1.1.1. “Services” as used herein refers to the suite of services offered by PREAPP as listed at preapp1003.com including, but not limited to, those offered through PREAPP, its Apps, its App Services, the Website, and the Website Services through which it provides website and Internet based data capture and storage that enable the exchange of information, via the internet and mobile communications devices, from or through actual and potential mortgage borrowers for use in applying for a mortgage; and obtaining access to the Website or its features not generally available to the public by use of a Company authorized and issued user name and password.
1.1.2. “Account” means “PREAPP 1003 Account.”
1.1.3. “Apps” means any applications developed by PREAPP.
1.1.4. “App Services” means any content and services provided by PREAPP through its Apps.
1.1.5. “Applicant” as used herein refers to an MLO customer.
1.1.6. “Consumer” means any individual that uses any of the PREAPP Services. Where applicable, the term “Consumer” shall encompass all PREAPP Customers.
1.1.7. “Legal Fees” means any attorney’s fees, paralegal fees, costs, and/or expenses related thereto.
1.1.8. “MLO” or “you” as used herein means the Mortgage Loan Originator identified on the registered PREAPP 1003 account as well as any of its predecessors, successors, parents, subsidiaries, divisions, projects, affiliates, related entities, assigns, and/or any of their current or former representatives, officers, directors, agents, or strategic partners.
1.1.9. “PREAPP” means PreApp LLC as well as any of its predecessors, successors, parents, subsidiaries, divisions, projects, affiliates, related entities, assigns, and/or any of their current or former representatives, officers, directors, agents, or strategic partners.
1.1.10. “Software” means any necessary software used in connection with the Services.
1.1.11. “Website” means all of the content, information and services (in any format whatsoever) accessible through the World Wide Web at the domain name preapp1003.com.
1.1.12. “Website Services” means the services provided by PREAPP through the Website at the domain name preapp1003.com and any of our other websites that may be used from time to time.
2.1 MLO Responsibilities. MLO agrees that MLO will not receive an application (as defined in the Truth in Lending Act, the Real Estate Settlement Procedures Act, the Home Mortgage Disclosure Act, any other state or Federal statute or any rule or regulation promulgated under any of the foregoing) via the Service, and that its non-binding preapprovals are not intended to be official quotes or loan applications.
2.2 Third-party Providers. The Service may integrate with products or services provided by third parties with whom MLO has written or other agreements. MLO’s rights and responsibilities with respect to such third parties are governed by such agreements and applicable law, and any disputes directly or indirectly related to such agreements shall be between MLO and the third party and shall not include PREAPP. PREAPP assumes no responsibility for any defect in a product or service provided by such third parties or breach of agreements between MLO and such third parties. Notwithstanding the foregoing, under no circumstances is PREAPP obligated to provide instructions to, receive or store information or documentation transmitted by such third party service providers, or transmit data, documentation or other information to such third parties.
3.1. PREAPP reserves the right to choose the forms of payment accepted for the Services, to refuse select forms of payment, and to refuse service to anyone.
3.2. PREAPP presently uses credit cards to accept payments from MLOs. PREAPP reserves the right to add or remove particular third parties through whom it will accept payments.
3.3. Pricing. Prices remain subject to change without notice.
3.4. Insufficient Funds and Chargebacks. Please note that all payments to PREAPP go through a third party. You may be responsible for various charges and/or penalties implemented by these third parties for any insufficient funds or chargebacks. Please review the Terms of Service for the third party companies for more information.
3.5. Timeliness of Payments. Payments must be made at the time of purchase. You (and you alone) are responsible for all charges associated with connecting to the Service and/or PREAPP.
3.6. Recurring Charges. You may choose to make monthly or periodic charges on an automatic recurring basis. Should you choose to do so, you authorize PREAPP to make such charges using the form of payment specified in your account preferences or settings.
4.1. PREAPP will provide services through which customers may communicate with PREAPP by text or short code messaging through the PreApp 1003 program.
4.2. Customers can text PREAPP to 33655 and it will provide a web link for them to view PREAPP’s website.
4.3. Customers who opt into PreApp 1003 will only get one text alert. No messages text will be sent after that.
4.4. There are no premium charges for joining our PreApp 1003 message Alerts service. However, message and data rates may apply.
4.5. To opt-out of the PreApp 1003 Alerts program, a subscriber can send or text STOP, END, QUIT, CANCEL or UNSUBSCRIBE to 33655. An unsubscribe message will be sent to their number confirming the cancellation, but no more messages will be sent after that one.
4.6. For support or information about PreApp 1003 Alerts service, anyone can send or text HELP to 33655. Optionally, one may email email@example.com or call toll free (888) 652-6515.
4.7. Supported Carriers. Alltel, AT&T, Cincinnati Bell, Dobson Cellular Systems, Inter Op, MetroPCS®, Nextel Communications, Sprint PCS, T-Mobile®, U.S. Cellular®, Verizon Wireless, and Virgin Mobile U.S. T-Mobile® is not liable for delayed or undelivered messages.
4.8. Privacy Focused.
4.8.1. PreApp 1003 Alerts’ top priority is the privacy of its users. The following is provided to address any concerns you may have.
4.8.2. PreApp 1003 will never, under any circumstances, sell or distribute your cell phone number to third parties or PreApp 1003 clients for whom you have not approved.
4.8.3. PreApp 1003 will never distribute any personal information about you, including your phone number, name, billing information or any other piece of identifying information.
4.8.4. If any has any questions, they can call (888) 652-6515 or send an email to firstname.lastname@example.org
5. CHANGES TO SERVICES.
5.2. PREAPP may update its software and/or code, in whole or in part. These updates may require your computer to install additional third party software.
6.1. PREAPP reserves the right to change the prices for any of the PREAPP Services including, but not limited to, any prices associated with subscription service plans at any time. Should PREAPP change any pricing, PREAPP shall provide its existing PREAPP Customers with at least thirty (30) days notice.
6.2. Method of Payments. To purchase PREAPP Services, you must provide PREAPP with a valid credit card or checking account debit information. PREAPP presently accepts payments from PREAPP Customers using a secure connection. PREAPP reserves the right to choose the forms of payment accepted for PREAPP Services, to refuse select forms of payment, to refuse service to anyone, and to add or remove particular third parties from whom it will accept payments.
6.3. Advance Billing.
PREAPP bills in advance for PREAPP Services on a recurring basis.
PREAPP may, in its sole discretion, provide you the option to pay for the entire subscription service plan in one or multiple advance payments, depending on your payment method, account history, and/or account preferences.
By choosing your subscription service plan, method of payment, and applicable billing cycle, you authorize PREAPP to use the form of payment specified in your account preferences or settings to bill you automatically in advance for the chosen PREAPP Services on a recurring basis for each applicable billing cycle until your account has been cancelled and the applicable subscription plan has concluded.
Should you decide to cancel your account, your account will be effectively cancelled after the conclusion of your then-existing service plan.
6.4 Renewals. For the convenience of its PREAPP Customers, PREAPP automatically renews subscription plans.
6.5 No Refunds. PREAPP does not refund purchased services. Consequently, there will be no refunds for periods where PREAPP Services were unused should your account be cancelled including, but not limited to, period of dormancy or time remaining on subscription plans. Moreover, should you enter into a subscription plan wherein you make monthly payments, you agree to make monthly payments for the entire term of your subscription plan whether you use or cancel the PREAPP Services prior to the expiration of your subscription. Consequently, PREAPP cannot cancel or refund monthly payments associated with subscription plans.
6.6 Timing of Payments. Payments must be authorized and/or made at the time of purchase. Where you enter into a subscription plan with monthly or periodic payments, the payments will be made automatically in advance of each month or period.
6.7 Taxes and Other Excluded Fees. Payments for PREAPP Services do not include taxes, levies, withholdings, or duties imposed by taxing authorities or other applicable third parties. You are responsible for the payment of all such taxes, levies, withholdings or duties.
6.8 Insufficient Funds and Chargebacks. PREAPP processes all payments to it through a third party. Should your payments be cancelled or reversed because of insufficient funds or chargebacks, you will be responsible for any charges and/or penalties implemented by these third parties to you and/or PREAPP.
7. INDEMNIFICATION BY MLO
7.1. MLO agrees to indemnify, hold harmless and defend PREAPP from and against any and all judgments, liabilities, damages, losses, expenses and costs (including, but not limited to, court costs and legal fees) incurred by and for which PREAPP provides notice to Client within thirty (30) days of such claim which relate to the violation of any third party’s copyright or proprietary rights arising in connection with the provision of Professional Services where such violation arises from PREAPP’s reliance on Client’s instructions or specifications or where Client or its agents modify any aspect of the results of the Professional Services.
8. INTELLECTUAL PROPERTY
PREAPP Services and any necessary software used in connection with the PREAPP Services (“Software”) contain proprietary and confidential information protected by applicable intellectual property and other laws. PREAPP or its licensor holds all rights, title and interest in all Software and all intellectual property, including other rights related to intangible property, unless otherwise indicated. No title or interest in such intellectual property rights is being transferred to you and you agree to make no claim of interest in any such Software. Except as expressly authorized by PREAPP or our advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Software, in whole or in part.
PREAPP shall possess and retain all copyrights to content created by PREAPP (“PREAPP Content”). PREAPP may use content obtained from third party sources. All rights to such third party content remains with the owners of such third party content.
The copyrighted materials within the Services include, but are not limited to, the text, design, software, images, graphics, source code, and the content on the website and any applications. You are authorized to view the information available thereon for your informational purposes only. You may not copy, republish, redistribute, transmit, participate in the transmission of, create derivatives of, alter, edit or exploit in any manner any material including by storage on retrieval systems.
You agree to not use PREAPP Trademarks or any mark that is confusingly similar to such trademarks. Nothing on or through the PREAPP Services should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of PREAPP Trademarks. PREAPP reserves the right to restrict the use of its name, system, logo, and trademarks. You agree to comply with any and all such restrictions.
For purposes of displaying your Account and content associated with it, you permit PREAPP to use your name and trademark, if applicable. You also allow PREAPP to use your name and trademark in a manner consistent with fair use. Upon receiving written request consistent with Notices provided herein, PREAPP will remove your name and/or trademark except as necessary to continue providing you with PREAPP Services.
All other companies’ names, brand names and product names are trademarks or trade names of their respective owners who may or may not endorse, be affiliated with or connected to PREAPP. You further acknowledge and agree that content contained in sponsor advertisements or information presented to you through the PREAPP Services or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
8.3 Patents. Certain aspects of the Services are the subject of one or more pending patent applications.
8.4 Trade Dress. All page headers, custom graphics, button icons, form designs including color selections and scripts constitute the trade dress of Company, whether or not so registered in any particular jurisdiction.
8.7 The foregoing paragraphs relating to intellectual property in no way transfers any of MLO’s rights or interest in their own intellection property to PREAPP.
9.1 PREAPP respects the intellectual property rights of others and prohibits anyone from uploading, posting or otherwise transmitting through PREAPP Services any materials that violate another party’s intellectual property rights. When PREAPP receives proper Notification of Alleged Copyright Infringement as described herein, it promptly removes or disables access to the allegedly infringing material and terminates the accounts associated therewith as described herein in accordance with the Digital Millennium Copyright Act (“DMCA”).
9.2 If you believe that any material on or through the PREAPP Services infringes upon any copyright which you own or control, you may send a written Notification of Alleged Copyright Infringement to our designated DMCA Agent identified below.
9.3 If you believe that your own copyrighted work is accessible on or through the PREAPP Services in violation of your intellectual property rights, you may provide our designated DMCA Agent with a Notification of Alleged Copyright Infringement as set forth in the DMCA that contains substantially the following information:
(A). Identify in sufficient detail the copyrighted work or intellectual property that You claim has been infringed so that PREAPP can locate the material;
(B). Identify the URL or other specific location on the Website or PREAPP Services that contains the material that You claim infringes your copyright described in Item 5.3(A) above;
(C). Provide the electronic or physical signature of the owner of the copyright or a person authorized to act on the owner’s behalf;
(D). Include a statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
(E). Include a statement by You that the information contained in your notice is accurate and that You attest under the penalty of perjury that You are the copyright owner or that You are authorized to act on the copyright owner’s behalf; and,
(F). Include your name, mailing address, telephone number and email address.
9.4 You may send your Notification of Alleged Copyright Infringement to our designated DMCA Agent by fax, mail, or E-Mail as set forth below:
9.5 PREAPP has adopted a policy of terminating, in appropriate circumstances and at its sole discretion, members who are deemed to be repeat infringers. PREAPP may also in its sole discretion limit access to the PREAPP Services and/or terminate the use thereof by anyone who infringes any intellectual property rights of others, whether or not there is any repeat infringement.
10. RESALE OF SERVICE Unless otherwise agreed to in writing by PREAPP, you agree not to reproduce, duplicate, copy, sell, resell, outsource, reverse engineer or exploit any portion of, the use of, or access to PREAPP Services.
11. Unauthorized Access or Circumvention. PREAPP takes the privacy of its Customers very seriously. In this context, it also takes seriously any effort to circumvent the technology it has implemented to protect the privacy and the security of information on its servers. Should any person attempt to obtain or obtain unauthorized access to PREAPP servers and/or should any PREAPP Customer attempt to exceed or exceed his/her/its authorized access to PREAPP servers, PREAPP shall consider such conduct to violate the federal Computer Fraud and Abuse Act, 18 U.S.C. § 1030, which provides for civil and criminal penalties. Additionally, depending on the circumstances, such conduct could also violate the Electronic
Communications Privacy Act, 18 U.S.C. § 2510, et eq. and the Stored Communications Act, 18 U.S.C. § 2701, et seq., both of which also provide for civil and criminal penalties.
12. LIMITED LIABILITY
12.1. TO THE FULL EXTENT ALLOWED BY APPLICABLE LAW, THE PARTIES MUTUALLY WAIVE ALL CLAIMS AND RIGHTS OF RECOVERY AGAINST EACH OTHER FOR ANY SPECIAL, EXEMPLARY, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING FROM OR RELATED TO THE SUBJECT- MATTER OF THIS AGREEMENT. CONSEQUENTIAL AND INDIRECT DAMAGES INCLUDE LOSS OF DATA, USE, INCOME, ANTICIPATED PROFITS ON UNPERFORMED WORK OR OTHER CONTRACTS OR PROJECTS, LOSS OF BUSINESS, GOODWILL OR REPUTATION OR OTHER CONSEQUENTIAL OR INDIRECT DAMAGES AS DEFINED BY APPLICABLE LAW.
12.2. TO THE FULL EXTENT ALLOWED BY APPLICABLE LAW, PREAPP’S TOTAL LIABILITY TO MLO FOR ANY AND ALL INJURIES, CLAIMS, LOSSES, EXPENSES, OR DAMAGES WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE SUBJECT MATTER OF THIS AGREEMENT FROM ANY CAUSE OR CAUSES OF ACTION INCLUDING BUT NOT LIMITED TO PREAPP’S NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID BY MLO TO PREAPP UNDER THIS AGREEMENT DURING THE PREVIOUS 12 MONTH PERIOD IN WHICH SUCH CLAIM ARISES.
13. DISCLAIMERS OF WARRANTIES
13.1. THE SERVICES ARE PROVIDED TO YOU “AS IS”, “WITH ALL FAULTS”, “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW.
13.2. PREAPP SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING:
13.2.1. ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, RELIABILITY, COMPLETENESS, CAPABILITIES, SECURITY, TIMELINESS, USEFULNESS AND/OR CONTENT OF:
18.104.22.168. PREAPP SERVICES; AND,
22.214.171.124. THE ABILITY OF THE SERVICES TO INTEROPERATE OR INTEGRATE WITH ANY THIRD PARTY PRODUCTS SUCH AS SOFTWARE OR HARDWARE;
13.2.2. ANY WARRANTIES RESULTING FROM A COURSE OF DEALING OR USAGE OF TRADE;
13.2.3. ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE;
13.2.4. ANY WARRANTIES OF NON-INFRINGEMENT; AND
13.2.5. ANY WARRANTIES REGARDING THE RIGHTS AND TITLE OF PREAPP IN THE SERVICE, OR ANY WARRANTY THAT THE SERVICES DO NOT INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
13.3. PREAPP IS NOT LIABLE FOR ANY INFORMATION, SOFTWARE OR OTHER PRODUCTS THAT ARE DOWNLOADED FROM SERVICES BY YOU OR INSTALLED ON YOUR COMPUTER. AS SUCH, PREAPP IS NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
13.4. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
13.5. PREAPP MAKES NO WARRANTY THAT THE SERVICES WILL BE ERROR- FREE, AVAILABLE WITHOUT INTERRUPTION, TIMELY, OR MEET YOUR REQUIREMENTS.
13.6. PREAPP WILL MAKE REASONABLE EFFORTS TO MAINTAIN THE SERVICES. HOWEVER, WE ARE NOT RESPONSIBLE FOR ANY DAMAGE, LOSS OF DATA, CUSTOMER INFORMATION OR VENDOR DATA, REVENUE, OR OTHER HARM TO BUSINESS ARISING OUT OF DELAYS, MISDELIVERY OR NONDELIVERY OF INFORMATION, RESTRICTION OR LOSS OF ACCESS, BUGS OR OTHER ERRORS, UNAUTHORIZED USE DUE TO YOUR SHARING OF ACCESS TO THE PREAPP SERVICES, OR OTHER INTERACTION WITH THE SERVICES. YOU ARE RESPONSIBLE FOR MAINTAINING AND BACKING-UP YOUR DATA AND INFORMATION THAT MAY RESIDE ON THE SERVICES. WE DO NOT WARRANT THAT (I) THE SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR- FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
14. EXCLUSIONS AND LIMITATIONS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
15. GENERAL PROVISIONS
15.1. Acknowledgement. You acknowledge that you have read, understood, and agreed to all terms contained herein.
15.3. Arbitration Clause.
15.3.2. The arbitration will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures, as amended by these Terms of Service. If there is a hearing, the arbitrator will conduct that hearing by remote electronic means, for example, a video conference or a conference telephone call. Conduct of administered arbitration by electronic means, including any hearing, is intended to be in lieu of in person proceedings. However, if any of the arbitrator, you or Company so requests, an in-person meeting may be conducted in lieu of by electronic means. Any such in- person meetings will be held at a location in Houston, Texas. If you, Company and the arbitrator are unable to agree upon a mutually convenient location in Houston, Texas; then the arbitrator will decide the location in Houston, Texas. The arbitrator’s decision will follow these Terms of Service and will be final and binding. The arbitrator will have the authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of these Terms of Service, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed by and enforced in any court having jurisdiction. The courts of the state of Texas (venue in Houston, Texas) will have exclusive jurisdiction to settle any claim, dispute or matter of difference that may arise out of or in connection with the arbitration. Nothing in these Terms of Service preclude you from bringing issues to the attention of appropriate local, state or federal government agencies. If applicable law allows, such agencies may be able to seek relief on your behalf.
15.4. Class Action Waived. You expressly waive a right to join any class action.
15.5. Email Communications. Please note that electronic messages you send us by electronic mail may not be secure. Consequently, we recommend that you do not send any confidential information to us by electronic mail. If you choose to send confidential information to us by electronic mail, you accept all risks that such information may be intercepted by a third party.
15.7. Force Majeure. Company is not liable for failing to perform under these Terms of Service by the occurrence of any event beyond its reasonable control, including a labor disturbance, Internet outage or interruption of services, a communications outage, failure of a communications service provider, fire, terrorism, natural disaster, war, or cyberattack.
15.15. Survival. The following sections having the following headings survive any termination of these Terms of Service: Disputes, Warranty Disclaimer, Indemnification, Limitation of Liability. Other sections, by their nature, may also survive any termination of these Terms of Service including, but not limited to, our privacy and security policy, any terms relating to confidentiality, and all terms associated with the Financial Modernization Act or Gramm-Leech-Bliley Act.
15.16.1. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
15.16.2. The failure of PREAPP to insist, in any one or more instances, upon the performance of any of the terms of this Agreement or to exercise any right hereunder shall not be construed as a waiver of the future performance of any such term or the future exercise of such right.
15.18. Restricted Locations.
15.18.1. The Services may not be accessed, viewed, downloaded or otherwise used in any country or location in which doing so would or could be deemed a violation of any law, regulation, rule, ordinance, edict or custom.
15.18.2. The Services may not be used within and are not directed at any country or region currently embargoed by the United States. By using the Services, you agree to the foregoing and you warrant that you are not located in, or under the control of, or a national or resident of any such country or region.
15.18.3. You agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
15.19.2. PREAPP shall provide notice of such changes by posting the revised policies to the applicable PREAPP owned websites and by either (a) providing you a message the next time you login into your account or (b) sending you electronic mail to the email address you provided when creating your account.