ANY MISUSE OF THE INFORMATION CONTAINED HEREIN, INCLUDING UNAUTHORIZED CONTACT OR HARASSING THE UNDERLYING BORROWER OR SELLER OF THE NOTE OR OTHERWISE MAY SUBJECT YOU TO PERSONAL LIABILITY BY THE UNDERLYING BORROWER, THE SELLER OF THE NOTE, AND FCI EXCHANGE. DATA IS BEING MONITORED AND WILL BE PROVIDED TO LAW ENFORCEMENT UPON ANY INDICATION OF MISUSE.
This Agreement is effective on September 13, 2010, for current users, and upon acceptance for new users.
2. Confidentiality. You agree that any information provided by FCI Exchange, through fciexchange.com, its officers, employees, affiliates, agents or other representatives of the Notes and all information and documentation in connection with the Notes, including personal information and the Note itself (“Non-Public Information”) is for Your confidential, personal use to evaluate the Notes. At no time may the Non-Public Information be disclosed, used, or otherwise except for the purpose of evaluating any potential Offer or Active Transaction and Non-Public Information can only be disclosed for the sole purpose of evaluating Notes for potential Offers or Active Transactions to those who have knowledge of this Agreement and are strictly limited to Your officers, agents, employees, or representatives including attorney, accountant, and investment advisor (“Approved Associates”), or otherwise required by law. You shall not, and shall also direct all Approved Associates who may be shown Non-Public Information not to disclose that information to anyone. 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 as permitted and directed by FCI Exchange.
Not Withstanding the above paragraph or any other part to this Agreement You shall (a) comply with all federal and state laws and regulations governing or relating to privacy rights in relation to such information, including the Gramm-Leach-Bliley Act, (b) not disclose any of such information to any person other than those of its personnel, agents, or to meet regulatory requirements, who need to know the information for the sole purpose of evaluating the potential purchase of the Note and (c) implement and observe procedures and measures as necessary to ensure the security and confidentiality of such information.
You shall indemnify, defend and hold harmless FCI Exchange and officers, agents, employees, or representatives including attorney, accountant, and investment advisor (“Indemnified Associates”) from and against all suits, liabilities, losses, damages or expenses of any kind (including attorney’s fees and expenses) incurred or suffered by any Indemnified Associate arising out of or in connection with this Agreement, including without limitation the unauthorized use or disclosure of the Non-Public Information in violation of this Agreement, and any negligent or intentional acts or omissions in relation to this Agreement by You or Approved Associate. Your obligations shall survive the expiration or termination of this Agreement.
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.
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, nor are we acting as agent, fiduciary, or broker in the purchase or sale of notes. 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.
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."
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.
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.
If you are acting as an agent for the holder(s) of Notes or acting as an agent for the Buyer of Notes and want to utilize FCI Exchange, 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 FCI Exchange services you are personally and expressly representing to FCI Exchange that you have such authority and you further agree to indemnify, defend and hold harmless all Indemnified Associates on any claims made by the holder(s) of the note or notes. You agree to be personally liable to the Indemnified Associates, regardless of whether you are also acting or claiming to act on behalf of an entity or other third party.
The Transaction Summary is a 10 Step Process developed by FCI Exchange Inc. to facilitate transactions between Buyers and Sellers. Each Step will give instruction for Buyer and Seller in regard to the progress of the Transaction.
Indicative Offer and Transaction Summary:
Because of this Agreement, You may learn from FCI Exchange, or from Indemnified Associates of FCI Exchange, the names and telephone numbers of businesses, entities, and any other entity, as well as their employees, agents, managers, representatives, investors, borrowers, lenders,, banks, lending corporations, individuals, trusts, or buyers and sellers, and as applies any Principle of the aforementioned (“Contacts”). You acknowledge, accept and agree that the identities of the Contacts will be recognized by You as exclusive and valuable Contacts of FCI Exchange, unless can be reasonably shown to be an existing contact and not previously introduced by FCI Exchange, directly or indirectly, and will remain so for the duration of this agreement. You shall, and shall also direct all Approved Associates who may be introduced to Contacts, not to disclose that information to anyone.
In the event of a transaction or agreement between You and any Contact, FCI Exchange is due its fees and charges upon an agreement between the Buyer and Seller, and is to be paid at the closing of the transaction, either on or within 2 days of the Sale or Closing Date of the transaction per the Fee Structure outlined below. If a transaction is cancelled after an agreement is made between a Buyer and Seller, FCI Exchange has the right to be paid all fees and charges as well. This Agreement is effective both for any transaction that is facilitated by FCI Exchange or is completed by any other service, method or means between you and any Contact
You agree that You will pay the following fees to FCI, which were last updated as of the effective date of this Agreement:
To find out current rates and fees, please go to: http://www.fciexchange.com/seller-listing-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.
In any event of circumvention, disclosure, breach, and damage by You: You agree and guarantee that You will pay a legal monetary penalty that is equal to the contract price the circumvented or breached Party should have realized in such transactions or damage of any kind by the person engaged in the circumvention, disclosure, breach, or damage for each occurrence. If either party commences legal proceedings to interpret or enforce the terms of this Agreement, the prevailing Party will be entitled to recover court costs and reasonable attorney fees. Furthermore, this Agreement shall be governed by the law of the State of California with exclusive venue in Orange County without regard to the conflicts of law provisions thereof.
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