Terms and Conditions
By clicking on the "I Accept" button below and accepting this End User License Agreement ("EULA"), You (the "User" or "Licensee") and First American Title Insurance Company, a California corporation, whose principal place of business is 1 First American Way, Santa Ana, California 92707 ("Licensor"), agree to be bound by its terms and conditions for use of the Licensed Product, as defined below. If you do not agree to the terms and conditions of this EULA, click on the "I decline" button below, and do not install or use the Licensed Product.
WHEREAS, Licensor owns and provides document templates and printing services referred to as faPRINT.FIRSTAM, which includes media, printed documents and/or “online” or electronic documentation, of which certain documents may be licensed to Licensor by third parties (further defined as the "Licensed Product" below), for its internal and external customers to access and/or create online forms and templates related to real estate and related transactions; and
WHEREAS, Licensor provides access to and use of the Licensed Product through its proprietary applications software system, and delivery of the Licensed Product by Licensor shall be transacted electronically, with Licensor providing passwords, names, credentials or software keys as may be necessary for the proper use of the Licensed Product; and
WHEREAS, Licensee seeks to access and use the Licensed Product provided by Licensor and Licensor wishes to license the Licensed Product to Licensee; and
WHEREAS, the Parties acknowledge that this EULA sets forth the terms and conditions pursuant to which Licensee is granted a license to access and use the Licensed Product.
NOW, THEREFORE, in consideration of the mutual promises made herein and for other good and valuable consideration, receipt and sufficiency of which are hereby acknowledged by each Party, the Parties, intending to be legally bound, hereby agree as follows:
All capitalized terms, in the plural and in all tenses, shall have the meaning set forth in this paragraph and elsewhere in this EULA:
a. "Confidential Information" shall mean all oral or written information relating to each Party, its pricing, transactions, products, planning, strategies, ideas, know-how, technical information, customers, suppliers, sales estimates, business, business plans, customer or client lists, databases, computer code, and any other information of the business or affairs of each Party, including this EULA and its subject matter, together with any summaries, declarations, extracts, analyses, compilations, studies or other documents or records which contain, reflect or are generated from such information, which are valuable assets of the Party owning the same.
b. "Documentation" shall mean standard, generally issued materials and documents relating to the use of the Licensed Product and shall include any user, operating or installation manuals or guides and other printed or electronically stored or displayed materials relating to the use and operation of the Licensed Product that the Licensor has provided to Licensee or that the Licensor elects to create and make available to Licensee.
c. "Force Majeure Event" shall mean a default or delay in the performance by a Party of its obligations, not including any payment obligations of the Licensee, under this EULA (i) if and to the extent caused, directly or indirectly, by fire, flood, elements of nature, natural disaster, acts of God, labor strike, acts of war or terrorism, or direct government action or order and (ii) to the extent such Party is without fault.
d. "Intellectual Property" shall mean: (i) all domestic and foreign issued patents, reissued or reexamined patents, revivals of patents, utility models, certificates of invention, registrations of patents and extensions thereof, regardless of country or formal name; (ii) all domestic and foreign published or unpublished non-provisional and provisional patent applications, reexamination proceedings, reissue applications, continuations, divisionals, and continuations-in-part; (iii) all domestic and foreign copyrights and works of authorship, including all rights of authorship, use, publication, reproduction, distribution, performance transformation, moral rights and rights of ownership of copyrightable works, and all copyright registrations, applications for registration, and all rights to register and obtain renewals and extensions of registrations, together with all other interests accruing by reason of international copyright conventions; (iv) all domestic and foreign trademarks, registered trademarks, applications for registration of trademarks, service marks, registered service marks, applications for registration of service marks, trade names, registered trade names and applications for registrations of trade names and all goodwill associated therewith, and domain names and domain name registrations; (v) all domestic and foreign technology, ideas, inventions, designs, proprietary information, manufacturing and operating specifications, know-how, formulae, trade secrets, technical data, other data, databases, statistical models, source codes, customer lists, schematics, algorithms, computer programs, hardware, software and processes; and (vi) all other intellectual or intangible assets, properties and rights (whether or not appropriate steps have been taken to protect, under applicable law, such other intellectual or intangible assets, properties or rights).
e. "License" shall have the meaning set forth in Paragraph 2 of this EULA.
f. "Licensed Product" shall include the PRINT.FIRSTAM service (print service includes production of printed material ordered which includes an electronic copy), document templates, and related software, any successor system or software as designated in writing by the Licensor, and any derivative works thereof, including all updates, releases, bug fixes, upgrades, modifications, enhancements and extensions, all associated software components, media, printed documents and/or "online" or electronic documentation, any image and any text or content, including, without limitation, composites, photographs, film or video footage, animations, audio products, or any visual representations regardless of whether the images are obtained via download from the Licensor or delivered by the Licensor via any storage media, together with all material generated optically, electronically, digitally or by any other means from the same, including any Reproductions thereof. Any reference in this EULA to the Licensed Product shall be to each individual item and also to the Licensed Product taken as a whole.
g. "Licensee" shall mean the individual entering into this EULA.
h. "Licensor Confidential Information" shall mean all Confidential Information of the Licensor, including the Licensed Product (including all hardware and software components, and particularly any related source code for the Licensed Product), certain components of the Documentation (which are marked as "proprietary" or "confidential"), and all other proprietary or confidential information of Licensor relating to any of the foregoing, all of which constitute confidential trade secrets that are the sole property of Licensor. Licensor Confidential Information shall include, with respect to the Licensed Product, each invention, discovery, development, improvement, system, design, screen display, report, manual, program, code, listing, software, database, specification, routine, and any other form of Intellectual Property, whether or not protected or protectable by applicable copyright or other laws.
i. "Parties" shall mean Licensee and the Licensor, and "Party" shall mean either Licensee or the Licensor.
j. "Term" shall have the meaning set forth in Paragraph 8 of this EULA.
k. "Use" shall have the meaning set forth in Paragraph 2 of this EULA.
2. GRANT OF LICENSE
Licensor hereby grants to Licensee during the Term a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to use the Licensed Product in the United States in machine-readable form only and the Documentation (the "License") as specifically set forth herein for use solely in connection with Licensee's lawful business practices as applicable to the Licensed Product (the "Use"). The license granted by the Licensor to Licensee hereunder is conditioned upon Licensee’s compliance with the terms and conditions of this EULA. Licensee shall protect the Licensed Product from any use that is prohibited by this EULA, the Real Estate Settlement Procedures Act of 1974 (as amended and interpreted by applicable regulations), and all applicable international, federal and state laws and regulations, where applicable. Licensee shall use the Licensed Product only for the Use and shall not copy, distribute, display or create any derivative work from any of the Licensed Product other than for the Use. All titles, patents, trademarks, copyright and other proprietary notices of the Licensor must be reproduced on copies of the Licensed Product permitted or used hereunder by Licensee. Any alteration, deletion, modification, or change of any kind to the titles, patents, trademarks, copyrights or other proprietary notices by the Licensee is strictly prohibited and constitutes a violation of Licensor's rights. No rights are granted to Licensee to use or access the source code for the Licensed Product. Unauthorized use of the Licensed Product can result in civil damages and criminal penalties.
Licensee hereby grants to Licensor an irrevocable, non-sublicensable and non-transferable license to retain, at Licensor’s discretion and as not otherwise prohibited by law, information provided, implemented, or uploaded onto or into the Licensed Product by Licensee.
3. USE OF THE LICENSED PRODUCT CONTENTS
Licensor makes no representations, warranties or assurances as to the legal accuracy, completeness or appropriateness of these documents for Licensee or any underlying transaction.
THE LICENSED PRODUCT AND ANY RELATED SERVICES OR CONTENT ARE DESIGNED TO OPERATE WITH THE UNDERSTANDING THAT IF LEGAL ADVICE OR OTHER EXPERT ASSISTANCE IS REQUIRED, THE SERVICE OF A COMPETENT PROFESSIONAL SHOULD BE SOUGHT. LICENSOR, ITS AFFILIATES AND SUPPLIERS EXPRESSLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE LICENSED PRODUCT WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS, INCLUDING BUT NOT LIMITED TO THE GRAMM-LEACH-BLILEY ACT OF 1999, THE SARBANES-OXLEY ACT OF 2002, OR OTHER FEDERAL OR STATE STATUTES OR REGULATIONS. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE LICENSED PRODUCT, RELATED SERVICES OR CONTENT IS IN ACCORDANCE WITH APPLICABLE LAW. IT IS YOUR RESPONSIBILITY TO REVIEW CHANGES IN LAWS, REGULATIONS AND ACCOUNTING PRACTICES THAT AFFECT YOU AND YOUR BUSINESS.
Licensee accepts full responsibility for: (i) selection of adequate and appropriate hardware and software to satisfy Licensee’s business needs and achieve Licensee’s intended results; (ii) Licensee’s use of the Licensed Product; (iii) all results obtained from Licensee's use of the Licensed Product, and (iv) selection and use of, and results obtained from, any other programs, computer equipment or services used with the Licensed Product.
Licensee accepts full responsibility for obtaining any third party consents or authorizations required in connection with Licensee’s use of any services offered in connection with or accessible through the Licensed Product and hereby represents that Licensee has obtained or will timely obtain such consents or authorizations.
Licensor reserves the right, and Licensee hereby grants it permission, to override and remove security settings and restrictions on Adobe Acrobat files, such as Document Packaging, and on other documents that Licensee uploads to the Site for the purpose of using the same in connection with the Software in order to enable certain features of the Site and the Software.
Licensee shall not do, attempt to do, nor permit any other person to do, any of the following:
a. use any Licensor Confidential Information, the Licensed Product or Documentation for any purpose, at any location or in any manner not specifically authorized by this EULA;
b. create, recreate or attempt to discover or obtain any related source code for the Licensed Product;
c. create derivative works from the Licensed Product, or combine or merge any part of the Licensed Product or Documentation with or into any other materials, software or documentation other than as permitted Use;
d. sell any information, software, products or services obtained as a result of using the Licensed Product hereunder, except as specifically provided for herein;
e. modify, manipulate, distort, amend, misrepresent, reengineer, reverse engineer, translate, disassemble, decompile or otherwise alter in any way or form any part of the Licensed Product;
f. duplicate, publish, display, transmit, distribute, perform, make or retain any copy, or use in any way any Licensor Confidential Information or any part of the Licensed Product or the Documentation, except as provided for in this EULA;
g. modify or remove any patent, copyright, trademark, watermark or other proprietary notice from any place where it appears on the Licensed Product or the Documentation, or fail to preserve any such notice in any copy of the same made by Licensee;
h. Use any Licensor Confidential Information, any part of the Licensed Product or the Documentation as part of a trademark, service mark, domain name, trade name or logo;
i. refer to or otherwise use any Licensor Confidential Information, the Licensed Product or Documentation as part of any effort to develop a program or service having any functional attributes, visual expressions or other features similar to those of the Licensor Confidential Information, the Licensed Product or Documentation, or to otherwise compete with the Licensor;
j. sublicense, convey, assign, sell, give or otherwise transfer any rights to the Licensor Confidential Information, the Licensed Product, or the Documentation, alone or as part of any product, except as provided herein;
k. use the Licensed Product on any network computer not authorized by the Licensor, unless the Licensor otherwise expressly consents to such use in writing;
l. use the Licensed Product on a re-seller or shared platform basis;
m. use the Licensed Product in a pornographic, defamatory or otherwise unlawful manner, whether directly, indirectly or in juxtaposition with a specific subject matter;
n. use the Licensed Product in any way that infringes Licensor’s or any third party’s copyright, patent, trademark, trade secret or other Intellectual Property rights or rights of publicity or privacy; and
o. use the Licensed Product in any way that violates any law, statute, ordinance or regulation.
5. OWNERSHIP OF THE LICENSED PRODUCT
Licensee acknowledges and agrees that the Licensor retains all right, title and interest in and to the Licensor Confidential Information, the Licensed Product and the Documentation, including all copyrights, patents, trademarks, trade secrets and all other Intellectual Property rights in the same. No rights in or to the Licensor Confidential Information, the Licensed Product or the Documentation are granted to Licensee except the limited license specifically granted in this EULA. Licensee acknowledges that it shall not acquire any copyright ownership or other similar right, or any other ownership or Intellectual Property rights in or to the Licensor Confidential Information, the Licensed Product, the Documentation or other property owned by the Licensor as a result of this EULA. In the event that any copyrightable works of authorship are created by Licensee under this Agreement, Licensee agrees that such works are “works for hire” within the meaning of the copyright laws of the United States of America (17 U.S.C. §101, et seq.), or similar foreign laws, and any rights, title or interest arising from a compilation or derivative work created using any part of the Licensed Product or the Documentation shall belong exclusively to Licensor. Licensee hereby assigns all Intellectual Property rights created under this EULA or in connection with the Licensed Product or the Documentation to the Licensor, and further agrees to execute such documentation confirming this assignment as may reasonably be requested by the Licensor.
6. LICENSEE'S EMPLOYEES/AGENTS
Prior to any use of the Licensed Product, Licensee shall be responsible for instructing its officers, members, agents, employees and contractors as to the terms and conditions of this EULA. Licensee acknowledges and agrees that Licensee and its officers, members, agents, employees and contractors may use the Licensed Product provided that each such officer, member, agent, employee and contractor complies with the terms and conditions of, this EULA. Licensee shall be liable for any breach of the terms of this EULA by such officer(s), member(s), agent(s), employee(s) and contractor(s).
7. WARRANTY, DISCLAIMER AND RELEASE
THE LICENSOR MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE INFORMATION CONTAINED IN THE LICENSED PRODUCT OR THE DOCUMENTATION. THE LICENSED PRODUCT AND THE DOCUMENTATION ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. THE LICENSOR HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, ORAL OR WRITTEN, WITH REGARD TO THIS INFORMATION AND THE LICENSED PRODUCT AND THE DOCUMENTATION, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DESIGN, TITLE, NON-INFRINGEMENT, SECURITY, ACCURACY, SYSTEMS INTEGRATION OR WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE IN TRADE OR OTHERWISE. IN NO EVENT SHALL THE LICENSOR OR ITS AFFILIATES BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY DIRECT, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY DAMAGES WHATSOEVER, AS A RESULT OF ANY USER RELYING ON THE LICENSED PRODUCT OR THE DOCUMENTATION, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE LICENSED PRODUCT OR THE DOCUMENTATION HEREUNDER, RELATED TO THE PERFORMANCE OR FAILURE TO PERFORM ANY OBLIGATION UNDER THIS EULA, INCLUDING WITHOUT LIMITATION ANY INTERRUPTION OF LICENSEE'S BUSINESS, WHETHER ASSERTED ON THE BASIS OF TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE AND WHETHER FORESEEABLE OR NOT, EVEN IF LICENSOR OR ITS AFFILIATES HAVE BEEN ADVISED OF OR WERE AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. THE LICENSED PRODUCT AND THE DOCUMENTATION MAY INCLUDE ERRORS OF PUBLICATION, TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS, AND NEITHER THE LICENSOR NOR ANY OF ITS EMPLOYEES WARRANT THAT THE LICENSED PRODUCT OR THE DOCUMENTATION WILL BE INTERRUPTION OR ERROR FREE. ADDITIONALLY, CHANGES MAY BE PERIODICALLY ADDED TO THE LICENSED PRODUCT AND THE DOCUMENTATION AT ANY TIME, AND LIMITS ON THE USE OF THE LICENSED PRODUCT AND THE DOCUMENTATION MAY BE IMPOSED IN ANY CASE AND WITHOUT NOTICE OR LIABILITY. LICENSEE ACKNOWLEDGES THAT AVAILABILITY OF THE LICENSED PRODUCT AND THE DOCUMENTATION IS SUBJECT TO NORMAL SYSTEM DOWNTIME AND THAT THE LICENSOR IS NOT RESPONSIBLE FOR DELAYS OR INABILITY TO ACCESS SERVICES CAUSED BY NORMAL SYSTEM DOWNTIME OR BY COMMUNICATION PROBLEMS.
THE LICENSOR MAKES NO WARRANTY, REPRESENTATION OR GUARANTEE AS TO THE SCOPE OR VALIDITY OF ANY INTELLECTUAL PROPERTY RIGHTS OR THAT LICENSEE’S USE OF THE LICENSED PRODUCT OR DOCUMENTATION SHALL BE FREE FROM INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS HELD BY THIRD PARTIES. THE LICENSOR SHALL BE FREE FROM LIABILITY FOR BRINGING ACTIONS AGAINST THIRD PARTIES FOR ALLEGED INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT WITHIN THE SCOPE OF THIS EULA AND/OR FOR DEFENDING LICENSEE AGAINST THE SAME.
LICENSEE HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY DATA OR INFORMATION ENTERED OR ISSUED BY LICENSEE IN THE COURSE OF ITS USE OF THE LICENSED PRODUCT AND THE DOCUMENTATION. UNDER NO CIRCUMSTANCES SHALL THE LICENSOR, ITS AFFILIATES OR ANY THIRD PARTY PROVIDERS BE LIABLE FOR THE TRUTH, ACCURACY, SEQUENCE, TIMELINESS OR COMPLETENESS OF ANY INFORMATION PROVIDED BY OR PROCESSED BY THE LICENSED PRODUCT OR SUCH THIRD PARTY PROVIDERS, OR FOR ANY ERRORS, MISTAKES OR OMISSIONS THEREIN OR IN THE DOCUMENTATION, OR FOR ANY DELAYS OR INTERRUPTIONS IN THE OPERATION OF THE LICENSED PRODUCT FROM WHATEVER CAUSE.
LICENSEE AGREES TO TAKE FULL RESPONSIBILITY FOR ANY AND ALL LIABILITY ARISING FROM THE PREPARATION OF DOCUMENTS POPULATED OR OTHERWISE PROCESSED BY LICENSEE USING THE LICENSED PRODUCT PROVIDED UNDER THIS AGREEMENT.
8. TERM; TERMINATION
The term of this EULA will commence upon User's Acceptance (by User clicking "I Accept") by Licensee and continue in perpetuity, unless sooner terminated pursuant to the terms hereof (the "Term"). Notwithstanding the foregoing, upon written notice to Licensee, the Licensor may immediately terminate this EULA and the License if Licensee fails to comply with any of the terms of this EULA or, if applicable, the Agency Agreement between the Licensor and Licensee. The Licensor may also terminate this EULA for any reason whatsoever, in its sole discretion, by giving Licensee thirty (30) days advance written notice. This EULA, and the License, shall automatically terminate upon the termination or expiration of an applicable Agency Agreement for any reason. Upon any termination of this EULA, the License shall simultaneously terminate, and Licensee shall promptly (within five (5) days) return or destroy any Licensor Confidential Information, the Licensed Product furnished by the Licensor and any related Documentation. The Licensor shall certify in writing to the Licensor that all copies of Licensor Confidential Information, the Licensed Product and related Documentation have been returned or destroyed.
9. LICENSE CONSIDERATION
In consideration of obtaining access to and use of the Licensed Product, as well as the fee currently in place and set forth on the Site and as agreed to by the Licensee, Licensee agrees to be bound by the terms and conditions of this EULA throughout the Term; however, the Parties agree and acknowledge that the Licensor reserves the right to amend the fee terms for Licensee’s use of the Licensed Product in order to comply with requirements, directives, guidelines, rules, regulations and standards, as promulgated from time to time, by the Licensor.
10. RECORDS AND AUDIT RIGHTS
Licensee shall maintain during the Term of this EULA, and for a period of not less than seven (7) years thereafter, complete and accurate books and records of all transactions involving the Licensed Product. During the Term of this EULA, and for seven (7) years thereafter, the Licensor shall have the right to have an independent accounting firm audit, during Licensee’s regular business hours and subject to Licensee’s reasonable security requirements, Licensee’s books, records and computer systems that contain information pertaining to the Licensed Product or this EULA to determine that Licensee is in compliance with the terms, conditions, and restrictions of this EULA. All costs of such audit shall be borne by the Licensor, except that such expenses shall be borne by Licensee in the event that any audit determines that Licensee has materially breached any of the terms or conditions herein.
11. COPYRIGHTED AND TRADEMARKED MATERIAL
Licensee agrees that aspects of the Licensor Confidential Information, the Licensed Product and the Documentation constitute copyrighted materials belonging exclusively to the Licensor. Licensee agrees not to disclose, provide or otherwise make available any part of the Licensor Confidential Information, the Licensed Product, or the Documentation without the following notice:
© First American Title Insurance Company, Used Under License
Additionally, the Licensor owns certain trademarks, trade names, logos, service marks, and other indicia of origin, including, but not limited to, FIRST AMERICAN®, and the Eagle logo® (the "Licensor Marks"). Any use of the Licensor Marks requires prior written approval of the Licensor. Licensee shall not use the Licensor Marks in any publication, advertising or promotional material. Licensee shall not remove, alter or obscure any trademark or proprietary notices contained in the Licensed Product or other materials provided by the Licensor, and to the extent any Licensor Marks appear in the Licensed Product or the Documentation, Licensee shall have a limited license to use such trademarks in accordance with the terms and conditions of this Agreement and solely as they appear in the Licensed Product. Licensee acknowledges that Licensor is the owner of the Licensor Marks, and that all goodwill arising out of any use of the Licensor Marks shall inure to the benefit of the Licensor. Except as expressly granted herein, Licensor reserves all rights in and to the Licensor Marks and Licensee is not granted any rights to use the Licensor Marks in any manner.
12. YOUR CONTENT
Licensee hereby represents and warrants that any content that Licensee uploads to the Site or content that Licensee uses in connection with the Software or the Licensed Products shall not be used in any manner that is defamatory, libelous, unlawfully threatening or unlawfully harassing, and does not and shall not infringe upon or misappropriate any rights, including, without limitation, intellectual property rights, proprietary rights or confidentiality rights, or rights of publicity or privacy of any third parties or Licensor and that such content is free of worms, virus, Trojan Horses and other disabling code. For the avoidance of doubt, "content" as used in this EULA in connection with the Licensee shall be construed broadly so as to include, but not be limited to, all materials, documents, data, information or other materials that Licensee may upload to the Site or use in connection with Licensee’s use of the Software and/or the Licensed Products. Licensor assumes no responsibility, and does not screen Licensee submitted materials, for any Licensee materials that are prohibited by law or regulation. Licensee agrees to indemnify, defend and hold Licensor, its parents, subsidiaries, affiliates and their respective officers, directors, employees and agents, harmless from and against any and all claims, suits, damages, costs and expenses, including attorneys’ fees, arising from your breach of any provision of this EULA or Licensee's use of the Site, the Software or the Licensed Products in a manner that is inconsistent with either this EULA, applicable law, the documentation or information accompanying the Software or the documentation or information made available on the Site, and specifically including, but not limited to, violation of copyright or trademark laws, illegal use of images, photographs, slogans, trademarks, or graphical work supplied and approved by Licensee.
13. MAINTENANCE AND SUPPORT
During the Term, the Licensor shall provide reasonable maintenance services including the following:
a. Upgrades. The Licensor may provide upgrades, in the Licensor's sole discretion, to enhance the Licensed Product. Such upgrades may include changes in programming languages, rules of operation and screen or report format. The Licensor shall be solely responsible for the installation of upgrades, and Licensee shall provide reasonable assistance as requested by the Licensor. Licensee acknowledges that upgrades may result in changes in the form, timing or other features of online services, reports and other aspects of the Licensed Product provided under this EULA. In the event such upgrades may function more efficiently upon new or additional hardware, Licensee shall be responsible for purchasing such new or additional hardware at its own cost and expense in its sole discretion.
b. Maintenance of Hosting Server. The Licensor will maintain the hardware on which the Licensed Product is hosted.
c. Non-Maintenance Matters. The following matters are NOT covered by maintenance and support services provided by the Licensor under this EULA:
i. Any problem resulting from the misuse, improper use, alteration, or damage of the Licensed Product by Licensee or any unauthorized user;
ii. Any problem caused by modifications of the Licensed Product not made or authorized by the Licensor or resulting from programming other than as part of the Licensed Product as provided to Licensee; or
iii. Any problem resulting from the combination of the Licensed Product with any programming or equipment other than as set forth in specifications provided as part of the Licensed Product or Documentation, or as expressly approved in writing by the Licensor.
d. Obligation to Notify the Licensor. Licensee agrees to notify the Licensor promptly following the discovery of any error in the Licensed Product. Further, upon discovery of an error, Licensee agrees, if requested by the Licensor, to submit to the Licensor a listing of output and any other data that the Licensor may require in order to reproduce the error and the operating conditions under which the error occurred or was discovered.
e. Termination of Maintenance. All maintenance services provided by the Licensor will immediately cease upon termination or expiration of this EULA, except as otherwise provided in this EULA or by the Licensor in writing.
14. CONFIDENTIAL INFORMATION
Each Party shall:
a. hold all Confidential Information in strictest confidence for the benefit of the Party owning the same and use reasonable efforts to prevent the inadvertent or unauthorized disclosure, publication of dissemination of any Confidential Information;
b. use Confidential Information only as expressly permitted herein for the sole purpose of performing its obligations under this EULA;
c. absent prior express written consent of the other Party permitting otherwise, disclose Confidential Information only to (i) its employees and in-house and outside legal counsel who require the information in connection with that Party’s performance under this EULA, and (ii) consultants (who have been approved in advance in writing by the Party owning the Confidential Information to be disclosed) engaged in assisting the disclosing Party in performing this EULA;
d. not copy or reproduce, or permit to be copied or reproduced, any Confidential Information in any media or by any means, except as necessary for performing the EULA and permitted by this EULA; and
e. forthwith at the end of the Term, return, or destroy and certify to the destruction of, any documents and other materials, by whomsoever created, embodying or which resulted from the use of, any Confidential Information of the other Party; provided, however, that Licensor may keep a copy of such documents in its electronic retention system in accordance with its record retention policies and procedures and subject to the confidentiality restrictions herein.
Licensee agrees to defend, indemnify and hold harmless the Licensor, its affiliates, and their respective subsidiaries, shareholders, officers, directors, employees, consultants, agents, co-branders or other partners, from and against any claims, actions, liabilities, damages, costs and expenses, including, without limitation, reasonable attorneys’ fees (both at trial and appellate levels) and expert witness fees, which it or they may sustain, incur or become liable for by reason of any actual or threatened claim, regardless of its merits, arising out of or relating to Licensee’s use of any part of the Licensed Product or the Documentation under this EULA, or any violation of any of Licensee’s obligations as set forth in this EULA.
16. COMPLIANCE WITH LAWS; UNAUTHORIZED ACCESS
As a condition of Licensee's use of the Licensed Product, Licensee shall not use any part of the Licensed Product for any purpose that is unlawful or prohibited by the terms and conditions of this EULA. Licensee shall not attempt to gain unauthorized access to the Licensed Product through hacking, password mining or any other means. Licensee may not obtain or attempt to obtain any of the Licensed Product through any means not intentionally made available to Licensee.
In consideration of obtaining access to and use of the Site, the Software and the Licensed Products, Licensee agrees to be bound by the terms and conditions of this EULA throughout the Term, and to pay the applicable fees for the Licensed Products that Licensee elects to purchase in accordance with the terms set forth on this Site. The parties agree and acknowledge that Licensor reserves the right to amend the terms of this EULA, and to change the Software, the contents of the Site, the Licensed Products, and the pricing therefor at any time. Products and services ordered over the Site cannot be canceled once services have been provided or upon commencement of work by Licensor, and fees for services will be considered accrued immediately. Licensee shall provide all telephone lines, charges, and hardware or software necessary to access the Site, the Software and the Licensed Products. Licensee shall be liable for all applicable taxes (past, present and future), including without limitation any use and sales taxes, which may be collected or are required to be collected by Licensor pursuant to any federal, state or local regulation(s) pursuant to Licensee's use of the Site. It is the responsibility of Licensee to ensure that all materials Licensee approves are formatted properly. Licensor does not assume, and hereby disavows, any responsibility for spelling, grammar, typographical errors, and/or any other errors that were approved by Licensee. The system automatically generates low resolution proof of all materials. Licensor shall not be responsible for any mistakes found in the Licensee’s original files. Licensee files and materials must be in conformance with Licensor design specifications to ensure quality product. Once Licensee has accepted a print proof with an order, Licensee is agreeing that the proof is correct and approved.
Licensor shall deliver products ordered in conformance with its required specifications within three business days for all postcards, flyers, and brochures, and within four business days for booklets. First American does not guarantee the shipping times above for basic ground shipping. Ground shipping delays may incur.
All sales are final unless otherwise noted. After an order has been approved by Licensee, Licensee is responsible for paying the entire amount of the applicable order, unless otherwise noted. In some instances, a refund may be extended to the Licensee on a case-by-case basis, if no work has been completed by Licensor for the applicable order. In such instance, the Licensee may be charged a cancellation fee, which shall be in addition to any fees charged for proofs, if applicable.
20. FORCE MAJEURE
If either Party fails to perform its obligations as set forth herein due to the occurrence of a Force Majeure Event, then that Party's performance shall be excused for the duration of such cause or circumstance; provided that (i) the non-performing party did not intentionally cause the Force Majeure Event; and (ii) the non-performing Party uses commercially reasonable efforts to perform despite the occurrence of the Force Majeure Event.
Licensee shall have no right to assign, sublicense, pledge or transfer any of its rights or obligations under this EULA, whether voluntary or by operation of law, without the express prior written consent of the Licensor. Any attempted assignment, sub-license, pledge or transfer shall be null and void. However, this EULA will inure to the benefit of the Licensor’s successors, assigns and licensees.
23. ENTIRE AGREEMENT; SEVERABILITY
Your use of the Licensed Product and Documentation hereunder is subject to this EULA, and constitutes the entire agreement between the Licensor and Licensee with respect to use of the Licensed Product. Licensor reserves the right to modify the terms of this EULA at any time, effective upon posting an updated version of this EULA on the Licensor’s website located at http://premiertools.firstam.com/eula, and notifying Licensee of such posting. You are responsible for regularly reviewing this EULA, and continued use of the Licensed Product shall constitute your consent to such changes. In the event any one or more of the provisions of this EULA shall for any reason be held to be invalid, void, illegal, or unenforceable by any court, arbitrator, or governmental agency, the remaining provisions of this EULA shall remain in full force and effect, and the invalid, void, illegal, and/or unenforceable provision(s) shall survive to the extent not so held. To the extent reasonably possible and practicable, the invalid, void, illegal, or unenforceable provision(s) shall be replaced by a mutually acceptable valid, legal, and enforceable provision(s) which best reflects the intentions underlying the replaced invalid, void, illegal, or unenforceable provision(s).
Captions of the paragraphs and/or headings contained in this EULA are for reference purposes only and shall not be deemed to have any substantive effect.
The failure of the Licensor to enforce any provision of this EULA shall not be construed as a waiver or forfeiture of any of its rights under this EULA, nor shall a waiver of any provision of this EULA by the Licensor with respect to a particular act or obligation later be construed to be a waiver of that same provision.
26. CHOICE OF LAW
This EULA shall be governed by and construed in accordance with the laws of the State of California, without regard to principles of conflict of laws. The Parties consent and submit to the exclusive jurisdiction of the courts located in the State of California, both state and federal, in connection with any controversy arising out of this EULA or its subject matter, and hereby waive any objection they may have in such action based on lack of personal jurisdiction, improper venue or inconvenient forum.
Each notice, demand, request or other communication given under this EULA shall be in writing, and delivered by personal delivery or by registered or certified United States mail, return receipt requested, postage prepaid, to: (a) Licensor at the address set forth in the preamble of this EULA, addressed to General Counsel, and (b) to Licensee at Licensee’s email address provided to Licensor by Licensee pursuant to this EULA. Any such notice, demand, request or other communication sent by registered or certified mail shall be deemed effective three (3) working days after the official postmark date of the United States Postal Service.
28. WAIVER OF TRIAL BY JURY
Licensee and the Licensor hereby knowingly, voluntarily and intentionally waive the right either may have to a trial by jury in respect to any litigation based upon or arising out of this EULA or any actions of either Party.
Each of the representations, warranties, covenants and obligations set forth in Paragraphs 3, 4, 7, 10, 11, 13, 14 and 15 of this EULA shall survive the termination of this EULA, and shall continue to be binding upon Licensee, notwithstanding the termination of this EULA.
30. ADDITIONAL REPRESENTATION AND WARRANTIES
Each Party hereby warrants, represents and undertakes to the other Party that:
a. There is no hindrance, legal, contractual or otherwise, to such Party’s entering into this EULA and performing its obligations hereunder and such Party has the full power and authority to execute, deliver and perform under this EULA.
b. This EULA is the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms, subject, however, to applicable bankruptcy, insolvency, reorganization, arrangement moratorium or other similar laws relating to creditors' rights generally.
c. Such Party shall comply with all applicable international, federal, state and local laws in its performance of its obligations hereunder.
By clicking on the "I Accept" button below, installing and using the Licensed Product, I acknowledge that I have read this End User License Agreement (EULA) and hereby accept and agree to be bound by its terms.