Collateral DNA User Agreement1. General Rules and Definitions USER refers to the person or entity that is identified to Collateral DNA as the user of one or more of Collateral DNA’s products and services. These products and services may be identified by one or more enrollment forms for the product or service or by other written means (including, for example, electronic means such as e-mail, on-line or Internet subscription). You are also a USER if you use any of Collateral DNA’s products and services through your association with or by working under the account of another USER. Collateral DNA refers to a service of FNC, Inc., a Mississippi corporation (“FNC”). Collateral DNA, among other things, serves as a portal for the ordering and delivery of certain of FNC data and analytics products and services. References to Collateral DNA shall also incorporate a reference to FNC®. However, Collateral DNA may, from time to time, capture certain data about USER’s account, including but not limited to, performance data, observations about product type, pricing and other data. This data may be used internally by Collateral DNA and within one or more products or services, provided however that no individual data about any individual USER shall be revealed to any others and will only be reported in aggregated or disguised form, unless USER authorizes otherwise. This User Agreement shall govern USER’s use of Collateral DNA including but not limited to Collateral DNA’s products and services. USER must agree to abide by all of the terms and conditions in order to become or to remain an authorized USER. This User Agreement includes attachments, addenda, enrollment forms, price schedules, terms or instructions appearing on a screen on the Collateral DNA website, www.collateraldna.com (“Website”), and any procedures or policies applicable to the use of Collateral DNA (collectively, “System Rules”) all as may be amended from time to time (“the User Agreement”). “GAAR” or “Generally Accepted Appraisal Rules” shall refer to that certain set of rules and related information developed by FNC to, among other things, aid in the performance of standardized, automated appraisal review. Except as otherwise required by law, Collateral DNA may in its sole discretion change or modify the terms of this User Agreement from time to time, and at any time. This may include adding new or different terms to this User Agreement. It may also include removing terms of this User Agreement. When changes are made Collateral DNA will update this User Agreement through the Electronic Delivery Methods set forth in Section 12 or alternatively in Section 10 below. All changes will be effective thirty days after notice as provided under Sections 10 or 12, unless an immediate change is necessary to maintain the security of the system or unless a law, rule or regulation requires that it be updated at an earlier time. If such a change is made, and it can't be disclosed without jeopardizing the security of the system, this User Agreement will be updated within thirty days after the change. Your continued use of Collateral DNA or any products or services related to or connected with Collateral DNA after Collateral DNA provides you notice pursuant to Sections 10 or 12 constitute your agreement to the amended User Agreement. USER’s signature on (or acknowledgment of) this Agreement, or acceptance of a user name, password and/or access token, or any use of any product or service constitutes USER’s agreement to its terms and conditions in their entirety. Collateral DNA may change, suspend, limit or discontinue any aspect of one or more of its products and services at any time, including but not limited to, the use of any program used to gain access to Collateral DNA, the availability of one or more features, categories of data, data elements or services. It may do so without prior notice or liability therefor. 2. The License Collateral DNA hereby grants to USER a non-exclusive, non-transferable, limited term license to, among other things
The use of Collateral DNA, and any Information (and any software, device, interface or other means by which access is given to the Information or is convenient to its use) is solely for the internal use of USER and no other party. It may not be transferred, assigned, stored, copied, reverse engineered, revealed, given, loaned, rented or sold. USER shall not copy or decompile, disassemble, decrypt or otherwise reverse engineer (or allow or suffer others to copy or decompile, disassemble, decrypt or otherwise reverse engineer) Collateral DNA or any part thereof, the Information or any software, device or interface or any part thereof (except that Licensee may maintain for a limited time magnetic or electronic copies of the Information and any installed software in authorized and approved use). USER shall not use the Information or software, device and/or interface or any part thereof in any manner other than as specifically permitted in this Section 2. Without limiting the foregoing, USER shall not utilize Collateral DNA, the Information or software, device or interface or any part thereof to provide any time-sharing, service bureau or similar services to any person or entity. However, in limited circumstances and where the revelation and reporting of the Information is appropriate, customary and reasonable, USER may incorporate limited amounts of the Information in reports or other work product prepared by USER for the benefit of third parties in the ordinary course of professional activity. In any such case, Collateral DNA or the identified supplier of the Information shall be identified as the source of the Information. In all cases, ownership of Collateral DNA, of the Information, software, documentation and any and all other aspects of the Collateral DNA products and services shall remain with FNC. 3. E-Mail, Passwords, User Names, Access Tokens and USER Accounts Collateral DNA’s primary means of communication with its USERS is through the Electronic Delivery Methods set forth in Section 12. As a result, USER is obligated to maintain an active, valid e-mail address on file with Collateral DNA at all times (“Designated e-mail Address”). Collateral DNA is not obligated to communicate with its USERS by fax, or through the US Postal Service or other paper based means. USER is responsible for maintaining the confidentiality of all of the information regarding USER’s account, including, but not limited to, USER’s account number, user name, password and access tokens, as well as those of any other person or user associated by or with USER (or under USER’s ostensible authority). USER shall notify Collateral DNA immediately with regard to any known or suspected unauthorized uses or users of USER’s account, or any known or suspected breach of security, including loss, theft or unauthorized disclosure of USER’s or other User’s user name, password and/or access tokens. USER understands that USER is responsible for any charges, liabilities or claims arising from the use of USER’s account, user name, password and/or access tokens, or those other user names, passwords and/or access tokens authorized by or associated with USER. Collateral DNA is entitled to treat all uses of such as authorized until such time as Collateral DNA receives written notification from USER (by mail, fax or e-mail) that unauthorized activity is occurring on USER’s account. Such notification shall be effective when received by Collateral DNA, if on a normal business day, otherwise effective on the first business day that occurs thereafter. Collateral DNA may take action, however, in its discretion, upon notice that USER (including, for example, any of USER’s employees, contractors or invitees) or any of USER’s Providers have gained unauthorized or unlawful access to, or made any unauthorized or unlawful use of Collateral DNA, any FNC Port, FNC CMS and/or any other medium or process within its control, to deny access to any such person or entity or seek other remedies, especially to the extent that any such access or use may reflect badly on the reputation or credibility of such Port, CMS® or other medium or process. 4. Term and Termination This Agreement shall continue in force until either party provides the other with written 30 day advance notice of termination. Except, however, various products and services provided by Collateral DNA may have an established term, which term (and termination) shall be set forth in any subscription or other enrollment form. Collateral DNA may terminate the User Agreement and any associated License upon written notice to USER in the event of (i) any breach by USER of its obligations under Section 2 (The License), Section 3 (Passwords, etc.) or Section 6 (Proprietary Rights, Confidentiality and Indemnification) (ii) any other breach hereof by USER that shall continue uncured for a period of 30 days after receipt of written notice thereof from Collateral DNA, unless such breach cannot by its nature be cured in such 30 day period, in which event Collateral DNA may terminate the License upon the occurrence of such breach. Nothing contained in this Agreement shall be read to limit any of Collateral DNA's rights or remedies hereunder or at law or in equity. Upon termination or expiration of the Agreement, all of USER's rights under the License shall terminate. Within 10 business days thereafter, USER shall return to Collateral DNA or destroy all copies of Collateral DNA, the Information, any software or any part thereof in USER's possession or under its control, including without limitation any such copies on USER's hard disk, server, or copies maintained for back up purposes. Termination does not relieve USER of any outstanding obligations that may be due to Collateral DNA or otherwise under this Agreement. 5. No Warranties Re: Collateral DNA, etc. USER EXPRESSLY AGREES THAT THE USE OF COLLATERAL DNA, ANY FNC SOFTWARE AND THE INTERNET, IS AT USER'S SOLE RISK. COLLATERAL DNA, FNC SOFTWARE, THIRD-PARTY VIRUS CHECKING TECHNOLOGY AND THE INTERNET ARE PROVIDED "AS IS" AND "AS AVAILABLE" FOR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND AGAINST INFRINGEMENT UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION, AND THEN ONLY TO THE EXTENT OF THAT EXCLUSION. FNC PROVIDES COLLATERAL DNA SERVICES ON A COMMERCIALLY REASONABLE BASIS. FNC SPECIFICALLY DISCLAIMS ANY WARRANTY THAT COLLATERAL DNA, FNC SOFTWARE OR THE INTERNET WILL BE ERROR FREE OR WILL OPERATE WITHOUT INTERRUPTION. FNC DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY PRODUCT OR SERVICE OFFERED THROUGH COLLATERAL DNA AND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN USER OR ITS PROVIDERS AND CLIENTS OR THIRD-PARTIES. Additionally, re: the Information (including any software). USER SPECIFICALLY ACKNOWLEDGES THAT COLLATERAL DNA MUST RELY ON THE COMPLETENESS, ACCURACY AND AUTHENTICITY OF INFORMATION PROVIDED BY ITS SUPPLIERS AND BY PUBLIC RECORDS AND OTHER SOURCES OF INFORMATION, THAT COLLATERAL DNA DOES NOT ATTEMPT TO INDEPENDENTLY VERIFY THE COMPLETENESS, ACCURACY OR AUTHENTICITY OF SUCH INFORMATION, AND THAT THE INFORMATION REPORTED TO AND BY COLLATERAL DNA MAY BE SUBJECT TO TRANSCRIPTION AND TRANSMISSION ERRORS. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, COLLATERAL DNA DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND AGAINST INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, USER SPECIFICALLY ACKNOWLEDGES THAT (i) THE INFORMATION, WHILE BELIEVED RELIABLE, CANNOT BE GUARANTEED AS ACCURATE, AND USER IS OBLIGED TO SECURE SUCH CONFIRMATION OF SUCH INFORMATION AS GOOD PROFESSIONAL PRACTICE DICTATES; (ii) USER SHALL BE RESPONSIBLE FOR ASSURING THAT THE INFORMATION AND ANY SOFTWARE IS APPROPRIATE TO ACHIEVE USER'S INTENDED RESULTS AND FOR THE USE OF THE INFORMATION AND SOFTWARE AND RESULTS OBTAINED THEREFROM; AND (iii) COLLATERAL DNA SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE INFORMATION OR THE SOFTWARE WILL BE ERROR FREE OR OPERATE WITHOUT INTERRUPTION. 6. Proprietary Rights, Confidentiality and Indemnification. Collateral DNA, the Information and all software are proprietary products of Collateral DNA and are protected by copyright, trade secret and other proprietary rights laws. As between USER and Collateral DNA, title to Collateral DNA, the Information and software (including without limitation all copies of the foregoing and all copyrights and other proprietary rights therein) shall at all times remain with Collateral DNA, subject only to USER's rights under the License. USER shall not remove or obscure any Collateral DNA copyright, trademark or confidentiality notice or mark. Affixation of any such notice or mark on Collateral DNA, the Information or the software shall not imply or indicate publication thereof. USER shall hold Collateral DNA, the Information and any software in confidence. USER shall not disclose or display them to any person or entity other than USER's employees, independent contractors or agents (all of whom for purposes hereof shall be deemed employees) who have a need to use Collateral DNA or to see the Information or use any software. USER shall protect them using at least the same degree of care it uses to protect its own proprietary and confidential information and materials of like importance, but in no event less care than a reasonably prudent business person would take in a like or similar situation. USER shall ensure that USER's employees who receive access to Collateral DNA, the Information or software are advised of their obligation to maintain the secrecy thereof and shall promptly notify Collateral DNA in writing of any circumstances of which USER has knowledge regarding any possible use of or access to Collateral DNA, the Information or software or any part thereof by any unauthorized person or entity. To the extent that the Information provided (or required) under this Agreement includes any “nonpublic personal information” as that term is defined under Gramm-Leach-Bliley Act (PL 106-102) and related regulations (including but not limited to the Interagency Guidelines regarding the Safeguarding of Customer Information), then both FNC and USER agree to maintain the confidentiality of that information, including complying with the provisions incorporated in Gramm-Leach-Bliley Act and related regulations with respect to the maintaining of the confidentiality of nonpublic personal information. USER shall indemnify Collateral DNA and its suppliers (whether of Information or otherwise), defend and hold them harmless from and with respect to any liability, damages (including without limitation any consequential, incidental, general, special or exemplary damages), losses, or claims which may arise, whether now or in the future, with regard to (i) the use of Collateral DNA or any aspect or service thereof, or 7. Limitations of liability and exclusion of damages. FNC’S ENTIRE LIABILITY, AND USER’S EXCLUSIVE REMEDY WITH RESPECT TO ANY DISPUTE WITH FNC AND COLLATERAL DNA SHALL BE THE TERMINATION OF THIS AGREEMENT. IN NO EVENT SHALL FNC OR COLLATERAL DNA BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF USE, LOST PROFITS OR LOSS OF DATA OR INFORMATION OF ANY KIND, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER OR NOT FNC OR COLLATERAL DNA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN NO EVENT SHALL FNC OR COLLATERAL DNA'S LIABILITY TO USER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AMOUNT ACTUALLY PAID BY USER TO COLLATERAL DNA HEREUNDER. TO THE EXTENT THAT A STATE OR JURISDICTION DOES NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, AS TO THAT STATE OR JURISDICTION COLLATERAL DNA’S AND FNC'S LIABILITY SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY HERETO MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED, EXCEPT THAT AN ACTION FOR NONPAYMENT MAY BE BROUGHT WITHIN ONE YEAR AFTER THE DATE THE LAST PAYMENT WAS DUE. 8. Equitable Relief. Because of the unique and proprietary nature of Collateral DNA, the Information and the software, it is understood and agreed that Collateral DNA 's remedies at law for a breach by USER of its obligations under Section 2 (The License), Section 3 (Passwords, etc.) or Section 6 (Proprietary Rights, Confidentiality and Indemnification) will be inadequate and that Collateral DNA shall, in the event of any such breach, be entitled to equitable relief (including without limitation injunctive relief and specific performance) in addition to all other remedies provided under this Agreement or available to Collateral DNA at law or otherwise. 9. Payment USER shall pay the appropriate fees for all products and services as set forth in Collateral DNA’s then current Price Schedules or Product/Service Descriptions. USER shall pay any and all federal, state and local taxes, duties, levies or other assessments arising or payable in connection with the transactions contemplated or authorized hereunder, other than taxes based solely on Collateral DNA’s net income. All invoices are due upon presentation. As Collateral DNA and USER may agree from time to time, Collateral DNA may present USER with invoices, account statements, requests for payment and other documents through electronic means, which may include, but not be limited to by e-mail, or by reference to a specific location within Collateral DNA’s web site or other electronic system. Any such presentation shall have the same force and effect as if USER had been presented with the same in paper form and USER shall be obligated to make payment thereon according to the terms therein. Provided that it is in a form and means acceptable to Collateral DNA, USER may make payment with respect to all balances due to Collateral DNA through use of a credit card, debit card or bank draft or other automated payment device. Without limiting any of Collateral DNA's other rights or remedies, late charges at the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by law, whichever is lower, shall, at Collateral DNA 's sole option, accrue on the amount (including accrued but unpaid late charges) of any invoice for which payment is not received within thirty days after its date. In addition, an administrative charge of $10.00 shall be imposed for any invoice for which payment is received more than sixty days after its date. Regardless of any other provision hereof, it is Collateral DNA's policy to suspend access to Collateral DNA, and the delivery of Information to any party who is past due in its obligations to Collateral DNA. Collateral DNA may enforce that policy against USER without any liability therefor. 10. Miscellaneous All notices or communications or other information required hereunder shall be provided to USER pursuant to the Electronic Delivery Methods in Section 12. Alternatively, any such notices, communications or information may be given personally, or be sent by first class mail postage prepaid, by facsimile machine, or by a reputable courier service to USER at the address provided by USER in this User Agreement or as provided by USER on the Collateral DNA website, or at such other address as Collateral DNA may designate in writing from time to time in accordance with this Section 10. This Agreement constitutes the entire understanding and agreement between Collateral DNA and USER with respect to the transactions contemplated herein and supersedes any and all prior or contemporaneous oral or written communications with respect to the subject matter hereof, all of which are merged herein. No remedy available to Collateral DNA hereunder or relating hereto shall be exclusive of any other remedy, and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. No waiver of any provision of this Agreement or any rights or obligations of either party hereunder shall be effective, except pursuant to a written instrument signed by the party or parties waiving compliance, and any such waiver shall be effective only in the specific instance and for the specific purpose stated in such writing. Neither party shall be responsible for delays or failures in performance hereunder to the extent that such party was hindered in its performance by any act of God, civil commotion, labor dispute, or any other occurrence beyond its reasonable control. No employee, agent, distributor, dealer or other party is authorized to make any modification or addition to this Agreement, including but not limited to any warranties either express or implied, any indemnification or other provision hereof. Nothing contained herein shall be deemed or construed as creating a joint venture or partnership between USER and Collateral DNA or FNC. USER is not by virtue of this Agreement authorized as an agent or legal representative of Collateral DNA or FNC. USER is not granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of Collateral DNA or FNC or to bind Collateral DNA or FNC in any manner. This Agreement shall be construed and enforced in accordance with the internal laws of the State of Mississippi applicable to contracts wholly executed and wholly to be performed therein. If any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision, that portion of the Agreement shall be severed and the remainder of this Agreement shall remain valid and enforceable according to its terms. WITHOUT LIMITING THE FOREGOING, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, INDEMNIFICATION OF A PARTY OR EXCLUSION OF DAMAGES OR OTHER REMEDIES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND TO BE ENFORCED AS SUCH. FURTHER, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IF ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES OR LIMITATIONS OF OTHER REMEDIES SET FORTH HEREIN SHALL REMAIN IN EFFECT. 11. Arbitration The parties agree to submit any and all claims, demands, disputes, controversies or causes of action arising from or related to this Agreement, the use of Collateral DNA, or any communication between the parties to binding arbitration administered by the American Arbitration Association in accordance with its commercial rules then in effect, except as otherwise stated herein, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Any such claims, demands, disputes, controversies or causes of action shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any claims, demands, disputes, controversies or causes of action of any other party. The arbitration shall be conducted in Lafayette County, State of Mississippi before a single arbitrator chosen by the parties. If the parties cannot agree on an arbitrator within 5 days of exchanging names of arbitrators, then an arbitrator will be appointed according to the commercial rules of the American Arbitration Association. The expense of the arbitration shall be borne by the parties in accordance with the award of the arbitrator. In reaching a decision, the arbitrator shall follow applicable law. The decision of the arbitrator shall be in writing setting forth the findings of fact and law, and reasons supporting the decision. This arbitration agreement shall be governed by the Federal Arbitration Act and, to the extent state law applies, by the laws of the State of Mississippi. However, the parties, without inconsistency with this arbitration provision, may seek interim, provisional injunctive or other equitable relief until the arbitration award is rendered or the controversy is otherwise resolved. Any such action or proceeding shall be brought in a state or federal court of competent jurisdiction located in Lafayette County, State of Mississippi. 12. Electronic Delivery Methods. In the event that Collateral DNA needs to communicate with you regarding this User Agreement or any changes thereto, or are required to provide information to you in writing, any communications or other information may, at our option, be sent to you electronically either: (a) to your Designated e-Mail Address, (b) by posting the information on the Collateral DNA Website and sending you a notice to your Designated e-Mail Address telling you that the information has been posted and providing instructions on how to view it, or (c) to the extent permitted by law, by posting the information to the Collateral DNA Website. You agree that we may satisfy our obligation to provide you our Privacy Policy by keeping it available for review on our Website. Notices to Collateral DNA shall be directed to the following address: SupportEmail if by e-mail, or Collateral DNA This Collateral DNA User Agreement is effective July 25, 2008. |