Terms & Conditions

Updated and Effective Date: January 2023

These Terms of Use ("Terms of Use" or "Terms") governs your ("you" or "your") use on behalf of your employer (each, a "Firm"), of the web sites, including any related documentation or services as hosted, operated, maintained and made available to you (collectively, "Solution") by SitusAMC Holdings Corporation, a Delaware corporation, either directly or through its subsidiaries (collectively, "SitusAMC", "we", "us" or "our"). You and SitusAMC may be individually referred to herein as a "Party" and together as the "Parties" to this Terms of Use.

IMPORTANT – READ THIS TERMS OF USE CAREFULLY INCLUDING THE MANDATORY ARBITRATION PROVISION IN SECTION 10, WHICH REQUIRES THAT DISPUTES BE RESOLVED BY FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS, NOT A CLASS-WIDE OR CONSOLIDATED BASIS. IF YOU DO NOT AGREE TO BE SUBJECT TO ARBITRATION, YOU MAY OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN SECTION 10.

BY ACCESSING OR USING THE SOLUTION, YOU: (A) REPRESENT THAT YOU ARE DULY AUTHORIZED TO ACCESS AND USE THE SOLUTION ON BEHALF OF YOUR FIRM; AND (B) HAVE READ, UNDERSTOOD AND HEREBY ACCEPT THIS TERMS OF USE AND AGREE THAT YOU ARE LEGALLY BOUND BY THEM, BOTH IN YOUR INDIVIDUAL CAPACITY AND ON BEHALF OF YOUR FIRM. IF YOU DO NOT AGREE TO THIS TERMS OF USE, DO NOT ACCESS OR USE THE SOLUTION.

For more information about how we collect, use, share and otherwise process information about you, please see Our Privacy Policy. Click here for Privacy Policy.

• 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.
  • 2.1. 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
    • notify us promptly (in any event within 24 hours after the event) if you become aware of: (a) any copying, disclosure, alteration, destruction, or use of Customer Information that is inconsistent with this Terms of Use; or (b) any security breach to your information systems or operations, or any other material risk, that could result in disclosure of the Customer Information.

• • 2.2. 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.
  • 3.1 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.

• • 3.2 User Data License Restrictions.

You acknowledge and agree that we shall have no obligation to monitor the User Data and that we shall have no liability to you or any third party related to your User Data. You represent, warrant, and covenant that the User Data: (a) does not violate any foreign, federal, state or local law or regulation, including all applicable privacy or data protection laws (including, but not limited to, the GLBA, the California Consumer Protection Act ("CCPA"), the General Data Protection Regulation ("GDPR") and the Taxpayer First Act of 2019) (collectively, "Applicable Laws"); (b) does not infringe, misappropriate, or otherwise violate any intellectual property right, privacy right, right of publicity, or any other right of any person or entity; (c) does not contain any material which is unlawful, hateful, obscene, libelous, threatening, or defamatory; (d) does not contain any virus or other malicious code; (e) is and shall remain accurate and correct at all times; (f) is owned or controlled by you, and you are authorized or have a right to provide, input, order, or upload it and that if you do not possess the necessary rights to this User Data, that you will obtain the necessary rights before you submit this User Data to us; or (g) complies with this Terms of Use and any other terms or conditions set forth herein (collectively, "Prohibited Acts"). If you or SitusAMC becomes aware that any item of User Data constitutes or may constitute a Prohibited Act, such Party shall notify the other of, and work together promptly and in good faith to remedy, any such User Data issues, in accordance with this Terms of Use. You agree that you shall be solely responsible for all rights and use associated with and shall ensure the security of any personally identifiable information contained in the User Data. You acknowledge that the User Data will contain personally identifiable data that is subject to special laws and regulations regarding the collection, access and use of such User Data.

• • 3.3 Feedback.

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 any action with respect to any User Data that we deem necessary or appropriate in its sole and reasonable discretion, including, but not limited to, if we believe that such User Data violates this Terms of Use, infringes any right of any person or entity, threatens the personal safety of users of the Solution or the public, or could create liability for SitusAMC;
• take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Solution; and
• terminate or suspend your access to all or part of the Solution at any time, with or without notice, for any or no reason, including without limitation, for any violation of this Terms of Use.

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.
  • 6.1. SitusAMC License Grant; Responsibilities.

Subject to the terms and conditions herein, SitusAMC hereby grants you a limited, revocable, terminable, non-sublicensable, non-exclusive, and non-transferable right and license to access and use the Solution. You assume the sole responsibility and liability as to your use of the Solution, including, but not limited to, verifying that the Solution is usable and meets your requirements, and ensuring the accuracy of any User Data you provide in the course of accessing or using the Solution. You shall comply with all Applicable Laws in connection with your access to and use of the Solution. We may revoke your license at any time in our sole discretion. Upon such revocation, you must promptly destroy all content downloaded or otherwise obtained through the Solution, as well as copies of such materials, whether made in accordance with these Terms of Use or otherwise.

• • 6.2. 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.

• • 6.3. Reservation of Rights.

You understand and agree that you do not acquire any ownership interest in the Solution under this Terms of Use, or any other rights to the Solution other than to use the Solution for the Approved Purpose, subject to all terms, conditions, and restrictions set forth herein. SitusAMC reserves and shall retain its entire right, title, and interest in and to the Solution and all intellectual property rights arising out of or relating to the Solution, subject to the licenses expressly granted herein. Additionally, we reserve the right to terminate your access to or use of the Solution immediately and take any other legal action if you, or anyone using your account, violates any of the terms herein. We may pursue any legal and/or technical remedies to prevent the violation of this Section 6 and to enforce this Terms of Use.

• 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.

NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS TERMS OF USE AND WITHOUT LIMITING THE FOREGOING, AND EXCEPT FOR SITUSAMC’S WILLFUL MISCONDUCT, THE MAXIMUM AGGREGATE LIABILITY OF SITUSAMC AND OUR AFFILIATES UNDER THE TERMS OF USE WILL NOT EXCEED U.S. $500. IN STATES WHERE SUCH LIMITATIONS ON LIABILITY ARE NOT PERMITTED, SITUSAMC’S AND OUR AFFILIATES’ LIABILITY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

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.

• 8. Indemnification.

To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold SitusAMC and our affiliates and respective directors, officers, employees, agents, advisors and representatives harmless from and against any and all third party claims, demands and assessments, judgments, liabilities, losses, costs, damages and expenses including, without limitation, interest, penalties, reasonable attorneys’ fees, expenses, and disbursements incurred in connection with any action, suit or proceeding or incurred in enforcing any right of indemnification against you that arise out of or result from: (i) your breach of these Terms of Use or of our Privacy Policy or the inaccuracy of any of your covenants, agreements, representations, or warranties under these Terms of Use or in the documents they incorporate by reference (including, but not limited to, our Privacy Policy), (ii) any user contribution, trademarks, other source identifiers, or User Data you enter into the Solution, (iii) any third-party claims arising from User Data you submitted alleging infringement of any law or intellectual property, privacy, or other rights of a third party; (iv) your use of, or inability to use, any part of the Solution or the User Data therein; (v) your violation of any Applicable Laws; or (vi) the actions of any persons, authorized or unauthorized, who gained access to the Solution through your Credentials.

• 9. Release.

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.

• • 10.1 No Representative Actions.

You and SitusAMC agree that any dispute arising out of or related to these Terms of Use or our Solution is personal to you and SitusAMC and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action, or any other type of representative proceeding.

• • 10.2 Arbitration of Disputes.

Except for small claims disputes in which you or SitusAMC seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or SitusAMC seeks injunctive or other equitable relief for the alleged infringement or misappropriation of intellectual property, you and SitusAMC waive your rights to a jury trial and to have any other dispute arising out of or related to these Terms of Use or our Solution, including claims related to privacy and data security, (collectively, "Disputes") resolved in court. Instead, for any Dispute that you have against SitusAMC you agree to first contact SitusAMC and attempt to resolve the claim informally by sending a written notice of your claim ("Notice") to SitusAMC by email at termsofuse@situsamc.com or by certified mail addressed to SitusAMC, 150 East 52nd Street, Suite 4002, New York, NY 10022, Attn: General Counsel. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the Dispute; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and SitusAMC cannot reach an agreement to resolve the Dispute within thirty (30) days after such Notice is received, then either party may submit the Dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All Disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in New York, New York unless you are a consumer, in which case you may elect to hold the arbitration in your county of residence. For purposes of this Section 10, a "consumer" means a person using the Solution for personal, family or household purposes. You and SitusAMC agree that Disputes will be held in accordance with the JAMS Streamlined Arbitration Rules and Procedures ("JAMS Rules"). The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.

You and SitusAMC agree that these Terms of Use affect interstate commerce and that the enforceability of this Section 10 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the "FAA"), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms of Use and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.

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 termsofuse@situsamc.com. 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).

If any portion of this Section 10 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms of Use; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 10 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 10; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 10 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 10 will be enforceable.

• 11. Miscellaneous.

• • 11.1. 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.

• • 11.2. Governing Law; Jurisdiction and Venue.

This Terms of Use shall be governed by and construed in accordance with the laws of the State of New York, without reference to the principles of conflicts of law that would apply the substantive laws of another jurisdiction. Each Party hereby submits to the exclusive jurisdiction and venue of the state and federal courts located in New York, New York, over any dispute arising out of or relating to this Terms of Use and waives the right to object to such venue or make a claim of forum non conveniens. Notwithstanding anything herein to the contrary, each Party shall be entitled to seek injunctive or equitable relief whenever the circumstances permit such Party to seek such equitable relief in a court of competent jurisdiction. You must bring any cause of action arising out of, or in connection with, this Terms of Use within one year of when the alleged breach occurred.

• • 11.3 Relationship of the Parties.

The Parties shall at all times be independent contractors with respect to each other in carrying out this Terms of Use, and nothing herein renders them partners, joint venturers, agents, or employer and employee.

• • 11.4 No Third-Party Beneficiaries.

The Parties do not confer any rights or remedies upon any person or entity other than the Parties to this Terms of Use and their respective successors and permitted assigns. Use of the Solution to view data or results which may reside within the Solution shall not, in any way, create or otherwise confer any rights or title or ownership interest in such data is it relates to the user; instead data and results which may reside within the Solution are and remain the property of any Party or third-party entity that provided such data to the Solution, or whose ownership or usage is contemplated under a separate third-party agreement.

• • 11.5 Modifications; Waiver.

This Terms of Use may be modified by SitusAMC at any time in its sole discretion. We will use commercially reasonable efforts to notify you electronically or otherwise of any material modification that affects you, and the date set forth above on the copy of this Terms of Use will display the new revision date. You are responsible for being familiar with, and by continuing to use the Solution you agree to be bound by this Terms of Use, as it may be revised from time to time. The Parties expressly disclaim the right to claim the enforceability of any oral modifications to this Terms of Use or any amendments based on course of dealing, waiver, reliance, estoppel or other similar legal theory. No delay or omission by either Party to exercise any right occurring upon any non-compliance or default of the other Party regarding any of the terms herein shall impair any such right or be construed to be a waiver thereof.

• • 11.6 Termination.

You agree that SitusAMC may, at any time and at our sole discretion, with or without cause or any notice to you, terminate these Terms of Use, your access to the Solution, and/or your Credentials, or suspend or block your access to the Solution. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of service may be referred to appropriate law enforcement authorities. If your access to the Solution is terminated, you may no longer have access to the copies of material or other User Data available through the Solution. SitusAMC may also in our sole discretion and at any time discontinue providing the Solution, or any part thereof, with or without notice. You agree that any termination of your access to the Solution under any provision of these Terms may be affected without prior notice and acknowledge and agree that SitusAMC may immediately deactivate or delete any account you may have and all related information and files in that account and/or bar any further access to such files or the Solution. Further, you agree that SitusAMC shall not be liable to you or any third-party for any termination of your access to the Solution. For the avoidance of doubt, our license rights to User Data will survive any termination of these Terms of Use and will not be limited, restricted, reduced or otherwise negatively affected by any termination or other action described in this paragraph.

• • 11.6 Termination.

• • 11.7 Survival.

Any provision herein that contemplates performance or observance subsequent to any expiration or termination of this Terms of Use, or which is otherwise necessary to interpret the respective rights and obligations of the Parties hereunder, shall survive any expiration or termination of this Terms of Use and continue in full force and effect.

• • 11.8 Headings.

The headings of the various sections herein are for convenience of reference only and shall not affect the construction or interpretation of this Terms of Use.

• • 11.9 Incorporation of Disclaimers.

This Terms of Use incorporates all disclaimers and notices appearing on any portion of the Solution. Such disclaimers and notices may be augmented, modified or removed and/or additional disclaimers or notices added by SitusAMC without further notice to you.

• • 11.10 Severability.

If any provision of this Terms of Use is determined by a court of competent jurisdiction to be invalid or unenforceable under applicable law, such provision shall be amended and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions of this Terms of Use shall continue in full force and effect.

• • 11.11 Assignment.

You may not transfer or assign this Terms of Use.

• • 11.12 Entire Agreement

This Terms of Use supersede all prior versions of this document, constitutes the sole and entire agreement among you, SitusAMC and also supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Solution, unless you or your Firm has entered into a signed written agreement with us.

• • 11.13 Questions or Comments.

If you have any questions or comments about this Terms of Use, please email termsofuse@situsamc.com.

Morgan Stanley Terms of Use - AMC Rate Lock Portal

This agreement (the "Agreement") is made and agreed to by the company (the "Seller") who has clicked-through, accepted, and agreed to access this portal to obtain commitments (the "Portal") for Seller to sell residential mortgage loans to Morgan Stanley Mortgage Capital Holdings LLC or one or more of its affiliates ((collectively, "Morgan Stanley"), and its affiliates and its affiliates' respective officers, directors, members, employees, consultants, agents, advisors, and counsel (the "Other Beneficiaries", and collectively with Morgan Stanley, the "Beneficiaries")).

The Seller understands that in connection with the Seller using this Portal and selling certain residential mortgage loans and interests appurtenant thereto to Morgan Stanley (the "Transaction"), Morgan Stanley is furnishing the Seller with certain information (the "Information"), which is confidential, proprietary, and otherwise not generally available to the public. The Seller agrees that its use of the Information in connection with the Transaction is in all circumstances in compliance with all applicable laws of the Seller and its use and disclosure of the Information. The Information includes, among other things, all documents, files, reports and other written or electronic information and data within the Portal, any Information relating to the Transaction, and will also include the fact that any discussions are taking place between the parties, the substance of those discussions and the terms of any definitive agreement that may be entered between the parties, each regarding the Transaction. As a condition to, and in consideration of, using this Portal and the Seller providing such Information, the Seller agrees as follows:

1. Nondisclosure of Information.
   
   The Information shall (a) be kept confidential by the Seller and (b) only be used by the Seller in accordance with this Agreement, Morgan Stanley's instructions, and applicable law in connection with the Transaction. The Seller may, however, disclose the Information to its directors, officers, employees, agents, partners or representatives, including without limitation any accountants, attorneys, and financial advisors (collectively, the "Representatives"), but only if such Representatives (i) reasonably need to know the Information in connection with the Transaction and (ii) agree to maintain the confidentiality of the Information. The Seller shall (i) inform each of its Representatives receiving the Information of the confidential nature of the Information and of this Agreement, (ii) direct its Representatives to treat the Information confidentially and not to use it other than in connection with the evaluation of the Transaction, and (iii) be responsible for any improper use of the Information by the Seller or its Representatives. Other than its Representatives, the Seller may not disclose the Information to any parties without Morgan Stanley's prior written authorization.
   
   The Seller shall protect and keep confidential all personally identifiable information about or pertaining to individuals to the extent such information is disclosed by the Beneficiaries or otherwise obtained by Seller in connection with the Transaction ("nonpublic personal information"). For purposes of this paragraph, "nonpublic personal information" shall refer to the personally identifiable information described in the preceding sentence and shall have the same meaning as that term is defined in the Gramm-Leach-Bliley Act, Title V, and applicable regulations promulgated thereunder. If applicable, Seller shall collect and use nonpublic personal information only to exercise the rights and perform the obligations for which such information was disclosed to Seller, as specifically set forth in or clearly implied by this Agreement. Seller agrees to comply with the Gramm-Leach-Bliley Act of 1999 and its implementing regulations safeguarding non-public personal information, including by implementing policies and procedures that are reasonably designed to do the following: (i) insure the security and confidentiality of nonpublic personal information; (ii) protect against any anticipated threats or hazards to the security or integrity of nonpublic personal information; and (iii) protect against unauthorized access to or use of nonpublic personal information that could result in substantial harm or inconvenience to any person ("Security Measures"). If requested by Morgan Stanley, Seller must provide written certification that it understands with and complies with the restrictions relating to nonpublic personal information set forth in this Agreement.
   
   
2. Notice Preceding Compelled Disclosure.
   
   If the Seller or any of its Representatives is requested to disclose any Information, the Seller shall, to the extent permitted by law, notify Morgan Stanley within twenty-four (24) hours of receiving to permit Morgan Stanley to seek an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Information. If, in the absence of a protective order or such assurance, the Seller or any of its Representatives is compelled as a matter of law to disclose the Information, the Seller may disclose to the party compelling disclosure only the part of the Information which its counsel advises is required by law to be disclosed, and the Seller shall use its commercially reasonable efforts to obtain confidential treatment therefor. In any event, the Seller will not oppose action by Morgan Stanley to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Information.
   
   In addition, the Seller and any of its Representatives may disclose any Information, without notice to Morgan Stanley, to any governmental agency, regulatory authority or self-regulatory authority, (including, without limitation, bank and securities examiners) in the course of routine inspections, examinations, or inquiries by such agency or authority, having or claiming to have authority to regulate or oversee any aspect of the Seller's business or that of its Representatives.
   
   
3. Tax Treatment Disclosure.
   
   Notwithstanding anything herein to the contrary, Morgan Stanley and the Seller agree that the Seller and Morgan Stanley (and its employees, representatives, and other agents) may disclose to any and all persons, without limitation of any kind from the commencement of discussions, the U.S. federal and state income tax treatment and tax structure of the transaction and all materials of any kind (including opinions or other tax analyses) that are provided to the Seller relating to the tax treatment and tax structure. For this purpose, "tax structure" is limited to facts relevant to the U.S. federal and state income tax treatment of the transaction and does not include information relating to the identity of the parties, their affiliates, agents or advisors.
   
   
4. Treatment of Information.
   
   Promptly upon the request of Morgan Stanley, the Seller and its Representatives will return to Morgan Stanley or, at its option, destroy all copies of the Information, including summaries, notes, studies, documents, compilations, or written or electronic copies and records that reflect any of the Information prepared by the Seller or any of its Representatives. However, each of the Seller and its Representatives shall not be required to return or destroy such copies of Information that it is required to maintain in order to satisfy any law or regulation to which it is subject, or internal policy existing as of the date hereof.
   
   
5. Securities Laws.
   
   The Seller will not use or disclose the Information in any manner which could result in a violation of any provision of U.S. federal and state securities laws, including without limitation, any such laws relating to insider trading or misappropriation of information. Notwithstanding any provision in this Agreement, the Seller may continue to trade in the ordinary course of its business and will not be precluded by the receipt of the Information from its trading (directly or through derivatives) in any securities.
   
   
6. No Obligation.
   
   Seller acknowledges and agrees that unless and until a definitive written agreement regarding the Transaction has been executed, no party hereto will be under any legal obligation of any kind whatsoever with respect to the Transaction by virtue of this Agreement except for the matters specifically agreed to herein.
   
   
7. Representations and Warranties; Release from Liability.
   
   The Seller acknowledges none of the Beneficiaries makes any representation or warranty as to the accuracy or completeness of the Information. The Seller agrees that none of the Beneficiaries shall have any liability to the Seller, or any of its affiliates or their respective Representatives, relating to or resulting from use of the Information. The Seller is an unaffiliated third-party who is acting solely in its own capacity and is not acting on behalf of Morgan Stanley. Seller acknowledges that its use of the Portal is not intended to, nor does it create any partnership, joint venture or other business association between the Seller and Morgan Stanley.
   
   The Seller represents and warrants that: (a) the Seller has made, or is making, its own credit decision with respect to any consumer, regardless of whether Morgan Stanley approves or declines to approve the Mortgage Loan for purchase; (b) none of the Beneficiaries has influenced, or will influence, the Seller's credit decision with respect to any actual or prospective consumer by: (i) indicating whether it will approve or decline to approve an application to obtain a loan or other form of credit; (ii) indicating whether it will engage in a Transaction; or (iii) any other action or statement; and (c) the Seller will fund any and all consumer credit transactions which may be included in any related Transaction with funds from a source other than Morgan Stanley.
   
   Any reports, studies or surveys prepared by third party firms and/or other firms, to the extent included in the Information, are for information purposes only and should not be relied upon as indicators of the value or the future performance of any assets or for any other purpose. The Seller shall have no right to rely upon the conclusions or other data set forth in such reports and shall have no recourse against the Beneficiaries in the event of any errors therein or omissions therefrom.
   
   
8. Entire Agreement.
   
   This Agreement supersedes all other click-throughs, acceptances, and agreements relating to the Information and the Transaction which have previously been acknowledged and agreed to by the Seller in favor of any of the Beneficiaries. This Agreement may be amended by subsequent click-throughs, acceptances, or agreements relating to the Information and the Transaction.
   
   
9. Term.
   
   This Agreement shall terminate upon the earlier to occur of (a) the closing of the related Transaction contemplated by this Agreement or (b) two (2) years after the execution date set forth below.
   
   
10. Severability.
    
    The invalidity or unenforceability of any one or more phrases, sentences, paragraphs or Sections in this Agreement shall not affect the validity or enforceability of the remaining portions of this Agreement or any part thereof.
    
    
11. Use Restrictions.
    
    The Seller agrees that with respect to accessing the Portal, Morgan Stanley is granting the Seller, and the Seller accepts a non-exclusive, non-transferable limited license to use and access the Portal in accordance with the applicable terms, conditions, restrictions and limitations set forth on the Portal and in the Information. Further, the Seller agrees and covenants that it will provide its own equipment, including a computer and any related telecommunications or other network access equipment necessary to establish a connection to the internet and the Portal; provide for such Seller's own access to the internet; and pay any telecommunication, licensing or other service fees associated with such access. Morgan Stanley makes no representations or warranties that the Portal is appropriate or available for use in other foreign jurisdictions, or in any other jurisdiction in which the Seller attempts to, or does, access the Portal.
    
    

The Seller agrees that: (a) it shall not, nor shall such Seller permit any other person to, remove, modify, exchange, disable, circumvent (or attempt to circumvent), penetrate or otherwise defeat any such Security Measures; (b) it will take all necessary actions to preserve the confidentiality of any user codes or any security procedures of the Portal (which includes, but is not limited to digital certificates, user names, passwords, or additional authentication required to access the Portal) ("User Code"); (c) it shall restrict access to any User Code and the Portal to those persons who are necessary for Seller to fulfill its obligations under this Agreement ("Authorized Users"); (d) it is responsible for all acts or omissions that occur with respect to such User Code; and (e) it shall notify Morgan Stanley immediately in writing upon the occurrence of any of the following: (i) any such User Code is lost, stolen, or improperly disclosed to a third party; (ii) the authority or employment of any person in such Seller's organization or who Seller has provided access to the Portal who has been or is about to be terminated from the Seller or such person's employer; (iii) the confidentiality of any such User Code has been compromised in any way; or (iv) it learns about a possible, suspected, or actual unauthorized access to and/or use of the Portal. The Seller shall be entirely responsible for any and all activities of its employees, agents and representatives, whether or not such employees, agents and representatives are Authorized Users. The Seller shall be responsible for all data or information entered into the Portal that are identified as coming from the Seller, its Authorized User, and any other person acting on behalf of the Seller, and all consequences thereof, whether entered by authorized or unauthorized personnel of the Seller or by any other person. Morgan Stanley does not assume responsibility for the accuracy, suitability or completeness of such data and information. The Authorized Users of the Seller shall be deemed to be acting on behalf of the Seller at all times.

The Seller acknowledges and agrees that any agreement, consent, acceptance, click-through, acknowledgement or other form of agreement communicated in the course of accessing this Portal, or completed after accessing the Portal or any other internet site where the Portal is made available or to which it is linked (collectively, "Acceptance"), shall be binding on the Seller, and the execution of this Agreement and each related Assignment & Conveyance is a reaffirmation of the Seller's Acceptance.

Any input of a User Code to access the Portal shall constitute Seller's representation and warranty at the relevant date of determination, the: (1) person entering the User Code is the employee of the Seller to whom the User Code was issued to; (2) the information provided to the Morgan Stanley in the course of issuance of such User Code was and is true, complete, and accurate in all respects; and (3) the authorization provided by the Seller to the person entering the User Code has not been revoked.

The Seller expressly acknowledges and agrees that the Morgan Stanley is not be responsible or liable for any information or other links found on the Portal or any internet location accessed through the Portal, or for such Seller's use of such information, links or internet connections.

Except as may be expressly authorized, no information or material contained on or in the Portal may be reproduced, transmitted, displayed or commercially exploited without the prior written consent of Morgan Stanley. The Portal, the Product Eligibility Guides, Seller Guides, among other documents contain numerous trademarks belonging to Morgan Stanley or its affiliates ("Morgan Stanley Marks"). Seller shall not, and hereby expressly agrees not to display, reproduce or otherwise use any Morgan Stanley Mark in any manner without Morgan Stanley's express prior written permission.