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1. GENERAL

These Bi-Directional SMS Customer Terms and Conditions (these “SMS Terms”) form an integral part of the Master Agreement between Customer and Qualia, and are incorporated by reference (the “Agreement”). These SMS Terms supplement the Agreement, including any Order Forms, and apply to Customer’s activation and use of bi-directional short message service features (the “SMS Features”) within Qualia’s proprietary cloud-based title production platform (the “Platform”). Any capitalized terms used but not defined in these SMS Terms have the respective meanings given to them in the Agreement. All other terms of the Agreement remain in full force and effect.

By clicking “Sign up” or “I Agree” or otherwise indicating Customer’s assent or by accessing or otherwise using the SMS Features, Customer’s account administrator, acting with full authority on behalf of Customer, acknowledges and agrees to be bound by these SMS Terms (including any and all terms and policies referenced herein). If Customer does not agree to these SMS Terms, Customer must not use, access, or enable the SMS Features.

2. ACTIVATION

2.1 The SMS Features. The SMS Features enable (a) the exchange of text messages via short message service (SMS) between Customer’s instance of the Platform and SMS-enabled mobile devices of Customer’s business contacts, including, without limitation, buyers, sellers, real estate agents, Customer’s internal colleagues, and lenders (collectively, “Customer Contacts”), related to real estate transactions managed by Customer through the Platform, and (b) other related functionalities and features within the Platform.

2.2 Registration and Activation. Activation of the SMS Features for use by Customer’s Authorized Users must be done by Customer’s account administrator within Customer’s admin console within the Platform. Customer agrees and acknowledges that, in order to complete the registration and activation process for the SMS Features, Customer may be required to provide certain information to Qualia, or directly to Qualia’s third-party SMS provider, that is required for completing registration within the third-party SMS provider’s platform or system. Customer agrees to promptly update any such information as necessary.

3. PERMITTED USE

3.1 Permitted Use. Subject to the restrictions set forth in Section 6 (Prohibited Uses), the SMS Features are intended solely for professional business communication between Customer (acting through its Authorized Users) and Customer Contacts concerning real estate transactions under Customer’s management within the Platform (“Permitted Use”).

3.2 Authorized Users. Customer is responsible and liable for its Authorized Users’ acts and omissions while accessing and using the SMS Features, including any breach of these SMS Terms. Customer and its Authorized Users may only use the SMS Features for the Permitted Use, and any and all use of and access to the SMS Features by Customer and its Authorized Users must at all times comply with these SMS Terms, the Agreement, and the SMS Provider Policies (defined and incorporated by reference below).

3.3 Third-Party SMS Provider. Customer acknowledges and agrees that Qualia may, in its sole discretion, engage third-party SMS provider(s) to provide elements of the SMS Features, including, without limitation, the generation and provisioning of phone numbers for Customer for purposes of using the SMS Features and processing opt-out requests (e.g. “STOP”) submitted by Customer Contacts. Customer further acknowledges and agrees and that it and its Authorized Users will comply at all times with Qualia’s third-party SMS provider’s Acceptable Use Policy (available at https://www.twilio.com/en-us/legal/aup) and Messaging Policy (available at https://www.twilio.com/en-us/legal/messaging-policy) (collectively, “SMS Provider Policies”) while accessing and/or using the SMS Features. The SMS Provider Policies may each be updated from time to time without notice to Customer, and Customer is responsible for regularly reviewing the SMS Provider Policies.

4. CUSTOMER OBLIGATIONS

4.1 Customer Compliance. CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING THAT ITS USE, AND ITS AUTHORIZED USERS' USE, OF THE SMS FEATURES COMPLIES WITH THE TERMS OF THESE SMS TERMS, THE AGREEMENT, ALL APPLICABLE LAWS, REGULATIONS, INDUSTRY BEST PRACTICES, AND THE SMS PROVIDER POLICIES.

4.2 Representations and Warranties. Customer represents and warrants that:

1. Customer will use the SMS Features in strict compliance with all applicable federal, state, and local laws and regulations, including, without limitation, the Telephone Consumer Protection Act (TCPA);
2. Customer will secure and maintain legally sufficient consent from each Customer Contact prior to sending any SMS text message to that Customer Contact using the SMS Features, even for automated transactional messages, as required by TCPA and other applicable laws and in compliance with Section 4 of these SMS Terms; and
3. Customer will not send any SMS messages to any Customer Contact or any third party who has not provided requisite consent.

4.3 Customer Obligations. Customer agrees that:

1. under no circumstances will Customer use the SMS Features for any marketing (including, without limitation, general sales announcements, limited-time offers, solicitation of new business, and more of the like);
2. Customer will not communicate or otherwise transmit sensitive financial information (e.g. social security numbers, bank account numbers, or credit card details) using the SMS Features; and
3. Customer will comply with all other obligations hereunder as well as those set forth in the SMS Provider Policies.

5. OPT-OUT REQUESTS

Pursuant to Customer’s obligations set forth in Section 4 (Customer Obligations), Customer must honor and promptly process opt-out requests (such as “STOP” or “UNSUBSCRIBE”) received through any reasonable means used by Customer Contacts. Customer agrees and acknowledges that Qualia’s third-party SMS Provider may automatically process standard-opt out requests from Customer Contacts. If Customer receives any opt-out notification, whether from a Customer Contact or Qualia’s third-party SMS provider notifying on behalf of such Customer Contact, Customer shall not send any further SMS text messages via the SMS Features to such Customer Contact unless and until such Customer Contact elects to opt in (e.g. by texting “START”) to resume SMS text message communications with Customer via the SMS Features. In general, as part of securing and maintaining Customer Contacts’ requisite consent, we highly recommend that you clearly inform and regularly educate Customer Contacts about their ability to opt out of receiving text message communications from you and your Authorized Users, including methods to initiate such opt out requests.

6. PROHIBITED USES

Customer shall not, and shall ensure its Authorized Users do not, use the SMS Features for any purpose that:

1. is not a Permitted Use;
2. violates any applicable law, regulation, the Agreement, these SMS Terms, or the SMS Provider Policies;
3. constitutes sending unsolicited messages (spam) or messages to Customer Contacts who have not provided requisite consent or have opted out of receiving messages from Customer;
4. is fraudulent, deceptive, misleading, abusive, harassing, libelous, or harmful;
5. involves phishing, collecting sensitive information inappropriately, or distributing malware;
6. attempts to bypass opt-out mechanisms or conceal the sender's identity or purpose of the message; or
7. generates an excessive volume of messages inconsistent with the intended transactional use case.

7. DISCLAIMER OF WARRANTIES

THE SMS FEATURES ARE PROVIDED "AS IS" AND "AS AVAILABLE." QUALIA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. QUALIA DOES NOT GUARANTEE UNINTERRUPTED, ERROR-FREE, OR SECURE OPERATION OF THE SMS FEATURES. MESSAGE DELIVERY IS SUBJECT TO CARRIER NETWORK AVAILABILITY AND PERFORMANCE AND OTHER FACTORS BEYOND QUALIA’S OR QUALIA’S SERVICE PROVIDERS’ REASONABLE CONTROL. QUALIA IS NOT RESPONSIBLE FOR THE FUNCTIONALITY, RELIABILITY, POLICIES, OR ACTIONS OF ITS THIRD-PARTY SMS PROVIDER(S). QUALIA DOES NOT MONITOR OR CONTROL CUSTOMER'S OR ITS AUTHORIZED USERS’ MESSAGE CONTENT AND IS NOT RESPONSIBLE FOR IT. FURTHERMORE QUALIA SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE ACTIONS AND OMISSIONS BY CUSTOMER, BY CUSTOMER’S AUTHORIZED USERS, OR BY QUALIA’S THIRD-PARTY SMS PROVIDER(S).

8. SUSPENSION AND TERMINATION

Qualia reserves the right, without limiting its other rights or remedies, to suspend or terminate, in Qualia’s sole discretion, Customer's access to the SMS Features, in whole or in part, immediately and without notice, if:

1. Customer or its Authorized Users breach these SMS Terms, the Agreement, and/or the SMS Provider Policies;
2. Customer's use of the SMS Features results in excessive complaints, opt-outs, or carrier filtering/blocking;
3. Qualia determines, in its reasonable discretion, that either the SMS Features or Customer's use of the SMS Features violate applicable law, pose a security risk, infringe on the rights of others, or negatively impact the Platform, Qualia’s network, any of Qualia’s third-party service provider’s network, or carrier relationships; and/or
4. required by law, regulation, court order, or competent authority, or requested by a third-party SMS provider or a carrier.

9. INDEMNIFICATION

9.1 Customer Indemnification. In addition to and without limiting a Party’s indemnification obligations set forth in the Agreement, Customer hereby agrees to indemnify, defend, and hold harmless Qualia, its affiliates, officers, directors, employees, agents, service providers (including, without limitation, Qualia’s third-party SMS providers), and licensors (collectively, “Qualia Parties”) from and against any and all liabilities, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and costs) suffered or incurred by Qualia or Qualia Parties in connection with any claims, proceedings or causes of action brought by a third party (including, without limitation, any Customer Contacts) arising from or related to: (a) Customer’s act or omission in breach of its representations, warranties, and/or obligations set forth in these SMS Terms, (b) Customer’s breach of Section 3 of these SMS Terms, including Customer’s act or omission in violation of the SMS Provider Policies, (c) Customer’s failure to secure and maintain requisite consent from Customer Contacts as required hereunder, or (d) any access to or use of the SMS Features by Customer or by its Authorized Users or under Customer’s account.

9.2. Indemnification Procedure. The indemnification procedure applicable to indemnifying and indemnified parties is governed by the indemnification procedure set forth in the Agreement.

10. MODIFICATION

Qualia may modify these SMS Terms from time to time by posting the updated terms within the Platform or providing other reasonable notice. Customer's continued use of the SMS Features after the effective date of any such modifications constitutes Customer’s acceptance of the modified SMS Terms. If Customer does not agree to the modified SMS Terms, its sole remedy is to immediately cease using the SMS Features.

11. WAIVERS OF LIABILITY

11.1 WITHOUT LIMITING THE LIABILITY LIMITATIONS SET FORTH IN THE AGREEMENT, IN NO EVENT SHALL QUALIA OR QUALIA PARTIES BE LIABLE FOR LOST PROFITS OR BUSINESS, LOSS OF GOODWILL, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR FOR ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER SUCH DAMAGES ARISE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE AND REGARDLESS OF WHETHER QUALIA IS ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.

11.2 EXCEPT AS EXPLICITLY DESCRIBED HEREIN AND WITHOUT LIMITING ANY OTHER TERMS OF THE AGREEMENT, CUSTOMER AGREES THAT IT ASSUMES ALL RISK RELATED TO ITS USE OF THE SMS FEATURES, AND QUALIA AND QUALIA PARTIES WILL NOT BE LIABLE FOR ANY DAMAGE OR LOSS CUSTOMER MAY INCUR RELATED TO ITS ACCESS TO, OR USE OF, THE SMS FEATURES. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY QUALIA, OR ANY OTHER PERSON ON QUALIA’S BEHALF.

12. SURVIVAL

The sections concerning disclaimers, waivers of liability, indemnification, representations and warranties, and compliance obligations shall survive any termination or expiration of these SMS Terms and/or the Agreement.