End User License Agreement

1.

Access to Network.  MN hereby grants to you, and you hereby accept, a limited, revocable, non-exclusive right to access the Network solely for purposes directly related to your professional activities arising in the ordinary course of business, subject to and in accordance with the terms and conditions hereof.  Any other use of the Network is strictly prohibited.

2.

Transaction Fees.  You shall pay the fees, if applicable, and other charges for the Services as stated on the Mercury Network Transaction Fees page or in this Agreement.  All fees are non-refundable.  MN reserves the right to change its fees at any time.  You shall make all payments in U.S.  currency.  Your credit card will be billed in arrears for any and all fees.  MN reserves the right to suspend or terminate your account if credit card charges are denied.  Such suspension or termination shall not relieve you of the obligation to pay the transaction fees due.  You agree to pay MN its reasonable expenses, including attorneys’ and collection agency fees, incurred in enforcing its rights under this Agreement.

2.2

Credit Card Processing.  By entering credit card information, User is authorizing MN to charge the supplied credit card for each transaction made by User.

2.3

Refunds.  MN will refund transaction fees if an order is canceled.  Refunds can take up to three (3) business days to process after the cancellation.

3.

Solicitation.  Soliciting any of the individuals or companies listed on this web site for purposes of selling products or services other than the real estate related products and services for which this web site was specifically designed is prohibited.

4.

Use of Network.  In connection with your activities on the Network, you shall (i) operate your business in accordance with all applicable laws and regulations, (ii) consistently encourage the use of the Network by lenders and other participants in the real estate mortgage industry, (iii) promptly respond to all requests for services or products received from, other members of the Network, (iv) make no false or misleading representations to any party with regard to the Network or any product or service offered by you, and (v) not participate or engage in any illegal, deceptive, misleading, unethical or improper practice or infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy.  You further agree not to (vi) disseminate any information about another member of the Network without the prior consent of such member, or (vii) send unsolicited e-mails or other types of communications to any member of the Network for any purpose other than requesting the delivery of products or services provided by such member or a proposal to provide any such product or service.

4.1

You acknowledge that your use of the Network is with the expectation and understanding that the following activities in conjunction with your appraisal services are and will be performed by a third party, and not MN nor the Network:

1. Negotiate and formally contract with or engage you to perform appraisal services;
2. Place you on and remove you from an approved appraiser list/appraiser panel;
3. Verify your qualifications, including license status;
4. Receive your completed appraisal reports, and where applicable, submit the same to clients;
5. Review, verify or conduct quality control of your completed appraisal report;
6. Contact you with questions or concerns about your completed appraisal report;
7. Compensate you for appraisal services rendered.

MN and the Network do not represent that any of the above actions can be performed by the Network.  You will receive no management nor oversight of your services from MN nor the Network.  Neither MN nor the Network will be designated as your client on any completed appraisal report.  Neither MN nor the Network is granted any rights in or to your appraisal work product.

5.

Information Rights.  MN may retain and use information collected in Member’s use of the Mercury Network.  MN will not share information associated with You with any third parties unless we (i) have Your consent; (ii) conclude that it is required by law or a good faith belief that access, preservation or disclosure of such information is reasonably necessary to protect the rights, property or safety of MN, its users or the public; or (iii) provide such information in certain limited circumstances to third parties to carry out tasks on MN’s behalf (e.g., billing or data storage) with strict restrictions that prevent the data from being used or shared except as directed by MN.  When this is done, it is subject to agreements that oblige those parties to process such information only on MN’s instructions and in compliance with this Agreement and appropriate confidentiality and security measures.

6.

Use of Name.  You hereby grant to MN the right to include your name and/or company logo that has been provided by You in the Network membership directory.

7.

User Communication.  MN reserves the right to send service e-mails notifying User of operational or other changes that may affect or change the Services offered by MN.  Please note that you cannot opt out of such service e-mails because these service e-mails provide information critical for the operation of the Network.

8.

Restrictions.  You may not publish, display, disclose, rent, lease, sublease, modify, loan, distribute, or create derivative works based on the Software, Network or any part thereof.  You may not reverse engineer, decompile, translate, adapt, or disassemble the Software, nor shall you attempt to create the source code from the object code for the Software.  You shall not transmit the Software over any network or between any devices, although you may use the Software to make such transmissions of other materials.

9.

Ownership.  You have no ownership rights in the Network.  Rather, you have a license to use the Network as long as this Agreement remains in full force and effect.  Ownership of the Network, Documentation and all intellectual property rights therein shall remain at all times with MN.  Any other use of the Network by any person, business, corporation, government organization or any other entity is strictly forbidden and is a violation of this Agreement.

10.

Copyright.  The Network, Software, and Documentation contain material that is protected by United States Copyright Law and trade secret law, and by international treaty provisions.  All rights not granted to you herein are expressly reserved by MN.  You shall not remove any proprietary notice of MN from any copy of the Software or Documentation.

11.

Termination.  This Agreement shall become effective upon your acceptance of the terms and conditions contained herein and shall continue until terminated.

11.2

MN reserves the right to terminate this Agreement for any breach of the provisions hereof or the provisions of the Agreement, as determined by MN in its sole discretion.  MN shall have no obligation to refund any of Member’s fees due to MN’s early termination of this Agreement.

11.3

MN grants you the right to terminate this Agreement at any time.  Termination is effective when you cease use of the Network.  Such termination shall not relieve you of the obligation to pay the transaction fees due.

12.

Amendments/Modifications.  MN reserves the right to amend the Service offerings and add, delete, suspend or modify the terms and conditions of the Services at any time, and to determine whether and when, at its sole discretion, any such changes apply to existing or future Members.

13.

MN’s Rights.  You hereby acknowledge that the Network is the proprietary property of MN, the names and marks "Mercury" and "Mercury Network," and all associated names, marks and logos (collectively, the "Marks") are the trademarks and/or service marks of MN or its affiliates, and that any trade dress, trademarks, service marks or designs related to Mercury, Mercury Network and/or the Marks are the intellectual property of MN and are protected by United States copyright laws, trademark laws, trade secret laws, international treaties and applicable laws of the states and jurisdictions where they are used.  This Agreement does not grant to you any ownership rights in the Marks or in any other intellectual property of MN.  All right, title and interest in and to the Marks, and any other intellectual property of the MN shall remain with MN.  You further acknowledge that the Network and its functionality, structure and organization, and the code format of the Network are valuable confidential trade secrets of MN.

14.

Disclaimer of Warranties.  Member understands that the Internet and other various networking communication mediums are not secure, unless explicitly specified as such, and may be subject to interception or loss.  MN makes no representations or warranties of any kind, either express, implied or statutory, concerning the data or information available through Mercury Network or the Internet.  MN’S SERVICES ARE PROVIDED ON AN "AS IS" BASIS.  MN MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT; THAT THE SERVICES WILL MEET MEMBER’S REQUIREMENTS OR WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR; ANY IMPLIED WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE; REGARDING ANY THIRD PARTY SOFTWARE OR SERVICES; AND/OR ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF MN.  TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ALM DISCLAIMS ANY AND ALL SUCH REPRESENTATIONS AND WARRANTIES.

15.

Limitation of Liability.  IN NO EVENT WILL MN BE LIABLE TO MEMBER FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, INDIRECT, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOST PROFITS OR LOSS OF BUSINESS) ARISING OUT OF OR RELATED TO (I) THE SERVICES, (II) YOUR USE OF ANY DATA, INFORMATION OR THIRD PARTY SOFTWARE AVAILABLE THROUGH MERCURY NETWORK, (III) THIS AGREEMENT OR (IV) MEMBER’S WEBSITE REGARDLESS OF THE NATURE OR BASIS OF THE CLAIM INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT OR STRICT LIABILITY CLAIMS.  IN ADDITION, MN SHALL HAVE NO LIABILITY OF ANY KIND OR NATURE TO MEMBER ARISING OUT OF OR RELATED TO MEMBER’S USE OF OR INABILITY TO USE MEMBER’S WEBSITE OR ACCOUNT.  IN THE EVENT THAT MN IS LIABLE TO MEMBER FOR ANY LOSS ARISING OUT OF OR RELATED TO THE SERVICES, THIS AGREEMENT OR MEMBER’S WEBSITE, MN’S AGGREGATE LIABILITY TO MEMBER WILL IN NO EVENT EXCEED $100.00.

15.2

No Liability for Unauthorized Use or Access.  Member is solely responsible for ensuring that each password for Member’s account is utilized only by Member or, if applicable, by Member’s authorized employees and agents.  MN shall have no liability for any loss, claim, damage or other liability that may arise from the unauthorized use of a password.  If a password is lost or stolen or if you have reason to believe that your account is no longer secure for any reason, it is your responsibility to notify MN of such loss or theft so that the password can be deactivated and a new password assigned.  MN will use commercially reasonable efforts to effect password deactivation requests promptly.

16.

Indemnity.  Indemnification; you agree to indemnify and hold MN harmless from any and all claims and demands, including, but not limited to reasonable attorneys’ fees, made by any third party due to or arising out of or in connection with or resulting from your participation in the Network and or any information, including, but not limited to, information provided by MN.  The information, software, products, and services may include inaccuracies or typographical errors.  Changes are periodically added to the information herein.  MN, its affiliates and/or its respective suppliers may make improvements and/or changes in this site at any time.  In no event shall MN be liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the use or performance of MN services and software.

17.

Release.  In the event a dispute arises between you and any other member of the Network, you shall and do hereby release MN and its officers, directors, employees and agents from any and all claims, demands, losses, costs, expenses, liabilities and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute.  If you are a California resident, you waive California Civil Code Section 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."

18.

Information Control.  MN does not control the information provided by other members that is made available through the Network.  You may find other member’s information to be inaccurate or deceptive.  Please use common sense when transacting business over the Network.

19.

Force Majeure.  MN shall not be liable for nonperformance, delay, errors, data loss or other loss caused by any event reasonably beyond MN’s control including, but not limited to, acts of God, war, terrorism, hostilities, revolution, civil disorder, national emergency, strikes, lockouts, unavailability of supplies, epidemics, fire, flood, earthquake, force of nature, explosion, embargo or any law, proclamation, regulation, ordinance or other act or order of any court, government or governmental agency.

20.

Governing Law.  This Agreement shall be construed and governed by the internal laws of the State of Florida, U.S.A., excluding the application of its choice-of-law principles.  MN may seek any interim or preliminary relief from a court of competent jurisdiction in Collier County, Florida necessary to protect the rights or property of MN pending the completion of litigation or settlement.

21.

Severability.  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.  You agree that this Agreement may be assigned by MN, in its sole discretion, to a third party in the event of a merger or acquisition.  This Agreement sets forth the entire understanding and agreement between you and MN with respect to the subject matter hereof.

22.

Modifications to Terms of Service and Other Policies.  MN reserves the right to change or modify any of the terms and conditions contained in this Agreement or any policy governing the Mercury Network, at any time.  You are responsible for regularly reviewing the policy.  No amendment to or modification of this Agreement will be binding unless (i) You accept updated terms online, or (ii) You continue to use the Service after MN has posted updates to the Agreement or to any policy governing the Mercury Network.

23.

Assignment.  Member may not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of MN.  MN may assign this Agreement and its rights and obligations hereunder to an affiliate, successor or assign.  MN’s rights and obligations hereunder will bind and inure to the benefit of its successors and assigns.

24.

No Waiver.  Neither the failure nor the delay of MN in exercising, enforcing or taking action against you with respect to any of the MN’s powers or rights shall operate as a waiver of such powers or rights.  No single or partial exercise by MN of any of its powers or rights will preclude MN from exercising such powers and rights in the future or from exercising other powers and rights.

25.

Section Headings.  The headings of sections in this Agreement are provided for convenience only and will not affect the construction of the sections.