Vendor agreements with "hold harmless"

[Bearslide]

[/list]Please note how both "acts" and "data" are undefined. After everything said by others on the forum in the two threads, what I have posted and the links to articles that explain indemnification and hold harmless, I only have two questions.


Who still does not understand what the above means, and who is going to sign anything similar to the above?


Webbed.

HEAR, HEAR, HEAR.........a true pirate...heed his words, or ye'll be swabbin' the decks while the port wallows in gold...........

http://www.youtube.com/watch?v=vdEqiHBP-g4&feature=related

 

[DWiley]

We know how busy you must be, Danny, but you keep missing this. 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...

And you must have missed the post where I said that ALL such clauses are inherently unfair. This includes the AP agreement, the agreement Alamode requires for use of Xsites, the agreement that Adobe requires to use Acrobat, your MLS agreement, etc. They are all unfair.

That said, Pam's suggested solution - avoiding all such clauses - is simply not realistic. Anyone who refused to agree to any hold harmless agreements could not be a residential appraiser. Look closeley at the agreement to use your forms software, the agreement for the data services you use, etc. Almost all agreements have clauses like this. Refusing to agree to any hold harmless agreements would mean that you would not have the basic tools needed to do the work.

Some who have been using AP have said that they will no longer use AP because of the hold harmless clause. That tells me that they have not been reading the things they have agreed to. The hold harmless language has been part of the agreement since the first day AP was active. Those appraisers have almost certainly agreed to other hold harmless/indemnification agreements that they are unaware of.

Webbed said

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?

What to do? Well, IMO, a good business person carries a robust general liability insurance as well as E&O insurance. If you are working without such insurance, I recommend reconsidering that decision. Otherwise, as Webbed said, one incident could bankrupt most.

 

[Jonsey]

As for the Foundation and the ASC, if you want their opinion you need to contact someone affiliated with one of those groups. I am not, and I cannot speak for them.

DW

Do u mean.....these AFoundation - Industry Advisory Council "groups"

http://www.appraisalfoundation.org/s_appraisal/doc.asp?CID=62&DID=259

Yes, I would like to read a statement from the lenders participating in the
IAC regarding the revised "Port" agreement.

 

[Jonsey]

And you must have missed the post where I said that ALL such clauses are inherently unfair. This includes the AP agreement, the agreement Alamode requires for use of Xsites, the agreement that Adobe requires to use Acrobat, your MLS agreement, etc. They are all unfair.

Hmmmmmmmm. Can u cite any cases where an Appraiser, as end users have been sued or brought up on charges by their local boards due to signing hold harmless clauses contained in Alamode, Adobe or the MLS purchase agreements.

 

[Mike Kennedy]

FNC / APPRAISER FIRESTORM AGAIN ........... Appraisalport User Contract

http://www.workingre.com/workingre/fnc-appraiser-firestorm.html


Neil Olson, Chief Legal Officer for FNC says, “Like every other website where transactions occur, there is a user agreement (in place) with all of its users. We periodically review these agreements and make appropriate changes to reflect new circumstances, just as every other technology provider. As a result, AppraisalPort issued an amended user agreement that will become effective in September 2008.

This user agreement is almost the same as the one it replaces. Appraisers may not sign up for or use AppraisalPort without agreeing to the AppraisalPort agreement. When the new agreement becomes effective in September, all AppraisalPort users will then be subject to the new version of the agreement.”

According to Olson, appraisers have it wrong. “AppraisalPort does not convert anything. Lenders use AppraisalPort to transmit requests and appraisers transmit reports back,” Olson said.

“We don’t do anything to a report. What the appraiser sends is what the lender gets. All conversions are done by the appraiser.

Sometimes there are formatting issues in the conversionthat arise that appraisers need to check for; sometimes the lender does not give the reviewer the whole report.


Appraisers are responsible for making sure the report they send is complete when they send it.


Whatever appraisers give us is what is handed over to the lender.”

 

[DWiley]

Mr. Wiley: Have you signed AP's "agreement"?

Mr. Woolley,

As I said earlier, how people choose to run their business is a private matter. Whether I have or have not signed the agreement is no one else's concern.

Your question did motivate me to do a litle research. I just uploaded an appraisal report to a web portal (not AP) for delivery to regional lender. I looked back through the file and did some additional research to attempt to idenitify how many hold harmless/indemification clauses I had to agree to in order to produce and deliver that report.


Counting just the agreements required to produce and deliver that one report, I found 15 of them, and I probably missed some. I had to sign one in order to:

• use the basic forms software
• use the mapping software
• use the sketch software
• use the portal
• create the PDF
• apply the digital signature

Just obtaining the data I used to do my analyses required agreeing to 7 different hold harmless/indemnification agreements. If I followed the advice in the OP, how could I even produce an appraisal report?

Perhaps some have been working totally unaware of the things they have agreed to and the liability they have taken on. These hold harmless/indemnification clauses are far more common than most realize. Anyone working without a good general liability policy is playing with fire.

 

[DWiley]

Can u cite any cases where an Appraiser, as end users have been sued or brought up on charges by their local boards due to signing hold harmless clauses contained in Alamode, Adobe or the MLS purchase agreements.

Can you cite any such cases involving a web portal?

The OP stated VERY strongly that appraisers should refuse to agree to ALL such clauses. I am saying that I don't think that is realistic advice in today's world.

I am an appraiser. I answer questions by looking at the data. AP has existed nearly a decade, and the web site says they currently deliver 150,000 reports per month. Given these millions of transactions, where is the data showing me appraisers who have been harmed by agreeing to the AP terms of use?

Everyone has to run their business as they see fit. Do what you think is best, but do so based on facts. To any appraiser that chooses not to agree to any hold harmless/indemnification agreements, I wish you well in your new career.

 

[Lobo Fan]

Will FNC/AP be liable for altered reports? If they redact or fail to put through a report exactly as it was delivered are they still responsible? We all know they have been data mining for years. The issue is an altered report. If someone goes forward with FNC/AP I would suggest keeping a hard copy of the report in the file.

I wonder if they are trying to duck responsibilty for altering reports and the possible ramifications of an altered report.

 

[Workbox]

So if it is not any of our concern if you did or did not sign the AP agreement, then why are so full heartily defending it as it is OK for all of us to sign it, when you can not admit it yourself?

Unless, you have something different than what most do?

 

[Mike Kennedy]

Quoting Mr. Olsen from the article above:

"Appraisers are responsible for making sure the report they send is complete when they send it.

Whatever appraisers give us is what is handed over to the lender.”

OPINION: The ONLY way to ascertain IF that assertion is Accurate is for a LENDER which has received an appraisal report via Aport .......to produce HARD COPY which will END THE DEBATE once and for all - assuming what WAS SENT was actually received by the Lender in the EXACT format sent .............WHICH must be totally USPAP compliant.

Any LENDER Compliance Officer, Head Underwriter, Appraisal Processing Manager (or others) in possession of same PLEASE DO extract the confidential identifying info and POST IT HERE.

Thanks.

Should Readers/AF Members not wish to post it publicly - pls feel free to email me. I guarantee Anonymity.