NONDISCLOSURE and CONFIDENTIALITY AGREEMENT
This Nondisclosure Agreement (this “Agreement”) is made effective as of 2021 (the “Effective Date”), by and between American Mortgage Services, Inc (the “Owner”), and (the “Recipient”), of The Owner is a special purpose financial services or mortgage business dealing in non public information. The purpose of this confidentiality agreement is to insure complete confidentiality as to the nature of the business. The Owner has requested that the Recipient who is a third party settlement services provider, protect the confidential material and information which may be disclosed between the Owner and the Recipient. Therefore, the parties agree as follows.
1.Confidential Information. The term “Confidential Information” means any information or material which is proprietary to the Owner, whether or not owned or developed by the Owner, which is not generally known other than by the Owner, and which the Recipient may obtain through any direct or indirect contact with the Owner.“Confidential Information”
includes without limitation:
- mortgage broker or customer business records and plans
- mortgage broker or customer financial statements
- trade secrets
- technical information
- pricing structure and any other proprietary or non-public information.
does not include:
- matters of public knowledge that result from disclosure by the Owner;
- information rightfully received by the Recipient from a third party without a duty of confidentiality;
- information independently developed by the Recipient;
- information disclosed by operation of law;
- information disclosed by the Recipient with the prior written consent of the Owner; and any other information that both parties agree in writing is not confidential.
2.Protection of Confidential Information. The Recipient understands and acknowledges that the Confidential Information has been developed or obtained by the Owner by the investment of Compliance Services USA (C) 2021 Book One Operating Policies and Procedures significant time, effort and expense, and that the Confidential Information is a valuable, special and unique asset of the Owner which provides the Owner with a significant competitive advantage, and needs to be protected from improper disclosure. In consideration for the receipt by the Recipient of the Confidential Information, the Recipient agrees as follows:
- No Disclosure. The Recipient will hold the Confidential Information in confidence and will not disclose the Confidential Information to any person or entity without the prior written consent of the Owner.
- No Copying Modifying. The Recipient will not copy or modify any Confidential Information without the prior written consent of the Owner.
- Unauthorized Use. The Recipient shall promptly advise the Owner if the Owner becomes of aware of any possible unauthorized disclosure or use of the Confidential Information.
- Application to Employees. The Recipient shall not disclose any Confidential Information to any employees of the Recipient, except those employees who are required to have the Confidential Information in order to perform their job duties in connection with the limited purposes of this Agreement. Each permitted employee to whom Confidential Information is disclosed shall sign a nondisclosure agreement substantially the same as this Agreement at the request of the Owner.
3.Unauthorized Disclosure of Information – Injunction. If it appears that the Recipient has disclosed (or has threatened to disclose) Confidential Information in violation of this Agreement, the Owner shall be entitled to an injunction to restrain the Recipient from disclosing the Confidential Information in whole or in part. The Owner shall not be prohibited by this provision from pursuing other remedies, including a claim for losses and damages.
4.Return Of Confidential Information. Upon the written request of the Owner, the Recipient shall return to the Owner all written materials containing the Confidential Information. The Recipient shall also deliver to the Owner written statements signed by the Recipient certifying that all materials have been returned within five (5) days of receipt of the request.
5.Relationship Of Parties. Neither party has an obligation under this Agreement to purchase any service or item from the other party, or commercially offer any products using or incorporating the Confidential Information. This Agreement does not create any agency, partnership, or joint venture.
6.No Warranty. The Recipient acknowledges and agrees that the Confidential Information is provided on an “AS IS” basis. THE OWNER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE CONFIDENTIAL INFORMATION AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL THE OWNER BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, OR Compliance Services USA (C) 2021 Book One Operating Policies and Procedures CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OR USE OF ANY PORTION OF THE CONFIDENTIAL INFORMATION, The Owner does not represent or warrant that any product or business plans disclosed to the Recipient will be marketed or carried out as disclosed, or at all. Any actions taken by the Recipient in response to the disclosure of the Confidential Information shall be solely at the risk of the Recipient.
7.Limited License to Use. The Recipient shall not acquire any intellectual property rights under this Agreement except the limited right to use as set forth above. The Recipient acknowledges that, as between the Owner and the Recipient, the Confidential Information and all related copyrights and other intellectual property rights, are (and at all times will be) the property of the Owner, even if suggestions, comments, and/or ideas made by the Recipient are incorporated into the Confidential Information or related materials during the period of this Agreement.
8.Indemnity. Each party agrees to defend, indemnify, and hold harmless the other party and its officers, directors, agents, affiliates, distributors, representatives, and employees from any and all third party claims, demands, liabilities, costs and expenses, including reasonable attorneys fees, costs and expenses resulting from the indemnifying party’s material breach of any duty, representation, or warranty under this Agreement
9.Attorneys Fees. In any legal action between the parties concerning this Agreement, the prevailing party shall be entitled to recover reasonable attorneys fees and costs.
10.General Provisions. This Agreement sets forth the entire understanding of the parties regarding confidentiality. Any amendments must be in writing and signed by both parties. This Agreement shall be construed under the laws of the State of Florida. This Agreement shall not be assignable by either party. Neither party may delegate its duties under this Agreement without the prior written consent of the other party. The confidentiality provisions of this Agreement shall remain in full force and effect at all times after the effective date of this Agreement. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the remaining portions of this Agreement shall remain in full force and effect and construed so as to best effectuate the original intent and purpose of this Agreement.
Owner (Broker or Lender):
Compliance Services USA (C) 2021 Book One Operating Policies and Procedures
Enterprise Wide Risk Assessment
1. Operational Controls: Description of Function: These are the agreed upon policies and procedures by which the management of the company can properly monitor its compliance with State and Federal Laws and Regulations. These policies and procedures include the following:
- AML, OFAC, and BSA Fincen Procedure for SARS reporting
- Red Flag Grids and Training on how to utilize
- Non-Disclosure Agreements and when to require them
- Secure Transmission Procedures
- Identity Theft Prevention Plan including Red Flag Grid
- New York Only: Fair Lending Act Policy and Procedures amended to include GENDA and NY Executive Letter 296-A
- Respa Policy non-Trid
- TILA Respa Policy TRID
- FTC Advertising Policy
- Customer Complaint Policy and Procedure
- QM, Ability to Repay, and Anti-Steering Policies
- File Retention Policy
- Cybersecurity Policy with Exemption Forms if applicable
- Proforma annual and semi-annual corporate governance minutes o Sexual Harassment Concerns when applicable due to the company’s number of employees.
- Management Review and Reporting of deficiencies
- Record Keeping
Risk Assessment: As the company has an ongoing compliance program in place, its risk assessment for Operational Controls is moderate at present.
- The company shall complete a risk assessment analysis of every operational control above at least semi-annually. At that time, the rating can be adjusted up or down.
- Annually, the auditor who handles the end of year financial audit will be required to address compliance with operational controls. A second risk assessment rating shall be assigned by the auditor and included in the audit notes.
10.Impact of Licensee Deficiencies on their Regulatory Risk: Any combination of one or more of the above creates regulatory risk.
Risk Assessment: At the present date, risk assessment is low.
Specific Mitigation Control: The cure for any conduct creating regulatory risk, is to promptly cure the conduct in question
- Identify the source.
- Retrain, and if necessary, discipline the employee.
- Create a permanent written record about the incident and the solution.
Impact from Regulatory Changes outside the control of the Licensee: As this is a highly regulated industry, the potential for regulatory change is moderate.
Risk Assessment: At the present date, the risk is moderate.
Specific Mitigation Control:
- Compliance Officer subscribes to regulatory update web sites and reads the updates once a month.
- Compliance Officer takes concerns over application and implementation to outside compliance counsel as need arises.
- Annually, outside compliance counsel reviews changes with Compliance Officer to validate compliance.