API Terms of Use

©2018 First American Financial Corporation. All rights reserved.

1. Acceptance of Terms of Use/ Authority to Bind. First American Mortgage Solutions, LLC and/or its applicable affiliates/subsidiaries (collectively “First American”, “we”, “our” or “us”) are in the business of providing data and analytics products for use in the real estate services industry (“Services”). These Services are made available to First American’s lending and loan servicer clients through one or more First American Application Programming Interfaces, including any revisions or updates thereto (collectively “First American APIs”). The First American APIs allow other software or hardware devices to interface with First American’s systems and applications (“First American Applications”) for order placement and receipt of Services. Access to and/or use of First American’s APIs is governed by the terms of use below, applicable policies and guidelines, as well as any terms or conditions that are included in general or specific First American API documentation (“Terms of Use”). These Terms of Use constitute a legally binding agreement between First American and you (“Licensee”, “you”, or “your”) concerning use of the First American APIs and are subject to change from time to time in our sole discretion. By registering for use of the First American APIs, or by using the First American APIs in any way, you are agreeing to be bound by these Terms of Use, our general terms of use located at http://www.firstam.com/terms-of-use/index.html (“General Terms”) and acknowledge that we may use your content in accordance with the First American Privacy Policy located at http://www.firstam.com/privacy-policy/index.html (“Privacy Policy”). If the First American APIs will be used by you on behalf of a legal entity then you represent and warrant that you have the ability and authority to register that legal entity and bind it to these Terms of Use, the General Terms and the Privacy Policy; in the case of legal entities, all references to Licensee, you, or your in these Terms of Use, the General Terms or the Privacy Policy shall refer to that legal entity. If you do not agree to these Terms of Use, the General Terms and the Privacy Policy then do not register for an account and do not use the First American APIs. If you or the legal entity you represent have an operative Master Services Agreement (with applicable Statements of Work) or a standalone Services Agreement (each a “Services Agreement”), that Services Agreement shall control with respect to the First American APIs and Services being delivered through the First American APIs, but use of and access to the First American APIs prior to the execution of a definitive Services Agreement shall be governed exclusively by these Terms of Use. Similarly, if you have a more general Non-Disclosure Agreement (“NDA”) in place with First American, the use of and access to the First American APIs shall be governed exclusively by these Terms of Use or, if applicable, a definitive Services Agreement and shall not be governed by that NDA. Any use of or access to the First American APIs by, or on behalf of, a government entity or agency is strictly prohibited, and requires a separate written agreement with you, the government entity or agency, and First American.

2. Onboarding/Credentialing. Before you can access or use the First American APIs you will be required to register with, and be credentialed by, First American. The information you provide during the registration and credentialing process must be accurate and complete and must be updated when it changes. First American retains sole discretion over the registration and credentialing process. If your registration is accepted and you are credentialed you will be given login credentials in the form of a username and password, as well as any other authentication information we determine to be necessary, such as a unique electronic security key and tokens, to access and use the First American APIs (“Authentication Credentials”). The Authentication Credentials must be held in strict confidence, and are considered to be First American Confidential Information. You are responsible for all activity, including all activity of your employees, in connection with use of a First American API. Licensee will be required to use the Authentication Credentials to access the First American APIs and any updates or subsequent versions of the First American APIs that First American may release from time to time in its sole discretion.

3. License Grant. Subject to these Terms of Use, First American hereby grants Licensee a non-exclusive, non-transferable, non-sublicenseable, non-exclusive, revocable, and limited license (“License”) within the United States during the Term to access and use the First American APIs for the sole purpose of developing software applications for Licensee’s internal use (“Licensee Applications”) that are designed to interact with, and send and receive data or other content to, the First American Applications for order placement and retrieval of the Services (“Integration”). You acknowledge and agree that your access to and use of the First American APIs may be logged and monitored.

4. Integration Implementation. Licensee shall test the Integration to ensure that it meets First American’s acceptance criteria and specifications (“Specifications”) set forth in any First American API documentation that are part of these Terms of Use, or as otherwise required by First American. Implementation of the Integration shall not commence until First American has provided written approval to Licensee that the acceptance criteria and Specifications have been met to its satisfaction. Licensee shall be solely responsible for the development, testing, implementation, operation, and maintenance of the Integration, including all costs related thereto.

5. Restrictions. Licensee may not use the First American APIs for any purpose other than as set forth in Section 3 (License Grant). Without limiting the generality of the foregoing, Licensee represents and warrants that it shall not, and will require that all users of the Licensee Applications do not: (i) decompile, disassemble, or reverse-engineer or reverse-assemble a First American API; (ii) create derivative works from a First American API; (iii) sublicense, lease, rent, assign, distribute, repackage, rebrand, or otherwise transfer or disclose a First American API or any portion thereof to any third party, except as expressly permitted in these Terms of Use; (iv) use a First American API in connection with any product or software other than the Licensee Application; (v) distribute a First American APIs as a stand-alone product; (vi) develop an API that functions substantially the same as a First American API and provide it to third parties, with or without compensation; (vii) use a First American API in any way, or engage in any conduct that is, in violation of applicable federal, state or local statute, law, rule or regulation; (viii) use a First American API in way that infringes upon or misappropriates any rights, including, without limitation, intellectual property rights, proprietary rights or confidentiality rights, or rights of publicity or privacy of First American or any third parties; (ix) transmit any data or files containing worms, time bomb, trapdoors, viruses, malware, spyware, Trojan Horses or other disabling or malicious code which is intended to disrupt, interfere with, or damage the First American API, the Services, or other First American systems or data; (x) use a First American API in a manner that exceeds reasonable request volume (extraordinarily high request volumes may be agreed to in writing by the parties), constitutes excessive or abusive usage, creates an unusually high load on First American’s servers, or otherwise fails to comply or is inconsistent with any part of the First American API documentation or Terms of Use; (xi) use the First American API in a product or service that competes with the Services; (xii) circumvent or bypass a First American security requirement or process required as a condition of using the First American API, or attempt to access the First American API through any means other than the access identified in the First American API documentation;(xiii) use any web crawlers, spiders, data scrapers, screen scrapers, internet bot, or other similar technology to misuse, misappropriate or harvest a First American API or any content from the Services; (xiv) submit any content that is threatening, abusive, harassing, defamatory, libelous, deceptive, or fraudulent, as determined by us in our sole discretion; or (xv) remove, alter, add, or obscure any First American Marks (as defined below), other intellectual property or other notice included in the First American APIs.

6. Modifications and Support. First American reserves the right at any time, in its sole discretion, to modify, limit, change, reduce, delay, suspend, discontinue or terminate your access to or use of the First American APIs with (including electronic communication) or without written notice. You are required to check these Terms of Use on a regular basis for updates and continued use of the First American APIs after a change to the Terms of Use constitutes your acceptance of the updated Terms of Use. We may update, change (including placing limits on certain features), suspend, restrict, or discontinue any component or feature of the First American APIs at any time, in whole or in part, and may decide to discontinue the availability of the First American APIs, in our sole discretion. You must deploy and use the most current version of the First American APIs and update the Licensee Applications as may be required due to changes in the most current version of the First American APIs. If any updates to the First American APIs cannot be implemented in the Licensee Applications you must discontinue use of the First American APIs, as continued use may adversely affect the Services. First American may also, in its sole discretion, elect to provide Licensee with support for the First American APIs (“Support”), and may terminate Support at any time without notice to Licensee.

7. Fees. The fees charged to Licensee for access to and use of the First American APIs will be established in a Services Agreement or other written documentation between the parties. First American reserves the right to update or change its fees for access to or use of the First American APIs in its sole discretion.

8. Term/Termination. These Terms of Use shall govern the access to and use of the First American APIs from the first date that you have access to the First American APIs (“Effective Date”) until these Terms of Use are terminated (“Term”). The License will automatically terminate if: (i) Licensee violates any of these Terms of Use; (ii) First American sends a written notice of termination of these Terms of Use to Licensee; (iii) Licensee sends a written notice of termination of these Terms of Use to First American; or (iv) First American otherwise discontinues, eliminates or terminates access to the First American APIs with or without written notice to Licensee. First American reserves the right to terminate these Terms of Use and License at any time and for any reason. Licensee shall not have any claims against First American as a result of any such termination, or as a result of any modification, limitation, change, reduction, delay, suspension, or discontinuance of a First American API or amendment to these Terms of Use. Licensee may terminate the License by providing written notice to First American of its intent to terminate the Terms of Use. Upon expiration of these Terms of Use or termination by either party, or upon written request by disclosing party made at any time, receiving party shall promptly (within five (5) days) return or destroy all manifestations of the disclosing party’s Confidential Information (including all documents or media or copies or extracts thereof) and additionally, in the case of Licensee, disable access to, and discontinue use of, the First American APIs. Upon request by disclosing party, receiving party shall certify in writing to disclosing party that all of disclosing party’s Confidential Information has been returned to disclosing party or destroyed and that all use of or access to the disclosing party’s Confidential Information has ceased. First American shall also be permitted to contact any end users or other third parties that are associated with your use of the First American APIs in order to notify them of the termination. Notwithstanding the foregoing provision, Confidential Information stored electronically in receiving party’s archives and information required to be retained by the receiving party pursuant to applicable law or regulation may be retained in accordance with receiving party’s archive and retention policies and procedures, provided that all such Confidential Information so retained shall remain subject to the use and disclosure restrictions of these Terms of Use until such Confidential Information is destroyed.

9. Confidentiality.
9.1 Confidential Information. “Confidential Information” means any information disclosed by either party or its affiliates to the other party or its affiliates, either directly or indirectly, in any form, including, without limitation, all technical and non-technical data, formulae, patterns, compilations, programs, devices, methods, techniques, drawings, processes, marketing brochures, documents, business, financial and marketing plans, algorithms, software programs, source code, ideas, inventions (whether patentable or not), technology and product roadmaps, present and future product integration plans, trade secrets, information on strategic partnerships and alliances and customer relationships, lists of customer names, customer and/or consumer-related information (including any nonpublic personal information as defined by federal law, including, but not limited to, the Gramm-Leach-Bliley Act, as it may be amended, and any other customer information protected by applicable international, federal or state laws), irrespective of whether the information is marked or otherwise designated as being “Confidential” or “Proprietary” and includes written, oral, or digital information, and in the case of First American also includes the First American APIs, the Services, and Authentication Credentials. Confidential Information shall not include any information that: (i) enters the public domain through no fault of yours; (ii) is rightfully known by you without any obligation to keep it confidential at the time it is disclosed by First American, as shown by your records; (iii) is independently developed by you at any time without reference to the Confidential Information, as shown by your records; or (iv) is rightfully obtained by you from an independent third party who does not have an obligation of confidentiality with respect thereto.
9.2 Non-use and Non-disclosure. Receiving party agrees: (i) to hold the Confidential Information of disclosing party in strict confidence and to take reasonable precautions to protect such Confidential Information (which precautions shall be no less than those employed by receiving party to preserve the secrecy of its own Confidential Information); (ii) not to make any use whatsoever at any time of disclosing party’s Confidential Information, except as permitted by these Terms of Use; (iii) not to reproduce disclosing party’s Confidential Information in any form except as required to accomplish the intent of these Terms of Use, nor to remove any proprietary notices or legends which appear on the originals; (iv) not to reverse engineer or disassemble the First American APIs or any Services, products, technology or tangible objects that utilize such Confidential Information; and (v) not to disclose disclosing party’s Confidential Information or any information derived therefrom to any third party, except to receiving party’s or its affiliates’ agents, officers, directors, consultants and employees, and legal and financial advisors who have a legitimate “need to know” and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as restrictive as those contained herein. You acknowledge that the First American APIs contain valuable commercial products, the development of which has involved the expenditure of substantial time and money. Each party will issue appropriate instructions to all of its agents, officers, directors, consultants and employees, and legal and financial advisors concerning the restrictions contained herein, and shall initiate strict security measures to prevent the accidental or otherwise unauthorized use or release of any and all proprietary and confidential information of the other party and any third parties associated with or provided through a First American API. Each party agrees that any breach of this Section 9 by a current or former agent, officer, director, consultant and employee, or legal or financial advisor to whom the receiving party has disclosed the Confidential Information shall be a breach of this Section 9 by the receiving party to the same extent. Receiving party shall promptly notify disclosing party upon discovery of any unauthorized use or disclosure of Confidential Information, or any other breach of these Terms of Use, and will cooperate with disclosing party in every reasonable way to help regain possession of such Confidential Information and prevent its future unauthorized use. Notification of any unauthorized use or disclosure of First American’s Confidential Information is to be provided by phone by calling (877) 752-1184, and by email to: InformationSecurityIncidents@firstam.com. Notification of any unauthorized use or disclosure of Licensee’s Confidential Information is to be provided to the address and email address Licensee provides (if provided) to First American through the onboarding process.

10. Court Ordered Disclosure. Receiving party may disclose such parts of disclosing party’s Confidential Information as may be required by law, court order, or regulatory request pursuant to an audit, exam or investigation; provided that receiving party, if not otherwise restricted by law or court order: (i) provides disclosing party prompt written notice of such requirement, (ii) uses reasonable efforts to resist disclosure and to assist disclosing party in obtaining confidential treatment or a protective order, and (iii) provides disclosing party with such other cooperation that is reasonably requested. If, in the absence of a protective order or the receipt of a waiver under these Terms of Use, receiving party is nonetheless legally required to disclose disclosing party’s Confidential Information, then, in such event, receiving party may disclose such information without liability under these Term of Use, provided that the disclosing party has been given notice of when such disclosure is made and that the disclosure is limited to only that Confidential Information specifically required to be disclosed. Confidential Information disclosed by a party pursuant to this Section shall not lose its confidential nature and shall remain Confidential Information, subject to all applicable protections set forth in these Terms of Use

11. Information Security. The parties shall each maintain their own information security program that is designed to meet the following objectives: (i) protect the security and confidentiality of the other party's Confidential Information; (ii) protect against any anticipated threats or hazards to the security or integrity of such information; (iii) protect against unauthorized access to or use of such information; and (iv) ensure the proper disposal or destruction of such information. Upon a party's written request, the other party shall allow the requesting party to review any associated audit reports, summaries of test results or equivalent measures taken by the other party to assess whether its information security program meets the foregoing objectives.

12. Originality. All of Licensee’s materials furnished, suggested and/or delivered to First American by Licensee shall be wholly original and created by Licensee except for materials in the public domain or materials duly licensed to Licensee and for which Licensee has the right to sublicense or distribute to First American without further approvals, and shall not be copied in whole or in part from any other work or materials.

13. Intellectual Property Warranties by Licensee. Licensee represents, warrants and covenants to First American that: (i) the Licensee Application (excluding the First American API) will not infringe or misappropriate First American’s or any third party owner's copyright, patent, trademark, trade secret or other intellectual property or proprietary rights or rights of publicity or privacy; and (ii) it has all necessary rights, permissions and licenses to create, use and distribute the Licensee Application.

14. Ownership/Brand Attribution. First American owns all right, title and interest in and to the First American APIs, First American Applications, the Services, and any derivative works of the forgoing, including all copyrights, patents, trademarks, service marks, trade secrets and all other intellectual property rights in the same (“First American IP”). No rights in or to the First American IP are granted to you except the limited License specifically granted in these Terms of Use. You acknowledge that you shall not acquire any copyright ownership or other similar right, or any other ownership or intellectual property rights in or to the First American IP or other property owned by First American as a result of these Terms of Use. You agree that to the extent you provide any input or suggestions relating to the First American APIs we may use that information without your approval. To the extent that Licensee should acquire any rights in the First American IP, Licensee hereby assigns to First American any such intellectual property rights that it may have in the First American IP; Licensee shall sign all documentation required to effect or evidence a transfer of the First American IP to First American. First American owns several trademarks, service marks, logos, and domains that are used in connection with among other things, the First American APIs and the Services, including, but not limited to: myFirstAm®, First American®, the Eagle logo and FIRSTAM.COM® (“First American Marks”). The First American Marks are First American IP and any use of the First American Marks not expressly permitted by these Terms of Use requires prior written approval of First American, which may be withheld in First American's sole discretion. If use of the First American Marks is permitted by First American, Licensee must display any attribution required by First American and comply with all branding guidelines that are published by First American or included in the First American API documentation. You retain all right, title and interest in and to any original content you deliver through a First American API, but grant us, with respect to such content, a royalty-free, perpetual, non-exclusive, non-transferable (except as between affiliates of First American), non-sublicenseable, irrevocable right to use, store, host, copy, edit, modify, adapt, publish, reproduce, otherwise exploit, or display such content in order to provide the Services. Licensee agrees not to challenge First American’s ownership of the First American IP, including but not limited to, First American’s ownership of the First American Marks and agrees to refrain from pursuing any claim that is adverse to First American.

15. Insurance. Licensee agrees to carry and maintain in force at all times during the term of these Terms of Use and for at least one (1) year thereafter, the lines of insurance coverage with minimum policy limits as set forth below, and upon request from First American will provide a certification reflecting the required coverage to First American. Licensee shall maintain Commercial General Liability Broad Form Coverage, including Contractual Liability, Contractor's Protective Liability and Personal Injury/Property Damage Coverage in a combined single unit limit of not less than $5,000,000, and Workers' Compensation insurance as required by law from an insurance company with the Best's rating of A or better. During the Term, Licensee shall maintain Professional Liability coverage (Errors and Omissions and Cyber coverage) covering the type of services and/or products provided by Licensee’s employees and subcontractors with a minimum combined single limit of $2,000,000, and, as applicable, Business Automobile Liability with limits of $1,000,000, combined single limit, each accident. If Licensee is not located in the United States: (i) the Errors and Omissions coverage may be substituted with applicable coverage for the type of services and/or products provided by Licensee, its employees, and its subcontractors with a minimum limit of $2,000,000; and (ii) the combined single limit may be omitted, if applicable. First American shall be named as an additional insured on Commercial General Liability and Business Automobile Liability coverage.

16. DISCLAIMER OF WARRANTIES. LICENSEE’S USE OF THE FIRST AMERICAN APIS IS AT LICENSEE’S SOLE RISK AND ARE PROVIDED BY FIRST AMERICAN ON AN "AS IS" AND “AS AVAILABLE” BASIS. FIRST AMERICAN EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND ACCURACY, REGARDLESS OF WHETHER THE WARRANTY ARISES IN CONTRACT, TORT, STATUTE OR OTHERWISE. FIRST AMERICAN DOES NOT REPRESENT OR WARRANT THAT THE FIRST AMERICAN APIS ARE COMPLETE OR FREE FROM ERROR, THAT THEY WILL MEET LICENSEE’S REQUIREMENTS, THAT THEY WILL OPERATE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS IN THE OPERATION OR FUNCTIONALITY OF A FIRST AMERICAN API WILL BE CORRECTED.

17. LIMITATION OF LIABILITY. IN NO EVENT SHALL FIRST AMERICAN, ITS PARENTS, SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, VENDORS OR AGENTS BE LIABLE OR RESPONSIBLE TO LICENSEE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY AND PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF BUSINESS, DOWNTIME OR LOSS OF BUSINESS OPPORTUNITY, NO MATTER HOW THEY MAY ARISE, WHETHER IN TORT, CONTRACT, BY STATUTE OR OTHERWISE, REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF OR MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS OF USE, FIRST AMERICAN’S LIABILITY TO LICENSEE FOR ANY CAUSE WHATSOEVER SHALL BE LIMITED TO $25.00 (U.S.) IN THE AGGREGATE FOR ANY AND ALL CLAIMS ARISING OUT OF, OR RELATED TO, THE TERMS OF USE, REGARDLESS OF THE FORM OF ACTION.

18. INDEMNITY. You agree to indemnify, defend and hold First American, its parents, subsidiaries, affiliates and their respective officers, directors, employees and agents, harmless from and against any and all claims, suits, damages, costs and expenses, including attorneys' fees, arising from: (i) your breach of any provision of these Terms of Use; (ii) any content, information or materials provided by you to your end users or employees, (iii) your infringement of First American IP, (iv) third party infringement claims alleging that the use of the Licensee Application infringes any intellectual property or other right held by a third party, and (v) your violation of applicable law or willful misconduct on the part of Licensee.

19. Audit Rights. During the Term, and for a period of one (1) year thereafter, First American shall have the right to audit, during your regular business hours and subject to your reasonable security requirements, your books, records and computer systems that contain information pertaining to access to and use of the First American APIs, solely for the purpose of determining if Licensee is in compliance with these Terms of Use.

20. Independent Contractors. Neither these Terms of Use, the relationship created between the parties hereto pursuant to these Terms of Use, nor any course of dealing between the parties hereto is intended to create, or shall create, an employment relationship, a joint venture, partnership or any similar relationship. Licensee does not have, nor shall Licensee hold itself out as having, any right, power or authority to create any contract or obligation, either express or implied, on behalf of, in the name of, or binding upon First American. Licensee shall be solely responsible for, and shall hold First American harmless from and against, any liabilities, cost or expenses incurred by or on account of its personnel and their acts and/or omissions. Licensee is an independent contractor, and, as such, First American will not withhold or make payments for social security contributions, make unemployment insurance or disability insurance contributions, or obtain worker's compensation insurance on Licensee's behalf for Licensee's employees and contractors. Licensee is solely responsible for all taxes, withholdings, and other similar statutory obligations for all personnel, including, but not limited to, Worker's Compensation insurance. Licensee hereby agrees to indemnify and defend First American against any and all claims made by any entity on account of an alleged failure by Licensee to satisfy any such tax, withholding obligations, or contributions, including penalties and interest.

21. Survival. Upon termination of the Terms of Use or discontinuance of access to or use of First American APIs, any and all audit, disclaimer, limitation of liability, confidentiality, warranty, insurance, and indemnity provisions, and any other provision that contemplates performance subsequent to the termination of the Terms of Use, shall survive the termination of the Terms of Use or the discontinuance.

22. Governing Law and Venue. These Terms of Use shall be governed in accordance with the laws of the State of California. Licensee irrevocably consents to submit to the exclusive jurisdiction and venue of the federal and state courts in Orange County, California with respect to all disputes in connection with these Terms of Use.

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