Effective Date:_August 5, 2017
Version No. 2
Terms of Service
Welcome to Preclose.com (“Platform”), the mobile application and online platform provided by Preclose, Inc (“Company”). The Platform connects parties participating in a real estate closing transaction and through the Platform users can coordinate closing transaction workflows and view real-time information on their closing transactions. Preclose also offers a virtual transaction coordinator service, which utilizes the Platform. We’ve put together some detailed terms and conditions about the Platform and the Company. You should read and understand them, as they govern your use of our service.
The terms “Preclose”, “Company”, “we”, “us” “our” and similar terms refer to Preclose, Inc. The terms “you,” “your,” “User” and similar terms refer to end users of the Platform. The Platform allows for different types of Users –
- the “Agent” is a licensed real estate broker or agent, or a firm or team of real estate brokers and agents and may represent the Buyer (a “Buyer Agent”) or the Seller (a “Seller Agent”);
- a “PreclosePro” is a third party service professional that provide services to the Agent, Buyer or Seller in the real estate transaction such as insurers, home inspectors or assessors, lenders, pest control professionals, repairmen and the like;
- a “Buyer” is a person that has entered into an agreement with an Agent for purchase of a home or other real estate property;
- a “Seller” is a person that has entered into an agreement with an Agent for the sale of a home or other real estate property; and
- a “Closing Coordinator” is a person or entity, other than the Preclose virtual transaction coordinator, that is designated by an Agent to assist the Closing Team for a particular transaction.
These Terms apply to all Users, as applicable and set forth herein. A “Closing Team” is made up of the Buyer Agent, the Buyer, the Seller Agent, Seller, designated Closing Coordinator (if any) and the designated Preclose Pros participating in a particular closing transaction.
The terms “Platform” or “Service” refer to the Company online platform or mobile app as provided to you and other users. “Terms” or “Agreement” refers to these Terms of Service, as may be amended from time to time by us. “Site” refers to the Company’s website at www.preclose.com or such other websites as may be operated by the Company from time to time. Other capitalized terms may be defined below.
Acceptance of Terms of Service
The Service is intended only for users aged 18 and over. By registering for or using the Service, you warrant that you are at least 18 years old. If you are registering or using Company for or on behalf of a business or other legal entity, you represent that you have the authority and right to bind the business or entity to these Terms.
Company Platform and Venue
The Service provides a venue where Users can manage real estate closing activities and communicate with their Closing Team during a real estate closing transaction (the “Closing”). The Company also offers virtual transaction coordinator services, which utilize the Platform. The Company provides the Platform to facilitate these closing transactions, and we do not offer or provide real estate, financing, or legal advice or participate in the transaction between users, other than performing the Virtual Coordinator services (if purchased) as set forth below. All transactions shall be between the users and we will not be a party to any contract involving such transaction. We do not confirm the identity of or control, monitor, verify or endorse any User, whether an Agent, PreclosePro, Buyer, Seller or Closing Coordinator, or any content, documents, materials or other information provided by any of the foregoing. You are solely responsible for verifying any content or other information posted by another User and for confirming the quality, safety, availability, authenticity or existence of any product or service offered or promoted by a User through the Service.
Use of the Service
Registration. The Agent (or Closing Coordinator) is responsible for purchase of the Service, initial registration of the transaction and designation of the members of a Closing Team. If you are designated by an Agent or the Closing Coordinator, you will receive an email or notification notifying you that your Agent has decided to use the Service for your Closing, and you will receive notices, calendar requests and other communications relating to your Closing through the Service. If you wish to opt-out of the Service, you should notify your Agent and follow the opt-out instructions on your initial notification from the Service. All use of the Service will be governed by these Terms. In order to use certain functions of the Service as part of the Closing Team, you may be required to register and provide to us certain basic information as requested in the registration process. You may link your Service account to one of your other social media accounts as designated by us (such as Facebook). If you link your account to another social media account, you will be asked to authorize us to access your information on that account. Some of this information will be retrieved and saved on our systems, and may include a user token or other persistent identifier. You agree that all information you provide to us will be complete, true and correct and that you will keep it up-to-date. During the registration process, you will choose a user name and password for your use of the Service. You will be responsible for securing your user name and password and for all use of the Service using your email address or password. You agree that you will not disclose, trade or transfer, with or without payment, your password. You agree to notify us promptly of any unauthorized use of your account or disclosure of your password. We reserve the right to refuse use of or revoke use of any username in our discretion.
You agree that we will have the right to suspend or terminate your account and use of the Service if we believe any information you have provided during the registration process is inaccurate or incorrect.
Text Messaging. If your Agent designates you as a member of the Closing Team and you do not opt-out or if you create an account, you agree that we may send you notifications and your Closing Team may communicate with you through text (SMS) messages as part of the normal business operation of your use of the Service. If you do not wish to receive such text messages and notifications, you may deactivate such functions for the Service. If you do not allow the text messages and push notifications, your messages and notifications will only be available when you are using the Platform.
Network Access and Devices. You are responsible for maintaining and obtaining the mobile device(s) and data network access necessary to use the Service. Your mobile wireless carrier’s data and messaging rates and fees may apply if you access or use the Service from a wireless-enabled device. The Company does not guarantee that the Service, or any portion thereof, will function on any particular hardware or devices. In addition, the Service may be subject to malfunctions and delays inherent in the use of the Internet, wireless and electronic communications.
Agent Professional Conduct Representations and Obligations. If you are registering for use of the Service as an Agent, you agree to the following:
(a) In connection with your use of the Service, you hereby represent and warrant to the Company that: (i) You are a licensed real estate agent duly authorized by and acting in compliance with the applicable laws, rules, regulations and professional rules in your state.
(b) You represent and warrant that you have entered into a buyer/agent agreement with the Buyer or seller/agent agreement with the Seller (as applicable) and have received permissions from the Closing Coordinator, PreclosePros, Buyer or Seller that you designate for a Closing Team to allow you to provide the Company with their email or other information.
(c) You agree that all use of the Service and interactions with any other members of the Closing Team designated by you or on your behalf by your Closing Coordinator shall be professional, courteous and in accordance with the highest standard of ethics and integrity.
(d) You are solely responsible for confirming that use of the Service for your real estate closing transaction, including any e-signature and digital document solutions, comply with local, federal and state laws, rules, regulations and professional requirements in your jurisdiction.
(e) You represent that you have received all permissions and consents necessary for providing to the Service any contact information, including names, email addresses or telephone numbers, for members of the Closing Team that you may provide and that the Company is authorized to use such information in connection with provision of the Service for the Closing.
User Obligations. Your use of the Service shall be solely for your own use. You will comply with all applicable laws in connection with your use of the Service. You will not attempt to circumnavigate or violate any security features of the Service, including accessing any Service features, interactive areas, information or profiles for which you do not have permission or other content or information not intended for you. You are not permitted to harvest, gather or collect, through automated means or otherwise, the personal and/or contact information of other Users.
All Users are responsible for their own use of the Service. As part of your use of the Service, You agree that you will not:
- interfere with, or attempt to interfere with, the normal operations of the Service or any other User’s use of the Service, including by deleting, altering or blocking another user’s postings, deliberately misidentifying your products, services or postings, overloading, flooding, spamming or crashing the Service or its underlying systems or by altering any profile or other information provided by any User;
- post, share, link to or submit any content or material that is libelous, defamatory, invasive of privacy or publicity rights, vulgar, profane, indecent, obscene, sexually explicit or exploitative,
- use the Service to harass, bully, threaten, humiliate, stalk or otherwise intimidate any other User or any third party;
- post, share, link to or submit any content or material that constitutes hate speech, promotes violence against any group or person or is otherwise objectionable;
- post, share, link to or submit any content or material that is fraudulent, false, misleading or deceptive;
- impersonate or falsely suggest or claim an affiliation with any other person or entity;
- create, share, link to, upload or otherwise use the Service to support unwanted email or other communications (“Spam”) to any other User or third party or otherwise to post or transmit advertising or promotional materials or solicitations or to establish or develop any fraudulent business practice, including pyramid schemes or chain letters;
- seek to monetize the Service;
- solicit, collect, distribute, publish or use the login credentials of any other User;
- You may not use any page-scraper, spider, robot or other automatic device or methodology to access, acquire, copy or monitor any user information or content provided on or through the Service (other than as may be the result of standard search engine protocols or technologies).
- collect, store or analyze information about other Users, except as authorized by such User;
- provide support or resources or conceal or disguise the nature, location, source or ownership of support or resources to any organization designated by the U.S. government as a foreign terrorist organization;
- expose the Company or any User(s) to any civil or criminal liability; or
- violate any applicable law or encourages conduct that would constitute a criminal offense.
User Transactions. In the course of your use of the Service as part of a Closing Team, you may obtain personal information about other Users that is not otherwise publicly available. You agree to use such information solely for the purposes of completing the applicable closing transaction and you will not use the information for any other purpose without the consent of the other party. You are solely responsible for your interactions with other Users, whether on the Service or otherwise. You agree to adhere to the terms of any transaction you enter into with a User of the Service.
The Service may include functionality to allow Users to schedule meetings and other appointments for services. The Company does not conduct backgrounds checks or otherwise verify Users. Users should take appropriate precautions when scheduling an in-person meeting or service. You agree that under no circumstance will the Company be liable for any damages arising from your meetings, transactions or interactions with other Users.
Ratings, Flags, Comments. You acknowledge that the Service may include functionality that will enable other Users to rate and comment on their experience with you and other members of the Closing Team or to flag Users believed to be in violation of these Terms or otherwise abusing the Service. You agree that any comments, flags or other assessments of another user shall be respectful, true and accurate. You understand that the Company may provide tools for such comments and assessments, but does not control any user’s use of such tools or comments. You therefore release the Company from any liability with to such comments, flagging or assessments. You agree to follow our guidelines on comments or ratings and that you shall not use any comments, assessments or other user feedback for any purpose, other than as necessary in connection with your use of the Service. You agree that you will not take any actions to manipulate or undermine the assessment features. We reserve the right to terminate your use of the Service based on user complaints or such assessments at any time.
Virtual Transaction Coordinator Services
Ownership. The Service, including all content, graphics, audio, video, pictures, trademarks, service marks, logos and other material on the Service, and its underlying software (the “Software”), algorithms, databases, look and feel and arrangement, are the intellectual property of Company, subject to copyright and other intellectual property protections. The Company mark PRECLOSE, and our logo are the trademarks of Company. All rights in and to our website, the Service and the Software not expressly granted herein are reserved by us. We grant you and you accept a non-exclusive, non-transferable, revocable license to download and use the Software as provided by us solely for your own use of the Service and in accordance with these Terms.
Restrictions. You may not copy, republish, mirror, transmit, perform, sell or distribute any part of the Service for any commercial or other purpose or other than as expressly permitted herein. You may not alter, modify or create derivative works of the Software or Service and shall not access or attempt to access, reverse engineer, decompile or otherwise discover the source code of the Software. You will not use or access the Service in order to develop any competing product or service or to conduct benchmarking tests.
User Content. The User will retain ownership of all User Content created or posted by such User, subject to the license granted to us herein. By posting your User Content through the Service, you agree that such User Consent may be reposted or published on third party websites as permitted by the Company. You may not repost, publish or distribute any other User’s listings without our prior written consent and that of the original poster.
We respect the intellectual property rights of others and we expect our Users to do so. We rely on our Users to comply with copyright laws as they are in the best position to know if the User Content they provide is theirs or if they have the right to post the content.
However, we take allegations of infringement seriously and it is our policy to respond to a valid DMCA request. We encourage you to consult with your own counsel before sending any DMCA notice or other intellectual property notice.
We reserve the right to terminate any User who repeatedly infringes the rights of others, in our sole discretion.
Feedback We may from time to time request our Users to evaluate, assess or provide feedback regarding the Service or proposed improvements or new functions for the Service. You agree that Company will own the results of any such evaluations and feedback and may use such results in its sole discretion. Any improvements, new features, or new services that may be created or developed by Company based on User evaluations will be exclusively owned by Company without right of any User to consideration or attribution.
We may charge Agents or Users a registration fee, usage fee, Virtual Coordinator fee or other fees for use of the Services, which will be posted on the Service. We reserve the right to establish, modify, increase, decrease or end any such fees or other charges at any time. You agree to pay any such fees as are applicable to Your use of the Service that are in effect and as posted by us at the time of the relevant transaction. For example, if you are an Agent, you agree to pay the fees applicable for registration as an Agent. If you are required to pay any fees for your registration and use of the Service, you will be required to provide at least one valid payment method as described on our Site or on the Service and which may include an online payment service provider or credit card (“Payment Method”). You must maintain current, accurate and complete payment information. If you do not keep this information up-to-date or if you payment account for the Payment Method is invalid, expired, terminated or otherwise refused or if for any other reason you fail to make payments when due, you may not be able to access and use the Service, nor will your Closing Team, until you have paid all fees then due. By accepting these Terms and using the Service you authorize use of the Payment Method, including payment of all fees associated with your use of the Service in accordance with your registration.
These terms will apply to your use of the Service effective upon downloading, registering for or commencing use of the Service and will continue for (i) if you have purchased use of the Service, for the term for which you registered; or (ii) if you are participating on a particular Closing Team (other than the Agent that has purchased the Service) for a particular closing, until completion or cancellation of such closing. If you have purchased a renewable subscription, this agreement will automatically renew for successive renewal periods applicable to that subscription. We may at any time cease to continue operating part or all or selectively disable certain aspects of the Service. We may suspend your use of or access to the Service if we determine in our sole discretion that you have breached this Agreement. We may terminate this agreement for any User upon notice if such User breaches any material term of this agreement, including payment obligations, and fails to cure such breach within ten (10) business days. However, in the event that we believe that immediate termination is necessary to protect the safety, security or property of the Company or any User, we may immediately suspend or terminate use of the Service and this agreement. If you are a member of a Closing Team, you understand that if the Agent’s access and use of the Service is suspended or terminated for any reason, your access and use of the Service will be suspended or terminated as well.
Retention of Information
We will retain copies of closing transaction documents and information for up to 7 years; provided, however, that such information may be archived by us and be available through the Service. If a User requires a copy of such documents or information, the User can make a request to the Company by contacting our support staff at firstname.lastname@example.org. Notwithstanding the foregoing, you acknowledge and agree that the Service is not intended to act as a storage repository for your closing transaction documents. You should keep your own copies of all documents and instruments executed or provided in connection with your closing transaction. We will not be liable to you for any loss or corruption of such documents or instruments.
Enhancement and Maintenance of the Service; Changes
We reserve the right to modify and enhance the Services at any time, including by adding new or ancillary functions or services. Such functions or services may require the payment of additional fees as are posted by us on the Service. We may also issue corrections or modifications or upgraded versions of the Service and Software at any time in our discretion. From time to time and with or without notice, the Service may be unavailable so that we may perform ongoing, scheduled or emergency corrections or upgrades; provided, that if practicable, we will use good faith efforts to notify you in advance. We may also establish additional rules, limits or policies regarding the Service and you agree that your compliance with such rules, limits or policies shall be a condition of your continued use of the Service, or the applicable function.
The SERVICE MAY EXPERIENCE UNEXPECTED DOWNTIME OR BE TEMPORARILY UNAVAILABLE FROM TIME TO TIME FOR SCHEDULED MAINTENANCE OR UNSCHEDULED EMERGENCY MAINTENANCE OR DUE TO REASONS BEYOND OUR REASONABLE CONTROL. THE SERVICE AND SOFTWARE IS PROVIDED ON AN “AS IS” WHERE IS” BASIS. WE HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE SERVICE, SOFTWARE OR ITS CONTENT, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSES, AND NON-INFRINGEMENT OF ANY THIRD PARTIES’ INTELLECTUAL PROPERTY RIGHTS. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, ROBUSTNESS, SECURITY OR COMPLETENESS OF THE SERVICE, THE SOFTWARE OR ITS CONTENT, OR OTHERWISE. WE MAKE NO WARRANTIES OR GUARANTEES REGARDING THE LEGAL COMPLIANCE OF THE SERVICE WITH REQUIREMENTS IN ANY SPECIFIC JURISDICTION, AVAILABILITY OR RELIABILITY OF THE SERVICE, THAT THE SERVICE WILL BE ACCESSIBLE AT ANY SPECIFIC TIME OR THAT ANY RESULTS GENERATED BY THE SERVICE WILL BE ACCURATE OR CORRECT. ALL USE OF THE SERVICE IS AT YOUR OWN RISK. IF YOU ARE DISSATISFIED WITH THE SERVICE, YOUR SOLE REMEDY IS TO DISCONTINUE USE.
If you are an individual User, we hereby expressly disclaim, and you accept such disclaimer, any liability for any loss or damage to you or any other User arising from your use of the Service. If you have a dispute with any other User including members of your Closing Team regarding any User Content or any transactions between you and another User relating to the closing, use of the Service or any other matter, you hereby release us from any and all liability, claims, demand and damages associated with such User or such transaction.
LIMITATION ON LIABILITY
IN NO EVENT SHALL OUR AGGREGATE LIABILITY TO MEMBERS OF A CLOSING TEAM OR ANY USER IN CONNECTION WITH USE OF THE SERVICE EXCEED THE TOTAL AMOUNT THAT PAID TO US FOR USE OF THE SERVICE FOR THE APPLICABLE CLOSING WITHIN THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, WHETHER SUCH LIABILITY IS BASED IN CONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY PUNITIVE, CONSEQUENTIAL, SPECIAL, AND/OR INDIRECT DAMAGES, OR ANY LOSS OF GOOD WILL, PROFITS OR BUSINESS. Any claim or cause of action by you must be brought within one (1) year following the occurrence of the event resulting in such claim or action. These limitations shall apply regardless of whether we knew, should have known or were forewarned of the possibility of such damages, but will not apply to any intentional damage or damage caused by our knowing violation of applicable law.
Some jurisdictions do not allow for limitations of liability or warranty so these may not apply to you.
You hereby agree to indemnify, defend and hold Company and its affiliates and each of their owners, members, directors, officers, managers, employees, independent contractors, subcontractors, agents and representative (“Indemnified Parties”) harmless from any claim, cause of action, proceeding, liability, taxes, damages, loss, attorney fees, cost and expenses arising from or related to (i) your breach of these Terms and/or (ii) your use of the Service, including any User Content you may submit or post on the Service or your failure to satisfy your obligations in any transaction.
Assignment. You may not assign your rights hereunder. We can assign our rights hereunder at any time without restriction.
Governing Law. To the extent permitted by law, these Terms, your use of the Service are governed by South Carolina law, without giving effect to its conflict of law provisions.
Notices. You agree that any notice, agreements, disclosure or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
ANY CONTROVERSY OR DISPUTE BETWEEN COMPANY AND YOU ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE AND/OR YOUR USE OF THE SERVICE THAT CANNOT BE SETTLED BY MUTUAL AGREEMENT SHALL BE EXCLUSIVELY AND FINALLY SETTLED BY ARBITRATION. THE ARBITRATION SHALL BE BEFORE THE AMERICAN ARBITRATION ASSOCIATION (THE “AAA”), IN CHARLESTON, SC, AND SHALL BE GOVERNED BY THE LAWS OF THE STATE OF SOUTH CAROLINA.
ALL NOTICES AND REQUESTS FOR ARBITRATION SHALL BE MADE IN COMPLIANCE WITH THE RULES SET FORTH BY THE AAA. IN THE EVENT THAT ANY PARTY TO THIS AGREEMENT DESIRES TO SEEK ARBITRATION, IN ADDITION TO COMPLIANCE WITH THE RULES SET FORTH BY THE AAA, THE PARTY REQUESTING ARBITRATION SHALL GIVE WRITTEN NOTICE TO THE OTHER PARTY AT LEAST TEN (10) DAYS PRIOR TO FILING ITS REQUEST WITH THE AAA. THIS NOTICE SHALL SET FORTH THE NATURE OF THE DISPUTE, THE AMOUNT INVOLVED (IF ANY), AND THE REMEDY SOUGHT.
YOU AND WE AGREE THAT ANY CLAIM SHALL BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, THEREBY WAIVING THE RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER IN A CLASS ACTION RELATING IN ANY WAY TO A DISPUTE.
THE PARTIES UNDERSTAND THAT ARBITRATION IS FINAL AND BINDING ON THE PARTIES. THE PARTIES FURTHER UNDERSTAND THAT BY SIGNING THIS AGREEMENT THEY ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO A JURY TRIAL. NOTWITHSTANDING THIS PROVISION, THE PARTIES AGREE THAT COMPANY MAY SEEK IMMEDIATE INJUNCTIVE RELIEF IN ANY COURT HAVING JURISDICTION OVER THE SUBJECT MATTER OR PERSONS FOR WHICH RELIEF IS SOUGHT. JUDGMENT ON ANY AWARD RENDERED BY THE ARBITRATOR(S) MUST BE ENTERED AND CONFIRMED EXCLUSIVELY IN ANY COURT HAVING JURISDICTION.
ALL AWARDS SHALL BE MADE IN CONFORMITY WITH THE AAA RULES AND THE PARTIES UNDERSTAND THAT THE ARBITRATOR(S) MAY AWARD MONETARY DAMAGES AND ARE AUTHORIZED TO GRANT PRE-AWARD AND POST-AWARD INTEREST AT COMMERCIAL RATES ON ANY MONETARY AWARD. ANY SUCH AWARDS SHALL BE SUBJECT THE LIMITATION OF LIABILITIES SET FORTH HEREIN.
IF YOU DO NOT AGREE TO THESE ARBITRATION TERMS, YOU MAY OPT-OUT OF SUCH ARBITRATION, BY SENDING A DETAILED OPT-OUT NOTICE TO THE COMPANY AT email@example.com. SUCH NOTICE MUST BE RECEIVED WITHIN THIRTY (30) DAYS OF YOUR INITIAL USE OF THE SERVICE. YOUR NOTICE MUST INCLUDE YOUR NAME, YOUR USER NAME AND ACCOUNT, YOUR ADDRESS, TELEPHONE NUMBER AND EMAIL ADDRESS ASSOCIATED WITH YOUR COMPANY ACCOUNT.
You consent and submit to the sole jurisdiction and venue of the state or federal courts of the state of South Carolina.
Attorneys Fees. We shall be entitled to our reasonable costs and expenses (including reasonable attorneys’ fees) incurred in connection with the enforcement of these Terms of Service against you.
Third Party Device and Application Terms. If you are accessing the Service via an application developed for an Apple iOS, Android or other third party mobile device, then Apple, Inc. Google, Inc. or such other third party device application store or mobile device provider shall be deemed a third party beneficiary to these Terms. These third party beneficiaries are not parties to these Terms and are not responsible for the Service or its support in any manner or owe any obligations to you under these Terms. Your downloading of the application or access to the Service using these third party application stores or mobile devices is subject to such third party’s terms of service.
How to contact us
If you have any questions regarding these Terms of Service, you may contact us at firstname.lastname@example.org.