Effective as of: Jun 11, 2020
Terms and Conditions
Last updated June 10, 2020
Foundation CREF - 1-562-386-0450
ACCEPTANCE OF TERMS
Foundation CREF has agreements with various individuals and corporations, etc. ("Sellers") to market and advertise certain properties and/or financial instruments ("Property" or "Properties") through its online auction website, FoundationCREF.com. All properties offered on Foundation CREF's website shall be offered subject to the Sellers' approval of the price and final terms and conditions. The Properties shall be offered through an Internet auction process with a specified opening and closing dates.
By accessing, downloading, installing, running or using any of these Services, you agree to be bound by these Terms, as updated from time to time. If you do not agree to our Terms, you should not access or otherwise use the Sites and Services. Any continued use after changes or updates have been made to these Terms constitutes your acceptance of such changes. These Terms may only be modified in writing. The terms “you” shall refer to you the user, and the terms “we,” “us,” or “our” shall refer to Broker and/or Foundation CREF.
READ THESE TERMS CAREFULLY BEFORE USING OR ACCESSING THE SITES AND SERVICES. ALL USERS AND BIDDERS HEREBY CERTIFY THAT THEY HAVE READ AND FULLY UNDERSTAND THE CONFIDENTIALITY AND NON-DISCLOSURE AND TERMS AND CONDITIONS AND THEY AGREE TO BE BOUND THEREBY.
Warranties – Properties Sell “As Is, Where Is”
To the fullest extent permitted by law, the properties, services and items sold by or through Foundation CREF are provided on an “as is,” “where is,” “as available” basis without warranties or guarantees, expressed or implied, of any kind including without limitation implied warranties of non-infringement, merchantability, condition (whether or not discoverable), usability, fitness for a particular purpose, or as to brand, identity or quality of the properties, materials, components, or workmanship. Any contingencies are at the sole discretion of the seller and will be outlined on the Foundation CREF property details page.
While Foundation CREF makes every effort to represent the properties to the best of our knowledge, Foundation CREF makes no warranty or guarantee of the property information. The property information and any photographs provided here are for reference only and are not guaranteed to be accurate. While every effort is made to convey verbal and written information, photos, and descriptions accurately, these are meant to be used only as guides. Foundation CREF Representatives are not professional photographers. Photos may or may not depict all the positive and negative characteristics of properties.
Properties may be subject to leasehold interests or other rights or claims of various tenants or other occupants, and Buyer may be subject to the United States Service Members Civil Relief Act, or other federal, state or local law, as applicable.
Affiliated Business Arrangement
This is to give you notice that Foundation CREF has a business relationship with AMIP Management. Specifically, Foundation CREF is majority owned by AMIP Management, a manager of investment funds owning real estate notes and properties that may be sold on this site. By purchasing a property listed on this site, or utilizing Foundation CREF for mortgage financing services, AMIP Management may receive a financial or other benefit. You are NOT required to use Foundation CREF for financing the purchase, sale, or closing of the subject property.
ACKNOWLEDGMENT: By clicking Accept, you acknowledge that you have read this disclosure form, and understand that Foundation CREF is referring you to purchase the above-described loan, property, or affiliated services and that AMIP Management and Foundation CREF may receive a financial or other benefit as the result of this referral.
Online Transaction Marketplace
Foundation CREF provides an online real estate transaction marketplace that allows for the bidding and transfer of properties. Foundation CREF does not hold itself out to be a real estate broker or agent, nor does it claim to act on behalf of buyers or sellers. Foundation CREF does claim to provide an efficient and sophisticated technology platform that allows sellers to advertise their properties to highly qualified buyers. Any listing brokers identified with a property on this site are agents of the Seller, not the Buyer. If a disruption of Internet bidding service (such as a power outage or other technical occurrence of any kind) occurs at the end of an event, Foundation CREF reserves the right to extend that particular event for a reasonable period of time as decided by Foundation CREF in order to provide bidders a fair chance to compete for the purchase of a property.
Notice to All Bidders: Foundation CREF is responsible to its Sellers with selling properties in a time efficient manner at the highest possible price. In all cases, it operates its business process with those two ideas in mind.
Final Bid and Purchase Contract Approval
If a property meets or exceeds its reserve price during the online bidding process, it will remain pending until the buyer executed purchase agreement and an earnest money deposit are received. Once the Purchase Agreement is fully executed by both Buyer and Seller, or Seller’s agent, it will be identified as Sold and the closing process will begin. Each Seller on this site reserves the right to have final approval of any and all Purchase Contracts submitted by any bidder, broker or agent, regardless of information provided by this site, any listing broker, or any Foundation CREF employee or affiliate to the contrary.
Negotiations and Post Offering Activities
Once online bidding concludes, neither the Seller nor Foundation CREF is under any obligation to negotiate with any bidder. All properties will be sold on a "first come, first served" basis with Seller, or Seller’s agent, making final approval of any transaction at their sole discretion.
Foreclosure Auction Listings
Foreclosure auction listings are not guaranteed to go to auction and may be cancelled at any point prior to the foreclosure auction start time. The loan may be subject to reinstatement prior to sale, or subject to a redemption period after the sale. Please review the documents section for important information on payment options for properties purchased at the foreclosure sale.
Responsibility to Inspect
Inspection of the property and its condition, whether via interior access or exterior drive-by only, is the buyer’s responsibility prior to bidding. Foundation CREF is not responsible for statements, written or verbal, made by the seller. Buyer should carefully validate all such statements by inspecting the property prior to bidding. Failure to inspect the property is not grounds for dispute. Buyer is to use their due diligence prior to bidding, as no offers or bids will be retracted. There is no refund for any reason. Buyer is fully aware there is no recourse to rescind or abrogate the transaction after becoming the highest bidder.
For occupied properties, any attempts to access the property or disturbance of the occupant may be considered trespassing. Physical access to the property will not be provided to conduct inspections prior to purchase. Buyer assumes all risk. Buyer assumes all responsibility and liability for any occupancy, and assumes all responsibility, liability and cost of taking possession.
Property Information and Bidding
Prospective bidders and interested parties may view information about a property by clicking the links to the Property Detail Page. Additional property information may also be available by clicking links within a particular Property Detail Page. If you elect to make an offer or bid on a property, you must be registered to do so. If you intend to bid on a property, it is highly recommended that you register at least 72 hours prior to the close of the bidding, just as a precaution against any potential registration delays. All bids are open and displayed for viewing by authorized users unless otherwise noted. You can bid from a property's Detail Page accessed from the main PropertyPortal or from your My Lists page, which displays saved searches and properties on your Watch List. The My Lists page is a valuable tool to monitor multiple properties that interest you.
Fairness of Online Auctions
Foundation CREF endeavors to offer properties on a fair and level playing field allowing bidders an equal and fair opportunity to compete. If it is determined by Foundation CREF that a property is won unfairly, for any reason, Foundation CREF reserves the right to 1) re-offer the property in a new round of bidding, 2) request a highest and best offer among the bidders or 3) return the property to the Seller and not sell it to any bidder.
Each site user shall act with honesty and integrity while on the site; otherwise, user privileges shall be revoked. Each bidder shall review and adhere to the Terms of Sale for each individual property listed on the site. Foundation CREF may suspend your account and seek legal remedies if it at any time the company suspects that either as a buyer or seller, you have committed or engaged in fraud or fraudulent activities relating to transactions on the site. Any bidder making fraudulent bids on this site or defaulting on properties won shall be banned from the site indefinitely without any recourse from the bidder.
Automated Bidding Feature
The auction countdown clock should be considered accurate but not exact. Many processes can affect what actual time a user sees on their screen such as computer processor speeds, internet connection speeds, etc., so we recommend that you do not wait until the last few minutes of an auction to place a bid. It is highly recommended that if you intend to place a bid, you should do so early to get a feel for the bidding process, and you should also use our automated bidding feature designed to allow the computer to bid for you at the end so you are assured of getting your bids placed. If you choose to wait until the last few minutes or seconds of the countdown clock to place your bid and your system lags or your bid does not get placed, Foundation CREF bears no responsibility for re-offering the property or causing your bid to be placed for you. If it is determined that there was a system issue that may have prevented a bid from being placed, Foundation CREF reserves the right to review all bids and possibly re-open the bidding on a property. This determination will be made on a case by case basis and is at the sole discretion of the company. The goal is to always provide a fair, level and transparent bidding environment for our authorized users.
Fees And Services
Currently, registration for the Foundation CREF website is free; however, we reserve the right to change our Site Terms at any time relating to fees and other items mentioned or not mentioned in this published document. Changes to the policy are effective after we have posted the new Site Terms for at least five (5) consecutive days. We may in our sole discretion change any or all of our services at any time. If a change occurs in a particular service, the fees for that service are effective at the introduction of the service. Each Property will be subject to an Internet Transaction Fee as defined in the description section in the Property Details Page, to be paid by the Buyer at the closing. The bidding will not reflect the Internet Transaction Fee; however, but the Purchase Agreement shall include the buyer's premium through an Addendum signed by both Buyer and Seller.
Payment and Account Information
In connection with our Sites, you agree to pay all fees and any other charges incurred in connection with the applicable user name and password (including any applicable taxes) at the rates in effect when the charges were incurred. When applicable, we may bill charges automatically to your credit card. All fees will be billed either at the time you register or as soon thereafter as fees or charges are incurred and may be nonrefundable, subject to our refund terms. As a Customer, you agree to provide us accurate and complete information, and to maintain it so that it is accurate and complete at all times. If any information you provide is inaccurate or incomplete, or if we reasonably believe so, we may suspend or terminate your access to and use of the Services.
There are no fees required to bid or make an offer on a property; however, you will need a valid credit card and execute a credit card authorization concurrently with a purchase contract. If you win a property and default on the contract, your credit card will be charged a default penalty fee of at least $500, and you may be banned from bidding on future property offerings on the site.
Discrepancies in Advertisements or Property Offerings
If there are any discrepancies between the terms and conditions outlined on this site and the terms outlined in the Purchase Agreement, the terms in the Purchase Agreement shall prevail, so read the Purchase Agreement carefully. All dates and times listed on this site supercede any advertisements or printed statements.
All properties are sold as is,” “where is,” “as available.” Foundation CREF makes no warranties or guarantees on properties sold on Foundation CREF. Foundation CREF, to the best of their ability, will assist a buyer and seller in helping to resolve a dispute. However, ultimately, resolutions are the responsibility of the buyer and the seller.
Tax and Licenses
All sales are subject to the sales and transfer tax and/or other applicable municipal, state and federal tax laws. Buyer assumes all responsibility for government issued licenses and/or inspection certificates as well as all required or associated licensing and inspection costs. No properties will be released to the buyer until payment is received in full by escrow or Seller. Payment in full includes the payment of all applicable sales or transfer tax or the submission of all appropriate tax exemption forms. Buyer agrees not to use any identification, trade name, licenses, and/or certificates belonging to or used by seller or Foundation CREF.
Foundation CREF's services are available only to individuals who can form legally binding contracts under applicable law. Foundation CREF's services are not available to minors or to previously suspended Foundation CREF users. If you opt to select any of the Foundation CREF Services offered or provided through our Sites you attest that you are over 18 years of age or otherwise have reached the age of majority and are of legal age to form a binding contract. Additionally, you must be a resident of the United States or satisfy all requirements of an International Buyer (non-United States resident) outlined herein. If you register as a business entity, by placing a bid, you represent that you have the authority to bind the entity to this Agreement and other real estate related agreements. Foundation CREF reserves the right to remove a bidder for not complying with the Foundation CREF Terms and Conditions prior to bidding or during the auction process, if needed.
Any buyer registering outside the Continental United States hereafter United States (US), will be considered an International buyer and subject to the following payment and removal terms:
All payments are required within the 48 hour deadline following the close of the auction via Bank Wire only and will include the settlement amount plus a processing fee. Bidding and payments are in United States currency (US) and are to be funded by either a US account or a US intermediary account. There are no exceptions or extensions, so plan accordingly for any international holiday that may prevent you from making payment as agreed. Only US holidays that would close US financial institutions are recognized.
Proof of identity and US funded financial contact information may also be required upon successful registration. No changes to invoices for foreign registration, taxes or exportation are permitted following the auction, so accounts need to be established using the same name and address as pertains to your foreign registration information and sales or transfer tax documentation. If payment is not received as agreed, you may be subject to liquidated damages and removal from future auctions or the site; as well as loss of the property purchased.
Certificate of Title Information
Buyer appoints Foundation CREF as its agent to accept delivery of the properly executed, marketable state-issued Certificate of Title with recorded liens properly released as outlined in the final Purchase and Sale Agreement. Buyer will receive a purchase receipt at time of sale. Buyer will be contacted the day of the auction via email in regards to titling information. Foundation CREF requires all title information including name(s) and complete address be communicated through email or any other written form, for our records. All titles will be endorsed as directed – no open titles will be issued.
Trustee's Deed (or equivalent transfer instrument) will be processed and mailed to Buyer after sale via certified US Mail or equivalent no sooner than fourteen (14) days after receipt of complete payment, unless otherwise noted in property description, regardless of payment type. There is a title processing fee, charged to the buyer, on all titled properties. Foundation CREF is not responsible for any lost titles.
Applicable Law, Jurisdiction and Venue
By using our Services, you agree that applicable federal law and the laws of the State of California, without regard to the conflict of law provisions thereof, will govern these Terms and any dispute of any sort that might arise between you and us. You agree that venue for any disputes shall be located exclusively in Orange County, California and expressly waive any right to claim that such forum is inconvenient.
Access to FoundationCREF.Com Website
Foundation CREF does not guarantee uninterrupted, secure access to FoundationCREF.Com. Foundation CREF is not liable or responsible for interruptions, terminations, or corruptions of any online audio feed, video feed, or other internet registration, bidding, or other online-related services that occur before, during, or in connection with the online or onsite auctions, regardless of the cause or fault. Buyer agrees to hold Foundation CREF harmless for any such interruptions or buyer’s inability to effectively use FoundationCREF.Com.
Please call 1-562-386-0450 with questions on how to be a Seller or Buyer
For as long as you remain compliant with all Terms as set forth herein, Foundation CREF grants you a limited, non-exclusive, non-transferrable, revocable license to access and use our Sites on any personal device that you own or control. This license also permits you to access and use any content, information, or related materials that are made available as a part of our Services. Any rights not expressly granted herein are reserved by Foundation CREF and Broker. This license does not permit you to rent, lease, lend, sell, redistribute or sublicense our Sites and Services.
Site Content and Materials
The information maintained on the Sites is intended to provide users with information about Foundation CREF’s products and services and is subject to change without notice. Not all of the Services described in the Sites are available in all geographic areas. No solicitation is made to any person utilizing our Services to use any information, materials, products or services in any jurisdiction where the provision of such information, materials, products or services is prohibited by law.
No Agency Relationship
These Terms do not create an agency relationship and do not impose a financial obligation on you or create any representation agreement between you and the referenced Broker.
Interest to Purchase
You have a bona fide interest in the purchase, sale, or lease of real estate of the type being offered through the Sites.
User Name and Password
To receive access to certain information or Services and be permitted to search and view certain data or information from the Multiple Listing Service (“MLS”) database via the Sites, you must register and establish a user name and a password, the combination of which must be different from those of all other registrants of Foundation CREF’s Services (“Account”). Additionally, you must maintain the security of the user name and password at all times, notify Foundation CREF in the event your user name or password is lost or stolen at any time, and agree to accept responsibility for all activities that occur under your Account. If you open an Account you will be considered a “Customer”. Your Account is not transferrable and use is limited to one authorized user per Account.
Valid E-mail Address
If you opt to register as a user on the Sites, you must provide a valid email address as part of your registration. You may be permitted to access certain portions of the Sites only after we have verified that the email address you provided is valid and your agreement to these Terms is confirmed.
We must at all times maintain a record of the name, telephone number and email address supplied by you, and the user name and current password of each registrant. Such records will be kept and maintained for not less than 180 days after the expiration of the validity of your password or otherwise.
If the MLS or Foundation CREF has reason to believe that the Sites, as defined herein, have been subject to a breach in the security of the data or a violation of MLS rules related to use by one or more registrants, we shall be required, upon request, to provide to the MLS a copy of the record of the name, email address, telephone number, user name, current password, and audit trail, if required, of any registrant identified by the MLS to be suspected of involvement in the violation.
Data Availability and Validation
Property listing data may be available from us through other means, and, in certain instances, may include additional property listing data where a seller has opted not to display its respective property through our Services. Information on the Sites is deemed to be valid and reliable, but is not guaranteed. It is your sole responsibility to independently confirm and verify all information upon which you may rely or use from the Sites. We do not review or approve listing enhancements.
All data and information obtained from our Sites is intended only for your personal use in evaluation of the purchase of Properties, and shall be used for no other commercial purpose.
Financial Obligation/Agency Relationship
Any agreement entered into at any time between you and the Broker or Foundation CREF that imposes a financial obligation on you or creates an agency representation of you by the Broker or Foundation CREF must be established and agreed upon separately from these Terms, must be prominently labeled and may not be accepted or entered into by you solely by mouse click, “click” agreement or any other form of non-signature method. The foregoing notwithstanding, you may enter into an agreement with Foundation CREF or the Broker using specific technology and software specially designed to comply with the Electronic Signatures in Global and National Commerce Act which permits you to create legally binding agreements through the use of electronic documents and signatures.
To the extent that you post public comments through our Services, you shall act appropriately and will not submit posts which are obscene, false, misleading, not in good taste, violations of Fair Housing or other laws, or which may constitute harassment of any kind. We reserve the sole right to remove any comments deemed to be inappropriate and reserve the right to immediately terminate your access to our Services.
Comments and Automated Market Value Estimates
The ability to write comments or reviews as to particular property offerings or the display of comments through a hyperlink, as well as the display of an automated estimate of market value of any listing, may be removed from the Sites, if applicable. However, we may opt to provide an automated estimate of market value of any property, as derived from non-MLS data sources, which we retain the right to display as a part of our Services and outside of property offerings.
In the event you find any property offering data or information from, through or as a part of our Services to be inaccurate or incomplete, you shall notify the Broker or the Foundation CREF Administrator identified on or within our Services. Regardless, it is your sole responsibility to independently confirm and verify all information upon which you may rely or use from the Sites.
Our Services and Your Responsibilities
All Services offered by Foundation CREF through its Sites are subject to availability and prices may vary.
Real Estate Brokerage and MLS Listing Services
Through a separate written agreement you may engage a real estate broker through the Services offered through the Site, including listing your property for sale and/or listing your property on a MLS. Any arrangements to provide real estate brokerage or MLS listing services will be governed by such separate written agreement between you and the selected real estate broker. You understand and acknowledge that you are not engaging us as your real estate broker or agent. You are responsible for reviewing, understanding and correctly completing all paperwork and complying with any terms and conditions of all agreements necessary and applicable to your engagement of a real estate brokerage or in connection with your use of MLS listing services. The terms of any agreement between you and any real estate broker/agent are not endorsed, recommended or otherwise known by us and do not change, alter or modify any of the terms agreed to between you and us. The Services offered through the Site, including MLS listing services, may not be provided in all areas. For details as to the Services offered, including the related pricing, please refer to the property details found within the Site.
Additional MLS Terms/Disclosures
The Sites may, from time to time, not operate as intended, at normal speed, with full functionality, or at all. In our sole discretion, the Sites and our Services may cease to operate for any amount of time, and limitations upon the functionality or use of such Sites and Services by the end user may result. Any decision to cease the activity of any one or all of our Services is solely at our discretion.
No Unlawful or Prohibited Use
As a condition of your use of our Services, you represent and warrant to us that you will not use our Services for any purpose that is unlawful or prohibited by the applicable terms, conditions, and notices. You may not use our Services in any manner that could damage, disable, overburden, compromise or impair our Services or interfere with any other party's use and enjoyment of our Services. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through our Services.
Site Administration and Submissions
We do not claim ownership of the materials you provide to us (including feedback and suggestions) or post, upload, input, or submit to the Sites (collectively "Submissions"). However, you hereby grant us (including, without limitation, our affiliates and necessary sublicensees) an irrevocable, perpetual, royalty-free, worldwide license to use all information you provide via posting, uploading, inputting, providing, or submitting your Submissions, in connection with the operation of our businesses, including, without limitation, the rights to: (a) copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate, and reformat your Submissions; (b) sublicense these rights in accordance with applicable law; and (c) provide the same to the relevant MLS, to administer and operate the Sites, and to investigate any breach of security of the property offering data or applicable MLS rules.
Linked Sites And Third Party Tools/Products
Links to websites, other than to our Sites, and/or the offering of third party products or tools are provided solely as suggested guidance toward information on topics that may be useful to users of our Sites and Services, and we have no control over, and expressly disclaim the endorsement of, the content on such websites or such tools or products. If you choose to link to a website or utilize a tool or product not controlled by us, we make no warranties, either express or implied, concerning the content of such site, tools or products, including the accuracy, completeness, reliability or suitability thereof for any particular purpose, nor do we warrant that such tools, products, website(s) or content are free from any claims of copyright, trademark or other infringement of the rights of third parties or that such site or content is devoid of viruses or other contamination. We do not guarantee the authenticity of documents on the Internet. Links to other websites do not imply, and we expressly disclaim, any endorsement of or responsibility for the opinions, ideas, products, information or services offered at such websites, or any representation regarding the content at such websites.
Aside from the property listing data provided to us by way of the respective MLS, Foundation CREF, its affiliates, successors and assigns, as the developer and host of our Sites, owns or licenses all other intellectual property rights related to our Sites, including the look and feel of our Sites and all underlying software, as updated and modified from time to time. You may not download and/or save a copy of any of the screens except as otherwise provided in these Terms. Except for the limited license granted herein, neither the Broker nor Foundation CREF grants any license or other authorization to the respective trademarks, service marks, copyrightable material, trade secrets or other intellectual property by placing or displaying them on or through our Sites.
You shall (i) never remove or destroy any copyright or other proprietary marking placed upon, contained with, or used in connection with our Services; (ii) never create or authorize new versions, modifications, enhancements or derivative works to, nor translate, reverse engineer, de-compile, disassemble or attempt to derive the source code of, the Sites and/or any of our Services or any portion thereof.
You shall not copy, screen scrape, redistribute or retransmit any of the data or information provided, except you may use the property offering data in connection with your purchase, sale, or lease of an individual property.
The subject real estate board, association, or MLS possesses all ownership, rights, licenses and intellectual property rights, including the copyright, in the MLS database compilation, and no rights are granted to you by virtue of registering to use our Services, except as expressly stated in these Terms.
Privacy, Confidentiality and Non-Disclosure
Please review the Confidentiality and Non-Disclosure Agreement. The Confidentiality and Non-Disclosure Agreement governs your use of our Services and explains our practices.
When you use our Services, you are communicating with us electronically. You expressly consent and opt in to receive communications from us electronically. We will communicate with you by e-mail, text, instant messaging, or other electronic means. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communication be in writing.
Consent to Electronic Records Agreement
You the (Customer) have the right to either Accept the terms of this agreement and grant your Consent to Electronic Record or you may Deny this agreement and withdraw your Consent to Electronic Records and deny any further action.
By accepting and granting your consent you have agreed be legally bound by these terms and conditions, including those terms and conditions incorporated by reference. Please read these terms carefully. If you do not accept these terms and conditions stated here without modification, you may not use the application. By accepting these terms of this agreement, you have granted the application and its users the right to transmit and or receive electronic information specific to this transaction through the application.
In the application, the customer must accept or deny their consent to electronic records before the start of the transaction. The customer can print a hard paper copy for your consent or you may ask the notary for an electronic copy of this consent. The customer is responsible to provide the electronic medium to copy the file: external drive, email address etc.
By clicking on the "Accept" button, you consent to electronically sign documents, acknowledge that you are reasonably demonstrating that you can access documents and that you have an active e-mail account from which you are able print or save documents. You are also confirming that you are authorized to, and do, consent on behalf of all other account owners named on your account, product or service, subject to applicable law.
The customer can obtain a copy of this consent at any time.
I have read and agree to the eSign disclosure and consent above in it’s entirely. By accepting these Terms and Conditions, I agree to receive electronic documents.
Our failure to exercise or enforce any provision or right set forth in these Terms does not constitute a waiver of that right or provision.
Foundation CREF may assign these Terms, in whole or in part, at any time with or without notice to you.
Disclaimer of Warranties
THE INFORMATION CONTAINED WITHIN OUR SERVICES AND ON OUR SITES, INCLUDING WITHOUT LIMITATION ALL TEXT, GRAPHICS, LINKS, TOOLS OR OTHER ITEMS ARE PROVIDED ON AN "AS IS", “AS AVAILABLE” BASIS. WE DISCLAIM ANY REPRESENTATION, WARRANTY OR OTHER ASSURANCE WITH RESPECT TO THE OPERATION, QUALITY, ACCURACY, SECURITY, COMPLETENESS, TIMELINESS, FUNCTIONALITY OR TITLE TO CONTENT PROVIDED OR DISPLAYED, INCLUDING THE PROPERTY LISTING DATA. ACCESS TO OUR SERVICES AT ANY TIME MAY BE INTERRUPTED, RESTRICTED OR DELAYED FOR REASONS BEYOND OUR CONTROL. NO WARRANTY OF ANY KIND, IMPLIED, EXPRESS OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, FITNESS FOR ANY PARTICULAR PURPOSE AND FREEDOM FROM COMPUTER VIRUS, IS GIVEN IN CONJUNCTION WITH OUR SERVICES, AND THEIR ATTENDANT INFORMATION AND MATERIALS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE DISCLAIM ALL RESPONSIBILITY FOR ANY CLAIMS, DAMAGES OR LOSSES (INCLUDING, WITHOUT LIMITATION, FINANCIAL LOSS, DAMAGES FOR BUSINESS LOSS, LOSS OF PROFITS OR OTHER CONSEQUENTIAL LOSSES) ARISING IN CONTRACT, TORT OR OTHERWISE FROM THE USE OF OR INABILITY TO USE OUR SERVICES OR FROM ANY ACTION TAKEN AS A RESULT OF USING OUR SERVICES, INCLUDING THE PROPERTY LISTING DATA. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY FOUNDATION CREF, ITS EMPLOYEES, AFFILIATES, LICENSORS, SERVICES VENDORS OR AGENTS WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE.
Limitation of Liability
Please confirm your agreement with the foregoing by checking the box below, whereupon this terms and conditions agreement shall become a binding agreement between you and Foundation.
Very truly yours,
FOUNDATION CREF LLC
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
In connection with the exploration of a potential transaction involving the sale of real property by American Mortgage Investment Partners Management LLC and its affiliates, partners or clients (“AMIP”), the financing of certain real properties by Foundation CREF LLC (AMIP and Foundation CREF LLC are collectively referred to as “Foundation CREF”) and the acquisition and financing of said certain real properties or notes by you (individually or collectively referred to as the “Transaction”), Foundation CREF is prepared to make available to you and your representatives certain information concerning the Transaction. As a condition to such information being furnished to you, your representatives and affiliates, you agree that you will, and will cause your representatives and affiliates to, treat the Information (as hereinafter defined) in accordance with the provisions of this agreement and take or abstain from taking certain other actions as set forth herein.
The term “Information” shall mean information relating directly or indirectly to (i) the properties to be sold and financed (the “Properties”) and (ii) any mortgage loans that encumber the Properties, in each case, which is delivered, disclosed or furnished by Foundation CREF or on its behalf to you or to your representatives, before, on or after the date hereof, regardless of the manner in which it is delivered, disclosed or furnished, or which you or your representatives otherwise learn or obtain, through observation or through analysis of such information, data or knowledge, and shall also be deemed to include all notes, analyses, compilations, studies, forecasts, interpretations or other documents prepared by you or your representatives that contain, reflect or are based upon, in whole or in part, the information delivered, disclosed or furnished to you or your representatives pursuant hereto.
Use and Disclosure of Information
You hereby agree that you and your representatives shall use the Information solely in connection with your evaluation of the Transaction, that the Information will be kept confidential and that you and your representatives will not disclose any of the Information in any manner whatsoever; provided, however, that (i) you may make any disclosure of the Information to which Foundation CREF gives its prior written consent, (ii) any of the Information may be disclosed to your representatives who need to know such information for the purpose of evaluating and conducting the Transaction, who are provided with a copy of this letter agreement and who agree to be bound by the terms hereof; provided that you will be liable for any breach of this agreement by such representatives (iii) you and your representatives are using the information as a principal and not as a broker in any capacity, and (iii) you may disclose any Information that is required to be disclosed pursuant to any court order or legal process.
Notwithstanding any other provision hereof, for purposes of this paragraph 2 the term Information shall not include information that (i) is or becomes generally available to the public other than as a result of a disclosure by you or your representatives, (ii) was within your possession and developed by you prior to it being furnished to you by or on behalf of Foundation CREF or (iii) becomes available to you on a non-confidential basis from a source other than Foundation CREF or any of its representatives; provided that such source does not owe a duty of confidentiality to Foundation CREF.
You agree that, prior to the closing of any Transaction, neither you nor any of your affiliates or any of your respective representatives will, without Foundation CREF’s prior written consent, directly or indirectly, (i) contact any borrower of any mortgage loan encumbering any Property or any occupant of any Property or (ii) enter in or on any Property.
Return and Destruction of Information
If you determine not to proceed with the Transaction, or at any time upon the request of Foundation CREF in its sole discretion and for any reason, you will as directed by Foundation CREF promptly deliver, at your expense, to Foundation CREF or destroy all Information (and any copies thereof) furnished to you or your representatives by or on behalf of Foundation CREF or its representative pursuant hereto. In the event of such a decision or request, all other Information prepared by you or on your behalf shall be returned or destroyed and no copy thereof shall be retained, and, upon Foundation CREF’s request, you shall provide Foundation CREF with, prompt written confirmation of your compliance with this paragraph. Notwithstanding the return or destruction of the Information, you and your representatives shall continue to be bound by your obligations of confidentiality and other obligations and agreements hereunder.
This letter agreement will remain in place and enforceable for as long as your user account on foudationcref.com is active and will terminate two years from the date your account becomes inactive either through written notice by you or suspension of the user account by Foundation CREF; provided that this agreement shall terminate with respect to the Information relating to any Property that is sold to you or your affiliates upon the closing of such sale.
No Representations or Warranties
You understand, acknowledge and agree that neither Foundation CREF nor any of its representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Information. You agree that neither Foundation CREF nor any of its representatives shall have any liability to you or to any of your representatives relating to or resulting from the use of the Information or any errors therein or omissions therefrom. Only those representations or warranties which are made in final definitive agreements regarding the Transaction, when, as and if executed and delivered, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
You agree that unless and until final definitive agreements regarding the Transaction have been executed and delivered by you, neither Foundation CREF nor you will be under any legal obligation of any kind whatsoever with respect to the Transaction by virtue of this letter agreement except for the matters specifically agreed to herein and that you shall not have any right to participate in the Transaction.
Nothing herein shall be deemed to grant a license, whether directly or by implication, estoppel or otherwise, to any Information.
No Waiver of Rights
It is understood and agreed that no failure or delay by Foundation CREF in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
It is understood and agreed that money damages would not be a sufficient remedy for any breach of this letter agreement by you or any of your representatives and that Foundation CREF shall be entitled to equitable relief, including, without limitation, injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach by you of this letter agreement but shall be in addition to all other remedies available at law or equity to Foundation CREF. You further agree not to raise as a defense or objection to the request or granting of such relief that any breach of this letter agreement is or would be compensable by an award of money damages, and you agree to waive any requirements for the securing or posting of any bond in connection with such remedy. You also agree that you shall reimburse Foundation CREF for all reasonable costs incurred in connection with the enforcement of this letter agreement (including, without limitation, reasonable legal fees in connection with any litigation, including any appeal therefrom).
This letter agreement shall be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be performed entirely within the State of California, without regard to the conflict of law provisions thereof.
This letter agreement contains the entire agreement between you and Foundation CREF regarding its subject matter and supersedes all prior agreements, understandings and arrangements between you and Foundation CREF regarding such subject matter.
This letter agreement may be waived, modified or amended only by the written consent of each of the parties hereto.
If any provision of this letter agreement is found to violate any statute, regulation, rule, order or decree of any governmental authority, court or agency, such invalidity shall not be deemed to affect any other provision hereof or the validity of the remainder of this letter agreement, and such invalid provision shall be deemed deleted herefrom to the minimum extent necessary to cure such violation.
All notices given in connection with this letter agreement shall be in writing and addressed to the parties at their addresses as set forth on the first page hereto or at such other address as a party designates by written notice to the other party.
Execution and Counterparts
This letter agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party. If any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
Please confirm your agreement with the foregoing by checking the box below, whereupon this letter agreement shall become a binding agreement between you and Foundation.
Very truly yours,
FOUNDATION CREF LLC