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TitleFlow Terms and Conditions
TITLEFLOW Subscription Terms IMPORTANT—READ CAREFULLY The following terms and conditions (the “Subscription Terms”) govern your access and use of the TitleFlow Platform and the Platform Services (defined below). If you do not agree with the Subscription Terms, you may not access or use the TitleFlow Platform or the Platform Services. By accepting the Subscription Terms, by indicating your acceptance electronically, or, if applicable, by signing an order form that references the Subscription Terms, you agree to be legally bound by the Subscription Terms (the “Agreement”). PLEASE READ THE SUBSCRIPTION TERMS CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS, INCLUDING VARIOUS LIMITATIONS AND EXCLUSIONS. 1. TitleFlow Platform; Provision of Platform Services. 1.1 As used in these Subscription Terms, the following terms have the meanings set forth in this Section 1.1: “TitleFlow Platform” means the proprietary, Web-based software and related technology used by TitleFlow to provide the Platform Services. “Platform Services” means the online application services that are ordered by you and made available by us in a software-as-a-service model via the TitleFlow Platform. TitleFlow will make the applicable Platform Services available to you during the applicable subscription term as specified during the sign-up process or, if applicable, as set forth in a written Subscription Form, in which case any additional terms and conditions contained in such Subscription Form are hereby incorporated into the Agreement by reference and are legally binding. 1.2 From time to time, TitleFlow may allow you to order Platform Services on a free trial basis. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, PLATFORM SERVICES PROVIDED DURING THE FREE TRIAL PERIOD ARE PROVIDED AT YOUR SOLE RISK, “AS-IS” AND WITH ALL FAULTS AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. At the end of the free trial period, The TitleFlow Platform will require you to convert to a paid-account, and your future use of the Platform Services shall be subject to you doing so. 1.3 From time to time, TitleFlow may allow you to try certain products or services that are not generally available to customers (“Beta Services”). Beta Services will be clearly designated as beta, pilot, limited release, preview, non-production or similar designation. Beta Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. TitleFlow reserves the right, in TitleFlow’s sole discretion, to discontinue Beta Services at any time. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, BETA SERVICES ARE PROVIDED AT YOUR SOLE RISK, “AS-IS” AND WITH ALL FAULTS AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. 2. Fees; Payment. 2.1 Fees for Platform Services are due and payable by you as specified by TitleFlow during the sign-up process. All payment obligations are non-cancelable and fees paid are non-refundable. If payment will be made by credit card, you shall provide us with valid and up-to-date credit card information and you hereby authorize us to charge such credit card for all fees specified, including all renewal periods, if any, in accordance with the billing frequency specified during the sign-up process. If payment will be made by a method other than by credit card, TitleFlow will invoice you in accordance with the details provided on a signed Subscription Form. 2.2 If you wish to dispute any charges, you must notify us in writing of your good faith reasons for such dispute within 30 days of receipt of the applicable statement or invoice and timely pay all undisputed charges. Except for amounts disputed in good faith in accordance with this Section 2.1, amounts not paid by you by the due date will bear interest from such due date at the lesser of 1.5% per month or the maximum rate permitted by applicable law. Without limiting any of TitleFlow’s other rights and remedies, if any amount owed hereunder is more than 30 days overdue (other than amounts disputed in good faith in accordance with this Section 2.1), TitleFlow may suspend the Platform Services until all amounts are paid in full; provided, however, TitleFlow will give you notice that your account is overdue at least 14 days prior to any such suspension. 2.3 Unless specified in the applicable Subscription Form, fees do not include any taxes, duties, levies or charges of any kind assessable by any governmental authority (including but not limited to any VAT, GST and sales, use or withholding taxes, but excluding taxes based solely on TitleFlow’s income, property and employees). If TitleFlow is legally required to pay or collect any taxes for which you are responsible hereunder, TitleFlow may bill and collect such amounts from you in addition to the amounts otherwise payable hereunder. 3. Proprietary Rights. 3.1 Except for the limited rights expressly granted to you hereunder, TitleFlow reserves all right, title and interest in and to the TitleFlow Platform and the Platform Services, including all related intellectual property rights, and no rights are granted to you, whether by estoppel, implication or otherwise. To the extent you use the Platform Services to automate businesses processes or submit electronic data to the Platform Services, you authorize us to host, copy, transmit, adapt and display such processes and data, as necessary for us to provide the Platform Services in accordance with this Agreement. Subject to the limited rights granted by you hereunder, TitleFlow acquires no right, title or interest in or to such processes or data from you or your licensors under this Agreement. 3.2 You shall not (i) copy or frame any part or content of the TitleFlow Platform or the Platform Services other than as reasonably necessary for your own internal use of the Service in accordance with the Agreement, (ii) permit any third party that does not have their own account to access the TitleFlow Platform or the Platform Services except as permitted herein or in the applicable Subscription Form, or (iii) create any derivate works based on the TitleFlow Platform or the Platform Services. You may download or copy content of the TitleFlow Platform or the Platform Services only as reasonably necessary for your own internal use of the Service in accordance with the Agreement. No right, title, or interest in any downloaded materials is transferred to you as a result of any such downloading and TitleFlow reserves all right, title and interest in and to the materials you download from the Service including all related intellectual property rights. You may only access and use the Service as a business productivity tool for your own internal use and any other access or use by you is strictly prohibited under this Agreement. Without limiting the generality of the foregoing, you shall not access or use the TitleFlow Platform or the Platform Services if you are our direct competitor or for purposes of copying any features, functions, content or graphics of the TitleFlow Platform or the Platform Services, or benchmarking or monitoring availability, performance or functionality of the TitleFlow Platform or the Platform Services, or any other competitive purpose. You shall not reverse engineer the TitleFlow Platform or the Platform Services unless expressly permitted by applicable law without the possibility of contractual waiver. 3.3 User feedback is essential to the continued improvement of TitleFlow’s products and services. You understand that TitleFlow may collect information relating to your use of TitleFlow’s products and services, including the nature and frequency of such use, and you hereby grant to us a royalty-free, fully-paid, worldwide, transferable, sublicenseable, irrevocable and perpetual license to use and incorporate into TitleFlow’s products and services any suggestions, enhancement requests, recommendations, feedback or other information provided by you relating to your use of TitleFlow’s products and services. 4. Confidentiality. 4.1 “Confidential Information” means all confidential information being disclosed by one party to the other party (including but not limited to marketing plans, business strategies, customer information, technical information, product plans and designs) that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and circumstances of its disclosure. 4.2 The receiving party will: (i) hold the disclosing party’s Confidential Information in confidence using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (ii) restrict disclosure of the disclosing party’s Confidential Information to those of its employees, agents or representatives with a need to know such information and who are bound by obligations respecting the protection of confidential information which are substantially similar to those of this Agreement and which would extend to the disclosing party’s Confidential Information; and (iii) not use the disclosing party’s Confidential Information for any purpose outside the scope of this Agreement. 4.3 The restrictions in this Section 4 will not apply to Confidential Information to the extent it (i) was in the public domain at the time of disclosure; (ii) became publicly available after disclosure to the receiving party without breach of this Agreement; (iii) was lawfully received by the receiving party from a third party without such restrictions; (iv) was known to the receiving party, its employees, agents or representatives without such restrictions prior to its receipt from the disclosing party; or (iv) was independently developed by the receiving party without breach of this Agreement. The receiving party may disclose Confidential Information to the extent required pursuant to judicial order or other compulsion of law; provided that the receiving party shall provide prompt notice of such requirement to the disclosing party (to the extent legally permitted) and shall comply, at the disclosing party’s expense, with any protective order imposed on such disclosure; provided further that the disclosing party shall reimburse the receiving party for the reasonable cost of compiling and providing secure access to such Confidential Information if such disclosure is required as part of a legal proceeding that involves the disclosing party. 4.4 You acknowledge and agree that employees, agents and representatives of TitleFlow who have received or have been exposed to your Confidential Information may further develop their knowledge, skills and experience (including, but not limited to, ideas, concepts, know-how and techniques), which may be based on such Confidential Information. The restrictions in this Section 4 will not apply to the subsequent use, and disclosures incidental to such use, by such employees and agents of such knowledge, skills and experience, as unintentionally retained in their unaided memories. The receipt of or exposure to your Confidential Information under this Agreement will not in any way limit or restrict the work assignments of any of TitleFlow’s employees, agents or representatives. 5. Indemnification. 5.1 TitleFlow shall defend you against any claim, demand, suit, or proceeding made or brought against you by a third party to the extent such claim, demand, suit, or proceeding alleges that your use of the Platform Services as permitted hereunder infringes the intellectual property rights of a third party, and shall indemnify you for any damages, attorney fees and costs finally awarded against you as a result of such infringement; provided that you give us prompt written notice, reasonable assistance (at TitleFlow’s expense) and sole control of the defense and settlement thereof (provided that any settlement unconditionally releases you of all liability). 5.2 You shall defend us against any claim, demand, suit, or proceeding made or brought against us by a third party to the extent such claim, demand, suit, or proceeding alleges that any of your business processes or data, or your use of the Platform Services other than as permitted hereunder infringes the intellectual property rights of a third party, and shall indemnify us for any damages, attorney fees and costs finally awarded against us as a result of such infringement; provided that TitleFlow gives you prompt written notice, reasonable assistance (at your expense) and sole control of the defense and settlement thereof (provided that any settlement unconditionally releases us of all liability). 5.3 If TitleFlow reasonably believe the Platform Services may infringe the intellectual property rights of a third party, TitleFlow may, in TitleFlow’s discretion and at no cost to you, either: (i) modify the Platform Services so that they no longer infringe, (ii) obtain a license for your continued use of the Platform Services in accordance with this Agreement, or (iii) terminate this Agreement upon 30 days’ written notice and refund to you any prepaid fees covering the remainder of the subscription period after the effective date of termination. 5.4 THIS SECTION 5 STATES THE INDEMNIFYING PARTY’S SOLE LIABILITY TO, AND THE INDEMNIFIED PARTY’S EXCLUSIVE REMEDY AGAINST, THE OTHER PARTY FOR ANY TYPE OF CLAIM DESCRIBED IN THIS SECTION. 6. Disclaimers; Limitation of Liability. 6.1 EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. 6.2 IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE LESSER OF $100,000 OR THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 2. 6.3 IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 6.4 THE FOREGOING DISCLAIMERS AND LIMITATIONS OF LIABILITY SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. 7. Termination. 7.1 This Agreement may be terminated by either party for cause upon 7 days written notice if the other party is in breach of any material provision of this Agreement if such breach remains uncured at the end of such 7 day period. Sections 3 through 8 survive any such termination or expiration. 7.2 If this agreement is terminated any content, files, folders, or documents stored with the TitleFlow Platform and Platform Services will not be retrievable, and TitleFlow will have no obligation to maintain any data stored in your account. 8. General. 8.1 If you are accepting the Subscription Terms on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to the Agreement, in which case the terms “you” and “your” will refer to such entity and its affiliates. If you do not have such authority, you may not accept the Subscription Terms and you may not access or use the TitleFlow Platform or the Platform Services. 8.2 The TitleFlow Platform and the Platform Services comprise commercial computer software developed at private expense and are subject to limited utilization as expressly stated in this Agreement. TitleFlow provides the TitleFlow Platform and the Platform Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the TitleFlow Platform and the Platform Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with TitleFlow to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement. 8.3 The TitleFlow Platform and Platform Services may automatically log information about your computer, or device, your use of the Platform Services, the Platform Services performance, as well as other information that results from your use of the Platform Services. TitleFlow reserves the right to use, transfer or disclose this information so long as such use does not allow a third party to specifically identify you or where your information is included in a non-identifiable aggregate of data. In addition, by using the TitleFlow Platform and Platform Services you agree that TitleFlow may access or disclose information about you in order to: (i) comply with the law or a lawful request for such information; (ii) protect the rights or property of TitleFlow or its customers; or (iii) to act on a good faith belief that access or disclosure of this information is necessary to protect the personal safety of TitleFlow employees, customers, or the public. 8.4 The TitleFlow Platform and the Platform Services may contain encryption or other technology, the provision of which is restricted by U.S. export control laws and regulations. You certify that you are not named on any U.S. government denied-party list and that you will use the TitleFlow Platform and the Platform Services in conformance with U.S. export control laws and regulations and will not provide or re-export any of the TitleFlow Platform or the Platform Services to the governments of Cuba, Iran, North Korea, Sudan or Syria or to any other destination to which the U.S. government may in the future prohibit exports or to citizens, nationals or permanent residents of those countries. 8.5 The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Nothing in this Agreement creates an exclusive relationship or in any way prevents TitleFlow from entering into similar arrangements with or providing similar services to other entities, including, without limitation, other similar customers. You understand and acknowledge that TitleFlow may, in TitleFlow’s sole discretion, use some or all of the generalizable insights, information, or results of any of the products or services provided hereunder in providing products or services to other customers and nothing in this Agreement shall be construed to limit TitleFlow’s right to do so. 8.6 This Agreement is governed by and will be construed using Texas law, without giving effect to conflict of law provisions or to constructive presumptions favoring either party. All actions arising out of or relating to this Agreement will be heard and determined exclusively by the state and federal courts located in Travis County, Texas and each party hereby consents to and waive any objections with respect to such jurisdiction and venue. Each party hereby waives any right to jury trial in connection with any action arising out of or relating to this Agreement. 8.7 This Agreement, together with your Subscription Forms and any exhibits, schedules, supplements, or addenda thereto (if any), constitutes the final, complete and exclusive agreement among the parties regarding your access and use of the TitleFlow Platform and the Platform Services and supersedes all prior or contemporaneous agreements or understandings, whether in written, oral, electronic, or other form, relating to the subject matter hereof, including any prior versions of the Subscription Terms. 8.8 TitleFlow reserves the right to revise and modify this agreement at any time. TitleFlow will date and post the most current version of this Agreement on the TitleFlow website. Any changes to this Agreement will be effective upon the date of posting the revised version of this Agreement to the website, or upon such later effective date as may be indicated at the top of the revised Agreement. If TitleFlow deems a revision to this Agreement to be material, TitleFlow will notify you via the TitleFlow Platform or by email. Your continued access or use of the TitleFlow Platform or Platform Services constitutes your acceptance of any changes. If you do not agree to any of the changes, you must cancel and stop using the TitleFlow Platform and Platform Services. No failure or delay by either party in exercising any right under this Agreement constitutes a waiver of that right. The waiver of any breach or provision of this Agreement will not be deemed a waiver of any different or subsequent breach. 8.9 The provisions of this Agreement are severable. In the event that any provision or portion thereof is found by any court to be invalid or otherwise unenforceable, the remainder of this Agreement will not be affected, and the parties consent to such court’s substitution of a valid and enforceable term that approximates the intent and effect of such invalid or unenforceable provision or portion. 8.10 No party will bear any responsibility or liability under this Agreement as a result of any “Force Majeure” including, but not limited to, act of God, war, riot, flood, civil commotion, insurrection, severe or adverse weather conditions, failure of any utilities, telecommunications or cloud computing provider, or any other cause beyond the reasonable control of such party; provided that: (i) the party affected by a Force Majeure gives the other party prompt notice of such Force Majeure and uses reasonable efforts to overcome such Force Majeure; and (ii) if a Force Majeure affects a party’s performance under this Agreement for more than 30 days, the other party may terminate this Agreement 8.11 Except as otherwise provided herein, any notice or other communication to be given hereunder must be in writing and either (as elected by the party giving such notice): (i) personally delivered; (ii) sent postage prepaid by registered or certified mail, return receipt requested; (iii) transmitted by facsimile (with a confirmation of receipt) or email; or (iv) deposited prepaid with a nationally recognized overnight courier service. Notices will be deemed to have been duly given on the date of receipt (or if non-electronic delivery is refused, the date of such refusal). 8.12 Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph will be, at the non-assigning party’s election, termination of this Agreement for cause upon written notice to the assigning party. Subject to the foregoing, this Agreement is binding upon and inures to the benefit of the parties, their respective successors and permitted assigns.