Appraisal.com: Matching real estate appraisers and appraisal users...

1. TERMS OF USE

Welcome to Appraisal.com's Terms of Use Agreement ("Agreement"). This is a legal contract between you and Appraisal.com. Please read the entire Agreement carefully before accessing or using the www.appraisal.com website, affiliate sites, or any information, products, software, services or other features. Appraisal.com will provide its services to you only upon your acceptance of this Agreement.

THIS AGREEMENT ESTABLISHES THE TERMS AND CONDITIONS TO WHICH YOU AGREE AND ARE SUBJECT WHEN ACCESSING OR USING APPRAISAL.COM SITE. BY ACCEPTING THE TERMS OF THIS AGREEMENT, YOU ACCEPT ALL ASPECTS OF THIS AGREEMENT. EACH TIME THAT YOU ACCESS OR USE THE APPRAISAL.COM WEBSITE, YOU RE-AFFIRM YOUR CONSENT TO THE THEN-EXISTING TERMS OF USE.

Except as otherwise provided, this Agreement applies to all Users of any service at Appraisal.com.

2. USE OF TERMS

In this Agreement,

a. "Appraisal.com" means "Appraisal.com, Inc.," the Internet service operated by Appraisal.com, Inc., a Delaware corporation.

b. The "Site" and the "Website" refer to the website www.appraisal.com.

c. "Appraiser" means a licensed real estate appraiser, appraisal company or similar appraisal professional.

d. "Affiliate User" means an organization which has established a relationship with Appraisal.com, Inc. for the purposes of handling transactions through the Site.

e. "Agent" or "Real Estate Agent" means a real estate broker, sales person, agent, associate broker or similar licensed real estate professional.

f. "Covered Parties refers to Appraisal.com, Inc., its directors, officers, shareholders, employees, and agents.

g. "Homeowner" means a person who owns a residence and may be considering its sale or a person who is actively interested in purchasing a home.

h. "Other" refers to persons other than Appraisers, Real Estate Agents, and Homeowners, including but not limited to attorneys, paralegals, mortgage brokers, mortgage lenders, financial institutions and other entities and individuals.

i. "User" means any user of the Appraisal.com service, including but not limited to Appraisers, Real Estate Agents, Affiliates, Homeowners, and Others.

j. "You" refers to any User of the Site.

k. "Appraiser Profile" means a description of an Appraiser's general background and experience.

3. USE OF MATERIAL

a. You are granted a nonexclusive, nontransferable, limited license to access and use the Site in accordance with this Agreement.

b. All right, title, and interest (including all copyrights and other intellectual property rights) in Appraisal.com (in both print and machine-readable forms) belong to Appraisal.com. You acquire no proprietary interest in Appraisal.com. You may not remove or obscure the copyright notice or other notices contained in information, products, and software retrieved from Appraisal.com or the Site.

c. The contents of Appraisal.com, such as text, graphics, images and other material ("Material"), are protected by copyright under both United States and foreign laws. Unauthorized use of the Material may violate copyright, trademark and other laws. You must retain all copyright and other proprietary notices contained in the original Material on any copy you make of the Material.

d. You must receive express permission from Appraisal.com if you (a) sell or modify the Material or reproduce, display, publicly perform, distribute, decompile, reverse engineer, disassemble, rent, lease, loan, sublicense, or create derivative works from Appraisal.com, which includes the information and software made available therein; (b) copy, modify, reproduce, republish, distribute, transmit or use for commercial or public purposes Appraisal.com, except to the extent required in order for you to use Appraisal.com in the manner expressly intended by Appraisal.com; (c) export or re-export Appraisal.com in violation of the export control laws and regulations of the United States of America; (d) the use of the Material on any other website or in a networked computer environment for any purpose. Please contact Appraisal.com regarding these or related matters at webmaster@appraisal.com.

e. If you violate the previous term or any other terms herein contained, Appraisal.com shall have the right to recover damages from you in an amount equal to (1) three times Appraisal.com's actual damages or (2) the maximum allowable under the law, whichever is more.

f. In that all data provided by Appraisal.com is obtained from public records, and other outside sources, Appraisal.com has used its best efforts but does not make any representations that such data is accurate, and you use this data at your own risk.

g. There is not necessarily a relationship between Appraisal.com and the third party owners of any websites accessible through hot links in Appraisal.com, and those third party owners and their licensees retain all right, title and interest (including all copyrights and other intellectual property rights) in such third party websites and the materials available therein.

h. You may provide hot links to Appraisal.com from locations outside Appraisal.com provided (a) you link only to the home page www.Appraisal.com, (b) you do not remove or obscure, by framing or otherwise, advertisements, the copyright notice or other notices in Appraisal.com, (c) you give Appraisal.com timely notice of such link by sending an e-mail message to webmaster@appraisal.com and (d) you discontinue providing hot links to Appraisal.com if notified by Appraisal.com.

4. ACCESS TO APPRAISAL.COM

a. Information, products, software, services and features may be added to or withdrawn from the Site at Appraisal.com's sole discretion, and Appraisal.com otherwise be changed without notice.
b. Appraisal.com contains links to third party Web sites. These links are provided solely as a convenience to you and not as an endorsement by Appraisal.com of the contents of such third-party Web sites. Appraisal.com is not responsible for the content of linked third-party sites and does not make any representations regarding the content or accuracy of materials on such third party Web sites. If you decide to access the linked third-party Web sites, you do so at your own risk.

5. MODIFICATION OR DISCONTINUATION OF SERVICE

a. Appraisal.com does not guarantee continuous, uninterrupted or secure access to our services, and operation of the Site may be interfered with by numerous factors both inside and outside of our control. From time to time, system maintenance will be necessary, and, under such circumstances, Appraisal.com will notify its users in advance by posting a message on the Site and/or sending an e-mail notice to registered members' e-mail addresses.

b. Appraisal.com reserves the right to modify or discontinue the site or any portion thereof with or without notice to any User.

c. Appraisal.com shall not be liable to any User or other party should Appraisal.com exercise its right to discontinue the site.

6. SYSTEM INTEGRITY

a. As a User you agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Site or any service being performed by the Site.

b. As a User you agree not to take any action that imposes an unreasonable or disproportionately large load on our infrastructure.

c. If you are issued a password, you agree not to disclose your password to any third party or use your password for any unauthorized purpose.

THE FOLLOWING PARAGRAPH 7 APPLIES TO APPRAISERS WHO ENROLL AS MEMBERS
OF THE APPRAISAL.COM NATIONWIDE APPRAISAL NETWORK AND USE APPRAISAL.COM:

7. By enrolling as a member of Appraisal.com's Nationwide Appraisal Network, you as an Appraiser warrant and agree that:

a. You are of legal age and otherwise capable of forming a binding legal contract;

b. You will:

i. Always submit true, current and complete information about yourself for the Appraiser Profile to Appraisal.com;

ii. Maintain and promptly update your Appraiser Profile to keep it true, current and complete;

iii. Always submit true, current and complete information about properties, appraisals, and other information to Appraisal.com and its Users;

iv. Never transfer or assign your membership nor share or distribute your own or any other member's name or password information to anyone;

c. You have complied with all licensing and regulatory requirements applicable to real estate appraisers in the geographic areas you have listed as part of your member enrollment form and you are a licensed and/or certificated real estate appraiser;

d. You will not use the information obtained through Appraisal.com to locate, identify or directly contact any Homeowner or User in any manner without prior express written permission from Appraisal.com;

e. You will not submit more than one Appraiser Profile without prior express written permission from Appraisal.com;

f. You will not take any action that may undermine the integrity of the User Feedback System, including, without limitation: leaving positive feedback for yourself using secondary accounts or third parties. Appraisal.com reserves the right to terminate the membership of any Appraiser whose negative feedback rating falls below a minimum level set by Appraisal.com at its sole discretion;

g. You will not use your rating from the User Feedback System for any purpose other than to facilitate the purposes of Appraisal.com and its Users, including, without limitation, marketing or promoting your Appraisal.com feedback rating in any venue other than the Site, without prior express written permission from Appraisal.com;

h. You will not use any service provided by Appraisal.com to impersonate or portray another person or entity, to communicate under a false name or name you are not authorized to use or otherwise engage in false or fraudulent practice(s). Furthermore, you recognize that fraudulent use(s) of any service provided by Appraisal.com may subject you to liability.

i. Appraisal.com is completely independent from you. You and Appraisal.com are not engaged in any agency, partnership, joint venture, employee-employer, franchisee-franchiser or other type of relationship and no such relationship(s) are intended nor created by this Agreement. Appraisal.com will remit 90% of your agreed upon fee, less any direct costs, approximately 30 days after you have completed and submitted your proper and complete appraisal report. Appraisal.com reserves the right to withhold payment until any outstanding customer service issues are resolved and/or change the fee remittance schedule at any time.

j. You expressly agree to allow Appraisal.com to offset any payments made to you in order to recoup service fees that may be owed by you to Appraisal.com, in accordance with the then-current Appraisal.com service fee schedule. Examples of service fees include (but are not limited to) recurring membership charges, service charges for failure to upload using the Appraisal.com secure appraisal upload servers and/or NAN/NOVA integration module, service charges for late delivery of appraisals, service charges for the removal of invoices or other non-permissible documents, etc.

k. Appraisal.com assumes no liability for the payment to you for cancelled orders. Appraisal.com does not pay "trip charges" or similar fees for cancelled orders.

l. As a condition of using the Appraisal.com Nationwide Appraisal Network, you hereby release Appraisal.com, its staff, its officers, its affiliates and its clients from any liability above and beyond the agreed upon fee for any appraisal order. In the event that you file suit against Appraisal.com, its staff, its officers, its clients and/or its affiliates, you agree to pay 100% of the legal fees incurred by the opposing party to defend themselves, if the opposing party prevails. You will not place, or attempt to place any liens or lis pendens on any property associated with any appraisal order delivered through the Appraisal.com Nationwide Appraisal Network.

m. If you have named a company as an “Approved Lending Institution” in the “My Lenders” section of your Appraisal.com Nationwide Appraisal Network account, and that selected lender subsequently rejects an appraisal because the appraiser(s) stated on the appraisal report is (are) not on their approved vendor list, no payment will be made by due to you, or made to you by Appraisal.com, for that appraisal order.

n. Unless you provide written notice to Appraisal.com of your desire to cancel, sent by receipt-requested delivery method (i.e. overnight courier or Registered US Mail but NOT by email), your membership in the Appraisal.com Nationwide Appraisal Network will automatically renew each year on the anniversary date of your initial sign-up and may be cancelled by Appraisal.com at any time. You authorize Appraisal.com to charge your supplied credit card for your annual membership charges each year on (or about) the anniversary of your initial sign-up. Failure by you to make use of your account and/or update your contact information does not constitute cancellation of your account. You will be liable for all charges associated with maintaining an active account until the later of the (i) end of the current annual membership period or (ii) the date of receipt by Appraisal.com of your written notice of cancellation of membership, sent by receipt-requested delivery method. Appraiser membership fees for the Appraisal.com Nationwide Appraisal Network are considered "earned" upon the completion of the first day of membership and are, thus, neither refundable in whole nor in a pro-rated fashion.

o. Appraisal.com reserves the right to review any and all appraisals and require changes to be made to the appraisal(s) in order to meet USPAP and/or other government requirements and/or bring the appraisal(s) into compliance with appraisal.com's standard appraisal requirements. If, during the revision process, additional comparable(s) are requested by the client, the appraiser will add them at a price not to exceed the terms noted in the order's Letter of Engagement. Appraisal.com will withhold payment for any appraisal that fails review until any required changes have been made.

p. The appraiser will comply within 2 business days to any Value Review Request Form that is submitted to them. They will review the form and respond to us in one of two ways; upload a revised report or you may upload a written rebuttal (in PDF format) with the reason(s) a change is not warranted.

THE FOLLOWING PARAGRAPH 8 APPLIES TO REAL ESTATE AGENTS, MORTGAGE BROKERS AND MORTGAGE LENDERS USING APPRAISAL.COM:

8. RESPONSIBILITIES OF REAL ESTATE AGENTS, MORTGAGE BROKERS AND MORTGAGE LENDERS

a. By using Appraisal.com, you as a Real Estate Agent, Mortgage Broker, Mortgage Lender (or the representative of a Real Estate Agent, Mortgage Broker or Mortgage Lender) represent, warrant and agree that:

i. You are of legal age and are otherwise capable of forming a legally binding contract;

ii. You understand that Appraisal.com does not conduct comprehensive audits of Appraisers' Profiles or other information that has been submitted by the Appraisers;

b. You will not use any service provided by Appraisal.com to impersonate or portray another person or entity, to communicate under a false name or name you are not authorized to use, or otherwise engage in false or fraudulent practice(s). Furthermore, you recognize that fraudulent use(s) of any service provided by Appraisal.com may subject you to liability.

c. Appraisal.com is completely independent from you. You and Appraisal.com are not engaged in any agency, partnership, joint venture, employee-employer, franchisee-franchiser or other type of relationship and no such relationship(s) are intended nor created by this Agreement.

d. You agree to pay Appraisal.com for all products and services you order in a timely fashion and you furthermore agree that the cancellation of an order by you does not relieve you from the responsibility to pay Appraisal.com in full for that order. You agree to pay late fees, invoicing fees and interest in the greater of 1.5% per month or the largest amount allowed by law interest on any amounts which are due and owing for more than 30 days.

e. From time to time, Appraisal.com may assess cancellation fees on any cancelled orders and/or other service fees, according to the Appraisal.com Fee Schedule. You agree to pay the full amount of these fees as well as late fees, invoicing fees and interest in the greater of 1.5% per month or the largest amount allowed by law interest on any amounts which are due and owing for more than 30 days. Account holders who place more than 25 orders per month may request a waiver of cancellation fees from Appraisal.com, however such waiver shall not be granted until such time as the account holder agrees, in writing, to the terms and conditions of Appraisal.com's cancellation fee waiver agreement.

THE FOLLOWING PARAGRAPH 9 APPLIES TO HOMEOWNERS AND OTHER USERS OF APPRAISAL.COM:

9. RESPONSIBILITIES OF HOMEOWNERS

a. By using Appraisal.com, you as a Homeowner represent, warrant and agree that:

i. You are of legal age and are otherwise capable of forming a legally binding contract;

ii. You understand that Appraisal.com does not conduct comprehensive auditing of the information submitted by appraisers;

THE FOLLOWING PARAGRAPH 10 APPLIES TO AFFILIATE USERS OF APPRAISAL.COM:

10. RESPONSIBILITIES OF AFFILIATE USERS

a. By using Appraisal.com, you as an Affiliate represent, warrant and agree that:

i. You will always submit true, complete and accurate information to Appraisal.com and its Users;

ii. You will maintain and promptly update information submitted to Appraisal.com to keep it true, complete and accurate; and

b. You will never transfer or assign your affiliation with another entity without prior express permission from Appraisal.com.

c. You are of legal age and are otherwise capable of forming a legally binding contract;

d. You will comply with the Affiliate Requirements, and

e. You will not use any service provided by Appraisal.com to impersonate or portray another person or entity, to communicate under a false name or name you are not authorized to use, or otherwise engage in false or fraudulent practice(s). Furthermore, you recognize that fraudulent use(s) of any service provided by Appraisal.com may subject you to liability.

f. Appraisal.com is completely independent from you. You and Appraisal.com are not engaged in any agency, partnership, joint venture, employee-employer, franchisee-franchiser or other type of relationship and no such relationship(s) are intended nor created by this Agreement.

THE FOLLOWING PARAGRAPH 11 APPLIES TO USERS OF AUTOMATED DATA AND PROPERTY REPORTS INCLUDING, BUT NOT LIMITED TO, THE APPRAISAL.COM AVM, AVR, COMP CHECK, NEIGHBORHOOD ANALYSIS AND SIMILAR REPORTS:

11. By ordering, using and/or receiving any automated data reports containing data from Fidelity National Data Services, you agree to the following additional terms and conditions.

1. Confidentiality: You ("SUBLICENSEE") acknowledge Fidelity National Data Services, a Delaware Corporation, ("FNDS") holds valuable rights in and to the compilations of the Licensed Data Reports and the underlying data that those compilations contain, including FNDS copyrights and other proprietary rights therein, the related data sources, database structure, processing software, production systems, documentation, and quality control methods as well as the any other information provided by FNDS or on behalf of FNDS to SUBLICENSEE (collectively, “FNDS Confidential Information”). SUBLICENSEE agrees to hold in confidence the FNDS Confidential Information, in whole or in part, except in connection with those uses that are consistent with the license granted herein and as disclosed to Client’s employees, officers, directors or agents who require such disclosure in the performance of their responsibilities provided that such parties shall acknowledge the confidentiality restrictions contained herein. SUBLICENSEE further agrees that it will not disclose or otherwise make available to third parties the FNDS Confidential Information. The above restrictions shall not apply to information that is

(a) generally available to the public or any relevant trade group,

(b) independently developed by SUBLICENSEE or obtained by SUBLICENSEE from a third party who, to SUBLICENSEE’S best knowledge, after due inquiry of FNDS, is not in violation of any duty of confidentiality to FNDS by the disclosure thereof,

(c) approved for release by the prior written authorization of FNDS, or

(d) required to be disclosed by law, regulations, or legal process by a court or government agency (but only with respect to the portion of the FNDS Confidential Information that is required to be disclosed); provided that prior to any such release, SUBLICENSEE shall give FNDS prompt notice thereof, and in no event less than seven business days prior notice of such release, unless such notice is expressly precluded by applicable law or governmental order.

2. Disclosure: SUBLICENSEE acknowledges that this Agreement is subject in all respects to the terms and provisions of the Services Agreement. Except as explicitly provided in the Services Agreement, SUBLICENSEE may not copy, disclose, commingle or archive the Licensed Data Reports or Data or other FNDS Confidential Information. Further, without FNDS’s prior written consent, SUBLICENSEE will not

(a) Disclose any portion of the Licensed Data Reports or other FNDS Confidential Information in any manner;

(b) Make any copies of the Licensed Data Reports or any other FNDS Confidential Information in any form except for those copies needed to produce LICENSEE’s products; or

(c) Transfer the Licensed Data Reports or any other FNDS Confidential Information to any other party; or

(d) Market the Licensed Data Reports directly or indirectly to any member of the legal industry.

3. Enforcement and Survival. SUBLICENSEE acknowledges that (a) the remedy at law for any breach by it of this Agreement shall be inadequate and that FNDS shall also be entitled to injunctive relief and (b) its obligations under this Agreement shall survive the termination of the Services Agreement.

12. WARRANTY DISCLAIMER

THE WEBSITE IS PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS AND APPRAISAL.COM AND EACH THIRD PARTY SUPPLIER EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.

13. LIMITATION OF LIABILITY

a. A Covered Party (as defined below) shall not be liable for any loss, injury, claim, liability, or damage of any kind resulting from, arising out of or any way related to:

i. any errors in or omissions from Appraisal.com,

ii. any third party websites or content therein directly or indirectly accessed through hot links in Appraisal.com, including but not limited to any errors in or omissions therefrom,

iii. the unavailability or interruption of Appraisal.com or any portion thereof,

iv. your use of Appraisal.com (regardless of whether you received any assistance from any Covered Party),

v. the content of Appraisal.com,

vi. any inaccuracies or mistakes obtained by public records or other outside sources, or

vii. any delay or failure in performance by Appraisal.com or any Covered Party.

b. "Covered Party" means Appraisal.com, its successors, representatives, principals, employees, servants, agents, administrators, attorneys, affiliated corporations, parent corporations, subsidiaries, assigns, and licenses.

14. USER REPRESENTATIONS; INDEMNIFICATION

a. You hereby represent and warrant that (a) any information you have provided to Appraisal.com is true and accurate, (b) you will at all times comply with all applicable laws, rules, and regulations with respect to your use of Appraisal.com, (c) you will comply at all times with this Agreement.

b. You will indemnify and hold harmless all Covered Parties against any and all judgments, settlements, penalties, costs and expenses (including attorneys' fees) paid or incurred in connection with claims due to, resulting from or arising in connection with activities and information which are performed, made, distributed, displayed, transmitted or published by you, including but not limited to those attributable to (a) infringement, misappropriation or violation of any copyrights or other proprietary rights of any third party, and (b) errors in or omissions from such activities and information.

c. You agree to defend all Covered Parties against any cause of action or proceeding which arises in connection with any claim or proceeding due to, resulting from or arising in connection with activities and information which are performed, made, distributed, displayed, transmitted or published by you. Your obligation to indemnify the Covered Parties will survive the expiration or termination of this Agreement by you or any Covered Party for any reason. You shall pay for the defense, including costs and/or attorneys' fees, of any such third party action arising as described herein unless the Covered Parties agree otherwise.

15. APPRAISAL.COM PRIVACY STATEMENT

Registration and certain other information about you is subject to our Privacy Statement. For information, please review our full policy at privacy statement.

16. MISCELLANEOUS

a. This Agreement may be changed from time to time as described below or by written agreement. Charges and payment terms may be changed in accordance with your applicable price schedule; Appraisal.com may change all other provisions immediately upon notice. Your access to Appraisal.com may be terminated immediately upon notice to Appraisal.com if any change is unacceptable. Continued use of Appraisal.com following any change constitutes acceptance of the change.

b. Appraisal.com or the User may terminate the subscription for access to Appraisal.com. The effective date of termination shall be ten days after the receipt of an appropriate notice of termination, unless a later date is specified in the notice. Appraisal.com may suspend or discontinue providing your access to Appraisal.com without notice and pursue any other remedy legally available to you if you fail to comply with any of your obligations hereunder.

c. Except as otherwise provided herein, all notices and other communications hereunder shall be in writing or displayed electronically in Appraisal.com. Notices shall be deemed to have been properly given on the date deposited in the U.S. mails, if mailed; on the date first made available, if displayed in Appraisal.com; or on the date received, if delivered in any other manner.

d. Users may not assign their rights or delegate their duties without the prior written consent of Appraisal.com.

e. The Agreement shall be governed by and construed in accordance with all applicable New York State and Federal laws. Both parties submit to jurisdiction in Erie County, New York.

f. Each third party supplier of Materials has the right to assert and enforce these provisions directly on its own behalf as a third party beneficiary.

g. Should any part of this Agreement be held invalid or unenforceable as written, that portion shall be reformed to reflect the original intentions of the contract and the remaining portions will remain in full force and effect. If the contemplated purpose of any provision of this Agreement be held unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.

h. Our failure to act with respect to a breach of this Agreement by you or others does not waive our right to act with respect to subsequent or similar breaches.