These Nexsys® Terms of Sale (these “Terms of Sale”) constitute a binding legal contract between you and Nexsys Technologies LLC. (“Nexsys”) the owner and operator of the Website. By accepting an order for a real estate related service (“Orders”) placed by Lenders via the Website for any of the services offered by Nexsys through this Website, including but not limited to, the Nexsys Order Service and the Nexsys Closing Agent Portal (the “Services”), you signify your acceptance of these Terms of Sale, as it may be amended or supplemented from time to time. Changes to these Terms of Sale will be effective when posted.
Nexsys is providing the Services via the Website to enable Lenders subscribed to the Services to submit Orders to you. Registering on this site does not guarantee that you will receive Orders. You are responsible for invoicing and collecting payment from each Lender for the Orders placed through the Services. Nexsys and the Website and Services only facilitate Orders; Nexsys is not liable for non-payment by any Lender.
You may place or receive an Order on our Website at anytime. Your receipt of an electronic or other form of Order confirmation, whether from us or any third party, does not signify our acceptance of your Order, nor does it constitute confirmation of our offer to sell. We reserve the right at any time after receipt of your order to accept or decline your order for any reason. We also reserve the right at any time after receipt of your order, without prior notice to you, to cancel your Order. All payments to us are final and we do not provide any refunds for payments made to us as we are not responsible for the fulfillment of any Order made by you. Your Order is governed by the contract that you have with the Lender.
We accept major credit cards through our Website. We do not accept checks, drafts or money orders. When we accept an Order, the balance is due immediately, and we will charge it to your credit card. You will bear all costs associated with a disputed credit card charge which results in an action from our merchant account provider, otherwise known as a “chargeback.”
Fees for use of the Services are assessed on a per-order basis and you must pay to Nexsys the fees listed on the applicable fee schedule. All fees are due to Nexsys whether or not the Lender who placed the order paid Service Provider or cancelled the order.
With respect to taxes, you are responsible for all fees and taxes, such as sales tax, applicable to the purchase of the materials.
You are responsible for using the Website in accordance with local and state laws and ordinances. We make no representations that the Website and accurate or suitable for your intended use, whatever that may be.
Website subscription access will be allowed only by the paid licensee for the term selected. No user shall share their credentials or access with another entity outside of their control. Shared access is grounds for revocation of the user’s account status without refund and may be subject to penalty under law.
You and Nexsys agree that the fees to be paid to Nexsys in accordance with any materials or other services provided by Nexsys represent fair and reasonable compensation for the value of such materials and services and that the manner and timing of such payments has been selected by the parties as a matter of convenience only. Each party has come to its own conclusion regarding whether the compensation arrangements and other terms and conditions of this Agreement comply with applicable requirements of the Real Estate Settlement Procedures Act of 1974, as amended (“RESPA”), and other applicable law. In reaching their independent conclusions, neither party is relying on any opinion, representation or information obtained directly or indirectly from the other party. In the event that it is determined, or based upon subsequent information or events Service Provider or Nexsys reasonably conclude that the compensation arrangements described in this Agreement violate or conflict or may violate or conflict with RESPA or other applicable law, the Parties agree to use reasonable efforts to modify this Agreement to provide for an alternate compensation structure that complies with RESPA or such other applicable law and that, to the extent feasible and permissible and provides Nexsys with compensation that is equivalent economically to the compensation provided for herein. Each party agrees that it will not assert any claim against the other party to the effect that the relationship established hereunder, including without limitation the compensation arrangements, violates RESPA or otherwise imposes any obligation on the parties which would not arise under an arm’s-length commercial agreement.
The total liability of Nexsys (including its subcontractors) for any loss, damage, or claim, whether in contract, tort (including negligence and liability without fault), or otherwise, arising out of, connected with, or resulting from this offer of sale or the performance or breach of any contract based upon this offer of sale, or use of any materials based upon this offer of sale shall not in any event exceed the price allocable to the material which gives rise to the claim, loss or damage. In no event, whether as a result of breach of contract, warranty, alleged negligence or liability without fault and regardless of whether Nexsys has been previously advised of the possibilities of such damages, shall Nexsys be liable for any indirect, incidental, special or consequential damages, including, without limitation, personal injury, death, property damage, loss of profits or revenue, loss of business or loss of use of the equipment described herein or any associated equipment, cost of capital, cost of substitute equipment, parts or labor costs even if Nexsys has been advised of the possibility of such damages.
Nexsys shall not assume any liability as to the technical ability or competency of the user accessing the information contained within the Website. Nexsys will not assume responsibility for any repairs or diagnostic conclusions that result from use of the Website or any of its content or any software or services provided through the Website.
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD COMPLETELY HARMLESS NEXSYS, ITS AFFILIATES, LICENSORS AND SERVICE PROVIDERS, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, SUCCESSORS AND ASSIGNS FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, COSTS AND EXPENSES, INCLUDING ATTORNEYS’ FEES, ARISING FROM OR RELATED TO YOUR USE OF ANY MATERIALS OR SERVICES PURCHASED OR INFORMATION ACCESSED VIA THE WEBSITE.
These Terms of Sale, the entire relationship between you and Nexsys and any litigation or other legal proceeding between you and Nexsys (whether grounded in tort, contract, law or equity) shall be governed by and construed in accordance with the laws of the State of Michigan, without giving effect to any choice or conflict of law provision or rule (whether of the State of Michigan or any other jurisdiction).
If any provision of these Terms of Sale is deemed unlawful, void, voidable or unenforceable for any reason by any court or other tribunal of competent jurisdiction, then such provision(s) shall be reformed without further action by the parties to the extent necessary to make such provision(s) valid and enforceable when applied to such facts or circumstances, with the objective of achieving as nearly as legally possible the same effect.
In no event shall Nexsys be liable for non-delivery or delays in delivery of the materials described herein or for failure or delay in the performance of any other obligations contained herein arising directly or indirectly from acts of God, unforeseeable circumstances, acts (including delays or failure to act) of any governmental authority (de jure or de facto), war (declared or undeclared), riot, revolution, priorities, fires, floods, weather, strikes, labor disputes, sabotage, epidemics, factory shutdowns or alterations, embargoes, delays or shortages in transportation, delay or inability to obtain or procure labor, manufacturing facilities, or materials, inability due to causes beyond Nexsys’s reasonable control to obtain timely instructions or information from you, planned or unplanned downtime of the Website or causes of any other kind beyond Nexsys’s control. The foregoing provision shall apply even though such causes may occur after Nexsys’s performance of its obligations has been delayed for other causes.