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Marketplace Listings - Broker/Owner Terms and Conditions

Scope

These Listing Broker/Owner Terms and Conditions (these “Terms”) apply to each listing (each, a “Listing”) of real property, mortgage notes, mezzanine notes or any other types of property (each, a “Property”) on RealINSIGHT Marketplace (“RIM”), which Properties are being marketed for sale on RIM by the owners of such Properties (each, an “Owner”) or parties that are duly authorized by such Owners to market and sell such properties through RIM (each, a “Listing Party”). “Buyer” means a person that submits an offer in response to a Listing that is accepted by the relevant Owner. Where appropriate, the terms “Buyer,” “Listing Party,” and “Owner” also refer to their respective Representatives (as defined herein).

CWFS-REDS LLC (“REDS”) holds an exclusive license to use and maintain RIM from CWFS Insight LLC (“RI”).

In addition to these Terms, RIM’s Terms of Use and Conditions (the “General Terms”) and Privacy Terms (the “Privacy Terms”), together with all other rules, policies and other requirements relating to RIM, any changes to the foregoing, as may be implemented by REDS from time to time, and any other agreement between REDS and Listing Party with respect to Listing Party’s use of RIM (including, without limitation, any Premium Listing Services Agreement and/or any Premium Services Order) (individually and collectively, the “Additional Terms”) are incorporated into these Terms by reference and shall apply to any usage of RIM by Listing Party. By using RIM and any related services, Listing Party agrees to be bound by these Terms and any Additional Terms.

From time to time, REDS may update these Terms and any Additional Terms by either posting the updated Terms or updated Additional Terms on RIM or by notifying Listing Party of any such update. The continued use of RIM by Listing Party following such an update constitutes Listing Party’s acceptance of any updated Terms or updated Additional Terms. In the event that Listing Party does not agree with these Terms or any Additional Terms, Listing Party’s sole recourse is to cease use of RIM (including removing any Listings submitted to RIM by Listing Party).

Registration

Only Listing Parties with an active registration and account may submit Listings to RIM. In order to register, Listing Party must provide the following:

Full name (or company name, as applicable)

Address

Phone number

Current email address

If Listing Party is a natural person, then confirmation that Listing Party is over the age of 18

If Listing Party is a licensed real estate broker, then Listing Party’s broker license number(s)

REDS reserves the right to accept a registration, waive registration requirements, require additional registration information or reject or terminate any registration of any party at any time in its sole and absolute discretion. For information regarding the disclosure and use of the information that Listing Parties provide through registration, please consult the Privacy Terms.

No registration fee is required to use RIM (subject, however, to any fees for Premium Services); however, REDS reserves the right to change this policy in the future.

Platform

(a) Listing Information

Listing Party shall be responsible for providing information about each Listing for inclusion on RIM including (i) photographs (unless REDS is providing such photographs for such Listing as a Premium Service), (ii) a marketing description to be displayed on the Property page for such Listing, (iii) any diligence documents that Listing Party would like to make available for users to review such as (A) copies of any leases and amendments, guaranties, and non-privileged correspondence related to the leases, (B) a rent roll, (C) operating statements and/or budgets for the Property for the current year to date and each of the prior three (3) calendar years; and (D) any other documents or information that Listing Party would like to include to successfully market and sell the Property (collectively, the “Listing Information”) and (iv) to the extent that Listing Party is a real estate broker, all disclosures required by any regulatory authority to be posted by a real estate broker in the jurisdiction(s) in which Listing Party is a licensed real estate broker (each, a “Broker’s Jurisdiction”).

(b) Confidentiality

Listing Party agrees that REDS may make any of the Listing Information available to users that have executed the “Bidder Confidentiality Agreement”, which is accessible to users on RIM.

(c) Contact Information

Listing Party understands and agrees that Listing Party’s name and contact information will be listed on each Property page on RIM. Listing Party will be listed as the primary contact for inquiries about each of its Listings and Listing Party agrees to provide its contact information to REDS, including its broker license number (to the extent applicable), and to be responsive to users making inquiries about such Listings.

Listing

By submitting a Listing to RIM, Listing Party covenants, represents and warrants that (i) such Listing is eligible to be listed on RIM, meaning that the listing is a commercial property and is for sale, (ii) Listing Party owns or has the right to market and sell the Property in the Listing through RIM, (iii) Listing Party or the relevant Owner is willing to sell the Property upon the terms and conditions specified in the Listing for such Property, (iv) Listing Party shall promptly update each of its Listings with any modifications and/or other information relevant to the Properties displayed in such Listings, and shall promptly notify REDS if a Listing has been sold or otherwise taken off the market so that REDS can remove such Listing from RIM, (v) Listing Party is solely responsible for all Listing Information and has all rights necessary to use such Listing Information (including, without limitation, the right to post such Listing Information on RIM), (vi) the Listing Information submitted through RIM includes, to the extent that Listing Party is a real estate broker, all disclosures required by any regulatory authority to be posted by a real estate broker in the applicable Broker’s Jurisdiction, (vii) the Listing Information does not infringe or otherwise violate any third party’s intellectual property rights or other rights and complies with all Federal, state and local laws and regulations; (viii) Listing Party shall not use RIM for any purposes other than marketing and selling the Property; (ix) no Listing or Listing Information includes any false, deceptive, or otherwise misleading statements or information; (x) to the extent that Listing Party is a real estate broker, Listing Party is a licensed real estate broker in the Broker’s Jurisdictions, possesses any additional licenses, certifications and other regulatory authorizations and has taken or will take any regulatory actions, necessary to allow Listing Party to sell any of the Properties through RIM (collectively, the “Regulatory Authorizations”) and shall maintain all Regulatory Authorizations during such time as Listing Party is using RIM for the purposes set forth herein; (xi) to the extent that Listing Party is not a real estate broker or is not licensed in the jurisdiction(s) in which a Property is located, Listing Party has retained a duly licensed listing broker for the Listing, and (xii) Listing Party shall not advertise any duplicate Listings on RIM.

To the extent that Listing Party is a real estate broker, Listing Party covenants and agrees that it shall immediately notify REDS if (i) any of the Regulatory Authorizations are terminated or no longer in effect; (ii) it has received any written notification that any of the Regulatory Authorizations may be terminated; and/or (iii) an event has occurred that can reasonably be expected to cause the termination of any of the Regulatory Authorizations. Notwithstanding the foregoing, where Listing Party is not licensed in a particular Broker’s Jurisdiction, Listing Party may engage a co-broker licensed in such jurisdiction to assist with the marketing and sale of the Property through RIM.

Listing Party acknowledges and agrees that the content of each Listing and the Listing Information is the sole responsibility of Listing Party and has not been verified by REDS, and REDS makes no representations whatsoever about the accuracy or completeness of any Listing or Listing Information. REDS reserves the right, in its sole and absolute discretion, to remove, modify or deactivate any Listing at any time and for any reason.

(a) License

Listing Party hereby grants to REDS a perpetual, non-exclusive, fully-paid-up, royalty-free, sublicensable, transferable and worldwide license to use any Listing Information submitted to RIM. Such license shall include REDS’s right to use the Listing Information (and modifications thereof) in websites and products affiliated with REDS and/or RIM.

(b) Premium Listing Services

REDS may offer to Listing Parties that are licensed real estate brokers, for a fee determined by REDS, certain premium services related to the marketing of Properties on RIM (such as professional photography, email advertising services and data vault access) (collectively, the “Premium Services”). If Listing Party is a licensed real estate broker and wishes to use such Premium Services, then Listing Party shall enter into a separate agreement with REDS for the provision of such Premium Services (each such agreement, a “Premium Listing Services Agreement”). In some instances, Listing Party may also be required to complete an online order form available through RIM in order to subscribe to certain Premium Services (each such order form, a “Premium Services Order”). Any Premium Services offered to Listing Party in accordance with the terms hereof, and any fees associated with such Premium Services, are subject to change from time to time in REDS’s sole discretion.

(c) No Guaranty

Listing Party understands and agrees that nothing contained herein or in any Additional Terms shall constitute a claim, representation, warranty or guaranty by REDS, whether express or implied, with respect to whether Listing Party’s use of RIM or the Premium Services will increase the likelihood that any Property will be sold. Listing Party further understands and agrees that any Premium Services are furnished as is, where is, with all faults and without warranty of any kind, express or implied, including any warranty of merchantability or fitness for any particular purpose.

(d) Insurance

At all times during the term of this Agreement, Listing Party shall maintain in full force and effect an errors and omissions policy or policies of insurance in a commercially reasonable amount. Upon request, certificates of such insurance policy or policies evidencing the coverage under each such policy shall be delivered to REDS.

Eligibility

The services offered on RIM are available only to individuals and entities that have the capacity and authority to form legally binding contracts. By using RIM, Listing Party (or, where Listing Party is an entity, the individual acting on behalf of Listing Party) represents that Listing Party (or such individual) (i) is over the age of eighteen (18) and (ii) has the authority and capacity to form legally-binding contracts. Use of RIM is prohibited for individuals under the age of eighteen (18) and for individuals and/or entities who or which are not actively registered on RIM or whose registration has been revoked and not reinstated.

Privacy Terms and Conditions

Use of RIM may require that Listing Party register and disclose certain Personally Identifiable Information (“PII”) through RIM. REDS will only store Listing Parties’ PII to the extent necessary for Listing Party’s use of RIM.

General Terms and Conditions

(a) DISCLAIMERS

NONE OF REDS, RI, AND/OR THEIR RESPECTIVE EMPLOYEES, AGENTS, REPRESENTATIVES, PRINCIPALS, AFFILIATES, DIRECTORS, ATTORNEYS, ADVISORS AND SUBSIDIARIES (“REPRESENTATIVES”) MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY PROPERTY, INFORMATION RELATED TO ANY PROPERTY, THE SUFFICIENCY OF ANY INFORMATION AND/OR DOCUMENTS ON RIM OR AFFILIATED WITH ANY LISTING, THE EFFECTIVENESS OF RIM FOR SELLING OR MARKETING PURPOSES OR THE FUNCTIONALITY OF RIM OR THE MANNER IN WHICH ANY Property IS PRESENTED ON RIM. Listing Party RELEASES REDS, RI, AND/OR THEIR RESPECTIVE REPRESENTATIVES FROM ANY AND ALL CLAIMS, WHETHER CURRENT OR FUTURE, AGAINST REDS, RI, AND/OR ANY OF THEIR RESPECTIVE REPRESENTATIVES. THIS WAIVER IS INCLUSIVE OF ANY AND ALL CLAIMS OF WHICH Listing Party IS CURRENTLY UNAWARE, REGARDLESS OF WHETHER SUCH CLAIMS WOULD AFFECT Listing Party’s RELEASE OF REDS, RI, OR ANY OF THEIR RESPECTIVE REPRESENTATIVES.

Listing Party WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542 (AND ANY OTHER SUBSTANTIALLY SIMILAR STATE STATUTES IN OTHER JURISDICTIONS), WHICH PROVIDES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

Listing Party agrees to indemnify, defend and hold harmless REDS, RI, and/or their respective Representatives (the “Indemnitees”) for, from and against any and all claims, damages, demands, actions, causes of action, costs, and liabilities, including expenses of litigation and attorneys’ fees and costs (collectively, “Claims”) arising out of or resulting from, either directly or indirectly, any negligent or wrongful acts or both, from Listing Party or from any acts done in direct violation of these Terms or any Additional Terms by Listing Party’s officers, employees or agents, including, but not limited to, the dissemination to any user or to any other person or entity of false or misleading information.

In the event that any claims are brought by any Indemnitee against Listing Party, which arise from these Terms, the General Terms, the Privacy Terms, and/or any Listing, Listing Party agrees to reimburse the Indemnitees for any losses incurred by such Indemnitees including, without limitation, any attorneys’ fees and costs, with respect to any such claims.

(b) Online Venue

RIM is a website used by Listing Parties to host the Listings. RIM itself does not function as a Listing Party or agent thereof.

(c) Refusal of Service; Cancellation of Listings

REDS reserves the right in its sole and absolute discretion to (i) refuse service to any individual or entity, at any time; (ii) impose conditions on submitting Listings to RIM or accessing RIM; (iii) cancel any Listing at any time, whether or not such Listing has already been listed on RIM; or (iv) prohibit any proposed Listing.

(d) Forum; Choice of Law

These Terms shall be governed and construed in accordance with the laws of the State of Maryland and any disputes arising under these Terms shall be adjudicated in the state and federal courts located in Maryland with the exception of disputes arising from, or in relation to, Properties located in the State of California, in which case such disputes shall be governed and construed in accordance with the laws of the State of California.

(e) Marketing; No Offer to Solicit or Sell

From time to time, REDS may provide marketing materials, including digital advertisements, emails, flyers, and postcards. These materials, and any information posted on websites, shall not constitute an offer to sell any Property or a guaranty that such Property will be sold.

(f) Waiver of Class Action

Any suit brought by an individual and/or entity against REDS, RI and/or any of their respective Representatives must be brought in that individual or entity’s sole capacity. Use of RIM and any associated services with respect to RIM constitutes a waiver of any class action proceedings.

(g) Intellectual Property

Any and all names, logos, trademarks, images and other marks displayed on RIM (collectively, the “Marks”) are the sole property of REDS or RI and may not be transferred to, or used or displayed by, any person without the prior written consent of REDS and RI. Where REDS and RI authorize such use, Listing Party shall include a trademark attribution notice giving notice of the ownership of such Mark(s) in the materials in which they appear.

(h) Compliance with Laws and Regulations

Listing Party and any of his, her or its associated broker(s), affiliates and representatives are responsible for compliance with all applicable laws and regulations, including, but not limited to, the procuring of all licenses, governmental certificates and permits and the filing of business applications and other papers and the payment of all fees or other charges as may be required by such laws, rules and regulations (collectively, “Legal Requirements”). By using RIM, Listing Party agrees to conduct himself, herself or itself fairly, honestly, and in good faith. Any attempts by Listing Party to use RIM in bad faith or in such a way that would violate any Legal Requirements may result in a complete and permanent revocation of Listing Party’s RIM registration. By using RIM, Listing Party agrees to refrain from submitting any harmful, misleading, fraudulent, or otherwise unlawful materials. Any offers for a Listing are void where such offers are prohibited by law. In the event that any Listing or sale of Property requires registration under any state securities law, such registration must be completed and verified by the applicable Owner in such Owner’s sole and absolute discretion prior to consummating any sale.

(i) Conflicts

In the event of a conflict between the provisions of these Terms and the provisions of any Premium Listing Services Agreement and/or Premium Services Order, the provisions of these Terms shall control in all respects.

Updated: April 14, 2020.