FIRSTCLOSE GENERAL TERMS & CONDITIONS
These GENERAL TERMS & CONDITIONS (“Terms”) set forth the terms and conditions pursuant to which FirstClose, Inc., a Delaware corporation (“FirstClose“), shall make the Service and related Professional Services (if any) available to Customer as set forth in each applicable Order or SOW. Each Order and SOW is subject to the Terms. Capitalized terms used but not defined herein have the meanings ascribed to them in the applicable Order or SOW. In consideration of the mutual promises contained herein, the parties agree as follows:
1.1. “Aggregate Data” means Customer Data and any data derived from Customer Data or Customer’s access to or use of the Service, in each case where such data has been aggregated and de-identified in a manner that does not reveal any personal information and cannot reasonably be used to identify Customer and its customers or users as the source or subject of such data.
1.2. “Agreement” means the Terms together with the applicable Order or SOW incorporating the Terms.
1.3. “Applicable Law” means all applicable federal, national, state and local laws, rules and regulations, including, as applicable, GLBA, RESPA, and laws, rules and regulations relating to privacy, data security, mortgage lending, credit reporting and consumer protection.
1.4. “Confidential Information” means information that a party discloses to the other party in connection with this Agreement that the party identifies in good faith as confidential or proprietary or, given the nature of the information or the circumstances surrounding its disclosure, should reasonably be understood to be confidential or proprietary. Confidential Information includes non-public information that a party discloses in connection with this Agreement relating to: Borrower Data, intellectual property; technology; know-how; prototypes; current and future products and services; processes; customers; vendors; suppliers; employees; contractors; business plans and methods; research and development; promotional and marketing activities; finances; pricing; contracts and business arrangements; and other business affairs. FirstClose’s Confidential Information includes any non-public information relating to the Platform, Service and Professional Services. Customer’s Confidential Information includes Customer Data.
1.5. “Customer” means the customer identified in the applicable Order or SOW.
1.6. “Customer Acts” means any: (a) access to or use of the Platform or Service by Customer or through any Customer system in any manner that does not comply in all material respects with the terms and conditions of this Agreement; (b) access to or use of the Platform or Service by Customer in combination with any hardware or software not provided by FirstClose or approved as set forth in the documentation provided by FirstClose for the Platform or Service; (c) modification to the Platform or Service by or on behalf of Customer not made or authorized by FirstClose; (d) acts or omissions of FirstClose undertaken in accordance with Customer’s express instructions; (e) corruption, inaccuracy or other defect of Customer Data as provided by Customer; (f) failure by Customer to give all required notices and obtain all necessary consents (including all required permissions from intellectual property holders) for processing of Customer Data in accordance with this Agreement; or (g) Security Breach occurring with respect to Customer Data within Customer’s custody or control.
1.7. “Customer Data” means all electronic data or information that Customer or a User submits to or through the Platform, including Borrower Data (defined in Section 5.1).
1.8. “Default Vendors” means third-party vendors that provide Transactional Settlement Services and have a wholesale or similar arrangement with FirstClose. Default Vendors are FirstClose’s preferred providers of Transactional Settlement Services.
1.9. “Disclosing Party” means the party disclosing Confidential Information to the other party.
1.10. “Feedback” means any suggestion, comment, idea, improvement or other feedback relating to the Platform or Service that Customer elects to provide or make available to FirstClose.
1.11. “GLBA” means Title V of the Gramm-Leach-Bliley Act and all rules and regulations promulgated thereunder.
1.12. “Order” means an order form entered into between FirstClose and Customer pursuant to this Agreement specifying the Service and Professional Services (if any) that will be made available to Customer under such order form.
1.13. “Platform” means FirstClose’s proprietary loan closing software-as-a-service platform, as described on the Order and as accessible through the Internet or Customer’s loan origination system (LOS) interface, that helps Customers obtain Transactional Settlement Services.
1.14. “Process” and “process” (each as used in relation to data) means to employ any operation on data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
1.15. “Professional Services” means any implementation, configuration, integration or other professional services to be provided by FirstClose under an Order or SOW as specified in the applicable Order or SOW.
1.16. “Receiving Party” means the party receiving Confidential Information from the other party.
1.17. “RESPA” means the Real Estate Settlement Procedures Act of 1974, as amended, and all rules and regulations promulgated thereunder.
1.18. “Security Breach” means any: (a) unauthorized processing of Customer Data while such data is within a party’s custody or control; or (b) breach of the physical, technical, administrative or organizational safeguards implemented by a party to protect Customer Data against unauthorized processing while such data is within the party’s custody or control.
1.19. “Service” means access to the Platform and the Transactional Settlement Services as specified in the applicable Order.
1.20. “SOW” means a statement of work entered into between FirstClose and Customer pursuant to this Agreement specifying any Professional Services to be provided by FirstClose to Customer under such statement of work.
1.21. “Third-Party Vendor” means Default Vendor or User-Defined Vendor.
1.22. “Transactional Settlement Services” means the loan settlement related products and services listed on Appendix A of the Order, as updated from time to time, and purchased or provided through the Platform. Transactional Settlement Services may include credit reports, flood zone certifications, automated valuation models (AVMs), property condition reports (PCRs), desktop valuations, restricted appraisals reports (RARs), drive-by and full appraisals, appraisal reviews, title searches, property reports, title insurance, document preparation, income verification, closing services, recording services, and other mortgage settlement services utilized to close home equity loans, home equity lines of credit, second mortgages, refinanced loans, and first mortgage loan transactions.
1.23. “User” means an employee or independent contractor of Customer that Customer authorizes to use the Service on Customer’s behalf.
1.24. “User-Defined Vendors” means third-party vendors that provide Transactional Settlement Services but that are not Default Vendors. User-Defined Vendors may be vendors that are not already integrated into the Service but are added to the Service at the request of the Customer.
2. SERVICE AND SUPPORT
2.1. Provision of Service; Users. During the term set forth in the applicable Order and subject to the terms and conditions set forth herein (including payment of all amounts due and any restrictions or parameters), FirstClose (a) will provide Customer with access to the Service and make the Service available to Customer’s administrative Users who have authority to manage and administer Customer’s account and other Users, in accordance with the parameters set forth in the Order, and (b) grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, right to access and use the Service. Users will be required to abide by the terms of this Agreement. Customer shall be responsible for ensuring that Users comply with the terms and conditions of this Agreement in all material respects, and FirstClose may suspend Customer’s or a single User’s access to the Service for any material breach of this Agreement by any User, provided that FirstClose gives prompt notice of such suspension to Customer. Customer shall be solely responsible for managing and administering User accounts, including issuing usernames and passwords to Users. Customer shall be solely responsible for the security and confidentiality of Customer’s account information, including usernames and passwords, while such information is within Customer’s custody or control and shall ensure that no third party uses Customer’s account. Customer shall promptly notify FirstClose in the event that Customer becomes aware of any unauthorized access to the Service or any violation of the terms of this Agreement by Customer or any User.
2.2. Use of Service; Hosting and Maintenance. Customer shall only use the Service for its intended purpose and Customer’s internal business purposes. Customer acknowledges that FirstClose may host the Service using its own infrastructure or it may engage a third party to host on its behalf. Updates may be provided at FirstClose’s sole discretion, and FirstClose may, in its sole discretion, make any changes that it deems necessary or useful to maintain or enhance the quality or delivery of the Service or to comply with Applicable Law. Scheduled system maintenance shall take place during a normal maintenance window, as reasonably determined by FirstClose. During such time, the Service may be unavailable. Emergency maintenance may be required at other times in the event of system failure.
2.3. Support. During the term set forth in the applicable Order, FirstClose will use commercially reasonable efforts to provide Customer with telephone and email support regarding the Service. FirstClose will provide Customer with the training and implementation Professional Services specified in the applicable Order or SOW. Training and support may be provided via phone, email or in-app chat.
2.4. Other FirstClose Services. Configuration and implementation Professional Services applicable to the Service, if elected in the Order, may be detailed in an SOW attached the Order and subject to these Terms. If FirstClose agrees to provide Customer with additional Professional Services, the parties will enter into a SOW for such Professional Services, which, unless otherwise indicated, will be governed by these Terms.
2.5. Transactional Settlement Services.
2.5.1. Default Vendors are FirstClose’s preferred providers of Transactional Settlement Services as further described on the applicable Order. Customer may select User-Defined Vendors to provide certain Transactional Settlement Services during implementation, but Customer acknowledges that in such cases, the selection of User-Defined Vendors in lieu of the Default Vendors may result in additional charges to Customer than reflected in the Order.
2.5.2. Transactional Settlement Services will be made available pursuant to terms and conditions between Customer and the Third-Party Vendors and will be made available to Customer in the appliable Order or during Customer’ implementation (“Supplemental Terms”). For Transactional Settlement Services where Customer has entered into an agreement directly with a Third-Party Vendor, (1) the terms of the agreement between the Customer and Third-Party Vendor control the provision of Transactional Settlement Services by the Third-Party Vendor; and (2) FirstClose is not liable for any acts or omissions relating to the Transactional Settlement Services except where such claim arises solely from the Platform or the Service.
FirstClose is not responsible for any acts or omissions of any Third-Party Vendor. By accessing or using any Transactional Settlement Services, Customer accepts the applicable Supplemental Terms and agrees to fully comply with such Supplemental Terms. IN ADDITION TO ANY DISCLAIMERS SET FORTH IN THE SUPPLEMENTAL TERMS, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN SHALL APPLY TO FIRSTCLOSE WITH RESPECT TO ALL TRANSACTIONAL SETTLEMENT SERVICES PROVIDED BY ANY THIRD-PARTY VENDOR.
2.5.3. Customer shall not circumvent or attempt to circumvent any fees that may be owed to FirstClose in connection any Order or request for Transactional Settlement Services placed using the Service. Without limiting the generality of the foregoing sentence, Customer shall not enter into an agreement with any Third-Party Vendor for fulfillment of any order outside the Service where the order was placed using the Service.
3. CUSTOMER ACKNOWLEDGEMENTS AND RESPONSIBILITIES
3.1. Customer Responsibilities. Customer shall provide FirstClose with all information, materials and assistance as reasonably required for FirstClose to provide the Service and make available any Transactional Settlement Services for Customer and its Users pursuant to this Agreement. Customer shall: (a) cause Users to comply with this Agreement; (b) cooperate reasonably with FirstClose so that FirstClose can provide the Service and make available any Transactional Settlement Services for Customer and its Users, including by using reasonable efforts to make information and Customer personnel available as reasonably requested by FirstClose; and (c) use reasonable efforts to prevent unauthorized access or use of the Service through Customer’s accounts or systems. Customer shall not exploit the Service in any unauthorized way whatsoever, including by trespass or unreasonably burdening network capacity or by breach or attempted breach of the security mechanisms within the Service or any network, data, servers, computers or hardware used in connection with the Service. Customer will be solely responsible for the following: (i) providing all hardware, software, networking and communications capabilities required for Customer’s use of the Service; (ii) at all times using the Service and any Transactional Settlement Services in accordance with the applicable documentation and any other reasonable written instructions provided to Customer by FirstClose; (iii) using the Service and any Transactional Settlement Services in a manner that does not infringe the intellectual property, privacy or other rights of third parties, and (iv) ensuring that Customer and its Users do not upload or transmit viruses or malicious code via the Service.
3.2. Compliance with Applicable Law. Customer and each User uses the Service and any Transactional Settlement Services at its own initiative and are responsible for compliance with Applicable Law. FirstClose may also impose limits on the use or access to the Service and any Transactional Settlement Services as required by Applicable Law.
3.3. Restrictions. Customer may not (a) rent, lease, lend, sell, redistribute, reproduce, make available, or sublicense the Service, or use any component of the Service as a service bureau, (b) copy, decompile, reverse-engineer, disassemble, attempt to derive the source code, underlying structure, ideas or algorithms of, or modify, adapt, translate, create derivative works of, the Service or any part thereof, (c) access or use the Service for purposes of benchmarking or developing, marketing, selling or distributing any product or service that competes with or includes functions and features substantially similar to the Service, or (d) ping or otherwise transmit commands or queries to the Service for any purpose other than as contemplated herein. If for any reason these restrictions are prohibited by Applicable Law or by an agreement FirstClose has with one of its licensors, then the activities otherwise prohibited are permitted, but only to the extent such Applicable Law or agreement requires FirstClose to make such activities permissible.
3.4. Verification. Upon at least 10 days notice to Customer, FirstClose may request that Customer conduct an inspection of its access to and use of the Service and issue to FirstClose a written certification from an officer of Customer confirming that Customer’s access to and use of the Service has complied with the terms and conditions of this Agreement in all material respects (“Customer Verification”). If Customer fails to provide Customer Verification as requested by FirstClose, then FirstClose may conduct an inspection of Customer’s access to and use of the Service as necessary to confirm that such access and use has complied with the terms and conditions of this Agreement in all material respects (“FirstClose Verification”). Customer shall promptly remedy any non-compliance disclosed by a Customer Verification or FirstClose Verification (collectively, “Verification”), including by obtaining any additional licenses necessary for Customer’s access to or use of the Service in compliance with the terms and conditions of this Agreement in all material respects. FirstClose shall not require Customer to complete a Verification more frequently than once per 12-month period, provided that if a Verification discloses that Customer’s access to or use of the Service does not comply with the terms and conditions of this Agreement in all material respects, FirstClose may require Customer to undergo an additional Verification within the same 12-month period.
4. INTELLECTUAL PROPERTY
4.1. FirstClose Ownership. As between FirstClose and Customer, FirstClose owns all rights, title and interest (including all intellectual property rights) in and to the Platform, Service and Aggregate Data.
4.2. Customer Ownership. As between FirstClose and Customer, Customer owns all rights, title and interest (including all intellectual property rights) in and to any Customer Data.
4.3. Feedback. If Customer provides any Feedback to FirstClose, Customer hereby grants FirstClose a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made such Feedback for any lawful purpose, without credit or compensation to Customer.
4.4. Intellectual Property Notices. Customer shall not remove, obscure or modify in any way any copyright, trademark, patent or other proprietary notice or disclaimer that appears on or within the Platform or Service.
4.5. Reservation of Rights. Each of the parties reserves all rights not expressly granted under this Agreement.
5.1. Customer Data. Customer and its Users are solely responsible for the accuracy and completeness of Customer Data as submitted by Customer and its Users. Customer shall not submit, transmit or otherwise make available through or to the Service any data not owned by Customer or for which Customer does not have all necessary authorization to submit, transmit or otherwise make available through or to the Service for processing in accordance with this Agreement. Without limiting the generality of the foregoing sentence, Customer represents, warrants and agrees that (a) Customer has received proper consent and permission of all borrowers, consumers or other third parties to submit Customer Data, including personal information of such third parties (“Borrower Data”), to the Service and for FirstClose and Third-Party Vendors to process such data as contemplated by this Agreement, and (b) Customer will comply with Applicable Law, including Title V of GLBA, with respect to Customer’s processing of Borrower Data.
5.2. Processing. FirstClose may (a) process Customer Data only as necessary to provide the Service to Customer, including as part of making Transactional Settlement Services available to Customer, or in accordance with Customer’s written instructions, and (b) disclose and provide Customer Data to Third-Party Vendors for processing only as necessary to provide Transaction Settlement Services to Customer.
5.3. Aggregate Data. Customer acknowledges and agrees that FirstClose may collect or generate Aggregate Data in connection with Customer’s access to or use of the Service. FirstClose may use Aggregate Data for any lawful purpose without any duty of accounting or obligation to Customer.
5.4. Protection and Security. Each party shall implement and maintain appropriate administrative, technical and physical security policies and procedures and access control methodologies consistent with prevailing industry standards, but in no case less than reasonable care, to: (a) safeguard Customer Data within its custody or control against any Security Breach; and (b) ensure that its processing of Customer Data complies with Applicable Law and the terms and conditions of this Agreement. If a party becomes aware of a Security Breach or reasonably suspects that a Security Breach has occurred with respect to Customer Data within its custody or control, it shall promptly (but in no case more than 48 hours after it becomes aware of such Security Breach) give the other party written notice of the Security Breach, provided that the party may delay providing such notice to the extent required by Applicable Law or the instructions of a governmental entity with jurisdiction over the party.
6.1. Maintenance and Use. Receiving Party shall maintain Confidential Information in strict confidence, using the same degree of care that it uses to protect the confidentiality of its own confidential information of like nature, but in no case less than reasonable care. Receiving Party shall not: (a) use or disclose Confidential Information other than as necessary to exercise its rights and fulfill its obligations under this Agreement; or (b) modify, adapt, reverse engineer, decode, decompile or disassemble Confidential Information, or create any derivative work based upon Confidential Information, except as expressly permitted under this Agreement.
6.2. Access. Receiving Party shall restrict access to and use of Confidential Information to its directors, officers, employees, contractors, agents and legal and financial advisers who: (a) have a legitimate need to know Confidential Information; (b) are informed of the confidential nature of Confidential Information; and (c) have obligations with respect to Confidential Information that are consistent with, and at least as restrictive as, those imposed by this Agreement.
6.3. Exclusions. The duties of confidentiality imposed by this Section 6 do not apply to any information to the extent that it: (a) is known or becomes known to the public in general, other than as a result of a breach of this Agreement or any other confidentiality agreement; (b) was known by or in the lawful possession of Receiving Party prior to receipt from Disclosing Party; (c) is or has been independently developed or conceived by Receiving Party without use of or reference to Confidential Information; or (d) is or has been provided or made known to Receiving Party by a third party without a breach of any obligation of confidentiality to Disclosing Party.
6.4. Required Disclosures. Receiving Party may disclose Confidential Information as required to comply with the order of a governmental entity that has jurisdiction over Receiving Party or as otherwise required by Applicable Law, provided that Receiving Party: (a) notifies Disclosing Party of such required disclosure in advance (to the extent permitted by law) to provide Disclosing Party with an opportunity to seek a protective order; and (b) takes reasonable steps to minimize the extent of any such required disclosure.
7. PAYMENT TERMS
7.1. Fees. Applicable fees and pricing for access to and use of the Service and Professional Services (if any) are set forth on the Order or applicable SOW and are collectively referred to herein as “Fees”.
7.2. Payment Terms. Unless otherwise specified on an Order or SOW, Fees are due within 30 days of the applicable invoice date. Except to the extent otherwise provided in the Order or SOW, all Fees are non-refundable and are denominated and payable in U.S. dollars. If Customer has a good-faith dispute on an amount reflected in any invoice, it shall provide notice of such dispute and a reasonable description of such dispute to FirstClose within 30 days of the applicable invoice date. Customer shall pay all undisputed amounts when due. Any amounts not disputed in good-faith that remain unpaid past their due date shall accrue interest at a rate of the lesser of one and one-half percent (1.5%) per month or the highest rate allowed by Applicable Law. FirstClose may also (at its discretion, without notice and in addition to other remedies it may have) suspend any Professional Services and Customer’s and its Users’ access to the Service if any undisputed amounts remain unpaid for more than 15 days past its due date.
7.3. Taxes. The Fees set forth on the Order do not include local, state or federal sales, use, value-added, transactional excise or personal property or other similar taxes or duties, and any such taxes shall be assumed and paid by the Customer except those taxes based on the net income of FirstClose. FirstClose shall have no liability for any taxes owed by Customer or its Users as a result of their use or acquisition of the Service or Professional Services.
8. WARRANTIES AND DISCLAIMER
8.1. Mutual Warranties. FirstClose and Customer each represents and warrants to the other that: (a) it has the necessary power and authority to enter into this Agreement; (b) its execution and performance of this Agreement have been authorized by all necessary corporate or institutional action; (c) its entry into and performance of this Agreement will not conflict with any provision of Applicable Law or its certificate of incorporation, bylaws or comparable organizational documents; (d) no action by any governmental entity is necessary to make this Agreement valid and binding upon it; and (e) it possesses all governmental licenses and approvals necessary to perform its obligations and exercise its rights under this Agreement.
8.2. Disclaimer. SUBJECT TO SECTION 7.1, ALL PRODUCTS AND SERVICES PROVIDED OR MADE AVAILABLE UNDER THIS AGREEMENT (INCLUDING TRANSACTIONAL SETTLEMENT SERVICES) ARE PROVIDED AND MADE AVAILABLE “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS.” FIRSTCLOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES (EXCEPT AS SET FORTH IN SECTION 7.1), EXPRESS OR IMPLIED, INCLUDING: (a) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (b) ANY WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS OF THE PRODUCTS AND SERVICES PROVIDED OR MADE AVAILABLE UNDER THIS AGREEMENT (INCLUDING TRANSACTIONAL SETTLEMENT SERVICES), OR THAT ACCESS TO OR USE OF SUCH PRODUCTS AND SERVICES WILL BE ERROR-FREE, UNINTERRUPTED OR FREE FROM OTHER FAILURES, OR WILL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR VERIFYING THE ACCURACY AND COMPLETENESS OF ALL DATA AND RESULTS SUBMITTED TO OR OBTAINED FROM THE SERVICE BEFORE TAKING OR OMITTING ANY ACTION BASED UPON SUCH DATA OR RESULTS. CUSTOMER SHALL NOT AND HAS NO AUTHORITY TO MAKE ANY WARRANTY ON BEHALF OF FIRSTCLOSE TO ANY USER OR THIRD PARTY CONCERNING THE PLATFORM, THE SERVICE, PROFESSIONAL SERVICES OR ANY TRANSACTIONAL SETTLEMENT SERVICES.
9. LIMITATION OF LIABILITY; REMEDIES
9.1. NO LIABILITY FOR THIRD-PARTY VENDORS. EXCEPT AS SET FORTH IN SECTION 9.2, FIRSTCLOSE SHALL HAVE NO LIABILITY WITH RESPECT TO ANY ACT OR OMISSION OF ANY THIRD-PARTY VENDOR OR TRANSACTION SETTLEMENT SERVICES. CUSTOMER’S SOLE REMEDIES WITH RESPECT THERETO SHALL BE BETWEEN CUSTOMER AND THE APPLICABLE THIRD-PARTY VENDOR.
9.2. REMEDIES FOR TRANSACTIONAL SETTLEMENT SERVICES. To the extent there is any material error or defect in any report, product or service provided as part of any Transactional Settlement Service obtained by Customer hereunder, Customer may seek a refund of the fees paid by Customer to and retained by FirstClose for delivery of the applicable report, product or service to Customer as part of the applicable Transactional Settlement Service. Unless Customer purchases insurance (E&O) coverage offered by FirstClose for such report, product or service, SUCH REFUND WILL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND FIRSTCLOSE’S ENTIRE LIABILITY FOR SUCH ERROR OR DEFECT. IF CUSTOMER PURCHASES INSURANCE (E&O) COVERAGE OFFERED THROUGH THE FIRSTCLOSE PLATFORM, THEN CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES WILL BE AS SET FORTH IN THE APPLICABLE E&O ATTACHMENT TO APPENDIX A OF THE ORDER.
9.3. DISCLAIMER OF DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR COST OF COVER, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS OCCASIONED BY OR RESULTING FROM ANY USE OF (OR INABILITY TO USE) THE PRODUCTS OR SERVICES OBTAINED UNDER THIS AGREEMENT, SUCH AS ANY MALFUNCTION, DEFECT OR FAILURE OF THE PLATFORM, SERVICE, PROFESSIONAL SERVICES OR TRANSACTIONAL SETTLEMENT SERVICES, EVEN IF SUCH PARTY HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE.
9.4. MAXIMUM LIABILITY. THE AGGREGATE LIABILITY OF EITHER PARTY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, STATUTE OR OTHERWISE) IS LIMITED TO DIRECT DAMAGES UP TO THE AMOUNT PAID OR PAYABLE TO FIRSTCLOSE UNDER THIS AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE.
9.5. EXCLUSIONS. THE DISCLAIMERS AND LIMITATIONS SET FORTH IN SECTIONS 9.3 AND 9.4 DO NOT APPLY WITH RESPECT TO A PARTY’S FRAUD, GROSS NEGLIGENCE, WILLFUL MISCONDUCT.
9.6. Allocation of Risk. The allocations of liability in this Section 9 represent the agreed and bargained-for understanding of the parties and voluntary allocation between them of the risk associated with Customer’s access to or use of the Service (or inability to access or use the Service) and, but for this provision, FirstClose would not have made the Service available to Customer hereunder. FirstClose’s compensation reflects such allocations, and the limitations and exclusions will apply notwithstanding the failure of the essential purpose of any limited remedy contained herein.
10.1. By FirstClose. FirstClose shall defend Customer from and against any claim, demand, or action in any form brought by a third party (“Indemnified Claim”) against Customer and indemnify and hold Customer harmless from any damages, liabilities, losses, costs, and expenses, including reasonable attorneys’ and experts’ fees (collectively, “Losses”) arising from the Indemnified Claim, in each case to the extent arising from any allegation that the Platform, as provided to Customer and used within the scope of this Agreement, infringes any U.S. patent, copyright, or trade secret of the third party. Notwithstanding anything to the contrary, FirstClose will have no liability to Customer for any infringement claim of any kind to the extent the claim arises from any Customer Act. This Section 10.1 sets forth FirstClose’s sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to infringement of any intellectual property rights of any kind to the extent arising from Customer’s access to or use of the Platform or Service.
10.2. By Customer. Customer shall defend FirstClose from and against any Indemnified Claim brought against FirstClose and indemnify and hold FirstClose harmless from any Losses arising from the Indemnified Claim, in each case to the extent arising from Customer Acts.
10.3. Rights Upon Infringement. If Customer’s use of the Platform or Service is, or in FirstClose’s opinion is likely to be, enjoined due to the type of infringement specified in Subsection 10.1 above, FirstClose may, at its sole option and expense: (a) procure for Customer the right to continue using the same under the terms of this Agreement; (b) replace or modify the same so that it is non-infringing and continues to provide the same or better functionality; or (c) if options (a) and (b) above are not available to FirstClose on commercially reasonable terms, then FirstClose may terminate Customer’s rights and FirstClose’s obligations hereunder with respect to the applicable Platform or Service elements and refund a prorated portion of any pre-paid Fees paid by Customer therefor based upon Customer’s use to date.
10.4. Conditions Precedent. The indemnifying party will have no obligation under this Section 10 with respect to any Indemnified Claim or Losses associated therewith unless the indemnified party: (a) promptly gives the indemnifying party notice of the Indemnified Claim, provided that failure of the indemnified party to give such prompt notice will not relieve the indemnifying party of any obligation under this Section 10 except to the extent the indemnifying party has been prejudiced thereby; (b) gives the indemnifying party sole and complete control over the defense or settlement of any Indemnified Claim, provided that any settlement must include a complete release of the indemnified party without requiring the indemnified party to make any payment or bear any obligation; and (c) cooperates fully with the indemnifying party, at the indemnifying party’s expense, in the defense or settlement of any Indemnified Claim. The indemnified party shall have the right to retain its own counsel and participate in the defense or settlement of the Indemnified Claim at its own expense.
11. TERM AND TERMINATION
11.1. Term. The term of this Agreement will commence on the effective date of the applicable Order or SOW and will continue in effect for so long as a subscription Order or SOW remains in effect.
Termination. Notwithstanding anything to the contrary, either party may terminate this Agreement: (a) upon a material breach of this Agreement by the other party if such breach remains uncured 30 days after the party gives the other party written notice of the breach; or (b) by either party if the other party becomes insolvent or bankrupt; becomes the subject of any proceeding under bankruptcy, insolvency or debtor’s relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such party’s business.
11.2. Events Upon Termination. Upon expiration or termination of this Agreement for any reason: (a) all rights granted by FirstClose under this Agreement terminate immediately; (b) Customer shall immediately cease all access to and use of the Service; and (c) each party shall immediately cease all use of the other party’s Confidential Information and return or destroy all copies of such Confidential Information that are within its custody or control.
11.3. Survival. Any provision that, by its terms, is intended to survive the expiration or termination of this Agreement will survive such expiration or termination, including Sections: 4, 6, 9, 10, 11, and 12.
12.1. Entire Agreement. This Agreement, including and any schedules and/or attachments annexed hereto or incorporated herein, constitutes the entire agreement of the parties with respect to the subject matter contemplated herein and supersedes any prior or contemporaneous representations, agreements, negotiations, or understandings between them, whether written or oral, with respect to the subject matter hereof. FirstClose may amend, modify, replace, or otherwise update these Terms from time to time. FirstClose shall endeavor to provide reasonable notice of any material updates to the Terms via email, alerts within the Service, or similar. Customer’s continued access or use of the Service after new terms go into effect constitutes acceptance of the updated Terms. The Order may not be amended except in a writing executed by an authorized representative of each party.
12.2. Governing Law and Jurisdiction. The Agreement will be governed by and construed in accordance with the laws of the State of Texas applicable to agreements entered into, and to be performed entirely, within Texas between Texas residents. The parties expressly agree to exclude the application of the U.N. Convention on Contracts for the International Sale of Goods (1980) and the Uniform Computer Information Transactions Act (as enacted by any state) to this Agreement and the performance of the parties contemplated herein, to the extent that such convention or act might otherwise be applicable.
12.3. Arbitration. Any dispute, controversy or claim arising out of this Agreement will be settled by binding arbitration pursuant to the Commercial Rules (or Consumer Rules, to the extent applicable) of the American Arbitration Association (“Rules”) then in effect. Notwithstanding those Rules, the following provisions will apply to such arbitration: (a) Texas law shall apply, (b) the arbitration will be conducted by a single arbitrator; however, at the request of either party, a panel of three arbitrators will conduct the arbitration, with one arbitrator chosen by each of the parties and the third appointed by the other two arbitrators, (c) the fees of the arbitrator(s) shall be equally borne (50/50) by the parties, and (d) the proceedings shall be in the English language and shall take place in Austin, Texas or another location reasonably convenient to both parties. The arbitrator(s) shall reach a binding decision regarding the issues presented as it deems fair, reasonable and appropriate, and such decision shall have the full force and effect of a binding judgment, which may be entered in any court having proper jurisdiction. Notwithstanding this provision, each party may seek injunctive relief in any court of competent jurisdiction. The parties agree to resolve any dispute in arbitration on an individual basis only, and not on a class or collective basis. The arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis. If at any point this provision is determined to be unenforceable, the parties agree that this provision shall not be severable, unless it is determined that the arbitration may still proceed on an individual basis only.
12.4. Relationship of Parties. The parties are independent contractors, and the Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
12.5. Attorneys’ Fees. In any court action at law or equity which is brought by one of the parties to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, in addition to any other relief to which that party may be entitled.
12.6. Equitable Relief. The parties agree that a material breach of the confidentiality provisions set forth in Section 6 or the restrictions set forth in Section 3.3 would cause irreparable injury to FirstClose for which monetary damages alone would not be an adequate remedy, and therefore FirstClose shall be entitled to equitable relief in addition to any other remedies it may have hereunder or at law, without the requirement of posting bond or proving actual damages.
12.7. Force Majeure. Neither party shall be deemed to have breached any provision of the Agreement or be liable in any way for any delay, failure in performance, loss, damage or interruption of service resulting directly or indirectly from acts of God, network failures, acts or orders of civil or military authorities, civil disturbances, wars, endemics, pandemics, public health crises, terrorism, energy crises, fires, transportation contingencies, interruption or failures of communication systems or Internet equipment or service, other catastrophes, equipment failure, acts oor any other occurrences which are beyond the party’s reasonable control.
12.8. U.S. Government Matters. Notwithstanding anything to the contrary, Customer shall not provide to any person or export or re-export or allow the export or re-export of any part of the Platform or Service or any direct product of Professional Services (collectively “Controlled Subject Matter”) in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the generality of the foregoing sentence, Customer acknowledges and agrees that it shall not, and it shall not permit any other party to, use, export or re-export the Controlled Subject Matter in or to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), including in or to any national or resident of an Embargoed Country, or any entity on the United States Department of Treasury’s List of Specially-Designated Nationals or the United States Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Customer represents and warrants that it is not a Designated National or located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the United States Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by FirstClose are “commercial items” and, according to DFAR section 252.227 7014(a)(1) and (5), are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the United States Government is governed solely by the terms of this Agreement and is prohibited except to the extent expressly permitted by the terms of this Agreement.
12.9. Assignment. Neither party may assign this Agreement or delegate any right or obligation hereunder by operation of law or otherwise without the prior written consent of the other party, provided that FirstClose may utilize subcontractors in providing the Service, Professional Services, or Transactional Settlement Services. Notwithstanding the foregoing sentence, FirstClose may assign this Agreement without the consent of Customer as part of any transfer by merger, acquisition, stock transfer or other consolidation of FirstClose with another entity, or sale of all or substantially all of the FirstClose’s assets,. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
12.10. Severability. If any provision of this Agreement is be held to be invalid or unenforceable under Applicable Law, then such provision will be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement.
12.11. Waiver. The failure of either party to enforce at any time the provisions of the Agreement, or the failure to require at any time performance by the other party of any of the provisions of the Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either party to enforce each and every such provision thereafter. The express waiver by either party of any provision, condition or requirement of the Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement. Any waiver of the provisions of this Agreement, or of any breach or default hereunder, must be set forth in a written instrument signed by the party against which such waiver is to be enforced.
12.12. Order of Precedence. If there is a conflict between the terms and conditions of these Terms and any schedules or attachments thereto incorporated by reference, each shall take precedence and govern in the following order: the Attachments to Appendix A of the Order (as to the corresponding Transactional Settlement Services), followed by these Terms, Appendix A of the Order, and the main body of the Order or SOW.
12.13. Notices. All notices required or permitted under the Agreement will be in writing and delivered by confirmed facsimile transmission, by courier or overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth in this Section 12.13 or in the applicable Order or SOW or to such other address as may be specified by either party to the other in accordance with this Section 12.13. Notices to FirstClose should be sent to FirstClose Inc., 10800 Pecan Park Blvd., Suite 310, Austin, TX 78750.
12.14. Publicity. FirstClose may issue a press release, including Customer’s name and logo, to announce the business relationship between Customer and FirstClose described in this Agreement. During the Term, FirstClose may use the name and logo of Customer as is reasonably necessary to provide the Service. FirstClose may display its own name, logo, and other branding on the Platform and any Services it provides to Customer.
12.15. Interpretation. For the purposes of this Agreement: (a) the words “such as,” “include,” “includes” and “including” will be deemed to be followed by the words “without limitation;” (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. This Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
Last Modified: December 21, 2023
NOTE: If you signed an offline version of these terms or have a written services agreement with FirstClose, these terms to do not apply to you and your offline terms govern your use of FirstClose services.
FirstClose Attachments 1-5 to Appendix A