Elite Appraisal Management, Inc. terms and conditions service agreement.

This Residential Appraisal Services Agreement is entered into by and between Elite Appraisal Management, Inc. (also referred with in this agreement as Elite, Elite Appraisal) and the residential real property appraiser whose information is set forth in the appraiser profile with Elite, on the terms and conditions set forth below. Elite Appraisal and the Appraiser may be referred to individually as “Party,” and collectively as “Parties.”  

FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:  

  1. 1.SERVICES 

    1. a.Elite Appraisal hereby engages the Appraiser for the purpose of providing appraisal and related services, as more fully described in Exhibit A (“Services”), to Elite Appraisal on residential real estate pursuant to the terms and conditions specified in this Agreement. 

    2. b.To procure Services, Elite Appraisal will issue appraisal orders to Appraiser via an appraisal engagement letter through an automated assignment system operated pursuant to Elite Appraisal policy and in Elite's sole discretion. Using this automated system, Appraiser will, within 12 hours after receiving the appraisal order, either accept the order without condition, accept the order with conditions, or reject the order in full.   Appraisal orders that are not accepted by Appraiser within the 12 hours after the receipt of the assignment will expire, and be rerouted to a different appraiser.  Appraiser agrees to only accept Appraisal orders that Appraiser has the technical and geographic competency to complete.  Elite Appraisal reserves the right to evaluate and modify Appraiser’s coverage areas on the Elite appraisal panel if Appraiser declines an excessive number of appraisal orders. 

    3. c.Appraiser will perform the Services and meet the performance time frames and other standards specified in the Agreement and the applicable appraisal engagement letter.  Appraiser will not perform any Services other than those specified in this Agreement or in an applicable appraisal engagement letter.   

    4. d.Appraiser retains the sole and absolute discretion, control, and independent judgment of the manner and method that the Appraiser will use to perform the Services, subject to the terms of this Agreement or any applicable engagement letter, Elite Appraisal standards and operating procedures for Services, and subject to the Uniform Standards of Professional Appraisal Practice or professional requirements for appraisers under Applicable Law. Elite Appraisal reserves the right to amend Elite Appraisal’s standards and operating procedures for Services at any time upon reasonable notice to Appraiser. While performing Services, Appraiser will. 

      1. i.adhere to reasonable standards for conduct, appearance, cleanliness, and performance, and  

      2. ii.Not engage in any activity that constitutes gross misbehavior, willful misconduct, or any conduct that otherwise involves dishonesty, breach of trust, or threatened or actual violent behavior.  Appraiser will be subject to ongoing quality assurance reviews by Elite Appraisal to verify Appraiser’s continued competency. Appraiser agrees to fully cooperate with Elite Appraisal in performing such quality assurance reviews. 

    5. e.Materials.    

      1. i.Appraiser will provide to Elite Appraisal all completed and signed appraisals, including all data and related supporting documentation in accordance with this Agreement (“Deliverables”) upon request of Elite. 

      2. ii.Appraiser must be a state licensed or certified appraiser.   

      3. iii.Appraiser will deliver the Deliverables to Elite Appraisal pursuant to the terms of this Agreement or in the applicable appraisal engagement letter, and will notify Elite Appraisal promptly in the event that  

        1. 1.Appraiser experiences substantial difficulties or resistance regarding the examination of Property as agreed, or  

        2. 2.Appraiser believes that the Deliverables will not be delivered to Elite on the date requested. 

    6. f.During the performance of Services, Appraiser will use its independent professional judgment, and will not be influenced or produce Deliverables that reflect an opinion or conclusion other than the Appraiser’s good faith, expert determination on the valuation of the Property.  If, prior to or during the course of providing Services, the Appraiser believes that any person or entity (including without limitation Property owner/occupier, Elite Appraisal employee, or other third party) is attempting to influence the Appraiser’s conclusions regarding the Property, Appraiser will immediately notify Elite Appraisal and follow Elite's instructions regarding the Services.  If Elite Appraisal elects to have Appraiser cease performing Services, Elite will compensate Appraiser for work actually performed.  If the person attempting to influence the Appraiser is the appraiser’s contact at Elite Appraisal, Appraiser will pursue its obligations under this section with another Elite employee of equal or higher level within the Elite Appraisal organization. 

    7. g.No Exclusivity.  Appraiser understands that placement by Elite Appraisal on an Elite approved appraiser panel  does not constitute a guarantee to Appraiser of any minimum amount of appraisal orders or a minimum dollar value for Services apart from appraisal fees that are required under Applicable Law.  Elite Appraisal does not agree to use Appraiser exclusively, within a particular geographic region or otherwise, and Elite Appraisal will  only be obligated to use the Appraiser for those Services relating to an accepted appraisal order as specified in an applicable engagement letter.   

    8. h.Appraiser will not accept an appraisal order where Appraiser has a direct or indirect interest, financial or otherwise, in the property or transaction for which the appraisal is or will be performed.  In the event that the Appraiser learns of a potential conflict of interest while performing the Services, Appraiser will immediately notify the appropriate Elite Appraisal point of contact  and follow Elite Appraisal instructions regarding the subject Services.  If Elite Appraisal elects to have Appraiser cease performing Services, Elite will compensate Appraiser for work actually performed.   

Fees and Payment:

Elite Appraisal will consult the fee schedule you have provided to determine customary and reasonable fees for Services. In requesting Services from Appraiser hereunder, Elite will specify the fee that it has determined to be customary and reasonable for such Services.  If Appraiser agrees such fees are customary and reasonable at the time of Elite's request, Appraiser will accept the fees and the agreed-upon amount will be listed in the engagement letter.  Elite Appraisal will pay for accepted Services and Deliverables, typically within thirty (30-45) days after Elite’s determination of a compliant set of Deliverables. Appraiser will be solely responsible for paying, when due, all income taxes, including estimated taxes, incurred as a result of the compensation paid by Elite Appraisal to Appraiser for Services delivered under this Agreement.

Deliverables:

Appraiser acknowledges and agrees that all Deliverables that are developed under this Agreement shall be the property of Elite Appraisal exclusively and Appraiser shall have no ownership right or interest therein. Appraiser will not provide a copy or summary of any Deliverable to any third party without prior written authorization by Elite Appraisal.  

Notwithstanding the foregoing, and subject to the rights granted to Elite Appraisal herein, Elite acknowledges Appraiser is not granting to Elite any license in or to the software, processes, know-how or technology used by Appraiser in the creation of the Deliverables.  Within thirty (30) business days of the receipt of Deliverables, Elite Appraisal will review same and inform Appraiser of any request to provide further detail, substantiation, or explanation of the Appraiser’s analysis or conclusions, or any request to consider additional property information, or to correct errors in the appraisal report. Elite's failure to reject such Deliverables does not constitute Elite’s acceptance of same.  If Elite Appraisal determines that the Appraiser has breached this Agreement or an applicable engagement letter, Elite Appraisal reserves the right at its sole discretion to withhold compensation for the Services rendered.

Security:

Appraiser represents and warrants that Appraiser’s information security program that governs the performance of Services is designed and implemented to mitigate the risks related to the Services identified by either of the Parties, in a manner commensurate with the risk presented by or sensitivity of the Services and the Confidential Information disclosed to Appraiser. In addition, Appraiser agrees to maintain adequate controls in relation to the Services, and comply with all governing Elite Appraisal security standards relating to the Services and the protection of the Confidential Information.  The Parties agree that Elite Appraisal may modify the Standards upon written notice to Appraiser, and Appraiser will be responsible for modifying its own security planning/implementation to meet the new standards within a reasonable time thereafter. Regarding the Standards, the Parties agree:

Indemnity:

Each Party agrees to indemnify, hold harmless, and defend the other Party, and any employee or agent thereof (each of the foregoing being hereinafter referred to individually as the “Indemnified Party”) against all judgments, losses, payments, costs, expenses (including reasonable attorneys’ fees), damages, settlements, liabilities, fines, and penalties asserted by a third party against the Indemnified Party arising directly from or in connection with

(a) a claim, suit, action, proceeding or demand (“Claim”) brought against the Indemnified Party by a third party in connection with any act or omission of the Indemnifying Party or its agents in the performance of its obligations or warranties hereunder, or its breach hereof;

(b) Any death, bodily injury or property damage caused or incurred by the indemnifying party;

(c) the damage, loss or destruction of any tangible personal property or real property of an Indemnified Party caused by the Indemnifying Party; or the

(d) The negligent acts or omissions, or willful misconduct of the Indemnifying Party.  

Appraiser further agrees to indemnify, hold harmless, and defend Elite Appraisal, and any employee or agent thereof against all claims of intellectual property infringement arising from the Services or Deliverables provided hereunder.  Each party’s obligation to indemnify shall survive the expiration or termination of this Agreement by either party for any reason.  The Indemnifying Party shall conduct the defense in any such third party action arising as described herein with counsel reasonably acceptable to the Indemnified Party, who shall cooperate with such defense.

Warranties:

Appraiser will advise Elite Appraisal immediately of any investigation, proceeding, or action relating to any Appraiser’s license or certification.  Appraiser further warrants that the Services and Deliverables will not infringe any third party’s patent, copyright, trade secret, or other proprietary rights.  These warranties are cumulative of and in addition to any other warranties provided by Applicable Law.

Appraiser represents and warrants that the Services will be performed in a professional manner in accordance with terms contained in this Agreement and any applicable engagement letter.  Appraiser represents and warrants that Appraiser will perform its obligations under this Agreement in compliance with all applicable federal, state, municipal or other statutes, acts, ordinances, laws, rules, regulations, codes, standards, and applicable investor requirements in connection with the performance of Appraiser Services (“Applicable Law”) pertaining to the appraisal of real property, including without limitation to the regulatory requirements and professional standards pertaining thereto, and specifically the requirements specified in or established under Title XIV of the Dodd-Frank Wall Street Reform and Customer Protection Act, Title XI of the Financial Institutions Reform Recovery and Enforcement Act of 1989 (FIRREA), the Uniform Standards of Professional Appraisal Practice, and applicable state licensing

and/or certification requirements. Appraiser represents and warrants that Appraiser will perform Appraiser Services under this Agreement in compliance with Applicable Law.  Appraiser represents and warrants that Appraiser is and will remain a fully qualified and licensed and/or certified real estate Appraiser during the term of Services as a professional in his/her field, including but not limited to all required continuing educational programs that are necessary to remain in good standing with such certifications/licenses.

Confidential Information:

All Confidential Information and the results derived in any way from Confidential Information will at all times remain the sole and exclusive property of Elite Appraisal. Appraiser must use at least the same care to avoid disclosure of Confidential Information as it uses to protect its own most sensitive confidential information, but in any event it will employ no less than reasonable care.  Appraiser has established and will maintain commercially reasonable safeguards against the destruction, loss, alteration of or unauthorized access to Confidential Information in the possession of Appraiser, which safeguards will include policies for the disposal/destruction of any such data that are commensurate with the sensitivity of the materials to be disposed.  Appraiser will only use the Confidential Information to perform the Services under this Agreement.

“Customer/Consumer Information” is included within the concept of “Confidential Information,” and is defined as any and all information or data provided by, through or on behalf of Elite Appraisal or is otherwise acquired by Appraiser in the course of performing Services, about or relating to any

No Publicity:

Appraiser will not disclose the existence of this Agreement or the business relationship between Elite Appraisal and Appraiser to any outside third party (in writing or orally) in any manner without Elite Appraisal's prior written approval, by no lower than a Elite's Executive Vice President.  This restriction specifically prohibits, but is not limited to, the use of Elite Appraisal's name, likeness or logo.  By way of example and not limitation, Appraiser will not use Elite Appraisal's Identity, directly or indirectly, in conjunction with any other clients of Appraiser, any client list, advertisements, news releases or releases to any professional or trade publications without the aforementioned approval.    

Background Check:

Appraiser represents to Elite Appraisal that Appraiser has not been convicted of a crime of dishonesty, breach of trust, or money laundering, regardless of when the conviction took place (the concept of conviction for dishonesty includes participation in a pre-trial diversion program with respect to such a crime), or any felony within the past ten (10) years, or any crime involving violence or harassment. If Appraiser breaches this section, Appraiser shall immediately cease performing Services and inform Elite Appraisal in writing and Elite Appraisal has the right, in its sole and absolute discretion, to terminate this Agreement immediately and without penalty or remedy to Appraiser, in addition to all other remedies that may be available to Elite Appraisal by Applicable Law or under this Agreement.  

To the maximum extent permitted by Applicable Law, except for any damages payable pursuant to a party’s indemnification obligations and obligations regarding the protection of the Confidential Information, neither party will be liable for any special, indirect or consequential damages, including but not limited to, lost profits arising out of or related to this Agreement and the Services performed, even if the parties have knowledge of the possibility of such damages and whether or not such damages are foreseeable. Further, Appraiser is not responsible for and will not reimburse Elite for any losses incurred due to a reduction in value of the property related in any way to economic conditions resulting in a decline in real estate values or events occurring or circumstances arising after the date of the appraisal.

Appraiser enters into this Agreement, and will remain throughout the term of the Agreement, an independent contractor.  Appraiser is not and will not become an employee, partner, agent, or principal of Elite Appraisal as a result of this Agreement.  Appraiser shall not represent him/herself to others as a Elite Appraisal employee, agent, or partner.  Appraiser agrees that it is not entitled to the rights or benefits afforded to Elite's employees, including disability or unemployment insurance, workers’ compensation, medical insurance, sick leave, or any other employment benefit.  

Insurance:

Without limiting Appraiser’s liability to Elite Appraisal under this Agreement, Appraiser at its sole cost and expense, shall obtain, secure and keep in force during the term of this Agreement Commercial General Liability, Automobile Liability, and Errors and Omissions Insurance coverage.  In addition, Appraiser shall be required to obtain, secure and keep in force during the term of this Agreement Workers’ Compensation and Employer’s Liability as required under Applicable Law.

Audit:

Upon request, Appraiser will cooperate in providing to Elite Appraisal or its auditors (including any federal or regulatory auditors with jurisdiction over Elite Appraisal operations) any information related to Appraiser’s performance under this Agreement.  In addition to these audit obligations, Elite may also from time to time submit to Appraiser requests for information or documentation to demonstrate that the Services are being performed consistent with Elite's vendor management program, and Appraiser agrees to use commercially reasonable efforts to comply with any related requests in a timely fashion.  Elite Appraisal will group any such requests to minimize the disruption to Appraiser. This Agreement will be construed as having been made in, and will be governed in accordance with the laws of, the State of Michigan, excluding any conflict or choice of law provisions.

Disputes:

The parties will endeavor to amicably resolve any dispute, controversy or claim arising out of or related to this Agreement, or breach thereof.  In the event, however, that any dispute, controversy or claim cannot be amicably resolved, it shall be finally settled by binding arbitration.  Such arbitration shall be conducted by the American Arbitration Association in the state that has been agreed as the governing law under that organization’s commercial arbitration rules.  The expense of the arbitration, including without limitation costs for the arbitrator(s) and the prevailing party’s expenses and attorneys’ fees, will be borne by the losing party.  The parties agree that the award of the arbitrator shall be the final, sole and exclusive remedy between them regarding any claims, counterclaims, issues or accountings presented or pled to that arbitrator; that it shall be non-appealable; that any monetary award shall be promptly paid, free of any tax, deduction or offsets; and that any costs, fees or taxes incident to enforcing the award shall be charged against the party resisting such enforcement.  Judgment upon the award of the arbitrator may be entered and enforced in any court having jurisdiction.

This Agreement represents the entire understanding of the parties regarding the Services, and supersedes all prior or contemporaneous understandings or negotiations, whether oral or written implied or express, including without limitation any agreement Appraiser or its predecessors in interest may have had with Elite Corporation under an Appraisal Services Agreement or similar engagement document with any predecessors in interest to Elite Appraisal.  Any modification to the Agreement or any document entered into under this Agreement will require a writing signed by both parties.  If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable by a court or tribunal of competent jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.

Delivery Time:

Appraiser will meet the delivery times set forth in the appraisal engagement letter.

Back-up Processes:

In the event that the Elite Appraisal automated system is unavailable for any reason, Appraiser may contact Elite using the contact information contained in the applicable Appraisal engagement letter.

Appraiser agrees that each report will include attachments, photos, addenda, etc., as required for each product. Reports will be submitted via the Elite Appraisal website application. If Appraiser is not setup for Elite Appraisal Website, contact your Appraiser Relations representative for additional information.  

Appointment Times:

Appraiser agrees to provide notification of the appointment time for the subject property within 24 hours of receipt of appraisal order. Appraiser shall schedule inspections no later than 48 hours from the original order time unless access to the property is not available within that timeframe at which time will be communicated to Elite Appraisal the scheduled date/time of inspection. The special instructions section of the Elite order will contain any specific appointment instructions. Elite Appraisal must be notified of any homeowner/borrower delays.