This Software Services Agreement, including Sections 1 through 27 (and the definitions set forth in Section 26), is entered at and as of the date (the “Effective Date”) when Subscriber accepts this Agreement or begins utilizing the Service. This Agreement is by and between CFlisting Inc., a Florida corporation (“CFlisting”), and Subscriber.
Section 1. CFlisting Software as a Service. CFlisting grants Subscriber a non-exclusive, non-transferable, limited right to access and use the Service within the United States during the Term of the Agreement solely for Subscriber’s internal business purpose of buying or selling notes and other negotiable instruments, related security agreements, (e.g., mortgages, security deed, deed of trust, contract for deed, auto loans, etc.), unsecured debt, or other assignable secured or unsecured transactions (collectively being the “Loan Documents”) and the closings associated therewith, whether or not the Loan Documents are listed in CFlisting’s Marketplace. As of the date of this Agreement, the Service is a marketplace permitting:
Subscribers seeking to sell one or more Loan Documents (“Seller Subscribers”) to upload information concerning each such Loan Document, as well as information about the related secured real or personal property, if applicable (“Loan Related Documentation”) to the Service for advertisement to third party subscribers; and
Subscribers seeking to acquire Loan Documents (“Buyer Subscribers”) to view Loan Related Documentation and other Content provided by Seller Subscribers; and
Buyer Subscribers and Seller Subscribers to:
communicate via the Service to negotiate price and terms and, if determined by them, to tentatively agree to the purchase price and sale of a Loan Document; and
conduct a due diligence review of Loan Related Documentation to determine whether or not to purchase on the terms of the tentative agreement such Loan Document; and
arrange for, and consummate the purchase and sale of Loan Documents through CFlisting, third-party escrow agents, title agents, attorneys, or other collateral audit providers selected by CFlisting (each being an “Escrow Agent”).
In the event that Subscriber and a third-party subscriber agree to the purchase, sale, or closing of a Loan Document through the Service, the purchase, sale, or closing shall be consummated on terms agreed to by the parties, and the proceeds and all supporting documentation related to the sale, including all Loan Related Documentation, may be disbursed via an Escrow Agent in accordance with the terms of the Escrow Agreement attached as Exhibit A, should the parties so elect. The Escrow Agent shall first inspect the Loan Related Documentation to ascertain whether or not it is the original documentation. CFlisting shall select an alternative Escrow Agent if Subscriber reasonably objects to the originally selected Escrow Agent. Subscriber authorizes and directs the Escrow Agent to distribute the fees due to CFlisting from Subscriber as and when same become due should a sale be consummated. Such funds shall be held by the Escrow Agent for Subscriber until such time as the closing occurs and the funds are distributed. The arrangement between Escrow Agent and Subscriber shall be based upon the terms and conditions of the Escrow Agreement between them; CFlisting shall have no liability or obligation, and Subscriber shall not hold CFlisting liable for the actions and undertakings of the Escrow Agent or any other party to the Loan Document purchase, sale, or closing transaction. CFlisting may, from time to time, for the convenience of Subscriber, provide a form written purchase and sale agreement that Subscriber may elect, in Subscriber’s sole and absolute discretion, to use to consummate a purchase and sale; provided that, Subscriber acknowledges and agrees that CFlisting is not providing legal, financial, or other professional advice and shall have no liability or obligation whatsoever concerning any such purchase and sale agreement. CFlisting strongly suggests that Subscriber secure appropriate third-party professional advice concerning any purchase, sale, or closing of a Loan Document.
Section 2. Username. After the receipt of all required information by a new Subscriber, including, without limitation, an e-mail address and verification of identity through a third-party service provider, CFlisting shall provide Subscriber with a unique identifier to access and use the Service (the “Username”). Only Subscriber shall be entitled to use such Username and the Username may not be transferred to any other individual or entity. Subscriber shall not permit any other person to use the Username or to have access to the Service as, by or through Subscriber. From the time the Username is issued until CFlisting acknowledges that it has been deleted or changed, all acts, communications, agreements and transactions undertaken under the Username shall be the acts, communications, agreements and transactions of Subscriber.
Section 3. Content. ALL CONTENT IS PROVIDED AS-IS, WHERE-IS WITH NO REPRESENTATIONS OR WARRANTIES WHATSOEVER. CFlisting does not screen or otherwise analyze or review Content at or prior to or after the time it is uploaded to the Service and, except for the license granted it below, makes no claim to any Content. CFlisting’s sole obligation concerning the Content shall be to display it on the CFlisting website. Subscriber provides CFlisting with a fully paid non-terminable license to: (A) utilize the Content provided by Subscriber to the Service from time to time, in connection with the Service; to undertake CFlisting’s other obligations under this Agreement; and to generate, publish and otherwise utilize aggregate anonymized information about the Service; and (B) make copies of the Content. CFlisting may, in its sole and absolute discretion and without notice to Subscriber, remove, revise, amend or otherwise correct any Content that CFlisting believes infringes upon the intellectual property rights of any person or entity, or is libelous, scandalous, false, fraudulent, or provided for a purpose other than that for which the Service is permitted to be utilized. CFlisting has no obligation whatsoever to store or retain any Content and Subscriber agrees to retain copies of all Content he, she or it deems necessary.
Section 4. Limitations on Services. Subscriber shall not:
access or use the Service via any automated means, including, without limitation, using any scripted, robotic, or software means, except for such scripts or processes as may be provided by CFlisting from time to time;
reproduce, duplicate, copy, sell, resell, or exploit access to the Service, use of the Service, or any portion of the Service, including, but not limited to, the software coding or visual design elements;
modify, reverse engineer, adapt, or otherwise tamper with the Service or modify another website so as to falsely imply that it is associated with the Service, CFlisting, or any other software or service provided by CFlisting;
knowingly use the Service in any manner that: (1) infringes or may infringe upon any third-party intellectual property or moral rights; or (2) is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene, or in violation of the terms of this Agreement;
remove any copyright or other intellectual property notices of CFlisting; and
knowingly use the Service to upload, post, host, or transmit any unsolicited bulk e-mail (e.g., spam), viruses, destructive, malicious, or self-replicating computer software.
Section 5. Non-Circumvention. In exchange for the ability to access and use the Service and access to the Confidential Information, Subscriber agrees that he, she, or it will not: (A) communicate with any other subscriber concerning any Loan Document other than via the Service; (B) suggest, imply, or otherwise cause any other subscriber to deal with Subscriber except through the Service; (C) close or consummate and purchase any Loan Document, except in accordance with the Service. Subscriber acknowledges that, without the restrictions set forth in this Section, CFlisting will not grant Subscriber access to and the right to use the Service or access to the Confidential Information. CFlisting shall be entitled to recover liquidated damages in the amount of $6,000 for each violation of the provisions of this Section, it being the understanding of the parties that the actual damages of CFlisting for each such violation will be difficult to determine and the foregoing amount reflects their best estimate of such damages as of the date of this Agreement.
Section 6. Availability. CFlisting shall have the right at any time to modify or discontinue the Service, temporarily or permanently, with or without notice, in whole or in part; and to temporarily suspend Subscriber’s access to the Service for operational or other purposes, including, but not limited to, maintenance, repairs, or installation of upgrades and emergencies, but will endeavor to provide reasonable notice prior to any non-emergency suspension.
Section 7. Ownership of Services. The Service, the software utilized to provide the Service, and all intellectual property and moral rights therein shall be and remain the property solely of CFlisting and, except for access to the Service on the terms set forth herein, Subscriber shall not have or receive any rights or interests in any of the foregoing.
Section 8. Obligations Concerning Confidential Information. Subscriber shall:
not disclose, or allow any person or entity access to Confidential Information;
not make any use, either commercial, personal, or otherwise, of the Confidential Information;
exercise reasonable diligence to maintain the confidential, secret, or proprietary nature of all Confidential Information and to prevent its use, utilizing such security measures as may be reasonable under the circumstances, but not less than that utilized by the Receiving Party for its own Confidential Information.
Section 9. Authorized Use of Confidential Information. Notwithstanding the foregoing, Subscriber may: (A) disclose Confidential Information: (1) to your professional advisers who are under an obligation of confidentiality to Subscriber and who are providing professional services to Subscriber in connection with Subscriber’s purchase or sale to which the Confidential Information applies; or (2) if and only if: (a) compelled by, and solely to the minimum extent necessary to comply with, bona fide unaffiliated third party-initiated legal process (including, but not limited to, deposition, interrogatory, request for documents, subpoena, civil investigative demand, or similar legal process); and (b) reasonable advance written notice is provided to the Disclosing Party (to the extent not prohibited by applicable law) including the relevant details of the legal process so as to enable the Disclosing Party to protect its rights in and to the subject Confidential Information; and (B) use Confidential Information in connection with a due diligence review of a Loan Document for purchase, with making a Loan Document available for sale via the Service, and with consummating a purchase or sale through the Service and via an Escrow Agent. Upon Subscriber’s acquisition of a Loan Document, the restrictions of this Section shall not apply to Confidential Information of or pertaining to such Loan Document.
Section 11. Term and Termination. The term (the “Term”) of this Agreement shall commence on the Effective Date and shall continue until terminated in accordance herewith. Either party may terminate this Agreement upon written notice to the other party; provided that, if termination is by Subscriber and the purchase or sale of a Loan Document is pending, termination shall not occur until the consummation or termination of such purchase or sale. Upon termination of this Agreement for any reason, CFlisting may terminate Subscriber’s access to the Service, and Subscriber shall immediately cease using the Service.
Section 12. WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SPECIFICALLY SET FORTH HEREIN BELOW, CFlisting MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED CONCERNING OR RELATING TO THE SERVICE OR ANY ESCROW AGENT, INCLUDING, BUT NOT LIMITED TO: (A) NO WARRANTIES OF MERCHANTABILITY; (B) NO WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; AND (C) NO WARRANTY CONCERNING INTELLECTUAL PROPERTY RIGHTS. CFlisting ONLY WARRANTS THAT IT CAN PROVIDE SUBSCRIBER THE ACCESS TO THE SERVICE.
Section 13. Improvements and Suggestions by any Customer. All right, title, and interest in and to, and the right to pursue protection for, improvements, enhancements, and modifications to the Service or its use or applicability that are suggested or made by Subscriber (being “Improvements”) shall vest solely with CFlisting, and Subscriber does hereby assign all such Improvements to CFlisting. No license is granted to Subscriber in, to or under any Improvements or other intellectual property or moral right owned or otherwise assertable by CFlisting by express or implied grant, estoppel or otherwise, except solely when and if incorporated into a future revision of the Service. All benefits from the use of any such Improvements shall inure solely to CFlisting.
Section 14. LIMITATION OF LIABILITY. CFlisting SHALL NOT BE LIABLE TO SUBSCRIBER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF BUSINESS OR OTHER ECONOMIC DAMAGE, OR INJURY TO PROPERTY. IN ADDITION, IN NO EVENT SHALL THE DAMAGES PAYABLE BY CFlisting TO SUBSCRIBER OR ANY PERSON OR ENTITY CLAIMING THROUGH SUBSCRIBER EXCEED THE GREATER OF $1,000.00 OR THE FEES PAID BY SUBSCRIBER TO CFlisting IN THE PARTICULAR TRANSACTION AT ISSUE. EACH PARTY ACKNOWLEDGES THAT: THIS SECTION REFLECTS AN INFORMED, VOLUNTARY ALLOCATION OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THE ARRANGEMENTS SET FORTH IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE USE OF THE SERVICE, STORAGE AND DISSEMINATION OF THE CONTENT AND THE EXERCISE OF THE LICENSED RIGHTS; AND SUCH VOLUNTARY RISK ALLOCATION WAS A MATERIAL PART OF THE BARGAIN BETWEEN THE PARTIES; AND THE ECONOMIC AND OTHER TERMS OF THIS AGREEMENT WERE NEGOTIATED AND AGREED TO BY THE PARTIES IN RELIANCE ON SUCH VOLUNTARY RISK ALLOCATION.
Section 15. Indemnification. CFlisting shall hold Subscriber harmless from and against any claims, obligations, losses, damages, liabilities, fines, costs, and expenses (including, without limitation, reasonable attorney’s fees) (collectively “Losses”) arising out of or incurred as a result of or in connection with CFlisting’s material breach of this Agreement; excluding therefrom all Losses arising from Subscriber’s breach of this Agreement. Subscriber shall hold CFlisting and its members, managers, and employees, collectively and individually, harmless from and against any Losses arising out of or incurred as a result of or in connection with: (A) Subscriber’s material breach of this Agreement; or (B) a third party claim based on Subscriber’s: (1) use of the Services; or (2) Content; excluding therefrom all Losses arising from CFlisting’s breach of this Agreement.
Section 16. Entire Agreement, Waiver and Modification. This Agreement sets forth the entire understanding of the parties concerning the subject matter of this Agreement and incorporates all prior negotiations and understandings. There are no covenants, promises, agreements, conditions, or understandings, either oral or written, between them relating to the subject matter of this Agreement other than those set forth herein. No purported waiver by any party of any default by another party of any term or provision contained herein shall be deemed to be a waiver of such term or provision unless the waiver is in writing and signed by the waiving party. No such waiver shall in any event be deemed a waiver of any subsequent default under the same or any other term or provision contained herein. Except as set forth herein, no alteration, amendment, change, or addition to this Agreement shall be binding upon any party unless deduced to writing and signed by all parties.
Section 17. CFlisting Amendment by Notice. CFlisting may at any time, and from time to time, amend this Agreement by providing no less than fifteen (15) days advance notice (the “Amendment Notice”) to Subscriber setting forth the substance of such amendment. If Subscriber does not terminate this Agreement within the foregoing period, the amendment shall be effective as of the date set forth in the Amendment Notice.
Section 18. Successors and Assignment. All of the provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and, except as otherwise specifically provided in this Agreement, their respective permitted successors and assigns. No Customer may assign or delegate their rights or obligations under this Agreement. CFlisting may assign and delegate its rights and obligations under this Agreement without notice to any Customer at any time and from time to time.
Section 19. Notices. Any consent, waiver, notice, demand, request, or other instrument required or permitted to be given and effective under this Agreement shall be in writing and deemed to have been properly given upon: (A) actual delivery, if hand-delivered; (B) the next business day after: (1) transmission by overnight express courier service (e.g., Federal Express), freight prepaid to the address for such party set forth herein; or (2) in the case of a notice provided by CFlisting, being sent to the e-mail address for the Subscriber associated with the Username; (C) the next business day after transmission by facsimile (with receipt showing successful transmission) to the facsimile number for such party set forth in the records for the Service; or (D) three (3) business days after being sent by certified United States mail, return receipt requested, postage prepaid, to the address for such party set forth in the records for the Service. Either party may change its address or facsimile number for notices by changing it on the records for the Service.
Section 20. Captions. The captions and paragraph letters appearing in this Agreement are inserted only as a matter of convenience. They do not define, limit, construe or describe the scope or intent of the provisions of this Agreement.
Section 21. Partial Invalidity. If any term or provision of this Agreement, or the application thereof to any person or circumstance, shall be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid, shall both be unaffected thereby, and each term or provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
Section 22. Applicable Law and Venue and Forum. The provisions of this Section are a material part of the agreement of the parties. But for the provisions of this Section, CFlisting would not enter this Agreement, grant the Licensed Rights, or provide any Customer with access to the Service. THIS AGREEMENT SHALL BE CONSTRUED AND GOVERNED UNDER AND BY THE LAWS OF THE STATE OF FLORIDA FOR CONTRACTS EXECUTED AND TO BE PERFORMED IN FLORIDA. EXCLUSIVE VENUE FOR ANY LEGAL ACTION AUTHORIZED HEREUNDER OR RELATING HERETO SHALL BE IN ORANGE COUNTY, FLORIDA.
Section 23. Third Party Beneficiaries. There are no intended, express, or implied third party beneficiaries to this Agreement.
Section 24. WAIVER OF JURY TRIAL. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE ALL OF THEIR INDIVIDUAL AND COLLECTIVE RIGHTS TO A TRIAL BY JURY ON ANY AND ALL ISSUES PERTAINING TO OR ARISING OUT OF THIS AGREEMENT AND THE PRODUCTS.
Section 25. Attorneys’ Fees. In the event any litigation, mediation, arbitration, or controversy between the parties hereto arises out of or relates to this Agreement or the Service, the Prevailing Party in such litigation, mediation, arbitration, or controversy shall be entitled to recover from the other party all reasonable attorneys’ fees, expenses, and legal costs, including any associated with any appellate proceedings and any post-judgment collection proceedings.
Section 26. Definitions.
Agreement means this entire Software Services Agreement), as may be amended from time to time in accordance herewith. Confidential Information means: all confidential or proprietary information of, about, or relating to:
CFlisting; or
other subscribers that is received or accessed via the Service; or
Loan Documents, Loan Related Documentation, and property that is the subject of a Loan Document that is received or accessed via the Service, as well as offers and transactions concerning or relating to Loan Documents; or
all information provided by any subscriber of CFlisting other than Subscriber; provided, that, “Confidential Information” shall not, in any event, include any information that becomes generally known or publicly available upon reasonable inspection other than information that became generally known or publicly available as a result of a breach of an obligation of confidentiality to any of Seller or the Company.
Content means any information uploaded or posted to the Service by Subscriber, including, without limitation, information about Subscriber or any Loan Document offered for sale by Subscriber.
Prevailing Party means, generally, the party in any litigation, mediation, arbitration, or other controversy (each being a “Dispute”) that prevails on substantially the majority of the issues in the Dispute; provided that, if one party provides an offer of judgment or settlement in any Dispute and the outcome of the Dispute is not materially different than such offer, the party making the offer shall be the Prevailing Party in such Dispute. For purposes of this definition, materially different shall include, in the case of money damages, the outcome of the Dispute provides for damages in excess of 115% of such offer.
Service means the services provided from time to time by CFlisting through its CFlisting Software-as-a-Service offering.
Section 27. Survival. Sections 3, 5, and 8 through 27 shall survive the termination, cancellation, or expiration of this Agreement by whatever means for whatever reason.
