Proposal – T&C
SERVICE TERMS AND CONDITIONS TO SERVICES PROPOSAL AGREEMENT
- Costs and Fees. Client shall pay for all charges and costs relating to the use or provision of the Services, in addition to the fees. Fees are exclusive of sales, use, ad valorem, personal property and other taxes, which are the sole responsibility of Client. Client shall pay all amounts within thirty (30) calendar days from the date of Altisource’s invoice, via automated clearing house or similar electronic transfer. Amounts not paid when due shall bear interest at the lower of two percent (2%) per month or the maximum rate allowed by law.
- Validity. Altisource will make available the Services to Client pursuant to the terms of the Proposal. The foregoing notwithstanding, either party may terminate a Proposal without cause at any time by providing ninety (90) calendar days prior to written notice to the other party hereto.
- Documents and Information. Altisource may rely and act upon any certificate, instrument, writing, agreement or other document provided to Altisource or which relates to, or results from the Services (collectively, “Documents”) that Altisource reasonably believes to be genuine. Altisource shall not be liable to Client or to any other party in connection with any claim arising from or in connection with: (i) forgery, false representation or false statement; (ii) Altisource’s exercise of discretion given the circumstance at the time; and (iii) the sufficiency, correctness, form, content, execution, genuineness or validity of any Document. Client shall deliver all Documents and information necessary and/or reasonably requested by Altisource for the performance of the Services. Until all such Documents and information is received, Altisource shall have no duty or obligation to perform any Services.
- Inspections and Inspectors. Visual site inspections (“Inspections”) of Projects: (i) are for the use and benefit of Client only and shall not be used or relied upon by borrowers, third party contractors or other parties; (ii) constitute an inspection of work, labor and materials used in a Project; (iii) do not inspect for or provide any type of representations relating to the quality or sufficiency of the work and materials; and (iv) shall not impose an express or implied endorsement, responsibility, duty, obligation or liability, by or on the part of Altisource with respect to any third party contractors, providers of services, materials or labor, or otherwise related to the design, planning, construction, administration or supervision of a Project. The Inspections may be provided through Altisource’s network of independent third party site inspectors (“Inspectors”). Altisource’s Inspector network is Altisource Property (as defined below) and Client shall not during the Project Duration and for one (1) year thereafter, directly or indirectly, utilize the services of any Inspector without Altisource’s express written consent and payment of the applicable consideration, as determined by Altisource. The obligations set forth in this Section will survive termination of any Proposal.
- Confidentiality. Any information belonging or relating to Altisource and/or its affiliates, including without limitation, procedures, forms, guides, manuals, “know-how”, methodologies, software, networks, proprietary systems and procedures, trade secrets and other similar proprietary information, shall constitute confidential information of Altisource (“Confidential Information”), whether furnished before or after any given Proposal, orally, in writing or gathered by inspection and regardless of whether or not identified as “confidential.” Client shall use commercially reasonable necessary safety measures to maintain such information in the strictest confidence and not disclose, use or duplicate such Confidential Information except as authorized by Altisource. Client shall use at least the same, but no less than a reasonable, degree of care to avoid inadvertent disclosure or unauthorized use of the Confidential Information which it employs with respect to its own information which it does not wish to have disseminated or disclosed. No right, title or interest in and to the Confidential Information is transferred to Client. If Client breaches or threatens to breach the provisions hereof, Altisource may suffer irreparable damage. Accordingly, Altisource shall be entitled, without prejudice, to seek a temporary restraining order and an injunction restraining any breach (without any bond or other security being required therefor), in addition to all other remedies available at law or in equity. Upon Project termination, Client shall immediately destroy or return to Altisource all Confidential Information, without retaining any copy thereof. The obligations set forth in this Section will survive termination of this Agreement.
- Altisource Property. All data, information, inventions, intellectual property, including patents, trademarks, copyrights, designs and trade secrets, improvements in “know-how”, new uses and processes, and any other intellectual property right, asset or form, relating to the Services, that are conceived, generated, derived, produced or reduced to practice by Altisource or any of its affiliates, shall be and remain the exclusive property of Altisource, and Client agrees to assign its rights in any and all such inventions and/or related patents to Altisource (collectively, “Altisource Property”). Intellectual property created by Altisource or its affiliates in the course of undertaking its duties and obligations under or during the Project Duration is presumed to be Altisource Property unless otherwise stated in writing. Altisource grants to Client a non-exclusive, non-transferable, royalty-free license to use the Altisource Property embodied in the Services but solely to the extent necessary for Client to use and benefit from the Services as contemplated herein.
- Indemnity. Each of the parties hereto (each an “Indemnifying Party”) shall indemnify and hold harmless the other party hereto, its Affiliates, and their respective directors, managers, officers, employees, agents, successors and assigns (collectively, the “Indemnified Party”) and hereby forever releases and discharges the Indemnified Party from and against any and all loss, liability, cost and expense, court costs and reasonable attorneys’ fees, incurred by the Indemnified Party (“Losses”) by reason of any and all actions or threatened actions, claims, demands, suits or proceedings brought against the Indemnified Party by a third party (singularly or collectively “Claims”) arising from or related to (i) the Indemnifying Party’s: (a) material breach of its obligations, representations, warranties or covenants under a Proposal; (b) negligence, fraud, intentional misconduct and (c) violation of applicable laws or regulations in its performance of its duties and obligations under a Proposal; and (ii) claims of infringement of third party rights in connection with the authorized use hereunder of the Indemnifying Party’s intellectual property, except to the extent in each case that such Losses result from the Indemnified Party’s: (i) a material breach by of its obligations under a Proposal or any applicable law or regulation or (ii) the gross negligence or intentional misconduct. The Indemnified Party shall give prompt notice to the Indemnifying Party of any Claims and the Indemnifying Party shall not settle any Claims without the consent of the Indemnified Party, which shall not be unreasonably withheld, conditioned or delayed. In addition to, and without limiting the foregoing, Client agrees to indemnify and hold harmless Altisource, its Affiliates, and their respective directors, managers, officers, employees, agents, successors and assigns, for Losses by reason of any Claims arising from of related to: (i) any act, error, omission in the performance of Client’s duties and obligations under a loan agreement or applicable law, including, without limitation, laws and regulations applicable to loan transactions; (ii) Client’s obligations relating to escrow and rehabilitation accounts; (iii) Altisource’s reliance on any verbal or written instructions, promises or representations made by Client; (iv) undisclosed, unobservable or latent defects or hazardous conditions with a Project, including without limitation nature, type or condition of soils, containments, contamination and structural problems discoverable only through invasive inspection and techniques; (v) false, fraudulent, misleading or deceptive acts or statements made to Altisource by any third party, including, without limitation borrowers, contractors and providers of services or materials; and (vi) Client’s failure to follow Altisource recommendations and any modifications or waivers Client makes or allows relating to Altisource standard forms, notices, systems, policies and procedures. The obligations set forth in this Section will survive the termination of the respective Proposal.
- Limitation of Liability. IN NO EVENT SHALL ALTISOURCE BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. ANY LIABILITY THAT ALTISOURCE MAY HAVE FOR ANY AND ALL LOSSES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN INFORMED, OR OTHERWISE MIGHT HAVE ANTICIPATED THE POSSIBILITY, OF SUCH LOSSES, SHALL NOT EXCEED, IN AGGREGATE, THE AMOUNT OF THE FUNDED DRAW REQUEST WHICH FORMS THE BASIS OF THE CLAIM. EACH ALTISOURCE AFFILIATE SHALL ONLY BE LIABLE IN RESPECT OF THE SERVICES ACTUALLY PROVIDED BY SUCH AFFILIATE, AND SHALL NOT BE LIABLE IN RESPECT OF SERVICES PROVIDED BY ANY OTHER AFFILIATE. THE PROVISIONS OF THIS SECTION WILL SURVIVE THE TERMINATION OF THE RESPECTIVE PROPOSAL.
- Disclaimer. ALTISOURCE DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTEES OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, WITH RESPECT TO THE SERVICES. THE SERVICES ARE FOR THE USE AND BENEFIT OF CLIENT ONLY AND ALTISOURCE EXPRESSLY DISCLAIMS ANY CLAIM THE SERVICES ARE FOR THE USE OR BENEFIT OF ANY THIRD PARTIES INCLUDING, WITHOUT LIMITATION, BORROWERS, CONTRACTORS AND SUPPLIERS OF SERVICES OR MATERIALS. IN THE PERFORMANCE OF THE SERVICES, ALTISOURCE DOES NOT ACT AS A MORTGAGE BROKER, ORIGINATOR, SERVICER OR COLLECTION AGENCY. CLIENT REPRESENTS, WARRANTS AND COVENANTS THAT CLIENT IT HAS OBTAINED LEGAL ADVICE AND IS NOT RELYING ON ALTISOURCE FOR THE PROVIDING OF LEGAL ADVICE. CLIENT HEREBY ASSUMES ALL RISKS, DUTIES AND RESPONSIBILITIES IN CONNECTION WITH ANY SERVICES OFFERED BY CLIENT TO CONSUMERS AND FOR COMPLIANCE WITH APPLICABLE LAWS, STATUTES, RULES AND REGULATIONS RELATING TO CONSTRUCTION LENDING. THE PROVISIONS OF THIS SECTION WILL SURVIVE THE TERMINATION OF ANY PROPOSAL.
- Assignment. Client may not assign or transfer any of its rights or obligations under a Proposal without the prior written consent of Altisource. Altisource has the right to assign the Proposal, or any of its rights or obligations hereunder to an affiliate, without any prior consent of Client.
- Governing Law, Waiver of Jury Trial. The Proposal and this Service Terms shall be governed by, construed in, and enforced in accordance with the laws of the state of Delaware without regard to its conflict of laws rules or principles. THE PARTIES KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVE ANY RIGHT WHICH EITHER OR BOTH MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY AND ALL CLAIMS RELATING TO THE AGREEMENT.
- Miscellaneous. Neither party shall be deemed to have waived any right, power or privilege hereunder unless such waiver shall have been expressed in writing. No delay in enforcing or failure to enforce any provision hereof shall be construed as a waiver of such provision or of the rights of such party to thereafter enforce such provision. The invalidity or unenforceability of any provision of a Proposal or these Service Terms shall not affect the validity or enforceability of any other provision. The relationship of the parties is in the nature of independent contractors and nothing herein shall be construed to create any association, employment relationship, partnership, franchise, agency relationship or joint venture between the parties. Notices hereunder shall be shall be in writing and shall be deemed effective upon receipt by a party at the addresses set forth in the Proposal.
© 2018 Altisource; All Rights Reserved.
(ver. January 2018)