Flood Zone Determination Terms

v 1.1

11/1/2023

Throughout the site and this agreement, the terms “we”, “us” and “our” refer to Xactus, LLC. who are the operators of www.massivecert.com (“Website”). We operate the website to provide Flood Zone Determination and other related services (collectively “Service” or “Services”) to you as the owner of certain real property or their representative.

By using the website or purchasing a Service from us, you agree to be bound by the following terms and conditions (“Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink on the Website.

If you do not agree to all the terms and conditions of this agreement, our Privacy Policy (www.massivecert.com/privacy), and the massivecert.com Terms of Use (www.massivecert.com/use), then you may not access the website or use our services to obtain Services. If in our sole judgment you do not comply or we suspect that you have not complied with any term or provision of these Terms or any other Terms referenced herein, we also may cancel and terminate this agreement at any time.

SERVICES

“Services” encompass any work performed by us to complete, or attempt to complete, a request for Services, “Request”, initiated by you.  A Request is initiated by you when you place an order through our website.  Guaranteed Flood Zone Determinations, “GFZD”, include “Basic Determinations”, “Grandfather Determinations”, and “Life-of-Loan Determinations”.  GFZD specifications are defined by the Federal Emergency Management Agency, “FEMA”, and other federal agencies, and may change from time-to-time at the discretion of the various federal agencies. FEMA’s SFHD Form, “SFHDF”, is the basis for deliverables of a GFZD.  We will conform to the then-current Agency specifications for the SFHD and in accordance with all parts of this Agreement at the time the Services Request is placed.  Basic Determinations are point-in-time Services performed on the date the Request is made in accordance with the then-current FEMA data published by that Agency.  A “Grandfather Determination” is a Basic Determination with the addition of historical research for grandfather date you supply with your Request.  Neither a Basic Determination nor a Grandfather Determination will be monitored for future changes to FEMA’s data and we are not responsible for those changes. A Life-of-Loan Determination is a Basic Determination that extends for the Life-of-Loan. During the Life-of-Loan, we will notify you in the event the Mandatory Purchase Requirement for the Subject Property changes as the result of a revision to the FEMA map or a change in the participation status of the community in which the Subject Property is located making flood insurance for the Subject Property unavailable. The notification will include a new SFHDF. The notification and new SFHDF will be provided to you within sixty (60) days of the new FEMA map effective date. You shall provide us with written notice within thirty (30) days of the date a Subject Loan is paid-off, declined or cancelled, or the Subject Loan is sold and/or the servicing is transferred to a subsequent mortgagee. Your failure to timely provide us with any of the notifications required shall relieve us of our obligation to provide the Services for the Life-of-Loan for the Subject Property.

A Life-of-Loan Guaranteed Special Property Determination is a Life-of-Loan Determination for a Subject Property with multiple structures (existing or planned) on one or more contiguous parcels. We will deliver one SFHDF for the Subject Property with an exhibit indicating the flood hazards for each existing or planned structure. We assume no responsibility or liability for loss or damages resulting from the failure of you to properly, correctly and accurately identify the exact nature and location of any planned structures. All requirements applicable to Life-of-Loan Determinations (including, but not limited to, the notice requirements) apply to Life-of-Loan Special Property Determinations.

When you Request Services, we begin work immediately and therefore we will charge you for the work to be conducted.  The Request for Services may require manual research, and in that event, we may need to ask you more information about the location of the property for the purpose of accurately providing a GFZD.  If you do not respond to our request for more information within 1 week we will discontinue our research and consider the request abandoned by you.  Requests that cannot be completed after reasonable manual research is conducted or after the request is abandoned will not be refunded.

USE

GFZD are to be used solely for the purpose of obtaining a flood insurance policy through the National Flood Insurance Program (NFIP).  Use of the GFZD for any other purpose such as but not limited to property purchase, property investment, property speculation, or property improvement invalidates all guarantees and we incur no liabilities.   If you have no current financial interest in the property as either the current property owner, or the current insurance agent, or current lender the guarantees are void.  You may not order Services with the intent to build your own Flood Zone Determination database or to resell the data acquired through us.

GUARANTEES

These are the only guarantees for Guaranteed Flood Zone Determinations (GFZD) and no other data or information provided on the GFZD SFHDF are guaranteed nor is any other form delivered as part of the Services.  Guarantees are extended only to the GFZD Requestor.  The Requestor is the named individual on the Xactus account that placed the GFZD order. Guarantees extend exclusively and solely to GFZD products issued on the FEMA Standard Flood Hazard Determination Form (SFHDF).

Our liability is limited to one loss claim per determination.  We are not responsible for lost wages, lost revenue, lost inventory, and any item not insurable under the National Flood Insurance Program (NFIP).  Our liability is subject to the condition’s precedent for a claim and limits set forth in our applicable flood zone determination services agreement or addendum.

If an updated GFZD is provided, it replaces all other previous versions and therefore the guarantee would extend only to the current version of the GFZD. The corrected GFZD replaces all other previous versions of the GFZD ordered by the requestor and therefore our guarantee extends only to the current version of the GFZD issued to the Requestor.  

If we indicate the structure to be insured as the subject of a Guaranteed Flood Zone Determination (GFZD) is not located within a Special Flood Hazard Area (SFHA) as of the Federal Emergency Management Agency (FEMA) Flood Insurance Rate Map (FIRM) effective date used for and printed on the GFZD, yet the structure is located in the SFHA as per the FEMA FIRM effective date printed on the issued GFZD; and our GFZD was the basis for the policyholder of the subject of the GFZD to not purchase a National Flood Insurance Program (NFIP) flood insurance policy for the GFZD subject structure; and this structure incurs a valid and qualified flood loss as defined by the NFIP, then if all of these conditions be met, we or our Insurer will reimburse the policyholder of the property identified on the GFZD, if no other party has reimbursed the policyholder, or reimburse the purchaser of the GFZD, if the purchaser was acting on behalf of the policyholder and has already reimbursed the policyholder; the amount of uninsured flood loss that would have been paid if an NFIP policy existed for the structure less applicable NFIP deductibles.

If we indicate the structure to be insured as the subject of a GFZD is located within an SFHA as of the Federal Emergency Management Agency (FEMA) Flood Insurance Rate Map (FIRM) effective date used for and printed on the GFZD; yet the structure is not located in the SFHA as per the FEMA FIRM effective date printed on the issued GFZD, and our GFZD was the basis for the policyholder of the subject of the GFZD to complete the purchase of an NFIP flood insurance policy or the GFZD subject structure, then if all of these conditions are met, we or our Insurer will reimburse the policyholder of the property identified on the GFZD, if no other party has reimbursed the policyholder, or reimburse the purchaser of the GFZD, if the purchaser was acting on behalf of the policyholder and has already reimbursed the policyholder; up to the previous 6 months of flood insurance premiums which the policyholder has paid since we provided the GFZD.

If we incorrectly identify the FEMA flood zone for the structure to be insured as the subject of a GFZD: (i) if the resulting NFIP flood insurance policy premium which is based on the GFZD is lower than the NFIP flood insurance policy premium using the correct FEMA flood zone, then we or our insurer will reimburse the policyholder of the property identified on the GFZD, if no other party has reimbursed the policyholder, or reimburse the purchaser of the GFZD, if the purchaser was acting on behalf of the policyholder and has already reimbursed the policyholder, the amount equal to the flood insurance policy premium difference of the flood insurance policy rated with each FEMA flood zone for up to the previous 6 months of flood insurance premiums which have been paid since we provided the GFZD; and (ii) if the coverage limit for the flood insurance policy is lower than the coverage limit for a flood insurance policy with the correct flood zone, and if a claim is paid on the policy using the incorrect zone, then we will pay the difference between the claim paid and the claim that should have been paid as if such policy contained that higher limit based on the correct flood zone.

If we indicate the structure to be insured as the subject of a GFZD is located within a Coastal Barrier Resource Area (CBRA) or Otherwise Protected Area (OPA) as of the Federal Emergency Management Agency (FEMA) Flood Insurance Rate Map (FIRM) effective date used for and printed on the GFZD determination yet the structure is not located within a CBRA or OPA as of the FEMA FIRM effective data used for the GFZD, and our GFZD was the basis for the policyholder or the policyholder's insurance representative to not issue a NFIP flood insurance policy, and an uninsured flood loss occurs to the structure, and the insurable structure as the subject of a GFZD is otherwise eligible for an NFIP flood insurance policy, and the purchaser of our GFZD was not given notice of the error by email 30 days before the flood loss occurred, and the NFIP or policyholder's WYO denies the claim, and the policyholder or the policyholder's insurance representative is held legally liable for flood insurance coverage under the NFIP for the insurable structure on the Property; then our maximum liability shall be the lesser of the maximum available insurance coverage under the NFIP for the insurable structure on the Property or the cost of the valid and qualified uninsured structural flood loss that would have been paid by an NFIP flood insurance policy less NFIP deductibles and less any premiums that would have been paid if an NFIP policy had been in effect.  We shall only be liable in connection with one flood loss per property and shall not be liable for subsequent losses involving the same property.

If we indicate the structure to be insured as the subject of a GFZD is not located within a CBRA or OPA as of the Federal Emergency Management Agency (FEMA) Flood Insurance Rate Map (FIRM) effective date used for and printed on the GFZD determination yet the structure is located within a CBRA or OPA as of the FEMA FIRM effective data used for the GFZD, and a valid and qualified flood loss occurs to the insurable structure on the Property, and our GFZD was the basis for the subject's property owner to acquire an NFIP flood insurance policy on the insurable structure prior to the flood loss, and that flood insurance policy was validly issued and is in good-standing, and the NFIP or policyholder's WYO denies the claim under the NFIP because the insurable structure is within the CBRA or OPA on the FIRM as of the date of determination, and the policy must be nullified, and the GFZD purchaser was not given notice of the error by email 30 days before the flood loss occurred, and the policyholder or the policyholder's insurance representative is held legally liable for the flood loss; then our maximum liability shall be the lesser of the maximum available insurance coverage the under the NFIP for the insurable structure on the property or, the cost of the uninsured structural flood loss suffered by the policyholder or the policyholder's insurance representative that would have been paid by an NFIP policy less standard minimum deductibles and less any premiums that would have been paid if an NFIP policy had been in effect.  We shall only be liable in connection with one flood loss per property and shall not be liable for subsequent losses involving the same property.

If we issued a GFZD for a property providing the correct flood zone yet incorrectly finds the insurable structure is in a community that does participate in the NFIP when in fact the community does not participate in the NFIP, and our GFZD was the basis for the subject's property owner to acquire an NFIP flood insurance policy on the insurable structure, and a valid and qualified flood loss occurs, and the NFIP denies the flood loss claim because the insurable structure as the subject of the GFZD is in a community that does not participate in the NFIP, and the GFZD purchaser was not given notice of the error more than thirty days before the flood loss occurred, and the policyholder or the policyholder's insurance representative is held legally liable for the flood loss; our maximum liability shall be the lesser of the maximum available insurance coverage under the NFIP for the insurable structure as the subject of the GFZD or the cost of the uninsured structural flood loss that would have been paid if an NFIP policy had been in effect.  We shall only be liable in connection with one flood loss per Property under this subsection and shall not be liable for subsequent losses involving the same property.

If we issued a GFZD for a property providing the correct flood zone yet incorrectly finds the insurable structure is in a community that does not participate in the NFIP when in fact the community does participate in the NFIP and the insurable structure is otherwise eligible for an NFIP policy, and our GFZD was the basis for the subject's property owner to not acquire an NFIP flood insurance policy on the insurable structure, and a valid and qualified flood loss occurs, and the GFZD purchaser was not given notice of the error more than thirty days before the flood loss occurred, and the insurable structure is not insured, and the policyholder or the policyholder's insurance representative is held legally liable for the flood loss; our maximum liability shall be the lesser of the maximum available insurance coverage for the insurable structure on the property or the cost of the uninsured flood loss that would have been paid by an NFIP policy less standard minimum deductibles and less any premiums that would have been paid if an NFIP policy had been in effect.  We shall only be liable in connection with one flood loss per Property and shall not be liable for subsequent losses involving the same Property.

CHANGES TO TERMS

You can review the most current version of the Terms at any time at this page www.massivecert.com/determination-terms. We reserve the right to update, change or replace any part of these Terms by posting updates and/or changes to our website.  It is your responsibility to check this page periodically for changes.  Your continued use of or access to the website and the Services following the posting of any changes constitutes acceptance of those changes.

INTELLECTUAL PROPERTY

All copyright, trademark, patent, and all other direct or ancillary components of the website and Services is the sole intellectual property of us and we have sole ownership rights of all components and systems. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the website or Service, use of the website or Service, or access to the website or Service or any contact on the website through which the Service is provided, without express written permission by us.

You have a non-exclusive right to the Flood Zone Determination you have ordered and paid for.  We have an unlimited right to the transmitted data and work products as a result of the Services, including Flood Zone Determinations, and their associated forms, documents, pictures, and other transmitted data for requests in which they are a party to.

REASSIGNMENT AND RESELLING OF SERVICES

We may assign these Terms, in whole or in part, at any time with or without notice to you. You may not assign any of your rights or obligations under these Terms, in whole or in part, to another party. Reselling our Services or access to our website to other parties is allowed only by express written consent by us.  We reserve the right to cancel orders that, in our sole judgment, appear to be placed with the intent to resell without express written consent by us.  Please contact us for resell opportunities.

POTENTIAL DISRUPTION OF SERVICES 

We do not guarantee that our Services, or any content contained within or accessible through Services, will always be available or uninterrupted. Access to the Services may from time to time be unavailable, delayed or limited due to, among other things: hardware failure; software failure, including among other things, bugs, errors, viruses, configuration problems, incompatibility of systems, utilities or applications, the operation of firewalls or screening programs, unreadable codes, or content irregularities; system overload; damage caused by severe weather, natural disasters, war or acts of God; terrorism; interruption of power supplies; strike or other stoppage of labor; governmental or regulatory restrictions; or any other cause whatsoever beyond our control. We are not liable to you if, for any reason, the Services are unavailable at any time or for any period.

INDEMNIFICATION

You agree to indemnify, defend and hold us harmless and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, Surveyors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorney fees, made by any third party due to or arising out of your breach of these Terms or the documents they incorporate by reference, or your violation of any law or the rights of a third party. You are solely responsible for defending any claim, subject to Our right to participate with counsel it selects, and you will not agree to any settlement that imposes any obligation, liability, or admission of guilt on the part of Us without prior written consent of Us. If you violate any provision of this section of the Terms of Use, we may terminate your access to the Services without notice, and you have indemnity obligations to Us and other third parties entitled to indemnification as a result of your violation of these Terms of Use. This section, as well as other sections that are intended to survive, shall survive termination of your access to or use of the Services.

SEVERABILITY AND INTEGRATION

Unless otherwise specified herein, in the event that any provision of these Terms is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms, such determination shall not affect the validity and enforceability of any other remaining provisions with the original intentions of the parties, and the remaining portions remaining in full effect. Additional terms may be agreed upon by you and us with respect to content available via the Services.

GOVERNING LAW

This agreement shall be governed by and construed in accordance with the laws of the state of Delaware, without reference to any choice of law doctrine. You and we shall use best efforts to settle any controversy, dispute, or claim arising out of or relating to this Agreement, its validity, interpretation, or breach thereof, by negotiation or mediation. If, after 30 days from the first written notice of a dispute, both parties are not able to agree on any settlement, such controversy, dispute or claim shall be settled by arbitration. Such shall be held in the county of our primary office in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be initiated by either Party delivering to the other a written notice of intention to arbitrate. The Arbitrator(s) shall be appointed by and in accordance with the existing procedures of the American Arbitration Association. The arbitration process is binding on the Parties and shall be a final resolution of any such dispute to the same extent as a final judgment of a court of competent jurisdiction. YOU THUS GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN OR BRING CLASS ACTIONS. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY. If necessary, Judgment upon the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof.  The substantially prevailing party in any such arbitration, as decided by the Arbitrator(s), shall be entitled to an award of its reasonable costs and expenses incurred in connection with such arbitration, including but not limited to attorney fees and expenses, expert and/or consultant fees and expense, the administration fees and expenses of arbitration, and the compensation and expenses of the arbitrator(s). Should a dispute arise, and should the arbitration provisions become inapplicable or unenforceable, you agree that jurisdiction over and venue of any suit will be exclusively in the state and federal courts sitting in Delaware County, Pennsylvania. If either party employs attorneys to enforce any right in connection with any dispute or lawsuit the prevailing party is entitled to recover reasonable attorneys’ fees.

ENTIRE AGREEMENT 

The failure of us to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. No single or partial exercise of right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. These Terms and any policies or operating rules posted by us on the website or in respect to the Service constitutes the entire agreement and understanding between you and us and govern your use of the website and Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us including, but not limited to, any prior versions of the Terms. Any ambiguities in the interpretation of these Terms shall not be construed against the drafting party.

 CONTACT INFORMATION

Xactus, LLC

370 Reed Road, Suite 100

Broomall, PA 19008

844.439.2378

floodinfo@xactus.com