TERMS OF USE


IMPORTANT! THESE TERMS OF USE (THESE "TERMS OF USE") GOVERN YOUR (THE "USER" OR "YOU") USE OF THE WEBSITE (THE "WEBSITE") PROVIDED BY GEMSA LOAN SERVICES, L.P. (THE "COMPANY"). THESE TERMS OF USE ARE SUBJECT TO CHANGE BY THE COMPANY AT ANY TIME IN ITS DISCRETION. YOUR USE OF THE WEBSITE AFTER SUCH CHANGES ARE IMPLEMENTED CONSTITUTES YOUR ACCEPTANCE OF THE CHANGES. PLEASE CONSULT THESE TERMS OF USE REGULARLY.

  1. Scope. Certain portions of the Website are available only to Registered Users who have completed the appropriate registration process and have accepted the Registration Agreement. These Terms of Use are incorporated by reference into the Registration Agreement. These Terms of Use also govern the "public" parts of the Website that are available to users who are not Registered Users.

  2. Permitted Use. User has a nonexclusive, nontransferable, limited, revocable right to use the Website solely for User’s personal business, educational, informational, and entertainment use. User will not use the Website for any other purpose, including any commercial purpose, without the Company’s express prior written consent. For example, User will not and will not authorize any other party to (i) Co-brand the Website or portion thereof, or (ii) frame the Website or portion thereof (whereby the Website or portion thereof will appear on the same screen with a portion of another website). "Co-branding" means to display a name, logo, trademark, or other means of attribution or identification of any party in such a manner reasonably likely to give a User the impression that such other party has the right to display, publish, or distribute the Website or content accessible within the Website. User agrees to cooperate with the Company in causing any unauthorized Co-branding, framing or linking to immediately cease.

    3. Operators of other websites may not maintain links to this Website without the Company’s prior written consent. The Company reserves the right to prohibit other websites from linking to this Website.

  3. Proprietary Information. User acknowledges and agrees that the content accessible within the Website (the "Content") is the proprietary information of the Company,its partners and its content providers, and the Company,its partners and its content providers retain all right, title, and interest in the Content. Accordingly, User will not reproduce, transmit, publish or distribute such Content to any third party without the express written consent of the Company,its partners or the applicable content provider except that User may print out a copy of Content solely for User’s personal use. In doing so, User will not remove or alter, or cause to be removed or altered, any copyright, trademark, trade name, service mark, or any other proprietary notice or legend appearing on any of the Content.

  4. Disclaimer. User will have access to a variety of sources of content through the Internet. The Company has made no effort to verify the accuracy or suitability of any information contained in any such sources. Accordingly, the Company will have no liability or responsibility whatsoever for any content contained within any such sources. User acknowledges and agrees that User accesses, uses and relies upon such content at User’s own risk. USER UNDERSTANDS FURTHER THAT THE INTERNET CONTAINS UNEDITED MATERIALS SOME OF WHICH ARE SEXUALLY EXPLICIT OR MAY BE OFFENSIVE. USER ACCESSES SUCH MATERIALS AT USER’S RISK. COMPANY HAS NO CONTROL OVER AND ACCEPTS NO RESPONSIBILITY WHATSOEVER FOR SUCH MATERIALS.

    5. User understands that, except for information, products or services clearly identified as being supplied by the Company, the Company does not operate, control or endorse any information, products or services on the Internet in any way. User also understands that the Company cannot and does not guarantee or warrant that files available for downloading from the Internet will be free of infection or viruses, worms, Trojan horses or other code that manifest contaminating or destructive properties. Each User is responsible for implementing sufficient procedures and checkpoints to satisfy User’s particular requirements for accuracy of data input and output, and for maintaining a means external to the Website for the reconstruction of any lost data. The Company does not assume any responsibility or risk for User’s use of the Internet.

    The Content is presented in a variety of forms and is intended to supplement reports provided by the Company to Registered Users pursuant to other agreements and obligations to which the Company is subject. The Content is not necessarily complete and should not be used to replace the Company’s written reports, statements and notices. Investors, borrowers and other persons should use the Content in the same manner as any other educational medium and should not rely on the Content to the exclusion of their own professional judgment. Information obtained by using the Website is not exhaustive and does not cover all issues, topics or facts that may be relevant to the participation in any particular transaction.

    THE COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO ANY CONTENT ACCESSIBLE WITHIN OR THROUGH THE WEBSITE, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT.

  5. Limitation on Liability. THE COMPANY,ITS PARTNERS,LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS, WILL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR SPECIAL DAMAGES, INCLUDING LOSS OF REVENUE OR INCOME, PAIN AND SUFFERING, EMOTIONAL DISTRESS OR SIMILAR DAMAGES, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE COLLECTIVE LIABILITY OF THE COMPANY AND ITS LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE AMOUNT USER HAS PAID TO THE COMPANY FOR THE APPLICABLE CONTENT OR SERVICE OUT OF WHICH LIABILITY AROSE.

  6. Indemnity. User will indemnify and hold the Company, its partners, licensors, content providers, service providers and contractors (the "Indemnified Parties") harmless from any breach of these Terms of Use by User, including any use of Content other than as expressly authorized in these Terms of Use. User agrees that the Indemnified Parties will have no liability in connection with any such breach or unauthorized use, and agrees to indemnify any and all resulting loss, damages, judgments, awards, costs, expenses, and attorneys’ fees of the Indemnified Parties in connection therewith. User will also indemnify and hold the Indemnified Parties harmless from and against any claims brought by third parties arising out of User’s use of the information accessed from the Website.

  7. Forums. Information posted on forums, bulletin boards, posting boards, or similar portions of the Website ("Forums") is supplied by third parties and other Users unless the Company or its authorized representative identifies itself as the content poster. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties or any other User are those of the respective authors and not of the Company. User will not post any of the following material in any Forum:

    • material that threatens or abuses others, or which is defamatory or libelous, or which is invasive of another’s privacy;

    • material for which User does not have the right to post, including the proprietary material of any third party;

    • material that advocates illegal activity or discusses an intent to commit an illegal act;

    • material for advertising or commercial solicitation;

    • material that is vulgar, obscene, pornographic, or indecent; or

    • material that does not pertain directly to the subject matter of the particular forum.

    The Company reserves the right to monitor Forums to determine compliance with these Terms of Use, as well as the right to remove or refuse to post any posting, including any of the above postings upon discovery thereof. Notwithstanding these rights, User remains solely responsible for the content of its postings. User acknowledges and agrees that neither the Company nor any third party content provider will assume or have any liability for any action or inaction by the Company or any third party content provider with respect to any posting on the Forums. User will not (i) select or use a member name or e-mail address of another person with the intent to impersonate that person; (ii) use a user name or e-mail address subject to the rights of any person without authorization; (iii) use a member name in violation of the intellectual property rights of any person; or (iv) use a member name that the Company, in its sole discretion, deems offensive.

    Further, User hereby grants to Company the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display any message posted in Forums (in whole or in part) worldwide or to incorporate any message in other works in any form, media or technology now known or later developed.

  8. Miscellaneous.

    1. Headings The headings of Sections of these Terms of Use are for ease of reference only and shall not be admissible in any action to alter, modify or interpret the contents of any Section hereof.

    2. Severability If any Section or provision of these Terms of Use be held illegal, unenforceable or in conflict with any law by a court of competent jurisdiction or arbitral tribunal, such Section or provision of these Terms of Use shall be deemed severed from these Terms of Use and the validity of the remainder of these Terms of Use shall not be affected thereby.

    3. Governing Law These Terms of Use shall be governed by and construed in accordance with the laws of Texas applicable to contracts made and to be enforced wholly within such state.

    4. Submission to Jurisdiction User specifically consents to personal jurisdiction in Texas in connection with any dispute between the parties arising out of this Agreement or pertaining to the subject matter hereof.

    5. Venue The parties to these Terms of Use each agree that venue for any dispute between the parties arising out of these Terms of Use or pertaining to the subject matter hereof may be had in the District Court for the Southern District of Texas or in the state courts of Texas sitting in Harris County, Texas.

    6. Arbitration Any dispute or disagreement arising between the parties under these Terms of Use or pertaining to the subject matter hereof shall be resolved by binding arbitration under the Commercial Rules of the American Arbitration Association ("AAA"). Such arbitration shall be held in Houston, Texas before an arbitral panel selected according to the rules of the AAA.

    7. Waivers and Amendments The waiver by either party of any provision of these Terms of Use on any occasion and upon any particular circumstances shall not operate as a waiver of such provision of this Agreement on any other occasion or upon any other circumstances. This Agreement may be waived or amended only in a writing signed by both parties.

Copyright 2002 GEMSA Loan Services, L.P.

ATL-1746710.2