First American IgniteRE and Owner Portal End User License Agreement (“EULA”)
PRIVACY NOTICE: When you download and use our application, we may collect and use your personal information. To learn more about the categories of your personal information we may collect and use, please visit www.FirstAm.com/AppNotice. To learn more about our privacy practices overall, please visit our privacy policy at www.FirstAm.com/Privacy-Policy.
Welcome. We at First American Title Insurance Company (“First American”) are happy that you (“Licensee”) have elected to use First American’s website (as further defined below, the “Site”). Before you enter the Site, you must review and agree to the following terms and conditions. By clicking on the “Accept” button below and accepting this EULA you:(1) agree to be bound by the terms and conditions for use of the Site stated in this EULA, (2) you agree to communication via electronic means, including email at the email address provided by you in the Site, and (3) represent to First American that you are at least 18 years old. If you do not agree to the terms and conditions of this EULA, or are not at least 18 years old, click on the “Decline” button below, and do not enter the Site.
YOUR CLICKING OF THE “ACCEPT” BUTTON BELOW CONSTITUTES YOUR AGREEMENT WITH AND ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS EULA AND YOUR AGREEMENT TO BE BOUND BY SAID TERMS AND CONDITIONS.
In consideration of the mutual promises made herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by First American and Licensee (individually a “party” and collectively the “parties”), the parties, intending to be legally bound, hereby agree to the following terms and conditions:
1. The recitals set forth above are incorporated herein as if fully set forth.
2. Definitions.
All capitalized terms, in the plural and in all tenses, shall have the meaning set forth in this section and elsewhere in this EULA:
a. “Licensed Products” shall mean the products and services provided through the Site, which are generated through Licensee’s use of the Software, and are provided to Licensee through the Site solely for the purposes set forth in this EULA with respect to each such product or service. Some software, products and services offered through or connected to the Site are owned by third parties and may be subject to separate end user license agreements.
b. The “Site” shall mean the First American sites offered by First American including the IgniteRE website and the Owner Portal website, together without limitation, the data and computer code contained on or transmitted from the Site, the Licensed Products, the Software, and the First American Content (as defined below). Any reference herein to the Site shall be to each individual item and also to the Site as a whole.
c. “Software” shall mean the First American software, any successor system or software as designated in writing by First American, 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, data, or content, including, without limitation, information, composites, photographs, film or video footage, animations, audio products, or any visual representations regardless of whether the images are obtained via download from First American or delivered by First American via any other media, together with all material generated optically, electronically, digitally or by any other means from the same, including any reproductions thereof.
3. Access. First American agrees to provide Licensee with access to the Site in accordance with and subject to the terms of this EULA. First American reserves the right, in its sole discretion, to revise, alter, or cease offering the Site.
4. Term and Termination. The term of this EULA will commence upon Licensee’s acceptance (by clicking “Accept”) and continue in perpetuity, unless sooner terminated pursuant to the terms contained herein (the “Term”). Notwithstanding the foregoing, First American may also terminate this EULA for any reason whatsoever, in its sole discretion, by giving Licensee thirty (30) days advance notice. The termination shall be effective 30 days after notice is provided (the “Termination Effective Date”). Upon any termination of this EULA, the License (as defined below) shall simultaneously terminate. During the 30-day period following notice of the termination of this EULA, if Licensee has content stored through the Site, Licensee will be provided an opportunity to download or print such content. First American has no obligation to store or make available Licensee’s content following the Termination Effective Date.
5. Grant of License. Subject to the terms and conditions of this EULA, and provided Licensee has not breached the provisions of this EULA, First American grants to Licensee during the Term, and within the United States, a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to use, solely for personal use or use in the ordinary course of business in connection with owning, buying, selling, or financing real estate: (a) the Site; (b) the Software, in object code format only and excluding source code; and (c) the Licensed Products.
The license granted by First American to Licensee hereunder (the “License”) is conditioned upon Licensee’s compliance with the terms and conditions of this EULA. All titles, patents, trademarks, copyright and other proprietary notices of First American may not be reproduced. 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 First American’s rights and a breach of this EULA. Unauthorized use can result in civil damages and criminal penalties.
6. Property Monitoring.Subject to the terms of this EULA and depending on location and the offerings provided in a Site, First American offers property monitoring and will monitor real estate public records for the county/parish where the land purchased through use of the Site is located to detect conveyances and voluntary liens (limited to mortgages, deeds of trusts, trust deeds, security deeds and other instruments securing a loan) recorded against said land. No other document types will be monitored. Within 14 days of detecting a conveyance or voluntary lien, First American will provide a notification to Licensee, termed an “Alert,” that a document has been recorded. This notification will be sent to the email address Licensee provided in the Site. A copy of the document may not be provided, and if not provided Licensee must obtain said document through other means. It is Licensee’s responsibility to ensure that the email address listed in the Site for notification of Alerts is correct, up to date, and valid. First American is not liable for Alerts that are not delivered to Licensee because of an incorrect or invalid email address or because they are rejected by an email provider or labelled as spam. The foregoing activities are collectively referred to as “Monitoring.”
For property purchased through use of the Site, Monitoring will begin on the effective date of the owner’s title insurance policy issued after closing. Monitoring may be provided for other property owned by the Licensee. Monitoring is available only for properties currently insured by an owner’s title insurance policy, whether underwritten by First American or another insurer, and only if a copy of that policy, consisting of Schedule A and Schedule B, is uploaded to the Site. By uploading or submitting a title policy, Licensee grants First American a non-exclusive, royalty-free, perpetual, and irrevocable right and license to use, reproduce, modify, publish, and distribute Licensee’s policy, in whole or in part, for any purpose whatsoever in First American’s sole discretion.
Monitoring is not available for all counties/parishes or Sites. If you have questions about whether Monitoring is available for your property, please contact First American through the Site. Licensee agrees First American is not responsible for documents that are mis-indexed in the land records or are otherwise not reasonably discoverable in the title search monitoring process. The time between when a document is recorded in the real estate public records and when First American detects said document varies based on location. First American does not agree to provide Alerts within a certain time after recording.
Monitoring does not include protection for loss due to documents being recorded against Licensee’s property, including without limitation forged documents. You may have insurance coverage for loss arising from a document recorded against your property under your title insurance policy. Some policies do not provide coverage for loss due to forged documents that are recorded after the effective date of the policy. First American will not review or advise on any documents and after providing an Alert, the Monitoring service is complete and First American is not responsible for any remedial or other action related to said documents unless First American is the Licensee’s title insurer, and a claim is made under Licensee’s title insurance policy. Please contact your title insurance company if you have questions about title insurance coverage or otherwise need assistance.
7. Acceptable Use. Licensee acknowledges and agrees that Licensee’s use and access of the Site may be logged and monitored. Licensee agrees to use the Site in a manner consistent with any and all applicable laws, rules and regulations as well as the terms and conditions set forth in this EULA, on the Site or in the documentation accompanying and/or contained within the Site. Licensee shall not disassemble, create models, analytics, or derivative works of, decompile, manipulate or reverse engineer the Site, the Software or the Licensed Products, and Licensee shall take all necessary steps to prevent any third party from doing the same. Licensee shall not resell any information contained on the Site and may only redistribute information contained on the Site as reasonably required for personal use or in the ordinary course of business, and shall not use the Site to create, enhance or structure any database for resale or distribution. Licensee shall not use the Site in any way that infringes or misappropriates First American’s or any third-party owner’s copyright, patent, trademark, trade secret or other intellectual property or proprietary rights or rights of publicity or privacy.
8. Ownership. Licensee acknowledges and agrees that, as between Licensee and First American, First American retains all right, title and interest in and to the Site, including all copyrights, patents, trademarks, trade secrets and all other intellectual property rights in the same. No rights in or to the Site are granted to Licensee except the limited License specifically granted in this EULA. In the event that any copyrightable works of authorship are created by Licensee under this EULA through the use of the Site, 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 Site shall belong exclusively to First American.
9. Confidentiality. Confidentiality. Licensee acknowledges that the Site contains valuable products, the development of which has involved the expenditure of substantial time and money. Licensee shall use its best efforts to prevent the accidental or otherwise unauthorized use or release of any and all proprietary and confidential information of First American and any associated third parties provided through the Site (hereinafter referred to as “Confidential Information”). Confidential Information includes, without limitation, the Site, the Software, the Licensed Products, real property ownership information, consumer information that is considered “sensitive” including financial information, mortgage values, real estate loan information, and default and foreclosure information, all technical and non-technical data, formulae, patterns, compilations, programs, devices, methods, techniques, drawings, processes, business practices, plans or proposals, list(s) of individual’s names and addresses and other individual and/or consumer-related information, including any nonpublic personal information as defined by federal law, including, but not limited to, the Gramm-Leach-Bliley Act, as it may be amended, any regulations promulgated thereunder and any other customer information protected by applicable international, federal or state laws, third party products and information lists of third parties or suppliers, sales and marketing information, training and operations materials, personnel records, and all other written or oral information relating to the business or affairs of First American or other third parties whose information or products are provided through the Site (including their pricing, transactions, products, planning, strategies, ideas, and know-how).
Confidential Information shall not include any information that: (i) enters the public domain through no fault of Licensee; (ii) is rightfully known by Licensee without any obligation to keep it confidential at the time it is disclosed by First American, as shown by the Licensee’s records; (iii) is independently developed by the Licensee at any time without reference to the Confidential Information, as shown by the Licensee’s records; or (iv) is rightfully obtained by the Licensee from an independent third party who does not have an obligation of confidentiality to First American, or the respective third-party owner of information provided through the Site.
10. Copyrights. Except for products and information provided by a third-party licensor, with respect to which such licensor shall remain the exclusive owner of the respective information, all First American websites (including the Site) are owned and copyrighted by First American. No ownership rights are being granted to Licensee by this EULA. Subject to the limited License provided herein, First American reserves all rights in and to the Site, including but not limited to the exclusive rights under copyright and other intellectual property laws and the right to grant further licenses. Licensee shall only use the Site as specifically stated herein. All editorial content, graphics and information on the Site provided by First American or its affiliates are owned by or licensed to First American or its affiliates (collectively, the “First American Content”). First American and its licensors reserve and retain all copyright, intellectual property and other proprietary rights in and to the First American Content, including without limitation, all rights in any public information gathered as a compilation. Except as permitted by the limited License granted herein, the materials from the Site, including but not limited to the First American Content, may be used solely for limited non-commercial informational purposes only as necessary to do business with First American or for evaluating or purchasing First American’s products and services. Linking to and/or framing the Site is strictly prohibited unless First American expressly consents in writing and the Licensee enters into a further agreement for such linking to and/or framing. All other uses of the Site and/or the First American Content not expressly addressed in this EULA are strictly prohibited.
11. Trademarks. First American owns several trademarks and service marks that are used in connection with, among other things, the Site. The trademarks and service marks owned by First American include without limitation First Am IgniteRE, First American®, the Eagle logo® and FIRSTAM.COM® (“First American Marks”). Any use of the First American Marks requires prior approval in writing by First American, which may be withheld in First American’s sole discretion. The “look and feel” of First American’s Site and the contents thereof, including without limitation, the First American Content and color combinations, buttons, layout, and other graphical elements are protected by applicable U.S. and international intellectual property laws, including without limitation, trademark, copyright and trade dress laws. Nothing contained herein shall constitute a license (either express or implied) for Licensee to use any of the First American Marks or trade dress, including the elements that constitute the “look and feel” of the Site.
12. Your Content and Retention Policy. Licensee hereby represents and warrants that any content that Licensee uploads to the Site or content that Licensee uses in connection with the Site shall not be used in any manner that is unlawful 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 to include, but not be limited to, all materials, documents, images, data, information or other materials that Licensee may upload to the Site or use in connection with the Site. This includes documents stored in any document library provided by First American for Licensee’s storage of documents related to real property. Storage of any other types of documents is not permitted and Licensee is liable for the uploading and storage of any documents that violate state or federal law due to their content. Licensee agrees to indemnify, defend and hold First American, 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: (a) a third party claim that relates to content Licensee uploaded to the Site; or (b) Licensee’s breach of any provision of this EULA or Licensee’s use of the Site in a manner that is inconsistent with this EULA, applicable law, or the documentation or information accompanying or made available on the Site.
Any content that Licensee uploads to the Site, including documents related to the Licensee’s property that are uploaded by First American, may be deleted at First American’s discretion following 30 days’ notice to Licensee of First American’s decision to delete Licensee’s content, during which 30-day period Licensee will be provided the opportunity to download or print Licensee’s content. It is Licensee’s responsibility to ensure that the email address provided in the Site for notifications is correct, up to date, and valid. First American is not liable for content lost because the notice of deletion was sent to an incorrect or invalid email address or because it was rejected by an email provider or labelled as spam.
13. Links. Where First American provides hypertext links to other Internet websites on the Site, it does so for informational purposes only, and such links are not endorsements by First American of any products or services on such sites. First American has no liability for such products or services and makes no endorsement or approval of the same.
14. Disclaimers. THE SITE, INCLUDING WITHOUT LIMITATION ANY INFORMATION, DATA, PRICES, AND QUOTATIONS CONTAINED ON THE SITE, IS SUBJECT TO CHANGE WITHOUT NOTICE. THE LICENSED PRODUCTS AND THE FIRST AMERICAN CONTENT ARE PROVIDED TO LICENSEE ON AN “AS IS, AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE SITE AS WELL AS THE MATERIALS CONTAINED THEREIN MAY CONTAIN ERRORS OF PUBLICATION OR TRANSMISSION. FIRST AMERICAN DOES NOT WARRANT THAT THE SITE IS COMPLETE OR FREE FROM ERROR OR WILL BE AVAILABLE 24 HOURS PER DAY, SEVEN DAYS PER WEEK, AND DOES NOT ASSUME, AND EXPRESSLY DISCLAIMS ANY LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS OR DAMAGE CAUSED BY ERRORS OR OMISSIONS, WHETHER SUCH ERRORS OR OMISSIONS RESULT FROM NEGLIGENCE, ACCIDENT, OR OTHER CAUSE. IF LEGAL ADVICE OR OTHER EXPERT ASSISTANCE IS REQUIRED RELATED TO THE SERIVCES PROVIDED UNDER THIS EULA, THE ASSISTANCE OF A COMPETENT PROFESSIONAL SHOULD BE SOUGHT. FIRST AMERICAN AND ITS AFFILIATES EXPRESSLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT LICENSEE’S USE OF THE SITE 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 LEGALITY OR PROPRIETY OF THE USE OF THE SITE IN ANY GEOGRAPHIC AREA, THE GRAMM-LEACH-BLILEY ACT OF 1999, THE SARBANES-OXLEY ACT OF 2002, OR OTHER FEDERAL OR STATE STATUTES OR REGULATIONS. LICENSEE IS SOLELY RESPONSIBLE FOR ENSURING THAT LICENSEE’S USE OF THE SITE IS IN ACCORDANCE WITH APPLICABLE LAW. LICENSEE ACKNOWLEDGES THAT THE SITE MAY NOT INCLUDE ALL RECORDED CONVEYANCES, INSTRUMENTS, OR DOCUMENTS WHICH IMPART CONSTRUCTIVE NOTICE WITH RESPECT TO ANY CHAIN OF TITLE DESCRIBED IN THE SERVICES AND CERTAIN DATA INCLUDED WITHIN THE SERVICES MAY BE SEEDED TO DETECT UNAUTHORIZED USE. THE LICENSED PRODUCTS AND THE FIRST AMERICAN CONTENT DO NOT CONSTITUTE AN OFFER OF ANY KIND BUT ARE MERELY INFORMATIONAL IN NATURE AND PROVIDED FOR LICENSEE’S CONVENIENCE AND ARE NO SUBSTITUTE FOR SPECIFIC ADVICE OR PERSONAL VERIFICATION. SOME OF THE INFORMATION ON THE SITE OR CONTAINED WITHIN THE FIRST AMERICAN CONTENT IS A COMPILATION OF INFORMATION GATHERED FROM PUBLIC DOMAIN SOURCES AND SUCH INFORMATION IS PROVIDED ON AN “AS IS” BASIS.
15. Limitation of Liability. FIRST AMERICAN’S LIABILITY FOR ERRORS IN MONITORING IS LIMITED TO THE LESSER OF (1) THE LOSS OR DAMAGE TO LICENSEE’S TITLE, EXCLUDING CONSEQUENTIAL DAMAGES, AND (2) ONE THOUSAND DOLLARS ($1,000). FIRST AMERICAN SHALL NOT BE LIABLE FOR ANY DELAY OR FAILURE IN MONITORING WHEN SUCH DELAY OR FAILURE ARISES FOR REASONS BEYOND FIRST AMERICAN’S REASONABLE CONTROL. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, FIRST AMERICAN, ITS PARENTS, SUBSIDIARIES, AFFILIATES, THIRD PARTY SUPPLIERS, AND ALL OF THE AFOREMENTIONED PARTIES’ RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS SPECIFICALLY DISCLAIM, AND SHALL NOT UNDER ANY CIRCUMSTANCES INCUR, ANY LIABILITY (WHETHER UNDER FEDERAL OR STATE LAW OR IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE) FOR ANY LOSSES OR EXPENSES OF WHATEVER NATURE ARISING OUT OF OR IN ANY WAY RELATED TO ACCESS TO OR USE OF THE SITE, THE LICENSED PRODUCTS, OR THE SOFTWARE, INCLUDING WITHOUT LIMITATION ANY LOSS OF BUSINESS, LOSS OF A SALE OR FINANCE OPPORTUNITY FOR REAL PROPERTY MONITORED UNDER THE EULA, OR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR OTHER DAMAGES, WHETHER OR NOT FORESEEABLE, EVEN IF FIRST AMERICAN OR ITS AFFILIATES HAVE BEEN ADVISED OF OR WERE AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
16. Injunctive Relief. Licensee acknowledges that the services and products provided hereunder are a valuable commercial product, the development of which involved the expenditure of substantial time and money. Any violation of the terms hereunder entitles First American to injunctive relief as such violation will cause irreparable harm to First American. If Licensee infringes or misappropriates any of First American’s intellectual property rights or violates the provisions set forth herein, First American may not have adequate remedy in money or damages. Accordingly, in addition to other remedies provided by law or this EULA, First American shall have the right to obtain injunctive relief against any violation of the acceptable use and confidentiality provisions contained herein. The granting of injunctive relief shall not limit First American’s right to seek further remedies at law or in equity. In connection with the issuance of an injunction, First American shall not be required to post a bond or provide an undertaking.
17. Product and Service Claims. Licensee shall provide prompt notice to First American through the Site, and a reasonable opportunity to cure, any known error, omission or mistake that may result in a claim against First American regarding the Site (including the First American Content), prior to making a claim against such products and services. In addition, Licensee shall use its best efforts to mitigate its losses resulting from services provided pursuant to this EULA. In the event Licensee does not perform according to the requirements of this paragraph, First American will not be liable for loss resulting from Licensee’s failure to perform. In the event of a determination that First American is liable to Licensee for loss related to the performance of services under this EULA, Licensee must provide sufficient documentation, as deemed acceptable by First American, to evidence its out-of-pocket, actual monetary loss.
18. Data Collection and Use. The protection of Licensee’s personal information is of critical importance to First American. Accordingly, First American will not resell or otherwise redistribute Licensee’s personal information to any third party, except those who require said information in order to provide the products and services that First American offers through the Site, and any such sharing shall be done in accordance with all applicable laws and regulations. Licensee acknowledges and agrees that the Site, when used for its intended purpose, will collect, process and transmit data as directed by users. Additionally, First American collects data for statistical, quality assurance, and other legitimate business purposes and Licensee hereby consents to the collection and use of such data. By agreeing to this EULA, Licensee agrees to the terms outlined in First American’s Privacy Policy, which is available on First American’s website located at https://www.firstam.com/privacy-policy/index.html.
19. Document Security. First American 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 enabling certain features of the Site.
20. No Assignment. This EULA shall bind and inure to the benefit of Licensee and First American and their respective successors and permitted assigns. Licensee may not assign, sublicense, pledge or transfer any rights or obligations under this EULA to any other person or entity without First American’s prior written consent, which may be withheld in First American’s sole discretion. Licensee acknowledges and agrees that First American may, in its sole discretion, assign this EULA to any other person or entity at will without Licensee’s consent.
21. Severability. If any of the provisions of this EULA are determined to be invalid by a court or government agency of competent jurisdiction, it is agreed that such determination shall not affect the enforceability of the remaining provisions herein.
22. Headings. The section headings in this EULA have been inserted merely for convenience, are not a part of this EULA, and shall not affect the rights and obligations of Licensee and First American or the meaning of the language in this EULA.
23. Choice of Law and Forum. This EULA is entered into in the State of California, County of Orange and shall be governed by, and construed and interpreted in accordance with, the laws of the State of California without regard to principles of conflicts of law. Licensee agrees to submit to the exclusive jurisdiction of the courts (State and Federal) located in the State of California, County of Orange in connection with any controversy arising under this EULA or its subject matter. Licensee hereby waives any objection Licensee may have in any such action based on lack of personal jurisdiction, improper venue or inconvenient forum.
24. Licensee and Property Information. Licensee will enter information into the Site identifying real property to be monitored through the Monitoring service and contact information for Licensee. It’s the sole obligation of Licensee to keep Licensee’s contact information current on the Site and to notify First American if Licensee sells or otherwise conveys title to the real property monitored through the Monitoring service, whether by deed or operation of law.
25. Site Terms and Payment. In the event a service provided through the Site requires payment of a fee or charge by Licensee, upon ordering said service Licensee agrees to accept the terms of payment set forth in the Site or otherwise provided by First American to Licensee. Licensee’s failure to comply with payment terms shall constitute a default under this EULA and First American shall have the right to terminate this EULA, the License granted herein, and any services provided under this EULA or the Site following notice by First American to Licensee of said payment delinquency and if said payment deficiency is not cured within ten (10) days following said notice.
26. Entire Agreement. This EULA constitutes the complete understanding between Licensee and First American with respect to the Site. No representation, statement, or inducement, oral or written, not contained herein shall bind either Licensee or First American. This EULA supersedes any and all prior agreements, promises, or inducements, whether oral or in writing, regarding the subject matter of this EULA. Further, Licensee and First American agree that no promises or agreements made subsequent to the execution of this EULA shall be binding unless reduced to writing and executed by Licensee and First American. By clicking on the “Accept” button below, Licensee agrees to the terms of this EULA.
