Appraisal Services Agreement
This APPRAISAL SERVICES AGREEMENT ("Agreement") is entered into as of (the “Effective Date”) by and between LandSafe Appraisal Services, Inc. ("LandSafe") and the below-named Appraiser, an individual, and consists of this signature page and the attached Terms and Conditions, Schedule(s), and all other documents attached hereto, which are incorporated in full by this reference.
Address for Notices (per Section 24.10):
LandSafe Appraisal Services, Inc.
7105 Corporate Drive, MS: TX2-982-04-01
Plano, Texas 75024
Attn: Vendor Relationship Management Team
800.924.3633, Option #5
Table of Contents
2.0 SCOPE OF THE AGREEMENT.............................................................................................................4
3.0 TERM OF AGREEMENT........................................................................................................................5
4.0 TERMINATION ......................................................................................................................................5
6.0 INVOICES/TAXES/PAYMENT ..............................................................................................................6
7.0 MUTUAL REPRESENTATIONS AND WARRANTIES...........................................................................7
8.0 REPRESENTATIONS AND WARRANTIES OF APPRAISER...............................................................7
9.0 FINANCIAL RESPONSIBILITY ..............................................................................................................8
10.0 RELATIONSHIP OF THE PARTIES.....................................................................................................8
11.0 APPRAISER PERSONNEL..................................................................................................................8
13.0 CONFIDENTIALITY AND INFORMATION PROTECTION .................................................................9
14.0 INDEMNITY .......................................................................................................................................11
15.0 LIMITATION OF LIABILITY ...............................................................................................................12
16.0 NO GUARANTEE OF BUSINESS......................................................................................................12
17.0 AUDIT ................................................................................................................................................12
19.0 GOVERNING LAW.............................................................................................................................13
20.0 DISPUTE RESOLUTION....................................................................................................................13
22.0 NON-EXCLUSIVE NATURE OF AGREEMENT.................................................................................14
23.0 OWNERSHIP OF WORK PRODUCT.................................................................................................14
24.0 MISCELLANEOUS ............................................................................................................................15
25.0 ENTIRE AGREEMENT.......................................................................................................................16
SCHEDULE A APPRAISER SERVICE LEVEL AGREEMENT
SCHEDULE B INFORMATION SECURITY
1.1 All capitalized terms in this Agreement not defined in this Section shall have the meanings set forth in the Sections or Schedule(s) of this Agreement in which they are defined.
1.2 Appraisal Order – an order, whether electronic or in writing, provided to Appraiser specifying the Services to be provided by the Appraiser under this Agreement (including, any and all terms, conditions and requirements in any LandSafe engagement letter attached or relating to an Appraisal Order).
1.3 Appraiser Panel – the panel of independent contractor appraisers approved by LandSafe to provide appraisal services for LandSafe’s customers.
1.4 Appraiser Security Controls - those controls implemented by Appraiser as part of its Information Security Program that address each of the LandSafe Security Requirements, as modified from time to time.
1.5 Affiliate - a business entity now or hereafter controlled by, controlling or under common control with a Party. Control exists when an entity owns or controls directly or indirectly 50% or more of the outstanding equity representing the right to vote for the election of directors or other managing authority of another entity.
1.6 Business Day - Monday through Friday, excluding days on which LandSafe is not open for business in the United States of America.
1.7 Confidential Information - any information or material that is confidential and proprietary to LandSafe and its Affiliates including, without limitation, (i) any record about an individual, whether in paper, electronic, or other form, that is a consumer report as such term is defined in the Fair Credit Reporting Act (15 USC 1681 et seq.) or is derived from a consumer report and that is maintained or otherwise possessed by or on behalf of LandSafe and its Affiliates, (ii) any record containing information about a customer, its usage of LandSafe’s and its Affiliates’ services, or about such customer’s accounts, whether in paper, electronic, or other form, (iii) information relating to the business, operations, customer lists, product development strategy and activity, marketing strategy, corporate assessments and strategic plans, business plans, Landsafe Policies and Procedures, Landsafe Guidelines and Requirements, pricing, financial and statistical information and reports, accounting information and reports, processes, techniques, methods, products, systems, services (whether or not any of the foregoing use, or are connected with, a computer of any sort) of LandSafe and its Affiliates, (iv) all information relating to LandSafe’s and its Affiliates’ consultants, employees, customers, vendors and suppliers, (v) specific business proposals related to this business relationship and any legal agreements or documents (including this Agreement) to memorialize the business relationship; (vi) confidential, proprietary or trade secret information disclosed by LandSafe or its Affiliates, which a reasonable person would recognize as such and (vii) all analyses, compilations, summaries, documents or reports prepared by the Appraiser which are derived from or based on LandSafe’s or its Affiliates’ Confidential Information. Confidential Information includes information in both oral and written form and as contained in any other type of storage medium.
1.8 Effective Date – the date set forth on the signature page on which this Agreement takes effect.
1.9 Information Security Program - the documents that describe how Appraiser will provide Services to LandSafe in a manner that complies with the confidentiality and information security requirements of this Agreement and all pertinent Schedule(s) and Exhibits hereto. If Appraiser is a legal entity, such information security program must be approved by Appraiser’s board of directors or equivalent executive management prior to the Effective Date thereof and annually thereafter. It must describe Appraiser’s network infrastructure and security procedures and controls that protect Confidential Information on a basis that meets or exceeds the LandSafe Security Requirements.
1.10 Intellectual Property Rights - all intellectual property rights throughout the world, including copyrights, patents, mask works, trademarks, service marks, trade secrets, inventions (whether or not patentable), know how, authors’ rights, rights of attribution, and other proprietary rights and all applications and rights to apply for registration or protection of such rights.
1.11 LandSafe Guidelines and Requirements – those certain appraiser guidelines and requirements maintained by LandSafe which set forth policies, procedures and requirements for staff appraisers and Appraiser Panel appraisers, as may be amended from time to time in LandSafe’s sole discretion.
1.12 LandSafe Policies and Procedures – all policies, procedures, requirements and guidelines of LandSafe, whether in writing or in electronic form, communicated or otherwise available to Appraiser, including, without limitation, policies and procedures contained on LandSafe’s website(s) or AppraisalPort, communicated in circulars and emails and training presentations to Appraisers and contained in LandSafe Guidelines and Requirements, the Appraisal Order(s), and the Appraiser Application package, as may currently exist or hereafter be created and as may be altered, changed, amended or modified from time to time in LandSafe’s sole discretion.
1.13 LandSafe Security Requirements - all security requirements of LandSafe as specified in this Agreement, LandSafe Policies and Procedures, LandSafe Guidelines and Requirements or as may otherwise be communicated by LandSafe to Appraiser.
1.14 Party - LandSafe or Appraiser.
1.15 Records - documentation of facts that include normal and customary documentation of facts or events for an industry, specific deliverables as designated, emails determined to be “records” because of the business or litigation purpose, any records documenting legal, regulatory, fiscal, or administrative requirements.
1.16 Relationship Manager - the employee designated by a Party to act on its behalf with regard to matters arising under this Agreement who shall be the person the other Party shall contact in writing regarding matters concerning this Agreement.
1.17 Representative - an employee or agent of a Party.
1.18 Services - the services provided by Appraiser under this Agreement and as described in any Appraisal Order, together with any appraisal reports, materials, supplies, products, tangible items or other goods Appraiser furnishes in connection with such services.
1.19 Term - the term of the Agreement.
1.20 Third Party Claim – any demand, claim, complaint, administrative proceeding, lawsuit or similar matter initiated by any third party, including, without limitation, a LandSafe customer, a consumer or a governmental licensing authority, regarding the Services provided by Appraiser under this Agreement, whether in connection with one or more Appraisal Orders or otherwise.
1.21 Work Product - all information, data, materials, discoveries, inventions, works of authorship, documents, documentation, models, computer programs, software (including source code and object code), firmware, designs, drawings, specifications, processes, procedures, techniques, algorithms, diagrams, methods, and all tangible embodiments of each of the foregoing (in whatever form and media) conceived, created, reduced to practice or prepared by or for Appraiser at the request of LandSafe pursuant to this Agreement or within the scope of Services provided under this Agreement, whether or not prepared on LandSafe’s premises and all Intellectual Property Rights therein.
2.0 SCOPE OF THE AGREEMENT
2.1 Appraiser shall perform the Services in accordance with this Agreement and the service levels, specifications and timeframes as set forth in this Agreement, LandSafe Policies and Procedures, LandSafe Guidelines and Requirements and the Appraisal Order, as applicable. Appraiser understands, acknowledges and agrees to identify their competencies and that LandSafe will determine Appraiser’s volume limits, geography and appraisal products eligible for Services hereunder and may change such requirements from time to time in its sole and absolute discretion.
2.2 Unless the Parties otherwise agree in writing, all Services provided hereunder shall be processed and/or provided, whether in part or in whole, by Appraiser, its employees and/or Representatives on and from a location or locations in one (1) or more of the fifty (50) states, and territories, of the United States of America only, all subject to applicable laws and regulations.
2.3 As required in this Agreement, LandSafe Policies and Procedures, LandSafe Guidelines and Requirements and the Appraisal Order, all appraisal reports and related documentation, and invoices, shall be provided in printed or electronic formats acceptable to LandSafe. LandSafe may use and reproduce for internal purposes all appraisal reports and related documentation furnished by Appraiser, including displaying the appraisal reports and related documentation on LandSafe’s intranet or other internal electronic distribution system, in part or in whole. Appraiser acknowledges and agrees that the lender/client may disclose or distribute appraisal reports prepared by the Appraiser to: the borrower; another lender at the request of the borrower; the mortgagee or its successors and assigns; mortgage insurers; government sponsored enterprises; other secondary market participants; data collection or reporting services; professional appraisal organizations; any department, agency, or instrumentality of the United States; and any state, the District of Columbia, or other jurisdictions; without having to obtain the Appraiser’s or the supervisory appraiser’s (if applicable) consent. Appraiser’s consent shall be obtained before an appraisal report may be disclosed or distributed to any other party (including, but not limited to, the public through advertising, public relations, news, sales, or other media).
2.4 All instruments, such as Appraisal Orders, acknowledgments, invoices, schedules and the like used in conjunction with this Agreement ("Instruments") shall be for the sole purpose of defining quantities, prices and describing the Services to be provided hereunder, and to this extent only are incorporated as a part of this Agreement. Any preprinted terms and conditions included in Instruments provided by Appraiser shall not be incorporated and such Instrument shall be construed to modify, amend, or alter the terms of this Agreement solely for the purpose stated in the preceding sentence. Preprinted, standard, or posted terms and conditions in any media provided by Appraiser (including terms where acquiescence requires only a mouse click) shall not be incorporated into nor construed to amend the terms of this Agreement. Any Instrument submitted to LandSafe by Appraiser in connection with this Agreement shall reference, as applicable, the Appraisal Order number.
2.5 LandSafe may make one or more websites available to Appraiser. Appraiser shall comply with any and all applicable policies and procedures and/or terms and conditions of use of such websites. Appraiser understands and agrees that Appraiser may be required to consent to such policies and procedures and such terms and conditions of use regarding LandSafe’s websites via one or more “click-through” agreements, in which case, Appraiser agrees that by clicking acceptance of such agreement and using the website, Appraiser shall be legally bound thereby. Further, Appraiser expressly agrees that LandSafe may, in its discretion, change the policies and procedures and/or terms and conditions of use governing its websites at any time and for any reason upon notice to Appraiser and any such change shall be effective on the date specified in such notice.
2.6 Upon LandSafe’s request, Appraiser agrees to attend training sessions(s) held by Landsafe at a reasonable time and place.
2.7 Appraiser expressly acknowledges and agrees that the rights of LandSafe set forth in this Agreement shall inure to all LandSafe Affiliates.
3.0 TERM OF AGREEMENT
3.1 This Agreement shall be in effect from the Effective Date and shall continue until terminated under the terms of this Agreement.
4.1 Except as otherwise prohibited by applicable law, either Party may terminate this Agreement for its convenience, without cause, at any time without further charge or expense upon prior written notice to the other Party. Without limiting the generality of the foregoing, Appraiser understands, acknowledges and agrees that LandSafe may remove Appraiser from the Appraisal Panel and terminate this simultaneously therewith by providing written notice to Appraiser, or otherwise in compliance with the provisions of applicable law.
4.2 In addition to any other remedies available to either Party, upon the occurrence of a Termination Event (as defined below) with respect to either Party, the other Party may immediately terminate this Agreement by providing written notice of termination. A Termination Event shall have occurred if: (a) a Party materially breaches its obligations under this Agreement or with respect to an Appraisal Order under this Agreement, and the breach is not cured within thirty (30) calendar days after written notice of the breach and intent to terminate is provided by the other Party; (b) a Party becomes insolvent (generally unable to pay its debts as they become due) or the subject of a bankruptcy, conservatorship, receivership or similar proceeding, or makes a general assignment for the benefit of its creditors; (c) Appraiser either: (i) merges with another entity, (ii) suffers a transfer involving fifty percent (50%) or more of any class of its voting securities or (iii) transfers all, or substantially all, of its assets; (d) in providing Services hereunder, Appraiser violates any law or regulation, or causes LandSafe to be in material violation of any law or regulation; (e) Appraiser fails to maintain any license(s) and/or certification(s) required to perform the Services; (f) LandSafe has the right to terminate under the Section entitled “Pricing/Fees” or (g) a Party attempts to assign this Agreement in breach of the Section entitled “Non-Assignment.”
4.3 The rights and obligations of the Parties which by their nature must survive termination or expiration of this Agreement in order to achieve its fundamental purposes including, without limitation, the provisions of the following Sections entitled “AUDIT,” “CONFIDENTIALITY AND INFORMATION PROTECTION,” “INDEMNITY,” “LIMITATION OF LIABILITY,” “MEDIATION/ARBITRATION,” “OWNERSHIP OF WORK PRODUCT” and “MISCELLANEOUS,” shall survive in perpetuity any termination of this Agreement.
5.1 Unless otherwise mutually agreed in writing, LandSafe shall pay Appraiser for Services provided under this Agreement as set forth in the Appraisal Order, pursuant to LandSafe’s then current fee schedule as published in the LandSafe Policies and Procedures. LandSafe reserves the right to amend or modify its fees/pricing from time to time in its sole and absolute discretion. To the extent Appraiser authorizes LandSafe to pay fees for Appraiser’s services directly to Appraiser’s employer or affiliated appraisal company (as applicable), Appraiser will be deemed to have been paid in full upon LandSafe’s payment to Appraiser’s employer or affiliated appraisal company (as applicable); and Appraiser shall hold harmless LandSafe and its Representatives from and against any and all claims or legal actions arising from any dispute between Appraiser and Appraiser’s employer or affiliated appraisal company (as applicable) regarding such payments made by LandSafe.
5.2 LandSafe shall not be required to pay for Services that are: (a) not requested by LandSafe and documented in an Appraisal Order, or (b) not meeting the requirements of this Agreement. Fees for services not subject to this Agreement or an applicable Appraisal Order shall be as mutually agreed in writing between LandSafe and Appraiser prior to performance. No fees for such services shall be due unless such services and fees are agreed to in writing by LandSafe prior to Appraiser’s performance thereof.
6.1 All Services performed by Appraiser shall be invoiced and paid in accordance with LandSafe Policies and Procedures.
6.2 LandSafe will not be obligated to pay any invoices which fail to comply with LandSafe Policies and Procedures.
6.3 The Payments made by LandSafe for Services performed by the Appraiser shall include all sales, use or excise taxes levied in accordance with the general statutes or other authoritative directives of the applicable taxing authority on amounts payable by LandSafe to Supplier pursuant to this Agreement; and, LandSafe shall not be responsible for remittance of such taxes to applicable tax authorities, which shall be the responsibility of Appraiser.
6.4 LandSafe shall not be responsible for any ad valorem, income, gross receipts, franchise, privilege, value added or occupational taxes of Appraiser. LandSafe and Appraiser shall each bear sole responsibility for all taxes, assessments and other real or personal property-related levies on its owned or leased real or personal property.
6.5 Appraiser shall be responsible for the payment of all interest and penalties related to any taxes assessed or levied as contemplated by Section 6.3 to the extent that Appraiser fails to remit such taxes directly to the applicable taxing authority. In the event that a taxing authority performs a sample and projection audit of LandSafe, then Appraiser shall be responsible for the payment of all interest and penalties on any projected taxes assessed resulting from taxing errors identified by such taxing authority.
6.6 Appraiser shall keep and maintain complete and accurate accounting Records in accordance with generally accepted accounting principles consistently applied to support and document all amounts becoming payable to Appraiser hereunder. Upon request from LandSafe and within a reasonably prompt time after such request, Appraiser shall provide to LandSafe (or a Representative designated by LandSafe) access to such Records for the purpose of auditing such Records during normal business hours. Appraiser shall retain all Records required under this Section in accordance with the Section entitled “Audit” of this Agreement, after the amounts documented in such Records become due. Appraiser shall cooperate fully with LandSafe and any taxing authority involving any audit of sales, use or excise taxes. Upon request from LandSafe, Appraiser will provide copies of invoices in electronic form that have been selected for review by any taxing authority, together with documents supporting the identification of taxable and nontaxable portions of amounts reflected on such invoices.
7.0 MUTUAL REPRESENTATIONS AND WARRANTIES
7.1 Each Party represents and warrants the following: (a) the Party’s execution, delivery and performance of this Agreement: (i) have been authorized by all necessary corporate action, (ii) do not violate the terms of any law, regulation, or court order to which such Party is subject or the terms of any material agreement to which the Party or any of its assets may be subject and (iii) are not subject to the consent or approval of any third party; (b) this Agreement is the valid and binding obligation of the representing Party, enforceable against such Party in accordance with its terms; and (c) such Party is not subject to any pending or threatened litigation or governmental action which could interfere with such Party's performance of its obligations hereunder.
8.0 REPRESENTATIONS AND WARRANTIES OF APPRAISER
8.1 In rendering its obligations under this Agreement, without limiting other applicable performance warranties, Appraiser represents and warrants to LandSafe as follows: (a) Appraiser is in good standing in the state of its incorporation/organization and is qualified to do business as a foreign corporation/organization in each of the other states in which it is providing Services hereunder; (b) Appraiser shall secure or has secured, and will continue to maintain, all permits, licenses, regulatory approvals and registrations required to render Services set forth herein, including without limitation, registration with the appropriate taxing authorities for remittance of taxes, (c) Appraiser has not had any disciplinary action(s) against it in the state(s) where it is licensed/certified within the last five (5) years, and (d) Appraiser possesses geographic competence for each Appraisal Order accepted.
8.2 Appraiser represents and warrants that it shall perform the Services in a timely and professional manner using competent personnel having expertise suitable to their assignments. Appraiser represents and warrants that the Services shall conform to or exceed, in all material respects, the specifications described herein, as well as the standards generally observed in the industry for similar services. Without limiting the generality of the foregoing, Appraiser represents and warrants that the Services shall comply with the current Uniform Standards of Professional Appraisal Practices, all applicable state and federal laws (including, without limitation, FIRREA Title XI, the Equal Credit Opportunity Act and the Fair Housing Act) and all appraisal guidelines published by Fannie Mae, Freddie Mac, the FDIC, the OTS, the OCC and the NCUA. Appraiser represents and warrants that the Work Product and Services furnished under this Agreement do not and shall not infringe, misappropriate or otherwise violate any Intellectual Property Rights or any other rights of any third party.
8.3 As of the Effective Date, there are no actions, suits or proceedings pending, or to the knowledge of Appraiser threatened, against Appraiser and Appraiser’s Representatives alleging infringement, misappropriation or other violation of any Intellectual Property Rights related to any Work Product or Service contemplated by this Agreement.
8.4 Appraiser shall, and shall be responsible for ensuring that Appraiser’s Representatives shall, perform all obligations of Appraiser under this Agreement in compliance with all laws, rules, regulations, guidelines and other legal requirements.
8.5 THE WARRANTIES CONTAINED IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9.0 FINANCIAL RESPONSIBILITY
9.1 Appraiser shall notify LandSafe immediately in the event there is a change of control or material adverse change in Appraiser’s business or financial condition.
10.0 RELATIONSHIP OF THE PARTIES
10.1 The Parties are independent contractors. Nothing in this Agreement or in the activities contemplated by the Parties hereunder shall be deemed to create an agency, partnership, employment or joint venture relationship between the Parties or any of their subcontractors or Representatives.
11.0 APPRAISER PERSONNEL
11.1 Within forty-eight (48) hours following LandSafe’s request, Appraiser shall furnish LandSafe the resume of, and copies of license and certifications of, any Appraiser who has provided Services under this Agreement.
11.2 Appraiser's personnel are not eligible to participate in any of the employee benefit or similar programs of LandSafe. Appraiser shall inform all of its personnel providing Services pursuant to this Agreement that they will not be considered employees of LandSafe for any purpose, and that LandSafe shall not be liable to any of them as an employer for any claims or causes of action arising out of or relating to their assignment.
11.3 Upon the request of LandSafe, Appraiser shall promptly, and after consultation with LandSafe, address any concerns or issues raised by LandSafe regarding the performance of Services under this Agreement by Appraiser and any activities of Appraiser’s Representatives in support of such Services. LandSafe makes no agreement or otherwise provides any guaranty that Appraiser will be on the Appraiser Panel for any period of time. Appraiser will be notified in writing, in accordance with applicable law, if it is removed from the Appraiser Panel.
11.4 Appraiser shall not engage subcontractors to perform Appraiser’s obligations under this Agreement. Appraiser shall be responsible for any and all activities of its Representatives in support of Appraiser’s performance of the Services hereunder. Appraiser shall comply and shall cause its Representatives to comply with all LandSafe Security Requirements, LandSafe Policies and Procedures, LandSafe Guidelines and Requirements and any other security policies, rules and regulations and other instructions of LandSafe, when accessing any LandSafe systems or data, and shall conduct its work on LandSafe systems in such a manner as to avoid interfering with the convenience of, LandSafe Representatives or customers. Appraiser understands that LandSafe operates under various laws and regulations that are unique to the security-sensitive banking industry. As such, persons engaged by Appraiser to provide Services under this Agreement are held to a higher standard of conduct and scrutiny than in other industries or business enterprises. Appraiser agrees that its Representatives providing Services hereunder shall possess appropriate character, disposition and honesty. Appraiser shall exercise reasonable and prudent efforts to comply with the security provisions of this Agreement.
11.5 Appraiser shall not knowingly permit a Representative to have access to the Confidential Information when such Representative: (a) has been convicted of a crime or has agreed to or entered into a pretrial diversion or similar program in connection with: (i) a dishonest act or a breach of trust, as set forth in Section 19 of the Federal Deposit Insurance Act, 12 U.S.C. 1829(a); or (ii) a felony; or (b) uses illegal drugs.
11.6 As may be required by LandSafe, Appraiser and its respective Representatives may be required to submit to periodic background checks, including, without limitation, prior to performing Services under this Agreement and on such periodic basis as LandSafe may determine appropriate in its sole discretion.
11.7 Appraiser shall notify LandSafe immediately in the event Appraiser receives notice of a pending or threatened litigation or government action against Appraiser that concerns or relates to Appraiser’s professional responsibilities and/or Appraiser’s performance of the Services hereunder.
12.1 Appraiser shall at its own expense secure and continuously maintain throughout the Term, the insurance coverages required by LandSafe under the LandSafe Policies and Procedures and/or LandSafe Guidelines and Requirements, as applicable. Appraiser shall, within seven (7) calendar days following LandSafe’s request, furnish to LandSafe certificates and required endorsements evidencing such insurance.
12.2 The failure of LandSafe to obtain certificates, endorsements, or other forms of insurance evidence from Appraiser is not a waiver by LandSafe of any requirements for the Appraiser to secure and continuously maintain the specified coverages. LandSafe’s acceptance of certificates and/or endorsements that in any respect do not comply with the requirements of this Section does not release the Appraiser from compliance herewith. Should Appraiser fail to secure and continuously maintain the insurance coverage required under this Agreement, Appraiser shall itself be responsible to LandSafe for all the benefits and protections that would have been provided by such coverage, including without limitation, the defense and indemnification protections.
13.0 CONFIDENTIALITY AND INFORMATION PROTECTION
13.1 Appraiser acknowledges that LandSafe has a responsibility to its customers and other consumers using its services to Consumer Information strictly confidential. Appraiser hereby agrees that it will not, and will cause its Representatives, consultants, Affiliates and independent contractors not to disclose Confidential Information, during or after the Term of this Agreement, other than on a “need to know” basis and then only to Appraiser’s Representatives. Appraiser shall not use or disclose Confidential Information for any purpose other than to carry out this Agreement. Appraiser shall treat Confidential Information with no less care than it employs for its own Confidential Information of a similar nature that it does not wish to disclose, publish or disseminate, but not less than a reasonable level of care. Upon expiration or termination of this Agreement for any reason or at the written request of LandSafe during the Term of this Agreement, Appraiser shall promptly return to LandSafe or destroy according to the Information Destruction Requirements described within SCHEDULE A, “Information Security”, at LandSafe’s election, all Confidential Information in the possession of Appraiser or Appraiser’s Representatives, subject to and in accordance with the terms and provisions of this Agreement.
13.2 Appraiser shall notify LandSafe of any actual or threatened requirement of law to disclose Confidential Information promptly upon receiving actual knowledge thereof and shall cooperate with LandSafe's reasonable, lawful efforts to resist, limit or delay disclosure.
13.3 Appraiser shall not remove or download from LandSafe’s systems, the original or any reproduction of any notes, memoranda, files, records, or other documents, whether in tangible or electronic form, containing Confidential Information or any document prepared by or on behalf of Appraiser that contains or is based on Confidential Information, without the prior written consent of an authorized Representative of LandSafe. Any document or media provided by an authorized LandSafe Representative or notes taken to document discussions with LandSafe Representatives pertaining to the Services performed hereunder will be deemed to fall outside this consent requirement unless otherwise stated by the LandSafe Representative.
13.4 The obligations of confidentiality in this Section shall not apply to any information that (i) Appraiser rightfully has in its possession when disclosed to it, free of obligation to LandSafe to maintain its confidentiality; (ii) Appraiser independently develops without access to Confidential Information; (iii) is or becomes known to the public other than by breach of this Section or (iv) is rightfully received by Appraiser from a third party without the obligation of confidentiality. Any combination of Confidential Information disclosed with information not so classified shall not be deemed to be within one of the foregoing exclusions merely because individual portions of such combination are free of any confidentiality obligation or are separately known in the public domain.
13.5 Neither Party shall issue any media releases, public announcements and public disclosures, relating to this Agreement or use the name or logo of the other Party, including, without limitation, in promotional or marketing material or on a list of customers, provided that nothing in this paragraph shall restrict any disclosure required by legal, accounting or regulatory requirements beyond the reasonable control of the releasing Party.
13.6 All Confidential Information disclosed by LandSafe and any results of processing such Confidential Information or derived in any way therefrom shall at all times remain the property of LandSafe. Appraiser shall have responsibility for and bear all risk of loss or damage to Confidential Information and damages resulting from improper or inaccurate processing of such data arising from the negligence or willful misconduct of Appraiser or its Representatives.
13.7 Appraiser acknowledges that LandSafe is required to comply with the information security standards required by the Gramm-Leach-Bliley Act (15 U.S.C. 6801, 6805(b)(1)) and the regulations issued thereunder (12 C.F.R. Part 40), the Fair and Accurate Credit Transactions Act (15 U.S.C. 1681, 1681w) and the regulations issued thereunder (12 C.F.R. Parts 30 and 41) and with other statutory, legal and regulatory requirements (collectively, “Privacy Laws”). If applicable, Appraiser shall make commercial best efforts to assist LandSafe to so comply and shall comply and conform with applicable Privacy Laws, as amended from time to time, and with the LandSafe policies for information protection as modified by LandSafe from time to time.
13.8 LandSafe reserves the right to amend the Agreement to include language that allows LandSafe to discharge its regulatory obligations to evaluate the manner in which Appraiser protects Confidential Information. Appraiser hereby acknowledges and agrees that Appraiser has no legal right to access, receive, accept, transmit, store or otherwise impact Confidential Information under any circumstance whatsoever unless and until LandSafe has granted such rights to Appraiser after the opportunity to determine the level of Appraiser’s compliance with the LandSafe Security Requirements and such other terms or conditions as LandSafe may require. After granting such rights to Appraiser, LandSafe may suspend, revoke or terminate such rights in its sole discretion upon written notice to Appraiser. Upon receipt of that notice, Appraiser shall (i) immediately stop accessing and/or accepting Confidential Information and (ii) promptly return to LandSafe or destroy according to the Information Destruction Requirements described within SCHEDULE A, “Information Security”, at LandSafe’s election, all LandSafe Confidential Information in the possession of Appraiser, subject to and in accordance with the terms and provisions of this Agreement.
13.9 As a condition of access to the Confidential Information of LandSafe, and upon the request of Landsafe, Appraiser shall make available to LandSafe a copy of its written Information Security Program for evaluation. The program shall be designed to: (a) ensure the security, integrity and confidentiality of Confidential Information; (b) protect against any anticipated threats or hazards to the security or integrity of such Confidential Information; (c) protect against unauthorized access to or use of such Confidential Information that could result in substantial harm or inconvenience to the person or entity that is the subject of such Confidential Information; and (d) ensure the proper disposal of such Confidential Information.
13.10 At the request of LandSafe, Appraiser shall make commercially reasonable modifications to its Information Security Program or to the procedures and practices thereunder to conform at least to the LandSafe Security Requirements. Appraiser shall require any persons or entities who provide services to Appraiser for delivery to LandSafe directly or indirectly or who hold Confidential Information to implement and administer an information protection program and plan that complies with LandSafe Security Requirements.
13.11 One aspect of the determination of Appraiser compliance with LandSafe Security Requirements is a review of Appraiser Security Controls. As a condition precedent to performance under this Agreement, Appraiser agrees to satisfy the following validation requirements: (a) participation in LandSafe’s Appraiser assessment process including the completion of online or on-site assessment(s), as appropriate, and remediation of any findings; (b) periodic discussions between LandSafe personnel and Appraiser Information Technology security personnel to review Appraiser Security Controls; and (c) if requested delivery to LandSafe of network diagrams depicting Appraiser perimeter controls and security policies and processes relevant to the protection of Confidential Information. Examples of these policies include, but are not limited to, access control, physical security, patch management, password standards, encryption standards, and change control.
13.12 During the course of performance under this Agreement, Appraiser shall ensure the following: (a) adequate governance and risk assessment processes are in place to maintain controls over Confidential Information. A security awareness program must be in place or implemented that communicates security policies to all Appraiser personnel having access to Confidential Information; (b) notification to LandSafe of changes that may impact the security of Confidential Information. Such changes requiring notification include, by way of example and not limitation, outsourcing of computer networking, data storage, management and processing or other information technology functions or facilities and the implementation of external web-enabled (Internet) access to Confidential Information; and (c) use of strong, industry-standard encryption of Confidential Information transmitted over public networks (e.g. Internet, non-dedicated leased lines) and backup tapes residing at off-site storage facilities.
13.13 Appraiser shall deliver an updated Information Security Program or confirm that no changes have been made to the Information Security Program annually, if requested.
14.1 Appraiser shall indemnify, defend, and hold harmless LandSafe and its Representatives, successors and permitted assigns from and against any and all claims or legal actions of whatever kind or nature that are made or threatened by any third party and all related losses, expenses, damages, costs and liabilities, including reasonable attorneys' fees and expenses incurred in investigation, defense or settlement (“Damages”), which arise out of, are alleged to arise out of, or relate to the following: (a) any negligent act or omission or willful misconduct by Appraiser or its Representatives engaged by Appraiser in the performance of Appraiser’s obligations under this Agreement; or (b) any breach in a representation, covenant or obligation of Appraiser contained in this Agreement.
14.2 Appraiser shall defend or settle at its expense any threat, claim, suit or proceeding arising from or alleging infringement, misappropriation or other violation of any Intellectual Property Rights or any other rights of any third party by Work Product or Services furnished under this Agreement. Appraiser shall indemnify and hold LandSafe, its Affiliates and each of their Representatives and customers harmless from and against and pay any Damages, including royalties and license fees attributable to such threat, claim, suit or proceeding.
If any Work Product or Services furnished under this Agreement, including, without limitation, software, system design, equipment or documentation, becomes, or in LandSafe’s or Appraiser's reasonable opinion is likely to become, the subject of any claim, suit, or proceeding arising from or alleging facts that if true would constitute infringement, misappropriation or other violation of, or in the event of any adjudication that such Work Product or Service infringes, misappropriates or otherwise violates, any Intellectual Property Rights or any other rights of a third party, Appraiser, at its own expense, shall take the following actions in the listed order of preference: (a) secure for LandSafe the right to continue using the Work Product or Service; or if commercially reasonable efforts are unavailing, (b) replace or modify the Work Product or Service to make it non-infringing; provided, however, that such modification or replacement shall not degrade the operation or performance of the Work Product or Service.
14.3 LandSafe shall give Appraiser notice of, and the Parties shall cooperate in, the defense of any such claim, suit or proceeding, including appeals, negotiations and any settlement or compromise thereof, provided that LandSafe must approve the terms of any settlement or compromise that may impose any unindemnified or nonmonetary liability on LandSafe and/or its Affiliates.
15.0 LIMITATION OF LIABILITY
15.1 Neither Party shall be liable to the other for any special, indirect, incidental, consequential, punitive or exemplary damages, including, but not limited to, lost profits, even if such Party alleged to be liable has knowledge of the possibility of such damages, provided, however, that the limitations set forth in this Section shall not apply to or in any way limit the obligations of the Section entitled “Indemnity,” the Section entitled “Confidentiality and Information Protection,” or Appraiser’s gross negligence or willful misconduct.
16.0 NO GUARANTEE OF BUSINESS
16.1 Appraiser understands, acknowledges and agrees that LandSafe makes no agreement or otherwise provides any guarantee to Appraiser of (i) any volume business or (ii) any length of service on the Appraisal Panel. In no event shall any communication from LandSafe, its Affiliates and/or their respective Representatives, whether written, electronic or oral, be construed as an agreement to provide a guarantee of business or length of service on the Appraisal Panel.
17.1 Appraiser shall maintain at no additional cost to LandSafe, in a reasonably accessible location, all Records pertaining to its Services provided to LandSafe under this Agreement for a period of ten (10) years, and if such Records are used in a judicial (or other dispute resolution) proceeding related to an Appraisal Order(s), Appraiser shall retain them for ten (10) years following the disposition of the proceeding. Such Appraiser Records referenced above may be inspected, audited and copied by LandSafe, its Representatives or by federal or state agencies having jurisdiction over LandSafe, during normal business hours and at such reasonable times as LandSafe and Appraiser may determine. Records available for review shall exclude any records pertaining to Appraiser’s other customers deemed proprietary and confidential and Appraiser confidential and proprietary records not associated with the Services provided under the Agreement. Appraiser will give prior notice to LandSafe of requests by federal or state authorities to examine Appraiser’s LandSafe Records. At LandSafe’s written request, Appraiser shall reasonably cooperate with LandSafe in seeking a protective order with respect to such Records.
17.2 During regular business hours but no more frequently than once a year, LandSafe may, at its sole expense, perform a confidential audit of Appraiser’s operations as they pertain to the Services provided under this Agreement. Such audits shall be conducted on a mutually agreed upon date (which shall be no more than ten (10) Business Days after LandSafe’s written notice of time, location and duration), subject to reasonable postponement by Appraiser upon Appraiser’s reasonable request, provided, however, that no such postponement shall exceed twenty (20) Business Days. LandSafe will provide Appraiser a summary of the findings from each report prepared in connection with any such audit and discuss results, including any remediation plans. If audit results find Appraiser is not in substantial compliance with the requirements of this Agreement, then LandSafe shall be entitled, at Appraiser’s expense, to perform up to two (2) additional such audits in that year in accordance with the procedure set forth in this Section. Appraiser agrees to promptly take action at its expense to correct those matters or items identified in any such audit that require correction. Failure to correct such matters shall be considered a material breach of this Agreement.
17.3 Appraiser will provide reasonable access to LandSafe’s federal and state governmental regulators (at a minimum, to the extent required by law), at LandSafe’s expense, to LandSafe’s Records held by Appraiser and to the procedures and facilities of Appraiser relating to the Services provided under this Agreement. Pursuant to 12 U.S.C. 1867(c), the performance of such Services will be subject to regulation and examination by the appropriate federal banking agency to the same extent as if the Services were being performed by LandSafe itself. Appraiser acknowledges and agrees that regulatory agencies may audit Appraiser’s performance at any time during normal business hours and that such audits may include both methods and results under this Agreement.
17.4 Upon prior written notice and at a mutually acceptable time, LandSafe personnel or its Representatives (e.g., external audit consultants) may audit, test or inspect Appraiser’s Information Security Program and its facilities to assure LandSafe’s data and Confidential Information are adequately protected. This right to audit is in addition to the other audit rights or assessments granted herein. LandSafe will determine the scope of such audits, tests or inspections, which may extend to Appraiser resources (other systems, environmental support, recovery processes, etc.) used to support the systems and handling of Confidential Information. Appraiser will inform LandSafe of any internal auditing capability it possesses and permit LandSafe’s personnel to consult on a confidential basis with such auditors at all reasonable times. LandSafe may provide Appraiser a summary of the findings from each report prepared in connection with any such audit and discuss results, including any remediation plans. Without limiting any other rights of LandSafe herein, if Appraiser is in breach or otherwise not compliant with any of the provisions set forth in the Section of this Agreement entitled “Confidentiality and Information Protection” and/or SCHEDULE A, then LandSafe may conduct additional audits.
17.5 In addition to the requirements under this Section 17 and upon LandSafe’s request, Appraiser shall deliver to LandSafe, within thirty (30) calendar days after its receipt by its senior management, a copy of any preliminary or final report of audit of Appraiser by any third-party auditors retained by Appraiser, including any management letter such auditors submit, and on any other audit or inspection upon which LandSafe and Appraiser may mutually agree.
18.1 Neither Party may assign this Agreement or any of the rights hereunder or delegate any of its obligations hereunder, without the prior written consent of the other Party, and any such attempted assignment shall be void, except that LandSafe or any permitted LandSafe assignee may assign any of its rights and obligations under this Agreement to any LandSafe Affiliate, the surviving corporation with or into which LandSafe or such assignee may merge or consolidate or an entity to which LandSafe or such assignee transfers all, or substantially all, of its business and assets.
19.0 GOVERNING LAW
19.1 This Agreement shall be governed by the internal laws, and not by the laws regarding conflicts of laws, of the State of Texas. Each Party hereby submits to the exclusive jurisdiction of the courts of such state, and waives any objection to venue with respect to actions brought in such courts. This provision shall not be construed to conflict with the provisions of the Section entitled “Mediation/Arbitration.”
20.0 DISPUTE RESOLUTION
20.1 Except for Third Party Claims, the following procedure will be adhered to in all disputes arising under this Agreement which the Parties cannot resolve informally through their Relationship Managers. The aggrieved Party shall notify the other Party in writing of the nature of the dispute with as much detail as possible about the deficient performance of the other Party. The Relationship Managers shall meet (in person or by telephone) within seven (7) calendar days (or other mutually agreed upon date) after the date of the written notification to reach an agreement about the nature of the deficiency and the corrective action to be taken by the respective Parties. If the Relationship Managers do not meet or are unable to agree on corrective action, senior managers of the Parties having authority to resolve the dispute without the further consent of any other person ("Management") shall meet or otherwise act to facilitate an agreement within fourteen (14) calendar days (or other mutually agreed upon date) of the date of the written notification. If Management do not meet or cannot resolve the dispute or agree upon a written plan of corrective action to do so within seven (7) calendar days (or other mutually agreed upon date) after their initial meeting or other action, or if the agreed-upon completion dates in the written plan of corrective action are exceeded, either Party may request mediation and/or arbitration as provided for in this Agreement. Except as otherwise specifically provided, neither Party shall initiate arbitration, mediation or litigation unless and until this dispute resolution procedure has been substantially complied with or waived. Failure of a Party to fulfill its obligations in this Section, including failure to meet timely upon the other Party’s notice, shall be deemed such a waiver.
21.1 If the Parties are unable to resolve a dispute arising out of or relating to this Agreement in accordance with the Section entitled “Dispute Resolution,” the Parties will in good faith attempt to resolve such dispute through non-binding mediation. The mediation shall be conducted before a mediator acceptable to both sides, who shall be an attorney or retired judge practicing in the areas of banking and/or information technology law. The mediation shall be held in Plano, Texas, provided, however, Third Party Claims and any dispute relating to infringement of Intellectual Property Rights or the Section entitled “Confidentiality and Information Protection” shall not be subject to this Section entitled “Mediation/Arbitration”.
21.2 Any controversy or claim, other than those specifically excluded, between or among the Parties not resolved through mediation under the preceding provision, shall at the request of a Party be determined by arbitration. The arbitration shall be conducted by one independent arbitrator who shall be an attorney or retired judge practicing in the areas of banking and/or information technology law. The arbitration shall be held in Plano, Texas in accordance with the United States Arbitration Act (9 U.S.C. 1 et seq.), notwithstanding any choice of law provision in this Agreement, and under the auspices and the Commercial Arbitration Rules of the American Arbitration Association.
21.3 Consistent with the expedited nature of arbitration, each Party will, upon the written request of the other Party, promptly provide the other with copies of documents relevant to the issues raised by any claim or counterclaim on which the producing Party may rely in support of or in opposition to any claim or defense. At the request of a Party, the arbitrator shall have the discretion to order examination by deposition of witnesses to the extent the arbitrator deems such additional discovery relevant and appropriate. Depositions shall be limited to a maximum of three (3) per Party and shall be held within thirty (30) calendar days of the making of a request. Additional depositions may be scheduled only with the permission of the arbitrator, and for good cause shown. Each deposition shall be limited to a maximum of three (3) hours duration. All objections are reserved for the arbitration hearing except for objections based on privilege and proprietary or confidential information. Any dispute regarding discovery, or the relevance or scope thereof, shall be determined by the arbitrator, which determination shall be conclusive. All discovery shall be completed within sixty (60) calendar days following the appointment of the arbitrator.
21.4 The arbitrator shall give effect to statutes of limitation in determining any claim, and any controversy concerning whether an issue is arbitrable shall be determined by the arbitrator. The arbitrator shall follow the law in reaching a reasoned decision and shall deliver a written opinion setting forth findings of fact, conclusions of law and the rationale for the decision. The arbitrator shall reconsider the decision once upon the motion and at the expense of a Party. The Section of this Agreement entitled “Confidentiality and Information Protection” shall apply to the arbitration proceeding, all evidence taken, and the arbitrator’s opinion, which shall be Confidential Information of both Parties. Judgment upon the decision rendered by the arbitrator may be entered in any court having jurisdiction.
21.5 No provision of this Section shall limit the right of a Party to obtain provisional or ancillary remedies from a court of competent jurisdiction before, after, or during the pendency of any arbitration. The exercise of a remedy does not waive the right of either Party to resort to arbitration. The institution and maintenance of an action for judicial relief or pursuit of a provisional or ancillary remedy shall not constitute a waiver of the right of either Party to submit the controversy or claim to arbitration if the other Party contests such action for judicial relief.
22.0 NON-EXCLUSIVE NATURE OF AGREEMENT
22.1 Appraiser agrees that it shall not be considered LandSafe’s exclusive provider of any goods or Services provided hereunder. LandSafe retains the unconditional right to utilize other suppliers in the provision of similar services.
23.0 OWNERSHIP OF WORK PRODUCT
23.1 LandSafe will own exclusively all Work Product and Appraiser hereby assigns to LandSafe all right, title and interest (including all Intellectual Property Rights) in the Work Product. Work Product, to the extent permitted by law, shall be deemed “works made for hire” (as that term is defined in the United States Copyright Act). Appraiser shall provide LandSafe upon request with all assistance reasonably required to register, perfect or enforce such right, title and interest, including providing pertinent information and, executing all applications, specifications, oaths, assignments and all other instruments that LandSafe shall deem necessary. Appraiser shall enter into agreements with all of its Representatives necessary to establish LandSafe’s sole ownership in the Work Product. LandSafe acknowledges Appraiser’s and its licensors’ claims of proprietary rights in preexisting works of authorship and other intellectual property (“Pre-existing IP”) Appraiser uses in its work pursuant to this Agreement. LandSafe does not claim any right not expressly granted by this Agreement in such Pre-existing IP, which shall not be deemed Work Product, even if incorporated with Work Product in the Services Appraiser delivers to LandSafe. Unless otherwise agreed in an Appraisal Order, Appraiser grants LandSafe a perpetual, worldwide, irrevocable, nonexclusive, royalty free license to any Pre-existing IP embedded in the Work Product, which shall permit LandSafe and any transferee or sublicensee of LandSafe, subject to the restrictions in this Agreement, to make, use, import, reproduce, display, distribute, make derivative works and modify such Pre-existing IP as necessary or desirable for the use of the Work Product.
23.2 Appraiser shall promptly notify LandSafe in writing, of any threat, or the filing of any action, suit or proceeding, against Appraiser, its Affiliates or Representatives, (i) alleging infringement, misappropriation or other violation of any Intellectual Property Right related to any Work Product or Service furnished under this Agreement, or (ii) in which an adverse decision would reasonably be expected to have a material adverse effect on the Appraiser or the use by LandSafe of the Work Product or Services furnished under this Agreement.
24.1 LandSafe and Appraiser represent that they are equal opportunity employers and do not discriminate in employment of persons or awarding of subcontracts because of a person’s race, sex, age, religion, national origin, veteran or handicap status. Appraiser is aware of and fully informed of Appraiser's responsibilities and agrees to the provisions under the following: (a) Executive Order 11246, as amended or superseded in whole or in part, and as contained in Section 202 of the Executive Order as found at 41 C.F.R. § 60-1.4(a)(1-7); (b) Section 503 of the Rehabilitation Act of 1973 as contained in 41 C.F.R. § 60-741.4; and (c) The Vietnam Era Veterans' Readjustment Assistance Act of 1974 as contained in 41 C.F.R. § 60-250.4.
24.2 Section headings are included for convenience or reference only and are not intended to define or limit the scope of any provision of this Agreement and should not be used to construe or interpret this Agreement.
24.3 No delay, failure or waiver of either Party's exercise or partial exercise of any right or remedy under this Agreement shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. Any waiver by either Party of any provision of this Agreement shall not imply a subsequent waiver of that or any other provision of this Agreement.
24.4 If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions shall in no way be affected or impaired thereby.
24.5 No amendments of any provision of this Agreement shall be valid unless made by an instrument in writing signed by both Parties specifically referencing this Agreement. Notwithstanding anything therein to the contrary, the terms of any Appraisal Order to this Agreement shall supplement and not replace or amend the terms or provisions of this Agreement and the terms and provisions of this Agreement shall control in the event of any conflict between such terms thereof and the terms and provisions of this Agreement and such conflict shall be resolved in favor of the express terms and provisions of this Agreement. The terms and provisions of this Agreement shall be incorporated by reference into any Appraisal Order to this Agreement.
24.6 Anything in this Agreement to the contrary notwithstanding, the Parties hereby agree that thirty (30) calendar days after written notice by LandSafe of any amendment to this Agreement for compliance with a change in federal law, rule or regulation affecting financial services companies or the suppliers of financial services companies or for any other reason, this Agreement shall be amended by such notice and the amendment contained therein and without need for further action of the Parties, and the Agreement, as amended thereby, shall be enforceable against the Parties, their successors and assigns. The notice provided hereunder shall set forth such change and provide the relevant amendment to the Agreement. LandSafe shall have the right to terminate immediately the Agreement, without further liability to Appraiser, in the event of Appraiser’s failure to comply with the terms and conditions of any such amendment to the Agreement.
24.7 This Agreement may be executed by the Parties in one or more counterparts, and each of which when so executed shall be an original but all such counterparts shall constitute one and the same instrument.
24.8 The remedies under this Agreement shall be cumulative and are not exclusive. Election of one remedy shall not preclude pursuit of other remedies available under this Agreement or at law or in equity. In arbitration a Party may seek any remedy generally available under the governing law.
24.9 Notwithstanding the general rules of construction, both LandSafe and Appraiser acknowledge that both Parties were given an equal opportunity to negotiate the terms and conditions contained in this Agreement, and agree that the identity of the drafter of this Agreement is not relevant to any interpretation of the terms and conditions of this Agreement.
24.10 All notices or other communications required under this Agreement shall be given to the Parties in writing to the applicable addresses set forth on the signature page, or to such other addresses as the Parties may substitute by written notice given in the manner prescribed in this Section as follows: (a) by email, (b) by facsimile with written confirmation of receipt, (c) by first class mail, or registered or certified United States mail, return receipt requested and postage prepaid, (d) by express courier or (e) by hand delivery to such addresses. Such notices shall be deemed to have been duly given (i) five (5) Business Days after the date of mailing as described above, (ii) one (1) Business Day after being received by email, facsimile, or an express courier during business hours, or (iii) the same day if by hand delivery.
24.11 Appraiser shall, at its own expense (except as provided in this Section), at any time and from time to time after the date hereof, upon LandSafe’s request, do, execute, acknowledge and deliver all such further acts, assurances or other cooperation as may be required to support the performance of the Services hereunder. Such cooperation shall include, without limitation, providing written or oral testimony (including, declarations, affidavits, depositions) in support of any Appraisal Order completed by Appraiser in connection with any legal proceeding involving LandSafe, or an Affiliate or client of Landsafe, and LandSafe agrees to reimburse Appraiser for its reasonable out of pocket expenses actually incurred in connection therewith. Wherever this Agreement requires either Party's approval or consent such approval or consent shall not be unreasonably withheld or delayed.
24.12 This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective permitted successors and assigns. Except as expressly set forth in this Agreement and with the exception of the Affiliates of LandSafe, the Parties do not intend the benefits of this Agreement to inure to any third party, and nothing contained herein shall be construed as creating any right, claim or cause of action in favor of any such other third party, against either of the Parties hereto.
25.0 ENTIRE AGREEMENT
25.1 This Agreement, LandSafe Policies and Procedures, LandSafe Guidelines and Requirements, the Schedule(s), and other documents incorporated herein or therein by reference, is the final, full and exclusive expression of the agreement of the Parties and supersedes all prior agreements, understandings, writings, proposals, representations and communications, oral or written, of either Party with respect to the subject matter hereof and the transactions contemplated hereby. The Parties agree to accept a digital image of this Agreement, as executed, as a true and correct original and admissible as best evidence to the extent permitted by a court with proper jurisdiction.
Service Level Agreement
In performing its obligations under this Agreement, Appraiser agrees to the following:
1. For all products requiring an inspection, the Appraiser who is assigned and accepts the Appraisal Order from LandSafe will physically inspect the subject property. The inspection of the property must be a personal on-site inspection and cannot be a “virtual” inspection. The interior and exterior must be inspected unless the assignment is for an “Exterior-Only Inspection” appraisal report. Appraiser is allowed to sign as the Supervisory Appraiser only if the signature page indicates the Supervisory Appraiser inspected as follows:
a) Did inspect interior and exterior of subject property (Interior & Exterior Inspection Appraisal)
b) Did inspect exterior of subject property from street (Exterior-Only Inspection Appraisal)
c) Did inspect exterior of comparable sales from street (all appraisals)
d) Assigned appraiser may not be a supervisor on an FHA order (LandSafe appraiser must sign on the “left” side).
2. Appraiser will not base, either partially or completely, the appraisal analysis and/or opinion of market value on:
a) Race, color, religion, sex, age, marital status, handicap, familial status, or national origin of either the prospective owners or occupants of neither the subject property nor the present owners or occupants of the properties in the vicinity of the subject property.
b) Predetermined opinions or conclusions, such as the owner’s estimate of value or likely sales price, or any other estimate of value or likely sales price provided by the lender/client, REALTOR®, broker, owner, or any other party related to the subject property or any transaction involving it.
3. Appraiser agrees to notify the LandSafe Vendor Relationship Management team, in writing within thirty (30) business days, of any changes to its contact information including, but not limited to, changes in email address(es), physical address(es), name changes, phone contact information, etc.
4. Appraiser specifically acknowledges that he/she is PROHIBITED from directly or indirectly selling, loaning, renting, transferring, disclosing, conveying, or otherwise making available to any third parties any customer information provided to the Appraiser and any other information related to the Appraisal Order without the express prior written consent of the Business Control Executive of the Governance Department of LandSafe Appraisal Services, Inc.
5. Appraiser understands that LandSafe will complete periodic performance audits to evaluate product quality, on-time delivery, and customer service and that these audits may result in Appraiser’s removal from the Appraisal panel in accordance with the Agreement if LandSafe determines the product quality or service levels fail to meet LandSafe requirements.
6. Appraiser agrees to notify LandSafe Vendor Relationship Management team, in writing within 30 business days, of any changes to the LandSafe Conflict of Interest Statement contained in the application package.
INFORMATION SECURITY PROGRAM
LandSafe will evaluate the Appraiser’s Information Security Program and Appraiser Security Controls as described in the Section entitled “Confidentiality and Information Protection.” The Appraiser’s Information Security Program (the “Program”) shall address the Bank Security Requirements described below. This Program shall, at a minimum, prescribe the architecture of Appraiser’s system, Confidential Information placement within the system, the security controls in place (e.g. firewalls, web page security, intrusion detection, incident response process, etc.) and contain the information called for in the Subsection entitled “Security Program Features” below. The Program shall also describe physical security measures in place to protect Confidential Information received or processed by Appraiser, including those that will protect Confidential Information that has been printed or otherwise displayed in forms perceptible with or without the aid of equipment. This Program is subject to approval in writing by LandSafe security representatives, in LandSafe’s reasonable discretion, in order to disclose Confidential Information to Appraiser or locate Confidential Information on Appraiser’s systems. If requested, LandSafe shall provide Appraiser with the Service Provider Security Requirements document outlining such Bank Security Requirements and Appraiser Security Controls which shall be deemed a part of LandSafe’s Confidential Information under this Agreement. Appraiser acknowledges that upon request in order to be allowed continued access to Confidential Information, it will make modifications to its Information Security Program to add additional measures necessary to retain information security standards consistent with the LandSafe Security Requirements.
With respect to Confidential Information and the Services provided to or on behalf of LandSafe, Appraiser promptly shall conform its publicly available privacy and security policies, in LandSafe’s reasonable judgment, to those of LandSafe, as they may exist from time to time.
All capitalized terms used in this SCHEDULE A that are not defined herein shall have the meanings assigned elsewhere in this Agreement.
Appraiser shall install and use a reasonable change control process to ensure that access to its systems and to Confidential Information is controlled and recorded. Appraiser shall notify LandSafe of any planned system configuration changes or other changes affecting the Program applicable to Confidential Information, setting forth how such change will impact the security and protection of Confidential Information. No such change, which could reasonably be expected by LandSafe to have a material adverse impact on the security and protection of Confidential Information, may be implemented without the prior written consent of a LandSafe security representative. LandSafe may approve these types of changes prior to their becoming effective, such approval not to be unreasonably withheld or delayed.
Appraiser shall permit LandSafe, at the election of LandSafe, to conduct security vulnerability (penetration) testing on those portions of the Appraiser network which store or process Confidential Information on a mutually agreed schedule and terms. Appraiser agrees to make available to LandSafe the results of any vulnerability testing conducted by Appraiser or a qualified third party provider of this service.
Appraiser shall permit LandSafe to inspect the physical system equipment, operational environment, and Confidential Information handling procedures. Appraiser’s agreement with any independent contractor to provide services to LandSafe in support of this Agreement shall likewise permit LandSafe to conduct the same inspections.
Subject to the terms of this Agreement and the Schedule(s) attached hereto, Appraiser will take commercial best measures to prevent the unintended or malicious loss, destruction or alteration of LandSafe's files, Confidential Information, software and other property received and held by Appraiser. Appraiser shall maintain back-up files (including off-site back-up copies) thereof and of resultant output to facilitate their reconstruction in the case of such loss, destruction or alteration, in order to ensure uninterrupted Services in accordance with the terms of this Agreement, its Schedule(s), LandSafe’s written policies and Appraiser’s disaster recovery plans.
DETECTION AND RESPONSE
Appraiser shall monitor its system for security breaches, violations, suspicious external activity, or unauthorized internal system activity (“Security Breach”). Appraiser shall notify LandSafe (promptly within 24 hours or as soon thereafter as practicable), through the defined security escalation channel of LandSafe, the LandSafe Incident Response Team (“InfoSafe”), in the event of a breach of security or the detection of suspicious activity in its system. Per Section IV of the Service Provider Security Requirements, InfoSafe shall be contacted by calling (800) 207-2322, option 1. Callers will be asked to identify themselves as Appraiser. Such notification to LandSafe shall precede notifications to any other Party. LandSafe retains the right to make appropriate notifications to LandSafe Representatives or customers. Appraiser shall make no notice to either of the foregoing or to any regulatory or governmental body without the written permission and at the written direction of LandSafe. Appraiser shall cooperate fully with all LandSafe security investigation activities and abide by the InfoSafe guidelines for escalation and control of significant security incidents.
Appraiser shall maintain for a mutually agreed-upon length of time, and afford LandSafe reasonable access to, all records and logs of that portion of Appraiser’s network that stores or processes Confidential Information. LandSafe may review and inspect any record of system activity or Confidential Information handling upon reasonable prior notice. Appraiser acknowledges and agrees that records of system activity and of Confidential Information handling may be evidence (subject to appropriate chain of custody procedures) in the event of a Security Breach or other inappropriate activity. Upon the request of LandSafe, Appraiser shall deliver the original copies of such records to LandSafe for use in any legal, investigatory or regulatory proceeding.
Appraiser shall monitor industry-standard information channels (bugtraq, CERT, OEMs, etc.) for newly identified system vulnerabilities regarding the technologies and Services provided to LandSafe and fix or patch any identified security problem in an adequate and timely manner. Unless otherwise expressly agreed in writing, “timely” shall mean that Appraiser shall introduce such fix or patch as soon as commercially reasonable after Appraiser becomes aware of the security problem. This obligation extends to all devices that comprise Appraiser’s system, e.g., application software, databases, servers, firewalls, routers and switches, hubs, etc., and to all of Appraiser’s other Confidential Information handling practices.
LandSafe may perform vulnerability testing of Appraiser’s system to test the remediation measures implemented after a security incident or event to protect Confidential Information.
SECURITY PROGRAM FEATURES
At the request of LandSafe, Appraiser shall meet with the LandSafe information security team to discuss information security issues in much greater detail at mutually agreeable times and locations.
LandSafe acknowledges and agrees that the information Appraiser so provides is Appraiser’s Confidential Information, as defined in this Agreement, and is valuable proprietary information of Appraiser. Upon request, Appraiser shall provide detailed information including, but not limited to, the following topics, which also shall be addressed in Appraiser’s Program.
1. Diagrams. The diagrams shall show the detail of the system architecture including, without limitation, the logical topology of routers, switches, Internet firewalls, management or monitoring firewalls, servers (web, application and database), intrusion detection systems, network and platform redundancy. The diagrams shall include all hosting environments.
2. Firewalls. State the specifications of the firewalls in use and who manages them. Specify the services, tools and connectivity required to manage the firewalls.
3. Intrusion Detection Systems. Describe the intrusion detection system (“IDS”) environment and the Security Breach and event escalation process. Indicate who manages the IDS environment. Specify the services, tools and connectivity required to manage the IDS environment, and if the IDS network is host based.
4. Change Management. Describe the change management process for automated systems used to provide Services. Describe the process for information handling policies and practices.
5. Business Continuity. Describe the business and technical disaster recovery management process.
6. System Administration Access Control. Describe the positions that perform administration functions on servers, firewalls or other devices within the application and network infrastructure. Detail level of access needed to perform functions. Explain the access control mechanisms. Describe the process by which recurring access review of the system(s) is conducted to ensure permissions are granted on a “need to know” basis. Detail access reports generated and when reports are reviewed periodically. Describe methods used to track/log the usage of each account.
7. Customer Access Control. Describe each logon process to be followed by LandSafe Customers (including LandSafe employees) to obtain access to Services Appraiser provides to LandSafe. Describe the initial enrollment process for such Customers. Describe the password policies and procedures Appraiser’s system enforces, including, without limitation, password expiration, length of password, password revocation, invalid logon attempt threshold, etc. Describe methods used to track/log the usage of each account. Appraiser shall demonstrate how a customer or end user authenticates to each application.
8. Access to Confidential Information in Human-Perceptible Forms. Describe policies, procedures and controls used to protect Confidential Information when it is printed or in other perceptible forms; how and how often these policies and procedures are reviewed and tested; and what methods are used to ensure destruction of Confidential Information on hard copy.
9. Operating System Baselines. Describe Appraiser’s operating system security controls and configurations. Examples: Operating system services that have been removed because not required by Appraiser’s Services to LandSafe. Identify and provide current operating system fixes that have not been applied, if any.
10. Encryption. Describe in detail the technology and usage of encryption for protecting Confidential Information, including passwords and authentication information, during transit and in all forms and locations where it may be stored.
11. Application and Network Management. Specify the services, tools and connectivity required to manage the application and network environments; who carries out the management functions; and what level of physical security applies to managed devices.
12. Physical Security. For each location where Confidential Information will be processed or stored or Services for LandSafe produced by Appraiser, describe in detail the arrangements in place for physical security.
13. Privacy: Describe Appraiser’s privacy and security policies; indicate if they are in writing; and whether they are compatible with LandSafe’s policies.
14. Location of Servers. Are web servers on a separate segment of the network from the application and database servers? If not, explain the reason this has not been done. At LandSafe’s request, Appraiser shall make reasonable efforts to create this separation.
15. Portable Media and Devices. LandSafe’s Confidential Information shall not be stored on any portable media or devices to include notebook/laptop computers, USB storage devices, personal digital assistants (e.g. Blackberry) or similar equipment. Use of such devices shall be approved by LandSafe and security precautions such as encryption of data and remote network connectivity will be addressed in the Appraiser’s Information Security Program.
INFORMATION DESTRUCTION REQUIREMENTS
At LandSafe’s direction, Appraiser shall destroy all Confidential Information at all locations where it is stored after it is no longer needed for performance under this Agreement or to satisfy regulatory requirements. Appraiser must have in place or develop information destruction schedules and processes that meet LandSafe standards and that must be used in all cases when Confidential Information is no longer needed. These information destruction requirements are to be applied to paper, microfiche, disks, disk drives, tape and other destroyable electronic or digital media containing Confidential Information.
Paper and Other Shreddable Media
Paper and other shreddable media includes paper, microfiche, microfilm, compact disks (CDs) and any other media that can be shredded. This media must be shredded using shredding techniques or machines such that Confidential Information in this media is completely destroyed as set forth herein when Appraiser is finished with the Confidential Information contained thereon and it is no longer needed. This media may be shredded immediately or temporarily stored in a highly secured, locked container. The media may be shredded at a location other than Appraiser's facilities; however it must be transferred in a highly secured, locked container. Appraiser is responsible for supervising the shredding regardless of where the shredding activity occurs and by whom the shredding is performed. Confidential Information in this media must be completely destroyed by shredding such that the results are not readable or useable for any purpose.
Electronic media includes, but is not limited to, disk drives, diskettes, tapes, universal serial bus (USB) and other media that is used for electronic recording and storage. This media is to be wiped or degaussed using a LandSafe approved wipe or degaussing tool. Wiping uses a program that repeatedly writes data to the media and thereby destroys the original content. Degaussing produces an electronic field that electronically eliminates the original data and clears the media. These techniques must meet LandSafe standards and baselines. The resulting media must be free from any machine or computer content readable for any purpose.
These processes must be documented as a procedure by Appraiser and should outline the techniques and methods to be used. The procedure must also indicate when and where Confidential Information is to be destroyed. Appraiser shall keep records of all Confidential Information destruction completed and provide such records to LandSafe upon demand.