END USER TERMS OF SERVICE
Last updated: February 21, 2023
IMPORTANT – CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE (THESE “TERMS”).
Except to the extent you are entering into these Terms on behalf of an entity that has an existing written agreement with Closinglock, Inc. (“Closinglock”) that expressly covers such entity’s access to and use of the Service (as defined below), these Terms govern access and use of the Service by you and by any entity on whose behalf you will access and use the Service.
SUBJECT TO THE EXCEPTION IN THE PRECEDING PARAGRAPH, BY CLICKING ON THE “ACCEPT” BUTTON BELOW OR PROCEEDING WITH THE ACCESS AND USE OF THE SERVICE, YOU:
(1) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS;
(2) REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS ON BEHALF OF YOURSELF OR, IF APPLICABLE, THE ENTITY IN RESPECT OF WHOM THE LICENSE TO ACCESS AND USE THE SERVICE WAS ORDERED (IN EITHER CASE, “USER”, “YOU”, AND “YOUR”); AND
(3) AFFIRM THAT YOU ARE OVER THE AGE OF EIGHTEEN (18) AND ARE FULLY ABLE AND COMPETENT TO ENTER INTO THESE TERMS AND TO ABIDE BY AND COMPLY WITH THESE TERMS.
IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS SET FORTH IN THESE TERMS, YOU DO NOT HAVE AUTHORITY TO BIND THE ENTITY ON WHOSE BEHALF YOU WILL ACCESS AND USE THE SERVICE, OR YOU DO NOT MEET THE ELIGIBILITY REQUIREMENTS SET FORTH ABOVE, YOU MUST CLICK THE “DECLINE” BUTTON BELOW AND YOU MUST CEASE ALL ACCESS AND USE OF THE SERVICE.
1. License Grant; Restrictions; Ownership
1.1 License Grant. Closinglock hereby grants you a non-exclusive, non-transferable license (without the right to sublicense) to use Closinglock’s proprietary software platform, as hosted and made available for you and others to access via Closinglock’s website currently located at www.closinglock.com, or via mobile application or other agreed means (the “Service”).
1.2 Restrictions. You expressly agree not to (and will not permit or enable any other third party to), directly or indirectly: (a) license, sublicense, modify, copy, reproduce, rent, loan, lease, sell, resell, assign, distribute, grant a security interest in, transfer any right to, commercially exploit, or create derivative works (including, without limitation, improvements, enhancements, revisions, or modifications) based on, the Service or any portion thereof, (b) infringe or violate any of Closinglock’s or its licensors’ intellectual property rights or other rights in the Service; (c) decompile, disassemble, translate, reverse engineer, or otherwise attempt to identify, reconstruct, derive, or discover the source code (or the underlying ideas, user interface techniques, algorithms, structure, or organization) of the Service; (d) remove or alter any identification, copyright, trademark, patent, or other proprietary notice, legend, symbol, or label appearing in the Service; (e) attempt to circumvent or violate the technical restrictions of the Service; (f) publicly disseminate performance information about or analysis of the Service; (g) access the Service in order to build a competitive product or service or to copy any ideas, features, functions, or graphics of the Service; (h) use the Service for any purpose other than as expressly authorized herein; (i) take any action that would cause any part of the Service to be placed in the public domain; (j) challenge Closinglock’s or its licensors’ intellectual property rights in any portion of the Service; (k) share your account password or other login credentials with anyone; (l) send spam or similar unsolicited messages; (m) send or store infringing, obscene, threatening, libelous, defamatory, or otherwise unlawful material; (n) send or store viruses or other harmful or malicious code, files, scripts, agents, or programs; (o) interfere with or disrupt the integrity or performance of the Service or Closinglock’s sites, servers, or networks; or (p) attempt to gain unauthorized access to Closinglock’s systems, networks, infrastructure, or the Service.
1.3 Ownership. Closinglock and its licensors are the sole and exclusive owners of all right, title, and interest, including all intellectual property rights, in and to the Service, including all updates, improvements, enhancements, revisions, modifications, new releases, fixes, patches, and derivative works of the Service. All rights not expressly granted to you in these Terms are reserved for Closinglock and its licensors.
1.4 Feedback. You hereby grant Closinglock a worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid-up right and license to use, copy, modify, sell, publish, distribute, sublicense, and create derivative works based on your suggestions, comments, and feedback regarding the Service (collectively, “Feedback”) in any manner and for any purpose. Closinglock may, in its sole discretion, and without compensation to or attribution of you or any third party, use Feedback in any way, including in future modifications of the Service.
2. Use of the Service
2.1 Your Obligations. You are responsible for: (a) making all arrangements necessary for you to have access to the Service; and (b) ensuring that all persons who access the Service through your internet connection are aware of these Terms and comply with them. To access the Service and many of the resources it offers, you must register for an account. To register for an account you will be asked to provide certain registration details or other information. It is your responsibility to ensure that all the information you provide on the Service is correct, current, and complete. If you choose or are provided with a username, password, or any other piece of information as part of Closinglock’s security procedures, you must treat that information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to use your username, password, or other security information to provide any other person with access to the Service or any portion of it. You will notify Closinglock immediately of any unauthorized access to or use of your username or password or any other breach of security. You will also ensure that you log out from your account at the end of each use of the Service. Closinglock may disable any username, password, or other identifiers at any time in its sole discretion for any reason, including if, in Closinglock’s opinion, you have violated any provision of these Terms.
3. Data Privacy
4. Transaction Payments and Fees
4.1 Transaction Payments. When you use the Service to deliver funds to a closing attorney or similar party (collectively, the “Escrow”), whether as a property buyer or lender, you may authorize Closinglock to initiate a debit to your bank account (the “Bank Account”) for the amount of the intended payment (the “Transaction Payment”) and arrange for the transfer of such Transaction Payment to the Escrow. When you provide such authorization, you represent and warrant to Closinglock that: (a) the Bank Account to be debited is held in your name, solely or with another person; (b) you have full authority to authorize the debit to such Bank Account in the amount of the Transaction Payment; and (c) you have sufficient available funds in the Bank Account to fully fund the Transaction Payment and will have sufficient available funds in the Bank Account to fully fund the Transaction Payment on the date that you have authorized the Bank Account to be charged. You also acknowledge and agree that you are not authorized to stop the debit to the Bank Account of the Transaction Payment once you have authorized it. In addition, you acknowledge that, if you deny having authorized the debit to the Bank Account for the Transaction Payment when in fact you have authorized it, and if as a result of such denial the debit to the Bank Account is reversed, you will be fully liable to Closinglock for the amount of that Transaction Payment and that Closinglock may pursue all such civil and criminal remedies against you as are permitted by applicable law.
4.2 Transaction Payment Fees. For each Transaction Payment that you authorize to be debited from your Bank Account, you agree to pay to Closinglock a transaction fee in the amount disclosed on the payment authorization you agree to when authorizing such debit.
5. Term and Termination
5.1 Term. These Terms will commence on the Effective Date and will continue for a period of ninety (90) days, unless earlier terminated in accordance with this Section 5. You may terminate these Terms and your use of the Service at any time upon notice to Closinglock. Closinglock may terminate these Terms and your use of the Service at any time without prior notice.
5.2 Effect of Termination. Upon termination or expiration for any reason, (a) you must immediately cease all use of the Service, and (b) the licenses granted to you in these Terms will immediately and automatically terminate and revert to Closinglock. Sections 1.2, 1.3, 1.4, 5.2, and 6 through 9, and any other sections that, by their express terms or their nature should survive termination or expiration of these Terms, will survive such termination or expiration.
6. Limited Warranties; Disclaimer of Additional Warranties
6.1 Limited Warranty. Closinglock will use commercially reasonable efforts to provide the Service in a manner that minimizes errors and interruptions. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Closinglock or by third-party providers, or because of other causes beyond Closinglock’s reasonable control. Closinglock will use reasonable efforts to provide advance notice in writing (including by e-mail) regarding any scheduled disruption. Your sole and exclusive remedy for any breach of the warranties set forth in this paragraph will be to notify Closinglock of the applicable non-conformity, in which case Closinglock will use commercially reasonable efforts to correct such non-conformity by re-establishing access to the Service. Closinglock will not be responsible for any non-conformity that arises as a result of (a) your acts or omissions, including a failure to use the Service in conformance with these Terms or any related documents; (b) any person other than Closinglock making modifications to the Service; or (c) any failure of any component of hardware, software, or other materials not supplied by Closinglock under these Terms.
6.2 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.1, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CLOSINGLOCK MAKES NO WARRANTY, REPRESENTATION, GUARANTY, OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, SECURITY, ACCURACY, COMPLETENESS, TITLE, OR NON-INFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO THE SERVICE OR ANY OF THE CONTENT, SERVICES, OR PRODUCTS PROVIDED IN CONNECTION THEREWITH. CLOSINGLOCK DOES NOT REPRESENT, WARRANT, OR GUARANTY THAT (A) THE SERVICE WILL BE 100% SECURE OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER APPLICATION, SOFTWARE, HARDWARE, SERVICE, OR DATA; (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (C) ANY DATA STORED USING THE SERVICE WILL BE ACCURATE, RELIABLE, OR 100% SECURE; (D) ERRORS OR DEFECTS IN THE SERVICE WILL BE CORRECTED; OR (E) THE SERVICE OR ANY THIRD-PARTY PRODUCTS OR SERVICES USED BY CLOSINGLOCK IN CONNECTION WITH THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CLOSINGLOCK DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR GUARANTIES OF ANY KIND, AND WILL HAVE NO RESPONSIBILITY WHATSOEVER, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS, SERVICES, CONTENT, OR OTHER MATERIALS OFFERED, ACCESSED, ENCOUNTERED, OR OBTAINED BY YOU THROUGH THE USE OF THE SERVICE.
7. Indemnification and Limitation of Liability
7.1 You will defend, indemnify and hold harmless Closinglock and its affiliates, officers, directors, members, managers, equity holders, employees, insurers, legal counsel, representatives, and agents (each an “Indemnitee”) from and against any and all claims (including, without limitation, any investigation, action, or other proceeding, whether instituted by a third party against an Indemnitee or by an Indemnitee for the purpose of enforcing its rights hereunder), damages, losses, liabilities, costs, and expenses (including, without limitation, attorneys’ fees and court costs) that constitute, or arise out of or in connection with (a) your breach of any of your representations, warranties, agreements, or covenants set forth in these Terms; or (b) your use or misuse of the Service.
7.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLOSINGLOCK’S MAXIMUM CUMULATIVE LIABILITY FOR ANY CAUSE WHATSOEVER ARISING UNDER OR RELATED TO THESE TERMS WILL BE LIMITED TO ONE HUNDRED DOLLARS ($100 USD). NEITHER CLOSINGLOCK NOR ITS AFFILIATES OR LICENSORS WILL BE LIABLE TO YOU OR ANY OTHER THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR MULTIPLE DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFITS, BUSINESS INTERRUPTION, LOSS OF GOODWILL, USE OR LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, AND SYSTEM DOWNTIME) IN CONNECTION WITH OR ARISING OUT OF (A) THE SERVICE, (B) ANY THIRD-PARTY PRODUCTS, SERVICES, CONTENT, OR OTHER MATERIALS OFFERED, ACCESSED, ENCOUNTERED, OR OBTAINED ON, WITH, OR THROUGH THE USE OF THE SERVICE, OR (C) THESE TERMS (INCLUDING, WITHOUT LIMITATION, FOR CLOSINGLOCK’S PERFORMANCE OR THE FAILURE OF SUCH PERFORMANCE HEREUNDER OR FOR ANY BREACH BY CLOSINGLOCK HEREOF), REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH CLAIM IS BASED (WHETHER CONTRACT, TORT, OR OTHERWISE) AND EVEN IF CLOSINGLOCK IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.3 YOU EXPRESSLY AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY UNDER THESE TERMS FOR CLOSINGLOCK’S PERFORMANCE OR THE FAILURE OF SUCH PERFORMANCE HEREUNDER, OR FOR ANY BREACH BY CLOSINGLOCK OF THESE TERMS, WILL BE AS SET FORTH IN THE PRECEDING PARAGRAPH. YOU ACCEPT THE RESTRICTIONS ON YOUR RIGHT TO RECOVER ADDITIONAL DAMAGES AS PART OF YOUR BARGAIN WITH CLOSINGLOCK AND YOU UNDERSTAND AND ACKNOWLEDGE THAT, WITHOUT SUCH RESTRICTIONS, THE FEES WOULD BE HIGHER.
8. Choice of Law; Mandatory Arbitration; and Venue
8.2 Arbitration Agreement. The terms of this Section 8.2 apply only to Users in the United States.
(a) Dispute resolution and arbitration. You and Closinglock agree that any dispute, claim, or controversy between you and Closinglock arising in connection with or relating in any way to these Terms or to your relationship with Closinglock as a user of the Service (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination of these Terms) will be determined by mandatory binding individual (not class) arbitration. You and Closinglock further agree that the arbitrator will have the exclusive power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of this Section 8.2 or to the arbitrability of any claim or counterclaim. Arbitration is more informal than a lawsuit in court. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. There may be more limited discovery than in court. The arbitrator must follow these Terms and can award the same damages and relief as a court (including attorney fees), except that the arbitrator may not award any relief, including declaratory or injunctive relief, benefiting anyone but the parties to the arbitration. This arbitration provision will survive termination of these Terms.
(b) Exceptions. Notwithstanding Section 8.2(a), you and Closinglock both agree that nothing in this Section 8 will be deemed to waive, preclude, or otherwise limit either party’s right, at any time, to (i) bring an individual action in a U.S. small claims court or (ii) bring an individual action seeking only temporary or preliminary individualized injunctive relief in a court of law, pending a final ruling from the arbitrator. In addition, this Section 8 does not prevent you or Closinglock from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against Closinglock on your behalf (or vice versa).
(c) No Class Or Representative Proceedings: Class Action Waiver. YOU AND CLOSINGLOCK AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and Closinglock agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
(d) Arbitration rules. Either you or Closinglock may start arbitration proceedings. Any arbitration between you and Closinglock will take place under the Consumer Arbitration Rules of the American Arbitration Association (“AAA”) then in force (the “AAA Rules”), as modified by this Section 8. You and Closinglock agree that the Federal Arbitration Act applies and governs the interpretation and enforcement of this provision (despite the choice of law provision above). Any arbitration hearings will take place in Austin, Texas, provided that if the claim is for $25,000 or less, you may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits.
(e) Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail, Federal Express, UPS, or Express Mail (signature required), or in the event that Closinglock does not have a physical address on file for you, it may send notice by electronic mail (“Notice”). Closinglock’s address for Notice is set forth below in Section 9. The Notice must (i) describe the nature and basis of the claim or dispute, and (ii) set forth the specific relief sought. You and Closinglock each agree to use good faith efforts to resolve the claim directly, but if such an agreement is not reached within thirty (30) days after the Notice is received, each party may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Closinglock will not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. All documents and information disclosed in the course of the arbitration will be kept strictly confidential by the recipient and will not be used by the recipient for any purpose other than for purposes of the arbitration or the enforcement of the arbitrator’s decision and award and will not be disclosed except in confidence to persons who have a need to know for such purposes or as required by applicable law.
(f) Enforceability. If this Section 8 is invalidated in whole or in part, the parties agree that the exclusive jurisdiction and venue described in Section 8.1 will govern any claim in court arising out of or related to these Terms.
9.1 Government End Users. The Service and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights reserved under the copyright laws of the United States.
9.2 Export Control. You agree not to use or otherwise export or re-export the Service except as authorized by United States law and the laws of the jurisdiction(s) in which you are a resident or otherwise use the Service. In particular, but without limitation, the Service may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List or any other restricted party lists. By using the Service, you represent and warrant that you are not located in any such country or on any such list.
9.3 Assignment. You may not assign any of your rights or delegate or cause to be assumed any of your obligations hereunder without Closinglock’s prior written consent (which consent may be withheld in Closinglock’s sole and absolute discretion). Closinglock may freely assign, transfer, or delegate its rights or obligations under these Terms at any time without prior notice to you. Any attempted assignment, delegation, or assumption not in accordance with this paragraph will be null and void and of no force or effect whatsoever. These Terms will inure to the benefit of and be binding upon the respective successors and permitted assigns of the parties.
9.4 Notices. Any Notice, demand or request required or permitted under these Terms will be in writing and deemed delivered (a) when delivered personally (including by recognized national courier), (b) five (5) business days after deposited in the U.S. mail, first class mail, registered or certified, with postage prepaid; or (c) one (1) business day after sent via email. Notices to Closinglock will be addressed to Closinglock, Inc, PO Box 200343, Austin, TX 78720, [email protected]. Notices to you will be addressed to the mailing address and email address on file with Closinglock.
9.5 Severability. If any provision of these Terms is held invalid or otherwise unenforceable, the enforceability of the remaining provisions will not be impaired thereby and the illegal provision will be replaced with a legal provision that encapsulates the original intent of the parties.
9.6 Changes to these Terms. Closinglock may make changes to the Services and/or these Terms at any time in its sole discretion and without prior notice, effective immediately upon posting to the Service. Closinglock will endeavor to notify you in advance of any updates and amendments to these Terms. Your use of the Service after such posting will be deemed to constitute your acceptance of all updates and amendments included the updated Terms. Closinglock may, at its discretion, give you the option of accepting such updated terms via a click-through or similar process on the Service.
9.7 Entire Agreement; Amendment; Waiver. These Terms constitute the entire agreement between the parties and supersede any prior or contemporaneous agreement or understandings with respect to the subject matter of these Terms. These Terms will be construed as if both parties had equal involvement in their drafting, and thus will not be construed against the drafter. No waiver or consent granted for one matter or incident will be a waiver or consent for any different or subsequent matter or incident. To be effective, waivers and consents must be in writing and signed by an authorized representative of the applicable party. If you submit your own terms in any acceptance, purchase order, or other standard document which add to, vary from, or conflict with the terms herein, any such terms are of no force and effect and are superseded by these Terms.
9.8 Counterparts. These Terms may be executed in any number of counterparts, each of which will be deemed an original, and such counterparts together will constitute one and the same instrument. Execution may be effected by delivery of email or facsimile of signature pages, which will be deemed originals in all respects.