SERVICE TERMS & CONDITIONS

Last updated January 16, 2024

These Terms and Conditions (referred to herein as the “T&Cs”) outline the service agreements you (referred to herein as the “Client”) are making with CREtelligent. By accepting these Terms and Conditions, you are establishing a binding service agreement for the Services. Each Service shall be subject to all the terms and conditions contained herein.

SERVICES: CREtelligent will provide consulting services (Services) to Client as agreed upon and in accordance with the terms within this agreement. CREtelligent’s performance of the Services:  CREtelligent covenants with Client to (a) use its best efforts, skill, judgment, and abilities in performing the Services, (b) cooperate with Client and Client’s agents, employees, and/or other designated representative(s) of Client, and (c) perform in accordance with Client’s requirements and procedures.  CREtelligent agrees to observe and comply, at its own expense, with all applicable laws, regulations, ordinances and other rules.

OWNERSHIP OF, USE OF, AND RELIANCE ON DOCUMENTS AND MATERIALS:  All designs, drawings, specifications, notes, data, materials, reports and other work developed or provided under these T&Cs are the property of the Client and for the exclusive use of the Client for the Job Order.  CREtelligent will not, without Client’s authorization, reuse or distribute or convey Client’s work information or reports to the persons or organizations, other than individuals who are required to have such work, information, or reports in order to fulfill their respective obligations to Client for the Job. Client hereby grants to CREtelligent a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Client Data and perform all acts with respect to the Client Data as may be necessary for CREtelligent to provide the Services to Client.

All reports, whether verbal or written, are for the sole benefit of Client, its affiliates, successors and assigns, as well as any lending institution involved in securing financing for the benefit of Client with respect to the subject property.  Any other party that desires to rely on such report must first obtain written permission from CREtelligent.  Such written permission may be subject to additional fees, terms, and conditions.  In the absence of any such written permission from CREtelligent, no such other party shall have any right to recourse or recovery against CREtelligent, its officers, employees, vendors, successors, or assigns.

SITE ACCESS:  Client shall secure the permission necessary to allow CREtelligent’s personnel and/or subcontractor’s access to the Job site at no cost to CREtelligent.

LIMITATION OF LIABILITY:  The total liability in the aggregate of CREtelligent and CREtelligent’s officers, directors, employees, agents, independent professional associates and consultants, and any of them individually, to Client and anyone claiming damage by, through, or under Client, for any and all injuries, claims, losses, expenses, or damages, whatsoever arising out of or in any way related to CREtelligent’s services, from any cause or causes whatsoever, including but not limited to, the negligence, errors, omissions, strict liability, breach of contract, or breach of warranty of CREtelligent, or CREtelligent’s officers, directors, employees, agents, or independent professional associates or consultants, or any of them, shall not exceed the total amount received by CREtelligent from CLIENT as payments for the services provided in connection with this agreement; provided however, that to the extent that any such injuries, claims, losses, expenses, or damages are covered by insurance carried by CREtelligent, the total liability, individually or in the aggregate, for such claims, losses, expenses, or damages so covered shall not exceed CREtelligent’s coverage limits for such applicable insurance coverage.

In no event, shall either party be liable for special, indirect, or consequential damages, including but not limited to, loss of profit, loss of investment, loss of product, business interruption, or liability for the loss of use of facilities, or Client’s existing property, however the same may be caused.

INDEMNIFICATION:  Each Party shall hold harmless, and indemnify the other Party and its directors, officers, agents and employees against any and all loss, liability, damage, or expense, including any direct, indirect or consequential loss, liability, damage, or expense, including reasonable attorneys’ fees, for injury or death to persons, including employees of either Party, and damage to property, including property of either Party, arising out of or in connection with intentional, willful, wanton, reckless or negligent conduct regarding the services or deliverables. However, neither Party shall be indemnified hereunder for any loss, liability, damage, or expense resulting from its sole negligence or willful misconduct.

 REMEDIES:  All disputes between Client and CREtelligent shall be subject to non-binding arbitration. Either party may demand arbitration by serving a written notice stating the essential nature of the dispute and the amount of time or money claimed and requiring that the arbitration proceeds within sixty (60) days of service notice. The arbitration shall be administered by the American Arbitration Association or by such other person or organization as the parties may agree upon. No action or suit may commence unless the arbitration does not occur within ninety (90) days after service of notice, the arbitration occurred but did not resolve the dispute, or statute of limitation would elapse if suit was not filed prior to sixty (60) days after service of notice.

GOVERNING LAW:  These T&Cs shall be governed by and construed in accordance with the laws of the State of California (without regard to its conflicts of law’s provisions).  The parties hereto hereby agree that venue of any action under these T&Cs shall be exclusively in Sacramento County, California, and that these T&Cs are performable in part in Sacramento County, California.  Information, estimates, and opinions furnished to CREtelligent during the course of the Services, and contained in the Deliverables, will be obtained from sources considered reliable and believed to be true and correct.  However, CREtelligent makes no independent investigation as to such matters and undertakes no responsibility for the accuracy of such items.  All emails, accompanying documents, and signatures shall be treated as original documents and shall bind and inure the parties involved in these T&Cs.

DATA RENTENTION: CREtelligent retains ownership rights over the data acquired and used during the due diligence process. CREtelligent further retains the right to use such data during the course of work in future assignments. This data is independent of and does not include any loan-level detail provided by the Client.

FEES & PAYMENT

 PAYMENT DETAILS:  Customer must pay all fees and charges in accordance with this Agreement and each mutually executed Order Form and SOW (“Fees”). Except to the extent otherwise expressly stated in this Agreement, or in an Order Form or SOW:

1. all obligations to pay Fees are non-cancelable and non-refundable (except as specifically set forth in this Agreement);
2. Customer must make all payments without setoffs, withholdings, or deductions of any kind.
3. Customer must pay all Fees due under all Order Forms and SOW when the Customer receives each invoice (invoices are deemed received when CREtelligent emails them to Customer’s designated billing contact); and
4. all payments must be in U.S. dollars.

Except to the extent otherwise expressly stated therein, if an applicable Order Form or SOW provides for payment via credit card or electronic money transfer (e.g., ACH), CREtelligent is permitted to process such payment on the date of invoice.

BONA FIDE PAYMENT DISPUTES:  Customer’s failure to pay some or all of an invoice in good faith shall not constitute a breach of this Agreement (or the relevant Order Form(s) and/or SOW), or justify imposition of any late payment or collection fees or suspension of the Service, for as long as Customer satisfies all of the following requirements:

1. Customer reasonably believes the amount shown as due on the relevant invoice is greater than what actually is due under the express terms of this Agreement and the applicable Order Form(s) and/or SOW.
2. Customer provides reasonably detailed written notice to CREtelligent, within fifteen (15) days of receiving the disputed invoice, explaining the basis of Customer’s dispute of the invoice (the “Bona Fide Payment Dispute Notice”).
3. as of the date Customer provides the Bona Fide Payment Dispute Notice or the due date of the original invoice (whichever is later), Customer has paid all undisputed amounts in accordance with this Agreement and the applicable Order Form(s) and/or SOW.
4. Customer only withholds payment of any Fees that are the basis of a dispute.
5. Customer makes a commercially reasonable, good faith effort to negotiate and resolve such payment dispute within thirty (30) days after providing the Bona Fide Payment Dispute Notice; provided CREtelligent also makes a commercially reasonable, good faith effort to negotiate and resolve the payment dispute within the same timeframe.
6. Customer promptly makes full payment of all amounts within ten (10) days after resolution of any dispute.

CREtelligent shall have the right to impose applicable late payment and/or collection fees, suspend Customer’s access to the Service, and/or terminate the relevant Order Form(s), SOW and/or this Agreement for cause, in accordance with this Agreement, if at any time Customer fails to satisfy any of the criteria set forth in Subsections 8.2 (a)-(f).