The following terms constitute a binding agreement ("Agreement") between you and FCI Exchange, Inc, a California limited liability company (“FCI Exchange”, "FCI Note Exchange", "we", or "us"). This Agreement will govern all purchases of notes or properties (each and collectively, "Note") or loan pools (“Loan Pools”) that include Notes, that you may, from time to time, purchase from sellers (“Sellers”) that utilize FCI Exchange or that you may sell to buyers (“Buyers”) who utilize FCI Exchange. Please read this Agreement, the terms of use ("Terms of Use") on FCI Exchange’s web site at www.fciexchange.com and any subdomain thereof (the “Site”) carefully and print and retain a copy of these documents for your records. By registering electronically and Logging into The Site, you agree to the following terms together with the Terms of Use, consent to our privacy policy, agree to transact business with us and receive communications relating to the Notes electronically, and agree to have any dispute with us resolved by binding arbitration.

This Agreement is effective on September 13, 2010, for current users, and upon acceptance for new users.

• 1. Purchase and Sale of Notes. Subject to the terms and conditions of this Agreement, we will provide you the opportunity through the Site:
  • To review Note packages that Sellers have posted on its Site, including all Note packages and all documents pertaining thereto; and
  • To advertise your Notes for sale to prospective Buyers and create a medium through which you can communicate with the prospective Buyer.

  FCI Exchange will provide the medium through which each Note can be posted on its Site. While FCI Exchange will attempt to verify the accuracy of the information provided by Sellers, FCI Exchange cannot guarantee that any of the information provided by Sellers will be true, accurate or correct. By using this site, Buyer or Seller acknowledge that it is the Seller’s sole responsibility for the accuracy and validity of the Note and Buyers should due a complete due diligence on all information provided by the Seller prior to purchasing the Note.

• 2. Limitation of Liability

  You will not hold FCI Exchange responsible for other users' content, actions, or inactions, or Notes they list. You acknowledge that we are not a traditional auctioneer. Instead, our Sites are venues to allow anyone to offer, sell, and buy Notes at anytime from anywhere. We are not involved in the actual transaction between buyers and sellers. While we may help facilitate the resolution of disputes through various programs, we have no control over and do not guarantee the quality, safety, or legality of items advertised, the truth or accuracy of users’ content or listings, including any statements included in the documents Sellers post on or through the Site, the ability of sellers to sell items, the ability of buyers to pay for items, or that a buyer or seller will actually complete a transaction or return an item.

  We do not transfer legal ownership of items from the Seller to the Buyer, and nothing in this agreement shall modify the governing provisions of California Commercial Code § 2401(2) and Uniform Commercial Code § 2-401(2), unless the buyer and the seller agree otherwise. Further, we cannot guarantee continuous or secure access to our sites, services, or tools, and operation of our sites, services, or tools may be interfered with by numerous factors outside of our control. Accordingly, to the extent legally permitted, we exclude all implied warranties, terms and conditions. We are not liable for any loss of money, potential finance opportunity, financial gain or loss, goodwill or reputation, or any special, indirect or consequential damages arising, directly or indirectly, out of your use of or your inability to use our sites, services, and tools.

  Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you.

  Regardless of the previous paragraphs, if we are found to be liable, our liability to you or to any third party is limited to the greater of (a) the total fees you paid to us in the 12 months prior to the action giving rise to the liability, and (b) $100.

• 3. Release

  If you have a dispute with one or more users, you release us (and our officers, directors, agents, subsidiaries, joint ventures, and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."

• 4. General

  If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Headings are for reference purposes only and do not limit the scope or extent of such section. Our failure to act with respect to a breach by you or others doesn't waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this Agreement.

  We may amend this Agreement at any time by posting the amended terms on this Site. Except as stated elsewhere, all amended terms shall automatically be effective 30 days after they are initially posted. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof. The following Sections survive any termination of this Agreement: Fees and Services (with respect to fees owed for our services), Release, Content, Liability, Indemnity and Resolution of Disputes.

  If a dispute arises between you and FCI Exchange, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and FCI Exchange agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or our services (a "Claim") in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution by going to the Contact Us help page. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.

  • Law and Forum for Disputes - This Agreement shall be governed in all respects by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against FCI Exchange must be resolved exclusively by a state or federal court located in Orange County, California, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the courts located within Orange County, California for the purpose of litigating all such claims or disputes.
  • Arbitration Option - For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
  • Improperly Filed Claims - All claims you bring against FCI Exchange must be resolved in accordance with this Resolution of Disputes Section. All claims filed or brought contrary to the Resolution of Disputes Section shall be considered improperly filed. Should you file a claim contrary to the Resolution of Disputes Section, FCI Exchange may recover attorneys' fees and costs up to $1,000, provided that FCI Exchange has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
  • Contact of Property Owners, Borrowers, etc. Prohibited - You agree that you will not contact borrowers, property owners, or tenants/residents of the notes listed on the Site directly, or indirectly, by yourself or through an affiliate or agent of yours. You agree that all contact will be facilitated through FCI Exchange’s website or directly with the Seller and/or Buyer.

• 5. Note Purchaser / Investor Suitability

  Users of the FCI Exchange Website fully understand that investments in Performing or Non-Performing Notes is appropriate only for investors who have no need for immediate liquidity in their investments and who have adequate means of providing for their current financial needs, obligations, and contingencies, even if such investment results in a total loss. Investment in Notes involves a degree of risk and is suitable only for an investor whose business and investment experience, either alone or together with a purchaser representative, renders the investor capable of valuating each and every risk of their investment.

• 6. Warranties and Representations
  • Buyer
    • All transactions performed on the FCI Exchange Website, by purchaser hereby referred to as “Buyer,” represents and warrants that they have the full authority to complete that transaction. Buyer is duly and legally authorized to enter into a transaction for the sale of a note on this site and has the power and licenses, permits, authorizations and approvals (governmental, corporate or otherwise) necessary to complete transactions and perform the obligations of the transaction.
  • Seller
    • All transactions performed on the FCI Exchange Website by “Seller” must be the owner of promissory note(s) and is duly organized, validly existing, and legally authorized to enter into an Agreement for the sale of any note listed. Seller warrants that for any note, in which Seller engages in a transaction on the FCI Exchange Website, he is in possession of collateral file consisting of at a minimum, Original Promissory Note, Original Deed/ Mortgage, Original Chain of Assignments and Original Allonge(s), if applicable.
      
      Should the seller not be able to furnish any of the said documents there must be a written letter indicating the missing documents of which transacting parties may mutually agree upon substitute documents, (including Lost Note Affidavit and Certified Copies of Deed and Assignments, or any other documents that is required to complete the transaction) prior to acceptance of a Final Offer.
• 7. Listing

  If you are acting as an agent for the holder(s) of a promissory note or notes and want to utilize FCI Exchange, Inc.'s website services for the marketing and/or sale of a note or notes, you may only use the website if you are authorized by the current beneficiaries who are the holder(s) to act on their behalf. By using the website services you are personally and expressly representing to FCI Exchange, Inc. that you have such authority and you further agree to indemnify, defend and hold FCI Exchange, Inc. (the Indemnified Party) harmless on any claims made by the holder(s) of the note or notes. You agree to be personally liable to the Indemnified Parties, regardless of whether you are also acting or claiming to act on behalf of an entity or other third party. Your liability under this warranty and guaranty shall include, but not be limited to, all attorney fees and costs incurred by the Indemnified Parties of any kind or nature concerning, involving or related to in any way the listing and/or sale of any promissory note or notes for which you claim to hold an agency to act on behalf of the holder(s) of the note or notes.

• 8. Schedule of Fees. Schedule of fees may change at any time and from time to time without prior notice. FCI Exchange earns its fees and charges upon execution of a loan purchase and sale agreement (“PSA”) between the Buyer and Seller, and is normally paid upon closing of the transaction. If the transaction is cancelled after execution of the PSA, FCI Exchange has the right to be paid all fees and charges as outlined in the PSA. You agree that you will pay the following fees to FCI, which were last updated as of the effective date of this Agreement:
  • Buyer Sale Processing Fee for Notes and Loan Pools.
    • Newly Originated: 50 Basis Points (0.5%) of the Purchase Price with a minimum of $ 500.00.
    • Performing: 1% of the Purchase Price with a minimum of $ 500.00.
    • Non Performing: 1% of the Purchase Price with a minimum of $ 500.00.
    • Loan Pools: Loan Pools use the same fee structure illustrated above.
    • Buyer Deposit: The Buyer must submit a deposit within 24 hours of executing the Loan Purchase and Sale Agreement by both parties of the transaction. The deposit is a dollar amount equal to ten percent (10%) ofo the agreed upon purchase price of the note. Deposits are refunded if the sale is not closed due to no fault of the buyer.
      
  • Seller Sale Processing Fee for Notes and Loan Pools.
    • Newly Originated: 20 Basis Points (0.2%) of the Purchase Price with a minimum of $ 500.00.
    • Performing: 1% of the Purchase Price with a minimum of $ 500.00.
    • Non Performing: 1.5% of the Purchase Price with a minimum of $ 500.00.
    • Loan Pools: Loan Pools use the same fee structure illustrated above.

    To find out current rates and fees, please go to: http://www.fciexchange.com/seller-sale-processing-fee.php. Should there be any difference between the fees contained herein and the fees found at the web page in the preceding sentence, the web page will control.

• 9. Noncircumvention / Nondisclosure Agreement. You acknowledge, accept and agree that the identities of the Buyers or Sellers we introduce you to are our exclusive and valuable contacts and you will not circumvent us to avoid paying us the fees outlined in Section 7 above. Furthermore, you agree not to disclose to others our Buyers or Sellers or any information they provide to you. In the event you circumvent us or breach the nondisclosure requirement herein, we will be entitled to bring an action against you to enforce the payment of our fees. The prevailing party will be entitled to reasonable attorneys’ fees in connection with the action.