USER LICENSE AGREEMENT FOR titleX.com USER SITE

 

 

 

1.                    DEFINITIONS

1.                    Party Definitions

1.                    titleX - The term “titleX” means:  titleX. Inc, a Texas Corporation

2.                    You, Your - The term “You or Your” means the User

3.                    Us, We - The terms “Us or We” means titleX

2.                    E-Commerce Related Definitions

1.                    Site - The term “Site” means titleX.com

2.                    titleX.com - The term “titleX.com” means the location on the World Wide Web owned by titleX and made available to the User under the terms of this License Agreement.

3.                    User - The term “User” means the natural person using the Site.  Solely for purposes of enforcement of the terms of this License Agreement, the term “User” also includes any Business Affiliate of the User

3.                    Title Insurance Statutory and Regulatory Related Definitions

1.                    Attorney -  “Attorney” means a person licensed to practice law and a member of the State Bar of Texas and includes a Texas professional corporation organized for the purpose of rendering professional legal services.

2.                    Business of Title Insurance - The “business of title insurance” shall be deemed to be (1) the making as insurer, guarantor or surety, or proposing to make as insurer, guarantor or surety, of any contract or policy of title insurance or any equivalent thereof; (2) the transacting or proposing to transact, any phase of title insurance, including solicitation, title examination, except when conducted by an attorney, closing the transaction, except when conducted by an attorney, execution of a contract of title insurance, insuring and transacting matters subsequent to the execution of the contract and arising out of it, including reinsurance; (3) the making of a guaranty or warranty of a title search, a title examination, or any component thereof by a person other than the one performing the search or examination; or (4) the doing, or proposing to do, any business in substance equivalent to any of the foregoing whether or not designed to evade the provisions of this Act.

3.                    Closing The Transaction - “Closing the Transaction” means the investigation made on behalf of a title insurance company, title insurance agent, or direct operation before the actual issuance of the title policy to determine proper execution, acknowledgment, and delivery of all conveyances, mortgage papers, and other title instruments which may be necessary to the consummation of the transaction and includes the determination that all delinquent taxes are paid, all current taxes, based on the latest available information, have been properly prorated between the purchaser and seller in the case of an owner policy, the consideration has been passed, all proceeds have been properly disbursed, a final search of the title has been made, and all necessary papers have been filed for record.

4.                    Direct Operation - “Direct Operation” means the operations of a title insurance company under the authority of a license issued under Article 9.36A of this Code. Whenever the term “title insurance agent” is used in this Chapter, it shall be construed to include “direct operation” unless the context indicates to the contrary.


5.                    Escrow Officer - “Escrow Officer” means an attorney, or bona fide employee of either an attorney licensed as an escrow officer, bona fide employee of a direct operation, or bona fide employee of a title insurance agent whose duties include any or all of the following: (1) countersigning title insurance forms; or (2) supervising the preparation and supervising the delivery of title insurance forms; or (3) signing escrow checks; or (4) closing the transaction.

6.                    Title Examination - “Title Examination” means the search and examination of a title to determine the conditions of the title to be insured and to evaluate the risk to be undertaken in the issuance of a title insurance policy or other title insurance form.

7.                    Title Insurance - “Title Insurance” means insuring, guaranteeing or indemnifying owners of real property or others interested therein against loss or damage suffered by reason of liens, encumbrances upon, or defects in the title to said property, and the invalidity or impairment of liens thereon, or doing any business in substance equivalent to any of the foregoing in a manner designed to evade the provisions of this Act.

8.                    Title Insurance Agent - “Title Insurance Agent” means a person, firm, association, or corporation owning or leasing and controlling an abstract plant as defined by the Board, or as a participant in a bona fide joint abstract plant operation as defined by the Board, and authorized in writing by a title insurance company to solicit insurance and collect premiums and to issue or countersign policies in its behalf.

9.                    Title Insurance Company - “Title Insurance Company” means any domestic company organized under the provisions of this Act for the purpose of conducting the business of title insurance, any title insurance company organized under the laws of another state or foreign government meeting the requirements of this Act and holding a certificate of authority to transact business in Texas and any domestic or foreign company having a certificate of authority to insure titles to real estate within this state and which meet the requirements of this Act.

4.                    Other Title Insurance Related Definitions

1.                    Abstract Plant - An Abstract Plant used as the basis for issuance of title insurance policies in the State of Texas shall consist of fully indexed records showing all instruments of record affecting lands within the county for a period of at least 25 years immediately prior to the date of search.  The indices pertaining to land shall be arranged in geographic order (i.e. lot and block or subdivided lands, and survey or section number for acreage tracts).  To be a qualified Abstract Plant, the Abstract Plant must contain all of the indices as set forth in Procedural Rule P-12.

2.                    Administrative Regulations - The regulations adopted by the Texas Insurance Commissioner and found in Title 28 Official Texas Administrative Code Section 9.1 et. seq. including the Basic Manual for Title Insurance.

3.                    Article 9.30(B) - (set forth text later)

4.                    Article 9.30(B)(2) - (set forth text later)

5.                    Business Affiliation - Shall have the same meaning as “Business Affiliate” set forth below.

6.                    Individual Account Only - The term “Individual Account Only” means that the use is for a natural person’s individual use and not for use in a business context by a business affiliate.

7.                    Issuance of Title Insurance - The “Issuance of Title Insurance” means that a portion of the business of title insurance leading up to and including the delivery of the policy of title insurance to the insured.

8.                    Policy or Policies of Title Insurance - (import text later)

9.                    Procedural Rule P-25 - (import text later)

10.                  Services - The term “Services” includes, but is not limited to, the following elements: (i) closing the transaction; (ii) title examination.

11.                  Texas Title Insurance Act - The term “Texas Title Insurance Act” means Article 9.01 et. seq. of the Texas Insurance Code.

12.                  Texas Title Insurance Basic Manual - The “Texas Title Insurance Basic Manual” means the                 .


13.                  Title Evidence - The term “Title Evidence” means the information regarding instruments affecting title to a tract of land, going back not less than 25 years or such greater period of time as is necessary to determine the ownership and appropriate liens, encumbrances upon or defects in title.  Title Evidence must include, at a minimum, the following: (i) the grantor of each instrument; (ii) the grantee of each instrument; (iii) the type of each instrument; (iv) the recording information for each instrument; and, (v) copies of each instrument necessary for an examiner to examine the title and prepare a title report or commitment for title insurance.

14.                  Your Business Affiliation - The term “Your Business Affiliation” means Business Affiliate as defined below.

5.                    Other Definitions

1.                    Business Affiliate - The term “Business Affiliate” shall mean, with respect to a User, the entity {as defined herein} with which the user is in a business relationship, including, but not limited to: (i) employer/employee; (ii) principal/agent; (iii) independent contractor/client; (iv) franchisor/franchisee.  The term “entity,”  within the context of the term Business Affiliate, includes, but is not limited to: (i) sole proprietorship; (ii) corporation; (iii) partnership; (iv) limited partnership; (v) joint venture; (vi) limited liability company; (vii) business trusts; (viii) fiduciaries of all types; (ix) all forms of financial and banking institutions; and, (x) federal, state and local governmental units

2.                    License Agreement - The term “License Agreement” means all of the terms set forth on this “User License Agreement for titlex.com User Site” document.

3.                    Loss - The term “Loss” shall mean the sums paid or to be paid by a user or a Business Affiliate, in cash or otherwise, to settle or compromise: (i) claims of any nature arising under information derived from the site; or, (ii) liability or perceived liability, of the user or Business Affiliate for materials derived from the site.  Loss shall include, but not be limited to, expenses, costs and attorney’s fees actually paid or incurred in connection with the investigation, negotiation, litigation or settlement of any manner.  Loss includes, but is not limited to, lost profits, indirect damages, consequential damages, special damages, punitive damages or otherwise.

4.                    Person - “Person” means a natural person or a Business Affiliate.

 

2.                    PURPOSE

titleX is providing this License Agreement to you to set forth the terms applicable to your use of the Site.   PLEASE READ ALL THE TERMS AND PROVISIONS OF THIS LICENSE AGREEMENT VERY CAREFULLY.

 

3.                    ACCEPTANCE OF LICENSE TERMS

1.                    Unconditional Acceptance

You understand that accessing or transmitting information, registering or otherwise participating in titleX constitutes and shall be deemed an unconditional acceptance by you of all the terms of this License Agreement. If you do not agree with all the terms of this License Agreement, you must not use or participate in titleX.

2.                    Owner Right to Modify

titleX reserves the right, at its sole discretion, to change, modify or add to this License Agreement, at any time, and without prior notice to you.

3.                    Minimum Age

You must be at least 18 years of age to register with titleX.

4.                    Information and Registration


By completing a registration for titleX, you agree that any and all information that you supply in the registration process and other information that titleX may require from time to time, is current, truthful, and complete.  titleX reserves the right to terminate your registration with titleX at any time or in the event that the information provided by you, including your e-mail address, is no longer current or accurate.  You agree to maintain only one active registration with titleX at all times and you certify that you currently have no other registration(s) with titleX.

 

4.                    CONTENT AND PROPERTY RIGHT PROTECTIONS

The content available through titleX is the property of titleX or its licensors and is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.  You agree that all content located at titleX is the sole property of titleX.  You understand and agree that the information in, or derived from titleX, including communications, photos, video, graphics and other material may not be copied, republished, redistributed, transmitted, altered, edited or exploited in any manner for any purpose, without notice to titleX and the prior express written permission of titleX.  titleX neither warrants nor represents that your use of materials displayed on the Site  will not infringe rights of third parties not owned by or affiliated with titleX.

 

5.                    ACCURACY

While titleX uses reasonable efforts to include accurate and up to date information in the Site, titleX makes no warranties or representations as to its accuracy.  titleX assumes no liability or responsibility for any errors or omissions in the content of the Site. titleX will not be responsible to you for any Loss suffered by you or your Business Affiliate.

 

6.                    USER NAME AND PASSWORD

You shall be the only authorized user of titleX through your User Name and Password.

 

7.                    TRADEMARKS

The trademarks, logos, and service marks (collectively the “Trademarks”) displayed on the Site are Trademarks of titleX and others.  Nothing contained on the Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Site without the written permission of titleX or such third party that may own the Trademarks displayed on the Site.  Your use of the Trademarks displayed on the Site, or any other content on the Site, except as provided in this License Agreement, is strictly prohibited.  You are also advised that titleX will aggressively enforce its intellectual property rights to the fullest extent of the law, including the seeking of criminal prosecution.

 

8.                    TRANSMISSIONS TO SITE

Any communication or material you transmit to the Site by electronic mail or otherwise, including any data, questions, comments, suggestions or the list is, and will be treated as, nonconfidential and nonproprietary.  Anything you transmit or post becomes the property of titleX or its affiliates and may be used for any purpose, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast and posting.  Furthermore, titleX is free to use any ideas, concepts, know-how, or techniques contained in any communication you send to the Site for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing using such information.  Through your usage of this Site, you may submit and/or titleX may gather certain limited information about you and your web site usage.  titleX is free to use such information for any purpose it deems appropriate, including, but not limited to: (i) creating customized web pages; (ii) marketing purposes; (iii) reporting to regulators and law enforcement agencies.

 

9.                    SITE LINKS

titleX has not reviewed any or all of the sites linked to the Site and is not responsible for the content of any off-site pages or any other sites linked to the Site.  Your linking to the Site, off-site pages or other sites is at your own risk and without the permission of titleX.


10.                  TECHNOLOGICAL INFORMATION RETRIEVAL TECHNIQUES

Retrieving information with robots or by any automated means, or by any other method of accessing or using the data and services provided on this Site other than through the methods provided on the Site are specifically prohibited.  The following are examples, which are not intended to be an exhaustive list, of prohibited actions: (1) screen scraping text data; (2) pulling images from the Site (in any format) to avoid the charge for a PDF version of the same image; and, (3) framing of the Site by another site; are all specifically prohibited without prior written notice to titleX and the prior written consent of titleX.

 

11.                  RISK OF LOSS

Your use of and browsing in the Site are at your risk.  Neither titleX, any of its agencies, nor any other party involved in creating, producing, or delivering the Site is liable for any direct, incidental, consequential, indirect, special or punitive damages arising out of your access to, or use of, the Site.  Without limiting the foregoing,  titleX also assumes no responsibility, and shall not be liable for, any damages to, or viruses that may infect, your computer equipment or other property on account of your access to, use of, or browsing in the Site on your downloading of any materials, data, text, images, video, or audio from the Site.

 

12.                  LIMITATIONS OF LIABILITY

1.                    General Limitations

titleX SHALL NOT HAVE ANY LIABILITY OR OBLIGATION TO YOU OR ANY THIRD PARTY (WHETHER CAUSED DIRECTLY OR INDIRECTLY) RELATING TO titleX, INCLUDING, BUT NOT LIMITED TO, (I) THE MATERIALS AND OTHER INFORMATION MADE AVAILABLE VIA titleX OR (II) THE INTERRUPTION, DELAY OR FAILURE IN THE TRANSMISSION, DELIVERY OR DISTRIBUTION OF THE SERVICES OR MATERIALS.

2.                    Sole Liability

 titleX’s SOLE LIABILITY TO YOU FOR ANY CLAIMS, NOTWITHSTANDING THE FORM OF SUCH CLAIMS (I.E. CONTRACT, NEGLIGENCE OR OTHERWISE), ARISING OUT OF YOUR USE OF titleX, SHALL BE TO USE titleX’s REASONABLE EFFORTS TO RESUME THE SERVICES AS PROMPTLY AS REASONABLY PRACTICABLE. 

3.                    Limitation on Remedies

IN NO EVENT SHALL titleX HAVE ANY LIABILITY FOR LOST PROFITS, INDIRECT, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. 

4.                    Liquidated Damages

IN NO EVENT SHALL titleX’s AGGREGATE LIABILITY ARISING OUT OF RELATING TO THIS AGREEMENT EXCEED FIVE THOUSAND DOLLARS ($5,000).

 

13.                  WARRANTIES

Everything on the Site is provided to you “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.  Please note that some jurisdictions may not allow the exclusion of implied warranties, so some of the above exclusions may not apply to you.    

 

14.                  ORIGINAL SOURCE DISCLAIMER


The original source of the content of the image and/or data collections available on this Site is the appropriate government office responsible for this information, whether purchased directly from the government office or a third party provider of such data.  The government offices, third party data providers, and titleX bear no responsibility for the integrity or accuracy of the data contained, either in its form initially provided or due to any documentation manipulation or reformatting of data that may occur.  The use of trademarks, logos or any other identification of government offices or third party data providers does not imply that such party supports or endorses any use made by titleX of data provided or of any other activity of titleX.

 

15.                  TITLE INSURANCE SPECIFIC PROVISIONS

1.                    Regulation of Title Insurance

In Texas, the Business of Title Insurance is in all respects totally regulated by the State of Texas in accordance with: (i) Article 9.01 et. seq. of the Texas Insurance Code; and, (ii) the Basic Manual of Rules, Rates and Forms for the Writing of Title Insurance in the State of Texas (hereinafter the “Basic Manual for Title Insurance”).  The Texas Insurance Code and the Basic Manual for Title Insurance set forth all of the statutory and regulatory requirements applicable to the Business of Title Insurance.  Pursuant to Article 9.01 of the Texas Insurance Code, the legislature of the State of Texas found that the Business of Title Insurance, both the direct issuance of policies and the reinsurance of assumed risk, of every type, should in all respects be totally regulated by the State of Texas.  The Texas Department of Insurance, acting pursuant to the delegation of authority contained in the Texas Insurance Code, has promulgated the Basic Manual for Title Insurance which contains: (i) all insuring forms and endorsements; (ii) rate rules for insurance coverage’s; (iii) procedural rules for insurance coverage’s; (iv) administrative rules for dealing with the Texas Department of Insurance; (v) non-policy coverage forms required to be used; (vi) claims procedures; and (vii) Texas Department of Insurance bulletins. Accordingly, all title insurance policies, and endorsements thereto, are issued on forms promulgated by the State of Texas.  The Basic Manual for Title Insurance, as adopted and enforced by the Texas Department of Insurance, specifically delineates the available title insurance coverage’s, and rates,  for Texas real estate transactions which must be insured in accordance with the Texas Title Insurance Act.

2.                    titleX.com Use Under the Title Insurance Regulations

Using the titleX.com site does not excuse the user from full and complete compliance with the Texas Insurance Code and the Basic Manual for Title Insurance.  If a user is not authorized to perform a function under the Texas Insurance Code or the Basic Manual for Title Insurance, the user cannot make use of the site to circumvent compliance with the Basic Manual for Title Insurance and the Texas Insurance Code.

3.                    Requirements for Examination of Title from Title Evidence From a Qualified Abstract Plant

It is illegal to write a policy or contract of title insurance unless the requirements of Article 9.34 of the Texas Insurance Code are satisfied.  Article 9.34 of the Texas Insurance Code requires four elements:

(1)            First Element - There must be compliance with the provisions of Article 9.30(B) of the Texas Insurance Code.

(2)            Second Element - The policy or contract of title insurance must be based on an examination of title made from title evidence prepared from an abstract plant owned, or leased and operated by a licensed Texas title insurance agent or direct operation for the county in which the real property is located.

(3)            Third Element - There must be a determination of insurability of title in accordance with sound title underwriting practices.


(4)            Fourth Element - The title evidence must be preserved and retained in the files of the title insurance company, direct operation or title insurance agent for a period of not less than fifteen (15) years after the policy or contract of title insurance has been issued.

The only circumstances where a title insurance company may directly issue its policy of title insurance based on OTHER THAN an examination of title made from title evidence prepared from an abstract plant owned, or leased and operated by a licensed Texas title insurance agent or direct operation for the county in which the real property is located is when the following elements have been satisfied:

(1)            First Element - No licensed Texas title insurance agent or direct operation exists for a county in which the real property is located; or

(2)            Second Element - If all licensed title insurance agents and direct operation for the county refuse to provide the title evidence within such reasonable time as determined by the Texas Department of Insurance and in compliance with the provisions of Article 9.30(B)(2).

4.                    Very Limited Circumstances When titleX.com Site May be Used to Produce Title Evidence

The titleX.com site may be used to produce title evidence for the issuance of a policy or policies of title insurance under the following limited circumstances:

(1)            The user has complied with Article 9.34 of the Texas Insurance Code.

(2)            The user maintains for fifteen (15) years, in a form readily available to titleX upon titleX’s request to the user, the following original written evidence:

(a)             a letter from an officer of a Texas title insurance company authorizing the user to obtain the “best title evidence available” pursuant to Article 9.34 of the Texas Insurance Code, by using the titleX.com site; and,

(b)            the user’s original signed certification to titleX that either:

(i)             no licensed title insurance agent or direct operation exists for the county in which the real property is located; or

(ii)            all licensed title insurance agents and direct operations for the county refused to provide the title evidence within the timeframe established by Procedural Rule P-25 of the Basic Manual for Title Insurance as promulgated by the Texas Insurance Commissioner.

5.                    Circumstances Where Site May be Used by Title Companies Involving Matters Other Than Preparing Title Evidence for Issuance of Title Insurance

There are a number of circumstances where a title company may make use of the titleX.com site and not violate this license agreement or the Texas Insurance Code.  The following examples are a non-exclusive list:


(1)            Title evidence has already been obtained from a title insurance agent or direct operation in compliance with Article 9.34 and the user is obtaining copies of the documents contained on the title evidence so provided.

(2)            The title insurance company is working a claim under a policy or policies of title insurance and it needs to gather title evidence concerning administration of the claim.

(3)            Where the title evidence will not be used, directly or indirectly, for the issuance of a policy or policies of title insurance or an endorsement thereto.

6.                    Penalties Under Texas Insurance Code for Wrongful Use of titleX.com Site

 

16.                  TERMINATION

You agree that we may, in our sole discretion, terminate or suspend your access to all or part of titleX for any reason, including, without limitation: (i) breach of this License Agreement or any subsequent modifications; or, (ii)  attempted assignment of your membership by you.  Any suspected fraudulent, abusive or illegal activity is grounds for termination of your membership and may be referred to appropriate law enforcement authorities or governmental regulatory body.  titleX shall not be liable to you or any third party for any claims related to your termination from titleX.

 

17.                  GENERAL PROVISIONS & CONSTRUCTION OF LICENSE AGREEMENT

A.             Assignment. 

This License Agreement is not assignable by you or any Business Affiliate.

B.             Counterparts.

This License Agreement may be accepted electronically in as many counterparts as may be required and it shall not be necessary that the signature of, or in behalf of, any  party appear on any electronically accepted  counterpart.

C.             Severability. 

If any one or more of the terms of this License Agreement shall to any extent be adjudged invalid, unenforceable, void, or voidable for any reason, each and all of the remaining terms of this License Agreement shall not be affected thereby and shall be valid and enforceable to the full extent permitted by law.

D.             Headings.

The subject headings of the paragraphs and subparagraphs of this License Agreement are included for the purpose of convenience only, and shall not affect the construction or interpretation of any of their provisions.

E.             Construction.

Any ambiguities in this agreement shall be construed in favor of titleX.

F.             Capitalization.

Generally, defined terms in this agreement begin with a capital letter.  However, where the context requires, a term which is not capitalized may also be construed as a defined term.

G.             Time of the Essence. 

Time shall be of the essence with respect to each and every term of this Agreement.

H.             Tense.

 Where the context requires, the singular shall include the plural and the plural shall include the singular.                                                  

I.              General Terms.

The use of specific terms shall not be construed to limit the construction or meaning of general terms. 

J.              Entire Agreement. 


This License Agreement constitutes the entire  agreement between the Parties and supersedes all prior discussions, understandings or agreements.  This Agreement shall not be amended or modified except by a subsequent written License Agreement posted to the Site by TitleX or by separate written agreement  executed by titleX.

K.             Attorney Fees.

 If titleX shall institute an action against a User and/or Business Affiliate  for breach of this License Agreement, title X shall be entitled to collect from the User all charges, expenses, fees, court costs and actual  attorney fees to incurred by titleX.

L.             Governing Law. 

To the extent necessary, all aspects of this License  Agreement shall be construed, enforced, and governed according to and by the laws of the United States of America, and, where state law is necessary to the implementation of this License Agreement the laws of the State of Texas.

M.            No Third Party Beneficiary. 

This License Agreement is for the sole benefit of titleX and the User and shall not be construed or deemed to be made for the benefit of any third party or parties.

N.             Waiver and Future Compliance. 

A waiver of any provision of this License Agreement by titleX shall not be construed to be a waiver of compliance with such provision in the future.

O.             General Law Compliance.

User agrees to comply with all federal, state and local laws applicable to: (i) the use                                                of the Site; and, (ii)  the use of the data and/or materials obtained from the Site in any transaction or transactions where the data or materials are used.

P.             Notices. 

All notices permitted or required to be given under this License Agreement shall be in writing, addressed as shown below, and may be: (i) personally delivered; or, (ii) delivered by express courier service; or, (iii) mailed by certified or registered United States Mail.  The effective date of notice shall be: (i) the date of delivery, for personal or express courier deliveries {which date of delivery may be evidenced by a receipt signed by an  officer of the company being noticed}; (ii) the date shown on the "return card" for certified or registered mail if delivery is by certified or registered mail.  Said notices shall be addressed as follows:

TitleX. inc, a Texas Corporation

Post Office Box 2458

Palestine, Texas 75802-2458