CLOSINGLOCK
COMPANY SERVICE AGREEMENT
Last updated: September 3, 2024
IMPORTANT – CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THIS COMPANY SERVICE AGREEMENT (THIS “AGREEMENT”).
Except to the extent the Company (as defined below) is a party to an existing written agreement with Closinglock, Inc. (“Closinglock”) that expressly covers the Company’s access to and use of the Service (as defined below) (an “Existing Agreement”), the terms and conditions in this Agreement govern the Company’s access to and use of the Service. For clarity, if the Company is a party to an Existing Agreement with Closinglock that expressly covers the Company’s access to and use of the Service, the Existing Agreement (and not this Agreement) will govern such access and use.
SUBJECT TO THE EXCEPTION IN THE PRECEDING PARAGRAPH, BY CLICKING ON THE “ACCEPT” BUTTON BELOW, AGREEING TO AN ORDER FORM INCORPORATING THIS AGREEMENT BY REFERENCE, OR PROCEEDING WITH THE ACCESS AND USE OF THE SERVICE, YOU:
(1) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT;
(2) REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE ENTITY IN RESPECT OF WHOM THE LICENSE TO ACCESS AND USE THE SERVICE WAS ORDERED (SUCH ENTITY, THE “COMPANY”), AND TO BIND THE COMPANY TO THE TERMS OF THIS AGREEMENT; AND
(3) AFFIRM THAT YOU ARE OVER THE AGE OF EIGHTEEN (18) AND THAT YOU AND THE COMPANY ARE FULLY ABLE AND COMPETENT TO ENTER INTO THE TERMS, CONDITIONS, OBLIGATIONS, AFFIRMATIONS, REPRESENTATIONS, AND WARRANTIES SET FORTH IN THIS AGREEMENT, AND TO ABIDE BY AND COMPLY WITH THIS AGREEMENT.
IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, YOU DO NOT HAVE AUTHORITY TO BIND THE COMPANY TO THIS AGREEMENT, 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. Definitions. In addition to the capitalized terms defined throughout the Agreement, the following defined terms will have the following meanings:
1.1 “Affiliate” means, with respect to either party, any entity that directly or indirectly controls, is controlled by or is under common control with such party (but only for so long as such control exists), where “control” means the ownership of more than 50% of the outstanding shares or securities representing the right to vote in the election of directors or other managing authority of such entity, or any other ability to select such directors or managing authority by law or contract.
1.2 “Beneficial Owner” means: (a) each individual or entity, if any, who, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, owns 25 percent or more of the equity interests of the Company; and (b) a single individual with significant responsibility to control, manage, or direct the Company (for example, a Chief Executive Officer, Managing Member, President or similar individual).
1.3 “Client” means (a) any individual or entity that is involved in a residential or commercial real estate transaction and is working with the Company to provide a service in connection with such transaction(s); and (b) any lender representing such individual or entity in connection with such transaction, in each case to the extent such individual, entity, or lender accesses or uses the Service.
1.4 “Confidential Information” means all nonpublic information disclosed by either party, its Affiliates, or their agents (as applicable, such entities collectively, the “Disclosing Party”) to the other party, its Affiliates, or their agents (collectively, the “Receiving Party”) in connection with this Agreement that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. “Confidential Information” does not include any information that (a) is or becomes publicly available without breach of this Agreement, (b) was known by the Receiving Party prior to its receipt from the Disclosing Party, (c) is disclosed to the Receiving Party from any third party, except where the Receiving Party knows, or reasonably should know, that such disclosure constitutes a wrongful or tortious act, or (d) is independently developed by the Receiving Party without use of any Confidential Information. Without limiting the generality of the foregoing, the Service and the Documentation are Closinglock’s Confidential Information, and the Company Data is the Company’s Confidential Information.
1.5 “Company Data” means information, data and/or files the Company transmits, uploads, or stores to or on the Service in connection with this Agreement.
1.6 “Company User” means an employee or contractor of the Company who is authorized by the Company to access and use the Service on behalf of the Company.
1.7 “Documentation” means the most recent versions of operator and user manuals, training materials, guides, and other supporting documentation of the functional operation of the Service that are provided to the Company by Closinglock in connection with this Agreement.
1.8 “Effective Date” means the date upon which the Company is bound by this Agreement as described above.
1.9 “Intellectual Property Rights” means all copyrights, trade secrets, trademarks, patents, mask works, and other intellectual property rights and proprietary rights recognized in any jurisdiction worldwide.
1.10 “Order Form” means an order executed by the parties from time to time setting forth the relevant terms of the Company’s license to the Service, including but not limited to the pricing and any usage limits. Each Order Form will be a part of and be governed by the terms and conditions of this Agreement.
1.11 “Service” means Closinglock’s proprietary software platform, as hosted and made available for the Company and others to access via Closinglock’s website currently located at www.closinglock.com, or via mobile application or other agreed means.
1.12 “Subscription Term” means the term of the subscription license purchased by the Company as specified in the Order Form. The Subscription Term will commence on the start date specified in the Order Form and, unless earlier terminated in accordance with this Agreement or the Order Form, will continue for the initial Subscription Term specified in such Order Form. Thereafter, the subscription will automatically renew for additional periods in accordance with the Order Form (subject to the Company’s payment of the applicable fees), unless and until terminated in accordance with this Agreement or the Order Form.
1.13 “Usage Limits” means the quantity and types of users, licenses, or seats that the Company has purchased for use with the Service, and any other material limitations for the Company’s use, each as specified in the applicable Order Form.
2. License Grant; Restrictions; Ownership
2.1 License Grant. In consideration for the payment of all fees and the Company’s ongoing compliance with the terms of this Agreement and each Order Form, Closinglock hereby grants to the Company, for the Subscription Term, a non-exclusive, non-transferable (except in accordance with Section 9.5 below) license (without the right to sublicense) to access and use the Service, solely in accordance with this Agreement and the Documentation.
2.2 Restrictions. The Company expressly agrees not to (and will not permit or enable Company Users, Clients, or 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, Intellectual Property Rights notices or other proprietary notices, legends, symbols, or labels 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 the Company’s account password or other login credentials with any Client or any other third party; (l) send spam or similar unsolicited messages on or through the Service; (m) send or store infringing, obscene, threatening, libelous, defamatory, or otherwise unlawful material on or through the Service; (n) send or store viruses or other harmful or malicious code, files, scripts, agents, or programs on or through the Service; (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.
2.3 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. Closinglock is also the sole and exclusive owner of (a) all Updates (defined below), improvements, enhancements, revisions, modifications, new releases and versions, and derivative works of the Service, (b) all Documentation, and (c) all integrations, customizations, components, modules, workflows, or other work product produced by Closinglock (whether alone or jointly with the Company) under this Agreement. Any of the items described in the previous sentence that are provided by Closinglock, in Closinglock’s sole discretion, to the Company will be deemed to be included in the definition of the “Service” hereunder. All rights not expressly granted to the Company in this Agreement are reserved for Closinglock and its licensors. The Company is the sole and exclusive owner of all right, title, and interest in the Company Data.
2.4 Feedback. The Company hereby grants 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 the Company’s 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 the Company or any third party, use Feedback in any way, including in future modifications of the Service and Documentation.
2.5 Updates. Closinglock may, from time to time and at its sole option, make available patches, bug fixes, corrections, updates, upgrades, support and maintenance releases, or other modifications (collectively, “Updates”) to the Service. Updates, if any, may not necessarily include all existing software features or all features that Closinglock provides to other customers. The terms of this Agreement will govern any Updates.
2.6 Subcontractors. In the event Closinglock in its discretion engages one or more subcontractors to assist in the provision of the Service, Closinglock will (a) ensure that such subcontractors are bound by obligations of confidentiality at least as protective of the Company’s Confidential Information as set forth in this Agreement, and (b) be responsible for any breaches of this Agreement caused by the actions or inactions of such subcontractors.
3. Company Obligations
3.1 Use of the Service. The Company is solely responsible for (a) all activities occurring under the Company’s and all Company Users’ accounts; (b) maintaining the confidentiality of the Company’s account and password and creating secure passwords; (c) setting and modifying the Company’s profile and preferences for the Service; and (d) the Company Data (including, without limitation, wire transfer instructions provided to Clients). The Company will be responsible for ensuring that all Company Data provided to Closinglock by or on behalf of the Company for incorporation into, or integration with, the Service is accurate and not corrupt. The Company will prevent unauthorized access to, or use of, the Service and will notify Closinglock promptly if it becomes aware of any actual or reasonably suspected unauthorized use of the Service. The Company will comply with all applicable local, state, federal, and foreign laws, treaties, and regulations in using the Service, including but not limited to those that relate to data privacy and processing of personal data. Company agrees that any return of funds received by Company using Closinglock’s payment tool shall be processed by Company through Closinglock and not sent directly to the originator.
3.2 Equipment. Except as set forth in an Order Form, the Company will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Service, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). The Company will also be responsible for maintaining the security of the Equipment, the Company’s account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Company’s account or the Equipment, whether such use is with or without the Company’s knowledge or consent.
3.3 Order Forms. The Company will comply with any additional responsibilities set forth in an Order Form.
4. Confidentiality; Security
4.1 Each party, as the Receiving Party, will (a) secure and protect the Disclosing Party’s Confidential Information using the same degree or greater level of care that it uses to protect its own confidential information, but no less than a reasonable degree of care; (b) use the Disclosing Party’s Confidential Information solely to perform its obligations or exercise its rights under this Agreement; (c) only allow those employees, agents, attorneys, consultants, and independent contractors of the Receiving Party (collectively “Representatives”) who (i) have a need to access such Confidential Information and (ii) are bound by confidentiality obligations consistent with this Agreement, to have access to the Confidential Information of the Disclosing Party; and (d) not transfer, display, convey, or otherwise disclose or make available all or any part of such Confidential Information to any third party (excluding Representatives in accordance with this Section). The Receiving Party may also disclose the Disclosing Party’s Confidential Information to the extent required by applicable law, regulation, or order of a court or other governmental entity. In such event, the Receiving Party will notify the Disclosing Party of such obligation as soon as possible and, if legally permissible, in sufficient time to allow the Disclosing Party to respond or object to the disclosure.
4.2 Privacy Policy; Company Data. Closinglock’s collection, storage, processing, and retention of Company Data is subject to Closinglock’s privacy policy (available at https://www.closinglock.com/privacy-policy/), as may be updated by Closinglock from time to time. The Company hereby grants to Closinglock a worldwide, non-exclusive, royalty-free, license to collect, store, display, and otherwise process the Company Data for any legal purpose, including providing, maintaining, supporting, and improving the Service and as otherwise described in the Privacy Policy. Provided that Closinglock does not personally identify the Company or any Client, and subject to Closinglock’s confidentiality obligations under this Section 4), the Company also grants to Closinglock a non-exclusive, perpetual, royalty-free, license to collect and analyze data and other information relating to the provision, use, and performance of the Service and related systems and technologies (including, without limitation, information concerning Company Data, in de-identified form, and data derived therefrom) and to use such information and data during and after the Term to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other Closinglock offerings.
4.3 Security Policies and Safeguards. Closinglock will establish and maintain administrative, technical, and physical safeguards designed to protect against the destruction, loss, or unauthorized access or alteration of Company Data in the possession or under the control of Closinglock. Such safeguards will be: (a) no less rigorous than generally accepted industry standards; and (b) compliant with applicable laws. In the event that Closinglock becomes aware that the security of any Company Data in Closinglock’s possession or control has been compromised (an “Information Security Incident”), Closinglock will: (i) promptly notify the Company in writing; (ii) investigate such Information Security Incident and conduct a reasonable analysis of the cause(s) of such Information Security Incident; (iii) provide the Company with periodic updates of any ongoing investigation; (iv) to the extent the cause of the Information Security Incident is within Closinglock’s control, develop and implement an appropriate plan to remediate the cause; and (v) cooperate with the Company’s reasonable investigation or the Company’s efforts to comply with any notification or other regulatory requirements applicable to such Information Security Incident.
5. Fees; Payment
5.1 Fees. Closinglock will provide the Company with access to and use of the Service in consideration of the fees described in the applicable Order Form. The Company will pay all fees due within thirty (30) days from the date of the invoice. All fees paid to Closinglock are non-refundable. If the Company’s use of the Service exceeds the Usage Limits set forth on the Order Form or otherwise requires the payment of additional fees, the Company will be billed for such usage and the Company agrees to pay the additional fees in the manner provided herein. Closinglock reserves the right to adjust the fees at any time at Closinglock’s sole and absolute discretion.
5.2 Late Fees; Taxes. Closinglock may charge interest on overdue fees at a rate equal to one and one-half percent (1.5%) per month (or, if lower, the maximum allowable by applicable law) on the unpaid amount until such amount is paid. The 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’s income) that are imposed by any governmental authority in connection with this Agreement.
5.3 Suspension. If the Company fails to pay when due any fees, late fees, or other charges due to Closinglock under this Agreement, Closinglock may, in Closinglock’s sole and absolute discretion and upon written notice to the Company (including by email), immediately suspend the Company’s and its Clients’ use of the Service. The Company expressly acknowledges and agrees that Closinglock will have no liability whatsoever to the Company, its Clients, or any other third party if Closinglock exercises its right to suspend Company’s use of the Service as permitted under this Section 5.3.
5.4 Returns and Reversals. For all funds transferred through Closinglock’s payments tool, as between Company and Closinglock, Closinglock agrees to assume all risks associated with any returned payments, ACH returns, insufficient funds, payment reversals, or any other form of payment failure not attributable to any fault on the part of Company.
6. Term and Termination
6.1 Term. The term of this Agreement will commence on the Effective Date and, unless earlier terminated in accordance with this Section 6, will continue for a period of three (3) years (“Initial Term”). Thereafter, the Agreement will automatically renew for successive one (1) year periods (each a “Renewal Term, and together with the Initial Term, the “Term”) until terminated by either party in accordance with this Section 6.
6.2 Termination. Except as otherwise set forth in an Order Form, either Party may terminate this Agreement and any or all Order Forms upon thirty (30) days’ prior written notice to the other Party. In addition, and notwithstanding anything to the contrary, Closinglock will have the right to suspend Company’s access to the Service and/or terminate this Agreement and any Order Form immediately upon notice if Closinglock reasonably suspects that Company, any Company User, or any Client of Company has violated Section 2 of this Agreement. This Agreement will also terminate automatically one (1) year after the termination of expiration of all Order Forms.
6.3 Effect of Termination. Upon termination or expiration of an Order Form for any reason, (a) the Company will immediately cease all use of the Service, (b) the licenses granted and all other rights of the Company under the Order Form and this Agreement will immediately and automatically terminate and revert to Closinglock, and (c) the Company will pay Closinglock, within three (3) days following the effective date of termination or expiration, all fees and other charges which accrued prior to such expiration or termination date but remain unpaid. Sections 1, 2.3, 2.4, 4, 5, 6.3, 8, and 9, and any other sections that, by their nature should survive termination or expiration of this Agreement, will survive such termination or expiration.
7. Limited Warranties; Disclaimer of Additional Warranties
7.1 Limited Warranty. Closinglock will use commercially reasonable efforts to provide the Service in a manner which 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.
7.2 Remedies. The Company’s sole and exclusive remedy for any breach of the warranties set forth in Section 7.1 or in an Order Form 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. Notwithstanding the foregoing, Closinglock will not be responsible for correcting any non-conformity that arises as a result of (a) any act or omission of the Company or any Client, including a failure to use the Service in conformance with the Documentation, this Agreement, and the Order Form; (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 this Agreement.
7.3 Company Warranties. The Company hereby expressly warrants to Closinglock that: (a) the Company possesses all necessary rights in and to all Company Data provided to Closinglock in connection with this Agreement; (b) the Company will strictly abide by its obligations arising out of or relating to this Agreement and applicable laws; (c) the Company will only use the Service and Documentation in accordance with this Agreement’s provisions; and (d) the Company will not transmit information that contains viruses or other computer programming defects that might damage the Service or any of Closinglock’s other systems.
7.4 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, 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 THE COMPANY’S 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 THE COMPANY THROUGH THE USE OF THE SERVICE.
8. Indemnification and Limitation of Liability
8.1 The Company will defend, indemnify and hold harmless Closinglock, its Affiliates, and their respective 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) any breach by the Company of the Company’s representations, warranties, agreements, and covenants set forth in this Agreement; (b) Company’s use or misuse of the Service; (c) any Client’s use or misuse of the Service; or (d) any funds transferred by any means other than use of the Closinglock platform.
8.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLOSINGLOCK’S MAXIMUM CUMULATIVE LIABILITY FOR ANY CAUSE WHATSOEVER ARISING UNDER OR RELATED TO THIS AGREEMENT IS LIMITED TO THE FEES PAID BY THE COMPANY TO CLOSINGLOCK UNDER THE APPLICABLE ORDER FORM DURING THE 6 MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY. NEITHER CLOSINGLOCK NOR ITS AFFILIATES OR LICENSORS WILL BE LIABLE TO THE COMPANY, ANY CLIENT, 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) THIS AGREEMENT (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. THE COMPANY EXPRESSLY AGREES THAT THE COMPANY’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT FOR CLOSINGLOCK’S PERFORMANCE OR THE FAILURE OF SUCH PERFORMANCE HEREUNDER, OR FOR ANY BREACH BY CLOSINGLOCK HEREOF, WILL BE AS SET FORTH IN THIS PARAGRAPH. THE COMPANY ACCEPTS THE RESTRICTIONS ON ITS RIGHT TO RECOVER ADDITIONAL DAMAGES AS PART OF ITS BARGAIN WITH CLOSINGLOCK AND THE COMPANY UNDERSTANDS AND ACKNOWLEDGES THAT, WITHOUT SUCH RESTRICTIONS, THE FEES WOULD BE HIGHER.
9. Miscellaneous
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. The Company will not 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 the Company is a resident or otherwise uses 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, the Company represents and warrants that it is not located in any such country or on any such list.
9.3 Company Reference. During the Term and at all times thereafter, Closinglock may (a) reference the Company as a customer (or former customer) of Closinglock in advertising, marketing, and promotional materials designed to promote Closinglock and its products and services anywhere in the world (such reference may include the Company’s name, logo, and any quotes provided by the Company), (b) distribute a public announcement indicating that the Company has selected Closinglock’s Service (which announcement may include any quotes provided by the Company), and (c) provide Company as a reference for future potential customers of Closinglock. The Company hereby grants to Closinglock a non-exclusive, royalty-free, paid-up, perpetual, worldwide, assignable, sublicensable license to use the Company’s name, logo, and any quotes provided by the Company solely as permitted above in this Section 9.3. The Company agrees that no monetary or other consideration will be due from Closinglock for the rights granted or the uses described in this Section 9.3.
9.4 Force Majeure. Closinglock will not be liable to the Company for any delay in or failure of Closinglock’s performance under this Agreement (including, without limitation, Closinglock’s 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’s reasonable control. Upon the occurrence of any such event that results in, or will result in, a delay or failure to perform, Closinglock will be relieved from fulfilling Closinglock’s obligations under this Agreement during the period of such event.
9.5 Assignment. The Company may not assign any of its rights or delegate or cause to be assumed any of its obligations hereunder without Closinglock’s prior written consent (which consent may be withheld in Closinglock’s sole and absolute consent). Any attempted assignment, delegation, or assumption not in accordance with this Section 9.5 will be null and void and of no force or effect whatsoever. Closinglock may freely assign, transfer, or delegate its rights or obligations under this Agreement at any time upon notice to the Company (but without the need for prior written consent). The terms and conditions of this Agreement will inure to the benefit of and be binding upon the respective successors and permitted assigns of the Parties.
9.6 Notice of Changes in Beneficial Owners. Closinglock collects and stores certain information regarding the Beneficial Owners of its customers in order to ensure its compliance with U.S. anti-money laundering and sanctions rules. Accordingly, the Company agrees to (a) provide Closinglock with written notice of any and all new or different Beneficial Owners of the Company at any time during the Term, within thirty (30) days after such change; (b) certify to Closinglock at the time of establishing any new contractual relationship with Closinglock that the Company’s Beneficial Owners have not changed since those Beneficial Owners were last identified to Closinglock; and (c) assist Closinglock in obtaining the information needed by Closinglock to verify the identity of each Beneficial Owner.
9.7 Notices. Any notice, demand or request required or permitted under this Agreement 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: [email protected]. Notices to the Company will be addressed to the mailing address and email address on file with Closinglock.
9.8 Severability. If any provision of this Agreement or any Order Form 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.
9.9 Changes to this Agreement. Closinglock may make changes to the Services and/or this Agreement at any time in its sole discretion and without prior notice, effective immediately upon posting to the Service. Closinglock will endeavor to notify the Company in advance of any updates and amendments to this Agreement. The Company’s use of the Service after such posting will be deemed to constitute acceptance by Company of all updates and amendments included the updated Agreement. Closinglock may, in its discretion, give the Company the option of accepting such updated terms via a click-through or similar process on the Service.
9.10 Entire Agreement; Amendment; Waiver. This Agreement and all Order Forms collectively constitute the entire agreement between the parties and supersede any prior or contemporaneous agreement or understandings with respect to the subject matter of this Agreement. This Agreement will be construed as if both parties had equal involvement in its 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 the Company submits its own terms in the Company’s acceptance of a price quotation or in a purchase order, which add to, vary from, or conflict with the terms herein, any such terms are of no force and effect and are superseded by this Agreement.
9.11 Injunctive Relief. The Company acknowledges and agrees that Closinglock would be irreparably damaged in the event that any of the provisions of Sections 2.1, 2.2, 3.1, or 4 are not performed by the 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, the Company agrees that Closinglock will be entitled to equitable relief from any court of competent jurisdiction, including injunction and specific performance, as a remedy for any actual or threatened breach of such Sections, without any requirement to post bond or other security or to prove actual damage or harm. Such remedies will not be deemed to be the exclusive remedies for any such breach but will be in addition to all other remedies available at law or in equity.
9.12 Governing Law; Arbitration. This Agreement will be governed by, construed, and interpreted in accordance with the substantive and procedural laws of the State of Texas, excluding its rules of conflicts of law that would give rise to application of the laws of another jurisdiction. Except as provided in Section 9.11 and unless otherwise required by law, any dispute, controversy or claim between Closinglock and the Company arising out of or relating to this Agreement will be finally settled by arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures and judgment upon the award rendered by the Arbitrator (as defined below) may be entered in any court having jurisdiction thereof. Any arbitration conducted under this Agreement will be heard by a single arbitrator (the “Arbitrator”) selected in accordance with the then-applicable rules of the AAA. The arbitration will be conducted in Austin, TX. Each side will share equally the cost of the arbitration and bear its own costs and attorneys’ fees incurred in connection with any arbitration. Notwithstanding this Section, an application for emergency or temporary injunctive relief in aid of arbitration by Closinglock will not be subject to arbitration under this Agreement; provided, however, that the remainder of any such dispute (beyond the application for emergency or temporary injunctive relief) will be subject to arbitration under this Agreement. Closinglock and the Company further agree that all proceedings in any arbitration will be conducted under seal and kept strictly confidential. The arbitration award will be final and binding on both parties. BY ENTERING INTO THE ARBITRATION PROVISIONS OF THIS SECTION 9.12, EACH PARTY TO THIS AGREEMENT KNOWINGLY AND VOLUNTARILY WAIVES ITS RIGHTS TO A JURY TRIAL, INCLUDING ANY RIGHTS TO A TRIAL BY JURY IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THIS AGREEMENT OR ANY ANCILLARY AGREEMENT REFERENCED HEREIN OR THE VALIDITY, PROTECTION, INTERPRETATION, COLLECTION, OR ENFORCEMENT THEREOF.
9.13 Counterparts. This Agreement 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.
