BUYERDOCS TITLE COMPANY SERVICE AGREEMENT
Last updated: October 24th, 2017
This BUYERDOCS TITLE COMPANY SERVICE AGREEMENT (this “Agreement”) is made as of the Effective Date (as set forth on the signature page below), by and between BUYERDOCS, LLC, a Texas limited liability company (“ClosingLock”) and the party agreeing to these terms and conditions by clicking or checking the “Accept” icon pertaining to this Agreement on the ClosingLock website (“Title Company”). This Agreement is effective as of the date Title Company clicks or checks such “Accept” icon (the “Effective Date”). ClosingLock and Title Company are sometimes referred to as the “Parties” and each individually as a “Party”.
A. ClosingLock has developed and operates an Internet website located at www.closinglock.com (the “Site”), and operates on the Site an online, Web-based software service which allows title companies and buyers to securely share wire transfer information (the “Service”).
B. Title Company desires to subscribe to and use the Service.
Therefore, the Parties agree as follows with the intent to be legally bound.
1. License of Software. Title Company hereby subscribes to the Service. In connection with Title Company’s subscription, Title Company agrees to perform Title Company’s obligations described in this Agreement. Title Company agrees to use, and ClosingLock agrees to provide, the Service under the terms and subject to the conditions in this Agreement. As used herein, the term “Service” expressly includes, without limitation, (a) the Site, (b) the ClosingLock software applications (including, without limitation, all source and object code related thereto), (c) all documentation related to the Site and such software applications (including, without limitation, all operator and user manuals, training materials, guides, listings, drawings, reports, descriptions, and specifications describing the performance, functionality, operation and use of such applications), and (c) all content provided on and delivered through the Site and such software applications.
2. License Grant; Use of Software.
(a) License. ClosingLock grants to Title Company a non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable, limited right and license to access and use of the Service during the Term (as defined below) solely for the purpose of sharing wire transfer information with buyers for whom the Title Company is serving as the title company for such buyers’ residential or commercial real property purchase. Subject to the limited rights expressly granted hereunder, ClosingLock reserves all right, title and interest in and to the Service, including all related intellectual property rights. No rights are granted to Title Company hereunder other than as expressly set forth in this Agreement.
(b) Title Company Responsibilities and Obligations.
(i) Title Company is solely responsible for (A) all activities occurring under Title Company’s and Title Company’s employees’ accounts; (B) maintaining the confidentiality of Title Company’s account and password and creating secure passwords; (C) the content of all documents and data submitted by Title Company and its employees to and through the Service (including, without limitation, the wire transfer instructions provided to buyers); (D) setting and modifying Title Company’s profile and preferences for the Service; and (E) the use of the Service by Title Company’s employees.
(ii) Title Company shall (A) offer buyers without access to the Site with an alternate means of obtaining the wire instructions related to such buyers’ residential or commercial real property purchase; (B) prevent unauthorized access to, or use of, the Service, and will notify ClosingLock promptly of any unauthorized use Title Company becomes aware of; and (C) comply with all applicable local, state, federal and foreign laws, treaties and regulations in using the Service, and other laws and regulations governing data privacy, international communications, and transmission of technical or personal data) (collectively, “Laws”).
(iii) Title Company shall use the Service solely for the purposes permitted pursuant to Section 2(a) above. Except as expressly set forth in this Agreement, Title Company shall not (A) make the Service available to any third party; (B) share Title Company’s account password and login credentials with any third party; (C) use, or attempt to use, any content obtained through the Service for any commercial purpose, or share such content with any third party; (D) send spam or similar unsolicited messages; (E) send or store infringing, obscene, threatening, libelous, defamatory, or otherwise unlawful material; (F) send or store viruses or other harmful or malicious code, files, scripts, agents or programs; (G) interfere with or disrupt the integrity or performance of the Service or ClosingLock’ sites, servers, or networks; or (H) attempt to gain unauthorized access to ClosingLock’ systems, networks, infrastructure, or the Service.
(c) Ownership of the Service.
(i) The Service (including, without limitation, the software, technology, and documentation incorporated in and underlying the Service) is ClosingLock’ sole and exclusive property. Subject to the limited rights expressly granted in this Agreement, ClosingLock reserves all right, title and interest in and to the Service (including, without limitation, all software, technology, and documentation, as well as all derivative works thereof), including all related intellectual property and proprietary rights (including, without limitation, all copyrights, patent rights, trademark and service mark rights, trade secret rights, and moral rights). No rights are granted to Title Company other than as expressly described in this Agreement.
(ii) ClosingLock is also the sole and exclusive owner of (A) all updates, improvements, enhancements, revisions, modifications, new releases and versions, fixes, patches, and derivative works of the Service, (B) all including, without limitation, all operator and user manuals, training materials, guides, listings, drawings, reports, descriptions, and specifications describing the performance, functionality, operation and use of such applications, and other supporting documentation related to the Service, in whatever form recorded, and (C) all integrations, customizations, components, modules, workflows or other work product produced by ClosingLock (whether alone or jointly with Title Company) for Title Company. Any of the items described in this Section 2(c)(ii) that are provided by ClosingLock, in ClosingLock’ sole discretion, to Title Company will be deemed to be included in the definition of the “Service” hereunder and available for use by Title Company under the terms and subject to the conditions in this Agreement.
(iii) As used herein, “Intellectual Property” means any and all discoveries, improvements, ideas, concepts, creative works, processes, methods, formulas, techniques, know-how, designs, works of authorship, trade secrets, copyrights, patent rights, trademarks, service marks, and any other intellectual property that relates to, or is used to develop or improve, the Service.
Any Intellectual Property (A) made, conceived, developed, or reduced to practice, or caused to be made, conceived, developed, or reduced to practice, by Title Company, alone or in conjunction with others, during the Term and (B) disclosed to ClosingLock (whether orally, in writing, electronically or otherwise) (“Service-Related IP”) will be deemed to have been made or developed by Title Company solely for ClosingLock’ benefit, will be held in trust for ClosingLock’ exclusive use and benefit, and will be ClosingLock’ sole and exclusive property. Title Company will not, either during the Term of this Agreement or at any time thereafter, use or disclose to any party Service-Related IP. Title Company agrees to assign, and does hereby assign, to ClosingLock all right, title, and interest in and to any Service-Related IP, including, without limitation, any “moral” rights which Title Company may have in the Service-Related IP under any copyright law or other similar law. Title Company also agrees, during the Term of this Agreement and at any time thereafter, at ClosingLock’ request and expense but without further consideration, to review, execute, acknowledge, and deliver any and all papers necessary to secure legal protection for Service-Related IP in any country in the world. Without limiting the generality of the foregoing, ClosingLock may, in its sole discretion, incorporate the Service-Related IP into the Service.
(iv) Title Company expressly agrees not to (and will not authorize any third party to): (A) license, sublicense, modify, copy, reproduce, rent, loan, lease, sell, resell, assign, distribute, grant a security interest in, transfer any right to, commercially exploit, create derivative works (including, without limitation, improvements, enhancements, revisions or modifications) based on, or infringe or violate, ClosingLock’ intellectual property or other rights in, the Service; (B) 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; (C) remove or alter any identification, copyright, trademark, patent, or other proprietary notices, legends, symbols, or labels appearing in the Service; (D) directly or indirectly circumvent or violate the technical restrictions of the Service; (E) publicly disseminate performance information about or analysis of the Service; (F) access the Service in order to (1) build a competitive product or service, or (2) copy any ideas, features, functions or graphics of the Service; (E) use the Service for any purpose other than as expressly authorized herein; (G) take any action that would cause any part of the Service to be placed in the public domain; or (H) challenge the validity of the copyright or any other rights of ClosingLock to the Service or title or interest thereto.
(v) Provided that ClosingLock does not personally identify Title Company (and subject to ClosingLock’ confidentiality obligations under Section 10(b) below), Title Company hereby grants ClosingLock the right to use the data generated, in aggregated form where applicable, from Title Company’s use of the Service to maintain, support, and improve the Service, and for any other legal purpose.
(d) Modification of the Service. ClosingLock shall be entitled to modify, change, and upgrade the functionality, features, and capabilities of the Service and the underlying technical infrastructure, in its sole and absolute discretion.
(a) Fees. ClosingLock will provide Title Company with access to and use of the Service for the fees described in Exhibit A, and Title Company agrees to pay such fees. All fees paid to ClosingLock are non-refundable. ClosingLock reserves the right to adjust the fees at any time at ClosingLock’ sole and absolute discretion.
(b) Late Fees; Taxes. ClosingLock may charge interest on all overdue fees at a rate equal to one and one-half percent (1.5%) per month (or, if lower, the maximum allowable by applicable Laws) on the unpaid amount until such amounts are paid. Title Company will be solely responsible for, and will pay, any sales, use, transaction privilege, gross receipts, goods and services, value-added, and personal property taxes, any other taxes and levies, and any interest and penalties related to the foregoing (other than taxes based on ClosingLock’ income) that are imposed by any governmental authority in connection with this Agreement.
(c) Suspension. If Title Company fails to pay, when due, any fees, late fees, or other charges due to ClosingLock under this Agreement, ClosingLock may, in ClosingLock’ sole and absolute discretion and upon written notice to Title Company, immediately suspend Title Company’s use of the Service. Title Company expressly acknowledges and agrees that ClosingLock will have no liability to Title Company whatsoever if ClosingLock elects to suspend Title Company’s use of the Service (even if ClosingLock has been advised of the possibility of damages (which include, but are not limited to, damages for injury to person or property, loss of revenue or profits, business interruption, loss of goodwill, use or loss of data, and/or the claims of third parties)).
5. Term and Termination.
(a) Term. The initial term of this Agreement will commence on the Effective Date and will continue for the period set forth on Exhibit A hereto (the “Initial Term”). Upon expiration of the Initial Term, this Agreement will automatically renew for additional, successive renewal terms as set forth on Exhibit A hereto (each a “Renewal Term” and the Initial Term and all Renewal Terms are collectively referred to in this Agreement as the “Term”), unless either Party provides written notice of non-renewal at least thirty (30) days prior to the end of the Initial Term or the Renewal Term then in effect.
(b) Termination. Either ClosingLock or Title Company may terminate this Agreement at any time by providing notice to the other Party.
(c) Effect of Termination.
(i) When this Agreement expires or is terminated, (A) Title Company will immediately stop using the Service, (B) Title Company’s license to the Service will immediately terminate, (C) ClosingLock will immediately cease provision of the Service the Title Company, and (D) Title Company will pay ClosingLock, within three (3) days following the expiration date, all fees and other charges which accrued prior to such expiration or termination date but remain unpaid. Title Company expressly acknowledges and agrees that ClosingLock will have no liability to Title Company whatsoever with respect to the termination of Title Company’s use of the Service (even if ClosingLock has been advised of the possibility of damages (which include, but are not limited to, damages for injury to person or property, loss of revenue or profits, business interruption, loss of goodwill, use or loss of data, and/or the claims of third parties)).
(ii) Title Company will also pay any damages, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) that arise out of or in connection with any breach of this Agreement occurring prior to or after the expiration or termination hereof.
6. Representations and Warranties. Title Company represents and warrants to, and covenants with, ClosingLock as follows:
(a) Title Company has the requisite power and authority to execute, deliver, and perform Title Company’s obligations under this Agreement.
(b) Title Company’s execution, delivery, and performance of this Agreement, and the consummation of the transactions described in this Agreement, have been authorized by all necessary actions on Title Company’s part. This Agreement is valid and binding on Title Company, enforceable against Title Company in accordance with its terms.
(c) The execution, delivery and performance of this Agreement by Title Company do not and will not (i) conflict with, or constitute a default (now or in the future) of any agreement, instrument or other understanding to which Title Company are bound, or (ii) result in a violation of any Laws, judgment, injunction, decree or other restriction of any court or governmental authority to which Title Company is subject.
(d) No consent, approval, order or authorization of, or registration, declaration or filing with, any government authority, body, or any other party is required by Title Company to execute, deliver, and perform under this Agreement.
7. Disclaimers. THE SERVICE IS PROVIDED ON AN "AS IS" BASIS. BUYERDOCS 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. BUYERDOCS 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 TITLE COMPANY’S REQUIREMENTS OR EXPECTATIONS; (c) ANY DATA STORED USING THE SERVICE WILL BE ACCURATE, RELIABLE, OR SECURE; (d) ERRORS OR DEFECTS IN THE SERVICE WILL BE CORRECTED; OR (e) THE SERVICE OR THE THIRD PARTY PRODUCTS OR SERVICES USED BY BUYERDOCS IN CONNECTION WITH THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. BUYERDOCS 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 TITLE COMPANY THROUGH THE USE OF THE SERVICE.
8. Limitation of Liability.
(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BUYERDOCS WILL NOT BE LIABLE TO TITLE COMPANY, ANY BUYER, OR ANY OTHER THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLE DAMAGES IN CONNECTION WITH OR ARISING OUT OF (i) THE SERVICE, (ii) ANY THIRD PARTY PRODUCTS, SERVICES, CONTENT OR OTHER MATERIALS OFFERED, ACCESSED, ENCOUNTERED OR OBTAINED ON, WITH, OR THROUGH THE USE OF THE SERVICE, OR (ii) THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, FOR BUYERDOCS’ PERFORMANCE OR THE FAILURE OF SUCH PERFORMANCE HEREUNDER, OR FOR ANY BREACH BY BUYERDOCS HEREOF), REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH CLAIM IS BASED (WHETHER CONTRACT, TORT OR OTHERWISE) AND EVEN IF BUYERDOCS IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR INJURY TO PERSON OR PROPERTY, LOSS OF REVENUE OR PROFITS, BUSINESS INTERRUPTION, LOSS OF GOODWILL, USE OR LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SYSTEM DOWNTIME, AND THE CLAIMS OF THIRD PARTIES). IF ANY JURISDICTION DOES NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLE DAMAGES, BUYERDOCS’ LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW AND IN NO EVENT WILL SUCH LIABILITY EXCEED ONE HUNDRED DOLLARS ($100.00).
(b) TITLE COMPANY EXPRESSLY AGREES THAT TITLE COMPANY’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT FOR BUYERDOCS’ PERFORMANCE OR THE FAILURE OF SUCH PERFORMANCE HEREUNDER, OR FOR ANY BREACH BY BUYERDOCS HEREOF, WILL BE TO TERMINATE THIS AGREEMENT PURSUANT TO SECTION 5(b) ABOVE. TITLE COMPANY ACCEPTS THE RESTRICTIONS ON TITLE COMPANY’S RIGHT TO RECOVER ADDITIONAL DAMAGES AS PART OF TITLE COMPANY’S BARGAIN WITH BUYERDOCS, AND TITLE COMPANY UNDERSTANDS AND ACKNOWLEDGES THAT, WITHOUT SUCH RESTRICTIONS, THE FEES WOULD BE HIGHER.
9. Indemnification. Title Company will defend, indemnify and hold harmless ClosingLock and ClosingLock’ 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 (i) any breach by Title Company of Title Company’s representations, warranties, agreements and covenants set forth in this Agreement; (ii) Title Company’s use or misuse of the Service; or (iii) any buyer’s use of the Service to obtain from Title Company any wire instructions or other information.
(a) Audit. ClosingLock reserves the right to audit Title Company’s compliance with this Agreement. Title Company will allow ClosingLock and/or ClosingLock’ representatives with access to the Title Company’s books, records, and personnel as is necessary to determine such compliance.
(i) Except as provided in Section 10(b)(ii) below, during the Term of this Agreement and at all times thereafter, Title Company will (A) keep confidential and not divulge, furnish or make accessible to any third party any Confidential Information, and (B) use the Confidential Information solely for purpose of utilizing the Service during the Term pursuant to the terms and conditions set forth in this Agreement and not for the benefit of any third party.
(ii) Title Company shall be permitted to disclose Confidential Information to the extent, but only to the extent, (A) ClosingLock provides ClosingLock’ express prior written consent to such disclosure; or (B) required by law; provided, that prior to making any disclosure of Confidential Information required by law (whether pursuant to a deposition, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand, or other similar process), Title Company must notify ClosingLock of Title Company’s intent to make such disclosure, so that ClosingLock may seek a protective order or other appropriate remedy and may participate with Title Company in determining the amount and type of Confidential Information, if any, which must be disclosed in order to comply with applicable law.
(iii) Promptly after the expiration or termination of this Agreement or upon ClosingLock’ request at any time, Title Company shall return to ClosingLock, or confirm in writing the destruction of, any Confidential Information which is in tangible form and which is then in Title Company’s possession. As used herein, “Confidential Information” means all information concerning or related to ClosingLock’ business, operations, financial condition or prospects (whether prepared by ClosingLock, ClosingLock’ affiliates or advisors, or otherwise, and regardless of the form in which such information appears and whether or not such information has been reduced to a tangible form), and shall specifically include (without limitation): (A) all information regarding ClosingLock’ members, managers, officers, directors, employees, equity holders, customers, sales representatives, dealers, and licensees, in each case whether past, present or prospective; (B) all of ClosingLock’ Intellectual Property, software, inventions, discoveries, trade secrets, processes, techniques, methods, formulae, ideas and know-how (including, without limitation, the Software); (C) all of ClosingLock’ financial statements, audit reports, budgets and business plans and forecasts; and (D) all analyses, compilations, forecasts, data studies, notes, translations, memoranda, or other documents or materials, prepared by or for Title Company containing, based on, generated or derived from, in whole or in part, any Confidential Information.
(c) Title Company Reference. During the Term and at all times thereafter, ClosingLock has the right to (i) reference Title Company as a customer (or former customer) of ClosingLock in all advertising, marketing and promotional materials designed to promote ClosingLock and its products and services anywhere in the world (with such reference to include Title Company’s name, logo, and any quotes provided by Title Company), (ii) distribute a public announcement indicating that Title Company has selected ClosingLock’ Service (which announcement will include any quotes provided by Title Company), and (iii) provide Title Company as a reference for future potential customers of ClosingLock. Title Company hereby grants to ClosingLock a non-exclusive, royalty-free, paid-up, perpetual, worldwide, assignable, sublicensable license to use Title Company’s name, logo and any quotes provided by Title Company in ClosingLock’ advertising, marketing and promotional materials as set forth above. Title Company agrees that no monetary or other consideration shall be due from ClosingLock for the rights granted or the uses described in this Section 10(c).
(d) Entire Agreement; Amendment. This Agreement (including, without limitation, all Exhibits hereto) constitutes the entire agreement of the Parties with respect to the transactions contemplated hereby and supersedes all prior and contemporaneous written and oral agreements, representations and communications between the Parties relating to such transactions. ClosingLock may amend this Agreement, or any provision thereof, or add or remove terms at any time, and such amendments, additions or deletions will be effective immediately upon posting to the Site. Title Company’s use of the Site and the Service after such posting shall be deemed to constitute acceptance by Title Company of such amendments, additions or deletions.
(e) Electronic Signatures Effective. This Agreement is an electronic contract that sets out the legally binding terms of Title Company’s subscription to the Service. Title Company indicates its acceptance of this Agreement by clicking or checking the “Accept” icon in connection with its subscription to the Service. This action creates an electronic signature that has the same legal force and effect as a handwritten signature. By clicking or checking the “Accept” icon, Title Company agrees to the terms and conditions contained or referenced in this Agreement. When Title Company clicks or checks the “Accept” icon, Title Company also consents to have this Agreement provided to it in electronic form. Title Company is encouraged to print a copy of this Agreement for its records.
(f) Equitable Relief. Title Company acknowledge and agrees that ClosingLock would be irreparably damaged in the event that any of the provisions of Sections 2(b), 2(c), 5(c), 10(a) and 10(b) are not performed by Title Company in accordance with their specific terms or are otherwise breached, and that money damages would not be a sufficient remedy for such breach. Accordingly, Title Company agrees that ClosingLock will be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach, without any requirement to post bond or other security or to prove actual damage or harm. Such remedies shall not be deemed to be the exclusive remedies for any such breach but shall be in addition to all other remedies available at law or in equity.
(g) Expenses. Except as may otherwise be specifically provided in this Agreement, each Party is responsible for any expenses incurred in connection with the negotiation, preparation, execution, delivery, and performance of this Agreement.
(h) Force Majeure. ClosingLock shall not be liable to Title Company for any delay in or failure of ClosingLock’ performance under this Agreement (including, without limitation, ClosingLock’ failure to make available the Service or any component thereof) resulting from any act of God, fire, flood, explosion or other natural disaster, actions or impositions by Federal, state or local authorities, strike, labor dispute, vandalism, riot, commotion, act of public enemies, blockage or embargo or any other cause beyond ClosingLock’ reasonable control (“Force Majeure”). Upon the occurrence of any such event that results in, or will result in, a delay or failure to perform, ClosingLock shall be relieved from fulfilling ClosingLock’ obligations under this Agreement during the period of such Force Majeure event.
(i) Governing Law; Consent to Jurisdiction. This Agreement is governed by, and shall be construed and enforced in accordance with, the laws of the State of Delaware, without giving effect to any conflict of laws rules, and each Party irrevocably submits to the exclusive jurisdiction of the federal and state courts located in Austin, Texas for the purposes of any action or proceeding arising out of or relating to this Agreement. Each Party hereby consents to such jurisdiction and agrees that venue shall lie in the state or federal courts in Austin, Texas with respect to any claim or cause of action arising under or relating to this Agreement. Each Party hereby waives any objection based on forum non conveniens and waives any objection to venue of any action instituted under this Agreement. If any legal action or any arbitration or other proceeding is brought in connection with this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys’ fees, accounting fees, and other costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(j) Non-Disparagement. During the Term of this Agreement, Title Company agrees that Title Company will not make any statements (or cause or encourage others to make any statements), written or verbal, that defame or disparage ClosingLock or the Service.
(k) Notices. Any notice, demand or request required or permitted under this Agreement shall be in writing and deemed delivered (i) when delivered personally (including by recognized national courier), (ii) five (5) business days after deposited in the U.S. mail, first class mail, registered or certified, with postage prepaid; or (iii) one (1) business day after sent via email. Notices to (A) ClosingLock shall be addressed to ClosingLock, LLC, PO Box 200343, Austin, TX 78720, Attn: Andrew White, Email: [email protected], and (B) Title Company shall be addressed to the mailing address and email address on file with ClosingLock.
(l) Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
(m) Successors and Assigns. Title Company may not assign Title Company’s rights or delegate or cause to be assumed Title Company’s obligations hereunder without ClosingLock’ prior written consent (which consent may be withheld in ClosingLock’ sole and absolute consent). Any attempted assignment, delegation or assumption not in accordance with this Section 10(m) shall be null and void and of no force or effect whatsoever. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns of the Parties.
(n) Survival. The provisions of Sections 2(b)-(d), 4, 5(c), 6-10 and the portions of Exhibit A referenced therein will survive any termination or expiration of this Agreement.
(o) Waivers. The due performance or observance by the Parties of their respective obligations under this Agreement shall not be waived, and the rights and remedies of the Parties shall not be affected, by any course of dealing or performance or by any delay or failure of any Party in exercising any such right or remedy. The due performance or observance by a Party of any of its obligations under this Agreement may be waived only by a writing signed by the Party against whom enforcement of such waiver is sought.
(End of Agreement)
Title Company will pay a fee per transaction (i.e., each time Title Company uses the Service to make wire transfer information and related documents available to a buyer).
Within five (5) days after the end of each calendar month, Title Company will pay to ClosingLock all fees that have accrued during such calendar month.
Term of Agreement
Initial Term: 12 months from the Effective Date
Renewal Terms: 12 months each