TITLE | PIPE™
TERMS OF SERVICE AGREEMENT
Last Updated: Aug 1, 2020
This Terms of Service Agreement (“Agreement”) forms a legally binding contract between you, whether personally or on behalf of an entity (“user” or “you”) and Title Pipe, Inc. a Delaware corporation located at 531 S. Fitness Place, Ste 102, Eagle, ID 83616 (“Company” or “we” or “us” or “our”) that governs your access and use of the Services (as defined below) in your role as a real estate agent, broker, lender, loan officer, escrow company, escrow agent or other service provider or manager of in the real estate industry (collectively “Industry Participants”) or as a buyer, seller or borrower (refinancer) of real estate (collectively, “Customers”). The “Services” means the website, mobile applications and other online services accessed through the website, including, but not limited to, the exchange of documents, information, instructions and communications to facilitate real estate transaction (“Real Estate Transaction”) needs.
PLEASE READ THIS AGREEMENT CAREFULLY, INCLUDING THE MANDATORY ARBITRATION PROVISION IN SECTION 15 WHICH REQUIRES THAT DISPUTES BE RESOLVED BY FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS, NOT A CLASS-WIDE OR CONSOLIDATED BASIS. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, YOU MAY OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN SECTION 15.
BY CLICKING [“ACCEPT”] OR ACCESSING OR USING OUR SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT AND ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO THIS AGREEMENT IN ITS ENTIRETY, DO NOT USE OUR SERVICES.
We may make changes to this Agreement from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Services, or updating the date at the top of this Agreement. Unless we say otherwise in our notice, the amended Agreement will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Agreement, you must stop using our Services.
If you have any questions about this Agreement or our Services, please contact us at email@example.com.
You must reside in the United States, not have been previously removed or suspended from the Services and must not have more than one account per email address to use our Services. If you use our Services on behalf of another person or entity, (a) all references to “you” throughout this Agreement will include that person or entity, (b) you represent that you are authorized to accept this Agreement on that person’s or entity’s behalf, and (c) in the event you or the person or entity violates this Agreement, the person or entity agrees to be responsible to us.
If you are a real estate broker or other Industry Participant whose role requires a license, You represent and warrant (i) that you are licensed and in good standing in the applicable state where the particular Real Estate Transaction is taking place and (ii) that any information relating to such licensure entered into the Services is accurate.
- User Accounts and Account Security
To obtain access to our Services, you may be required to obtain an account by following the steps for registration on the Services and verifying your email address, account information and/or information relating to the Real Estate Transaction. When registering with a Company, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. If you permit others to use your account credentials, you are responsible for the activities of such users that occur in connection with your account. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames. You agree that your account is not transferable and that in the event of your death, incapacity, or unavailability, we may terminate any rights to your account or the Services.
4.1 Subject to your continued compliance with this Agreement and all applicable laws, you may use the Services to (a) create, manage, access, retrieve and edit content relating to a Real Estate Transaction depending on your role in the applicable Real Estate Transaction; and (b) communicate and interact with other Industry Participants as well as with the Buyers, Sellers or Borrowers of a particular Real Estate Transaction.
4.2 You will receive notifications via the Services, through email and/or text when new activity has occurred on a Real Estate Transaction, such as the uploading of documents, requests to complete a task, receipt of messages or other communications and other updates relating to the Real Estate Transaction. If you would like to have correspondence sent to your mobile device via MS, MMS or other text message (“Text Messages”), you must sign up to receive such Text Messages through your account and provide the phone number where such Text Messages should be sent. You understand messaging and data rates may apply. If you have provided a telephone number for Text Messages, you will immediately update it in your account profile if and when the telephone number that you have previously provided changes.
4.3 As an Industry Participant,
once you have successfully registered and verified your account in accordance with Section 3, (a) you will be able to request to join a branch or company already existing on the Services or create your own branch or company profile (b) you may request to join an existing Real Estate Transaction or create a new Real Estate Transaction, or (c) approve Industry Participant and Buyer and Seller requests to be added to a Real Estate Transaction. Your right to take the foregoing actions will depend on your role in the applicable Real Estate Transaction. If you have access to create a new Real Estate Transaction you may do so by submitting a new Real Estate Transaction form in accordance with Section 4.4.
4.4 A new Real Estate Transaction form can be submitted on the Services by providing: (i) property information; (ii) buyer information; (iii) seller information; (iv) purchase price and other pricing details; (v) estimated settlement date; (vi) refinancing borrower information; (vii) loan information and (viii) any other information Company may reasonably request to facilitate the Transaction.
4.5 You understand that certain Services will require payment of a fee. For example, unless you choose to pay an additional fee, the Services will not operate as a platform for the closing of the Real Estate Transaction or storing finalized documents, and you will need to execute and store documents outside of the Service.
- Fees and Payment
Company will post the fees for any Services in the TP Gateway Agreement. Any fees for the Services will be paid at closing for the applicable Real Estate Transaction. Company will notify and provide access to TP Gateway Invoice for the applicable fees to the transaction settlement agent within the Service and instruct that the invoice is to be paid via from the proceeds at the close of the applicable Real Estate Transaction. If the Real Estate Transaction does not close, then there will be no charge for the use of the Service for that particular Real Estate Transaction.
- Content and Aggregate Data
Our Services may allow you and other users to create, post, store and share content, including but not limited to messages, text, photos, and other materials (collectively, “Content”). Except for the license you grant below, you retain all rights in and to your Content, as between you and Company.
You grant Company a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your Content solely to the extent necessary to provide the Service or as otherwise permitted by this Agreement. When you post or otherwise share Content on or through our Services, you understand that your Content and any associated information (such as your username or profile photo) may be visible to others.
You may not create, post, store or share any Content that violates this Agreement or for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that the Content you provide through the Services, and our use of such content as permitted by this Agreement, will not violate any rights of or cause injury to any person or entity. Although we have no obligation to screen, edit or monitor User Content, we may delete or remove Content at any time and for any reason with or without notice.
You may also post or otherwise share only Content that you have all necessary rights to disclose. You will (a) be solely responsible for the nature, quality, and accuracy of the Content; (b)ensure that the Content and your use of the Content complies with this Agreement, your policies and any and all applicable laws and regulations; and (c) will maintain appropriate security, protection and backup copies of the Content.
You grant Company a non-exclusive, perpetual, worldwide, royalty-free license to use, copy, transmit, sub-license, index, model, aggregate (including with other customers’ data), publish, display and distribute any aggregated and anonymous information derived from the data imported into the Service by you and your use of the Service (such as, but not limited to, transaction time and value of transaction) (“Data Analytics”). Data Analytics will not include any personal, non-public information such as social security numbers. Company may develop, modify, improve, and support its Services based on your use of any Services.
- Prohibited Conduct and Content
You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, and you are solely responsible for your conduct while using our Services. You will not:
- Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
- Use or attempt to use another user’s account without authorization from that user and Company;
- Impersonate or post on behalf or any person or entity or otherwise misrepresent your affiliation with a person or entity;
- Sell or resell our Services;
- Copy, reproduce, distribute, publicly perform or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;
- Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services;
- Use our Services other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
- Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
- Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Services;
- Develop or use any applications that interact with our Services without our prior written consent;
- Send, distribute or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;
- Bypass or ignore instructions contained in our robots.txt file; or
- Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates this Agreement.
You may not create, post, store or share any Content that:
- Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
- Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
- May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
- Contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
- Impersonates, or misrepresents your affiliation with, any person or entity;
- Contains any unsolicited promotions, political campaigning, advertising or solicitations;
- Contains any private or personal information of a third party without such third party’s consent;
- Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
- In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Services, or may expose Company or others to any harm or liability of any type.
Enforcement of this Section 7 is solely at Company’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 7 does not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by such rules.
- Ownership of the Services
The Services, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by Company or our licensors and are protected under applicable laws. Except as explicitly stated in this Agreement, all rights in and to the Services are reserved by us or our licensors.
The “Title Pipe” name, as well as all our logos, product or service names, slogans and the look and feel of the Services are trademarks of Company and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Services are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship, or recommendation by us.
You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about Company or our Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including, without limitation, to develop, copy, publish, or improve the Feedback in Company’s sole discretion. You understand that Company may treat Feedback as nonconfidential.
- Third-Party Services
We may provide information about third-party products, services, activities or events, or we may allow third parties to make their content, services and information available on or through the Services (collectively, “Third-Party Services”). We provide Third-Party Services as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Services are solely between you and the third party. Company does not control or endorse, and makes no representations or warranties regarding, any Third-Party Services, and your access to and use of such Third-Party Services is at your own risk.
To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Company and its respective officers, directors, agents, partners and employees (individually and collectively, the “Company Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of third party claims related to (a) your access to or use of the Services; (b) your Content or Feedback; (c) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); (d) your actual or alleged breached of any of your warranties, representations or obligations in this Agreement or (e) your conduct in connection with the Services. You agree to promptly notify Company Parties of any third-party Claims, cooperate with Company Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees). You also agree that the Company Parties will have control of the defense or settlement, at Company’s sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Company or the other Company Parties.
Your use of our Services is at your sole risk. Except as otherwise provided in a writing by us, our Services and any content therein are provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Company does not represent or warrant that our Services are accurate, complete, reliable, current or error-free. While Company attempts to make your use of our Services safe, we cannot and do not represent or warrant that our Services or servers are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Services.
- Limitation of Liability
To the fullest extent permitted by applicable law, Company and the Company Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, warranty, or otherwise—for any indirect, consequential, incidental or special damages or lost profits you may experience, even if Company or the other Company Parties have been advised of the possibility of such damages.
The total liability of Company and the other Company Parties for any claim arising out of or relating to this Agreement or our Services, regardless of the form of the action, WILL NOT EXCEED the amount paid under this Agreement for the Services during the 12 months before the cause of action arose. For Services provided free of charge, Company’s Liability is limited to $100.
The limitations set forth in this Section 14 will not limit or exclude liability for personal injury, death or property damage caused by the services or for the gross negligence, fraud or intentional, willful, malicious or reckless misconduct of company or other company parties.
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Company and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration agreement. In addition, arbitration precludes you from suing in court or having a jury trial.
No Representative Actions. You and Company agree that any dispute arising out of or related to this Agreement or our Services is personal to you and Company and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.
Arbitration of Disputes. Except for small claims disputes in which you or Company seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Company seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Company waive your rights to a jury trial and to have any dispute arising out of or related to this Agreement resolved in court. Instead, for any dispute or claim that you have against Company or relating in any way to the Services, you agree to first contact Company and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Company by email at firstname.lastname@example.org or by certified mail addressed to [Attn: General Counsel] Title Pipe, Inc. 531 S. Fitness Place, Ste 102, Eagle, ID 83616. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and Company cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may submit the dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in Boise, Idaho or may be conducted telephonically or via video conference for disputes alleging damages less than $2000, unless you are a consumer, in which case you may elect to hold the arbitration in your county of residence in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). For purposes of this section, you will be deemed a “consumer” if you use the Services for your personal, family or household purposes. The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
You and Company agree that this Agreement affects interstate commerce and that the enforceability of this Section 15 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, this Agreement and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
The arbitrator, Company and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including, but not limited to, all information gathered, prepared and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The arbitration will allow for the discovery or exchange of non-privileged information relevant to the dispute. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
You and Company agree that for any arbitration you initiate, you will pay the filing fee (up to a maximum of $250 if you are a consumer), and Company will pay the remaining JAMS fees and costs. For any arbitration initiated by Company, Company will pay all JAMS fees and costs. You and Company agree that the state or federal courts of the State of Idaho and the United States sitting in Boise, Idaho have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
Any claim arising out of or related to this Agreement must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and Company will not have the right to assert the claim.
You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 15 by sending an email to Company at email@example.com. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 14.
If any portion of this Section 15 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from this Agreement; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 15 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 15; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 15 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 15 will be enforceable.
- 16. Governing Law and Venue
Any dispute arising from this Agreement and your use of the Services will be governed by, construed and enforced in accordance with the laws of the State of Idaho, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of Idaho or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of Idaho and the United States, respectively, sitting in Boise, Idaho.
- 17. Modifying and Terminating our Services
Company reserves the right to modify our Services or to suspend or stop providing all or portions of our Services at any time. You also have the right to stop using our Services at any time. We are not responsible for any loss or harm related to your inability to access or use our Services. All provisions of this Agreement which by their nature should survive termination will survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability and the miscellaneous section.
If any provision or part of a provision of this Agreement is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
The failure of Company to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, this Agreement is intended solely for the benefit of the parties and is not intended to confer third-party beneficiary rights upon any other person or entity. You agree that communications and transactions between us may be conducted electronically. In this Agreement: (a) the word “including” and words of similar import will mean “including, without limitation,” unless otherwise specified and (b) “or” is used in the sense of “and/or”; “any” is used in the sense of “any or all”. This Agreement may not be assigned or otherwise transferred by you without Company’s prior written consent. This Agreement may be assigned by Company without restriction. This Agreement is binding upon any permitted assignee.