Vendor agreements with "hold harmless"

[TJSum]

I wanted to know what anybody thinks about notifying and useing a hold harmless with the client. I say this because the client is the one insisting on use of the conversion software. If they dont care , then I should not care either with a handy dandy hold harmless signed by client.

If there is no problem, then what worry do they have?

See my red above. Yes, that is what we have been told. But the clients I had that used Appraisal Port had no problems with me sending a PDF file instead of an AI Ready conversion each time I asked them. Most didn't know the difference between the conversion programs and a baloney sandwich. Why would they know or care, they just wanted to report so they could get on with it.

 

[DWiley]

FACT: E & O Companies (with the exception of Mr. Wileys) are saying DON'T AGREE

I said no such thing.

I said that my E&O carrier told me that agreeing to the new terms of use would not affect my E&O coverage for appraisal reports delivered via AP. Workbox posted comments from a LIA rep saying the same thing.

Yes, agreeing to the new terms of use does increase other kinds of risk if you are not already an AP user. However, if you are already an AP user, you had to agree to similar terms before. So, how much has changed? There may be a change in the awareness of risk since people are reading this thread, but has risk itself changed?

As for attorneys, any attorney that recommended agreeing to a hold harmless clause would not be representing the interest of his or her client.

One has to wonder just WHY it is that such a one-sided, heavy handed agreement was felt necessary by FNC. If they are not converting or otherwise intruding on reports, what are they so worried about?

Let's ask the same to all who have such terms. Has anyone asked the ice cream company why those delivering reports via an Xsite have to agree to hold harmless language? If Alamode is not converting/altering reports, what are they so worried about?

Why is it necessary to agree to such language if one uses Adobe software to create a PDF? If the conversion doesn't work properly (and it often doesn't), why should Adobe be held harmless?

Why do I have to agree to hold harmless language to use Courthouse Retrieval system? Their sales data contains many errors. Why should they be held harmless for that?

 

[Bearslide]

I said no such thing.

I said that my E&O carrier told me that agreeing to the new terms of use would not affect my E&O coverage for appraisal reports delivered via AP. Workbox posted comments from a LIA rep saying the same thing.

Yes, agreeing to the new terms of use does increase other kinds of risk if you are not already an AP user. However, if you are already an AP user, you had to agree to similar terms before. So, how much has changed? There may be a change in the awareness of risk since people are reading this thread, but has risk itself changed?

As for attorneys, any attorney that recommended agreeing to a hold harmless clause would not be representing the interest of his or her client.



Let's ask the same to all who have such terms. Has anyone asked the ice cream company why those delivering reports via an Xsite have to agree to hold harmless language? If Alamode is not converting/altering reports, what are they so worried about?

Why is it necessary to agree to such language if one uses Adobe software to create a PDF? If the conversion doesn't work properly (and it often doesn't), why should Adobe be held harmless?

Why do I have to agree to hold harmless language to use Courthouse Retrieval system? Their sales data contains many errors. Why should they be held harmless for that?

Pardon me - I thought you meant that YOUR E & O carrier had no problem with the agreement. If I mispoke, my apologies.

As to the rest of it, you persist in trying to compare apples to oranges. The agreements to which you refer are from SERVICE PROVIDERS and those agreements cover that service. I gave you the example: if alamode's servers crash and lose my vault files, I can't sue. If FNC screws up one of my reports, not only can I be sued, but I have to defend THEM.

The deck hands are not nearly as stupid as some would like to think and we understand the difference between apples and oranges.

BIG, BIG difference with those agreements and signing an agreement with a company who purportedly will deliver my appraisal and I am then liable for anything they do, their clients do or any other unknown participants may do. This is the most coercive such agreement I have ever seen and I ask again - why such heavy handed treatment if they have nothing to hide and are not "doing" anything to reports. I find it rather interesting - the lenders and AMC's I work for who do NOT convert reports do not have such agreements - they only seem to be coming from those who are "converting" - or demanding the appraiser do the converting. That right there tells me REAMS.

It is absolute insanity on the part of any appraiser who agrees to these terms.

 

[McPheeters]

The client gets a PDF made from the ENV. The appraiser can use the ENV tool that FNC posted to see it exactly as the client does. This can be done prior to transmission.

I have tested this by having a client to send me what they got.

As my favorite duck would say: To all:

This is interseting. The appraiser's client is not actually recieving what the conversion program is creating because the env file is being converted to a PDF? So the appraisal goes from native software file format to env to PDF then to the client.....un-frickin-believeable. Your kidding, right? Why??????? How 'bout we just bypass all this crap and send the PDF straight to the Client? Oh, I know, that would be too easy and make more sense. Would'ent want that, now would we... and by the way, AIReady is a POS program with extreme limitations; I know this because I've tried it.
And just to stay somewhat on topic, that "agreement" that AP wants you to sign is one sided and non-negotiable. It is unfair, obtrusive and anybody who signs it is NUTS!!!!! There, that was easy....

 

[Bearslide]

As my favorite duck would say: To all:

This is interseting. The appraiser's client is not actually recieving what the conversion program is creating because the env file is being converted to a PDF? So the appraisal goes from native software file format to env to PDF then to the client.....un-frickin-believeable. Your kidding, right? Why??????? How 'bout we just bypass all this crap and send the PDF straight to the Client? Oh, I know, that would be too easy and make more sense. Would'ent want that, now would we... and by the way, AIReady is a POS program with extreme limitations; I know this because I've tried it.
And just to stay somewhat on topic, that "agreement" that AP wants you to sign is one sided and non-negotiable. It is unfair, obtrusive and anybody who signs it is NUTS!!!!! There, that was easy....

Aye, the matey speaks it true...........

http://www.youtube.com/watch?v=g-r3eDioQTw&feature=related

 

[ockyappraiser]

I have read this entire thread and have come to a few conclusions:

first: some of you watch WAY too much Pirates of the Carribean
second: Mr. Wiley is correct in what he is trying to say a "hold harmless" is. I assume most of the appraisers on this forum have never owned companies with any significant assets. Prior to appraising I was co-owner of a number of radio stations. I have also owned two different mortgage companies and one sports broadcasting network. In every case, hold harmless clauses were involved with virtually ANY product or vendor we worked with.

There is a lot of confusion here on what even the term "hold harmless" involves. At its core what it is designed to do is to not allow you to sue the provider of a service if the service does not perform correctly. Appraisal Port is simply software. It is design to ANALYZE the appraisal and check for errors and then pass on to the client. (Try PCV Murcor's site as a good example of this).

At the heart of this debate is the big gorrilla in the room that is continually debated on these forums. That is: when I deliver the product (report) to the one that ordered it. . .do they have the right to do whatever they want with it?

Mr Wiley is also correct that if you make the decision to not sign any "hold harmless" clauses you are out of the residential mortgage business. And it will be even more so with the move to more and more AMC's.

Frankly, there are plently of apprisals out there that have plenty of FRAUD in them. These are the ones mortgage companies and MI companies are going after.

For the record, I have not signed the agreement. Also for the record, I don't see any real difference in it and many of the other "hold harmless" agreements that the other AMC's and vendors have.

Don't want to sign it? Don't. But don't scream at those that do as if they were "scabs" and taking away your business. Some appraisers will make a business decision and sign. Others will make a business decision and won't. And many that have commented will believe that the black helicopters are coming and take on new jobs as "full time forum posters" and wonder why the fax doesn't ring.

 

[Bearslide]

I have read this entire thread and have come to a few conclusions:

first: some of you watch WAY too much Pirates of the Carribean
second: Mr. Wiley is correct in what he is trying to say a "hold harmless" is. I assume most of the appraisers on this forum have never owned companies with any significant assets. Prior to appraising I was co-owner of a number of radio stations. I have also owned two different mortgage companies and one sports broadcasting network. In every case, hold harmless clauses were involved with virtually ANY product or vendor we worked with.

There is a lot of confusion here on what even the term "hold harmless" involves. At its core what it is designed to do is to not allow you to sue the provider of a service if the service does not perform correctly. Appraisal Port is simply software. It is design to ANALYZE the appraisal and check for errors and then pass on to the client. (Try PCV Murcor's site as a good example of this).

At the heart of this debate is the big gorrilla in the room that is continually debated on these forums. That is: when I deliver the product (report) to the one that ordered it. . .do they have the right to do whatever they want with it?

Mr Wiley is also correct that if you make the decision to not sign any "hold harmless" clauses you are out of the residential mortgage business. And it will be even more so with the move to more and more AMC's.

Frankly, there are plently of apprisals out there that have plenty of FRAUD in them. These are the ones mortgage companies and MI companies are going after.

For the record, I have not signed the agreement. Also for the record, I don't see any real difference in it and many of the other "hold harmless" agreements that the other AMC's and vendors have.

Don't want to sign it? Don't. But don't scream at those that do as if they were "scabs" and taking away your business. Some appraisers will make a business decision and sign. Others will make a business decision and won't. And many that have commented will believe that the black helicopters are coming and take on new jobs as "full time forum posters" and wonder why the fax doesn't ring.

Mr. Roberts;


With all due respect, if you have read the entire thread, how do you account for this?

QOUTE:
"As general counsel for Liability Insurance Administrators (LIA), I would like to make some clarifications regarding the commentary about AppraisalPort's agreement and E&O insurance coverage.

First, an appraiser's decision to sign the agreement -- like the signing of any contract containing an indemnity clause -- does not void an appraiser's E&O coverage with LIA. To the contrary, the appraiser's E&O coverage remains unaffected and in place. The appraiser still has the same degree of protection that he or she had before signing the contract. (This point is mentioned in the linked-to letter.) Thus, an appraiser sued for professional negligence in connection with an appraisal delivered through AppraisalPort would still be defended in the same manner under the policy (assuming all other regular terms and conditions of the policy are met and the appraiser maintains current coverage, etc.).

What an appraiser's E&O insurance does not cover is the additional, potential liability that the appraiser promises to assume in the indemnity language of the agreement -- the part, for example, that obligates an appraiser to pay for AppraisalPort's fees, costs, damages, etc. if AppraisalPort is sued (even if due to AppraisalPort's own negligence). Such potential liability for the appraiser would not exist in most cases except for the contractual promise made in the agreement and is potentially subject to exclusion. Like all professional liability policies of which I am aware, an appraiser's policy does not cover liabilities assumed by contract. Under this customary exclusion in professional liability policies, the additional contractual obligation assumed by the appraiser is not covered to the extent it exceeds the liability that would exist without the contractual obligation. But, again, as mentioned above, the appraiser's insurance is not voided and remains in place.

Having made the above clarification, I also want to state strongly that I consider AppraisalPort's terms and conditions to be grossly unfair to appraisers. The agreement contains the most one-sided indemnity provision that I have read in appraisal-related agreements -- going so far as to require appraisers to indemnify AppraisalPort for its own sole negligence. I would urge appraisers to show their dissatisfaction to AppraisalPort and Fannie Mae.

Peter Christensen "

Are you advocating that we ignore what the E & O carriers and various attorneys are telling us about THIS particular agreement? I have read many AMC "hold harmless" agreements - and this IS, by far, the most onerous of all of them.

Do you know something that the E & O carriers and attorneys who have reviewed this agreement don't? If so, we'll be happy to listen.

I don't believe anyone is trying to make anyone feel like a "scab". We are simply trying to alert fellow appraisers to the liability they face if they sign THIS agreement. Yo-ho..........

 

[Jonsey]

I have read this entire thread and have come to a few conclusions:

A conclusion is simply the place where you got tired of thinking.

first: some of you watch WAY too much Pirates of the Carribean

and maybe, you haven't watched enough, & should watch a few more....

second: Mr. Wiley is correct in what he is trying to say a "hold harmless" is. I assume most of the appraisers on this forum have never owned companies with any significant assets. Prior to appraising I was co-owner of a number of radio stations. I have also owned two different mortgage companies and one sports broadcasting network. In every case, hold harmless clauses were involved with virtually ANY product or vendor we worked with.

What has any of the above got to do with the price of beans or the particular hold harmless agreement under discussion?

There is a lot of confusion here on what even the term "hold harmless" involves.

I should say so, E & O carriers seem to be more clear about their opinions.

To All,

Like I posted in my post #35 over here......http://appraisersforum.com/showthrea...=1#post1668552

Ask the right questions. Is it voiding your E&O, or simply not having any sort of insurance at all, even if E&O is enforce, for an event that could literally bankrupt most appraisers in one fell swoop?

Signing a one-sided contract with indemnification and hold harmless clauses, that the other party refuses to negociate into a contract with balancing clauses for both parties to the contract, is signing a deal with the Devil. Don't complain later when he comes to collect.

Webbed.

Also refer to post #90

And it will be even more so with the move to more and more AMC's.

We are confronted with insurmountable opportunities.
Cats are smarter than dogs. You can't teach eight cats to pull a sled.

 

[ockyappraiser]

"What an appraiser's E&O insurance does not cover is the additional, potential liability that the appraiser promises to assume in the indemnity language of the agreement "

Do you have E and O yourself? Through LIA? I do. . .they are my carriers. What you are missing in his comments is that E and O NEVER covers this type of thing. E and O ONLY covers the appraiser on issues relating to errors in the report. It is not general liability.

Take E and O out of the equation. It is YOU who is comparing apples and oranges. A "hold harmless" effects the general liability side of the business, not the E and O. Frankly, I doubt many appraisers even carry general liability.

Does signing "increase" my exposure to a lawsuit. No. I am fully exposed just by leaving my house. What it does it prevent me from suing FMC or counter suing them when I am sued. It does not make me liable for what THEY do. You are stating that your appraisals are being "changed" when they go through the system in a way that opens you up to being sued.

Wiley is correct in asking you to produce the actual court cases.

You keep posting the same LIA statements. But you refuse to hear that this is a general liability issue, not e and o. Landy and LIA would not cover a general liability case regardless of what you sign. THAT is what LIA is stating.

And you really need to lose the pirate stuff

 

[Webbed Feet]

I believe that a fairly good number of people in this thread have helped establish what "hold harmless" means for everyone, not just Mr. Wiley. Next, I don't think tooting our own horns about our backgrounds serves to increase the validatity of any points we make, it only shows what big egos we have. And well, it kinda makes one wonder how the person doing it has managed to work their way down in life instead of up. After that, I personally think that expectations that only an appraisal with fraud in it could possibly generate a lawsuit, and anyone that does nice clean appraisals shouldn't worry, is rather naive. But that is just my opinion.

I think Mr. Wiley has made a good many valid points for consideration. But I also believe there is another side to the discussion he is not presenting. That is his choice and I respect it. Others want to present the other side and I respect that. I even respect snarky parting shots at the conclusion of people's posts because I just love a good rousing emotional debate full of color and life. Imagine the forum if we were all tactful and excruciatingly polite. .. How boring! ... We'd all be bowing back and forth so much no posts would be posted.



Webbed.