SFR NETWORK AGREEMENT
Secure Capital Network (“SCN”) provides software based services to help facilitate and automate private capital, asset-based real estate transactions through the SFR Network (“Software” and “Services”, as applicable). The network of members, transactions, and data maintained by SCN using the Software and Services is sometimes referred to as the “SCN System.” SCN is a technology provider and is not an investment advisor or fund manager, and does not recommend specific transactions or transaction types, and makes no representations or warranties as to the viability or quality of any transaction represented on the SCN System, or their suitability for participation by any particular member or lender.
This SFR Network Agreement (“Agreement”) is by and between Secure Capital Network, LLC, a Utah limited liability company and you, your heirs, agents, successors and assigns (“You” and “Your”), and is made effective as of the date of electronic execution. This Agreement sets forth the terms and conditions of Your use of the Software and Services and explains SCN’s obligations to You and Your obligations to SCN in relation to the Software and Services.
This Agreement and any additional SCN policies, together with all modifications thereto, constitute the complete and exclusive agreement between You and SCN concerning Your use of the SCN System, and supersede and govern all prior proposals, agreements, or other communications. By using the SCN System, You acknowledge that You have read, understood, and agree to be bound by all terms and conditions of this Agreement and any other policies or agreements made part of this Agreement by reference, as well as any new, different or additional terms, conditions or policies which SCN may establish from time to time, and any agreements that SCN is currently bound by or will be bound by in the future.
The Software and Services may be privately labeled to a third party; however, this agreement is between You and SCN.
1. TERM OF AGREEMENT; MODIFICATIONS.
Either party may terminate this Agreement upon at least five (5) days notice to the other party. You acknowledge that SCN may modify from time to time the terms of your continuing use of the Software and Services. You agree to be bound by any changes SCN may reasonably make to this Agreement when such changes are made.
You agree that You will be responsible for notifying SCN should You desire to terminate Your use of SCN's Services and to have your information removed from the SCN web site. In such event, SCN shall take commercially reasonable steps to remove Your information from the SCN web site, provided that such action may take up to 30 days after receiving such notice.
2. ACCURATE INFORMATION.
You agree to maintain accurate information by providing updates to SCN, as needed, while You are using SCN's Services. You agree You will notify SCN within five (5) business days when any change of the information You provided as part of the application and/or registration process changes. Failure by You, for whatever reason, to respond within five (5) business days to any inquiries made by SCN to determine the validity of information provided by You will constitute a material breach of this Agreement.
As a member of SCN, You understand that information provided by You may be used by other members to determine their interest in participating in an asset-based transaction. You represent and warrant that the information You provide on the SCN System will be complete, valid and true in all material aspects, to the best of your knowledge. Providing false or misleading information about Yourself or any transaction opportunity is grounds for immediate termination of your membership, and may also result in civil and criminal prosecution for fraud if such information was used by another member to engage in a transaction with You.
4. INTELLECTUAL PROPERTY.
You agree SCN holds all rights, title and interest in all Software and Services and all intellectual property, including other rights related to intangible property, related thereto, unless otherwise indicated. You acknowledge that no title or interest in such intellectual property rights is being transferred to You and You agree to make no claim of interest in any such Services or Software.
You understand and agree that all content and materials contained in this Agreement, other policies, the SCN web site, and any affiliated web sites, are protected by the various copyright, patent, trademark, service mark and trade secret laws of the United States, as well as any other applicable proprietary rights and laws, and that SCN or its licensor expressly reserves its rights in and to all such content and materials. You further understand and agree that You are prohibited from using, in any manner whatsoever, any of the content or materials described above without the express written permission of SCN or its licensor. No license or right under any copyright, patent, trademark, service mark or other proprietary right or license is granted to You or conferred upon You by this Agreement or otherwise.
5. USE OF SCN SOFTWARE.
SCN grants You a limited, non-exclusive, nontransferable and non-assignable license to use the Software for such purposes as are ordinary and customary.
You agree to not alter or modify the Software. You agree You are not authorized to combine the Software with any other software program or create derivative works based upon the Software. You further agree not to reverse engineer, decompile or otherwise attempt to uncover the source code.
SCN reserves all rights to the Software. The Software is the intellectual property of SCN. The source code and its organization are the exclusive property of SCN and the Software is protected by copyright, including United States Copyright Law. Except as expressly provided for in this section, this Agreement does not grant You any rights in the Software and all rights are reserved by SCN.
SCN PROVIDES THIS SOFTWARE "AS IS" WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6. MEMBERSHIP CLASSES; PRIORITY ACCESS TO SCN SYSTEM.
SCN reserves the right, in its reasonable discretion, to establish different classes of memberships with different rights, priorities, and privileges. Such membership levels may be based on time of enrollment, volume of business, transaction types, transactional experience, etc. Certain classes of members may have priority with respect to transactions made available to the SCN System.
7. FEES AND PAYMENT.
You may be charged a fee by SCN for becoming a member of the SCN System or for maintaining your membership. In addition, transactional, processing, or technology use fees may be charged by SCN or its associates for listing properties or for access to transactional opportunities or to other buyers or sellers on the SCN System. Other fees may be charged for use of data from outside data sources or for other Services provided. These fees may vary depending on the product edition you are using or other factors, and you will always have an opportunity to review and agree to these fees before they are incurred.
In connection with any transaction involving a property listed on the SCN System where SCN or its assocates have earned a transactional, processing, or technology use fee, you hereby irrevocably agree that such fees shall be paid directly from the sales or lending escrow for such transaction and by agreeing to the terms of this Agreement you are irrevocably authorizing and instructing the escrow company handling such transaction to pay SCN such fees from said escrow upon delivery to the escrow company of an escrow instruction generated by the SCN System without any further authorization or instruction whatsoever. In the event you or an affiliate incurs a transactional, processing, or technology use fee that is not paid through escrow to SCN, you hereby authorize payment of any earned fees by billing your credit card on file with SCN or other billing method.
8. NON CIRCUMVENT RESTRICTION.
In no event may You attempt to circumvent SCN with respect to members, contacts, relationships, or transactional opportunities introduced to you through the SCN System. Such restriction applies to follow-up, repeat, extended, or re-negotiated transactions, as well as the initial transaction, regardless of the success of the transaction.
You acknowledge and agree that any transaction introduced to you through the SCN System must be negotiated and completed through the SCN System, and that SCN is entitled to the following remedies with respect to any violation of such non circumvent obligation: (i) SCN may terminate Your priority rights, if any, in the SCN System, (ii) SCN may terminate Your membership in SCN, (iii) SCN will be entitled to the greater of ten percent (10%) of any consideration that is transferred from one party to another or such other amount as previously agreed to by the parties for successful completion of a transaction using the SCN System, and (iv) such other compensatory damages as may be available at law or equity.
The provisions of this Section shall survive for a period of twelve (12) months after termination of this Agreement.
9. CONFIDENTIALITY; NONDISCLOSURE; NONCOMPETE.
“SCN Confidential Information” means the following SCN information: SCN DealStream business model, web design, software, business plans, business methods, ideas, names, concepts, know-how, marketing data, technical data, strategies, and any other information generally considered confidential in nature, which is disclosed to, or learned or acquired by You during your use of the SCN System.
During the term of this Agreement, and for a period of twelve (12) months thereafter, You agree not to disclose the SCN Confidential Information to any third parties without the express written consent of SCN.
During the term of this Agreement, and for a period of twelve (12) months thereafter, You may not directly or indirectly, either alone or as an investor, shareholder, partner, associate, consultant, owner, agent, creditor, or co-venturer of any other person or entity, or in any other capacity, directly or indirectly, own, invest in, seek to acquire an interest in, or otherwise be involved in any business venture that (i) competes against SCN using a business model similar to the one used by SCN, or (ii) that uses the SCN Confidential Information to pursue business opportunities outside the SCN System. You agree that SCN is entitled to the following remedies for Your breach of this section: (i) specific performance, (ii) assignment of ten percent (10%) of Your profits and/or interests in the prohibited business venture, and (iii) compensatory damages as may be available at law or equity.
10. REPRESENTATIONS AND WARRANTIES.
SCN makes no representation or warranty for the accuracy of any of the information posted on the SCN System by another member or user regarding a proposed transaction. You hereby acknowledge and agree that SCN does not independently verify the accuracy of any statements or representations made by other parties using the SCN System. All information should be independently verified by the parties involved in a transaction prior to completion of a transaction.
You, or the individuals who electronically execute this Agreement on behalf of You hereby represent and warrant that they have the right, power, legal capacity and appropriate authority to enter into this Agreement, and that they own and have not transferred to any other person or entity any of the rights, claims or interests that are the subject of this Agreement. You represent and warrant that You are eighteen (18) years of age or older, or that You have an agent authorized by law to represent You who is eighteen (18) years of age or older who is entering into this Agreement on Your behalf. You warrant that each action You make is being done so in good faith and that You have no knowledge of it infringing upon or conflicting with the legal rights of a third party or a third party's trademark or trade name.
11. NO TAX OR LEGAL ADVICE.
You acknowledge and agree that SCN is not representing you with respect to legal, tax, accounting, real estate, securities, or lending matters. As a result, You hereby acknowledge and agree that You will seek Your own professional advisors, as you deem necessary, including attorneys, accountants, real estate brokers, investment advisors, mortgage brokers, etc., to assist You in evaluating any information contained on the SCN System, and that you will not rely upon any information that is deemed to have been made available by SCN.
12. LIMITATION OF LIABILITY.
Each member is responsible for investigating, negotiating, and completing his or her own transaction using the SCN System. Any investment decision made by You should be made only after completing the due diligence deemed necessary by You and the other parties to such transaction. You agree that SCN is not liable for losses or damages of any kind arising from a transaction represented on the SCN System.
IN NO EVENT SHALL SCN BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTIES, EITHER EXPRESS OR IMPLIED, ANY BREACH OF THIS AGREEMENT OR ITS INCORPORATED AGREEMENTS AND POLICIES YOUR INABILITY TO USE THE SOFTWARE OR SERVICES, YOUR LOSS OF DATA OR FILES OR OTHERWISE, EVEN IF SCN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Some states may not allow such a broad exclusion or limitation on liability for damages as contained herein. In such states, SCN's liability is limited to the full extent permitted by law. You agree that in no event shall SCN's maximum aggregate liability exceed the total amount paid by You to SCN for the particular Software or Service in dispute.
13. DISCLAIMER OF WARRANTIES.
SCN EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SUCH SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. SCN MAKES NO WARRANTY THAT ITS SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. SCN DOES NOT WARRANT, NOR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR RESULTS OF, ANY OF THE SERVICES IT PROVIDES, IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, IN WHICH EVENT THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU.
You agree to defend, indemnify and hold harmless SCN and its contractors, agents, employees, officers, directors, shareholders, attorneys, and affiliates from any loss, liability, damages or expense, including reasonable attorneys' fees, resulting from any third party claim, action, proceeding or demand related to Your (including Your agents affiliates, or anyone using Your account, software or services with SCN whether or not on Your behalf, and whether or not with Your permission) use of the Software or Services, information you submit to the SCN System, or Your breach of this Agreement or incorporated agreements and policies. In addition, You agree to indemnify and hold SCN harmless from any loss, liability, damages or expense, including reasonable attorneys' fees, arising out of any breach by You of any representation or warranty provided herein, or any negligence or willful misconduct by You. This indemnification is in addition to any indemnification required of You elsewhere. Should SCN be notified of a pending law suit, or receive notice of the filing of a law suit, SCN may seek a written confirmation from You concerning Your obligation to indemnify SCN. Your failure to provide such a confirmation may be considered a breach of this Agreement. You agree that SCN shall have the right to participate in the defense of any such claim through counsel of its own choosing. You agree to notify SCN of any such claim promptly in writing and to allow SCN to control the proceedings. You agree to cooperate fully with SCN during such proceedings.
15. RELATIONSHIP OF PARTIES.
It is expressly understood and agreed that You are not in any way or for any purpose a partner or a joint venturer with SCN. Furthermore, You are not an employee, agent or representative of SCN by virtue of this Agreement and Your use of the SCN System, nor shall You have any express or implied right or authority to assume or create any obligation or responsibility on behalf of SCN by virtue of this Agreement.
16. GOVERNING LAW, ARBITRATION; VENUE; WAIVER OF TRIAL BY JURY.
This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Utah applicable to contracts made and fully performed therein, without regard to conflicts of law principles requiring the application of the laws of any other state or jurisdiction. The parties agree that any controversy or claim between the parties to this Agreement, whether or not related to this Agreement, shall be settled by arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules. The parties also agree that the AAA Optional Rules for Emergency Measures of Protection (or similar rules) shall apply to the proceedings as shall the Expedited Procedures, regardless of the amount in controversy. Any controversy or claim between the parties to this Agreement shall be arbitrated in Utah County, Utah, before only one arbitrator. Judgment upon any award rendered by any arbitrator may be entered in any court having jurisdiction in Utah County, Utah. Nothing in this Agreement shall preclude any party from seeking equitable relief from a court of competent jurisdiction in Utah County, Utah. The statute of limitations, estoppel, waiver, laches, and similar doctrines which would otherwise be applicable in an action brought by a party shall be applicable in any arbitration proceeding. The arbitrator shall award the prevailing party its reasonable attorneys’ fees and arbitration costs (including the arbitrator’s fee and expert fees) as part of the award.
You agree that any action relating to or arising out of this Agreement shall be brought in the courts of Utah County, Utah. You agree to waive the right to trial by jury in any proceeding that takes place relating to or arising out of this Agreement.
You agree that all notices (including notices concerning breach of this Agreement) from SCN to You may be sent to either the e-mail or postal address You have on file with SCN. In either case, delivery shall be deemed to have been made five (5) days after the date sent.
Notices from You to SCN shall be made either by e-mail, sent to the address provided on the SCN web site, or first class mail to SCN's address currently located at:
Secure Capital Network, LLC
Attn: Legal Counsel
256 N. Main, Suite D
Alpine, Utah 84004
The headings in the Agreement are descriptive only and in the event of a conflict between a heading and the underlying terms of this Agreement, the terms of this Agreement shall control.
19. ENTIRE AGREEMENT.
You agree that the terms of this Agreement are severable. If any part of this Agreement is determined to be unenforceable or invalid, that part of the Agreement will be interpreted in accordance with applicable law as closely as possible. The remaining terms and conditions of the Agreement will remain in full force and effect.
The failure of SCN to enforce any of the provisions within this Agreement or its incorporated agreements and policies against You or others shall not be construed to be a waiver of the right of SCN thereafter to enforce such provisions.
22. FORCE MAJEURE.
SCN will make every effort to keep the SCN web site operational. However, certain technical difficulties and other factors outside of its control may, from time to time, result in temporary service interruptions. You agree not to hold SCN liable for any of the consequences of such interruptions.
Sections 4, 5, 8, 9, 10, 11, 12, 13, 14, 16, 20, and 23 shall survive any termination or cancellation of this Agreement.
24. NO THIRD PARTY BENEFICIARIES.
Nothing in this Agreement, express or implied, is intended to confer upon any third party any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
25. ACCREDITATION STATUS.
If you are joining the SFR Network as a lender or investor, You hereby represent to SCN that You, as a lender or investor, are an “accredited investor” within the meaning of Rule 501(a) of Regulation D under the Securities Act of 1933, promulgated by the Securities and Exchange Commission. You agree to provide, upon request, standard investment representations including without limitation, the conditions upon which you qualify as an accredited investor.