BROKER PRICE OPINION DISCLOSURE
This Broker Price Opinion and Agreement (the “Disclosure”) is being provided by SMARTMOVEOK, LLC d/b/a Smart Move ("SMMO") in connection with its preparation of a broker price opinion (the “BPO”) as to certain real property identified by Client (the “Property”) and Client acknowledges and accepts the terms and conditions herein as follows:
DISCLOSURE: THE BPO REPRESENTS AN ESTIMATED SALE PRICE FOR THIS PROPERTY. IT IS NOT THE SAME AS THE OPINION OF VALUE IN AN APPRAISAL DEVELOPED BY A LICENSED APPRAISER UNDER THE UNIFORM STANDARDS OF PROFESSIONAL APPRAISAL PRACTICE.
1. FEE. SMMO’s fee does include the cost of certain expenses that may be incurred in the development of the BPO. Fees and expenses are to be paid in full by Client at time of delivery of the BPO.
2. COOPERATION AND ACCESS. Client shall allow SMMO access to the Property and client agrees to provide SMMO such information and records relating to the Property as SMMO may request. Client represents that such information shall be true and correct in material respects.
3. RISK. The BPO is NOT AN APPRAISAL, but solely the opinion of value. SMMO has endeavored to include information which it believes to be relevant for the purpose of user's evaluation. Client acknowledges that some of the information contained herein is provided SMMO by others (MLS, Public Records, etc., and has not been independently verified by the Broker and is not guaranteed as to completeness or accuracy. Client expressly agrees that use of the information contained herein is at user’s sole risk.
4. NO THIRD PARTY RELIANCE: This BPO may not be relied upon or used by any party other than Client, and is not assignable.
5. DATE OF THE BPO. Client acknowledges that the opinion of value for the Property is given as of the date thereof only. Client acknowledges that market conditions change and that the BPO is not a prediction of future value.
6. DISCLAIMER OF WARRANTIES. TO THE EXTENT ALLOWED BY LAW, SMMO DISCLAIMS AND CLIENT VOLUNTARILY WAIVES ALL WARRANTIES, EXPRESS OR IMPLIED, OR STRICT LIABILITY RELATING TO THE PROFESSIONAL SERVICES AND BPO, INCLUDING ANY WARRANTY OF SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CLIENT ACKNOWLEDGES THAT SMMO MADES NO PROMISE OR GUARANTY CONCERNING THE PROFESSIONAL SERVICES OR BPO. SMMO does not make any warranties or guaranties of any kind regarding the condition of the Property, sufficiency of title, areas and boundaries, mechanical and structural conditions of the improvements and with the agreement that the BPO represents the broker's opinion of value only, without any warranty that the Property will actually sell for the appraisal value. Client acknowledges that the professional services and BPO constitute a "service" and not a "good" under the Uniform Commercial Code. Client is responsible for any misapplication of the BPO.
7. LIMITATION OF REMEDIES. TO THE EXTENT ALLOWED BY LAW, CLIENT'S SOLE REMEDY AGAINST SMMO FOR CLAIMS DIRECTLY OR INDIRECTLY RELATED TO THE PROFESSIONAL SEVICES AND BPO ARE LIMITED TO THE AMOUNT OF SMMO'S FEE, REGARDLESS OF THE LEGAL THEORY ASSERTED (AND WHICH LIMIT CLIENT ACKNOWLEDGES FORMS A MATERIAL NEGOTIATED BARGAIN BETWEEN PARTIES OF EQUAL BARGAINING POWER). Further, no claim may exceed the amount of SMMO's professional liability insurance policy then in effect. Any claim must be brought no later than six (6) months from the date of the performance of the professional services. Payment by Client for the professional services is deemed to indicate Client’s satisfaction with the professional services and that Client is unaware of any deficiencies.
8. WAIVER OF CERTAIN DAMAGES. IN NO EVENT SHALL SMMO BE LIABLE FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, LOSS OF PROFIT OR REVENUES, OR BUSINESS LOSSES, ALL OF WHICH ARE EXPRESSLY WAIVED TO THE EXTENT ALLOWED BY LAW. NO OFFICER, DIRECTOR, PARTNER, EMPLOYEE, AGENT, CONTRACTOR OR SUBCONTRACTOR OR CONSULTANT OF SMMO HAS ANY PERSONAL LIABILITY. CLIENT ACKNOWLEDGES THESE LIMITATIONS ARE A MATERIAL PART OF THE TRANSACTION.
9. TERMINATION. SMMO may terminate the professional services at any time upon ten (10) days written notice. Client must compensate SMMO for the professional services to the termination date.
10. THIRD PARTIES. The BPO and professional services are performed for Client only and may not be relied upon or used by any other party. The BPO and this Disclosure shall not create any rights or benefits to third parties. Client may not assign the BPO.
11. WAIVER OF JURY TRIAL. CLIENT FREELY AND KNOWINGLY WAIVES THE RIGHT TO A TRIAL BY JURY FOR ANY ACTION RELATING TO THE BPO, THIS DISCLOSURE OR THE PROFESSIONAL SERVICES.
12. MEDIATION AND ARBITRATION. In the event of any dispute arising out of or relating to the BPO, the professional services or this Disclosure, Client and SMMO shall submit such dispute to a third party mediator acceptable to Client and SMMO and shall in good faith attempt to resolve such dispute. The mediation shall be conducted in Overland Park, Kansas. Thereafter, in the event the parties are unable to resolve the dispute, upon the request of any party, such dispute shall be resolved by binding arbitration administered by the American Arbitration Association in accordance with the rules of the American Arbitration Association. Such dispute shall be submitted to a single arbitrator approved by Client and SMMO. Such arbitration shall be conducted in Overland Park, Kansas. The award of the arbitrator shall be final and shall be enforceable by a court of competent jurisdiction. The arbitrator shall also be entitled to grant ancillary relief. The arbitrator shall apply the substantive law of the State of Kansas.
13. MISCELLANEOUS. Client acknowledges that it is a sophisticated party of equal bargaining power. Client further acknowledges that the provisions of this Disclosure are a material part of the bargain between the parties and are not “boilerplate”.
SMMO is an independent contractor and not Client’s agent, partner or joint venturer. Client agrees to keep the information in the BPO strictly confidential. This Disclosure shall not be construed to render any person or entity a third party beneficiary of this Disclosure. A lender should not rely upon the BPO. The laws of the State of Kansas shall govern the interpretation, validity, performance, and enforcement of this Disclosure. This Disclosure is enforceable in Johnson County, Kansas.
