Client acknowledges and agrees that MountainSeed will use proprietary methodologies, data and processes in performing the services and preparing any work product (including Reviews, data products and analytics) described in this Agreement. Client is the intended recipient of MountainSeed’s work product and it is understood that the work product shall be for the exclusive use of Client. MountainSeed grants Client a perpetual, nonexclusive, and nontransferable license to use the work product delivered by MountainSeed under this Agreement solely for Client’s internal business purposes; provided, however, that MountainSeed acknowledges that Client may share copies of MountainSeed’s work product with (a) the Client’s regulator(s) or external auditor(s) to the extent required by established written policy, or as part of an actual examination or audit of the Client, or (b) with respect to a Review, in connection with the transfer of servicing or sale of the loan for which the Review was performed. Client acknowledges and agrees that it has no other right, title or interest in or to the work product, or MountainSeed’s proprietary methodologies, data and processes, other than the foregoing license rights. In the event Client desires redistribution of MountainSeed’s work product, MountainSeed shall be entitled to payment of an agreed license fee for each new recipient. Each new recipient shall be bound by the foregoing license restrictions and must be approved by MountainSeed in advance. In addition, prior to providing any work product to any third party, Client may require each such new recipient to execute a waiver and release for the benefit of MountainSeed on a form satisfactory to MountainSeed, an original of which shall be provided to MountainSeed following execution by such third party.
2. Client Responsibilities
Client shall cooperate fully with MountainSeed’s performance of the services, including: (a) furnishing to MountainSeed, an appraiser, or Service Vendor, as applicable, the Order Form and any data, reports, surveys, and/or other materials relevant to the performance of an appraisal or other assignment and permitted by law to be disclosed (and Client shall only deliver any information in compliance with all applicable laws and regulations), all of which MountainSeed may rely upon in performing MountainSeed’s services; (b) designating in writing a person to act as Client’s representative with respect to the services to be rendered under this Agreement; such person shall have complete authority to transmit instructions, receive information, interpret and define the Client’s policies and decisions with respect to the MountainSeed’s services; Client’s initial representative is set forth on the Acceptance Page above; and (c) arranging for access to and assist in making provisions for an appraiser or Service Vendor to enter upon public and private property to perform services under this Agreement, if applicable. Both the Client and the person executing this Agreement on behalf of the Client represent and warrant to MountainSeed that the person executing this Agreement on behalf of the Client has the full right, title, authority and power to bind the Client to the terms of this Agreement.
3. Collateral Valuation Program
Client represents and warrants to MountainSeed that Client has established and maintains internal policies and procedures governing its collateral valuation program in compliance with all applicable laws and any applicable guidance from its regulator(s) and that the services to be performed by MountainSeed in accordance with this Agreement comply with its policies and procedures. Specifically, and without limitation, Client has adopted policies and procedures for (a) determining an appropriate collateral valuation method for a given transaction considering associated risks; (b) ensuring that appraisers are qualified and independent; and (c) independently validating any Other Valuation Products that Client orders through MountainSeed. Client acknowledges and agrees that Client shall be solely responsible for its own compliance with applicable law and regulations, including without limitation the suitability of any valuation methods and appraisers provided to Client under this Agreement. MountainSeed shall be entitled to rely on Client’s determination without being deemed to have made any representation or warranty with respect to the suitability of the appraiser, appraisal, Other Valuation Product, or other product, for the Client’s intended purpose.
4. Standard of Care For MountainSeed
MountainSeed warrants and agrees that all work performed by it pursuant to this Agreement (a) shall conform to the terms of this Agreement, and (b) shall be performed in a good, skillful and workmanlike manner. The foregoing warranty is exclusive and in lieu of all other representations and warranties, whether express or implied, including the implied warranties of merchantability and fitness for a particular purpose. For any breach of the above warranty, Client’s exclusive remedy, and MountainSeed’s entire liability, shall be re-performance of the services.
Client acknowledges that MountainSeed’s Reviews are not all-inclusive. There may be material factors and regulations not considered by MountainSeed in the performance of a Review. In performing a Review, all data and information contained in the appraisal report is assumed to be accurate and correct, and MountainSeed shall have no obligation to investigate or verify information contained in the appraisal. No opinion of value is developed or reported during the preparation of a Review. MountainSeed’s Review may not be relied upon as a promise, guarantee or warranty as to the value reported in an appraisal and is not an indication that the reviewer agrees or disagrees with the reported value. Except as set forth in Section 4 above, all Reviews performed by MountainSeed hereunder are provided “AS-IS,” and MountainSeed makes no warranties, representations or guarantees of any kind, either express, implied, statutory or otherwise, with respect to the Review.
6. Data Products and Analytics
Client acknowledges that MountainSeed’s data products and analytics are not all-inclusive. There may be material information not included in a data product or analytics. In compiling any data product or analytics, MountainSeed makes no attempt to determine whether included information is relevant for any specific purpose. By way of example only, data products may include a listing of certain reported and available sales within a specified geographic area of real property, but the data product should not be deemed to be an indication that no other potentially relevant sale comparables exist, or that the reported sales constitute relevant comparables for purposes of developing an opinion of value of real estate. MountainSeed does not investigate or attempt to verify the information contained in any data product or analytics. Except as set forth in Section 4 above, all data products and analytics are provided “AS-IS,” and MountainSeed makes no warranties, representations or guarantees of any kind, either express, implied, statutory or otherwise, with respect to the data product or the information contained in it.
7.Other Valuation Products
Client acknowledges and agrees that any value or estimate of value provided in any Other Valuation Product may be based, in whole or in part, on algorithms, software programs, technological tools, analysis or inspections performed by non-appraisers and similar processes that may (i) make assumptions, including without limitation about the general economy, market, competition, condition of the property, and other factors, that do not hold true or materialize; and (ii) rely on data sources that may not be all-inclusive or that are otherwise limited in material respects; and (iii) include other inherent limitations. Any value or estimate of value provided in any Other Valuation Product may vary from the actual value, or a value that would have been projected in an appraisal, and the variations may be material. Other Valuation Products may not be relied upon as a promise, guarantee or warranty as to value. WITHOUT EXCEPTION, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, ALL OTHER VALUATION PRODUCTS ARE MADE AVAILABLE BY MOUNTAINSEED ON AN “AS-IS” BASIS AND MOUNTAINSEED MAKES NO WARRANTIES, REPRESENTATIONS OR GUARANTEES OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO OTHER VALUATION PRODUCTS. Without limiting the foregoing, Client specifically represents, warrants, acknowledges and agrees that, in general, Other Valuation Products are prepared by third-party vendors and that (i) no MountainSeed representative has or is authorized to give any representation, warranty or promise regarding an Other Valuation Product or the vendor that prepares them, and Client has not and will not rely on any such representation, warranty or promise by a MountainSeed representative, including without limitation that they contain sufficient information for any specific intended purpose or comply with any specific regulation or guidance; and (ii) the Client may need to supplement the information contained in any Other Valuation Product for purposes of complying with relevant regulations and guidelines, including, for example and without limitation, adding information from a property inspection or market analysis to address the actual condition of the property or market.
By selecting an appraiser to perform an assignment (in conjunction with the Client or otherwise), by making suggestions to Client of appraisers to add to Client’s Panel, or by making off-Panel assignments, MountainSeed will not be deemed to have made any representation or warranty as to the credentials or independence of the appraiser or the quality of the appraiser’s work. Client acknowledges that prior to complying with any request that MountainSeed remove an appraiser from Client’s Panel, MountainSeed may provide written notice to the appraiser being removed, specifying the underlying justification for removal, and Client shall cooperate with MountainSeed in supplying details and evidence as to any alleged violation, insufficient performance, or unprofessional conduct. Client agrees and acknowledges that appraisers performing appraisals or other assignments coordinated by MountainSeed under this Agreement are not employed by MountainSeed but rather are engaged on behalf of the Client by MountainSeed acting as the Client’s agent for that purpose and that appraisers do not act as MountainSeed’s agents or servants. Client further agrees and acknowledges that appraisers are solely responsible for their own work product and that MountainSeed shall not be liable or otherwise legally responsible to Client for such work product. If MountainSeed provides to the Client appraiser scorecards or any similar appraiser quality or performance ratings, the Client shall treat them as confidential and shall not disclose or permit disclosure of them, except to Client employees who need such information in order to properly execute their job responsibilities, to the Client’s auditor(s) or regulator(s), or to the extent compelled by legal authority. Client acknowledges that no scoring system is perfect. While MountainSeed believes scorecards to be a helpful aid in making a decision whether to retain an appraiser, good scores are not a guarantee of performance. Bad scores on a single appraisal do not necessarily mean that the appraiser is a “bad” appraiser. MountainSeed reserves the right to change the methodology behind appraisal or appraiser scorecards or to discontinue their use at any time.
9. Environmental and Other Services
By providing any services to Client with respect to environmental or other Service Vendors, including without limitation making available to Client the names of Service Vendors that may be willing to perform any assignment, assisting Client in bidding any assignment to one or more Service Vendors, or facilitating the delivery of work product, invoices or other correspondence, MountainSeed will not be deemed to have made any representation or warranty as to the credentials of the Service Vendor or the quality of the Service Vendor’s work. MountainSeed is not required to check, vet, score, or otherwise review any Service Vendors or the work that they perform. Client agrees and acknowledges that Service Vendors performing assignments coordinated by MountainSeed under this Agreement are independent professionals engaged directly by the Client and that Service Vendors do not act as MountainSeed’s agents or servants. Client further agrees and acknowledges that Service Vendors are solely responsible for their own work product and that MountainSeed shall not be liable or otherwise legally responsible to Client for such work product. Specifically, Client understands that (a) MountainSeed does not purport to have any specialized expertise in any product or service offered by any Service Vendor; (b) the Client is solely responsible for providing the appropriate information to the Service Vendor, selecting the appropriate Service Vendor, working with the Service Vendor to design an appropriate scope of work for the assignment, reviewing any work product produced by the Service Vendor to confirm its acceptability for the Client’s intended purpose, and paying the Service Vendor; and (c) no MountainSeed officer, member, manger, employee, contractor or representative is authorized to make representations or give advice to Client with respect to Service Vendors or the products and services they offer, and Client will not rely on any such representations or advice.
Changes to the Scope of Our Services. MountainSeed may, from time to time, revise written forms (including form appraiser engagement letters, Order Forms, Review forms, and other written forms) or adopt, revise, or abandon written policies. Client specifically agrees to comply with written client policies, as revised, adopted or abandoned from time to time. In addition, from time to time, it may be necessary for MountainSeed to go further than revising, adopting or abandoning written forms or policies. In those situations, MountainSeed may need to amend the specific written descriptions of the scope of our services contained in this Agreement or to revise these Standard Terms and Conditions as they apply to specific services (collectively, the “Scope of Our Services”). Client will be deemed to have accepted amendments to the Scope of Our Services with respect to any order placed 30 days or more after the Client receives notice of that amendment; provided, however, that for any amendment that MountainSeed advises is being made to comply with applicable law, Client will be deemed to have accepted such amendment immediately upon receipt. No MountainSeed employee, officer, director, member, manager, agent, or representative is authorized to amend the Scope of Our Services, except for MountainSeed’s Chief Executive Officer, Chief Operating Officer or Chief Legal Officer (“Authorized Officers”). To be valid, any notice of an amendment to the Scope of Our Services must be in writing, be signed by an Authorized Officer, and contain the following language in all caps: “THIS CHANGE NOTICE AMENDS THE SCOPE OF OUR SERVICES. PLEASE REFER TO THE TERMS AND CONDITIONS CONTAINED IN YOUR AGREEMENT.” MountainSeed will use good faith efforts to notify the Client’s designated primary contact (to the extent specifically named on the Acceptance Page above) in writing of any revision to written forms, any adoption, revision or abandonment of written client policies, or any alteration to the Scope of Our Services. With respect to the method of delivery of notices contemplated under this Agreement, typically MountainSeed provides those types of notices to the Client electronically, either via e-mail or, if MountainSeed has made available to the Client an electronic appraisal-management workflow system (including any internet-based system or other software system to which the Client has access for purposes of entering, monitoring or tracking orders under this Agreement), via a message or notification delivered electronically through that system. The Client agrees that those notices to be delivered by MountainSeed to the Client under this Agreement (including to the Client’s designated primary contact, as applicable) may be, but are not required to be, delivered electronically.
11. Limitation of Liability
IN NO EVENT SHALL MOUNTAINSEED OR ITS AFFILIATES BE LIABLE TO CLIENT, WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL THEORY, FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT, OR FOR ANY CLAIM MADE AGAINST CLIENT BY ANY OTHER PARTY, EVEN IF MOUNTAINSEED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM. IN NO EVENT SHALL MOUNTAINSEED’S OR ITS AFFILIATES’ LIABILITY UNDER ANY CLAIM MADE BY CLIENT EXCEED THE GREATER OF (A) THE TOTAL AMOUNT OF FEES PAID BY CLIENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CAUSE GIVING RISE TO THE CLAIM; OR (B) TWENTY-FIVE THOUSAND AND NO/100 DOLLARS ($25,000.00).
To the fullest extent permitted by law, Client shall defend, indemnify, and hold harmless MountainSeed and its affiliates, directors, members, managers, officers, employees and agents from and against any and all claims, losses, damages, suits, fees, judgments, costs and expenses (including attorneys’ fees) caused by or arising from (a) Client’s breach of this Agreement and/or (b) the actions or omissions of Client or its affiliates, directors, members, managers, officers and employees.
In the event legal action is brought by Client or MountainSeed against the other to enforce any of the obligations hereunder or relating in any way to the relationship created by performance or nonperformance under this Agreement, the non-prevailing party shall pay the prevailing party its reasonable attorney’s fees, costs and expenses incurred as a result of that action.
14. Independent Contractor/Scope of Agency
MountainSeed shall be and operate as an independent contractor of the Client in the performance of the services described in this Agreement. MountainSeed may subcontract portions of the services to be performed under this Agreement. The scope of MountainSeed’s agency is limited to the matters specifically described in this Agreement; except as otherwise specifically described herein, neither MountainSeed nor anyone employed or engaged by MountainSeed shall be deemed an agent, representative, or employee of Client.
Should completion of any service or work product be delayed for cause(s) beyond MountainSeed’s reasonable control, including, but not limited to, force majeure or any inability of an appraiser to gain access to the subject property, or in the event a Panel appraiser is not available to perform an assignment (in that situation MountainSeed may attempt to use reasonable efforts to offer the assignment to an off-Panel appraiser in accordance with the terms of this Agreement), the time for performance shall be extended for a period at least equal to the delay.
16. Severability; Survival
If any provision of this Agreement shall be determined to be invalid or unenforceable in whole or in part, the remaining provisions hereof shall remain in full force and effect, and be binding upon the parties hereto. The parties agree to reform this Agreement to replace any such invalid or unenforceable provision that comes as close as possible to the intention of the stricken provision. These Standard Terms and Conditions shall survive the completion of the services under this Agreement and the termination of this Agreement for any cause.
17. General Confidentiality
Each party (the “Receiving Party”) agrees that it shall protect any Confidential Information disclosed to it by the other party (the “Disclosing Party”) with the same care that the Receiving Party protects its own Confidential Information, and in no case less than reasonable care. The Receiving Party shall not disclose Confidential Information to any third party without the prior written consent of the Disclosing Party. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information (a) to any governmental authority pursuant to its legal authority to obtain such information; (b) to third parties as required pursuant to legal process in due consideration of the confidentiality obligations under this Agreement; (c) with regard to Nonpublic Personal Information, to third parties providing services to the Receiving Party as “necessary to effect, administer, or enforce the transaction” as such phrase is defined in the GLB Act for the performance of the Receiving Party’s obligations under this Agreement or as otherwise permitted by applicable law provided that such third party is subject to a confidentiality agreement at least as restrictive as this Agreement; or (d) to any third party for purposes of providing the Receiving Party’s obligations under this Agreement provided that such third party is subject to a confidentiality agreement at least as restrictive as this Agreement. The Receiving Party shall use the Confidential Information of the Disclosing Party solely for the purposes of performing its obligations under this Agreement. For purposes of this Agreement, “Confidential Information” includes all Nonpublic Personal Information, Customer Information, or other proprietary or confidential information, which (i) is designated in writing as such; (ii) to the extent defined by applicable law or regulation is required to be maintained as confidential; or (iii) is imparted orally to the other party and is orally designated as confidential, and Receiving Party receives a written summary of such within five business days of disclosure, and all tangible reproductions or embodiments of such information that are marked as Confidential Information. Notwithstanding the foregoing, Confidential Information does not include any information which: (i) is already known to the Receiving Party at the time of its disclosure independent of any confidentiality obligation; (ii) is or becomes publicly known through no wrongful act of the Receiving Party; (iii) is independently developed by or for the Receiving Party without reliance on any of the Confidential Information; (iv) is received by the Receiving Party from a third party without similar confidentiality restrictions and without breach of this Agreement; (v) is approved for release by written authorization of the Disclosing Party; or (vi) is an aggregation of data not personally identifiable to the Disclosing Party or its customers, inclusive of the “Market Data” defined in Section 20 of these Standard Terms and Conditions. As used throughout this Agreement, the term “GLB Act” shall mean the provisions of the Gramm-Leach-Bliley Act regarding disclosure of nonpublic personal financial information (15 U.S.C. §§ 6801-6809) and all applicable rules and regulations promulgated thereunder, then in force. The term “Nonpublic Personal Information” shall be as defined in the GLB Act. The term “Customer Information” shall have the meaning ascribed to it in the Interagency Security Guidelines, and (to the extent applicable) in 16 C.F.R. § 314.2. The term “Interagency Security Guidelines” shall mean the Interagency Guidelines Establishing Information Security Standards, inclusive of the Interagency Guidance on Response Programs for Unauthorized Access to Customer Information (Supplement A), as set forth at 12 C.F.R. Part 30, App. B [OCC], 12 C.F.R. Part 208, App. D-2 and part 225, App. F [Board], 12 C.F.R. Part 364, App. B [FDIC], and 12 C.F.R. Part 748, App. A [NCUA], as then in effect and applicable to Client. The terms of this Section 17 shall survive the termination or expiration of the Agreement.
18. Privacy and Data Security
In addition to, and without limiting any of its confidentiality or other obligations hereunder, Client represents and warrants that it shall not disclose any Nonpublic Personal Information to MountainSeed except under circumstances in which, and for the purposes that, it is permissible to do so under the GLB Act and with other statutory, legal and regulatory requirements (collectively, “Privacy Laws”). Notwithstanding the foregoing, it may be necessary for Client to disclose to MountainSeed certain Customer Information to enable MountainSeed to deliver the services contemplated by this Agreement and as “necessary to effect, administer, or enforce the transaction” as such phrase is defined in the GLB Act. MountainSeed acknowledges that Client is required to comply with the information security standards required by the Privacy Laws. Accordingly, in addition to and without limiting MountainSeed’s obligations regarding Confidential Information, MountainSeed agrees to implement commercially reasonable information security measures consistent with the Interagency Security Guidelines. Further, upon reasonable request from the Client, MountainSeed will make commercially reasonable efforts to assist Client in complying with applicable Privacy Laws, as amended from time to time, including but not limited to providing information regarding MountainSeed’s own information security program and its compliance with applicable laws and regulations relevant to the performance of services under this Agreement. As authorized in this Agreement, MountainSeed may use subcontractors and other vendors (such as independent contractor review appraisers, website hosting services, software providers) and MountainSeed will establish reasonable controls designed to ensure that any subcontractor or vendor that may have access to Customer Information will be subject to the same Privacy and Data Security terms as this Agreement. For clarity, this Agreement is not intended to and shall not create, or obligate MountainSeed to enter into, a direct relationship with any Client customer, or to require MountainSeed to provide, on behalf of Client, any initial, annual or other privacy, opt-out, or similar notice to Client’s customers.
19. Unauthorized Access to Sensitive Customer Information
MountainSeed acknowledges that the Client may have obligations pursuant to the Interagency Security Guidelines to implement an incident response program. Accordingly, MountainSeed agrees to notify the Client as soon as practicable following MountainSeed’s obtaining actual knowledge after a reasonable investigation of the occurrence of an incident of unauthorized access to the Client’s Sensitive Customer Information, if any, contained in a Customer Information System maintained by MountainSeed or any subcontractor or vendor having authorized access to Client Customer Information for the performance of MountainSeed’s obligations under this Agreement (“Security Incident”). Provided, however, in no event shall MountainSeed be obliged to notify, on the Client’s behalf, the Client’s customers, law enforcement, the Client’s regulator(s), or any other third party, with regard to any such Security Incident. Client agrees that notwithstanding any other obligations of MountainSeed set forth in this Agreement, this Section 19 shall constitute the entire responsibility of MountainSeed with regard to any unauthorized access to Sensitive Customer Information. For purposes of this Agreement, the terms “Sensitive Customer Information” and “Customer Information System” shall have the same meaning ascribed to them in the Interagency Security Guidelines.
Notwithstanding any other provision in this Agreement, Client acknowledges and agrees that MountainSeed may extract and compile market data, including without limitation: information relating to comparable sales, rents, operating expenses, income, leases, and leasing activity; neighborhood descriptions; economic trends; and similar information contained in, or obtained through the development of, appraisals, Other Valuation Products, data products, analytics and other work product delivered to the Client under this Agreement, including, without limitation, for purposes of populating databases to be used by MountainSeed and its affiliates in future performance of services for, and product offerings to Client and other clients (“Market Data”). Any such databases or other compilation of data extracted and compiled by MountainSeed shall be owned solely by MountainSeed, and Client specifically disclaims, transfers, and assigns to MountainSeed any right, title or interest in and to such databases and compilations and the information contained in them; provided, however, that this sentence shall not limit the Client’s rights to use an appraisal Other Valuation Product, or a data product, analytics or other work product in accordance with the terms of this Agreement. For the absence of doubt, any such information extracted from an appraisal report coordinated by MountainSeed pursuant to this Agreement and compiled by MountainSeed solely in accordance with the rights granted to MountainSeed under this paragraph shall not include the opinion of the value of the subject property as stated in the appraisal report, or any other Confidential Information relating to the subject property or the loan or transaction underlying the appraisal (including the identity of the lender and the identity of the borrower), or any Confidential Information with respect to the Client, the borrower, or the Client’s or borrower’s business operations.
This Agreement may be assigned, in whole or in part, by MountainSeed to any affiliate, to any person or entity controlled by, controlling, or under common control with MountainSeed, or to any successor following any sale of ownership interests, merger, asset sale, or similar transaction. MountainSeed will endeavor to provide prompt written notice to Client of any such assignment. Otherwise, neither party shall assign this Agreement without the express written consent of the other party. Any attempt to assign this Agreement in violation of this paragraph shall be void.
This Agreement shall be governed by the laws of the State of Georgia, without regard to its conflicts of laws principles.
Client acknowledges that MountainSeed is not a law firm and that nothing provided to Client by MountainSeed constitutes legal advice. Client should seek the assistance of its regulatory counsel with respect to compliance with any and all regulations, laws, and guidelines.
If you would like to contact MountainSeed regarding these Terms and Conditions, please contact:
MountainSeed Appraisal Management, LLC
2100 Powers Ferry Road, SE, Suite 410
Atlanta, GA 30339
Attention: Dan Wharton
Last Revised: March 23, 2022
