MASTER SUBSCRIPTION AGREEMENT
THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY SIGNING YOUR ACCEPTANCE OR BY
EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO
THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON
BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE
THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND
CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH
ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO
NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS
AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if you are our direct competitor, except with our prior written
consent. In addition, You may not access the Services for purposes of monitoring their
availability, performance or functionality, or for any other benchmarking or competitive
Purposes.
This Agreement is effective between You and Us as of the date of You accepting this
Agreement.
Table of Contents
1. Definitions
2. Free Trial
3. Our Responsibilities
4. Use of the Services and Content
5. Non-PAM Providers
6. Fees and Payment for Purchased Services
7. Proprietary Rights and Licenses
8. Confidentiality
9. Representations, Warranties, Exclusive Remedies and Disclaimers
10. Mutual Indemnification
11. Limitation of Liability
12. Term and Termination
13. Who You Are Contracting With, Notices, Governing Law and Jurisdiction
14. General Provisions
15. Co-Branding
16. Security Breach Notification
17. Data Destruction1. DEFINITIONS
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under
common control with the subject entity.
"Control,
" for purposes of this definition, means
direct or indirect ownership or control of more than 50% of the voting interests of the
subject entity.
“Agreement” means this Master Subscription Agreement.
“Beta Services” means Our services that are not generally available to customers.
“Content” means information obtained by Us from Our content licensors or publicly available
sources and provided to You pursuant to an Order Form, as more fully described in the
Documentation.
“Damages” means all losses, damages, liabilities, deficiencies, actions, judgments, interest,
awards, penalties, fines, costs or expenses of whatever kind, including reasonable
attorneys' fees, the cost of enforcing any right to indemnification hereunder and the cost of
pursuing any insurance providers.
“Documentation” means Our online user guides, documentation, and help and training
materials, as updated from time to time, accessible via support@preapprovemeapp.com or by
login to the applicable Service.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm,
including, for example, viruses, worms, time bombs and Trojan horses.
“Marketplace” means an online directory, catalog or marketplace of applications that
interoperate with the Services.
“Order Form” means an ordering document or “Service Agreement” specifying the Services to
be provided hereunder that is entered into between You and Us or any of Our Affiliates,
including any addenda and supplements thereto. By entering into an Order Form hereunder, an
Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto
and this Agreement shall be deemed an “Order For” as such term is used in the Master
Subscription Agreement.
“Personal Information” means any and all non-public personal information of consumers and
customers that is provided by, results from or is otherwise obtained by You in connection with
any services You provide to such consumers or customers (including services You provide by
or through the products and services comprising the Services). Personal Information includes,
without limitation: (i) an individual's government-issued identification number (including social
security number, driver's license number or state-issued identification number); (ii) an
individual’s financial account number, credit card number, debit card number, credit reportinformation, with or without any required security code, access code, personal identification
number or password, that would permit access to an individual’s financial account; (iii)
information that identifies or can be used to identify an individual (including, without limitation,
names, signatures, addresses, telephone numbers, e-mail addresses and other unique
identifiers); or (iv) information that can be used to authenticate an individual (including, without
limitation, employee identification numbers, government-issued identification numbers,
passwords or PINs, user identification and account access credentials or passwords, financial
account numbers, credit
report information, biometric, health, medical or medical insurance data, answers to security
questions and other personal identifiers)
"Purchased Services" means Services that You or Your Affiliate purchase under an Order
Form, as distinguished from those provided pursuant to a free trial.
“Services” means the products and services that are ordered by You under a free trial or an
Order Form and made available online by Us, including associated offline components, as
described in the Documentation.
“Services” exclude Content and Non-PAM Applications.
“User” means an individual who is authorized by You to use a Service, for whom You have
ordered the Service, and to whom You (or We at Your request) have supplied a user
identification and password. Users may include, for example, Your employees, consultants,
contractors and agents, and third parties with which You transact business.
"We,
" "Us,
""Our,
" or “PAM” means and refers to Pre-Approve Me LLC, an Oregon limited
liability company.
"You" or "Your" means and refers to the company or other legal entity for which you are
accepting this Agreement, and Affiliates of that company or entity.
“Your Data” means electronic data, information, or other content submitted by or for You to
the Purchased Services or collected, processed, loaded, received, or stored by or for You
using the Purchased Services, excluding Content and Non-PAM Applications, and
including, without limitation, Personal Information.
2. FREE TRIAL
If You register on our website for a free trial, We will make one or more Services available to
You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which
you registered to use the applicable Service(s), or (b) the start date of any Purchased Service
subscriptions ordered by You for such Service(s). Additional trial terms and conditions may
appear on the trial registration web page. Any such additional terms and conditions are
incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THESERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST
UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE
COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA,
BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR
CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A
DOWNGRADE FROM THAT COVERED BY THE TRIAL. (EG: AREA EXCLUSIVE
SUBSCRIPTION; INDIVIDUAL ACCOUNT, ECT) THEREFORE, IF YOU PURCHASE A
SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL OR
MEMEBERSHIP, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL
PERIOD OR YOUR DATA MAY BE PERMANENTLY LOST. NOTWITHSTANDING SECTION 9
(REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS),
DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY
WARRANTY.
Please review the User Guide during the trial period so that You become familiar with the
features and functions of the Services before You make Your purchase.
If You are located in the United States, then during any free trial period We may disclose
anonymous data about Your use of the Services (“Usage Statistics”) to our service providers
for the purpose of helping us improve the Services.
Any such disclosures of Usage Statistics to our service providers will not include Your
Identity.
3. OUR RESPONSIBILITIES
3.1. Provision of Purchased Services. We will (a) make the Services and Content available to
You pursuant to this Agreement and the applicable Order Forms, (b) provide Our standard
support for the Purchased Services to You at no additional charge, and/or upgraded support if
purchased, and (c) use commercially reasonable efforts to make the online Purchased Services
available 8am – 5pm PST, Monday – Friday @ support@preapprovemeapp.com except for: (i)
planned downtime (of which We shall give at least 8 hours electronic notice, or (ii) any
unavailability caused by circumstances beyond Our reasonable control, including, for example,
an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other
labor problem (other than one involving Our employees), Internet service provider failure or
delay, Non-PAM Application, or denial of service attack.
3.2. Protection of Your Data. We will maintain administrative, physical, and technical safeguards
for protection of the security, confidentiality and integrity of Your Data, as described in the
Documentation. Those safeguards will include, but will not be limited to, measures for
preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to
provide the Purchased Services and prevent or address service or technical problems, (b) as
compelled by law in accordance with Section 8.3 (Compelled Disclosure) below, or (c) as Youexpressly permit in writing.
3.3 Our Personnel. We will be responsible for the performance of Our personnel (including Our
employees and contractors) and their compliance with Our obligations under this Agreement,
except as otherwise specified herein.
3.4 Beta Services. From time to time, We may invite You to try Beta Services at no charge.
You may accept or decline any such trial in Your sole discretion. Beta Services will be clearly
designated as beta, pilot, limited release, developer preview, non-production, evaluation or by
a description of similar import. Beta Services are for evaluation purposes and not for
production use, are not considered “Services” under this Agreement, are not supported, and
may be subject to additional terms. Unless otherwise stated, any Beta Services trial period
will expire upon the earlier of one year from the trial start date or the date that a version of the
Beta Services becomes generally available. We may discontinue Beta Services at any time in
Our sole discretion and may never make them generally available. We will have no liability for
any harm or damage arising out of or in connection with a Beta Service.
4. USE OF SERVICES AND CONTENT
4.1 Subscriptions. Unless otherwise provided in the applicable Order Form, (a) Services and
Content are purchased as subscriptions, (b) subscriptions may be added during a subscription
term at the same pricing as the underlying subscription pricing, prorated for the portion of that
subscription term remaining at the time the subscriptions are added, and (c) any added
subscriptions will terminate on the same date as the underlying subscriptions.
4.2 Usage Limits. Services and Content are subject to usage limits, including, for example, the
quantities specified in Order Forms. Unless otherwise specified, (a) a quantity in an Order
Form refers to Users, and the Service or Content may not be accessed by more than that
number of Users, (b) a User’s password may not be shared with any other individual, and (c) a
User identification may be reassigned to a new individual replacing one who no longer requires
ongoing use of the Service or Content. If You exceed a contractual usage limit, We may work
with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our
efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an
Order Form for additional quantities of the applicable Services or Content promptly upon Our
request, and/or pay any invoice for exces usage in accordance with Section 6.2 (Invoicing and
Payment).
4.3 Your Responsibilities. You will (a) be responsible for Users’ compliance with this
Agreement, (b) be responsible for the accuracy, quality and legality of Your Data and the
means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent
unauthorized access to or use of Services and Content, and notify Us promptly of any such
unauthorized access or use, (d) use Services and Content only in accordance with theDocumentation and applicable laws and government regulations, and (e) comply with terms of
service of Non-PAM Applications with which You use Services or Content.
4.4 Usage Restrictions. You will not (a) make any Service or Content available to, or use any
Service or Content for the benefit of, anyone other than You or Users, (b) sell, resell, license,
sublicense, distribute, rent or lease any Service or Content, or include any Service or Content in
a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing,
libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of
third-party privacy rights, (d) use a Service to store or transmit Malicious Code, (e) interfere with
or disrupt the integrity or performance of any Service or third-party data contained therein, (f)
attempt to gain unauthorized access to any Service or Content or its related systems or
networks, (g) permit direct or indirect access to or use of any Service or Content in a way that
circumvents a contractual usage limit, (h) copy a Service or any part, feature, function or user
interface thereof, (i) copy Content except as permitted herein or in an Order Form or the
Documentation, (j) frame or mirror any part of any Service or Content, other than framing on
Your own intranets or otherwise for Your own internal business purposes or as permitted in the
Documentation, or (k) access any Service or Content in order to build a competitive product or
service, or (l) reverse engineer any Service (to the extent such restriction is permitted by law).
5. NON-PAM PROVIDERS
5.1. Acquisition of Non-PAM Products and Services. We or third parties may make available (for
example, through a Marketplace or otherwise) third-party products or services, including, for
example, Non-PAM Applications and implementation and other consulting services. Any
acquisition by You of such Non-PAM products or services, and any exchange of data between
You and any Non-PAM provider, is solely between You and the applicable Non-PAM provider.
We do not warrant or support Non-PAM Applications or other Non-PAM products or services,
whether or not they are designated by Us as “certified” or otherwise, except as specified in an
Order Form.
5.2. Non-PAM Applications and Your Data. If You install or enable a Non-PAM Application for
use with a Service, You grant Us permission to allow the provider of that Non-PAM Application
to access Your Data as required for the interoperation of that Non-PAM Application with the
Service. We are not responsible for any disclosure, modification or deletion of Your Data
resulting from access by a Non-PAM Application. You shall require any Non-PAM Application
providers to enter into your standard Agreement to Safeguard Information.
5.3. Integration with Non-PAM Applications. The Services may contain features designed to
interoperate with Non- Preapprovemeapp.com Applications. To use such features, You may be
required to obtain access to Non- Preapprovemeapp.com Applications from their providers, and
may be required to grant Us access to Your account(s) on the Non- Preapprovemeapp.com
Applications. If the provider of a Non Preapprovemeapp.com Application ceases to make the
Non-PAM Application available for interoperation with the corresponding Service features on
reasonable terms, We may cease providing those Service features without entitling You to anyrefund, credit, or other compensation.
6. FEES AND PAYMENT FOR PURCHASED SERVICES
6.1. Fees. You will pay all fees specified in Order Forms. Except as otherwise specified
herein or in an Order Form,
(i) Fees are based on Services and Content purchased and not actual usage, (ii) payment
obligations are noncancelable and fees paid are non-refundable.
6.2. Invoicing and Payment. You will provide Us with valid and updated credit card information,
or with a valid purchase order or alternative document reasonably acceptable to Us. If You
provide credit card information to Us, You authorize Us to charge such credit card for all
Purchased Services listed in the Order Form for the initial subscription term and any renewal
subscription term(s) as set forth in Section 12.2 (Term of Purchased Subscriptions). Such
charges shall be made in advance, either annually or in accordance with any different billing
frequency stated in the applicable Order Form. If the Order Form specifies that payment will be
by a method other than a credit card, We will invoice You in advance and otherwise in
accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced
charges are due net 30 days from the invoice date. You are responsible for providing complete
and accurate billing and contact information to Us and notifying Us of any changes to such
Information.
6.3. Overdue Charges. If any invoiced amount is not received by Us by the due date, then
without limiting Our rights or remedies, (a) those charges may accrue late interest at the
rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law,
whichever is lower, and/or (b) We may condition future subscription renewals and Order Forms
on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
6.4. Suspension of Service and Acceleration. If any amount owing by You under this or any
other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in
the case of amounts You have authorized Us to charge to Your credit card), We may, without
limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such
agreements so that all such obligations become immediately due and payable, and suspend
Our services to You until such amounts are paid in full. We will give You at least 7 days’ prior
notice that Your account is overdue, in accordance with Section 13.2 (Manner of Giving
Notice), before suspending services to You.
6.5. Payment Disputes. We will not exercise Our rights under Section 6.3 (Overdue Charges)
or 6.4 (Suspension of Service and Acceleration) above if You are disputing the applicablecharges reasonably and in good faith and are cooperating diligently to resolve the dispute.
6.6. Taxes. Our fees do not include any taxes, levies, duties or similar governmental
assessments of any nature, including, for example, value-added, sales, use or withholding
taxes, assessable by any jurisdiction whatsoever (collectively,
“Taxes”). You are responsible for
paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to
pay or collect Taxes for which You are responsible under this Section 6.6, We will invoice You
and You will pay that amount unless You provide Us with a valid tax exemption certificate
authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes
assessable against Us based on Our income, property and employees.
6.7. Future Functionality. You agree that Your purchases are not contingent on the delivery of
any future functionality or features, or dependent on any oral or written public comments made
by Us regarding future functionality or features.
7. PROPRIETARY RIGHTS AND LICENSES
7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and
Our licensors reserve all of Our/their right, title and interest in and to the Services and Content,
including all of Our/their related intellectual property rights. No rights are granted to You
hereunder other than as expressly set forth herein.
7.2. License by Us to Use Content. We grant to You a non-exclusive, limited-term license,
under Our applicable intellectual property rights and licenses, to use Content, solely within the
United States, that acquired by You pursuant to Order Forms, subject to those Order Forms,
this Agreement and the Documentation.
7.3. License by You to Host Your Data and Applications. You grant Us and Our Affiliate (AWS)
a worldwide, limited term license to host, copy, transmit and display Your Data, and any
Non-PAM Applications and program code created by or for You using a Service, as necessary
for Us to provide the Services in accordance with this Agreement. Subject to the limited
licenses granted herein, We acquire no right, title or interest from You or Your licensors under
this Agreement in or to Your Data of any Non PAM Application or program code.
7.4. License by You to Use Feedback. You grant to Us and Our Affiliates a worldwide,
perpetual, irrevocable, royalty-free license to use and incorporate into the Services any
suggestion, enhancement request, recommendation, correction or other feedback provided by
You or Users relating to the operation of the Services or advancement of technology.
7.5. Federal Government End Use Provisions. We provide the Services, including related
software and technology, for ultimate federal government end use solely in accordance with
the following: Government technical data and software rights related to the Services include
only those rights customarily provided to the public as defined in this Agreement. If a
government agency has a need for rights not granted under these terms, it must negotiate withUs to determine if there are acceptable terms for granting those rights, and a mutually
acceptable written addendum specifically granting those rights must be included in any
applicable agreement.
7.6. Intellectual Property Matters. You acknowledge that we prohibit any content or any other
material that infringes on any patent, trademark, copyright, trade secret, right to privacy, right to
publicity, or any other applicable law or proprietary right to be uploaded or stored for You using
the Beta Services, Services, or Purchased Services. By uploading Your Data, You are
warranting that You own all proprietary rights, including copyright, in an to Your Data, with full
power to grant the rights contemplated by this Agreement.
8. CONFIDENTIALITY
8.1. Definition of Confidential Information.
“Confidential Information” means all information
disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally
or in writing, that is designated as confidential or that reasonably should be understood to be
confidential given the nature of the information and the circumstances of disclosure. Your
Confidential Information includes Your Data (which includes, for clarity, Personal Information)
which is the information collected from or about your customers or consumers; Our
Confidential Information includes the Services and Content; and Confidential Information of
each party includes the terms and conditions of this Agreement and all Order Forms (including
pricing), as well as business and marketing plans, technology and technical information,
product plans and designs, and business processes disclosed by such party. However,
Confidential Information does not include any information that (i) is or becomes generally
known to the public without breach of any obligation owed to the Disclosing Party, (ii) was
known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of
any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of
any obligation owed to the Disclosing Party, or (iv) was independently developed by the
Receiving Party.
8.2. Protection of Confidential Information. The Receiving Party will use the same degree of
care that it uses to protect the confidentiality of its own confidential information of like kind (but
not less than reasonable care) (i) not to use any Confidential Information of the Disclosing
Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise
authorized by the Disclosing Party in
writing, to limit access to Confidential Information of the Disclosing Party to those of its and its
Affiliates’ employees and contractors who need that access for purposes consistent with this
Agreement and who have signed confidentiality agreements with the Receiving Party
containing protections no less stringent
than those herein. Neither party will disclose the terms of this Agreement or any Order Form to
any third party other than its Affiliates, legal counsel and accountants without the other party’s
prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal
counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or
accountant’s compliance with this Section 8.2.8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the
Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives
the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted)
and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to
contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing
Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a
party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will
reimburse the Receiving Party for its reasonable cost of compiling and providing secure access
to that Confidential Information.
8.4. Violations. Each party shall advise the other party immediately in the event either party
learns or has reason to believe that any person has access to Confidential Information and has
violated or intends to violate the terms of this Agreement and each party will cooperate with the
other in seeking injunctive or other equitable relief against any such person.
8.5. Remedies for Breach. Each part acknowledges that breach of its obligation of
confidentiality may give rise to irreparable injury to the other party, which damage may be in
inadequately compensable in the form of monetary damages. Accordingly, a party may seek
and obtain injunction relief against the breach or the threatened breach of the forgoing
Undertakings.
9. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
9.1. Representations. Each party represents that it has validly entered into this Agreement
and has the legal power to do so.
9.2. Our Warranties. We warrant that (a) this Agreement, the Order Forms and the
Documentation accurately describe the applicable administrative, physical, and technical
safeguards for protection of the security, confidentiality integrity of Your Data, (b) We will not
materially decrease the overall security of the Purchased Services during a subscription term,
(c) the Purchased Services will perform materially in accordance with the applicable
Documentation, (d) subject to Section 5.3 (Integration with Non-PAM Applications), We will not
materially decrease the functionality of the Purchased Services during a subscription term, and
(e) the Purchased Services and Content will not introduce Malicious Code into Your systems.
For any breach of an above warranty, Your exclusive remedies are those described in Sections
12.3 (Termination) and 12.4 (Refund or Payment upon Termination).
9.3 Your Warranties. You hereby represent and warrant that You safeguard and protect all
Personal Information in full compliance with all applicable federal and state laws and by
following security measures, procedures, and policies at least as rigorous as those
described and required of Us in Your “Addendum to Contract and Agreement to Safeguard
Information.
”9.4 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES
ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES,
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS
IS,
” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL
LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED
BY ANY THIRD-PARTY HOSTING PROVIDERS.
Notwithstanding the foregoing, PAM represents and warrants that the PAM Service, when
used in accordance with this Agreement, does not infringe or misappropriate any valid
intellectual property rights of any third party.
10. MUTUAL INDEMNIFICATION
10.1. Indemnification by Us. We will defend You against any claim, demand, suit or proceeding
made or brought against You by a third party alleging that the use of a Purchased Service in
accordance with this Agreement infringes or misappropriates such third party’s intellectual
property rights (a “Claim Against
You”), or arising out of or resulting from any third party claim against you arising out of or
resulting from our failure to adequately protect, secure, or safeguard Your Data (which includes,
for clarity, Personal Information) and will indemnify You from any Damages finally awarded or
assessed against You as a result of, or for amounts paid by You under a court-approved
settlement of, a Claim Against You, provided You (a) promptly give Us written notice of the
Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against
You (except that We may not settle any Claim Against You unless it unconditionally releases
You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive
information about an infringement or misappropriation claim related to a Service, We may in
Our discretion and at no cost to You (i) modify the Service so that it no longer infringes or
misappropriates, without breaching Our warranties under Section 9.2 (Our Warranties), (ii)
obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii)
terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any
prepaid fees covering the remainder of the term of the terminated subscriptions. The above
defense and indemnification obligations do not apply to the extent a Claim Against You arises
from Content, a Non PAM Application or Your breach of this Agreement.
10.2. Indemnification by You. You will defend Us against any claim, demand, suit or proceeding
made or brought against Us by a third party (a “Claim Against Us”): (a) alleging that Your Data,
or Your use of any Service or Content in breach of this Agreement, infringes or misappropriates
such third party’s intellectual property rights or violates applicable law, (b) arising out of or
resulting from any breach of your warranty set forth in Section 9.3, or (c) arising out of or
resulting from any third party claim against Us arising out of or resulting from Your failure toadequately protect, secure, or safeguard Your Data (which includes, for clarity, Personal
Information). You will indemnify Us from any Damages finally awarded or assessed against Us
as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim
Against Us, provided We (a) promptly give You written notice of the Claim Against
Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that
You may not settle any Claim Against Us unless it unconditionally releases Us of all liability),
and (c) give You all reasonable assistance, at Your expense.
10.3. Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to,
and the indemnified party’s exclusive remedy against, the other party for any type of claim
described in this Section 10.
11. LIMITATION OF LIABILITY
11.1. Liability Cap.
To the maximum extent permitted by law, Pre-Approve Me’s total liability for any claim arising
out of or related to this Agreement shall not exceed the total fees paid by You under this
Agreement in the 12 months preceding the claim. Under no circumstances shall PAM be liable
for any amount exceeding this cap, regardless of the nature of the claim, except as expressly
provided under Section 11.3 (Data Security Obligations).
11.2. Exclusion of Certain Damages.
In no event shall PAM be liable for:
●
●
●
Lost profits, revenue, business opportunities, or goodwill;
Any indirect, incidental, special, consequential, or punitive damages;
Loss or corruption of data unless directly caused by PAM’s willful misconduct.
These exclusions apply even if PAM has been advised of the possibility of such damages and
regardless of the legal or equitable theory of liability, including breach of contract, tort (including
negligence), or strict liability.
11.3. Data Security Obligations.
PAM follows industry-standard security protocols to protect Your Data. PAM’s liability for any
data security incident, including unauthorized access or disclosure, shall not exceed the total
fees paid by You under this Agreement in the 12 months preceding the incident.
You acknowledge that PAM is not responsible for damages resulting from Your failure to
implement security controls, maintain confidentiality, or use the Services in accordance with this
Agreement. You further agree that PAM shall not be responsible for third-party breaches,
security failures of non-PAM applications, or data loss caused by unauthorized access resulting
from Your actions or negligence.11.4. Relation to Confidentiality & Section 8.5.
Nothing in this Section 11 limits the rights of either party to seek injunctive relief for breaches of
confidentiality under Section 8.5. If a party breaches its confidentiality obligations, the other
party may seek equitable remedies (e.g., an injunction) without limitation under Section 8.5.
However, any claim for monetary damages related to confidentiality breaches remains subject to
the liability cap set forth in Section 11.1.
11.5. Survival of Limitations.
The limitations of liability set forth in this Section 11 shall survive termination of this Agreement
and remain in full effect regardless of contract duration.
12. TERM AND TERMINATION
12.1 Term of Agreement. This Agreement commences on the date You first accept it and
continues until all subscriptions hereunder have expired or have been terminated.
12.2. Term of Purchased Subscriptions. The term of each subscription shall be as specified in
the applicable contract or Subscription Agreement. Except as otherwise specified in the
contract, subscriptions will automatically renew for additional periods equal to the expiring
subscription term or one year (whichever is shorter), unless either party gives the other notice
of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit
pricing during any automatic renewal term will be the same as that during the immediately prior
term unless we have given You written notice of a pricing increase at least 60 days before the
end of that prior term, in which case the pricing increase will be effective upon renewal and
thereafter. Any such pricing increase will not exceed 7% of the pricing for the applicable
Purchased Service or Content in the immediately prior subscription term, unless the pricing in
the prior term was designated in the relevant Order Form as promotional or one-time or unless
additional features are being added at Your request, in which case the cost of the Services
shall be renegotiated to include such new services or features.
12.3. Termination.
A party may terminate this Agreement with or without cause upon 30 days' written notice to the
other party, unless otherwise specified in an executed contract or Order Form that establishes a
fixed term commitment. If a contract explicitly states a minimum subscription term or
non-cancelable period, termination may only occur at the end of that term unless otherwise
mutually agreed in writing.
12.4. Refund or Payment upon Termination. If this Agreement is terminated by You in
accordance with Section 12.3 (Termination), We will refund You any prepaid fees covering the
remainder of the term of all Order Forms after the effective date of termination. If this
Agreement is terminated by Us in accordance with Section 12.3, You will pay any unpaid fees
covering the remainder of the term of all Order Forms. In no event will termination relieve You
of Your obligation to pay any fees payable to Us for the period prior to the effective date ofTermination.
12.5. Your Data Portability and Deletion. Upon request by You made within 30 days after the
effective date of termination or expiration of this Agreement, We will make Your Data available
to You for export or download as provided in the Documentation. After that 30-day period, We
will have no obligation to maintain or provide Your Data, and will thereafter delete or destroy all
copies of Your Data in Our systems or otherwise in Our possession or control as provided in
the Documentation, unless legally prohibited.
12.6. Surviving Provisions. Sections 6 (Fees and Payment for Purchased Services), 7
(Proprietary Rights and Licenses), 8 (Confidentiality), 9.4 (Disclaimers), 10 (Mutual
Indemnification), 11 (Limitation of Liability), 12.4 (Refund or Payment upon Termination), 12.5
(Portability and Deletion of Your Data), 13 (Who You Are Contracting With, Notices,
Governing Law and Jurisdiction) and 14 (General Provisions) will survive any termination or
expiration of this Agreement.
13. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND
JURISDICTION
13.1. Governing Law. This Agreement shall be governed and construed in accordance with
the laws of the State of Oregon (without giving effect to conflict of laws rules). The Parties
hereto hereby irrevocably submit to the jurisdiction of the courts in Clackamas County, OR.
13.2. Compliance with Laws. Both parties agree to comply with all applicable federal, state,
and local laws, executive orders and regulations issued, where applicable.
13.3. Cooperation. Where agreement, approval, acceptance, consent or similar action by either
party hereto is required by any provision of this Agreement, such action shall not be
unreasonably delayed or withheld. Each party will cooperate with the other by, among other
things, making available, as reasonably requested by the other, management decisions,
information, approvals, and acceptances in order that each party may properly accomplish its
obligations and responsibilities hereunder.
13.4. Counterparts; Facsimile. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same Agreement. The parties agree that a facsimile signature may
substitute for and have the same legal effect as the original signature.
13.5. Cumulative Remedies. All rights and remedies of You herein shall be in addition to all
other rights and remedies available at law or in equity, including, without limitation, specific
performance against Use for the enforcement of this Agreement, and temporary and
permanent injunctive relief
13.6. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices,permissions and approvals hereunder shall be in writing and shall be deemed to have been
given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second
business day after sending by confirmed facsimile, or (iv) the first business day after sending
by email (provided email shall not be sufficient for notices of termination or an indemnifiable
claim). Billing-related notices to You shall be addressed to the relevant billing contact
designated by You. All other notices to You shall be addressed to the relevant Services system
administrator designated by You.
13.7. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable
governing law above without regard to choice or conflicts of law rules, and to the exclusive
jurisdiction of the applicable courts above.
14. GENERAL PROVISIONS
14.1. Export Compliance. The Services, Content, other technology We make available, and
derivatives thereof may be subject to export laws and regulations of the United States and
other jurisdictions. Each party represents that it is not named on any U.S. government
denied-party list. You shall not permit Users to access or use any Service or Content in a
U.S.
-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of
any U.S. export law or regulation.
14.2. Anti-Corruption. You have not received or been offered any illegal or improper bribe,
kickback, payment, gift, or thing of value from any of Our employees or agents in connection
with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of
business do not violate the above restriction. If You learn of any violation of the above
restriction, You will use reasonable efforts to promptly notify us.
14.3 Entire Agreement and Order of Precedence. This Agreement is the entire agreement
between You and Us regarding Your use of Services and Content and supersedes all prior and
contemporaneous agreements, proposals or representations, written or oral, concerning its
subject matter. No modification, amendment, or waiver of any provision of this Agreement will
be effective unless in writing and signed by the party against whom the modification,
amendment or waiver is to be asserted. The parties agree that any term or condition stated in
Your purchase order or in any other of Your order documentation (excluding Order Forms) is
void. In the event of any conflict or inconsistency among the following documents, the order of
precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the
Documentation.
14.4. Assignment. Neither party may assign any of its rights or obligations hereunder, whether
by operation of law or otherwise, without the other party’s prior written consent (not to be
unreasonably withheld); provided, however, either party may assign this Agreement in its
entirety (including all Order Forms), without the other party’s consent to its Affiliate or in
connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all
of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of itsassets to, or undergoes a change of control in favor of, a direct competitor of the other party,
then such other party may terminate this Agreement upon written notice. In the event of such a
termination, We will refund to You any prepaid fees covering the remainder of the term of all
subscriptions. Subject to the foregoing, this Agreement will bind and inure to the benefit of the
parties, their respective successors and permitted assigns.
14.5. Relationship of the Parties. The parties are independent contractors. This Agreement does
not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship
between the parties.
14.6. Third-Party Beneficiaries. Our Content licensors shall have the benefit of Our rights and
protections hereunder with respect to the applicable Content. There are no other third-party
beneficiaries under this Agreement.
14.7. Waiver. No failure or delay by either party in exercising any right under this
Agreement will constitute a waiver of that right
14.8. Severability. If any provision of this Agreement is held by a court of competent
jurisdiction to be contrary to law, the provision will be deemed null and void, and the
remaining provisions of this Agreement will remain in effect.
14.9. Attorney Fees. You will pay on demand all of Our reasonable attorney fees and other
costs incurred by Us to collect any fees or charges due Us under this Agreement following
Your breach of Section 6.2 (Invoicing and Payment).
15. Co-Branding
15.1 Co-Branding Purpose: Co branding used in Pre-Approve Me is not for lead sale,
generation or or to extend value of any kind to the Real Estate Agent. Branding is used as
a way to ensure a shared Customer (Borrower) has the contact information and tools they
need in order to move through the mortgage process.
15.2. Mobile App. The Buyers agent has branding in the footer and in the contacts section
of the mobile app. Loan Officers branding on top and the Real Estate agents is minimized
by default. The user of the mobile app can expand this view to see more details about this
Real Estate Agent.
15.3 Emails: If a Real Estate Agent is on a transaction with a shared borrower, their
likeness and contact information will be displayed alongside the Loan Officers on the
Transaction.
16. Security Breach Notification16.1 Pre-Approve Me, LLC agrees that if we become aware or suspect that there has been a
breach of security that may result in unauthorized access to, acquisition, loss, or disclosure of
Customer Data or other sensitive data shared by Client, we shall notify Client in writing of such
situation promptly, but no later than forty-eight (48) hours after such a situation occurs. We
agree to use commercially reasonable efforts to take corrective actions to respond to the
situation while also cooperating with Client to understand the scope, impact, and associated
data risk.
17. Data Destruction
17.1 Pre-Approve Me, LLC agrees that following the end of Client’s use of our Services, we
will archive any sensitive or customer data in its possession that was shared by the Client.
If you have questions regarding this or any other provision, please
contact us @ Support@preapprovemeapp.com
