Baker Hill NextGen Schedule

ATTENTION! THE FOLLOWING TERMS AND CONDITIONS (“SCHEDULE”) WILL BE LEGALLY BINDING ON CLIENT UPON EXECUTION OF AN ORDER FORM UNDER WHICH CLIENT PURCHASES A SUBSCRIPTION OR LICENSE TO ONE OR MORE OF THE SOFTWARE LISTED HEREIN. CLIENT SHOULD CAREFULLY READ THE FOLLOWING SCHEDULE BEFORE EXECUTING AN ORDER FORM.

Definitions

Unless specifically defined in this Schedule, all capitalized terms will have the meaning set forth in the MSA
“API” means application program interface.
 
"API O-Data" means APIs that allow Client to tie functionality into web applications efficiently, with the goal being to add value to the Baker Hill NextGen® Solution by enabling Client to harness their data outside of the Baker Hill NextGen® browser application for consumption by Client’s internal systems and other web applications.
 
“Applicant” means an individual or entity that applies for a loan from Client.
 
“Application” means the information about the Applicant provided to Baker Hill through the Internet by Client properly using the Application Processing Services.
 
"Baker Hill NextGen® Customized Branch Loan Application" means Baker Hill’s branch/intranet solution that supports loan application completion, provides a flexible user interface design, and facilitates the sharing of information through integration with one or more of the Baker Hill NextGen® Solution modules. 
 
"Baker Hill NextGen® Client Experience" means certain replicated environments that Client can use to test and verify changes to Client’s existing site configuration before moving the changes to a production environment and/or conducting training. 
 
"Baker Hill NextGen® Commercial Loan Origination" means Baker Hill’s NextGen® module that provides Client and its Users the ability to manage credit requests and advance such requests through the lending cycle in accordance with Client Parameters. Baker Hill NextGen® Commercial Loan Origination allows for the aggregation of personal and business financial history and the use of relevant data as part of the underwriting process, as well as empowers Client to process applications securely and track the effectiveness of Client’s process. The Commercial Loan Origination decisioning strategy further generates configurable credit memoranda and loan approval workflows for Client’s use during the lending process.
 
"Baker Hill NextGen® Consumer Loan Origination" means Baker Hill’s NextGen® module that automates the consumer lending application process and includes opportunity and pipeline management, contact management, and limited exception tracking (such as pre-closing tracking and pre- & post-closing checklists) functionality. If a scored strategy is selected (as indicated in the Order Form), the module allows for the use of credit reporting company scores via reports, along with Client’s credit policy rules, to assist Client in assessing credit risk through the evaluation of credit application and credit reporting agency data.
 
"Baker Hill NextGen® Current Expected Credit Loss" or "Baker Hill NextGen® CECL" means the solution and related services to assist with capturing relevant Client Data and leveraging the same into Client’s CECL strategy. The solution supports loss methodologies and migration analysis and can supplement Client’s internal CECL data with financial statement spreading data, establishing asset pools and providing monitoring functionality for expected credit loss.
 
"Baker Hill NextGen® Customized Online Loan Application" means a custom online solution that supports loan application completion, provides a customizable user interface design, and facilities the sharing of information through integration with one or more of the Baker Hill NextGen® Solution modules. 
 
"Baker Hill NextGen® Customer Portal" means an online site integrated with one or more of the Baker Hill NextGen® Solution modules that supports Client’s customers’ ability to view their status in the loan origination process and securely submit documentation to be linked with their loan application, as well as Client’s ability to communicate with its customers.
 
"Baker Hill NextGen® CRM" means the on-demand platform that combines business processes and Client Data across departments and integrates data into a single tool. Data can be imported from Client’s core systems or other external systems into a centralized database.
 
"Baker Hill NextGen® Data Interchange " means the solution that provides APIs to support integrations with imaging solutions, loan application solutions, document preparation solutions, and any custom integration solution.
 
"Baker Hill NextGen® Early Experience" means certain fully replicated environments that Client can use to test and verify changes to Client’s existing site configurations before moving the changes to a production environment and/or conducting training. Early Experience is only available for major releases and, in such instances, made available about 2 weeks prior to the scheduled general release and subsequently shut down when the general release occurs.
 
"Baker Hill NextGen® Exception Tracking" means Baker Hill’s NextGen® module for automating the administrative and relationship aspects of portfolio management and includes portfolio monitoring and standardized tracking functionality, as well as a framework for monitoring document, financial statement, policy, compliance and exception management across lines of business. 
 
“Baker Hill NextGen® Imaging System Integration” means custom integration of the Baker Hill NextGen® loan origination platform with Client’s imaging system.
 
"Baker Hill NextGen® Portfolio Risk Management" means Baker Hill’s NextGen® module for automated portfolio monitoring that many include Client-defined performance alerts to determine if an account is flagged for review, renewal or watch.
 
"Baker Hill NextGen® Portfolio Risk Management" means a solution that facilitates Client’s ability to price a specific loan transaction to determine an expected return.
 
“Baker Hill NextGen® Pricing & Profitability” allows Client the ability to price a specific loan transaction to determine the expected return.
 
"Baker Hill NextGen® Small Business Loan Origination" means Baker Hill’s NextGen® module that provides Client and its Users the ability to manage business credit requests and advance such requests through the lending cycle in accordance with Client Parameters. Baker Hill NextGen® Small Business Loan Origination allows for the aggregation of personal and business financial history and the use of relevant data as part of the underwriting process, as well as empowers Client to electronically process Applications securely and track the effectiveness of Client’s process and generate reports. Leveraging a scored strategy, Baker Hill NextGen® Small Business Loan Origination also integrates with third-party data sources selected by Client to further leverage data analytics and may include acquiring information about an Applicant’s creditworthiness from a credit reporting agency, a consumer reporting agency, and/or credit bureau approved by Baker Hill.
 
"Baker Hill NextGen® Solution" means Baker Hill’s NextGen® solutions consisting of enterprise software applications and platform solutions, and certain related software applications, that provides Client and its Users the ability to manage credit requests and advance such requests through the lending cycle in accordance with Client Parameters. As used herein, the term “Baker Hill NextGen® Solution” collectively means and includes one or more of the following as specified in the applicable Order Form: Baker Hill NextGen® Commercial Loan Origination, Baker Hill NextGen® Small Business Loan Origination, Baker Hill NextGen® Consumer Loan Origination, Baker Hill NextGen® Statement Spreading, Baker Hill NextGen® Exception Tracking, and Baker Hill NextGen® CRM and further includes any additional Programs purchased by Client in conjunction therewith that are defined in this Schedule. 
 
"Baker Hill NextGen® Statement Spreading" means Baker Hill’s NextGen® module that offers a range of formats and features to support Client’s and its credit analysts’ ability to perform financial analysis for commercial lending.
 
"Baker Hill NextGen® System Integration" means a custom integration of the Baker Hill NextGen® Solution with one or more third party solutions identified in an Order Form.
 
"Baker Hill NextGen® Turnkey Online Loan Application" means Baker Hill’s online tool configured to make loan applications accessible to Client’s customers through Client’s website and integrates with one or more of the Baker Hill NextGen® Solution modules. 
 
“Client Parameters” means Client’s policies, procedures, methodologies, and decision matrices that are required for Baker Hill to provide the Programs and Services specified in an Order Form, including without limitation all Client underwriting and pricing policies and procedures, any interest and credit insurance calculation parameters, and/or current expected credit loss calculations, methodologies, processes, or models.
 
“Consumer Loan” means a direct loan or line of credit between Client and one or more individual(s), whether unsecured, secured by real or personal property or for personal, family or household purposes. A Consumer Loan shall not include loans for the purchase or refinancing of a principal dwelling, a lease characterized as a loan, or any other loan or line of credit that Baker Hill states in its Documentation or other communications to Client is not within the scope of the Baker Hill NextGen® Consumer Loan Origination product.
 
“Consumer Report” shall have the meaning given to that term under the FCRA, 15 U.S.C. § 1681a(d).
 
“Credit Sales” means a loan between a Retailer and an Applicant, the proceeds of which will be used by the Applicant to finance a Sale. A Credit Sale does not include direct loans and lines of credit between the Client and any person, loans or lines of credit for the purchase or refinancing a principal dwelling, a lease characterized as a loan, or any other loan or line of credit that Baker Hill states in its Documentation or other communication to Client is not within the scope of the Baker Hill NextGen® Consumer Loan Origination product.
 
“Electronic Communications” means any transfer of signals, signs, text, images, sounds, data, or intelligence of any nature transmitted in whole or in part, electronically received, and/or transmitted through the Programs.
 
“FCRA” means the federal Fair Credit Reporting Act, 15 U.S.C. § 1681.
 
“Loan App” means either the Baker Hill NextGen® Turnkey Online Loan Application or the Baker Hill NextGen® Custom Online Loan Application.
 
“MSA” means Baker Hill’s Master Agreement Standard Terms that is in effect on the Effective Date of the applicable Order Form, the terms of which govern Client’s use of the Programs and Services set forth in the applicable Order Form or SOW and may be found here: https://www.bakerhill.com/master-services-agreement/
 
“Rescore” means a new score on an Application when: (a) Client has processed an Application where more than one (1) type of loan product is part of the Application and requires more than one (1) scoring model; (b) Client reprocesses an Application due to a change in the model it has contracted for with the credit score service provider (e.g., from a start-up model to a standard model or from a standard mode to the start-up model, etc.); (c) Client changes any data used to calculate the credit offer index; or (d) Client is reprocessing an Application for one (1) or more of the following reasons: (i) due to a change of Client Parameters, (ii) due to a change in the credit reporting agency, consumer reporting agency and/or bureau that is consulted to obtain an Applicant's creditworthiness, (iii) due to a change of data in any scored field of the Application, or (iv) due to a request to pull new bureau reports.
 
“Retailer” means seller of goods or services, whether such entity is a third party or Client.
 
“Sale” means a purchase by an Applicant of goods and/or services from a Retailer, where such goods and/or services are to be used for Applicant’s personal, family, or household purposes.
 
“Scored Solution” means either Baker Hill NextGen® Small Business Loan Origination or Baker Hill NextGen® Consumer Loan Origination where a scored strategy is indicated in connection therewith on the Order Form.
 
 “Third-Party Account” means a unique account established and maintained by Client to enable it to access and user services provided by a third-party via the Internet.

Software, Pricing, and General Terms

1. Baker Hill NextGen® Solution.  To the extent Concurrent User access is specified on any Order Form in connection with a Baker Hill NextGen® Solution module is purchased thereunder, the number of Users specified in the Order Form may simultaneously access and use the Baker Hill NextGen® Solution module indicated. If Named User access is specified in the Order Form, Client shall electronically designate the unique Users who may access and use the relevant Baker Hill NextGen® Solution module(s) and Client is limited to the number of Named Users identified on the applicable Order Form.  The sharing of Named User access by more than one individual is expressly prohibited and Client shall ensure such sharing does not occur. 
 
2.  Baker Hill NextGen® Small Business Loan Origination and Baker Hill NextGen® Consumer Loan Origination. The terms of this paragraph 2 apply if Baker Hill NextGen® Small Business Loan Origination or Baker Hill NextGen® Consumer Loan Origination is specified on an Order Form.
 
(a)  Client agrees, represents, and warrants that it will only use Baker Hill NextGen® Consumer Loan Origination for processing Applications for a Consumer Loan. Client acknowledges that if Client uses Baker Hill NextGen® Consumer Loan Origination for any purpose other than as expressly allowed in this paragraph, Baker Hill may immediately terminate the Order Form and, in Baker Hill’s sole discretion, the Agreement as a whole. Notwithstanding the foregoing, if the Client obtains certain Credit Sales functionality as part of Baker Hill NextGen® Consumer Loan Origination (as indicated in the applicable Order Form), the term “Applicant” shall further include any individual that applies for a Credit Sale from a Retailer. In such instance, Client shall only use such added functionality for processing of Applications for a Credit Sale and, if Client uses such functionality for any other purpose, Baker Hill may immediately terminate the applicable Order Form and, in Baker Hill’s sole discretion, the Agreement as a whole.
 
(b)  If a Scored Solution is specified on an Order Form, prior to Baker Hill providing such functionality, Client shall deliver in writing to Baker Hill:  (a) all Client Parameters; (b) the name of a proposed credit reporting agency to be used by Baker Hill in providing the Scored Solution, which Baker Hill will approve or deny in its sole discretion; and (c) the means by which Baker Hill is to return the electronic information collected or created by Baker Hill in connection with providing the functionality of the Scored Solution to Client (including without limitation the name and e-mail address of the employee of Client to whom the information should be sent and/or other means necessary for transferring the electronic information to a computer system under the control of Client). Client shall use the Scored Solution only to process bona fide Applications for Applicants and for other purposes consistent with the Documentation for Baker Hill NextGen® Small Business Loan Origination or Baker Hill NextGen® Consumer Loan Origination, as applicable, made available to Client by Baker Hill. Under no circumstances is Client permitted to use a Scored Solution to process “test” or “dummy” Applications without the prior written authorization of Baker Hill.
 
(c)  Client acknowledges that third party credit score service providers mandate a Rescore charge for Applications that are Rescored and that, on a per quarter basis, Client will be charged for each Application that is Rescored.
 
(d)   Subject to the limitations set forth in the Agreement and to the extent a Scored Solution is specified on an Order Form, Baker Hill will use commercially reasonable efforts to process those completed Applications that are able to be automatically processed by the Scored Solutions within one (1) business day of receipt of the completed Application from Client. Client understands and agrees that Baker Hill’s access to any credit reporting agency and/or credit scoring service provider is subject to the operating hours and network availability of each such entity. The availability of any Scored Solution is subject to operating hours and availability of the applicable credit reporting agency and credit scoring service provider.
 
(e)   For each Application processed by Client using a Scored Solution, Client represents and warrants: (i) Client has a “permissible purpose” for receiving Consumer Reports as required by the FCRA under 15 U.S.C. §1681b; (ii) Client has secured any and all consents required under the Laws and Standards for receiving Consumer Reports or consumer credit information; and (iii) use of Consumer Reports and consumer credit information by Client will be strictly in accordance with all applicable laws including, without limitation, the Laws and Standards. Client shall not resell or reuse any Consumer Report it obtains through use of a Scored Solution (or any other Program provided by Baker Hill), or any information therefrom, without the prior express written consent of Baker Hill in each instance. Client shall provide any and all notices to Applicants required by FCRA or other Laws and Standards. Client shall indemnify, defend, and hold harmless Baker Hill and its officers, employees, agents and directors from any and all losses, damages, costs (including reasonable attorneys’ fees and court costs), claims, and complaints arising out of or related to any lawsuit, legal proceeding, arbitration proceeding, claim, dispute, or complaint by a Retailer with respect to an Application or any act or omission actually or allegedly done or not done by Client in connection with a Consumer Report, consumer credit information, any information from any of the foregoing, and/or any lending decision made or not made by Client.
 
3.  Baker Hill NextGen® Turnkey Online Loan Application and Baker Hill NextGen® Custom Online Loan Application.  The terms of this paragraph 3 apply if a Loan App is specified on an Order Form.
 
  (a)   Client acknowledges and agrees that, if specified in a SOW, Baker Hill may deliver, install, and configure certain software for Client, in the object code and/or source code form, that will allow Client to access and use the Loan App over the internet (the “Loan App Interface”). If the App Link Interface is specified as a deliverable in an Order Form and/or an SOW, such App Link Interface is understood to be Work Product under the MSA and, subject to Client’s compliance with all of the terms and conditions of the Agreement, Baker Hill grants to Client a nonexclusive, nontransferable license to use, modify, make a reasonable number of copies of, and create derivative works from the Loan App Interface solely at Client’s locations, solely for Client’s internal business purposes for use in accordance with the Agreement. Baker Hill owns all right, title, and interest in any derivative works arising from, enhancements to, and/or modifications to the Loan App Interface made by or for Client (each a “Modification”) and Client hereby assigns all right, title, and interest in and to the Modifications, including without limitation all copyrights and other intellectual property rights therein, to Baker Hill. Subject to Client’s compliance with the Agreement, Baker Hill grants to Client a nonexclusive, nontransferable license to the Modifications. Client acknowledges and agrees that the Loan Apps are not part of the license to the Loan App Interface granted to Client hereunder, that Baker Hill is not delivering, installing, or configuring a Loan App to and/or for Client, and Client has no right to distribute, transfer, or disclose the Loan App or any Loan App Interface to any third party. For the avoidance of doubt, any Loan App Interface is considered Baker Hill’s Confidential Information and Baker Hill’s Intellectual Property under the MSA. 
 
(b)  Client shall only have the right to access such Loan App as part of Baker Hill NextGen® Consumer Loan Origination or Baker Hill NextGen® Small Business Loan Origination. Baker Hill provides the Loan Apps either in Baker Hill’s hosted environment or on premise at Client’s site as specified in the applicable Order Form. For the Loan Apps provided on premise at Client’s site, Baker Hill shall only install the Loan Apps on the network at Client’s site and Client may not transfer the location of such on premises Loan Apps to a new location without Baker Hill’s prior written consent. 
 
(c)   Client acknowledges that additional login and user authentication security measures may be associated with accessing a Loan App. In addition to the security obligations set forth in the MSA, Client is solely responsible for all authentication related to its, and its Users’, access to and use of the Loan Apps and any Third Party Add-ons associated therewith and shall implement and maintain appropriate authentication measures in connection therewith that are no less stringent than accepted industry standards applicable to protecting customer data retrieved from credit bureau agencies against unauthorized access, use, or disclosure while accessible to Client including, but not limited to: (i) a multi-factor authentication solution (“MFA”) that at least complies with the criteria set forth in subparagraph 3(d) below; (ii) Client servers storing User IDs and passwords and/or digital certificate information shall be secured with security measures at least as stringent as the security measures required under the MSA in connection with servers or Systems holding Confidential Information; and (iii) Client shall maintain adequate audit trails and detailed reports regarding access to and use of a Loan App to allow for early detection of fraudulent access and/or investigation of suspicious activity.
 
(d)    Client shall implement and maintain an MFA in connection with the Loan App that: 
 
(i) comprises authentication standards at least as stringent as those outlined in this Schedule and shall be in place prior to accessing or requesting access to use any Programs or attempting to access or retrieve any data from a credit bureau agency through a Loan App; 
 
(ii) includes two (2) or more authentication factors that are accepted as industry standard as follows: 1) Something a User knows, such as an identification code (“IDs”) and a password, passphrase or pin; 2) Something a User has, such as a digital certificate, secure token, a key fob, or a device ID verification; or 3) Something a User is, such as a biometric element that verifies a characteristic inherent to the individual such as a retina scan, iris scan, or fingerprint scan. While other types of information, such as geolocation and time, may be additionally included in the authentication process, at least two of the three factors identified in subparagraph 3(d)(ii)(1)-(3) must always be used;
 
(iii) if IDs and passwords are used for an authentication factor: (1) Client shall have strong password policies in place (for example, a minimum length of eight alpha and numeric characters), with periodic mandatory password changes and such policies must be effectively enforced; (2) IDs and passwords shall be encrypted with strong (at least 128-bit, with 256-bit preferred) encryption keys when they travel over the internet; and (3) Client shall have policies in place that enforce each individual’s responsibility for protecting their passwords and for protecting Confidential Information on Client’s workstations and/or servers;
 
(iv) if digital certificates are used for individual authentication, the certificate authority shall be trusted, the certification process shall be sound, and the certificate shall be protected by the Client; and
 
(v) includes a timeout feature that requires a User to re-authenticate after an extended period of inactivity (such period not to exceed thirty (30) minutes).
 
(d)  Upon termination of the applicable Order Form, Client shall return any Loan Apps located on premise at a Client site, the Loan App Interface, all Modifications and all copies thereof (in any media) to Baker Hill and purge all Loan App Interface, Loan Apps, and Modifications from its computer systems. 
 
4. Baker Hill NextGen® CECL.  If Baker Hill NextGen® CECL is specified in an Order Form, Client acknowledges that: (a) there is no single prescriptive model for CECL compliance; and (b) the Baker Hill NextGen® CECL Program applies Client’s own Client Parameters and Baker Hill has no liability with respect to the model Client chooses to apply.
 
5.  Technical Support.  Baker Hill shall provide Technical Support for the Baker Hill NextGen® Solution modules or other Software specified in an Order Form pursuant to the terms of the MSA.  In addition, Baker Hill may utilize a web-based screen sharing software application to assist in remote diagnosis and resolution of a Technical Support issue.  Use of the web-based screen sharing software application will provide a Baker Hill representative with remote access to Client’s desktop workstation.  An employee of Client will be present at the desktop workstation at all times during any remote access session.  During such remote access session, Baker Hill will not make changes to Client's desktop workstation or computer system without the consent of the employee of Client.  
 
6.  Service Level.  Notwithstanding any cure periods set forth in the MSA, Client shall have the right to terminate the applicable Order Form upon thirty (30) days prior written notice to Baker Hill in the event that the Uptime Percentage of the Baker Hill NextGen® Solution module specified in an Order Form falls below ninety-seven percent (97%) in three (3) consecutive months during the term of the applicable Order Form.  
 
7.    Client Responsibilities.  Baker Hill’s provision of the Baker Hill NextGen® Solution as specified in an Order Form is conditioned on Client’s acknowledgement of, and agreement to, the following: 
 
(a) Baker Hill facilitates the management of credit requests and their advancement through the lending cycle in accordance with Client’s own Client Parameters. Nothing in this Schedule may be construed to make Baker Hill a party to any lending decisions or methodologies, or any content generated by and/or processed through the Baker Hill NextGen® Solution modules or other Programs, and Baker Hill makes no representation or warranty regarding Client Data generated, stored, and/or shared using the Baker Hill NextGen® Solution;  
 
(b) Use of certain modules and/or features of the Baker Hill NextGen® Solution may require a Third-Party Account, including for example Baker Hill NextGen® Consumer Loan Origination and Baker Hill NextGen® Small Business Loan Origination. If Client purchases such modules/functionality in an Order Form, Client is solely responsible for registering and maintaining any such Third-Party Account to facilitate the use of or otherwise interact with the Baker Hill NextGen® Solution.  Client’s use of any service provided by way of a Third-Party Account is subject to separate terms governing the use of such service (as referenced in the Order Form, if applicable, as presented by such third party when first used, or to which notice is otherwise provided). Baker Hill does not have access to any Client Data that may be stored outside the Baker Hill NextGen® Solution or System by Client, including any Client Data stored in any Third-Party Account established and maintained by Client; 
 
(c) Client shall be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Client Data, and all other data of any kind contained within emails or otherwise entered electronically through the Baker Hill NextGen® Solution, to the Systems, or under a Client’s account. Baker Hill will act as though any Electronic Communications it receives under Client’s passwords, user names and/or account number will have been sent by Client; and
 
(d) To the extent specified in an Order Form, Client may use the Baker Hill NextGen® Customer Portal to send requests for electronic review of specific content generated and/or stored on the  Baker Hill NextGen® Customer Portal to third party users who are not authorized Users (e.g., Client’s customers) or to otherwise make Client Data available to such third party users through the Baker Hill NextGen® Customer Portal. Client shall be solely responsible for the activities conducted by the Client and its users within the Baker Hill NextGen® Customer Portal and Baker Hill shall not have any responsibility or liability for data input into the Baker Hill NextGen® Customer Portal thereby.
 
8.  Disclaimers. Except for the representations, warranties, and covenants expressly stated in the MSA, and subject to the additional limitations of liability therin, Baker Hill: (A) MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND - WHETHER EXPRESS, IMPLIED IN FACT OR BY OPERATION OF LAW, OR STATUTORY - AS TO ANY MATTER WHATSOEVER; AND (B) DOES NOT WARRANT THAT THE SOFTWARE DESCRIBED IN THIS SCHEDULE WILL MEET CLIENT'S REQUIREMENTS. IN THE EVENT AN APPLICATION IS NOT CORRECTLY PROCESSED BY BAKER HILL NEXTGEN® CONSUMER LOAN ORIGINATION OR BAKER HILL NEXTGEN® SMALL BUSINESS LOAN ORIGINATION, THE SOLE RESPONSIBILITY OF BAKER HILL AND CLIENT'S EXCLUSIVE REMEDY, SHALL BE FOR BAKER HILL TO REPROCESS THE APPLICATION THROUGH THE APPLICABLE SOFTWARE AT NO ADDITIONAL CHARGE TO CLIENT.  
 
9.  Subscription Plans and Fees.  Pricing information is set forth in the applicable Order Form.

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Baker Hill NextGen Schedule revision date: 10/29/20