EVAL.COM EVALUATION SERVICES AGREEMENT
Eval.com, Inc. looks forward to providing real estate evaluation services to your organization.
The Evaluations and related services provided Eval.com, Inc. (“Eval.com”) are subject to the following terms and conditions, which form a contract (“Agreement”) between Eval.com and the financial institution or other organization on whose behalf the services are ordered (“Client”). Placement of an order for an Evaluation constitutes acceptance of this Agreement by the Client. In placing an order for an Evaluation, the person placing the order represents that he or she has authority to enter into this Agreement on Client’s behalf and that the Agreement will be binding on Client.
- General Nature of Evaluation Services. The term “Evaluation” as used in this Agreement refers to a valuation of real property of the type that is described as an “evaluation” in the federal Interagency Appraisal and Evaluation Guidelines, dated December 10, 2010 (“Guidelines”), regardless of whether Client is specifically subject to the Guidelines. An Evaluation is not an “appraisal” under the Guidelines and generally is not performed by a licensed or certified appraiser. Evaluations provided by Eval.com are supplied for the exclusive use of the Client and other parties, if any, who are specifically identified as intended users within an Evaluation report. Eval.com grants Client a perpetual, nonexclusive and nontransferable license to use each Evaluation provided by Eval.com solely for Client’s internal business purposes. Client has no other right, title or interest in or to the work product, or to Eval.com’s forms, methodologies or data. Each Evaluation is also subject to the terms, limiting conditions and assumptions stated within a specific Evaluation report.
- Fees and Payment. By placing an order for an Evaluation, Client agrees to pay for the Evaluation ordered. If ordering as a guest without setting up an account, credit card must be on file and payment will be processed once final report is uploaded. Client’s with an established account can choose for payment to be automatically processed upon delivery or may choose to pay invoice via check delivered to Eval.com, 232 E 2nd St, Ste 201, Casper WY 82601. A separate invoice will not be sent and payment is expected within 30 days.
- Eval.com’s Warranty. Eval.com warrants that each Evaluation: (a) will conform to the terms of this Agreement, (b) will be performed in a skillful and workmanlike manner, and (c) will comply with the requirements stated for Evaluations in the Guidelines. This warranty is exclusive and in lieu of all other representations and warranties, whether express or implied. For any breach of the warranty, Eval.com will refund the fee paid by Client for the Evaluation.
- Client’s Legal and Regulatory Compliance. Client is responsible for establishing and maintaining internal policies and procedures governing its collateral valuation program in compliance with applicable laws, regulations and guidelines. As between Client and Eval.com, Client is solely responsible for determining the appropriate collateral valuation method (i.e., appraisal, evaluation or automated valuation method) for a specific transaction or use.
- Independent Contractor Relationship. Eval.com shall be an independent contractor to Client in providing Evaluations or other services described in this Agreement. Eval.com may subcontract portions of the services to be provided. Eval.com is not an agent or representative of Client in connection with ordering, management or provision of Evaluations or other services. Eval.com is not, and does not act in the capacity of, an appraisal management company and does not provide appraisal management services as defined under state appraisal management company laws or under federal law (12 U.S.C. 3350(11)).
Confidentiality Safeguards Regarding Protected Consumer Information and Confidential Information. In recognition of responsibilities which may be imposed on Client and/or Eval.com under the Gramm-Leach-Bliley Act (GLBA), the Interagency Guidelines Establishing Information Security Standards (“Security Guidelines”), and other state and federal privacy and confidentiality requirements, Eval.com agrees that it will maintain and follow security policies and procedures designed to protect consumer information and confidential information.
Such policies and procedures include:
- Access controls to its information systems to permit only authorized individuals to view or obtain protected consumer information and confidential information;
- Prohibitions against employees and subcontractors improperly disclosing protected consumer information and confidential information; and
- Backups and storage redundancies to protect against destruction, loss, or damage of protected consumer information and confidential information due to potential environmental hazards, such as fire and water damage or technological failures.
In the event of any suspected or actual unauthorized access, use, loss or disclosure of protected consumer information or confidential information by Eval.com or any persons under its control (collectively, “Release”), Eval.com will:
- Promptly notify Client upon Eval.com’s first awareness of the Release;
- Promptly investigate and determine the extent and cause of any Release;
- Confer with Client about proposed corrective actions to be taken and comply with Client’s reasonable requests for corrective action;
- In the case of a Release of protected consumer information, cooperate with Client to notify Client’s customers or other affected individuals as to the facts and circumstances of the Release and cooperate fully with all government regulatory agencies and law enforcement agencies. Except as strictly required by any applicable law or regulation, however, Eval.com agrees that it will not inform any third party of any Release without prior consultation with and written consent from Client; and
- Prepare timely reports to Client regarding the extent of the Release, identification of affected individuals, and the corrective actions taken.
- No Responsibility for Certain Conditions and Assumptions. Notwithstanding that an Evaluation may comment on, consider or assume certain conditions about the subject property, neither the individual preparer of an Evaluation nor Eval.com (or any third parties providing data or assistance to Eval.com) shall have any responsibility for investigating or have any liability for matters pertaining to: (a) title defects, liens or encumbrances affecting the property; (b) the property’s compliance with local, state or federal zoning, planning, building, disability access and environmental laws, regulations and standards; (c) building permits and planning approvals for improvements on the property; (d) structural or mechanical soundness or safety; (e) contamination, environmental problems, mold, pollution, storage tanks, soil problems, biological contamination, animal or insect infestations and other hazardous or hidden conditions affecting the property; (f) encroachments, easements or property line issues; and (g) any other conditions and matters for which persons performing Evaluations for lending purposes under the Guidelines are not customarily deemed to have professional expertise.
- Maximum Time Period for Legal Actions. Unless the time period is shorter under applicable law, any legal action or claim relating to an Evaluation shall be filed within one (1) year from the date of delivery of the Evaluation or, in the case of acts or conduct by the preparer or Eval.com after delivery of the report, one (1) year from the date of the alleged acts or conduct. The time period stated in this section shall not be extended by any delay in the discovery or accrual of the underlying claims, causes of action or damages. The time period stated in this section shall apply to all claims or causes of action of any type, except for intentional fraud or intentionally wrongful conduct.
- Limitations of Liability. Any liability of the preparer of an Evaluation or Eval.com in relation to an Evaluation or to other matters under this Agreement, other than intentionally fraudulent or intentionally wrongful conduct, shall be limited to the compensation actually paid for the Evaluation. IN NO EVENT, HOWEVER, SHALL EVAL.COM OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS OR AFFILIATES BE LIABLE TO CLIENT, WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL THEORY, FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT, OR FOR ANY CLAIM MADE AGAINST CLIENT BY ANY OTHER PARTY, EVEN IF EVAL.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH A CLAIM.
- Assignment. This Agreement may be assigned, in whole or in part, by Eval.com to any consultant, to any person or entity controlled by, controlling, or under common control with Eval.com, or to any successor following any sale of ownership interests, merger, asset sale, or similar transaction. Otherwise, neither party may assign this Agreement without the express written consent of the other party. Any attempt to assign this Agreement in violation of this paragraph shall be void.
- Modifications. Eval.com may revise the terms and conditions of this Agreement from time to time, on a prospective basis, by providing the most up-to-date revision in the ordering platform for Evaluations.
- Governing Law and Jurisdiction for Disputes. This Agreement shall be construed and governed under the laws of Wyoming without reference to its conflicts of laws principles. The parties hereby agree and consent to the exclusive jurisdiction and venue of the federal and state courts in Wyoming for resolution of all disputes between the parties arising under this Agreement.
- Invalidity of Any Term. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
- No Third-Party Beneficiaries. This Agreement is intended solely for the benefit of Client and Eval.com and any permitted successors-in-interest or assignees and not for the benefit of any other person or entity. Nothing contained in this Agreement, express or implied, is intended to confer upon any person or entity, other than Client and Eval.com and their permitted successors-in-interest and assignees, any rights or remedies under or by reason of this Agreement.
- Force Majeure. Neither party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.
- Section Headings. The headings of sections in this Agreement are provided for convenience only and will not affect the construction of the sections.