DISCLAIMER: READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT IS A BINDING LEGAL DOCUMENT BETWEEN YOU AND WESTCOR TECH, LLC REGARDING YOUR USE OF CLOSEPIN. IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS OF USE, DO NOT USE CLOSEPIN.
These Terms and Conditions of Use constitute a legal agreement (the “Agreement”) between you and Westcor Tech, LLC (“Owner”) regarding your use of Owner's website, www.closepin.com, and the interactive tools and content contained on that website (collectively “Closepin”). You will be deemed to have accepted and agreed to all of the terms and provisions of this Agreement each time you access and use Closepin. If you do not agree to all of the terms and provisions of this Agreement, you are not permitted to access or use Closepin.
In order to utilize Closepin, you must establish an account (“Account”) by creating a User ID and password to access and authenticate your Account (“Credentials”) and supplying personal information including, without limitation, your contact information, credit card billing information, the fees for your Closing Agent Services (as defined below), and information relating to your licensure, insurance coverage, surety bonds, escrow account wire instruction(s), and related information as they relate to your Closing Agent Services (collectively, “User Information"). If you supply your escrow account wire instruction(s) as requested, Owner will utilize those instructions to validate the existence of the escrow account(s) as well as the account holder name. In the event you are a consumer (individual or sole proprietor), pursuant to the federal Fair Credit Reporting Act, you hereby authorize Owner and its designated agents and representatives, to validate your wire instructions(s) via consumer reports or direct confirmation from the financial institution. You understand that the scope is limited to the confirmation of the existence of the escrow account(s) and the name of the accountholder. You understand that, pursuant to the federal Fair Credit Reporting Act, if there is a discrepancy with the account information provided and the wire instruction(s) are rejected by Owner, you will be provided with the information relating to the discrepancy and the source of the information so as to allow you the opportunity to provide revised wire instruction(s) for validation. Once the wire instruction(s) are validated, a Lender may utilize Closepin to confirm the instructions provided to them match the instructions you provided in Closepin.
You may not reveal your Credentials to anyone else. Owner shall not be responsible for any Losses (as defined below) arising out of the unauthorized use of your Account, and you are solely responsible for any and all charges, fees, and expenses incurred through your Account. You agree to provide accurate and complete User Information and to regularly update your User Information to ensure that it remains accurate and complete. You agree that Owner may store and use your User Information for the purpose of maintaining your Account, billing and collecting fees from you, and any other purpose deemed reasonable by Owner. Owner retains the right to suspend or cancel your Account, or to refuse to include you or your Closing Agent Services on Closepin, at any time in Owner's sole and absolute discretion.
You or Owner may terminate your access to Closepin at any time, and for any reason. When your access to Closepin terminates, all rights granted to you under this Agreement shall automatically terminate and revert to Owner, and you shall immediately cease all use of Closepin. Termination of this Agreement or your access to Closepin shall not relieve you of any liability for your breach of any provision of this Agreement accruing or occurring prior to the termination, and you will remain liable for all amounts due under your Account up to and including the date of termination. Owner’s rights, and your obligations, shall survive the expiration or earlier termination of this Agreement.
II. CLOSEPIN’S PRODUCTS AND SERVICES.
Products and Services. Closepin is an online, software-as-a-service (“SaaS”) tool that enables you, as someone providing services as a closing agent of real estate transactions (“Closing Agent Services”), to market and advertise your Closing Agent Services to real estate lenders (“Lenders”) and purchasers and borrowers (collectively, “Consumers”). It also allows a Lender to add you to their network of Closing Agents that the Lender manages through Closepin. Notwithstanding any marketing materials, communications, or other statements to the contrary, Owner and Closepin are not providing you with any guarantee of results, and you acknowledge and agree that there is no assurance or guarantee that you will be contacted by any Lenders or Consumers, or that you will achieve any level of success or results through your use of Closepin (including, without limitation, that any amount of leads, orders, or other new business will be placed with you).
Closepin utilizes various third-party providers to supply information to closing agents, Lenders, and Consumers, including title insurance premium rates and pricing information on recording instruments in various jurisdictions. Closepin’s provider of title insurance premium rates – TitleHound – provides basic rates for all major U.S. underwriters. If you have an account with TitleHound under which your title rates are maintained, Closepin will utilize these rates for quoting purposes. If you do not have a TitleHound account, then Closepin will default to: American Land Title Association (ALTA) basic rates for all U.S. states except California, Illinois, Iowa, and Nebraska; California – California Land Title Association (CLTA) basic rates; Illinois – the average rate charged by 3 major underwriters in Illinois; Iowa – Iowa Title Guaranty Rates, unless you select a neighboring state through your Account; and Nebraska – the current rates for Blaine County. Closepin relies on third party providers for the accuracy of the information provided through Closepin, and there is no guarantee being made to you that this information is accurate, reliable, or current. You agree to independently verify all rates quoted on Closepin prior to relying on them by using outside sources of information.
Pricing. You, as a closing agent, will have the option to select a pricing package (available at: http://www.closepin.com/closing-agents/pricing/ (the “Pricing Page”)) for your custom profile on Closepin and various other products and services offered through Closepin from time to time. When you register your Account, Closepin may provide you with options to subscribe for certain services, such as inclusion in certain customized searches by Lenders and Consumers for which you could be billed automatically on a per-transaction basis. All charges are subject to applicable sales taxes based on the bill-to address and the applicable sales tax rate in effect at the time you incur the charges. You agree that you will pay for all charges that are incurred by you or through your Account, and that Owner may charge the credit card on file with your Account for those charges and any related amounts (such as taxes). Prices and terms may change at any time, and Owner does not provide price protection or refunds in the event of a price reduction or promotional offering. If any products or services become unavailable following a purchase transaction but prior to your receipt of those products or services, your sole remedy is a refund of the amount actually paid to Owner by you.
All payments are processed through payment processing companies that are private contractors and unaffiliated with Owner, and Owner assumes no responsibility for those companies' use, transmission, storage, or handling of your payment information.
From time to time, Owner and Closepin might offer promotional rebates to closing agents and other users of Closepin. The amount of any such rebates, and who they are offered to, are in Owner’s sole and absolute discretion, and you have no right or entitlement to receive a rebate that is offered to another user. IF YOU ARE OFFERED A REBATE FOR A PARTICULAR LEVEL OF SERVICE AND YOU ACCEPT THAT REBATE, YOU WILL BE AUTOMATICALLY BILLED FOR THE RECURRING COST OF THAT SERVICE AT THE CONCLUSION OF THE REBATE PERIOD AT THE RATES SET FORTH ON THE PRICING PAGE UNLESS YOU CANCEL THE SERVICE AT LEAST FIVE (5) DAYS PRIOR TO THE CONCLUSION OF THE REBATE PERIOD.
THERE WILL BE AUTOMATIC CHARGES BILLED TO YOUR CREDIT CARD, INCLUDING, WITHOUT LIMITATION, RENEWALS OF ANNUAL SUBSCRIPTION FEES, AND PER-TRANSACTION CHARGES IF YOU HAVE ELECTED TO RECEIVE CERTAIN PRODUCTS AND SERVICES. THE AMOUNTS OF THESE AUTOMATIC CHARGES MAY INCREASE FROM TIME TO TIME IN OWNER’S SOLE AND ABSOLUTE DISCRETION. YOU WILL BE NOTIFIED OF ANY INCREASE IN AUTOMATIC CHARGES AT LEAST THIRTY (30) DAYS’ PRIOR TO THEIR BECOMING EFFECTIVE, EITHER BY E-MAIL TO THE ADDRESS REGISTERED TO YOUR ACCOUNT, OR BY OWNER POSTING REVISED PRICING ON THE PRICING PAGE. YOU MAY CANCEL AUTOMATIC PAYMENTS TO YOUR ACCOUNT AT ANY TIME BY CONTACTING OWNER AT firstname.lastname@example.org.
Ratings and Placement. Owner reserves the right to incorporate into Closepin a mechanism permitting Lenders and Consumers to rate and comment on closing agents and their Closing Agent Services. Along with other factors, ratings may be used to determine the placement of closing agents on Closepin, with higher-rated closing agents being given better placement. Owner reserves the right to display closing agents on Closepin in a manner that will be determined in Owner's sole and absolute discretion. You and your Closing Agent Services may be subject to comments and ratings from other Closepin users about which you may not agree, which may be posted publicly on Closepin, and to which you will not necessarily be able to respond (whether publicly or privately). You may contact Owner if you have any questions or concerns regarding such comments and ratings at email@example.com; provided, however, that Owner is under no obligation to modify or remove any comments or ratings. If you respond to a rating or comment made on Closepin by a Lender or Consumer, whether privately or publicly, you agree to do the following: (i) exercise good-faith and fair dealing in your response; (ii) refrain from using language that is profane, offensive, harassing, or libelous; and (iii) avoid using abbreviations and slang, and use full proper names for any parties that you refer to or address.
III. YOUR USE OF CLOSEPIN.
Usage License. Subject to the terms and conditions of this Agreement and the Policies, Owner grants to you a personal, non-exclusive, non-transferable, and revocable license to access and use Closepin. This license to access and use Closepin does not give you any ownership interest in Closepin or any of its associated intellectual property, all of which shall remain the sole and exclusive property of Owner and its licensors (as applicable). Owner reserves the right to update and make changes, additions, or deletions to Closepin (“Modifications”) at any time, for any reason, and without notice to you. All rights in any such Modifications will be owned exclusively by Owner. Owner may make any such Modifications available to you under the terms of this Agreement or any other terms and conditions offered by Owner, and may cease usage of prior versions of Closepin, in its sole and absolute discretion. Nothing grants you the right to be the sole provider of your Closing Agent Services through Closepin, and Owner is under no obligation to refrain from promoting, offering, selling, developing, marketing, or taking any other action with respect to any other products or services, including any other Closing Agent Services from other closing agents that compete with you.
Communication of Your Information to Lenders and Consumers. For as long as you have an active Account on Closepin, you consent and agree to Owner and Closepin providing the following information and materials concerning you: (i) all contact information associated with your Account to Lenders and Consumers so that they may contact You about Closing Agent Services; (ii) all information that you have provided through your Account as part of Closepin’s Compliance Validation product to Lenders (including, without limitation, your insurance and licensing information and associated certificates); and (iii) any information through other sources such as public records searches and background checks (including, without limitation, registrations with Better Business Bureaus and Consumer Financial Protection Bureaus and any complaints filed against you, criminal records, bankruptcy proceedings, and any feedback or ratings submitted through Closepin).
Appointment of Owner as Your Agent. You appoint Owner and its affiliates as your agent to market and make your Closing Agent Services available through Closepin on your behalf. You hereby grant to Owner and its affiliates a worldwide, non-exclusive, perpetual, irrevocable, and fully paid-up license to use your name, likeness, your image (including photographs), information about your Closing Agent Services (including, without limitation, your fees), and any ratings or reviews posted by other users of Closepin about you, in the marketing and delivery of your Closing Agent Services, to satisfy any of Owner’s other obligations under this Agreement, and in any presentations or marketing materials for purposes of marketing Closepin. You agree that no royalty or other compensation is payable by Owner in exchange for the rights described in this section. Owner may use consultants, contractors, and other individuals to perform its obligations, and to exercise its rights, under this Agreement, and such persons shall be entitled to use the licenses you have granted under this Agreement.
Restrictions on Use. You agree that the license granted to you under this Agreement expressly prohibits you from: (i) redistributing, retransmitting, publishing, transferring, commercializing, or otherwise exploiting Closepin; (ii) reverse engineering, decompiling, or modifying Closepin; and (iii) copying or redistributing Closepin, including, without limitation, by creating an archive of any portion or content of Closepin. You agree that you are strictly prohibited from accessing or attempting to access any areas of the computer system where Closepin is hosted. You further agree that you will not: (i) use any robot, spider, other automatic device or manual process to “screen scrape”, monitor, mine, or copy any portion of Closepin or the content contained therein; (ii) spam or send unsolicited communications to any other user of Closepin for any reason; (iii) enter into or transmit via Closepin any information that contains a virus, bug, or other harmful item; (iv) use any device, software, or routine to interfere or attempt to interfere with the proper working of Closepin; (v) enter into or transmit via Closepin any unlawful, fraudulent, harassing, libelous, or obscene information of any kind, or otherwise utilize Closepin for any unlawful, fraudulent, harassing, libelous, or obscene purpose; (vi) enter into or transmit via Closepin any information (including but not limited to, text, imagery, audio recordings, or video recordings) in violation of another party’s copyright or intellectual property rights; (vii) take any action that imposes an unreasonable or disproportionately large load on the infrastructure hosting Closepin; or (viii) violate any laws, regulations, or terms and conditions applicable to you or your use of Closepin. In the event of your breach of any of these restrictions or any other term of this Agreement, Owner may, in addition to all other remedies available to Owner of any type or nature (whether under this Agreement, the Policies, at law, in equity, or otherwise), terminate this Agreement and your usage of Closepin without any refund of any payments made by you (regardless of whether the corresponding products or services have been provided).
Availability. You agree that Closepin may not be available on a continuous or uninterrupted basis and that Closepin may be inaccessible or inoperable for any reason, including, but not limited to, periodic maintenance or repairs, equipment malfunctions, Internet or wireless service interruption or failure, and other causes beyond the control of Owner or that could not be reasonably foreseen by Owner. The use of Closepin on more than one device may result in the loss of data or information. Owner does not guarantee the integrity of information transmitted via Closepin. Owner shall not be liable for the inadvertent disclosure of, or corruption or erasure of, information transmitted, received, or sorted on Owner’s system. Owner shall further not be liable for any Losses which may be suffered by you as a result of the loss of information, your inability to access or use Closepin, or any other service interruptions, regardless of whether they are caused by the fault or negligence of Owner.
Consent to Use of Data. You agree that Owner and its affiliates may, at any time or from time to time in their sole and absolute discretion, monitor, record, collect, and use any data and related information that is inputted into Closepin by you or which is generated by Closepin for you (“Data”). Owner and its affiliates may use Data in any manner, and for any purpose, as Owner or its affiliates decide in their sole and absolute discretion; provided, however, that your credit card information shall only be used by Owner and its affiliates to charge you for amounts due and owing to Closepin and your wire instruction(s) shall only be used to validate the account information, as set forth above. All Data is subject to a worldwide, perpetual, royalty-free, assignable, and irrevocable license and right in favor of Owner and its affiliates to monitor, record, and permanently retain the Data in any manner permitted by applicable law, to the extent necessary to perform Owner's obligations under this Agreement, and to analyze, mine, process, aggregate, and to perform any other task or function with respect to Data including, without limitation, the sale of independent or aggregated Data to third parties. Any analysis, database, aggregation, derivative, discovery, or other work developed by Owner or its affiliates from Data shall be their sole and exclusive property, and you hereby waive and disclaim all rights thereto.
Methods of Communication. Owner may notify you with respect to any issue relating to your Account or your use of Closepin by sending an e-mail message to the address associated with your Account, by letter via certified U.S. mail to the mailing address associated with your Account, or by posting such notice on Closepin. Owner may elect any of these means of communication. Notices shall become effective immediately if sent by e-mail or posted on Closepin, or two (2) days after being sent by certified U.S. mail.
IV. YOUR CLOSING AGENT SERVICES.
Provision of Services. You, and not Owner, are solely responsible for the time, manner, and method of providing your Closing Agent Services and all costs and expenses associated with providing them. You are solely responsible, and Owner shall have no responsibility to you, any Lender or Consumer, or to any third party, for any Losses relating to, or caused by, your Closing Agent Services.
Your Charges to Consumers and Lenders. You are solely responsible for invoicing and collecting the charges of your Closing Agent Services from Lenders, Consumers, and all other purchasers. All charges for your Closing Agent Services shall be inputted and adjusted, as necessary, by you through your Account. All prices will be charged in U.S. dollars. You acknowledge and agree that Lenders and Consumers will receive quotes for your Closing Agent Services when they search for closing agents on Closepin. These quotes will be generated from the most recent User Information available on Closepin through your Account or through TitleHound, as applicable. Whenever a quote is issued to a Lender or Consumer, you agree to honor that quote in good-faith for a period of thirty (30) days after the date which it is issued, and to not charge any Lender or Consumer more than that amount for any comparable services during that period of time. Upon request by a Consumer, you agree to issue an itemization of your Closing Agent Services that is binding on you for each individual cost for a Consumer (such as for closing fees, electronic document fees, signing fees, attorneys’ fees, notary charges, and title search fees separately). Any itemized cost that is quoted shall be equal to those provided in Closepin if you received the Consumer’s request within thirty (30) days after the information being issued to the Consumer on Closepin. In the event that the charges for your Closing Agent Services are subject to any sales, use, goods and services, value added, or other similar tax under any applicable laws, you are solely responsible for determining the amount of the applicable taxes and the collection and remittance of such taxes to the appropriate authorities.
You are not an Employee, Agent, or Independent Contractor of Owner or Closepin. You are not an employee, agent, or independent contractor of Owner or Closepin, and you have no authority to bind Owner or Closepin in any way. Nothing in this Agreement gives you a right to use any of Owner’s trade names, trademarks, service marks, logos, domain names, or other distinctive brand features without Owner’s prior written consent, which may be granted or withheld in Owner’s sole and absolute discretion. Neither this Agreement nor any use of Closepin creates an independent contractor, employee/employer, partnership, joint venture, or franchiser-franchisee relationship between you and Owner. Nothing in this Agreement precludes you from generally advertising or providing your Closing Agent Services to the general public through any means outside of Closepin.
Third Party Websites and Services. Closepin invokes a number of websites, software, and services that were not developed or are not operated by Owner and that are not under the control of Owner, including, but not limited to, your mobile phone’s or computer’s operating system, browser, email and SMS programs, dialer, and other websites and services. Owner cannot assure you that these third party websites and services will function and expressly denies any liability related to such third party websites and services.
DISCLAIMER OF WARRANTIES. CLOSEPIN, INCLUDING ALL OF ITS CONTENT, APPLICATIONS, AND FUNCTIONS, IS PROVIDED “AS IS,” “WITH ALL FAULTS,” AND WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS, STATUTORY, OR IMPLIED. OWNER DISCLAIMS ALL WARRANTIES WITH RESPECT TO CLOSEPIN, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, CONDITION, UNINTERRUPTED USE, MERCHANTABILITY OF COMPUTER PROGRAMS, AND DATA ACCURACY, EXCEPT TO THE EXTENT THAT ANY WARRANTIES IMPLIED BY LAW CANNOT BE VALIDLY WAIVED. OWNER DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE OPERATION OF CLOSEPIN, THE USE, VALIDITY, ACCURACY, OR RELIABILITY OF, OR THE RESULTS OF, CLOSEPIN CONTENT, AND OWNER MAKES NO COMMITMENT TO UPDATE CLOSEPIN OR ITS CONTENT. OWNER DOES NOT WARRANT THAT ANY CONTENT AVAILABLE FOR ACCESS ON CLOSEPIN, IF ANY, WILL BE FREE FROM INFECTION, VIRUSES, WORMS, TROJAN HORSES, OR OTHER CODE THAT MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES. OWNER DOES NOT WARRANT THAT CLOSEPIN WILL OPERATE UNINTERRUPTED OR ERROR-FREE OR THAT ANY DEFECTS IN CLOSEPIN WILL BE CORRECTED. YOU AGREE THAT FROM TIME TO TIME OWNER MAY REMOVE, DISCONTINUE, OR CANCEL ANY ASPECT OF CLOSEPIN FOR AN INDEFINITE PERIOD OF TIME WITHOUT NOTICE TO YOU. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OWNER OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE OR BE DEEMED TO CREATE ANY REPRESENTATION, WARRANTY, OR COVENANT OF ANY TYPE OR NATURE WHATSOEVER. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER; THEREFORE, IN SUCH AN EVENT, THE FOREGOING PROVISIONS SHALL BE CONSTRUED TO PROVIDE THE MAXIMUM EXCLUSION AND LIMITATION OF WARRANTIES AS PERMITTED BY SUCH APPLICABLE LAW.
LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO CASE SHALL OWNER OR ITS MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, PRINCIPALS, OR LICENSORS BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE, OR INABILITY TO USE, CLOSEPIN OR ANY SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF OWNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; IN SUCH AN EVENT, THE FOREGOING PROVISIONS SHALL BE CONSTRUED TO PROVIDE FOR THE MAXIMUM LIMITATION OF LIABILITIES AS PERMITTED BY SUCH APPLICABLE LAW. In no event shall Owner's total liability to you for damages, other than as may be required by applicable laws, exceed the amount of Fifty and No/100 Dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. Owner will not entertain or respond to any claim that it believes is false, fraudulent, or made in bad-faith.
VI. YOUR ADDITIONAL RESPONSIBILITIES.
Indemnity and Waiver. To the maximum extent permitted by law, you agree to indemnify, save, pay, insure, defend, protect, and hold harmless Owner, its affiliates, and their respective members, managers, officers, employees, affiliates, agents, contractors, principals, and licensors from and against any and all claims, actions, suits, proceedings, losses, liabilities, damages, costs, and expenses (including reasonable attorneys' fees through all levels of adjudication, including settlement and appeal) (collectively, "Losses") arising out of or accruing from: (i) your use or misuse of Closepin; (ii) any breach by you of your obligations under this Agreement or any of the Policies; (iii) your violation of any applicable laws; (iv) any Closing Agent Services; (v) any claim brought by a Lender, Consumer, or any other third party relating to you; and (vi) any act of fraud, negligence, or willful misconduct made by you.
Additional Representations, Warranties, and Covenants. By using Closepin, you represent, warrant, and covenant to Owner that, at all times: (i) you are at least eighteen (18) years old; (ii) you have full power and authority to enter into this Agreement, to abide by all of the terms and conditions of this Agreement and the Policies, and to provide the Closing Agent Services you offer; (iii) you have all of the rights, powers, and privileges necessary and required in order to grant the licenses set forth in this Agreement; (iv) all information that you input into Closepin will be true, correct, and complete at all times; (v) you are competent and well qualified to provide the Closing Agent Services you offer in accordance with industry-accepted standards at the times they are provided; and (vi) you will not engage in any obscene, offensive, or harassing behavior through Closepin and will conduct yourself in a professional, workmanlike, first-class, and courteous manner at all times.
VII. MISCELLANEOUS PROVISIONS.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida (without regard to the principles thereof relating to conflicts of law) and, where, applicable the Federal Arbitration Act and other applicable federal law, in each case without regard to principles of conflict of laws.
BINDING ARBITRATION. Any dispute or claim relating in any way to this Agreement, the Policies, or your use of Closepin will be exclusively resolved by binding arbitration, rather than in court, except that you or Owner may assert claims in small claims court if they qualify. The Federal Arbitration Act and federal arbitration law apply to this Agreement. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent – Paracorp Incorporated, 2140 S. DuPont Hwy., Camden, DE 19934. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration, and arbitrator fees will be governed by the AAA's rules. The arbitration costs and expenses of each party shall be borne by that party.
You and Owner each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, YOU AND OWNER EACH WAIVE ANY RIGHT TO A JURY TRIAL.
Notwithstanding the foregoing provisions of this section, Owner may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of Owner's, its affiliates', or and third party's intellectual property or other proprietary rights, and the prevailing party in such a proceeding shall be entitled to recover from the other party such prevailing party's reasonable attorneys’ fees and expenses arising from such action.
Other Provisions. No amendment or waiver of any provision of this Agreement is binding on Owner unless in writing and signed by Owner in each instance. This Agreement binds, and will inure to the benefit of, the parties and their respective successors and assigns. You may not assign your rights or delegate your obligations under this Agreement. In the event any provision of this Agreement is held by a court of competent jurisdiction or arbitrator to be unenforceable in any jurisdiction, then such portion or provision will be deemed to be severable as to such jurisdiction (but, to the extent permitted by applicable laws, not elsewhere) and will not affect the remainder of this Agreement, which will continue in full force and effect. If any provision of this Agreement is held to be so broad as to be unenforceable, such provision will be interpreted to be only as broad as is necessary for it to be enforceable. Owner and its affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond Owner's or its affiliates' reasonable control. This Agreement shall be construed as if both you and Owner jointly prepared it, and no provision shall be construed against Owner on the basis that Owner prepared it. You acknowledge and agree that any breach or threatened breach by you of any of the covenants and restrictions related to usage of Closepin, intellectual property, proprietary information, termination, and your other responsibilities contained in this Agreement will give rise to irreparable injury which may not be adequately compensated by damages and, therefore, you agree that in the event of any such breach or threatened breach, Owner may seek and shall be entitled to injunctive relief and to the enforcement of these covenants and restrictions by specific performance, in addition to any other rights and remedies available hereunder or under applicable law. If you place a telephone call to Owner, you acknowledge and agree that the call may be recorded by Owner for quality assurance, training, and record-keeping purposes.
Electronic Communications and Signatures. When you use Closepin, or you send e-mails, text messages, or other communications from your desktop or mobile device to Owner or Closepin, you are communicating electronically. You consent to receive communications from Owner and Closepin electronically, such as e-mails, text messages, mobile push notices, or notices and messages posted on Closepin, and you can retain copies of these communications for your records. You agree that all agreements, notices, disclosures, and other communications that Owner and Closepin provide to you electronically satisfy any legal requirement that such communications be in writing.
From time to time, you may be asked by Closepin to “click-to-accept”, to type your name, or to provide some other type of verification in order to make certain acknowledgements and agreements. You agree that, by clicking “ACCEPT” (or its equivalent), by typing your name, or by providing any other type of electronic confirmation that is requested, you are providing an electronic signature to Closepin that creates a legally binding obligation on you. You further acknowledge and agree that your electronic signature is the legal equivalent of a manual signature, and that no certification authority or other third party verification is necessary to validate the electronic signature in order to make the signature enforceable or evidence of a resulting contract.
Revised: February 14, 2019