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CLOSESIMPLE, INC.

TERMS OF SERVICE

The following Terms of Service (the “Terms”) govern Customer’s use of the Software (as defined below) and any applicable Statement of Work (“SOW”). The Terms, together with all applicable SOWs, shall be referred to as the “Agreement.” 

  1. Access to Software. 
    1. License Grant. Subject to the terms and conditions of the Agreement, CloseSimple, Inc. (“CloseSimple”) grants to Customer a non-exclusive, non-transferable, limited term, revocable right to access and use the software applications developed, owned and hosted by CloseSimple, as identified on the SOW (the “Software”) solely for Customer’s internal business purposes. CloseSimple and its licensors reserve all rights in and to the Software not expressly granted to Customer. Customer will provide, at Customer’s location, hardware, software, and communications equipment which will allow Customer to access and use the Software. Customer will be responsible for providing all additional equipment and internet connectivity at its own expense. 
    2. Updates. From time to time, CloseSimple may make updates to the Software, which will be governed by these Terms. CloseSimple is not responsible for performance of updates in connection with any plugins not part of the Software. Except as provided on an applicable SOW, CloseSimple is not obligated to provide any updates or other modifications to Customer. Customer may purchase upgrades, which might include new features to the Software for an additional fee.
    3. Customizations. CloseSimple shall provide Customer with initial customized implementation (“Customizations”) so that the Software will integrate with Customer’s system. The completion of such Customizations shall be in accordance with the Agreement and any applicable SOW. 
    4. Third Party Processors. CloseSimple partners with third party processors (“Third Party Processors”) to provide the services described herein. In connection with the provision of services as contemplated herein, Third Party Processors may have access to sensitive, confidential or otherwise non-public information provided by or on behalf of Customer. Customer expressly authorizes CloseSimple to share with its Third Party Processors any and all information Customer provides to CloseSimple and/or Third Party Processors through the use of the Software or to otherwise provide services described herein. CloseSimple shall not be liable for any act or omission of a Third Party Processor, including but not limited to service failure, limitations, interruptions, loss of data, privacy breaches, or any downtime. CloseSimple is not responsible for Third Party Processor’s uptime, including but not limited to SoftPro Enterprise, Standard and Select, RamQuest CCE and RamQuest One, GreenFolders, and ResWare.
    5. Customer Obligations. Customer shall be responsible for ensuring that Customer has obtained all necessary consents, approvals and permissions from its own customers, as required by applicable laws and regulations. Customer is responsible for ensuring that all information supplied to CloseSimple remains accurate and is updated regularly, if and as necessary for the provision of the Software and related services. All information provided by Customer is governed by CloseSimple’s Privacy Policy.
    6. Support Services. In addition to maintenance and support services described in an applicable SOW, CloseSimple will provide routine support and troubleshooting services for the Software (“Support Services”) to Customer. Customer may request Support Services by submitting a support request to support@closesimple.com.

  2. Restrictions on Use. Customer shall not: (a) copy or otherwise reproduce or permit the copying or other reproduction of all or any part of the Software except as otherwise permitted herein; (b) reverse engineer, decompile, disassemble or create derived works based on the Software; (c) modify, adapt, translate into other programming forms or languages or extend the Software to operate in other environments or on other platforms, except in accordance with these Terms; (d) allow access to the Software by any third party(s) or other software products for any purpose without prior approval of CloseSimple; (e) cause harm in any way to the Software or cause malware to harm the Software; (f) attempt to, or actually, work around the Software’s technical limitations; or (g) access the Services and/or use the materials provided hereunder in order to build a similar, competing product.

  3. Fees and Payment. Customer will pay CloseSimple all fees in the amounts and on the schedule set forth in any applicable SOW. Rates described on the SOW are exclusive of taxes, levies, duties, governmental charges or expenses, and Customer shall be responsible for payments of the same. If license fees for the Software are to be recurring, Customer will provide CloseSimple with a valid credit card or other payment  method as otherwise approved by CloseSimple. If Customer provides credit card information to CloseSimple, Customer authorizes CloseSimple to charge such credit card for all license fees as provided on the SOW. Such charges shall be made in advance in accordance with the billing frequency set forth in the SOW.  Fees remaining unpaid for more than thirty (30) days from receipt will accrue interest at a rate of the lesser of one and one-half (1.5%) percent per month or the highest rate allowed by law, whichever is less. Customer will be liable for all costs and expenses related to collection of past due amounts, including legal and other professional fees and expenses of litigation. CloseSimple’s rights under this section will be in addition to all other rights and remedies available to CloseSimple upon Customer’s default. 

  4. User Data CloseSimple will maintain certain data that Customer transmits to the Software for the purpose of managing the performance of the Software, as well as data relating to use of the Software. Although CloseSimple performs regular routine backups of data, Customer acknowledges and agrees that Customer is solely responsible for all data that is transmitted to the Software or that relates to any activity undertaken using the Software. Customer agrees that CloseSimple shall have no liability to Customer for any loss or corruption of any such data, and Client hereby waives any right of action against CloseSimple arising from any such loss or corruption of such data.

  5. User Generated Content The Software allows Customer’s users to submit, post, display, transmit, perform, publish, distribute, or broadcast content and materials to us or through the Software, including but not limited to text, writings, video, audio, photographs, graphics, comments, suggestions, or personal information or other material (collectively, “Content”). Content may be viewable by other users of the Software and through third-party services. All Content transmitted through the Software shall be subject to the Privacy Policy. When Customer creates or makes available any Content, Customer thereby represents and warrants that:
    1. The creation, distribution, transmission, public display, or performance, and the accessing, downloading, or copying of Content do not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret, or moral rights of any third party.
    2. Customer is the creator and owner of or has the necessary licenses, rights, consents, releases, and permissions to use and to authorize CloseSimple, the Software, and other users of the Software to use Customer’s Content in any manner contemplated by the Software and these Terms.
    3. Customer has the written consent, release, and/or permission of each and every identifiable individual person in any Content to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of Content in any manner contemplated by the Software and these Terms.
    4. Content is not false, inaccurate, or misleading.
    5. Content is not unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation.
    6. Content is not libelous, slanderous, or otherwise objectionable (as determined by Licensor).
    7. Content does not ridicule, mock, disparage, intimidate, or abuse anyone.
    8. Content does not violate any applicable law, regulation, or rule.
    9. Content does not violate the privacy or publicity rights of any third party.
    10. Content does not otherwise violate, or link to material that violates, any provision of these Terms, or any applicable law or regulation.
    11. Any use of the Software in violation of the foregoing violates these Terms and may result in, among other things, termination or suspension of Customer’s rights to use the Software.

  6. Proprietary Rights. 
    1. Customer Content. Customer retains ownership of its data and content that is processed or hosted by the Software, including graphics and text provided by Customer for inclusion. Customer hereby grants to CloseSimple for the Term a non-exclusive, worldwide license to use, reproduce, distribute, display, and modify any user-perceptible text and multimedia information, including sound, data, text, designs, audio, video, graphics, photographs, information, Customer advertisements, and the like provided by Customer to CloseSimple through Customer’s use of the Software (“Customer Content”). Customer hereby grants CloseSimple the right to aggregate Customer Content with other information in one or more data sets in a manner that does not reveal the identity or the source of such information, and CloseSimple and its licensors will be free (during and after the Term of this Agreement) to use such Customer Content (as aggregated with other information and de-identified) for purposes of product or service development and improvement, for analytical purposes, and to make general public statements regarding industry trends and/or the efficacy of CloseSimple’s products and services. 
    2. Software Applications. All right, title and interest (including all intellectual property rights embodied therein) in and to the Software is and will at all times remain the sole and exclusive property of CloseSimple or its licensors. These Terms grant Customer no title or right of ownership in or to the Software, or any component thereof including source code, or to any associated materials, documentation, intellectual property, or in or to any derivatives of the Software, enhancements, modifications or improvements thereto. Customer will not, at any time, take or cause any action, which would be inconsistent with or tend to impair the rights of CloseSimple or its affiliates in the Software. Customer may not remove or alter any proprietary or copyright notices, trademarks or logos of CloseSimple or its Third Party Processors.

  7. Term and Termination. The Agreement will commence upon the Effective Date as stated on the SOW and remain effective for the period set forth in the SOW unless terminated as permitted in this Section (the “Initial Term”). Unless otherwise agreed upon in the SOW, the Initial Term will automatically renew for successive one-year periods unless either party provides the other party no less than sixty (60) days prior notice of its intent that this Agreement not so renew (together, the “Term”). Either party may terminate this Agreement, in whole or in part (including an individual SOW), for cause, (a) if the other party fails to cure a material breach within thirty (30) days of written notice by the non-breaching party, including non-payment of undisputed fees; or (b) immediately following written notice if the other party: (i) ceases to do business in the normal course; (ii) becomes or is declared insolvent or bankrupt; (iii) is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within ninety (90) calendar days; or (iv) makes an assignment for the benefit of creditors. CloseSimple may terminate this Agreement for any reason upon ninety (90) days written notice to Customer. Termination of the Agreement will relieve CloseSimple of all obligations to provide Customer access to the Software and any licenses granted under the Agreement will immediately cease. Unless terminated by Customer in accordance with subpart (a) herein above, the balance of any unpaid fees will accelerate and become due and payable immediately prior to termination of this Agreement.  

  8. Indemnification
    1. By CloseSimple. CloseSimple will indemnify and defend Customer and its affiliates, directors, officers, employees and agents with respect to any claims, liabilities, damages and expenses, including reasonable attorneys’ fees, arising out of any third-party claim that the Software as provided by CloseSimple infringes on any registered copyright, patent, trademark, trade secret or other intellectual property right of any third party. Notwithstanding the foregoing, CloseSimple will have no obligation pursuant to the foregoing indemnification provision to the extent that any claim is based on or related to: (a) any use of the Software in violation of the Agreement, (b) any use of the Software in conjunction with any third-party service, data, hardware or software not provided by CloseSimple, or (c) any material or data provided by Customer. If Customer's use of the Software becomes, or is likely to become, the subject of an infringement claim, CloseSimple may, at its option and expense (i) procure the right for Customer to continue using the Software, (ii) replace or modify the infringing components of the Software with non-infringing components of substantially equivalent functionality. If neither (i) or (ii) is feasible, in CloseSimple’s discretion, CloseSimple may elect to terminate this Agreement in full and return to Customer a pro-rata portion of any fees which have been pre-paid. The foregoing states the entire liability of CloseSimple with respect to any infringement claims, and Customer hereby expressly waives any other remedies for infringement claims.
    2. By Customer. Customer will indemnify, defend and hold harmless CloseSimple and its affiliates, directors, officers, employees and agents with respect to any claims, liabilities, damages and expenses, including reasonable attorneys’ fees, arising out of (a) any Customer Content, (b) Customer’s breach of any applicable laws and regulation, including but not limited to the TCPA, or (c) a breach of any of Customer's representations, warranties, obligations, covenants or agreements under the Agreement. 
    3. Indemnification Procedures. A party seeking indemnification hereunder (an “Indemnified Party”) will give the Party from whom indemnification is sought (the “Indemnifying Party”): (a) reasonably prompt notice of the relevant claim; (b) reasonable cooperation and assistance, at the Indemnifying Party’s request and expense, in the defense or settlement of such claim; and (c) sole control of the defense and settlement of any such claim; provided, however, that the Indemnifying Party will not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party’s rights or interest. The Indemnified Party will have the right to participate in the defense at its own expense. 

  9.  WARRANTY DISCLAIMER. ALL WARRANTIES, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE, COMMON LAW OR IN ANY OTHER WAY, INCLUDING ANY IMPLIED WARRANTIES AS TO QUALITY, PERFORMANCE, TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE AND USAGE OF TRADE, ARE EXCLUDED FROM THE AGREEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. CLOSESIMPLE MAKES NO WARRANTIES WITH REGARD TO THE SOFTWARE OR SERVICES PROVIDED HEREUNDER. FOR AVOIDANCE OF DOUBT, THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS AND CUSTOMER’S USE OF THE SOFTWARE IS AT ITS OWN RISK. CLOSESIMPLE DOES NOT WARRANT THAT THE SOFTWARE WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR COMPLETELY SECURE OR ERROR-FREE. 

  10. Limitation of Liability. CLOSESIMPLE WILL NOT BE LIABLE FOR VIOLATION OF ANY APPLICABLE LAW, RULE OR REGULATION OR TO ANY THIRD PARTY FOR CLAIMS ARISING OUT OF OR RELATED TO CUSTOMER CONTENT PROVIDED TO CLOSESIMPLE OR PLACED ON THE SOFTWARE BY CUSTOMER OR AT CUSTOMER’S DIRECTION. IN NO EVENT WILL (A) CLOSESIMPLE BY LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE SOFTWARE; AND (B) CLOSESIMPLE’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER EXCEED THE AMOUNT PAID TO CLOSESIMPLE UNDER THE AGREEMENT DURING THE PREVIOUS SIX (6) MONTH PERIOD. 

  11. Submissions. Customer acknowledges and agrees that any questions, comments, suggestions, ideas, feedback, or other information regarding the Software ("Submissions") provided by Customer are non-confidential and shall become CloseSimple’s sole property. CloseSimple shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to the Customer. Customer hereby waives all moral rights to any such Submissions, and hereby warrants that any such Submissions are original with or that Customer has the right to submit such Submissions. Customer agrees there shall be no recourse against CloseSimple for any alleged or actual infringement or misappropriation of any proprietary right in Submissions

  12. Referrals. 
    1. CloseSimple offers an optional, third-party referral service to assist Customer’s own customers with identifying and procuring third-party providers for the provision of certain utility services, including but not limited to, retail electric, cable, satellite, internet and other related services as may be elected from time to time (the “Referral Service”). Customer may participate in the Referral Service by opting in as set forth in the SOW.  
    2. If Customer has opted in to the Referral Service, then during the term Customer’s own customers will be referred to certain third-party service providers (“Vendors”) and in exchange CloseSimple and Customer will receive a monthly commission, to be split equally, based on the products and services sold by the Vendors to customers.
    3. Customer may receive such commission amounts from CloseSimple or directly from the third-party referral provider, at CloseSimple’s sole option. 
    4. Subject to the foregoing, Customer acknowledges that any cancellation or modification of revenue generating home services by a referred customer within 90 days of the initial activation may result in a chargeback of the commission by the third-party service provider (“Chargebacks”). Any such Chargebacks associated with the customer referrals shall be deducted from the next payment. In the event of termination of this Agreement, all remaining compensation payments shall be retained until all Chargebacks have been confirmed by the Vendor(s). 
    5. Customer is responsible for payment of all taxes applicable to the commission amounts received in connection with the Referral Service. All commission amounts payable are subject to offset by CloseSimple against any amounts owed by Customer hereunder. 
    6. For avoidance of doubt, Customer is responsible for ensuring that Customer has obtained all necessary consents, approvals and permissions from its own customers, as required by applicable laws and regulations, in connection with the Referral Service. Customer is responsible for ensuring that all information supplied to CloseSimple remains accurate and is updated regularly.
    7. Other than as expressly modified by this Section 12, the Referral Service is subject to these Terms in all respects. 

  13. Fraud Related Products
    1. As part of the Services, CloseSimple may solicit certain Personally Identifiable Information from Customer about an individual, in order to indicate associated risk of fraud, financial falsifications, or other indicia of misrepresentation. Personally Identifiable Information is information that identifies, relates to, describes, references, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly with a real natural person, or any similar term defined under applicable law. Examples of Personally Identifiable Information include, but are not limited to, first and last name, mailing address, email address, and telephone number. 
    2. Customer agrees that Personally Identifiable Information shared with CloseSimple may be transferred by CloseSimple to its trusted third-party service providers, such as LexisNexis Risk Solutions, to acquire additional information that Customer may use to further assess risk. CloseSimple may also obtain, through open source resources and trusted third-party service providers, additional information related to the subject of Personally Identifiable Information provided by Customer.  As explained below, CloseSimple does not warrant the accuracy or completeness of any information it provides as part of its risk management services to Customer. 
    3. Customer agrees that it is solely responsible for obtaining any requisite authorization or consent, to the extent required by applicable law, to collect Personally Identifiable Information from third parties and provide it to CloseSimple, who may in turn transfer such Personally Identifiable Information to its trusted third-party service providers.  By providing any information, including Personally Identifiable Information, Customer warrants and represents that it has the requisite authority to share such information in accordance with applicable law.  
    4. The Customer agrees to promptly notify CloseSimple of any instance of fraud or suspected fraudulent activity discovered in connection with CloseSimple’s product offering. Such notification should be made as soon as the fraud is identified, and should include file number, transaction amount, and other information deemed appropriate.
    5. Disclaimer.  Customer agrees that the Services provided by CloseSimple are intended to manage risk surrounding fraud, misrepresentation, and falsities surrounding real estate transactions.  CloseSimple does not warrant that it or its Services can prevent fraud.  Customer is solely responsible for any actions taken in reliance of the Services, and agrees CloseSimple shall not be liable for such actions. Customer acknowledges and agrees that any information provided through the Services by CloseSimple and by its trusted third-patty service providers is provided “as is” and “where is” and without any warranties of any kind.  CloseSimple and its third-party licensors expressly disclaim all warranties, whether express, implied, or statutory, including, without limitation, the warranties of merchantability, fitness for a particular purpose, title and non-infringement.  Notwithstanding any provision contained herein to the contrary, CloseSimple and its third-party licensors make no representation, warranty, or covenant concerning the accuracy, quality, suitability, completeness, sequence, timeliness, security, or availability of the Services or information provided therein.  Customer specifically acknowledges that CloseSimple and its third-party licensors are not liable for the defamatory, obscene, or unlawful conduct of third parties or furnishers of information that are ultimately provided to Customer as part of the Services.  

  14. Modifications and Interruptions. CloseSimple reserves the right to change, revise, modify, remove, suspend, or discontinue any of the contents of the Software at any time or for any reason at CloseSimple’s sole discretion without notice. CloseSimple is not liable to Customer or any third party for any modification, price change, suspension, or discontinuance of the Software. CloseSimple cannot guarantee the Software will be available at all times.

  15.  Miscellaneous
    1. Assignment. Customer may not assign the Agreement or any right created hereunder without the prior written consent of CloseSimple. Any prohibited assignment is void. The Agreement shall inure to the benefit of the parties’ respective permitted successors and assigns
    2. Amendments; Waiver; Severability. CloseSimple may periodically update this Agreement at its discretion, and, when updated, a revised copy will be posted on the CloseSimple website. If the updates are material, then CloseSimple may also directly notify you of the same. Customer’s continued use of the Software after any such update shall constitute your assent to and acceptance of the updated Agreement in its entirety, and the revised Agreement shall govern your use of the Software thereafter. Any waiver of any breach of any term or any condition of the Agreement will not be construed as a waiver of any subsequent breach of any term or condition of the Agreement. If any part, term or provision of the Agreement will be held to be illegal or unenforceable it will not affect the validity or enforceability of the remainder of the Agreement. The parties will replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision. 
    3. Publicity. CloseSimple may disclose in its advertising and marketing materials that: (a) Customer has entered into the Agreement with CloseSimple; and (b) Customer is a customer of CloseSimple.
    4. Disputes. This Agreement will be governed solely by the internal laws of the State of Delaware, without reference to such state’s principles of conflicts of law. The 1980 U.N. Convention on Contracts for the International Sale of Goods does not apply to the Agreement. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Delaware. 
    5. Entire Agreement. The Agreement, including the SOW and any other exhibits, comprises the entire agreement between the parties relating to the subject matter hereof. The Agreement supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of the Agreement. The Agreement may be executed in several counterparts, each of which will be deemed to be an original, and all of which, when taken together, will constitute one and the same instrument. Sections 6 (Proprietary Rights), 9 (Warranty Disclaimer), 10 (Limitation of Liability), and 13 (Miscellaneous) survive termination of the Agreement.