Terms & Conditions
TERMS & CONDITIONS
Updated and Eﬀective Date: January 2023
1. Accessing the Solution.
To access the Solution, we will provide you with a username and password or you may need register for an account (collectively, the "Credentials") that you must use to access your account and use the Solution in accordance with the terms herein. You are responsible for all use of the Solution by and through such Credentials and you authorize us to accept any use of the Solution through your Credentials as use by you or someone authorized to act for you. You agree to treat the Credentials as confidential and shall not disclose it to any other person or entity, use your Credentials for any unauthorized purpose, or use the Credentials of any other person. You agree to notify us immediately of any unauthorized access to, use, or loss of the Credentials, or any other potential breach of security or access protocols involving the Solution. To the extent applicable, you shall exit from your account at the end of each session to ensure the Solution is securely accessed and used. You agree that your Firm is responsible for any violation of this policy by its employees or agents.
2. Customer Privacy.
1. Customer Information Obligations.
Your use of the Solution may allow you access to highly confidential information, including loan data, NPPI (as defined below) and other information relating to your customers (collectively, "Customer Information") as well as access to and/or receive non-public personal information, as defined in Title V of the Gramm-Leach-Bliley Act of 1999 and its promulgating regulation, Regulation P ("NPPI" and, together with Regulation P, "GLBA," respectively). You agree to:
- comply with the privacy requirements of the GLBA, as applicable;
- disclose or use Customer Information only in strict compliance with all federal, state, local, and international laws and regulations;
- take all commercially reasonable steps necessary to safeguard and prevent the unauthorized disclosure of Customer Information to any third party;
- not disclose or make available Customer Information to any third party (including company employees who have no need for such information) for any reason whatsoever, other than for the Approved Purpose or as required by law;
- not use Customer Information for any kind of marketing or solicitation of any kind (including but not limited to sending unsolicited email, facsimile transmissions, or spam, even if the person to whom you intend to send unsolicited email or spam has communicated with you in the past); and
- Third-Party Data Providers.
We may receive data from third-party data providers and we are not responsible or liable if such third-party data providers encounter a data breach, cyberattack, systems security breach or other digital infiltration.
3. User Data; Safeguarding; Feedback.
1. User Data License.
You hereby grant to SitusAMC a non-exclusive, non-transferable perpetual right and license to: (a) access, use, download and store the User Data for our internal use, review and analysis and (b) disclose such data to relevant third parties, in each case of (a) and (b), in our ordinary course of business (the “Approved Purpose”). "User Data" means any and all information provided, inputted, ordered from and returned via API, XML, SFTP, or any other delivery method, or uploaded or submitted to the Solution by you, on your behalf, or by your agents or designees.
2. User Data License Restrictions.
You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about SitusAMC or our Platform (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, or improve the Feedback in SitusAMC’s sole discretion. You understand that SitusAMC may treat Feedback as nonconfidential.
4. Safeguarding of Information.
You represent and warrant that you (or your Firm, as applicable) have a program of administrative, technical, and physical safeguards in place designed to (a) ensure the security and confidentiality of User Data and Customer Information, (b) protect against unauthorized access to or use of such User Data and Customer Information, (c) protect against threats or hazards to the security or integrity of such User Data and Customer Information; and (d) screen for viruses and other malicious code.
5. Our Monitoring and Enforcement.
We are under no obligation to restrict or monitor the User Data in any way. You understand and acknowledge that we do not regularly monitor the accuracy, reliability, or quality of User Data. Any opinions, advice, statements, services, offers, or other information or User Data expressed or made available by third-parties, including other users, are those of the respective third parties and not of us. We do not endorse and are not responsible for the accuracy, reliability, or quality of any opinion, advice, information, or statement within the User Data. You agree that you must evaluate, and bear all risks associated with, the User Data, including any reliance on the accuracy, completeness, or usefulness of such User Data. Under no circumstances will we be liable in any way for any User Data, including, but not limited to, for any errors or omissions in any User Data, or for any loss or damage of any kind incurred as a result of the use of any User Data posted, emailed, or otherwise transmitted via the Solution.
Notwithstanding the foregoing, we may:
- remove or refuse to use any User Data in our sole and reasonable discretion;
- take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Solution; and
Without limiting the foregoing, we have the right to disclose User Data and any other information collected through the Solution to comply with any court order, law, or legal process, including to respond to any government, regulatory or law enforcement request. YOU WAIVE AND HOLD HARMLESS SITUSAMC AND OUR AFFILIATES, LICENSORS, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, SUCH A DISCLOSURE, INCLUDING, BUT NOT LIMITED TO, INVESTIGATIONS BY SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES. SITUSAMC ASSUMES NO LIABILITY FOR ANY ACTION OR INACTION REGARDING TRANSMISSIONS, COMMUNICATIONS, OR CONTENT PROVIDED BY ANY USER OF THE SOLUTION OR ANY THIRD PARTY.
6. Solution License.
1. SitusAMC License Grant; Responsibilities.
2. Restrictions and Prohibited Conduct.
You shall not, either directly or indirectly: (a) transfer, distribute, sell, lease, license, display, assign, disclose, permit time-sharing of (such as by sharing your Credentials with another individual), commercially exploit, or otherwise make any aspect or portion of the Solution available to a third party; (b) reproduce, copy, monitor (manually or by utilizing any robot, spider or other automatic device), translate, download, modify, adapt, decompile, disassemble, create derivative works of, or reverse engineer (except as allowed under applicable law) all or any part of the Solution (including the object code version of or otherwise attempt to secure the source code of all or any part of the Solution) or access the Solution to build a similar or competitive product or service, except strictly as and to the extent expressly authorized by applicable law; (c) obfuscate, remove or alter any of the logos, trademarks, internet links, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Solution; (d) take any action that imposes an unreasonable or disproportionately large load on the infrastructure that hosts the Solution; (e) use any device, software, or in any other way interfere with the proper working, functionality, or quality of the Solution, including, but not limited to, by introducing any viruses, Trojan horses, or other malware; (f) attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Solution or its infrastructure; (g) modify, alter any downloaded documents, nor make any representation or warranties related to said documents; or (h) access or use the Solution for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that in any way that is inconsistent with the terms herein, or for any other purpose other than the Approved Purpose.
If your Solution includes access to a data room and/or the capability to share information in or through the Solution, the following additional terms shall apply: (1) content in the Solution may be protected by others’ intellectual property rights, so please do not copy, upload, download, or share content unless you have the express right to do so; (2) SitusAMC may review your conduct and content for compliance with these Terms; (3) SitusAMC is not responsible for the content posted and shared via the Solution; and (4) you may use the Solution only in compliance with applicable law, including export control laws and regulations, and these Terms.
3. Reservation of Rights.
7. Disclaimer and Limitation of Liability.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, YOUR USE OF THE SOLUTION AND ANY OTHER MATERIALS OR INFORMATION OBTAINED THROUGH THE SOLUTION IS AT YOUR OWN RISK. THE SOLUTION AND ANY MATERIALS OR INFORMATION OBTAINED THROUGH THE SOLUTION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS, GUARANTEES, ASSURANCES, OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, NON- INFRINGEMENT OF THIRD-PARTY RIGHTS, TITLE, FITNESS FOR PARTICULAR PURPOSE, COURSE OF DEALING, OR USAGE OF TRADE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. NEITHER SITUSAMC NOR ANY PERSON ASSOCIATED WITH SITUSAMC MAKES ANY WARRANTY OR REPRESENTATION: (I) WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SOLUTION OR ANY MATERIALS OR INFORMATION OBTAINED THROUGH THE SOLUTION; OR (II) THAT THE SOLUTION OR ANY MATERIALS OR INFORMATION OBTAINED THROUGH THE SOLUTION WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. WE DO NOT UNDERTAKE TO CORRECT OR NOTIFY YOU OF ANY ERRORS OR OMISSIONS IN THE INFORMATION DISPLAYED ON OR THROUGH THE SOLUTION OF WHICH IT MAY BECOME AWARE AT ANY TIME OR TO NOTIFY YOU OF ANY CHANGES IN ANY INFORMATION OR METHODOLOGIES INCORPORATED IN SUCH INFORMATION.
SITUSAMC FURTHER DISCLAIMS ALL RESPONSIBILITY, AND YOU HEREBY RELEASE SITUSAMC AND THEIR AFFILIATES AND EACH OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ADVISORS, AND REPRESENTATIVES, FROM ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND RESULTING FROM, ARISING OUT OF, OR IN ANY WAY RELATED TO (A) ANY THIRD-PARTY WEBSITES OR CONTENT THEREIN DIRECTLY OR INDIRECTLY ACCESSED THROUGH LINKS PROVIDED IN OR IN CONNECTION WITH THE SOLUTION, INCLUDING BUT NOT LIMITED TO ANY ERRORS IN OR OMISSIONS THEREFROM; (B) YOUR USE OF, OR INABILITY TO USE, THE SOLUTION OR THE INFORMATION ACCESSIBLE THEREFROM OR ANY DECISION MADE USING THE SOLUTION; (C) UNAUTHORIZED ACCESS TO THE SOLUTION OR INFORMATION PROVIDED THEREIN; OR (D) YOUR USE OF ANY HARDWARE, EQUIPMENT OR SOFTWARE IN CONNECTION WITH THE SOLUTION OR THE INFORMATION ACCESSIBLE THEREFROM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SITUSAMC OR THROUGH OR FROM THE SOLUTION SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, YOU EXPRESSLY AND IRREVOCABLY WAIVE ANY IMPLIED WARRANTIES OR SIMILAR PROTECTIONS UNDER STATUTE THAT MIGHT BE CLAIMED TO APPLY TO ANY PART OF THE SOLUTION.
SITUSAMC SHALL NOT BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR ANY OTHER FORM (INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF GOODWILL), REGARDLESS OF THE FORM OF ACTION AND EVEN IF SITUSAMC HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM ANY DATA BREACH, CYBERATTACK, SYSTEMS SECURITY BREACH OR DIGITAL INFILTRATION OF OR AGAINST SITUSAMC, ITS SUBCONTRACTORS OR INDEPENDENT CONTRACTORS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTION 7 MAY NOT APPLY TO YOU.
To the fullest extent permitted by applicable law, you release SitusAMC from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
10. Dispute Resolution; Binding Arbitration.
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with SitusAMC and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration provision. In addition, arbitration precludes you from suing in court or having a jury trial.
1. No Representative Actions.
2. Arbitration of Disputes.
The arbitration will allow for the discovery or exchange of non-privileged information relevant to the Dispute. The arbitrator, SitusAMC, and you will maintain the confidentiality of any arbitration proceedings, judgments, and awards, including information gathered, prepared, and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
You and SitusAMC agree that for any arbitration you initiate, you will pay the filing fee (up to a maximum of $250 if you are a consumer), and SitusAMC will pay the remaining JAMS fees and costs. For any arbitration initiated by SitusAMC, SitusAMC will pay all JAMS fees and costs. You and SitusAMC agree that the state or federal courts of the State of New York and the United States sitting in New York, New York have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
Any Dispute must be filed within one year after the relevant claim arose; otherwise, the Dispute is permanently barred, which means that you and SitusAMC will not have the right to assert the claim.
You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 10 by emailing firstname.lastname@example.org. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 11.2 (Governing Law; Jurisdiction and Venue).
1. Force Majeure.
No Party shall be liable for any failure or delay in the performance of its obligations, due to fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorder, rebellions, nor other similar cause beyond the reasonable control of such Party.
2. Governing Law; Jurisdiction and Venue.
3. Relationship of the Parties.
4. No Third-Party Beneficiaries.
5. Modifications; Waiver.
9. Incorporation of Disclaimers.
12. Entire Agreement
13. Questions or Comments.