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Terms of Service Agreement

This Confidentiality/Non-Disclosure Agreement (“Agreement”) is made by Midwest Business Solutions, LLC d/b/a PACTOLA and the institution that has received loan information, regarding the exchange of Confidential Information in connection with loan participation opportunities said institution wishes to invest in or loans the institution has already invested in. 

Definitions
Confidential Information may include, but is not limited to: member, borrower, or customer information, strategic plans of the Seller, loan portfolio information, account information, current and projected business volumes, and product pricing strategies, regardless of the form of the information. Any and all ideas and concepts disclosed regarding product design, marketing, and promotional ideas are disclosed as Confidential Information and are the exclusive property of Seller and Servicer. 

Member or Customer Information may be any information and materials disclosed by the Seller or Servicer which are confidential, nonpublic, or proprietary in nature that relates to the Member or Customer of the Seller.

Purchaser is defined as any entity that has purchased or is considering to purchase a portion of a loan managed by Pactola. Purchaser is also defined as a Potential Purchaser. 

Seller is the lead lender or potential lead lender in a loan participation managed by Pactola. Seller is also defined as a Potential Seller and/or any affiliates, business relationships of the Seller.

Servicer is Midwest Business Solutions, LLC d/b/a PACTOLA. Servicer also acts as an agent of the Seller.

Purchaser Agreement
Both parties acknowledge that in considering the sale and purchase of loan participation interest in the loans of each other, the Purchaser of the loan participation interest may be provided with Confidential Information and Member or Customer Information. Depending on the contemplated transaction either party may be a Purchaser or a Seller. As a condition to the Purchaser being furnished with Confidential Information, the Purchaser acknowledges and agrees as follows:

1.   Any and all information provided to the Purchaser regarding (i) the Seller, and (ii) non-public personal information of the Seller’s Member or Customers, any Confidential Information and (iii) any Confidential Information related to the Servicer is all considered confidential and proprietary information of the Seller and Servicer. The Purchaser shall not make any proprietary claim to any of the Confidential Information. Purchaser also agrees to not contact Seller’s customer without written permission from Seller.

2.   The Purchaser shall keep all Confidential Information disclosed now, and in the future, in confidence and will not publish or disclose, directly or indirectly, or authorize the publication of disclosure of, or assist any third party in publishing or disclosing any Confidential Information without obtaining the prior written consent of Seller. The Purchaser shall only use Confidential Information in connection with the uses specifically authorized by Seller in writing, and will not be used in any other business plans or activities with other parties. The Purchaser shall destroy all Confidential Information for a loan purchased according to all standard regulatory and record keeping requirements after the loan has paid off.

3.   Confidential Information shall only be disclosed by the Purchaser to employees, representatives, or advisors and agents, who need to know this information to assist the Potential Purchaser, and will be held to the same level of confidentiality as the Purchaser would hold its own confidential information of this nature. The Purchaser will advise employees, and said third parties, of the confidential nature of the Confidential Information. In the event that there is an actual or suspected disclosure in breach of this Agreement, the party with the knowledge shall notify the other so that mitigating actions can be taken.

4.   The Purchaser’s obligations as stated in this Agreement, shall survive the termination, for whatever reason, of any contractual or other arrangements between the Purchaser and Seller.

5.   This Agreement shall be governed by the laws of the State of South Dakota.

6.   Confidential Information is a valuable, special and unique asset of Seller’s and Servicer’s business and damages can result from unauthorized use or disclosure of Confidential Information by the Purchaser. As such, a breach or threatened breach of any covenant contained herein would cause irreparable injury to Seller and its members and money damages would be an inadequate remedy and the amount of such damages would be extremely difficult to measure. It may not be possible to establish proof of the extent of damages arising from unauthorized disclosure of Confidential Information. Accordingly, if the Purchaser breaches this Agreement, the Purchaser agrees that Seller shall be entitled to temporary and permanent injunctive relief to restrain the Purchaser and the employees from such breach or threatened breach, or to any and all similar relief available under applicable law. Nothing in this Agreement shall be construed as preventing Seller and/or Servicer from pursuing any and all remedies available to it for a breach or threatened breach, including the recovery of money damages from the Purchaser and its employees and agents. 

7.   Seller is requires to comply with conditions established by the Gramm-Leach-Bliley Act (“GLBA”) as implemented by the National Credit Union Administration (12 CFR Section 716.1 et seq.) or the Office of Comptroller of the Currency as related to a bank seller. The Purchaser shall comply with the standards set forth in appropriate governing regulations that govern the Purchaser. 

8.   The Purchaser hereby agrees to indemnify, defend and hold Seller harmless from any and all liability, including but not limited to, expenses, costs, and fees incurred by or threatened against Seller in connection with the Purchaser’s use of the Confidential Information and/or any breach by Purchaser of this Agreement.

9.   The execution of this Agreement by the Purchaser is the inducement to Seller to permit the Purchaser access to the Confidential Information, which the Purchaser acknowledges as valuable and sufficient consideration to be legally bound by this Agreement.

10.   The person receiving this information acknowledges that he/she is authorized to act on behalf of the Purchaser financial institution.

11.   This Agreement shall survive the entering into and termination of any Loan Participation Agreement entered into between the parties. 

User Information for the File Sharing System
Pactola has created this proprietary file sharing system to assist in the dissemination of information for new and existing loan files. The system may also provide payment, loan file history, and other financial reports for Sellers and Purchasers, and third party agents of Sellers and Purchasers, such as Auditors, Accountants, and Examiners. 

All parties who are using the Pactola file sharing system agree that the system contains Confidential Information of both Sellers and Purchasers and also Confidential Information of Members, Customers, Borrowers, and/or Guarantors. Any such information shall be kept confidential and secure as any Seller or Purchaser would their own loan files, realizing that they must have the utmost care of privacy and security of said information.

All users of the system will be issued their own individual or group user name. Users will be required to establish their own passwords. Users will not share their unique user password with anyone and will notify Pactola in such cases or in the event of a lost password in order to have the password reset.

Sellers and Buyers will notify Pactola of any personnel changes that will result in the addition of people who may access this system, or the deletion of anyone who will must have their access removed. 

Any security breech or unauthorized usage of the system must be reported to Pactola immediately.

Pactola reserves the right to revoke the use of any individual or group for this system.

Third party auditors, accountants, or examiners will be provided their own sign in and access and must not be given the primary access user name and password of any other user. Auditor request must be provided in writing to Pactola using the auditor request form.
Accept Terms Of Use