aware).
(iii) Informal Inquiries. To the extent not prohibited by Applicable Law, by the end of each quarter of the calendar year during the Term, Quilo shall provide to FI a summary of complaints received by Quilo regarding the Lending Services (or of which it otherwise becomes aware) that allege that FI is not in compliance with any consumer-facing terms and conditions or consumer-facing privacy notices applicable to the Lending Services.
(iv) Inquiries relating to Personal Data. Notwithstanding the foregoing Section 5(b)(i)-(iii), If Quilo receives any type of request or inquiry from a governmental, legislative, judicial, law enforcement, or regulatory authority (e.g. the Federal Trade Commission or the Attorney General of a U.S. state), or faces an actual or potential claim, inquiry, or complaint in connection with the Parties’ processing or handling of Personal Data (collectively, an “Inquiry”), Quilo will notify FI without undue delay unless such notification is prohibited by Applicable Law (or, to the extent initially prohibited by Applicable Law, without undue delay if and when no longer prohibited by Applicable Law). If requested by Quilo, FI will provide Quilo with information relevant to the Inquiry to enable Quilo to respond to the Inquiry. Upon request, FI will provide relevant information to Quilo, including but not limited to facilities, records, personnel, books, accounts, data, reports, papers, and computer records, to fulfill Quilo’s obligations (if any) to conduct data protection impact assessments or prior consultations with data protection authorities.

(c) Disaster Recovery. During the Term, Quilo shall maintain disaster recovery, business resumption, and contingency plans, and the capacity to implement such plans, appropriate for the nature and scope of the Program, and under this Agreement and the Program. Such plans must enable Quilo to promptly resume the performance of its obligations hereunder and under the Program in the event of a natural disaster, destruction of Quilo’s facilities or operations, utility or communication failures, or similar interruption in either Quilo’s operations or the operations of any third party that materially affects the Quilo’s ability to operate. Such disaster recovery plans must: (i) identify a recovery site or sites for all locations where Program services are performed or Program data is stored, (ii) address business continuation, disaster recovery, and crisis management issues, (iii) be designed to restore Program operations as soon as reasonably practical under the circumstances after a declared disaster, (iv) provide for ongoing testing of such plans, and (v) be regularly updated as needed to comply with evolving risks and Applicable Law. At FI’s request, Quilo shall make available to FI (i) written summaries of all such disaster recovery, business resumption, and contingency plans and any changes to such plans, and (ii) such additional information as reasonably requested by FI in connection with such summaries.

(d) Third Party Service Providers. Quilo may utilize third parties for the provision of any duties described hereunder or in connection with the Program. No use of a subcontractor or third party service provider by Quilo shall release Quilo of any of its obligations under this Agreement, and Quilo shall remain liable to FI for any breach of this Agreement caused by its subcontractor or third party to the same extent as if such obligations were performed by it.

(e) Financial Statements. Upon FI’s reasonable request, Quilo shall, within thirty (30) days of such request, provide FI with Quilo’s most recent financial statements (including a balance sheet, income statement and statement of cash flows), which may include quarterly or annual audited financial statements to the extent they are available.

(f) Periodic Program Review. Quilo will promptly comply at all times with all reasonable diligence and information requests from FI in connection with the Program or the use of the Lending Services. At FI’s request, Quilo shall meet with FI from time to time to review the Program and its performance and to attempt to resolve any issues FI may have with Quilo’s or the Program’s compliance with this Agreement or Applicable Law.

(g) PCI DSS Compliance. Quilo will maintain all applicable PCI DSS requirements to the extent Quilo possesses, stores, processes or transmits cardholder data, or to the extent that it could impact the security of the cardholder data environment.

(h) Record Retention and Retrieval. Quilo shall retain records of Lending Services transactions on Quilo’s Program and records regarding other matters related to Quilo’s performance of its obligations under this Agreement for at least five (5) years following the transaction or matter to which the record relates, in readily retrievable form, or for such longer period as may be required by Applicable Law. Upon reasonable request of FI from time to time, Quilo shall provide access or copies of such records to FI.

(i) Employees and Representatives. Quilo shall each be responsible for the conduct and active monitoring and training of its employees and Representatives with respect to all aspects of its performance of its obligations under this Agreement and the Services, including their respective compliance with this Agreement and Applicable Law.

(j) Service Level Agreement (SLA) Standards.  
(i) Quilo shall provide all Quilo Services contemplated by this Agreement with promptness and diligence and in a professional and workmanlike manner, and, as applicable, at least in accordance with any specific service levels set forth in any Services Addendum (each, an “SLA”).
(ii) If any Services are not provided in accordance with the SLAs (each instance, a “Failed SLA”), Quilo shall, for each Failed SLA: (i) promptly investigate and report to FI on the causes of the problem; (ii) provide a root cause analysis of such failure as soon as practicable after such failure or FI’s request; (iii) initiate remedial action to correct the problem and resume meeting the relevant SLA(s) as soon as practicable but, in any event, within five (5) Business Days of the date of the occurrence of the Failed SLA; and (iv) advise FI, as and to the extent requested by FI, of the status of remedial efforts being undertaken with respect to such problem and, within five (5) Business Days, provide FI reasonable evidence that the causes of such problem have been corrected on a permanent basis (such steps, an “SLA Corrective Action Plan”).


6. FI Obligations.

(a) Provision of Lending Services. FI shall provide Lending Services in accordance with the terms of this Agreement. In providing the Lending Services, FI agrees that it will not exceed the Daily Lending Limit.

(b) Use of Quilo Services. The use of the Quilo Services shall be solely in accordance with the terms of this Agreement and at the direction of Quilo. FI shall implement all reasonably necessary instructions provided by Quilo and provide all reasonably necessary information requested or otherwise required by Quilo for Quilo to perform its obligations under this Agreement and Applicable Laws.

(c) Licenses and Approvals. As of the Effective Date, FI maintains all approvals and licenses necessary to provide the Lending Services contemplated by this Agreement, including those required pursuant to Applicable Law, and FI agrees to continue maintaining all approvals and licenses necessary for the Lending Services from time to time and throughout the Term.

(d) Inquiries and Complaints.
(i) Governmental Authority. FI shall, to the extent not prohibited by Applicable Law, within ten (10) Business Days, notify Quilo and provide copies to Quilo of, to the extent materially adverse to the Program or Quilo Services, any formal complaints, notice of inquiries, investigations, examinations, demands, litigation, audit results (except to the extent that the auditors have restricted disclosure) or findings or similar materials or documents received by FI, in each case, regarding the Program or Quilo Services (or of which it otherwise becomes aware) that FI receives from a Governmental Authority.
(ii) Other Formal Inquiries. FI shall, to the extent not prohibited by Applicable Law, within ten (10) Business Days, notify Quilo and provide Quilo with copies of, to the extent materially adverse to the Program or Quilo Services, any other formal complaints, inquiries, investigations, examinations, demands, litigation, audit results (except to the extent that the auditors have restricted disclosure) or findings or similar materials or documents received by FI regarding the Program or Quilo Services (or of which it otherwise becomes aware).
(iii) Informal Inquiries. To the extent not prohibited by Applicable Law, by the end of each quarter of the calendar year during the Term, FI shall provide to Quilo a summary of complaints received by FI regarding the Program or Quilo Services (or of which it otherwise becomes aware) that allege that Quilo is not in compliance with any consumer-facing terms and conditions or consumer-facing privacy notices applicable to Quilo or the Lending Services.
(vi) Inquiries relating to Personal Data. Notwithstanding the foregoing Section 5(b)(i)-(iii), If FI receives any type of request or inquiry from a governmental, legislative, judicial, law enforcement, or regulatory authority (e.g. the Federal Trade Commission or the Attorney General of a U.S. state), or faces an actual or potential claim, inquiry, or complaint in connection with the Parties’ processing or handling of Personal Data (collectively, an “Inquiry”), FI will notify Quilo without undue delay unless such notification is prohibited by Applicable Law (or, to the extent initially prohibited by Applicable Law, without undue delay if and when no longer prohibited by Applicable Law). If requested by FI, Quilo will provide FI with information relevant to the Inquiry to enable FI to respond to the Inquiry. Upon request, Quilo will provide relevant information to FI, including but not limited to facilities, records, personnel, books, accounts, data, reports, papers, and computer records, to fulfill FI’s obligations (if any) to conduct data protection impact assessments or prior consultations with data protection authorities.

(e) Disaster Recovery. During the Term, FI shall maintain disaster recovery, business resumption, and contingency plans, and the capacity to implement such plans, appropriate for the nature and scope of the Lending Services and FI’s obligations under this Agreement. Such plans must enable FI to promptly resume the performance of its obligations hereunder and the Lending Services in the event of a natural disaster, destruction of FI’s facilities or operations, utility or communication failures, or similar interruption in either FI’s operations or the operations of any third party that materially affects FI’s ability to operate. FI’s disaster recovery plans must: (i) identify a recovery site or sites for all locations where Lending Services are performed or Program data is stored, (ii) address business continuation, disaster recovery, and crisis management issues, (iii) be designed to restore Lending Services operations as soon as reasonably practical under the circumstances after a declared disaster, (iv) provide for ongoing testing of such plans, and (v) be regularly updated as needed to comply with changing risks and Applicable Law. At Quilo’s request, FI shall make available to Quilo: (i) written summaries of all such disaster recovery, business resumption, and contingency plans and any changes to such plans, and (ii) such additional information as reasonably requested by Quilo in connection with such summaries.

(f) Fees; Expenses; Taxes
(i) Fees. FI shall pay Quilo the Fees set forth on the Order Form. Quilo will debit the Operating Account daily for the Fees owed to Quilo for such day. If funds in an Operating Account are insufficient to pay the Fees or other amounts due under this Agreement, Quilo may debit from the Reserve Account or invoice FI for such Fees or the remaining unpaid balance of such Fees, as applicable. FI shall pay each invoice, in United States dollars, by electronic transfer within fifteen (15) days after the date of such invoice. Quilo may change the Fees that will apply to any Renewal Term upon one hundred eighty (180) days’ notice to FI prior to the conclusion of the then-current Term.
(ii) Expenses. Except as otherwise provided herein, each Party shall bear and pay all direct costs and expenses incurred by it or on its behalf, or assessed against it or on its behalf, in connection with negotiating this Agreement, including the fees and expenses of its own financial and other consultants, accountants and counsel.
(iii) Taxes. FI will be responsible for the payment of all taxes and similar charges imposed by any governmental authority arising out of the provision of the Services, excluding any (i) applicable stamp duty and taxes; (ii) taxes based on gross or net income earned by Services; (iii) franchise, business or occupation taxes payable by Quilo for its respective franchise, business or occupation; (iv) payroll taxes or other taxes payable by Quilo for its respective employees; or (v) property taxes payable by Quilo for its respective properties.

(g) Record Retention and Retrieval. FI shall retain records of statements of accounts and transactions in connection with this Agreement or the Lending Services for the longer of: (i) the time established pursuant to Applicable Law; or (ii) the time established pursuant to FI’s applicable policies, procedures and practices. Upon reasonable request of Quilo from time to time, FI shall provide access or copies of such records to Quilo.

(h) Automated Clearing House Functionality. The Quilo Services require FI to utilize the ACH network. As such, FI agrees to comply with NACHA rules and originate file formats in accordance with such rules and the format requirements of the Quilo Services, and to that extent, FI will accept and process ACH payments (including the initiation of direct debits) through FI’s core processing or banking platform.


7. Confidential Information; Personal Data.

(a) Confidentiality. Each Party agrees to maintain in confidence all Confidential Information disclosed to it by the other Party (a “Disclosing Party”). A Party receiving the Confidential Information of a Disclosing Party (a “Receiving Party”) shall, except as authorized in writing by the Disclosing Party, (i) use all Confidential Information only to carry out the purposes of this Agreement and as permitted by this Agreement; (ii) limit access to Confidential Information only to Representatives who have a need to access the Confidential Information and only for use with the Program and the Lending Services; (iii) advise its Representatives, with written agreement, who have access to the Confidential Information that they must comply with confidentiality obligations at least as restrictive as the terms of this Agreement; (iv) safeguard all Confidential Information by using a reasonable degree of care, but not less than the degree of care used by the Receiving Party in safeguarding its own similar information; (v) not copy, change, or create other works from the Confidential Information except as necessary to carry out the purposes of this Agreement; (vi) may use the Confidential Information in response to a requirement under Applicable Law or from a Governmental Authority or in connection with any regulatory report, audit, inquiry or other request for information form a Governmental Authority; and (vii) not disclose any Confidential Information to third parties other than to its Representatives as allowed under this Agreement; provided that the terms of this Agreement may be disclosed to potential investors, acquirers, or lenders of a Party that are (i) not direct competitors of the other Party and (ii) subject to confidentiality restrictions no less strict than set forth in this Agreement. In the event that a Receiving Party receives notice of a sought disclosure or seeks disclosure of Confidential Information of the type described in clause (vi) of this Section 7(a), such Receiving Party shall, if legally permissible, (i) notify the Disclosing Party thereof promptly after notice (but before disclosure if legally permissible); (ii) consult with the Disclosing Party on the advisability of taking steps to resist or vary such request; and (iii) if disclosure is required or deemed advisable, cooperate with the Disclosing Party in any attempt that it may make to obtain a protective order or other reliable assurance that confidential treatment shall be accorded to the Confidential Information (with any reasonable out-of-pocket expenses incurred by a Party in connection with the foregoing shall be the responsibility of the Receiving Party subject to the notice or need of the type described in clause (vi) of this Section 7(a). Each Receiving Party will promptly notify the Disclosing Party upon discovery of any unauthorized use or disclosure of such Confidential Information. The existence of this Agreement, the fact that FI is providing the Lending Services, and the general description of the Lending Services is not confidential.

(b) Exceptions. The obligations of confidentiality contained in Section 7(a) will not apply to the extent that such Confidential Information: (i) was already known to the Receiving Party, other than under an obligation of confidentiality, at the time of disclosure by the Disclosing Party; (ii) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the Receiving Party; (iii) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the Receiving Party in breach of this Agreement; (iv) was disclosed to the Receiving Party, other than under an obligation of confidentiality, by a third party who had no obligation not to disclose such information to others; or (v) was developed independently by the Receiving Party without any use of, or reference to, Confidential Information of the Disclosing Party. In addition, the Receiving Party may comply with an order or request from a court or other Governmental Authority of competent jurisdiction and disclose the Disclosing Party’s Confidential Information in compliance with that order only if the Receiving Party gives the Disclosing Party prior notice regarding such disclosure if permitted by the Governmental Authority and reasonably cooperates with the Disclosing Party, if possible, in seeking a protective order, confidential treatment, or such other measures reasonably applicable to oppose or limit such disclosure. The Receiving Party shall not release any more of the Disclosing Party’s Confidential Information than is necessary to comply with that order. Further, notwithstanding the foregoing, with respect to transactional and account information regarding an Applicant or Borrower generated from this Program, Quilo shall be permitted to disclose and discuss said information to the applicable Applicant or Borrower without prior notice to FI.

(c) Rights. As among the Parties, each Party shall retain all right, title and interest in and to any proprietary and intellectual property rights in its respective Confidential Information and nothing contained herein is intended to operate to transfer any proprietary and intellectual property rights.

(d) Injunctive Relief. Each Receiving Party agrees that any unauthorized use or disclosure of Confidential Information of the Disclosing Party might cause immediate and irreparable harm to the Disclosing Party for which money damages might not constitute an adequate remedy. In that event, the Receiving Party agrees that injunctive relief may be warranted in addition to any other remedies the Disclosing Party may have.

(e) Proper Destruction of Records.  Upon the request of a Disclosing Party, or upon termination or expiration of this Agreement, the applicable Receiving Party will promptly return or destroy any copies of the Disclosing Party’s Confidential Information in its possession, with the exception of Confidential Information stored as part of the Receiving Party’s standard back-up policies and procedures or Confidential Information required to be retained pursuant to Applicable Law which shall maintain the designation of Confidential Information subject to the terms of this Agreement applicable to Confidential Information for so long as such Confidential Information is retained by the Receiving Party. In connection with any destruction of information required under this Agreement during the Term, the destructing Party shall use commercially reasonable measures designed to properly destruct all records (including those containing personally identifiable information), whether in paper, electronic, or other form, including adhering to policies and procedures that require the destruction or erasure of electronic media so that the information cannot practicably be read or reconstructed.  

(f) Additional Requirements Applicable to Personal Data. As to the Personal Data of Persons under its possession or control in connection with the Program, each Party shall also comply with the following requirements:
(i) General Compliance. Each Party represents and warrants that it is compliant with and shall continue to comply with (A) all Applicable Law relating to the privacy, confidentiality or security of the Program or Personal Data; and (B) all provisions of the Party’s written information security policies, procedures and guidelines that apply to the Program or Lending Services. To the extent that each Party receives Personal Data in connection this Agreement, each Party shall share, use and disclose such Personal Data solely for the following purposes: (i) to exercise its rights and perform its obligations under this Agreement, including in connection with providing the Quilo Services or Lending Services; (ii) to protect against or prevent actual or potential fraud, unauthorized transactions, claims, or other liability; (iii) to comply with Applicable Law, respond to judicial process, or comply with a civil, criminal or regulatory investigation; or (iv) such other purposes as the Parties may agree upon in writing.
(ii) Safeguards. Each Party agrees to maintain a comprehensive written information security program that includes technical, physical, and administrative/organizational safeguards designed to (A) ensure the security and confidentiality of (i) Personal Data and (ii) Program Information received under this Agreement; (B) protect against any anticipated threats or hazards to the security and integrity of such information; (C) protect against any actual or suspected unauthorized processing, loss, or acquisition of such information; (D) ensure the proper disposal of such information; and (E) regularly test or otherwise monitor the effectiveness of such safeguards. Except to the extent prohibited by Applicable Law, each Party shall promptly notify the other Party of any known or suspected unauthorized disclosure of or access to any of such information. Each party shall not introduce into any software or computer programs belonging to or used by the other Party in connection with this Agreement, any viruses, trojan horses, worms, logic bombs or other material that is or could be malicious or technologically harmful to the other Party.
(iii) Privacy Policy. Each Party shall adopt a privacy notice meeting the requirements of Applicable Law, including GLBA (and, if applicable, an opt-out notice) that accurately describes the Party’s privacy policies and practices and shall timely deliver such notice (and opt-out notice) to each Applicant. Such privacy notice shall accurately describe the privacy practices contemplated under this Agreement. If the Party discloses Personal Data in a manner that does not meet an exception to the Applicant opt-out rights under GLBA, the Party shall track all opt-out elections and abide by them accordingly.
(iv) Personal Data Security Plan. Each Party shall establish and maintain an information security plan and associated practices containing appropriate measures designed to (i) ensure the security and confidentiality of Personal Data; (ii) protect against any unanticipated threats or hazards to the security or integrity of such Personal Data, (iii) protect against the unauthorized access to or use of Personal Data or other information that could result in substantial harm or inconvenience to the other Party or any Applicant or Borrower; and (iv) guarantee the proper disposal of Personal Data upon termination of this Agreement (the “Data Security Plan”). The Data Security Plan shall comply with all Applicable Laws, including GLBA and the Federal banking agencies’ Interagency Guidelines Establishing Information Security Standards and Interagency Guidance on Response Programs for Unauthorized Access to Customer Information and Customer Notice applicable to FI. Each Party shall ensure that any of its third party service providers having access to Personal Data be obligated to cooperate in the implementation of similar security measures and response programs.
(v) Storage. Each Party will only store Personal Data at data center locations within the United States.
(vi) Testing and Assessment. Each Party shall internally review and test its Data Security Plan at least annually. Upon request from the other Party on an annual basis, the results from each such audit of a Party shall be promptly provided to the other Party in writing. Each Party agrees to take immediate action to remedy any weaknesses in its security controls discovered during an internal review or annual penetration test.
(vii) Security Breach Response. Each Party shall develop an appropriate incident response plan to properly identify, report, investigate, and escalate incidents involving the Program, including Security Breaches. If a Party discovers a Security Breach, the Party shall take appropriate actions to immediately limit, stop, mitigate, or otherwise remedy such Security Breach, including immediately notifying the other Party of any such incident and cooperating with the instructions of any Governmental Authority. Upon reasonable request, and to the extent necessary to fulfill any obligations a Party has to investigate or notify authorities, each Party agrees to provide any information necessary regarding a Security Breach to the other Party. Notifications to the other Party of a Security Breach must include estimates of the effect of the Security Breach on the other Party and must specify the corrective action being taken by the Party. Each Party agrees that if a Security Breach described in this Section has occurred, the other Party may engage an assessor to determine the extent of the Security Breach. Each Party shall give the assessor access to the other Party’s facilities, records, and personnel, as requested by the assessor, and shall be responsible for all reasonable costs, expenses, and fees of the assessor. The Party shall provide the other Party, upon receipt, any reports or documents prepared by or received from the assessor relating to the Security Breach.
(viii) Security Breach Fines and Penalties. If a Security Breach occurs, the Party responsible for the Security Breach shall be responsible for paying any fines or penalties assessed against the other Party by any Governmental Authority in connection with any Security Breach.
(ix) Data Subject Requests. The Parties will provide each other with reasonable assistance to enable each to comply with their obligations to respond to Data Subjects’ requests to exercise rights that those Data Subjects may be entitled to under Applicable Law.


8. Data Use, Quilo’s System and Testing.

(a) Data Use.
(i) Data Use by FI. FI and its third party service providers shall have the right to use data (other than Quilo’s Confidential Information) transmitted to FI in the course of providing any Lending Services under this Agreement (such data, the “Quilo Data Files”) for: (i) fraud prevention, including protecting against or preventing actual and potential fraud, unauthorized transactions, claims, or other liability; (ii) analyzing or improving its Lending Services, except that any Personal Data utilized in such analysis will be in aggregated, anonymized form; (iii) preparing and furnishing analyses and other internal and external reports of aggregated, anonymized information (any necessary aggregation and de-identification of Personal Data shall be conducted in accordance with commercially reasonable industry standards); (iv) for providing other products or services including those involving data analytics to Quilo and other customers or third parties, except that any Personal Data utilized in such products or services will only be disclosed or provided in aggregated, anonymized form; (v) for the purpose of complying with Applicable Law, including, as may be required or requested by any judicial process or Governmental Authority; and (vi) for other purposes for which consent has been provided to FI or its third party service providers by the individual to whom the Data Quilo Data Files relate in accordance with Applicable Law. Any necessary anonymization and de-identification of Personal Data for the data use described above shall be conducted in accordance with commercially reasonable industry standards and FI agrees to not, and to cause its third party service providers to no, re-identify, or attempt to re-identify, the data.
(ii) Data Use by Quilo. Quilo and its third party service providers shall have the right to use data transmitted to Quilo in the course of offering the Program under this Agreement (such data, the “FI Data Files”) for: (i) fraud prevention, including protecting against or preventing actual and potential fraud, unauthorized transactions, claims, or other liability; (ii) analyzing or improving its services, including the security of the Program, except that any Personal Data utilized in such analysis will be in aggregated, anonymized form; (iii) preparing and furnishing analyses and other internal and external reports of aggregated, anonymized information (any necessary aggregation and de-identification of Personal Data shall be conducted in accordance with commercially reasonable industry standards); (iv) for providing other products or services including those involving data analytics to FI and other customers or third parties, except that any Personal Data utilized in such products or services will only be disclosed or provided in aggregated, anonymized form; (v) for the purpose of complying with Applicable Law, including, as may be required or requested by any judicial process or Governmental Authority, or Quilo’s applicable policies, procedures or practices; and (vi) for other purposes for which consent has been provided to Quilo or its third party service providers by the individual to whom the FI Data Files relate in accordance with Applicable Law. Any necessary anonymization and de-identification of Personal Data for the data use described above shall be conducted in accordance with commercially reasonable industry standards and Quilo agrees to not, and to cause its third party service providers to no, re-identify, or attempt to re-identify, the data.

(b) Quilo’s System and Systems Testing.
(i) Quilo is responsible for having all applicable hardware, software, and the means to provide the Program and facilitate FI’s provision of Lending Services. Quilo shall ensure that Quilo’s systems shall: (A) transmit data to, and receive data from, FI as contemplated by the Program; and (B) permit FI to perform the Lending Services pursuant to the Selected Underwriting Criteria.
(ii) Prior to the subsequent introduction by Quilo of any material modification to the Program systems, the Parties shall coordinate to conduct comprehensive testing to ensure all technical aspects of the Program and FI’s and Quilo’s systems meet the requirements of this Agreement and permit FI to perform the Lending Services to the Parties’ reasonable satisfaction. If either Party disagrees as to the results of such systems testing, senior technical Representatives of each Party will meet to attempt to resolve the disagreement. FI has no obligation to provide Lending Services subsequent to the introduction by Quilo of any material modification the Program systems, until such systems testing is complete and deficiencies are remediated to FI’s reasonable satisfaction.


9. Compliance with Laws; Policies; Audit and Examination; Insurance.

(a) Compliance with Laws;
(i) Generally. Each Party shall comply with Applicable Law in the performance of its obligations under this Agreement.
(ii) BSA/AML/OFAC Compliance. Each Party shall cooperate with the other Party in the implementation of FI’s Bank Secrecy Act, anti-money laundering, counter-terrorist financing, and OFAC compliance programs. To facilitate FI’s compliance with the foregoing requirements, Quilo shall develop, administer, and maintain a written anti-money laundering program consistent with the requirements of the federal Bank Secrecy Act and its implementing rules as interpreted and enforced by FinCEN as applicable to banking institutions (31 C.F.R. Part 1020), in each case to the extent applicable; and procedures for complying with U.S. sanctions laws and other requirements enforced by the OFAC.
(iii) Fraud Prevention. To the extent applicable with respect to any of the Quilo Services, the Parties shall cooperate with respect to any implementation of a fraud prevention program designed to detect, prevent, and mitigate identity theft and other fraud in connection with the Quilo Services. In such cases, the fraud prevention program shall be designed to comply with the provisions of 12 CFR 41.90-41.91 and 571.90-571.91 as well as the Interagency Guidelines on Identity Theft Detection, Prevention, and Mitigation set forth at Appendix J to 12 CFR Part 41, as applicable to each of the Quilo Services.

(b) Policies and Procedures.
(i) Operating Policies and Procedures. Each Party shall maintain written policies and procedures associated with fulfilling its responsibilities and obligations contained in this Agreement and required by Applicable Law.
(ii) Corrective Action Plans.  Quilo shall prepare a written response to FI (a “Response to Audit Letter”) to all criticisms, recommendations, deficiencies, and violations of Applicable Law of it identified in reviews conducted by or on behalf of FI or any Governmental Authority (“Audit Findings”). The Response to Audit Letter shall be delivered to FI within thirty (30) days of Quilo’s receipt of such Audit Findings, unless directed otherwise by a Governmental Authority.
(iii) Periodic Program Review.  Each Party will use its commercially reasonable efforts to promptly comply with all reasonable diligence and information requests from the other Party in connection with this Agreement. At each Party’s request, the Parties shall meet from time to time to review the Agreement and each of their respective performance and to attempt to resolve any issues the Party may have with the other Party’s compliance with this Agreement or Applicable Law.  

(c) Audit and Examination. During the Term and for the applicable retention period, FI and Quilo shall keep all necessary records in order to comply with this Agreement and Applicable Laws. Quilo agrees that FI (either directly or by the use of accountants or other agents or Representatives subject to entering into nondisclosure agreements reasonably acceptable to Quilo) may, once per calendar year, audit, inspect and review its files, records and books that pertain to duties and obligations under this Agreement and which FI may reasonably require in order to comply (or ensure compliance) with Applicable Law or to respond to any examination by or request from a Governmental Authority. Quilo also agrees that any Governmental Authority with supervisory authority over FI may inspect, audit, and examine all of Quilo’s facilities, records and personnel relating to the Program at a time so as to minimize disruption to Quilo’s business upon reasonable notice and may make abstracts from Quilo’s books, accounts, data, reports, papers, and computer records to the extent applicable to the Program or this Agreement. Quilo shall make all such facilities, records, personnel, books, accounts, data, reports, papers, and computer records available to FI or such Governmental Authority, as applicable, for the purpose of conducting such inspections and audits. All such audits, reviews, inspections or examinations by FI described in this Section 9(c) shall be conducted at FI’s sole cost and expense and upon reasonable notice during Quilo’s regular business hours and conducted so as to not unduly interfere with Quilo’s normal business operations. With respect to new agreements entered into after the Effective Date, Quilo shall also secure the right of any Governmental Authority to exercise similar audit and examination rights in connection with any subcontractor or third party that is fulfilling Material Duties to Quilo under the Program.

(d) Insurance.
(i) Coverage. Each Party shall, at its own cost and expense, obtain and maintain in full force and effect throughout the Term, with financially sound and reputable insurers having A.M. best ratings of at least A- (VII) or better, the limit of which shall be no less than $1,000,000 per occurrence or $2,000,000 aggregate, for each of the following categories:
(A) a comprehensive general liability policy, including contractual liability, bodily injury, death and/or property damage;
(B) a comprehensive crime policy, including employee dishonesty/fidelity coverage, with respect to the work or operations done in connection with this Agreement;
(C) a cyber policy;
(D). a comprehensive errors and omissions policy; and
(E) a workers’ compensation policy in at least the minimum amounts required by any Applicable Law
(ii) Limitations. Notwithstanding the foregoing, Quilo may fulfill its obligations under this Section by being appointed as an additional insured on policies obtained and maintained by its Affiliates that meet the requirements of this Section. A copy of each policy and any certificates of insurance evidencing the existence of such policy shall be provided to the other Party from time to time upon reasonable request.  Each Party shall promptly provide notice to the other Party in the event of any notice of nonrenewal or cancellation, lapse, termination or reduction in any insurance coverage required to be maintained pursuant to this Section.


10. Use of Marks.

(a) Use of Marks.
The Parties intend and agree that Quilo shall have the right to use FI’s Marks in furtherance of Quilo’s administration and provision of the Program and related Quilo Services. For the avoidance of doubt, Quilo shall be entitled to use the FI’s Marks (including name) in disclosures and information associated with the Program, and Quilo may use FI’s Marks in its disclosure of the FI’s Lending Services as part of the Quilo Services to Applicants. Except for the foregoing rights of Quilo, if a Party believes it necessary to use the other Party’s Marks in connection with this Agreement, the Party seeking to use the other Party’s Marks must first obtain such other Party’s written approval, which shall not be unreasonably withheld, for all materials bearing such other Party’s Marks prior to the use of such materials. Prior to such use, Quilo will provide the proposed materials that will contain the FI’s name to FI for review and approval. FI will act in good faith to review such materials and approve or reject such use within ten (10) Business Days. If FI rejects such use, FI shall provide the good faith reasons for doing so and allow Quilo to resubmit proposed materials.

(b) Rights. Except for the permissive uses identified herein, each Party acknowledges the ownership right of the other Party in the Marks of such other Party and agrees that all use of the other Party’s respective Marks shall inure to the benefit, and be on behalf of, the other Party, respectively. Except for the permissive uses identified herein, each Party acknowledges that its utilization of the other Party’s Marks will not create in it, nor will it represent it has, any right, title or interest in and to such Marks. Each Party agrees not to do anything to contest or impair the existing intellectual property rights in the Marks of the other Party.


11. Ownership; License. Nothing in this Agreement shall be construed or interpreted as granting to FI any rights or licenses, including any rights of ownership or any other proprietary rights, in or to the Program or the Quilo Services, Program Information, any other software or technology of Quilo or its licensors, or any intellectual property rights embodied within any of the foregoing, except that, subject to FI’s compliance with the terms and conditions of this Agreement, Quilo grants FI a limited, revocable, non-exclusive, non-transferrable, non-sublicensable license, during the Term, to access and use the Program and Workspace only as expressly permitted by and in accordance with this Agreement. FI’s use of and activation of an account on Program or Workspace may be subject to additional terms and conditions applicable to the Program or Workspace, including without limitation Quilo’s designated terms of use and privacy policy.

12. Representations and Warranties. Each Party’s representations and warranties in this Agreement are deemed to be made as of the Effective Date and with continuing effect during the Term.

(a) Organization; Authority. Each Party represents and warrants to the other Party that it is duly organized, validly existing and in good standing under Applicable Law and has full power and authority to enter into and carry out the provisions of this Agreement.

(b) Binding Agreement. Each Party represents and warrants to the other Party that this Agreement: (i) contains legal and valid obligations binding upon such Party; and (ii) is enforceable in accordance with its terms. The execution and delivery of this Agreement and the performance of its terms by such Party does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any Applicable Law.

(c) Licenses. Each Party represents and warrants to the other Party that it has and will maintain in good standing all necessary authorities, licenses, approvals and means required by Applicable Law to conduct its business.


13. Limitation of Liability; Damages; Risk Allocation; Disclaimer of Warranties.

(a) L
imitation of Liability. EACH PARTY’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ALL LOSS, DAMAGE OR OTHER HARM TO CLIENT IS LIMITED TO AN AMOUNT EQUAL TO THE AGGREGATE FEES PAID TO QUILO UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE SUCH LOSS, DAMAGE OR OTHER HARM AROSE. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LOSS, DAMAGE OR OTHER HARM TO CLIENT ARISING FROM, OR RELATED TO, A CLAIM FOR: (A) ANY ACT OF FRAUD BY EITHER PARTY; (B) CRIMINAL ACTIVITY BY EITHER PARTY; (C) BREACH OF CONFIDENTIALITY OBLIGATIONS IN THIS AGREEMENT BY EITHER PARTY; (D) GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF EITHER PARTY; (E) EITHER PARTY’S DISCLOSURE OF PERSONAL DATA IN BREACH OF THIS AGREEMENT OR SECURITY BREACHES EXPOSED BY EITHER PARTY; (F) INFRINGEMENT OF EITHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; (G) FAILURE OF BANK TO ADVANCE OR DISBURSE FUNDS RELATED TO ITS LENDING SERVICES AS REQUIRED UNDER THIS AGREEMENT; OR (H) INDEMNIFICATION OBLIGATIONS OF EITHER PARTY UNDER THIS AGREEMENT

(b) Damages. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND UNLESS OTHERWISE AGREED, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, EVEN IF SUCH PARTY HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE LIMITATIONS SET FORTH IN THIS SECTION 13(b) SHALL NOT APPLY TO OR IN ANY WAY LIMIT THE INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT.

(c) Risk Allocation. Each Party agrees that the limitations of liability and exclusions set forth in this Section 13 are a reasonable allocation of risk. These limitations shall apply notwithstanding any failure of essential purpose or of any failure or inadequacy of remedy. Each Party acknowledges and agrees that the pricing and the other terms of this Agreement are predicated on the limitations of liability set forth in this Section 13 and acknowledges that the other Party would not enter into this Agreement without such limitations. Each Party shall have no liability for Losses which result from an act or omission of the other Party.

(d) Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL PRODUCTS AND SERVICES PROVIDED BY EACH PARTY HEREUNDER, INCLUDING ALL DOCUMENTATION AND ALL UPDATES OR MODIFICATIONS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE LENDING SERVICES, THE QUILO SERVICES, THE PROGRAM, OR ITS CONFIDENTIAL INFORMATION AND TECHNOLOGY PROVIDED OR USED HEREUNDER, AND EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS NOT EXPRESSLY SPECIFIED IN THIS AGREEMENT, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.


14. Indemnification.

(a) Indemnification by Quilo. Quilo shall indemnify, defend and hold harmless FI, its parent, subsidiaries or Affiliates, and their respective officers, directors, employees and permitted assigns, against any and all out-of-pocket expenses or losses, liabilities, damages, costs or other direct expenses (collectively, “Losses”) from any third party claims or counterclaims arising from any action, claim, demand, allegation or proceeding (such third party claims, “Claims”) made or brought as a result of: (i) any breach of a warranty, representation or covenant made by Quilo in this Agreement; (ii) any Security Breach that is: (a) directly or indirectly caused by Quilo or its Representatives or vendors or contractors; or (b) directly or indirectly attributable to access to data maintained by Quilo and which is due to unauthorized access directly caused by Quilo or its Representatives or vendors or contractors; and/or (iii) a Claim that Quilo’s Program or its services or systems infringe upon any third-party intellectual property right; provided, that the foregoing provisions shall not apply to the extent such Losses or Claims result from (A) an act of fraud or criminal activity by FI or its Representatives, (B) FI’s or its Representative’s gross negligence or intentional misconduct or (C) the failure of FI or its Representatives to comply with, or to perform its or their obligations under, this Agreement or any Lending Services such as to give rise to such Loss or Claim.

(b) Indemnification by FI. FI shall indemnify, defend and hold harmless Quilo, its parent, subsidiaries or Affiliates, and their respective officers, directors, employees, and permitted assigns, against any and all Losses from any Claims made or brought as a result of: (i) any breach of a warranty, representation or covenant made by FI in this Agreement; (ii) any Security Breach that is: (a) directly or indirectly caused by FI or its Representatives or vendors or contractors; or (b) directly or indirectly attributable to access to data maintained by Quilo and which is due to unauthorized access directly caused by FI or its Representatives or vendors or contractors; (iii) any disbursement of proceeds related to a Loan or purchase of a participation interest in a Loan that is made in reliance on, or in conformance with, the Selected Underwriting Criteria; (iv) any act or omission relating to FI’s Lending Services or the Selected Underwriting Criteria; and/or (v) Claims by Applicants, Borrowers, former or prospective Applicants or Borrowers or any Governmental Authority relating to aspects of the Lending Services or Loans conforming with the Selected Underwriting Criteria; provided, that the foregoing provisions shall not apply to the extent such Losses or Claims result from (A) an act of fraud or criminal activity by Quilo or its Representatives, (B) gross negligence or intentional misconduct by Quilo or its Representatives, or (C) the failure of Quilo or its Representatives to comply with, or to perform its or their obligations under, this Agreement such as to give rise to such Loss or Claim.

(c) Indemnification Procedures.
(i) Right to Defend. If any Claim is commenced or asserted against a Party that gives rise, or any knowledge is received of a state of facts which, if not corrected, may give rise, to a right of indemnification under the provisions of subsections (a) or (b) above of the Party (the “Indemnified Party”), written notice of such Claim or facts shall promptly be given by the Indemnified Party to the Party from whom indemnification may be sought (the “Indemnifying Party”). The failure to give such notice shall not, however, relieve the Indemnifying Party of its indemnification obligations except to the extent that the Indemnifying Party is materially prejudiced thereby. The Indemnifying Party shall have the right to defend any such Claim in its name and at its expense, shall select the counsel for the defense of such Claim as approved by the Indemnified Party, and shall cooperate with the Indemnified Party in the conduct of the defense against such Claim; provided, however, that the Indemnifying Party shall not have the right to defend any such Claim if (i) it refuses to acknowledge fully its obligations to the Indemnified Party; (ii) it contests, in whole or in part, its indemnification obligations; (iii) it fails to employ appropriate counsel approved by Indemnified Party to assume the defense of such Claim or refuses to replace such counsel upon the Indemnified Party’s reasonable request; (iv) the Indemnified Party advises the Indemnifying Party that there are issues which could raise possible conflicts of interest between the Indemnifying Party and the Indemnified Party or that the Indemnified Party has claims or defenses that are separate from or in addition to the claims or defenses of the Indemnifying Party; or (v) such Claim seeks an injunction or cease and desist order; provided, further, that no Party may, as an Indemnifying Party or otherwise, defend against a Claim against another Party or select the counsel for the defense of such Claim if such Claim was brought by a Governmental Authority. In each such case, the Indemnified Party shall have the right to direct the defense of the Claim and retain its own counsel, and the Indemnifying Party shall pay the cost of such defense, including reasonable attorneys’ fees and expenses.
(ii) Indemnifying Party Election. If the Indemnifying Party elects and is entitled to compromise or defend such Claim it shall within thirty (30) days (or sooner, if the nature of the Claim so requires) notify the Indemnified Party of its intent to do so, and the Indemnified Party shall, at the expense of the Indemnifying Party, cooperate in the defense of such Claim. In such case, the Indemnified Party shall have the right to participate in the defense of any Claim with counsel selected by it. Except as provided in this Section, the fees and disbursements of such counsel shall be at the expense of the Indemnified Party.
(iii) Indemnifying Party Obligation. The Indemnifying Party shall have no obligation to pay the monetary amount of the settlement of any Claim entered into by the Indemnified Party without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed). Notwithstanding the Indemnifying Party’s right to direct the defense against any Claim, the Indemnifying Party shall not have the right to compromise or enter into an agreement settling any claim, suit, demand or action without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed).


15. Term and Termination.

(a) Term. The term of this Agreement shall commence on the Effective Date and shall continue until the date that is identified as the “Initial Term Conclusion Date” on the Order Form (the “Initial Term”), unless earlier terminated in accordance with this Agreement. This Agreement shall automatically renew with respect to the Program for additional two (2) year periods (each a “Renewal Term” and collectively with the Initial Term, the “Term”) until terminated by either Party as set forth in Section 15(b) below.

(b) Termination/Suspension.
(i) Either Party may terminate this Agreement as of the end of the Term by providing at least  one hundred and twenty (120) days’ written notice of non-renewal before the end of Term.
(ii) Either Party may terminate this Agreement if the other Party has materially breached this Agreement and does not cure such breach within twenty (20) Business Days after receipt of written notice.
(iii) This Agreement shall automatically terminate if Quilo (or a direct or indirect parent or holding company of Quilo): files a voluntary petition in bankruptcy or any pleading seeking any reorganization, liquidation, or dissolution under any law; admits or fails to contest the material allegations of any such pleading or involuntary petition in bankruptcy filed against it; has an order for relief or bankruptcy declaration entered against it under Applicable Law; is adjudicated as insolvent, or a receiver or liquidator is appointed for a substantial part of its assets; is the subject of or undertakes an abatement of the claims of creditors or an assignment for the benefit of the creditors, or any similar disposition of its assets under any law; or ceases to conduct its normal and customary business operations.
(iv) Notwithstanding Section 15(b)(ii) above, FI may terminate this Agreement:
(A) with immediate effect upon written notice if: (Y) a change in Applicable Law has occurred that precludes or materially interferes with FI’s ability to perform the Lending Services in compliance with Applicable Law, provided FI is not entitled to this termination right if it has not engaged in commercially reasonable efforts to comply with the change in Applicable Law; or (Z) FI’s provision of the Lending Services constitutes an unsafe or unsound banking practice as determined by a Government Authority; or
(B) with thirty (30) days’ prior written notice, during which period Quilo may cure the applicable change, if there is any material adverse change in Quilo’s financial position or business.
(v) Notwithstanding Section 15(b)(ii) above, Quilo may terminate this Agreement:
(A) With immediate effect upon written notice if: (X) a change in Applicable Law has occurred that precludes or materially interferes with Quilo’s ability to provide the Program or the Quilo Services as contemplated in this Agreement in compliance with Applicable Law, provided Quilo is not entitled to this termination right if it has not engaged in commercially reasonable efforts to comply with the change in Applicable Law; (Y) Quilo reasonably believes that FI’s provision of the Lending Services, or of FI’s other programs or business, does not comply with Applicable Law and FI is unable to or unwilling to adapt to comply with Applicable Law; or (Z) FI is unable to provide the Lending Services contemplated in this Agreement.  
(B) Immediately, in the event FI is deemed by the appropriate federal banking or credit union agency to be critically undercapitalized, is placed into conservatorship or receivership or proceedings are commenced and remain unstayed for a period of at least thirty (30) days to wind up, dissolve, liquidate or reorganize FI, files for any protections under bankruptcy or other insolvency law,  becomes insolvent or the subject of a bankruptcy proceeding, commits an act of bankruptcy, makes an assignment for the benefit of creditors, is subjected to the appointment by any Governmental Authority of any person to take charge of it or it’s assets or deposits or all or substantially all FI’s capital stock, assets or deposits are sold to another entity in connection with FDIC or NCUA receivership or a similar event.

(c) Effects of Termination.
(i) Accrued Rights and Obligations. Termination or expiration of this Agreement for any reason shall not release a Party from any liability or obligation that, at the time of such termination, has already accrued to the other Party or that is attributable to a period prior to such termination, nor shall it preclude a Party from pursuing any rights and remedies it may have under this Agreement or at law or in equity with respect to any breach of this Agreement.
(ii) Fees. Upon the termination or expiration of this Agreement, FI shall immediately pay Quilo all Fees due and remaining payable hereunder.
(iii) Effect on Services. Upon termination or expiration of this Agreement, all pending transactions under any of the Lending Services that have not yet been completed shall immediately be canceled. Notwithstanding anything contained in this Agreement to the contrary, to the extent that, pursuant to the Services, there are Loans originated and outstanding at the time of termination or expiration of this Agreement, the terms and conditions of this Agreement that are applicable to the origination, administration, servicing, and collection of the Loan shall survive for those applicable Loans until the Loans are paid off or are charged-off (with final resolution of collection proceedings by the Originator on the applicable Loan) in the ordinary course of business.

(d) Survival. Notwithstanding anything contained in this Agreement to the contrary, all of Quilo and FI’s respective obligations, representations and warranties under this Agreement which are not, by their express terms, fully to be performed while this Agreement is in effect, will survive the termination of this Agreement. In addition and without limitation, provisions will survive where necessary to give effect to their meaning, including: Sections 4 (Operating Account and Reserve Account), 7 (Confidential Information; Personal Data), 13 (Limitation of Liability; Damages; Risk Allocation; Disclaimer of Warranties), 14 (Indemnification), 15(c) (Effects of Termination), 16 (Resolution of Disputes), and 17 (Miscellaneous).


16. Resolution of Disputes.

(a) General.  FI and Quilo shall initially address any Dispute through informal meetings.  To the extent any Dispute cannot be resolved by discussions among the FI and the Quilo, either Party may refer such Dispute to the Chief Executive Officers of the respective Parties by sending a notice to the other Party that it wishes to have the Chief Executive Officers of the Parties (or a designated executive officer) resolve a Dispute.  Any Dispute that cannot be resolved by the Chief Executive Officers (or their designee) shall be resolved in accordance with the procedures set forth in this Section 16.  Each Party covenants to the other Party that it shall not resort to judicial remedies with respect to a Dispute except for relief in aid of arbitration (including maintenance of the status quo pending arbitration) and except as allowed pursuant to the provisions of this Section 16.

(b) Alternative Dispute Resolution.
(i) Informal Resolution.  In the event that any dispute or controversy arises out of or relates to this Agreement, the Parties hereby agree and acknowledge that they will attempt to privately resolve said dispute or controversy among themselves for a period of thirty (30) days after said dispute of controversy arises (the “Resolution Period”).  During the Resolution Period, the Parties acknowledge and agree that they shall not communicate or discuss the dispute or controversy with any outside or unrelated parties other than their respective legal counsel.  In the event that a dispute or controversy cannot be resolved within the Resolution Period, then the dispute or controversy may be addressed and resolved in a binding arbitration proceeding, as described below.  
(ii) Binding Arbitration.  After the completion of the Resolution Period, any remaining unresolved dispute or controversy arising out of or relating to this Agreement shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association, and judgment upon the award rendered by the arbitral tribunal may be entered in any court having jurisdiction thereof. The arbitration tribunal shall consist of a single arbitrator mutually agreed upon by the Parties, or in the absence of such agreement within thirty (30) days from the first referral of the dispute to the American Arbitration Association, designated by the American Arbitration Association. The place of arbitration shall New York City, New York unless the Parties shall have agreed to another location within fifteen (15) days from the first referral of the dispute to the American Arbitration Association. The arbitral award shall be final and binding. The Parties waive any right to appeal the arbitral award, to the extent a right to appeal may be lawfully waived. Each Party retains the right to seek judicial assistance: (i) to compel arbitration, (ii) for Provisional Relief, and (iii) to enforce any decision of the arbitrator, including the final award. The Parties understand that arbitration fees shall be split equally between claimant(s), on the one hand, and the respondent(s), on the other, however, the arbitrator shall have the discretion to order that the prevailing Party be reimbursed for the attorney’s fees, arbitration fees, and costs incurred.
(iii) Provisional Relief.  The Parties agree and acknowledge that either Party, in addition to any other rights or remedies which they may possess, shall be entitled to injunctive and other equitable relief to prevent or remedy a breach of this Agreement which may be requested from a state or federal court of competent jurisdiction if so required to prevent further or irreparable damage or injury (“Provisional Relief”).  However, this narrow exception to the Parties’ agreement to arbitrate shall in no way operate to invalidate or otherwise circumvent the agreement to arbitrate the Parties’ claims as set forth in this Agreement, nor shall a Party’s attempt to seek such relief be regarded a breach of this Agreement.
(iv) Confidentiality of Proceedings. The arbitration proceedings contemplated by this Section shall be as confidential and private as permitted by Applicable Law; provided, however, that the Parties are permitted to disclose the proceedings to accountants, legal counsel, professional advisors and Governmental Advisors. To that end, the Parties shall not disclose the existence, content or results of any proceedings conducted in accordance with this Section, and materials submitted in connection with such proceedings shall not be admissible in any other proceeding; provided, however, that this confidentiality provision shall not prevent a petition to vacate or enforce an arbitral award, and shall not bar disclosures required by any Applicable L
(v) WAIVER OF TRIAL BY JURY; CLASS ACTION WAIVERS; REPRESENTATIVE ACTIONS WAIVERS.  EACH PARTY ALSO, KNOWINGLY AND WILLINGLY, AND FOLLOWING CONSULTATION WITH COUNSEL, HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY RIGHTS TO A TRIAL BY JURY, CLASS ACTION, OR ACTION ON A REPRESENTATIVE BASIS FOR OTHER PARTIES OR PERSONS IN CONNECTION WITH ANY DISPUTE ARISING UNDER THIS AGREEMENT.

(c) Other Remedies.  Notwithstanding the foregoing:The Dispute resolution process described in this Section 16 shall not limit either Party’s right to give notice of termination or otherwise pursue its right to terminate this Agreement or other rights set forth in this Agreement.
(i) Exceptions.  Notwithstanding the foregoing, the Parties agree that the provisions of this Section 16 shall not apply with respect to any third-party claim in the event such third party:
(A)has initiated a lawsuit or other judicial, administrative, or arbitration proceedings against or involving either or both of the parties in which a Dispute will be resolved; or
(B) is a necessary participant in any judicial, administrative, or arbitration proceedings to resolve a Dispute and cannot be joined by either or both of the parties in a resolution of such Dispute pursuant to the procedures set forth in this Section 16 and as such the procedure set forth in this Section 16 is or will be ineffective as to such Dispute;
(C) provided, however, that the procedure set forth in this Section 16 shall apply in the event a Dispute in connection with the foregoing events set forth in this Section 16(c)(ii) relates to whether any Claims in connection with such third-party claim is indemnifiable by either Party.


17. Miscellaneous.

(a) Non-exclusivity. FI understands and agrees that the customer relationships with the Borrowers or Applicants established as a result of FI’s receipt of the Services are non-exclusive to FI, and each Party shall have the right to market other products and services to Borrowers based upon information obtained with respect to a Loan, or the Applicant’s application for a Loan, subject to compliance with Applicable Law; provided that FI shall not offer financing intended to prepay any Loan or compete directly with any Loan, unless Quilo has consented to such financing offer.  FI will share information with Quilo for such purposes based on the written authorization of the Applicant or Borrower to FI to share information with Quilo.

(b) Assignment.  Neither Party may assign or transfer this Agreement or its rights or obligations granted under this Agreement by operation of law, contract or otherwise, without the other Party’s prior written consent; provided, however, that either Party may, with the consent of the other Party, delegate any obligations under this Agreement or assign this Agreement to an Affiliate.  Any purported assignment in contravention of the foregoing sentence shall be null and void.  Notwithstanding the foregoing, either Party may assign this Agreement or its rights under this Agreement in connection with a sale of substantially all of its assets or a merger.  Such Party shall use reasonable efforts to give the other Party written notice of any such assignment, transfer or delegation, and if to do so would not cause such Party to be in breach of any obligation (including confidentiality obligations) to any third parties or Governmental Authority.  Except as stated in the next sentence, this Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the Parties.  No assignee for the benefit of creditors, custodian, receiver, trustee in bankruptcy, debtor-in-possession, or other Person or entity who takes custody of a Party’s assets or business, will have any right to continue or to assume or to assign this Agreement.

(c) Governing Law; Jurisdiction.  This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to its conflicts of laws principles.  Subject to the binding arbitration provisions set forth above, each Party irrevocably consents to the exclusive jurisdiction of the courts of the state and federal courts located in Wilmington, Delaware in connection with all proceedings related to this Agreement and waives any objection to venue in such courts.

(d) Publicity.  Neither Party shall issue any news release, public announcement, advertisement, or any other form of publicity in connection with this Agreement without first obtaining the written approval of the other Party.

(e) Independent Contractors. The Parties are independent parties, and the nature and extent of their arrangement is set forth in this Agreement and other written documents and agreements setting forth their rights, duties and obligations with respect to their various relationships. Unless otherwise agreed, Parties are independent contractors, and are not partners, and nothing contained in this Agreement shall be construed as creating a partnership, joint venture or any similar relationship other than as independent contracting parties.

(f) Further Assurances. Each Party shall execute all such further documents and instruments and to do all such further things as the other Party may reasonably request in order to give effect to and to consummate the transactions contemplated by this Agreement.

(g) Severability. If any provision of this Agreement conflicts with the law under which this Agreement is to be construed or is held invalid by a court with jurisdiction over the Parties, (i) such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with Applicable Law; and (ii) the remaining provisions of this Agreement will remain in full force and effect.

(h) Force Majeure. If any Party is unable to carry out the whole or any part of its obligations under this Agreement by reason of a Force Majeure Event, then the performance of the obligations under this Agreement of such Party as they are affected by such cause shall be excused during the continuance of the inability so caused, except that should such inability not be remedied within thirty (30) days after the date of such cause, any Party not so affected may at any time after the expiration of such thirty (30) day period, during the continuance of such inability, terminate this Agreement on giving written notice to such Party and without payment of a termination fee or other penalty.   To the extent that any Party not affected by a Force Majeure Event is unable to carry out the whole or any part of its obligations under this Agreement because a prerequisite obligation of the Party so affected has not been performed, the Party not affected by a Force Majeure Event also is excused from such performance during such period.  A “Force Majeure Event” as used in this Agreement shall mean an unanticipated event that is not reasonably within the control of the affected Party or its subcontractors (including, but not limited to, acts of God, pandemic (excluding the COVID-19 pandemic), acts of governmental authorities, strikes, war, riot and any other causes of such nature), and which by exercise of reasonable due diligence, such affected Party or its subcontractors could not reasonably have been expected to avoid, overcome or obtain, or cause to be obtained, a commercially reasonable substitute therefor.  No Party shall be relieved of its obligations hereunder if its failure of performance is due to removable or remediable causes which such Party fails to remove or remedy using commercially reasonable efforts within a reasonable time period.   Each Party rendered unable to fulfill any of its obligations under this Agreement by reason of a Force Majeure Event shall give prompt notice of such fact to the other Parties, followed by written confirmation of notice, and shall exercise due diligence to remove such inability with all reasonable dispatch.

(i) Headings; Construction. The captions and headings used in this Agreement are included for convenience only and shall not affect the meaning or interpretation of this Agreement. The term “including” and its variants shall mean “including without limitation.” Any references to laws or regulations are deemed to refer to such law or regulation as amended from time to time.

(j) Amendment; Waiver. This Agreement may not be modified except by written agreement dated after the date of this Agreement and signed by an authorized representative of each of the Parties. The failure of a Party to insist upon or enforce strict performance by the other Party of any provision of this Agreement, or to exercise any right under this Agreement, shall not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect.

(k) Cumulative Remedies. Except where otherwise specified, the rights and remedies granted to a Party under this Agreement are cumulative and in addition to, and not in lieu of, any other rights or remedies which a Party may possess at law or in equity.

(l) Notices. All notices delivered under this Agreement shall be in writing and deemed to be given (i) when actually received if delivered personally; (ii) two (2) days after the date deposited with the US Postal Service if sent by certified or registered mail; and (iii) one (1) day after the date delivered to a reputable next-day courier service (e.g., FedEx, UPS, DHL). A Party may change such address by giving notice in accordance with this Section. Notices shall be addressed to FI at the address set forth on the Order Form. Notices shall be addressed to Quilo at the following address: Qoosh Technology, Inc, 90 Bay St Lndg, Staten Island, NY 10301, Attn: Legal.

(m) Counterparts. This Agreement and/or the Order Form may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

(n) Entire Agreement. This Agreement (including the Order Form) constitutes the entire agreement between the Parties hereto with respect to its subject matter, supersedes all prior and contemporaneous agreements (oral or written) between the Parties with respect to that subject matter and may not be modified, amended or otherwise changed in any manner except by a writing executed by both Parties

(o) No Third-Party Beneficiaries. This Agreement does not confer upon any Person or entity other than the Parties any rights or remedies under this Agreement.

Loan Origination and Participation Service Schedule

This Loan Origination and Participation Service Schedule (“LOPS Schedule”) is issued pursuant to that certain Master Services Agreement by and between Quilo and FI (the “Agreement”).  

This LOPS Schedule is subject to the terms and conditions contained in the Agreement and is made a part thereof. Any term used by not otherwise defined herein shall have the meaning defined in the Agreement. In the event of any conflict or inconsistency between the terms of this LOPS Schedule and the terms of the Agreement, the terms of this LOPS Schedule shall prevail.


1. Designation of Underwriting Criteria; Interpretation of this LOPS Schedule.

a. Designation. FI shall designate from time to time the Available Underwriting Criteria that shall be the FI’s Selected Underwriting Criteria with respect to Loans.
b. Interpretation.
i. If FI opts-in as a “participant” in Loans as part of its Selected Underwriting Criteria, then the terms and conditions provided in this LOPS Schedule that are applicable to the “Participant” shall apply to FI in addition to any other terms and conditions applicable to FI hereunder, and for all purposes for those respective Loans, FI is bound by the terms of this LOPS Schedule that are applicable to the “Participant.”
ii. If FI opts-in as a “originator” in Loans as part of its Selected Underwriting Criteria, then the terms and conditions provided in this LOPS Schedule that are applicable to the “Originator” shall apply to FI in addition to any other terms and conditions applicable to FI hereunder, and for all purposes for those respective Loans, FI is bound by the terms of this LOPS Schedule that are applicable to the “Originator.”


2. Definitions. As used in this LOPS Schedule only, the following definitions apply:

FI’s Commitment” means the amount of funds, in U.S. Dollars, that is selected by FI as part of the Selected Underwriting Criteria and which represents the total amount of funds that FI is committing to provide to act as an Originator or Participant pursuant to the terms hereof.  

FI’s Portion” means FI’s applicable share of: (i) if it is acting as a Participant, Originator’s interest in the Loan or (ii) if it is acting as an Originator, its own interest in the Loan; and in either of (i) or (ii), such calculation being based on the FI’s Pro Rata Share.  

FI’s Pro Rata Share” means a fraction determined by Quilo in its sole discretion the numerator of which is the amount of FI’s Commitment which is used to purchase a particular Loan pursuant to Section 4 of this LOPS Schedule and the denominator is the Total Commitment.

FI Rate of Interest” means at any point in time the annual rate of interest specified in a Loan minus one percent (1%).

Loan Expenses” means the reasonable out-of-pocket expenses and costs incurred by the servicer (the originator with respect to the applicable Loan) directly associated with the Loan, including the payment of taxes, insurance, outside legal counsel fees and costs, accountants, costs associated with perfecting and maintaining a security interest in any collateral, costs associated with maintaining, preserving, repairing, or managing and operating any collateral and costs associated with enforcing any provision of the Loan Documents, including any foreclosure proceedings as well as any incurred in connection with any action taken pursuant to Section 4(d) of this LOPS Schedule, excluding general overhead expenses of the servicer.

Late Fee” means, with respect to any Defaulted Payment, an amount equal to the product of (i) the amount of a Defaulted Payment, (ii) the greater of 12% or an interest rate equal to the default per annum interest rate under the applicable Loan, if any, divided by 360 and (iii) the number of days the Defaulted Payment was late, including the original due date and the date payment in full (including the Late Fee) was made; provided however, notwithstanding anything herein to the contrary, the Late Fee shall never be less than $500.

Lien” means any mortgage, pledge, assignment, charge, encumbrance, lien, security title, security interest or other preferential arrangement.

Loan Documents” means the promissory notes, guarantees, indemnities, agreements, instruments and certificates and all other documents under which Originator has or obtains rights in connection with a Loan.

Obligors” means the Borrower and any other maker, endorser, surety, guarantor or other person now or hereafter liable for the payment or performance, in whole or in part, of the Loan or any other obligations or liabilities under the Loan Documents.

Originated Loan” has the meaning given to it in Section 4 of this LOPS Schedule.

Participating Interest” means the undivided fractional interest in a Loan owned by FI.

Total Commitment” means the amount that Quilo determines in its sole discretion to be the amount of participation interest available for purchase for a particular Loan purchased pursuant to Section 4 of this LOPS Schedule.


3. Quilo’s Role. Quilo is providing the Program, as well as ancillary services pursuant to the terms hereof such as services related to funding and payment settlements, including:

a. through Workspace, reviewal of Loan applications, obtain credit related information, decisioning, pricing, underwriting, electronic agreement signing, funds disbursement and servicing to FI;
b. promote the Program with channels and materials developed or sourced by Quilo and approved by FI and Quilo;
c. process applications on behalf of FI, with FI as an Originator, using FI’s selected underwriting credit criteria that FI may update through Workspace from time to time at its own discretion;
d. provide all required, FI-approved agreements and disclosures to borrowers;
e. using commercially reasonable efforts (i) to maintain and develop the network of manufacturers, merchants, providers, distributors, retailers, contractors, or installers of goods or services that have entered into agreements with Quilo under which Quilo provides clerical, ministerial, and administrative services related to the financing of consumers as a source for Loans to be made by FI pursuant to this Agreement, review, monitor and investigate such Persons for activities or business practices that could reasonably be expected to adversely affect the validity, enforceability or collectability of Loans made to consumers of such Persons, including the periodic review of delinquency and cumulative losses on Loans made to consumers through such Persons, and terminate, exclude and reject such Persons from the Program as a result of Quilo’s review, monitoring, and investigation; and
f. facilitate the flow of information related to Loans for indirect lending participation to other third-party credit unions and financial institutions.


4. Purchase and Sale of Participation.  
To the extent that there is a Loan available through the Platform which conforms to the Selected Underwriting Criteria (under which FI opts-in as a “Participant” or “Originator” in the Loan as part of its Selected Underwriting Criteria) and which Quilo designates through the Platform as attributable to FI (said Loan, the “Originated Loan”), then all of the following terms and conditions shall apply with respect to the Originated Loan:

a. Origination by Originator. To the extent FI is acting as an Originator:
i. FI will originate and fund the entire amount (subject to reimbursement of the pro rata amounts allocated to participant(s) if there are other participant(s) located by Quilo) of the Loan, and the Loan will reflect the FI as the lender in whole part. Notwithstanding the foregoing, if there are other participant(s) located by Quilo through the Program which desire to act as participant(s) in a loan matching the criterion of the Loan, then Originator shall immediately following the origination of the Loan, make the sale of the applicable participation interests desired by said participant(s) in accordance with Section 4(b) of this LOPS Schedule. Quilo makes no guarantees or warranties that there will be other participants that desire to act as a participant with respect to the specific Loan.
ii. FI agrees that the Loans will be originated pursuant to the form of Loan Documents that are posted on Workspace, and hereby adopts all such forms of the Loan Documents as its own. FI agrees that Workspace is hosting all original Loan Documents representing each Loan and all records required to be maintained for such Loans are to be maintained on Workspace at all times.
iii. FI will service, administer, and collect the Loan in accordance with the provisions hereof (including Section 4(d) of this LOPS Schedule), provided that FI must provide: (i) payment to Quilo of the Fees and other amounts due to Quilo under the terms of the Agreement; and (ii) to the extent that there are other participants on the Loan, payment for any amounts received, credited, recovered and collected on a Loan (including payment of principal, interest or other fees, charges or expenses pursuant to the Loan Documents, whether from Borrower or Obligor) to Quilo, for Quilo’s distribution the participant(s), on a pro rata basis based on the participant(s)’s respective ownership interest the Loan.
iv. FI will originate Loans through the Program using its Selected Underwriting Criteria which shall be competitive to a national bankcard average up to a maximum in aggregate outstanding principal balance of all outstanding Total Commitment.  Quilo can terminate this Agreement if the FI’s outstanding balance of Loans decreases by 15% over any three (3) month period or if the FI fails to originate Loans with an aggregate outstanding principal balance of at least 50% of the Total Commitment within twelve (12) months after the Effective Date.

b. Purchase and Sale of Participating Interest.
i. To the extent FI is acting as an Originator, immediately following the origination of the Loan described in Section 4(a) of this LOPS Schedule, if Quilo locates participant(s) for the respective Loan, FI, WITHOUT RECOURSE, does hereby sell, assign, set over and otherwise convey to another financial institution or lender who is receiving access through the Program as a participant, free and clear of all Liens, claims and encumbrances created or suffered by FI (other than pursuant to this LOPS Schedule), such participating financial institution’s or lender’s Portion of Originator’s right, title and interest in each Loan up to the participating financial institution’s or lender’s FI’s Participant Commitment. Each Participating Interest includes the right to receive FI’s Portion of all principal and interest payments and such other payments made in connection with the Loans. A Participating Interest also includes an undivided fractional ownership interest equal to FI’s Pro Rata Share in the Loan Documents, subject to the terms and conditions of this LOPS Schedule.  
ii. To the extent FI is acting as a Participant, to the extent that Quilo locates another participant(s) for the respective Loan, FI, WITHOUT RECOURSE, does hereby purchase from another financial institution or lender who is receiving access through the Program as a originator, free and clear of all Liens, claims and encumbrances created or suffered by said originator (other than pursuant to this LOPS Schedule), such participating FI’s Portion of Originator’s right, title and interest in each Loan up to the FI’s Participant Commitment. Each Participating Interest includes the right to receive FI’s Portion of all principal and interest payments and such other payments made in connection with the Loans. A Participating Interest also includes an undivided fractional ownership interest equal to FI’s Pro Rata Share in the Loan Documents, subject to the terms and conditions of this LOPS Schedule.  

c. Funding Obligations.
i. To the extent FI is acquiring a Participating Interest, Participant agree to pay any amount required to be paid by FI under this LOPS Schedule for such Participating Interest.  
ii. Quilo is authorized to direct or initiate a debit or withdrawal from the Operating Account or Reserve Account for any amount required to fund the FI’s Portion of each Loan. Each disbursement will be evidenced by Quilo’s records.
iii. Funding Obligations of Originator and Participant. If FI fails to fund a required loan advance, purchase price for a Participating Interest, expense advance or any other undisputed sum it is required to pay hereunder as and when required, Quilo may, at its option and in its sole discretion, direct or initiate a debit or withdrawal from the Operating Agreement Account or Reserve Account for funds, terminate this Agreement or the allocation of Participating Interests in Loans to FI without notice or affecting Quilo’s other rights to enforce FI’s obligations hereunder and Quilo may exercise any of its other rights and remedies hereunder and under Applicable Law.  Further, Quilo may, at its sole option, advance, or select another entity or Person to advance, any amount FI fails to remit without relieving the FI of its obligation to remit such amount to Quilo, and in such event, Quilo shall, to the full extent of any such advance made by it or another entity or Person selected by Quilo, at Quilo’s sole option, succeed to the Participating Interest of the FI in the amount advanced. The provision for a right of substitution specified in this Section 4(c) of this LOPS Schedule shall not be construed to limit the rights and remedies available to Quilo upon default by FI under this LOPS Schedule.

d. Loan Administration and Servicing; Servicing Standard and Access.
i. Loan Administration and Servicing.
1. FI agrees that the servicer appointed for each Loan shall be the Person or entity acting as the originator with respect to such Loan. FI agrees to the appointment of the originator (and to the extent that FI is acting as an Originator, then FI acknowledges and agrees to service and enforce the Loan in accordance with the terms hereof) with respect to the Loan to service and enforce the Loans in accordance with the terms of this Section. FI agrees that such servicer:
a. has the exclusive right, and must use reasonable efforts and diligence, to administer and service each Participating Interest, including taking appropriate action in connection with the collection of any and all amounts (including interest and principal payments, fees and expense reimbursements) due or collectible in connection with the Loan, and the enforcement, exercise and preservation of any rights and remedies with respect to the Loan and the Loan Documents as well as the retention of all rights with respect to enforcement, collection and administration of the Loans and servicing of the Loans from the date hereof until paid.
b. has the exclusive right to determine the appropriate course of action to be taken in connection any default under the Loan Document in connection with a Loan or the occurrence of any matter, event or development which impairs or could impair the collectability of such Loan, the enforceability of such Loan Documents or the prospective performance of the Borrower or any guarantor under such Loan Documents.
c. has the responsibility to implement any course of action it determines to be appropriate in its sole discretion and any decision of such servicer will govern irrespective of any rights or remedies of the participant(s) (including FI if acting as a participant) under Applicable Law.  
d. may contract with such parties as the servicer may deem appropriate in connection with any action taken or caused by the servicer in accordance with this Section 4(d) of this LOPS Schedule.
e. to the extent that at any time receives from or on behalf of any Obligor any moneys or other property as fees, charges, reimbursements, principal or interest on account of the Loan, from whatever source derived, including the exercise by such servicer of any Lien or right of set off with respect to any deposit balance or other property of any Obligor, such moneys or other property shall be received by servicer for the benefit of the applicable participant(s) and the originator with respect to such Loan, shall promptly be remitted by servicer to Quilo for distribution to the remaining participant(s) in the pro rata amounts owed to each of them reflecting their respective ownership interests.
f. Must pay and advance all Loan Expenses associated with the Loan and submit reasonably detailed receipts for such expenses to Quilo, and in which case Quilo will seek reimbursement from the remaining participant(s) for their respective participation interest on the Loan (if any), and if Quilo receives reimbursement from such other participant(s) (if any), then Quilo will provide such reimbursements to servicer; provided, however, that the servicer will not be entitled to reimbursement for amounts not actually received by Quilo or expended by FI.
ii. Servicing Standard and Access. Notwithstanding Section 4(d)(i) of this LOPS Schedule, if FI is acting as an Originator, FI: (a) will administer the interests in each Loan with the same commercially reasonable care it exercises with respect to similar transactions solely for its own account; (b) provide access to all records relating to the Loan and Loan Documents as Quilo may reasonably require to operate the Program and the Quilo Services; and (c) continue to comply with its obligations under Section 4(a)(iii) of this LOPS Schedule.  FI shall dedicate adequate staff resources to perform its foregoing obligations and cooperate with Quilo to resolve any technical, business and compliance issues related to such services in accordance with FI’s obligations hereunder.

e. Payments.
i. To the extent that FI is acting as a Participant, then the following apply:
1. Within one (1) Business Day after Quilo receives from the servicer (the originator with respect to such Loan) payments of principal or interest on a Loan, Quilo shall credit FI’s Operating Account an amount equal to: the FI Rate of Interest in connection with FI’s Participating Interest, which rate may be less than the rate of interest and fees payable by the Borrower on the Loan (FI agrees that any interest and fees payable on or in connection with FI’s Participating Interest in the Loan in excess of the FI Rate of Interest shall be retained by Quilo as compensation for servicing the Loan).
2. Upon request by Quilo, FI agrees to promptly pay to Quilo the Loan Expenses in connection its respective percentage interest in the Loan.
ii. Quilo has no obligation to make any payments to FI under this Section 4(e) of this LOPS Schedule or otherwise under this LOPS Schedule, except from amounts actually received by Quilo on a Loan.  If any payment on a Loan described in Section 4(e)(i) of this LOPS Schedule or otherwise under this LOPS Schedule that has been received or applied by Quilo is rescinded or must be returned or released by Quilo for any reason or if Quilo does not receive final payment of a check or draft on which basis Quilo has made a payment to FI in accordance with LOPS Schedule, upon one (1) Business Day’s notice from Quilo, FI must promptly return said payment to Quilo.
iii. Notwithstanding anything to the contrary in this Section 4(e) of this LOPS Schedule, Quilo may and is hereby authorized by FI to withhold and retain from FI any amount then due from FI to Quilo under any provision of the Agreement.

f. Records and Reports.  To the extent that FI is acting as a Participant, Quilo has or will have when a Loan is made in its possession all original Loan Documents representing each Loan and all records required to be maintained for such Loans and will provide, upon request, access thereto at any reasonable time during normal business hours pursuant to Applicable Law and will deliver copies of any such instructions and records to FI at FI’s reasonable request, provided that Quilo may satisfy such of its obligations by posting scanned or electronic copies of the Loan Documents and records to Workspace. Quilo shall keep and maintain files and records of matters pertaining to the Loans in a professional manner with said files and records available for inspection (which may be through Workspace) by FI upon reasonable request by FI.  

g. Due Diligence; Risks.  
i. To the extent FI is acting as a Participant, FI represents, warrants, acknowledges and agrees that the offer and sale of each Participating Interest to FI is without recourse to, if any, all other participant(s) and the originator with respect to such Loan, Quilo or any their respective Affiliates or Representatives.
ii. FI represents, warrants, acknowledges and agrees that:
1. It is entering into this LOPS Schedule and purchasing each Participating Interest or originating each Loan in reliance on its own independent investigation of: (a) each Borrower’s financial condition and creditworthiness pursuant to its Selected Underwriting Criteria; and (b) the form and substance of the Loan Documents to the extent deemed necessary or advisable by FI.
2. It is not entering into this LOPS Schedule and purchasing each Participating Interest or originating each Loan in reliance on any information, representation or advice thereon provided by: (a) other participant(s) (if any), Quilo or any their respective Affiliates or Representatives, to the extent that FI is acting as an Originator; or (b) Originator, other participant(s) (if any), Quilo or any their respective Affiliates or Representatives, to the extent that FI is acting as a Participant.
3. None of the following make any representation or warranty about credit quality, rating or value of the Borrower, the Loan Documents or the Loan: (a) other participant(s) (if any), Quilo or any their respective Affiliates or Representatives, to the extent that FI is acting as an Originator; or (b) Originator, other participant(s) (if any), Quilo or any their respective Affiliates or Representatives, to the extent that FI is acting as a Participant.
4. The credit quality, rating and value of the Borrower and the Loan are subject to sudden change and that no such change entitles it in any way to rescind or revoke any part of this LOPS Schedule or the purchase of a Participating Interest or origination of a Loan.  Such purchase or origination is irrevocable and shall not be canceled.
5. FI will continue to make its own credit decisions, including pursuant to its Selected Underwriting Criteria, in connection with each Loan and this LOPS Schedule, based on such documents and information as FI deems appropriate at the time and independently and without reliance on any of: (a) other participant(s) (if any), Quilo or any their respective Affiliates or Representatives, to the extent that FI is acting as an Originator; or (b) Originator, other participant(s) (if any), Quilo or any their respective Affiliates or Representatives, to the extent that FI is acting as a Participant.
6. FI agrees that, except as expressly set forth and addressed to it in Section 4(j) of this LOPS Schedule, no Person or entity has made any representations or warranties to it and that no act by any of other Person or entity before or after the date of this LOPS Schedule, including any review of the financial condition or affairs of a Borrower, may be deemed to constitute any representation or warranty by any other Person or entity to FI.

h. Loan Closing; Requirements.  
i. FI:
1. Authorizes Quilo to act as its respective service provider to market the Program and each Loan conforming to its respective Selected Underwriting Criteria.
2. May not take part in the administration or servicing of any Loan, except as provided herein if it is acting as an originator with respect to a particular Loan and only in accordance with the provisions provided herein with respect to its rights to service.
3. Authorizes Quilo to disburse proceeds of the Loan to the Borrower (or Borrower’s designated recipient) its behalf, consistent with its respective Participation Interest, pursuant to the Loan Documents for the purposes set forth in the Loan Documents (for the avoidance of doubt, such disbursement is reimbursable to Quilo and/or Quilo may directly withdraw amounts for such disbursement from FI’s Operating Account or Reserve Account).
4. Agrees that, notwithstanding anything to the contrary contained herein, Quilo shall have no liability to FI if the proceeds of the Loan are not used by the Borrower for Borrower’s stated purposes or for any other violation, breach or default by the Borrower of the terms or conditions under the Loan Documents.

i. Quilo Warranties.  
i. Quilo hereby remakes each of the representations and warranties made by it under Section 12 of the Agreement as of the date FI purchases each Participating Interest or originates each Loan.
ii. To the extent that FI is acting as a Participant, Quilo hereby represents and warrants to FI as of the date FI purchases each Participating Interest or originates each Loan that Quilo has received the following representations and warranties from the originator with respect to such Loan:
1. The originator is duly organized, validly existing and in good standing under Applicable Law and has full power and authority to enter into and carry out the provisions of the agreement by and between the originator and Quilo.
2. The agreement by and between the originator and Quilo: (i) contains legal and valid obligations binding upon such originator; and (ii) is enforceable in accordance with its terms. The execution and delivery of said agreement and the performance of its terms by the originator does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any Applicable Law.
3. To the originator’s actual knowledge, the originator is or is entitled to be the owner of the relevant Loan and Loan Documents, free and clear of any Lien, encumbrance or security interest created or suffered by Originator;
4. The originator has the right to sell the Participating Interests;
5. To the originator’s actual knowledge, no claims or defenses to the enforcement of the relevant Loan have been asserted;
6. To the originator’s actual knowledge, all of the terms, conditions and provisions of the relevant Loan Documents as amended to the date of the applicable funding have been made available to Quilo for, if any, the other participant(s)’ review, and since such funding, there has been no agreement to make any alteration, modification or waiver of the Loan Documents in any material respect except as Originator has notified Quilo;
7. All information provided to Quilo for if any, the other participant(s)’ review pertaining to the Borrower’s payments and outstanding indebtedness under the Loan was a true and correct reflection of the originator’s books and records regarding the Loan as of the applicable date;
8. The originator has access to (or will have access to prior to, if any, the other participants’ funding) copies of one or more fully executed counterparts of the relevant Loan Documents; and
9. There are no actions, suits or proceedings against, or investigations of the originator pending, or, to the master par knowledge, threatened, that (A) would result in any material adverse change in its business, operations, financial condition, properties or assets, (B) would result in any material impairment of its rights or ability to carry on such business substantially as now conducted, (C) calls into question the validity of the originator’s agreement with Quilo or the Loans, or of any action taken or to be taken in connection with its obligations contemplated herein, or (D) would materially impair the originator’s ability to perform under the terms of its agreement with Quilo.
iii. To the extent that FI is acting as an Originator, Quilo hereby represents and warrants to FI as of the date FI sells each Participating Interest to a participant that Quilo has received the following representations and warranties from the participant making the purchase with respect to such Loan:
1. The participant is duly organized, validly existing and in good standing under Applicable Law and has full power and authority to enter into and carry out the provisions of the agreement by and between the participant and Quilo.
2. The agreement by and between the participant and Quilo: (i) contains legal and valid obligations binding upon such participant; and (ii) is enforceable in accordance with its terms. The execution and delivery of said agreement and the performance of its terms by the participant does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any Applicable Law.
3. The participant has the financial ability and legal authority to purchase the Participating Interest.
4. The participant has the right to make and purchase and originate consumer loans in general, and the Participating Interest in particular; and
5. The participant has made its own independent investigation of the financial condition and affairs of the Obligors and Borrowers and the form of the Loan Documents.

j. FI Warranties.  FI hereby remakes each of the representations and warranties made by it under Section 12 of the Agreement as of the date it purchases each Participating Interest or originates each Loan. In addition, FI represents and warrants to the following as of the date it purchases each Participating Interest or originates each Loan:
i. FI has the financial ability and legal authority to fund FI’s Selected Underwriting Criteria (including the FI’s Participant Commitment) and maintains the minimum amounts necessary in the Operating Account and Reserve Account in accordance with the Agreement;
ii. FI has the right to make, purchase, sell and originate consumer loans in general, and the Participating Interest in particular;
iii. FI has made its own independent investigation of the financial condition and affairs of the Obligors and Borrowers as well as the Selected Underwriting Criteria and the form of the Loan Documents; and
iv. FI expressly acknowledges that, except as specifically set forth and addressed to it in Section 4(j) of this LOPS Schedule, Quilo has made no warranties or representations, express or implied, with respect to the Loan or the Loan Documents.

k. Originator Warranties. To the extent that it is acting as an Originator, FI represents and warrants as of the date that a participant purchases each Participating Interest:
1. To its actual knowledge, FI is or is entitled to be the owner of the relevant Loan and Loan Documents, free and clear of any Lien, encumbrance or security interest created or suffered by FI;
2. FI has the right to sell the Participating Interests;
3. To FI actual knowledge, no claims or defenses to the enforcement of the relevant Loan have been asserted;
4. To FI’s actual knowledge, all of the terms, conditions and provisions of the relevant Loan Documents as amended to the date of the applicable funding have been made available to Quilo for, if any, the other participant(s)’ review, and since such funding, there has been no agreement to make any alteration, modification or waiver of the Loan Documents in any material respect except as Quilo has notified, if any, the other participant(s);
5. All information provided to Quilo for, if any, the other participant(s)’ review pertaining to the Borrower’s payments and outstanding indebtedness under the Loan was a true and correct reflection of FI’s books and records regarding the Loan as of the applicable date;
6. FI has access to (or will have access to prior to, if any, the other participant(s)’ funding) copies of one or more fully executed counterparts of the relevant Loan Documents; and
7. There are no actions, suits or proceedings against, or investigations of FI pending, or, to FI’s knowledge, threatened, that (A) would result in any material adverse change in its business, operations, financial condition, properties or assets, (B) would result in any material impairment of its rights or ability to carry on such business substantially as now conducted, (C) calls into question the validity of this agreement with Quilo or the Loans, or of any action taken or to be taken in connection with its obligations contemplated herein, or (D) would materially impair FI’s ability to perform under the terms of its agreement with Quilo.

l. Participant Warranties. To the extent that it is acting as a Participant, FI represents and warrants as of the date that FI purchases each Participating Interest:
1. FI has the financial ability and legal authority to purchase the Participating Interest.
2. FI has the right to make and purchase and originate consumer loans in general, and the Participating Interest in particular; and
3. FI has made its own independent investigation of the financial condition and affairs of the Obligors and Borrowers and the form of the Loan Documents.

m. Quilo’s Responsibilities and Standards of Care. Quilo has no responsibilities or duties to FI in respect of a Loan not expressly set forth in this LOPS Schedule.  Quilo:  (i) makes no warranty or representation, express or implied, except as it expressly sets for forth for the particular recipient of said warranty or representation in Section 4(j) of this LOPS Schedule, and will not be responsible for any statement, warranty or representation made by the Borrower or any other person or entity in connection with the Loan, the Loan Documents or for the financial condition or business affairs of the Borrower or any person or entity liable for the payment of any obligations under, or performance of, the Loan Documents; (ii) will not be responsible for the performance or observance of any term, covenant or condition of the Loan Documents on the part of the Borrower or any other person or entity liable for the payment of any obligations under, or performance under, the Loan Documents and will have no duty to inspect the property or books and records of the Borrower; (iii) makes no warranty or representation as to, and will not be responsible for, the due execution, validity, enforceability, genuineness, authenticity or collectability of the Loan, the Loan Documents; (iv) will incur no liability under or in respect of the Loan Documents by acting in reliance on any resolution, notice, consent, certificate, instruction letter, statement, order or other document or conversation by telephone or otherwise believed by it to be genuine and correct and to have been signed, sent or made by the proper person or persons or entity; and (v) may accept deposits from, lend money to, and generally engage in other transactions with the Borrower or any other person or entity liable for the payment of any obligations under, or performance under, the Loan Documents as if it were not performing the duties specified herein, and Quilo may accept fees and other compensation for services rendered in connection therewith without having to account for the same to FI.

n. Further Transfers of Interests in a Loan.
i. FI acknowledge that Quilo or other financial institutions or lenders who are receiving access through the Program may sell further participations or interests in the Loans under terms similar or dissimilar to those set forth herein.  No such sale will affect the rights or obligations of the FI except as otherwise provided under this LOPS Schedule.
ii. FI may not, without Quilo’s written consent, delegate to any other person all or part of FI’s obligations to purchase a Participating Interest or originate a Loan or to contribute the FI’s Portion of disbursements or expenditures in connection with a Loan, other than to an Affiliate of FI.  Provided that FI does not also delegate its obligation to purchase a Participating Interest or originate a Loan or to contribute the FI’s Portion of disbursements or expenditures in connection with a Loan without Quilo’s consent, FI may sub-participate or otherwise transfer all or part of its Participating Interest in a Loan or Loans.  Quilo and FI agree that in the case of any such sub-participation or other transfer by FI, Quilo is entitled to deal solely with FI and has no duties or other obligations to the sub-participant or any other transferee with respect to any matter relating to the Borrower, the sub-participated or transferred Loan, the related Loan Documents or this LOPS Schedule.  Without limiting the generality of the foregoing, FI acknowledges and agrees that Quilo has no duty or obligation whatsoever to remit principal, interest or other payments to, to consult with or notify, to obtain the approval of, to provide reports or other information to or to deal in any manner with any sub-participant or other transferee of FI. FI agrees to indemnify and hold harmless Quilo, its parent, subsidiaries or Affiliates, and their respective officers, directors, employees and permitted assigns against any and all Losses from any Claims made or brought as a result of any delegations or sub-participations.

o. FI’s Default.  
i. FI Defaults.  The occurrence of any of the following events with respect to Participant or Originator is referred to as a “FI Default”:
1. Any breach or violation by FI of the Agreement.
2. An event triggering the right of Quilo to terminate the Agreement pursuant to Section 15 of the Agreement.
3. FI fails to timely originate or purchase all or any portion of its Participating Interest or fails to pay any amounts due when and as required under this Agreement (any such amount, a “Defaulted Payment”).
ii. Quilo’s Remedies. If a FI Default occurs, then Quilo may, but is not obligated to, in its sole discretion and in addition to Quilo’s other legal and equitable rights and remedies:
1. withhold and apply any and all amounts otherwise payable to FI under this Agreement in such order of priority as Quilo may determine in its sole discretion to collect from FI and pay to Quilo:
a. all Late Fee(s);
b. all Defaulted Payment(s);
c. attorney’s fees (including the allocated costs of in-house counsel) and other costs, expenses or disbursements incurred or made by Quilo in connection with Defaulted Payment(s) or for which FI has a reimbursement obligation in accordance with this Agreement; and
d. all other amounts that are then payable by FI to Quilo.
2. (a) purchase (through itself or its designee) all or a portion of FI’s Participating Interest on a dollar-for-outstanding-dollar basis; or (b) if the undisputed Defaulted Payment is late by two (2) Business Days or more or if a FI Default has otherwise occurred, sell FI’s Participating Interest to any party for the then-prevailing market price, as reasonably determined by Quilo in good faith, and the payment of such market price amount to the FI and the execution by the purchaser of such documentation as is satisfactory to Quilo in form and substance will effect the transfer of said Participating Interest to the purchaser with no other sums being payable to FI and no other action being necessary with respect to FI.
iii. The parties agree that the consequences of a FI Default are difficult to predict and quantify and that the Late Fee and other remedies specified above are measures reasonably calculated to reimburse Quilo for the risks, costs and expenses of administering a Defaulted Payment; provided however the collection and acceptance of said Late Fee by Quilo shall not limit or otherwise impair the right of Quilo to also take any action set forth in this Section.  Quilo shall have the right to maintain an action for specific performance against the FI to enforce Quilo’s rights under this Section.

p. No Brokers.  FI warrants that it has not had and will have no dealings with any agent or broker in connection with the negotiation or performance of this Agreement or the sale, purchase or origination of a Participating Interest or Loan pursuant to the provisions hereof and hereby agree to indemnify and hold Quilo harmless from any cost, expense or liability for any compensation, commission or charges claimed by any agent or broker with respect to this Agreement or the sale, purchase or origination of a Participating Interest or Loan pursuant to the provisions hereof.

q. Securities Laws; No Partnership, Joint Venture or Trust.  
1. To the extent that FI is acting as an Originator, FI releases all participant(s), Quilo and any their respective Affiliates and Representatives to the maximum extent permissible under Applicable Law from any liability under Applicable Law (including state or federal securities laws) arising from the failure of any of said Persons or entities to register the sale, purchase or origination of a Participating Interest or Loan.
2. To the extent that FI is acting as a Participant, FI releases the originator, other participant(s), Quilo and any their respective Affiliates and Representatives to the maximum extent permissible under Applicable Law from any liability under Applicable Law (including state or federal securities laws) arising from the failure of any of said Persons or entities to register the sale, purchase or origination of a Participating Interest or Loan.
3. FI acknowledges and agrees that neither the Participating Interests nor the respective interests of the, if any, originator or other participant(s) with respect to the Loans, nor any other documents evidencing the same, shall be deemed to be securities within the meaning of the Securities Act of 1933 or the Securities Exchange Act of 1934, or within the meaning of the securities law of any state, and if the same were to be judicially determined to the contrary, such security is exempt from registration or qualification.  
4. FI further acknowledges and agrees that this Agreement and the purchase, sale or origination of a Participating Interest or Loan is not intended to create, and is not to be characterized as, (i) a partnership or joint venture between Quilo and FI or among Quilo, FI or any other-participant(s) nor (ii) a trust or other arrangement creating a fiduciary relationship between Quilo and FI or among Quilo, FI or any other participant(s).  This Agreement shall not be deemed to constitute or represent a pledge of any interest in the Loan by Quilo to FI or a loan from FI to Quilo, and nothing herein shall create any fiduciary relationship between or among said parties.

r. Setoffs. Quilo and FI may have previously extended and may hereafter extend credit other than the Loan to Obligors, may have previously conducted and may hereafter conduct other banking business with Obligors and may have previously received and may hereafter receive security and deposits in connection with such other extension of credit and other banking business.  Neither Quilo nor FI shall be required to exercise any right of set off against any Obligor.  Quilo or FI may independently collect for their separate accounts any (1) money or other property received from any Obligor in payment of a separate debt or realized from collateral for such separate debt or (2) set off in connection with a separate debt of any Obligor.


5. Limitations; Indemnification.

a. FOR THE AVOIDANCE OF DOUBT, THERE SHALL BE NO OBLIGATION FOR QUILO TO MAKE AVAILABLE OTHER FINANCIAL INSTITUTIONS OR LENDERS THROUGH THE PROGRAM WHO ARE ABLE TO PURCHASE OR REPURCHASE, OR PROVIDE A MARKET FOR, THE PARTICIPATING INTEREST PURCHASED, ORIGINATED OR SOUGHT TO BE PURCHASED OR ORIGINATED BY FI UNDER THIS LOPS SCHEDULE. THE FOREGOING MAY DEPEND ON THE AVAILABILITY AS WELL AS THE ELECTIONS MADE BY OTHER FINANCIAL INSTITUTIONS OR LENDERS WITH RESPECT TO THEIR RESPECTIVE UNDERWRITING CRITERION, AND QUILO MAKES NO REPRESENTATIONS OR WARRANTIES IN RELATION TO SUCH AVAILABILITY OR ELECTIONS.

b. FI hereby agrees:
i. to indemnify and hold harmless Quilo, its parent, subsidiaries or Affiliates, and their respective officers, directors, employees, and permitted assigns, (each a, “Quilo Indemnified Party”), against any and all Losses from any Claims made or brought as a result of the Originated Loan, Loan, the Loan Documents or the LOPS Schedule or any action taken or not taken by any Quilo Indemnified Party hereunder, including with respect to or resulting from any stamp, excise, transfer, or withholding tax, if any, (and any interest or penalties thereto) that may be payable or determined to be payable in connection with the transfer, purchase, sale, assignment, or assumption of the Loan (or portion thereof);
ii. neither Quilo nor any other Quilo Indemnified Party is responsible for, has any liability for, or has verified or conducted any due diligence on, any information supplied by other participant(s), the Borrower or any other Obligor, including, the right of participant(s) to assign the Loan under the Loan Documents or the compliance with any obligations under the Loan Documents;
iii. that absent gross negligence or willful misconduct, neither Quilo nor any other Quilo Indemnified Party shall be liable for any error in any of the information generated by Quilo and provided in the Program or Workspace, including any performance calculation or search conducted on Workspace; and
iv. Quilo and each other Quilo Indemnified Party shall be entitled to rely on the representations, warranties, covenants and agreements of FI and shall be entitled to enforce the provisions against FI for Quilo’s benefit.

Retail Origination Service Schedule

This Retail Origination Service Schedule (“ROS Schedule”) is issued pursuant to that certain Master Services Agreement by and between Quilo and FI (the “Agreement”).  

This ROS Schedule is subject to the terms and conditions contained in the Agreement and is made a part thereof. Any term used by not otherwise defined herein shall have the meaning defined in the Agreement. In the event of any conflict or inconsistency between the terms of this ROS Schedule and the terms of the Agreement, the terms of this ROS Schedule shall prevail.

1. Designation of Underwriting Criteria; Interpretation of this ROS Schedule.

a. Designation. FI shall designate from time to time the Available Underwriting Criteria that shall be the FI’s Selected Underwriting Criteria with respect to Loans.

b. Interpretation. If FI opts-in for “Retail Origination” in Loans as part of its Selected Underwriting Criteria, then the terms and conditions provided in this ROS Schedule shall apply to FI with respect to the Loans designated for Retail Origination.

2. Definitions. As used in this ROS Schedule only, the following definitions apply:

Account Holder'' means FI’s retail or commercial customer/member who has at least one savings account or one checking account with a valid debit card and for whom FI have provided Contact Information to Us.

Account Holder Information” means Contact Information, financial information, credit information and any other data provided directly by Account Holder or FI.

Collections” means any proceeding associated with Quilo Loans that have been delinquent for ninety (90) days or more.

Contact Information” means Account Holder’s name, email, physical address, year of birth and mobile phone number.

Disclosures” means a set of forms that require acknowledgement by End User required for Loan Origination and Loan Servicing.

End User” means a person using Quilo App or Merchant App.

FI’s Market” is a geographic boundary within the United States included in FI’s Selected Underwriting Criteria.

Issuing Bank” means a financial institution that sponsors issuance and processing of prepaid cards branded by Visa or MasterCard and used for instant Quilo Loan disbursement for new purchases.

Line of Credit” means the line of credit that FI may have that is used to fund Quilo Loans.

Loan Origination” means a set of activities to create a Quilo Loan that includes End User application capture and information capture, verification of name, date of birth, address, social security number, government identification, OFAC and sanction list screening and fraud scanning, obtaining additional consensual credit related information, decisioning, pricing, underwriting, consents and disclosures, Adverse Action, Truth in Lending/Loan Agreement, digital document signing and funds disbursement. “Loan Origination”, “Originate” and “Originated” shall have correlative meanings.

Loan Servicing” means a set of activities that follow the Loan Origination and until the Quilo Loan is (a) paid off, which include (i) payment scheduling, (ii) payment notifications, (iii) installment payment processing, (iv) principal and interest adjustment and other reporting, (v) rate adjustments and refunds as required by law, (vi) credit reporting to at least one of the  credit bureaus, and (vii) prepayments and payoffs, or (b) transferred for Collection proceedings by Us. “Loan Servicing”, “Service” and “Serviced” shall have correlative meanings.  

Managed Promotion” means a set of coordinated activities performed and managed by Us, funded by Marketing Fee identified in the Order Form collected from FI, and directed at Quilo Loan promotion and tailored to FI’s selections using Workspace, which said promotion may be sent (i) to FI’s Account Holders through email, and (ii) through social media marketing channels in FI’s Market.

Marketplace” means a channel that allows FI to source qualified leads for FI’s products and services from qualified End Users through Quilo App and Merchant App in FI’s Market.

Microsites” means Our javascript codes deployed to FI’s website by FI to promote Quilo Loans to Account Holders.

Merchant” means each Account Holder who enters into a Merchant Agreement with Quilo.

Merchant Agreement” means agreement executed between Merchant and Quilo, utilizing the model form of Merchant Agreement that Quilo makes available through Workspace (as Quilo may amend said form from time to time).  

Merchant App” means Quilo digital application or interface that Quilo makes available to Merchants, with said application or interface allowing for the presentation of a potential Quilo Loan to the Merchant’s customers or prospective customers.

Quilo App” means Our digital application or interface available either thru microsite, Apple AppStore or Google Play to enable End User to apply for, manage and pay off one or more Quilo Loans.

Reporting” means a set of reports and statements regularly produced in connection with client onboarding, Loan Origination and Loan Servicing.

Reserve Account” means FI’s FDIC insured account at Issuing Bank with the funds used for disbursement of funds for Quilo Loan amounts where Quilo Loan recipient selected to disburse said recipient’s respective Quilo Loan proceeds to a virtual prepaid card with immediate availability.

3. Quilo’s Role. Quilo is providing the Program, as well as ancillary services pursuant to the terms hereof such as services related to funding and payment settlements.

4. Retail Origination.  To the extent that there is a Loan available through the Platform which conforms to the Selected Underwriting Criteria under which FI opts-in for ”Retail Origination” in the Loan as part of its Selected Underwriting Criteria and which Quilo designates through the Platform as attributable to FI (said Loan, the “Originated Loan”), then all of the following terms and conditions shall apply with respect to the Originated Loan:

a. General.
i. Product Implementation. In advance of Product Launch, Quilo will commence Product Implementation to which FI agree to provide full participation and assistance as Quilo may require to commence with Product Implementation. Product Implementation includes (i) Orientation, (ii) Managed Promotion planning and preparation (to the extent FI opts-in to “Managed Promotion” in Workspace), (iii) Quilo Loan portfolio setup, (iv) Integration of FI’s Operating Account, Line of Credit and Reserve Account, (v) Preparation of the Transfer of Funds from Operating Account to Reserve Account, (vi) General Ledger of Quilo Loans setup, (vii) Workspace access configuration, (viii) simulation, (ix) settlement setup, (x) reporting setup, (xi) Microsite(s) setup, and (xii) Managed Promotion launch.
ii. Product Launch. Upon mutually agreed acceptance of Product Implementation readiness, Quilo will launch functionality in the software that can enable Loan Origination and Loan Servicing.
iii. Product Operation. Following Product Launch, Quio will assist FI in providing Loan Origination, Loan Servicing, Record Retention and Support through Workspace.

b. Out of Scope.
i. Any proceedings or activities associated with Collections are outside of the scope of this ROS Schedule.  

c. Authorization. In connection with the Scope of Service, FI explicitly authorize Quilo to:
i. Use FI’s logo, branding, trademarks, trade name, copyrights and other material FI provide;
ii. Use, store and transmit FI’s Account Holder Information and email communications that FI provide to Quilo;
iii. Request, use, store and transmit Account Holders’ Information and FI’s Information in accordance with Quilo’s Privacy Policy that may change from time to time;
iv. As part of Managed Campaign, issue electronic communications as per the Quilo Marketing Guidelines that may change from time to time;
v. Upon FI’s Account Holder’s consent, obtain, transmit and store additional information about FI’s Account Holders including information obtained from third-parties;
vi. Engage FI’s Account Holders in Marketplace;
vii. Share, store and transmit FI’s and FI’s Account Holder’s information with Quilo’s partners and affiliates;
viii. Enable reviews of Loan Origination by FI and performance of Loan Servicing of FI’s Quilo Loans with FI’s Account Holders;
ix. Remove Quilo Loans that have been ninety (90) days delinquent from Loan Servicing and turn over to FI for further processing as part of FI’s Collections;
x. Provide autopay capabilities for FI’s Quilo Loans; provided, however, FI at all times agree to process paper check installment payments on FI’s Quilo Loans using FI’s existing facilities in conjunction with Workspace;
xi. Receive electronic signature or through a similar electronic process to obtain FI’s Account Holder’s consent;
xii. Distribute Disclosures and FI’s customer service telephone number and address on FI’s behalf;
xiii. Transfer funds between FI’s Operating Account and FI’s Reserve Account;
xiv. Generate, store and transmit Account Holder Information and reporting;
xv. Obtain and store FI’s and FI’s Account Holder’s Information and communications in relation to Support;
xvi. Debit Fees and Loan amounts from FI’s Operating Account daily or as due provided that Quilo made itemized reports available to FI via the Workspace; and
xvii. Follow the FI’s Selected Underwriting Criteria with respect to the FI’s Loan Origination.

d. Support. Quilo will provide a set of activities directed at ensuring Product availability including rapid response and resolution of technical and operational incidents (“Support”) as per schedule, nature and via communication channels below:
i. Between hours of 9am Eastern Time and 9pm Eastern Time daily except weekends and holidays as defined by Federal Reserve for the purpose of carrying out activities to resolve Operational incidents experienced by FI’s authorized personnel via Workspace online messaging.
ii. Between hours of 9am Eastern Time and 9pm Eastern Time daily for the purpose of carrying out activities to resolve incidents experienced by End Users via in-App messaging.Fees and Payments. FI agrees to make the payments of Fees as identified as Fees for the ROS Schedule in the Order Form.

e. FI’s Loans. Notwithstanding anything contained in the ROS Schedule to the contrary, FI agree to the following: (i) To the extent originated, FI is the maker, owner and servicer of all Loans contemplated in this ROS Schedule; (ii) Quilo has no ownership rights in any such Loan and FI will not make any representation to any applicant to the contrary; (iii) Quilo does not guarantee, warranty or co-make any such Loans that are originated or contemplated; (iv) Quilo shall not be responsible in any way for the FI’s compliance with all laws, regulations, rules or orders governing FI’s making of such Loans and FI’s status of the lender on the loans.

g. Merchant Agreements: Notwithstanding anything to the contrary contained in this ROS Schedule, Quilo’s obligations with respect to each Loan under this ROS Schedule are conditioned upon FI entering into a Merchant Agreement with Quilo and Merchant.

h. Continuation. For the avoidance of doubt, all of the terms, conditions and provisions of the Agreement continue unchanged and shall remain in full force and effect for the purposes of this ROS Schedule.

Services Addendum

This Services Addendum (“Addendum”) is issued pursuant to that certain Master Services Agreement by and between Quilo and FI (the “MSA”).  

This LOPS Schedule is subject to the terms and conditions contained in the MSA and is made a part thereof. Any term used by not otherwise defined herein shall have the meaning defined in the MSA.

1. The Service Level Standards. Capitalized terms used in this Addendum but not otherwise defined herein shall have the meanings ascribed to them in the MSA. Each Service Level Standard or “SLS” (as identified in the chart below) is measured at the end of each calendar month during the Term.

2. Service Failures. A “Service Failure” shall be deemed to have occurred if Quilo fails to meet any SLS, as defined in the chart below in any month, beginning with the fourth full month following the Launch Date provided such failure is not the result of an act of FI, or as a result of Force Majeure Event, however, for any event that would have otherwise constituted a Service Failure, Quilo agrees to provide FI with the reason for such failure and steps to remediate and shall pursue such remediation in a timely manner. Multiple failures traced to a single root cause in the first instance shall be counted as a single failure, but shall not excuse any subsequent or continuing failure in the same rolling six (6) month period.

3. Right To Terminate. If six (6) or more Service Failures of the same Tier 1 SLS occurs in any rolling twelve calendar months period, FI may terminate the MSA, with thirty days prior written notice to Quilo.

4.  Quilo Monitoring of SLSs. Quilo shall provide, maintain in place and utilize the necessary measurement and monitoring tools and procedures required to measure and report its performance against the applicable SLSs. Measurement and monitoring shall permit reporting at a level of detail reasonably sufficient to verify compliance with the SLSs. Quilo shall provide FI with information and access to such tools and procedures, as well as any resulting reporting data including, without limitation, raw reporting data, reporting logs and log files, upon requestfor purposes of verifying Quilo’s compliance with these SLSs.

Service Type Service Level Standard (SLS)

Service Type

Service Level Standard

Tier 1 SLS

1

Digital end-user live chat during Live Support Hours

80% of responses have occurred within 10 minutes

2

Workspace Availability

99.9% , except weekends and maintenance windows

3

Email support for FI authorized personnel during FI Support Hours

90% of responses occurred no later than the next business day

4

App availability

99.9%, except maintenance windows

Tier 2 SLS

1

Push Notification

99.9%, except where user unsubscribed

2

OTP PIN SMS

99.9%

(i) Response times and system uptime exclude downtime for scheduled system maintenance and relate to those requests and transactions processed solely by Quilo’s host. Requests and transactions requiring external support such as fraud investigation or address verifications shall not be included in the measurement of the SLS.
(ii) Normal maintenance of Workspace shall occur only during low traffic time periods which are daily between 1:00 AM to 6:00 AM Eastern Time. Quilo will use good faith efforts to schedule maintenance to minimize any impact to FI.

Privacy Policy

This “Privacy Policy” describes the privacy practices of Qoosh Technology, Inc. dba Quilo  and our subsidiaries and affiliates (collectively, “Quilo”, “we”, “us”, or “our”) in connection with the https://Quiloit.com website, Workspace  or App that we own or control and which posts or links to this Privacy Policy (collectively, the “Service”), in connection with our marketing activities, and as otherwise described in this Privacy Policy. In addition, this Privacy Policy describes your rights and choices with respect to the Personal Information we collect.

We collect personal information as described below. Note, however, that our business customers may transmit personal information to us as part of the services we provide.

Personal Information We Collect

Information you provide to us. Personal information you provide to us through the Service or otherwise includes:

  • Business and personal contact information, such as your first and last name, email and mailing addresses, phone number, professional title and company name.
  • Profile information, such as your username and password that you may set to establish an online account with us.
  • Registration information, such as information that may be related to a service you or your business register for.
  • Feedback or correspondence, such as information you provide when you contact us with questions, feedback, or otherwise correspond with us online.
  • Transaction information, such as information about payments to and from you and other details of products or services you have subscribed to from us.
  • Usage information, such as any content you upload to the Service or otherwise submit to us, including information you provide when you use any interactive features of the Service.
  • Marketing information, such as your preferences for receiving communications about our activities, events, and publications, and details about how you engage with our communications.
  • Other information that we may collect which is not specifically listed here, but which we will use in accordance with this Privacy Policy or as otherwise disclosed at the time of collection.

Our use of any information obtained from our business customers is restricted by our agreements with those business customers.

Marketing and advertising. We, our service providers and our third-party advertising partners may collect and use your personal information for marketing and advertising purposes:

  • Direct marketing. We may send you Quilo-related direct marketing communications as permitted by law, including by email.

Cookies and Other Information Collected by Automated Means

We, our service providers, and our business partners may automatically log information about you, your computer, and activity occurring on or through the Service. The information that may be collected automatically includes your computer type and version number, manufacturer and model, device identifier (such as the Google Advertising ID or Apple ID for Advertising), browser type, screen resolution, IP address, the website you visited before browsing to our website, general location information such as city, state or geographic area; and information about your use of and actions on the Service, such as pages or screens you viewed, how long you spent on a page or screen, navigation paths between pages or screens, information about your activity on a page or screen, access times, and length of access. Our service providers and business partners may collect this type of information over time and across third-party websites.

On our webpages, this information is collected using cookies, browser web storage (also known as locally stored objects, or “LSOs”), web beacons, and similar technologies, and our emails may also contain web beacons.


Referrals

Users of the Service may have the opportunity to refer friends or other contacts to us. If you are an existing user, you may only submit a referral if you have permission to provide the referral’s contact information to us so that we may contact them.

How We Use Your Personal Information

We use your personal information for the following purposes and as otherwise described in this Privacy Policy or at the time of collection:

To operate the Service. We use your personal information to:

  • provide, operate and improve the Service;
  • provide information about our products and services;
  • establish and maintain your user profile on the Service;
  • communicate with you about the Service, including by sending you announcements, updates, security alerts, and support and administrative messages;
  • provide support and maintenance for the Service; and
  • respond to your requests, questions and feedback

For research and development. We analyze use of the Service to analyze and improve the Service and to develop new products and services, including by studying user demographics and use of the Service.

To comply with law. We use your personal information as we believe necessary or appropriate to comply with applicable laws, lawful requests, and legal process, such as to respond to subpoenas or requests from government authorities.

For compliance, fraud prevention, and safety. We may use your personal information and disclose it to law enforcement, government authorities, and private parties as we believe necessary or appropriate to: (a) protect our, your or others’ rights, privacy, safety or property (including by making and defending legal claims); (b) enforce the terms and conditions that govern the Service; and (c) protect, investigate and deter against fraudulent, harmful, unauthorized, unethical or illegal activity.

With your consent. In some cases we may specifically ask for your consent to collect, use or share your personal information, such as when required by law.

To create anonymous, aggregated or de-identified data. We may create anonymous, aggregated or de-identified data from your personal information and other individuals whose personal information we collect. We make personal information into anonymous, aggregated or de-identified data by removing information that makes the data personally identifiable to you. We may use this anonymous, aggregated or de-identified data and share it with third parties for our lawful business purposes, including to analyze and improve the Service and promote our business.

How We Share Your Personal Information

We do not share your personal information with third parties without your consent, except in the following circumstances or as described in this Privacy Policy:

Affiliates. We may share your personal information with our corporate parent, subsidiaries, and affiliates, for purposes consistent with this Privacy Policy.

Service providers. We may share your personal information with third party companies and individuals that provide services on our behalf or help us operate the Service (such as customer support, hosting, analytics, email delivery, marketing, and database management services). These third parties may use your personal information only as directed or authorized by us and in a manner consistent with this Privacy Policy, and are prohibited from using or disclosing your information for any other purpose.

Partners. We may sometimes share your personal information with partners or enable partners to collect information directly via our Service.

Professional advisors. We may disclose your personal information to professional advisors, such as lawyers, bankers, auditors and insurers, where necessary in the course of the professional services that they render to us.

For compliance, fraud prevention and safety. We may share your personal information for the compliance, fraud prevention and safety purposes described above.

Business transfers. We may sell, transfer or otherwise share some or all of our business or assets, including your personal information, in connection with a business transaction (or potential business transaction) such as a corporate divestiture, merger, consolidation, acquisition, reorganization or sale of assets, or in the event of bankruptcy or dissolution.

Your Choices

In this section, we describe the rights and choices available to all users. Users located in Europe can find additional information about their rights below in the section entitled California residents can find additional information about their rights in the section entitled Information for California Residents.

Access or Update Your Information. If you have registered for an account with us, you may review and request an update of certain personal information by your administrator.

Cookies. Most browser settings let you delete and reject cookies placed by websites. Many browsers accept cookies by default until you change your settings. If you do not accept cookies, you may not be able to use all functionality of the Service and it may not work properly. For more information about cookies, including how to see what cookies have been set on your browser and how to manage and delete them, visit https://www.allaboutcookies.org. We use Google Analytics to help us understand user activity on the Service. You can learn more about Google Analytics cookies and about how Google protects your data at https://policies.google.com/privacy. You can prevent the use of Google Analytics relating to your use of the Service by downloading and installing a browser plugin available at https://tools.google.com/dlpage/gaoptout.

Advertising choices. You can limit use of your information for interest-based advertising by:

  • Browser settings. Blocking third party cookies in your browser settings.
  • Privacy browsers/plug-ins. By using privacy browsers or ad-blocking browser plug-ins that let you block tracking technologies.
  • Platform settings. Google offers opt-out features that let you opt-out of use of your information for interest-based advertising:
    -Google: https://adssettings.google.com
  • Ad industry tools. Opting out of interest-based ads from companies participating in the following industry opt-out programs:
    -Network Advertising Initiative: https://optout.networkadvertising.org
    -Digital Advertising Alliance: https://optout.aboutads.info
    -AppChoices mobile app, available at https://www.youradchoices.com/appchoices, which will allow you to opt-out of interest-based ads in mobile apps served by participating members of the Digital Advertising Alliance.

You will need to apply these opt-out settings on each device from which you wish to opt-out.

Do Not Track. Some Internet browsers may be configured to send “Do Not Track” signals to the online services that you visit. We currently do not respond to “Do Not Track” or similar signals. To find out more about “Do Not Track,” please visit https://www.allaboutdnt.com.

Choosing not to share your personal information. Where we are required by law to collect your personal information, or where we need your personal information in order to provide the Service to you, if you do not provide this information when requested (or you later ask to delete it), we may not be able to provide you with our services. We will tell you what information you must provide to receive the Service by designating it as required at the time of collection or through other appropriate means.

Other Sites and Services

The Service may contain links to other websites, and other online services operated by third parties. These links are not an endorsement of, or representation that we are affiliated with, any third party. In addition, our content may be included on web pages or online services that are not associated with us. We do not control third party websites, or online services, and we are not responsible for their actions. Other websites and services follow different rules regarding the collection, use and sharing of your personal information. We encourage you to read the privacy policies of the other websites and online services you use.

Security Practices

The security of your personal information is important to us. We employ a number of organizational, technical and physical safeguards designed to protect the personal information we collect. However, security risk is inherent in all internet and information technologies and we cannot guarantee the security of your personal information. Email, in particular, is an insecure way to transmit personal information. Please take special care regarding what information you send to us via email.

Children

The Service is not directed to, and we do not knowingly collect personal information from, anyone under the age of 13. If a parent or guardian becomes aware that his or her child has provided us with information without their consent, he or she should contact us. We will delete such information from our files as soon as reasonably practicable. We encourage parents with concerns to contact us.

Changes to this Privacy Policy

We reserve the right to modify this Privacy Policy at any time. If we make material changes to this Privacy Policy, we will notify you by updating the date of this Privacy Policy and posting it on the Service. We may, and if required by law, will also provide notification of changes in another way that we believe is reasonably likely to reach you, such as via e-mail (if you have an account where we have your contact information) or another manner through the Service.

Any modifications to this Privacy Policy will be effective upon our posting the new terms and/or upon implementation of the new changes on the Service (or as otherwise indicated at the time of posting). In all cases, your continued use of the Service after the posting of any modified Privacy Policy indicates your acceptance of the terms of the modified Privacy Policy.

How to Contact Us

If you would like to exercise your rights under this Policy, please submit your request privacy@quiloit.com.

Please direct any questions or comments about this Policy or privacy practices to privacy@quilo.com.

Information for California Residents

Scope. This section applies only to California residents. It describes how we collect, use, and share Personal Information of California residents online and offline in our capacity as a “business” under the California Consumer Privacy Act of 2018 (“CCPA”) and their rights with respect to that Personal Information. For purposes of this section, “Personal Information” has the meaning given in the CCPA but does not include information exempted from the scope of the CCPA. In some cases we may provide a different privacy notice to certain categories of California residents, such as job applicants, in which case that notice will apply instead of this section.

Your California privacy rights. As a California resident, you have the rights listed below. However, these rights are not absolute, and in certain cases we may decline your request as permitted by law.

Information. You can request the following information about how we have collected and used your Personal Information during the past 12 months:

  • The categories of Personal Information that we have collected;
  • The categories of sources from which we collected Personal Information;
  • The business or commercial purpose for collecting and/or selling Personal Information;
  • The categories of third parties with whom we share Personal Information;
  • The categories of Personal Information that we sold or disclosed for a business purpose; and
  • The categories of third parties to whom the Personal Information was sold or disclosed for a business purpose.

Access. You can request a copy of the Personal Information that we have collected about you during the past 12 months.

Deletion. You can ask us to delete the Personal Information that we have collected from you.

Opt-out of sales. You can opt-out any sale of your Personal Information.

Nondiscrimination. You are entitled to exercise the rights described above free from discrimination as prohibited by the CCPA.

Notice of right to opt-out of the “sale” of your Personal Information. Based on our understanding of the term “sell” under the CCPA, we do not “sell” your Personal Information and have not sold it to third parties for a business or commercial purpose in the 12 months preceding the effective date of this Privacy Policy. However, like many companies, we use services that help deliver interest-based ads to you. Our use of some of these services may be classified under California law as a “sale” of your Personal Information to the advertising partners that provide the services because they collect information from our users (e.g., device data and online activity data) to help them serve ads more likely to interest you. You can request to opt-out out of this “sale” of your personal information here: Do Not Sell My Personal Information, where you will find instructions on opting-out of the use of your information for interest-based advertising.

We will need to verify your identity to process your information, access and deletion requests and reserve the right to confirm your California residency. To verify your identity, we may require government identification, a declaration under penalty of perjury or other information. Your authorized agent may make a request on your behalf upon our verification of the agent’s identity and our receipt of a copy of a valid power of attorney given to your authorized agent pursuant to California Probate Code Sections 4000-4465. If you have not provided your agent with such a power of attorney, you must provide your agent with written and signed permission to exercise your CCPA rights on your behalf, provide the information we request to verify your identity, and provide us with written confirmation that you have given the authorized agent permission to submit the request. We cannot process your request if you do not provide us with sufficient detail to allow us to understand and respond to it.

Personal information that we collect, use and disclose. The chart below summarizes the Personal Information we collect by reference to the categories of Personal Information specified in the CCPA, and describes our practices currently and during the 12 months preceding the effective date of this Privacy Policy. Information you voluntarily provide to us, such as in free-form web forms, may contain other categories of personal information not described below.

Statutory category of Personal Information (Cal. Civ. Code § 1798.140)

Personal Information we collect in this category (See the “Personal information We Collect” section above for description)

Identifiers (excluding online identifiers)

  • Contact details
  • Data about others
  • Details that you provide when you visit our offices or our events

California Customer Records (as defined in California Civil Code section 1798.80)

  • Contact details
  • Communications
  • Marketing data
  • Data about others

Commercial Information

  • Profile data
  • Communications
  • Marketing data
  • Online activity data

Geolocation Information

  • Information about your precise location based on your device’s GPS location

Sensory Information

  • Information we capture through security cameras at our offices and facilities

Online Identifiers

  • Profile data
  • Device data

Internet or Network Information

  • Marketing data
  • Device data
  • Online activity data

Inferences

May be derived from the information listed above

Sources. We describe the sources from which we collect this Personal Information in the section above entitled Personal Information We Collect. Purposes. We describe the business and commercial purposes for which we collect this Personal Information in the section above entitled How We Use Your Personal Information. Disclosure. We disclosed this Personal Information to the categories of third parties described in the section above entitled How We Share Your Personal Information.

Interagency Guidance Tracking Chart - Quilo MSA

Quilo Agreement

Interagency Guidance Topic

§2

§3(a) Nature and Scope of Arrangement. A contract specifies the nature and scope of business arrangement and which activities the third party is to conduct.

Throughout, but primarily:

-Quilo Obligations: §5

-Bank Obligations: §6.

§3(b) Performance Measures or Benchmarks. Performance and risk measures should specify the expectations and responsibilities for both parties, including conformance with regulatory standards or rules. Performance measures can be used to motivate good performance or punish poor performance but should not be used to incentivize undesirable behavior.

§7 ; §8

§3(c) Responsibilities for Providing, Receiving, and Retaining Information.

§9

§3(d) The Right to Audit and Require Remediation

§9

§3(e) Responsibility for Compliance With Applicable Laws and Regulations

§6(f); §4 ; Order Form

§3(f) Cost and Compensation.

§11

§3(g) Ownership and License.

§7

§3(h) Confidentiality and Integrity.

§5(c) ; §6(c)

§3(i) Operational Resilience and Business Continuity.

§14

§3(j) Indemnification.

§9(d)

§3(k) Insurance.

§16

§3(l) Dispute Resolution

§13

§3(m) Limits on Liability.

§15

§3(n) Default and Termination

§5(b) §6(d)

§3(o) Customer Complaints.

§5(d)

§3(p) Subcontracting.

§17(c)

§3(q) Choice of law and jurisdictional provisions.

Throughout, see e.g., §5(b) §6(d), §7, §9

§3(r) Regulatory Supervision.