Universal Terms of Service
If You are not a party to an ePN Subscriber Agreement, or any form of Master Services Agreement with Us (each an “ePN Agreement”):
THE FOLLOWING TERMS AND CONDITIONS ARE A LEGAL AGREEMENT BETWEEN YOU (defined below) and eRecording Partners Network, LLC, a Minnesota limited liability company (“ePN,” “Us,” “Our,” or “We”).
Section A. Application and Acceptance.
THESE UNIVERSAL TERMS OF SERVICE (“UTS”) GOVERN YOUR ACQUISITION, RECEIPT, ACCESS, AND/OR USE OF THE GOePN.com WEBSITE, TOGETHER WITH ALL ePN MATERIALS FOUND ON OR IN, OR THAT ARE AVAILABLE THROUGH GOePN.com (individually and collectively, “ePN Content”).
(1) Your Acceptance of the UTS. YOUR ACCESSING, VIEWING, REQUESTING, AND/OR OTHER DIRECT OR INDIRECT USE (collectively “Action”) RELATED TO ANY ePN CONTENT CONSTITUTES YOUR ACCEPTANCE OF, AND AGREEMENT TO THE PROVISIONS STATED IN THESE UNIVERSAL TERMS OF SERVICE.
Your acceptance by Your Action is predicated upon Your certifications, that:
(a) YOU HAVE READ AND UNDERSTAND THE UNIVERSAL TERMS OF SERVICE AND AGREE TO BE BOUND BY THEM; and
(b) TO THE EXTENT YOU ARE AGREEING TO THESE UNIVERSAL TERMS OF SERVICE WITH OR ON BEHALF OF ANOTHER INDIVIDUAL OR ENTITY (individually and collectively, “Person”), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH PERSON, AND EACH OF THEM, TO THESE UNIVERSAL TERMS OF SERVICE; and
(c) IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU OR THE PERSON YOU REPRESENT DO NOT AGREE WITH EACH AND ALL OF THE UNIVERSAL TERMS OF SERVICE, YOU WILL TAKE NO ACTION RELATED TO ANY ePN CONTENT; and
(d) YOUR ACTIONS ARE INTENDED TO OBJECTIVELY ESTABLISH YOUR ACCEPTANCE OF THIS CONTRACT ON THE TERMS STATED IN THESE UNIVERSAL TERMS OF SERVICE, WHICH IS VALID, BINDING, AND ENFORCEABLE AGAINST YOU AND EACH PERSON YOU REPRESENT.
For the avoidance of doubt regarding any party with Us to an ePN Agreement, We acknowledge that any conflict between the terms of the ePN Agreement and any term found in the Universal Terms of Service (and as may be amended) shall be resolved in favor of the ePN Agreement, such that the terms of the ePN Agreement shall prevail, control, and otherwise govern in whole and part.
Section B. Electronic Transactions.
Your Actions related to ePN Content may include the ability to initiate and enter into Transactions electronically, each of which arise under, are subject to, and shall proceed in accordance with these Universal Terms of Service. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS AND/OR OTHER ACTIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE RESPONSIBLE FOR ALL SERVICE FEES AND GOVERNMENT CHARGES ARISING FROM OR RELATED TO EACH TRANSACTION, TIMELY PAYING ALL SUCH FEES AND CHARGES IN ACCORDANCE WITH THESE UNIVERSAL TERMS OF SERVICE. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS REGARDING ALL SUCH TRANSACTIONS. For the avoidance of doubt, if You take any Action related to ePN Content through an integration between You and Us, or a third party, YOU ACCEPT AND ACKNOWLEDGE THAT YOU ARE BOUND BY THE TERMS OF THE UNIVERSAL TERMS OF SERVICE WITH OR THROUGH SUCH ACTIONS OF YOURS VIA THE INTEGRATION PORTAL. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are Your sole responsibility.
Section C. In General.
(1) Limited Conditional License. You alone (and including no other Person) are granted a non-exclusive, non-transferable, revocable, unassignable, and non-sublicensable license, exclusively for Your internal business purposes, for You and Your authorized users Actions related to ePN Content, inclusive of the access and use of GOePN.com, together with such other ePN Content offered by Us, in each instance only in strict conformity with these Universal Terms of Service.
(2) Accepted Controls. Integral to the limited conditional license grant stated directly above in Section C(1), You agree to follow all applicable laws and regulations related to Your and Your user’s Actions, also understanding that ePN Content is protected by United States copyright and other intellectual property law. For You and Your users, You accept and acknowledge that:
(a) ePN reserves any and all rights not expressly granted You under these Universal Terms of Service;
(b) Except as expressly authorized under the UTS, neither You, Your user, nor any other Person with which You are proceeding in concert, or that takes any Action on Your behalf, shall directly or indirectly permit, allow, accede, or acquiesce to:
(i) copy, rent, lease, sell, transfer, assign, sublicense, distribute, commercially or otherwise exploit, make available, grant a security or other interest in, disassemble, reverse engineer, decompile, modify, or alter ePN Content in any way, whether in whole or part;
(ii) access GOePN.com or any other ePN Content offered by Us in order build or modify any competitive product or service modify, or create derivative works, or improvements based upon ePN Content, or any portion thereof;
(iii) market or sell the access or use of ePN Content through any arrangement;
(iv) remove, alter, or otherwise interfere with ePN Content in whole or part, or any ePN Content identification, trademark, copyright, confidentiality, proprietary, or other notice or proprietary legend affixed to, embodied, or referenced within ePN Content;
(v) impair the functionality or the security of any ePN Content or any other product or service of Ours;
(vi) collect, harvest, gather, or otherwise accumulate data, information, or anything from or related to GOePN.com and/or any other ePN Content;
(vii) transfer, access, process, or take any other Action related to any ePN Content outside of the United States of America;
(viii) in whole or part fail to ensure that all Your systems that connect to ePN Content have up to date and commercially adequate security, including without limitation firewalls and anti-virus software; or
(ix) fail to ensure that, before You or any Person acting with or for You transmit any data or other material (collectively “Information”) to ePN Content, all Your Information is scanned and free of all generally known viruses, worms, Trojan horses, malicious code, time bombs, bots, or other “malware” computer programming, harmful computer code, files, scripts, agents, programs, ciphers, or similar (collectively “Contaminants”).
(3) Any Action related to the preceding prohibitions stated in Section C(2)(b), whether directly or indirectly by You, Your user, and/or any other Person proceeding with or for You, and/or any other Action that is contrary to, or in violation of these Universal Terms of Service, as determined by Us in Our sole discretion, shall be conclusively deemed by You and Us to be a material breach of the UTS, resulting in the immediate suspension, removal, blocking, and/or termination of all access to, and use of GOePN.com and/or any other ePN Content, whether with or without any prior or other notice to You or any other Person. Further, Our proceeding in such manner shall in no way limit (a) any pursuit by or on Our behalf, of any other remedy available at law or in equity, or (b) Your liability for any and all harm, damage, loss, injury, claim, and expense (including attorneys’ fees, costs, and similar) arising out of or related to such Actions. Specifically, and without limiting the generality of the foregoing, You are responsible and liable for all Actions and failures to take required actions with respect to any Person to whom You may directly or indirectly provide access to, or use of ePN Content, whether such access, use, or other Action is permitted by, or in violation of the UTS and/or an applicable law or regulation.
(4) DISCLAIMER. GOePN.com AND ALL ePN CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, AND EPN EXPRESSLY DISCLAIMS ANY WARRANTY OF ANY NATURE, EXPRESS OR IMPLIED – TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW – INCLUDING WITHOUT LIMITATION ANY WARRANTY: (a) INVOLVING FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, OR NON-INFRINGEMENT; (b) ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; (c) RELATED TO THE PRESENCE OR ABSENCE OF LATENT OR OTHER DEFECTS, ACCURACY, UNINTERRUPTED SERVICE, OR ACCESS; (d) CONCERNING THE PRESENCE OR ABSENCE OF ERRORS, EACH WHETHER OR NOT KNOWN OR DISCOVERABLE. WITHOUT LIMITING THE FOREGOING, WE DO NOT REPRESENT OR WARRANT, AND MAKE NO REPRESENTATION OR OTHER STATEMENT, WHETHER EXPRESS OR BY CONDUCT OR IMPLICATION, REGARDING ANY WARRANTY RELATED TO: (e) GOePN.COM, OR THAT ePN COTENT WILL OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM, OR DATA; (f) ANY USE OF GOePN.COM OR THAT ePN CONTENT WILL MEET YOUR OR YOUR USERS’ OR OTHER PERSON’S REQUIREMENTS OR EXPECTATIONS; (g) THE QUALITY OF ANY ePN CONTENT ACCESSED, USED, OR OTHERWISE OBTAINED BY YOU OR YOUR USERS, DIRECTLY OR INDIRECTLY; OR (h) GOePN.COM AND ANY ePN CONTENT IS FREE OF CONTAMINANTS OR OTHER HARMFUL COMPONENTS. YOU UNDERSTAND AND ACCEPT THAT GOePN.COM AND OTHER ePN CONTENT ARE OFFERED AND PROVIDED WITHOUT ANY GUARANTEE OR OTHER ASSURANCE, INCLUDING WITHOUT LIMITATION THAT ePN CONTENT WILL BE AVAILABLE, TIMELY, SECURE, ACCURATE, OR COMPLETE, AND YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT ALL ACTIONS RELATED TO ePN CONTENT BY YOU, YOUR USERS, AND/OR ANY OTHER RELATED PERSON ARE SOLELY AT YOUR OWN RISK.
(5) LIMITATION OF LIABILITY AND DAMAGES. IN NO EVENT SHALL ePN OR ITS AFFILIATE, OR THE DIRECTOR, MEMBER, OFFICER, PERSONNEL, OR REPRESENTATIVE OF ANY OF THEM, BE LIABLE FOR ANY LOSS, INJURY, CLAIM, LIABILITY OR DAMAGE OF ANY KIND RESULTING FROM, ARISING OUT OF OR ANY WAY RELATED TO: (a) ANY ERRORS OR OMISSIONS IN, WITH, OR FROM GOePN.COM OR ANY OTHER ePN CONTENT, INCLUDING WITHOUT LIMITATION TECHNICAL INACCURACIES, BUGS, OR ANY CLAIMED OR OTHER DEFICIENCY, INOPERABILITY, OR SIMILAR IMPERFECTION OR INADEQUACY; (b) ANY OF YOUR OR ANY OTHER PERSON’S DATA, INFORMATION, OR MATERIAL; (c) ANY THIRD PARTY WEB SITES OR MATERIAL DIRECTLY OR INDIRECTLY ACCESSED THROUGH GOePN.COM OR OTHER ePN CONTENT; (d) THE UNAVAILABILITY OF GOePN.COM AND/OR ANY ePN CONTENT, OR ANY PORTION THEREOF; (e) YOUR ACCESS TO, AND/OR USE OF GOePN.COM AND/OR ANY ePN CONTENT, OR ANY PORTION THEREOF; (f) YOUR MISUSE OFGOePN.COM OR ANY OTHER ePN CONTENT; OR (f) ANY ePN CONTENT OR OTHER ePN MATERIALS, PRODUCTS OR SERVICES PURCHASED OR OBTAINED BY YOU OR YOUR USERS, DIRECTLY OR INDIRECTLY. WITHOUT LIMITING THE FOREGOING, WE SHALL NOT BE LIABLE TO YOU UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, MULTIPLIED, COVER, AND/OR ADMINISTRATIVE DAMAGES OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION ATTORNEYS’ FEES) FOR ANY REASON, EVEN IF WE OR A PERSON ASSOCIATED WITH US WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT ANY OF THE FOREGOING LIMITATIONS ON LIABILITY DO NOT APPLY TO YOU OR ARE IN ANY WAY OUTSIDE OF THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR SOLE OBLIGATION AND TOTAL COLLECTIVE LIABILITY TO YOU, YOUR USER, AND ANY OTHER PERSON ASSOCIATED OR OTHERWISE RELATED TO YOU SHALL BE LIMITED TO $100.
(6) No Liability for Instrument. You agree and acknowledge that ePN shall not be, or become in any way or circumstance responsible in whole or part, and neither We nor any Person acting for or with Us will have any liability arising out of or related to any Instrument in any way associated with a Recording Authority, whatsoever, including without limitation the validity, accuracy, content, completeness, and/or legal or other effect of any Instrument, or its or Your conformity with Recording Authority Requirements, or any information provided by a Recording Authority related to such Instrument (e.g., indexing or similar information from a Recording Authority).
(7) Indemnification. You agree (a) to indemnify and hold Us and our affiliates, and Our and their members, directors, officers, employees, representatives, and other related personnel advisors, and subcontractors (individually and collectively, “ePN Party”) harmless, to the fullest extent lawful, from and against any and all losses, claims, damages, settlement amounts, or liabilities of any type or kind (and actions, proceedings, or similar in respect thereof), joint or several, arising out of or related to (i) any Action by You or Your user or other related Person, regarding ePN Content or otherwise; (ii) Your data, information, or other material, (iv) Your or Your user’s or other Person’s breach of the these Universal Terms of Service; (v) Your Instrument, Escrow, and/or Transaction; (vi) Your interactions with any other Person arising from or related in whole or part to ePN Content, (vii) Our engagement by You regarding any ePN Content, and (viii) any matter referred to in these Universal Terms of Service; and (b) to reimburse each ePN Party for all expenses (including, without limitation, the fees and expenses of counsel) as they are incurred in connection with investigating, preparing, pursuing, defending, settling, compromising or otherwise becoming involved in any action, suit, dispute, inquiry, investigation or proceeding, pending or threatened, brought by or against any Person, arising out of or related to any matter stated herein above in this Section C(7), or stated or referred to in these Universal Terms of Service.
Your indemnity, reimbursement, and other obligations and agreements provided in this Section C(7) shall, for the avoidance of doubt, apply to any activities or Actions arising out of or related to these Universal Terms of Service, or any matter referred to herein, prior to and after the date You take any Action related to ePN Content or these Universal Terms of Service, and shall be in addition to any obligation or liability which You may otherwise have to any ePN Party. Your obligations, together with the disclaimer stated in Section C(4), and the limitation of liability and damages stated in Section C(5) survive any termination of these Universal Terms of Service.
Section D. Specific to Your Use of eCourier and Related ePN Materials.
(1) eCourier®. We are the developer and owner of ePN Content, such as the technology platform known as eCourier, which primarily facilitates Your transferal (as the “Submitter”) of Your recordable electronic document (each an “Instrument”) from your Escrow to one or more governmental agency, department, clerk, or similar Person that is charged to receive, process, record, and publish such Instrument in its official or public records (each a “Recording Authority”). As and to the extent sanctioned by the Recording Authority, and subject to Your Instrument meeting its Requirements, eCourier facilitates Your substitution of a conventional paper Instrument, enabling the Submitter to electronically (a) transmit a digital and/or digitized Instrument through eCourier to such Recording Authority, for the Recording Authority’s placement of such Instrument that meets its Requirements within its official or public record, and (b) receive Your submitted Instrument, as returned through eCourier by the Recording Authority, with information regarding its receipt, processing, recording, and/or related information.
(a) With potential availability through GOePN.com, another primary purpose of the Universal Terms of Service is to specify Your additional obligations and responsibilities as the Submitter, that are applicable to You and any user potentially afforded access to and use of eCourier. As with all Your Actions related to other ePN Content, any such access or use of eCourier by You remains subject to the terms and conditions stated in the UTS, and is contingent upon Your continuous, full, and complete adherence at all times to Your duties and responsibilities herein provided. As with any and all other ePN Content, including eCourier and related ePN Materials, such acknowledged obligations include any access and use of eCourier by You and Your user only for Your internal business purposes; and as to eCourier, also only to the extent necessary for You to submit to, and receive from a Recording Authority, Your valid recordable Instrument that comports with such Recording Authority’s Requirements, in each instance in strict conformity with the provisions of these Universal Terms of Service.
(b) Subject to ePN authorization afforded You and each of Your users in ePN’s sole discretion, the limited and conditional license as provided in Section C may include access and use eCourier as and to the extent offered by ePN for Your Transaction, but only for Your submittal of Your Instrument related to Your Escrow that meets Requirements, to a participating Recording Authority, for its placement of such Instrument in its official or public record.
(2) Your Instruments and Government Charges. In addition to Your other duties stated in these Universal Terms of Service, the obligations You accept and acknowledge as applicable to You related to Your access or use of eCourier include the following:
(a) Your Instrument is Solely Your Responsibility. ePN is in no way responsible for compliance with law, regulation, or Requirements applicable to Your Instrument submitted to eCourier.
(b) Your Payment of All Government Charges. ePN shall receive timely, full, and unconditional payment from You of all Government Charges paid by ePN to a Recording Authority in conjunction with Your submittal of each Instrument to a Recording Authority through eCourier.
(i) Your payment of Government Charges shall be completed through one or more electronic transfer using Your funds (e.g., ACH, wire, or other EFT).
(ii) ePN shall receive Your payment within twenty-four (24) hours or less of ePN payment of such Government Charges.
(iii) Your payment shall be for the full amount charged by the Recording Authority (no partial or reduced payments).
(iv) You will not submit any Instrument to eCourier if You are unable to timely pay ePN in full for the Government Charges paid by Us in conjunction with Your submittal of Your Instrument to the Recording Authority.
(v) Any failure to pay ePN as required in this Section D, or untimely or other ePN non-receipt of Your full payment of all Government Charges within the timeframe specified shall constitute a material breach of these Universal Terms of Service, resulting in the immediate suspension, removal, blocking, and/or termination of all access to and use of eCourier, without any requirement of prior or other notice to You or any other Person, and with Our proceeding in such manner as we determine in Our sole discretion in no way limiting any additional pursuit by or on Our behalf, of any other remedy available at law or in equity, or Your liability for any and all harm, damage, loss, injury, claim, and expense (including attorneys’ fees, costs, and similar) arising out of or related to the Government Charges due from You.
Section F. Governing Law; Jurisdiction; Venue. The substantive and procedural laws of the State of Texas (without regard to any provision of Texas or other law that would require or permit the application of the law of any other jurisdiction; e.g., conflicts of law principles, etc.) shall govern all matters arising out of or relating to these Universal Terms of Service Agreement and all of the Transactions, exchanges, and performances contemplated, including without limitation the validity, interpretation, construction, and enforcement thereof. Any and all claims, demands, disputes, differences, controversies, and misunderstandings, or similar, whether in contract, tort, equity, a combination thereof, or otherwise arising under, out of, in connection with, or in relation to the UTS, or with operations carried out under the UTS, shall be brought in a state or federal court in Dallas County within the State of Texas, and YOU AND WE IRREVOCABLY SUBMIT TO THE EXCLUSIVE AND PERSONAL JURISDICTION AND VENUE OF SUCH COURT IN ANY ACTION OR PROCEEDING AND WAIVE ANY OBJECTIONS THERETO THAT YOU OR WE MAY NOW HAVE OR HEREAFTER HAVE. YOU HEREBY IRREVOCABLY CONSENT TO SERVICE OF PROCESS FOR ALL ACTIONS IN SUCH COURTS. ANY JUDGMENTS RENDERED BY SUCH COURTS MAY BE ENTERED AND ENFORCED AGAINST YOU IN ANY JURISDICTION WHERE YOU OR YOUR ASSETS ARE LOCATED.
Section G. Independent Contractor. The relationship of the parties to this agreement is that of independent contractors neither You, nor We shall be considered or deemed to be any agent, employee, or joint venturer of the other party. No one shall have, or shall hold itself out as having, any right, power, or authority to create any contract or obligation, either express or implied, on behalf of, in the name of, or binding upon the other party, or shall act in a manner which expresses or implies a relationship other than that of independent contractor.
Section H. Entire Agreement; Severability. These Universal Terms of Service incorporate by reference all notices and disclaimers contained or referenced in GOePN.com, together constituting the entire agreement between You and Us with respect to access to and use of ePN Content. Except as herein provided, any and all prior and contemporaneous discussions and understandings between You and Us regarding such subject matter. If any provision of the UTS is found unenforceable, such provision shall be conclusively deemed to be revised to a valid and enforceable provision that most closely approximates the original intent of the parties; or, if such revision is not permitted, then such provision shall be severable from the remaining provisions which shall not affect the validity and enforceability of the remaining provisions that shall remain in full force and effect.
Section I. Waiver and Cumulative Remedies. Any waiver by Us must be made in writing, and Our failure at any time to require Your performance of any obligation under these Universal Terms of Service shall not affect Our right subsequently to require performance of that obligation. Any waiver by Us of any breach of any provision of the UTS shall not be construed as a waiver of any continuing or succeeding breach of such provision or a waiver or modification of the provision. Our remedies provided in these Universal Terms of Service are in addition to, and not exclusive of, any other remedies available to Us at law or in equity.
Section J. Definitions. For purposes of these Universal Terms of Service, the following terms shall have the definitions set forth:
(1) “ePN Materials” shall mean and is defined to include (a) ePN technology, inclusive of any and all source code and source documentation related to Our software, hardware, and/or data center(s) related to such technology, (b) information, graphics, products, features, functionality, services, and links on GOePN.com, (c) ePN documentation, data, and information, (d) ePN proprietary processes, methods, operations, etc. that ePN owns or has developed or licensed and has incorporated into Our products and/or services, (e) any derivative, adaptation, customization, improvement, modification, work, or enhancement of any kind of or to, from, or based on ePN Materials or Our intellectual property, (f) ePN intellectual property; (g) any of Our application programming interfaces, technical specifications, documentations, applications, application submission processes, policies, procedures and/or guidelines, together with any other documentation or materials created by Us; (h) Our confidential and/or proprietary information and trade secrets.
(2) “Escrow” shall mean Your real property escrow, sub-escrow, or similar settlement services transaction or business, or Your corresponding title insurance or analogous business, or Your other real estate related business.
(3) “Governmental Charges” shall mean the government recording and related fees and charges (e.g., real estate transfer taxes, documentary stamps, monument fees, Preliminary Change of Ownership Report (“PCOR”) charges, etc.) as required or collected by or on behalf of a Recording Authority or similar governmental entity in conjunction with or related to its recording of an Instrument.
(4) “Instrument” shall mean document, text, paper, file, or other means of documenting handwriting, typewriting, printing, photo stating, photographing, photocopying, or transmitting by electronic means any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof that create or constitute a tangible record, regardless of the electronic or similar manner in which the record has been made or stored.
(5) “Recording Authority” shall mean governmental agency, office, department, division, clerk, or similar entity that is charged to receive, process, handle, keep, maintain, publish, and/or otherwise manage official or public records, inclusive of Instruments in electronic or tangible form related to a real estate transaction.
(6) “Requirements” shall mean the rules, procedures, directives, instructions, or requirements promulgated or published by a Recording Authority regarding either an Instrument or the installment thereof in such Recording Authority’s official or public record.
(7) “Service Fees” shall mean the fees charged by ePN for its products and/or services. For clarity, “Service Fees” do not include any Government Charges.
(8) “Transaction” shall mean a requisition, order, and/or other direct or indirect purchase by You, or on Your behalf, of ePN products or services (e.g., access and use of eCourier, Content.
(9) “You” means yourself and the entity that you represent, together with any other Person you are acting or proceeding with, in concert, for, or on such Person’s(s’) behalf.