DATAQU SUBSCRIPTION TERMS AND CONDITIONS
IMPORTANT – READ CAREFULLY. THESE SUBSCRIPTION TERMS SET FORTH A LEGAL AGREEMENT BETWEEN YOU AND REALMASSIVE RELATING TO YOUR USE OF THE DATAQU APPLICATION SERVICE (SUBSCRIPTION VERSIONS), DATA FEED, LICENSED DATA, AND/OR OTHER SERVICES DESCRIBED HEREIN. THESE SUBSCRIPTION TERMS CONTAIN AUTOMATIC RENEWAL PROVISIONS.
BY (A) CHECKING A BOX INDICATING CUSTOMER’S ACCEPTANCE OF, OR TAKING ANY OTHER ACTION TO AFFIRM, THESE SUBSCRIPTION TERMS WHEN THE OPTION IS MADE AVAILABLE TO YOU, OR (B) AGREEING TO AN ORDER FORM THAT REFERENCES THESE SUBSCRIPTION TERMS, WHICHEVER IS FIRST TO OCCUR, YOU AGREE THAT YOU HAVE READ AND ACCEPTED THESE SUBSCRIPTION TERMS AND HAVE AGREED TO BE LEGALLY BOUND BY THESE SUBSCRIPTION TERMS.
YOU REPRESENT AND WARRANT THAT (A) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH REALMASSIVE, (B) HAVE READ THESE SUBSCRIPTION TERMS, (C) AGREE TO BE LEGALLY BOUND BY THESE SUBSCRIPTION TERMS (INCLUDING THE AUTOMATIC RENEWAL PROVISIONS) AND THE ORDER FORM, AND (D) YOU ARE NOT A COMPETITOR OF REALMASSIVE, NOR AN EMPLOYEE, SERVICE PROVIDER, REPRESENTATIVE OR AGENT OF A COMPETITOR OF REALMASSIVE, INCLUDING ANY PERSON OR BUSINESS WHICH DEVELOPS, ENHANCES, STRUCTURES OR PROVIDES ANY DATABASE OF COMMERCIAL REAL ESTATE INFORMATION FOR COMMERCIAL SALE, LICENSING OR DISTRIBUTION. AN INDIVIDUAL WHO ACCEPTS THESE SUBSCRIPTION TERMS AND THE ORDER FORM ON BEHALF OF AN ENTITY REPRESENTS AND WARRANTS THAT HE/SHE IS AN AUTHORIZED REPRESENTATIVE OF THE ENTITY WITH FULL POWER AND AUTHORITY TO BIND THE ENTITY TO THESE SUBSCRIPTION TERMS AND THE ORDER FORM.
These DataQu Subscription Terms and Conditions (the “Subscription Terms”) and the Order Form (collectively, the “Agreement”) together constitute the entire agreement between RealMassive, Inc. (“RealMassive”, “we”, “us” or similar terms) and the customer named in the Order Form (“Customer”, “you” or similar terms) with respect to the Services described in the Order Form. For the avoidance of doubt, if the Subscription Terms are attached to or incorporated by reference into an additional Order Form(s), each Order Form incorporating these Subscription Terms will constitute a separate agreement.
In addition to those terms defined elsewhere in the Agreement, the following terms will have the defined meanings given below:
a. “Application Service” means the particular subscription version of RealMassive’s DataQu application service identified in the Order Form (including its features and functionality).
b. “Authorized Personnel” means Customer’s (i) employees and (ii) individuals engaged by Customer on an independent contractor basis, in each case, who need to access and use the Licensed Data to assist Customer with its Permitted Use of the same under Section 3 below.
c. “Authorized User” means each individual Authorized Personnel who is assigned (in accordance with the Application Service’s then-current provisioning process) a unique user ID and password to permit access to and use of the Application Service by such individual on behalf of Customer. The total maximum number of Authorized Users permitted to access and use the Application Service will be specified in the Order Form.
d. “Customer Reports” means Customer’s analyses, assessments, papers, articles, memoranda and reports authored by Authorized Personnel.
e. “Data” means text, images, displays, photos, reports, graphs, content, information and other data (including the design, selection and arrangement thereof), regardless of form or medium.
f. “Data Feed” means, to the extent identified in the Order Form as being subscribed for by Customer under this Agreement, the non-Application Service delivery means (i.e., via download from FTP site or access via API) through which the Licensed Data will be made accessible to Customer. Any API software code or documentation provided to you in connection your subscription to the Data Feed shall be included in the term “Data Feed” for purposes of this Agreement.
g. “Intellectual Property Rights” means any and all patent rights, copyrights, trademark rights, trade secret rights, sui generis database rights, and other proprietary or intellectual property rights, whether now existing or hereafter arising, under the laws of any jurisdiction.
h. “Licensed Data” means the Data made available by RealMassive through the Application Service and/or Data Feed for access and use by Customer under this Agreement. The specific type(s) and amount(s) of Licensed Data made available through the Application Service and/or Data Feed will vary depending on the particular subscription version of the Application Service and/or Data Feed.
i. “Order Form” means a written or electronic order issued by RealMassive and agreed to by Customer and RealMassive which (A) identifies the Services provided or to be provided by RealMassive to Customer and (B) sets forth any additional terms and conditions relating thereto not inconsistent with the provisions of these Subscription Terms. For the avoidance of doubt, any online order for Services by Customer through RealMassive’s online ordering system, or any written order (either in electronic or paper form) provided to Customer by RealMassive for signature that describes the Services that customer is subscribing to and that is signed by you (either manually or electronically), and, in each case, accepted by RealMassive, will be deemed an “Order Form”.
j. “Other Services” means any services identified in the Order Form to be provided by RealMassive under this Agreement, other than the Application Service.
k. “Permitted Use” means, subject to the other terms, conditions and restrictions set forth in this Agreement, (i) to use for Customer’s internal business purposes, (ii) to print, and distribute internally to Authorized Personnel, a reasonable number of copies of pages of Licensed Data displayed within the Applicable Service for Customer’s internal business purposes, and, (iii) if and to the extent that the version of the Application Service subscribed to by Customer in the Order Form includes functionality allowing Customer to download or export Licensed Data, to (A) (1) download (subject to any limitations on the maximum amount of Licensed Data/number of records associated with the particular subscription version of the Application Service), store, process, and display the Licensed Data on computer systems owned or used by Customer for Customer’s internal business purposes, and (2) make, and distribute internally to Authorized Personnel, a reasonable number of copies (whether in digital or paper format) of the Licensed Data for Customer’s internal business purposes, and (B) (1) reproduce and incorporate excerpts, extracts and other limited portions of the Licensed Data into Customer Reports (provided, that (x) the substance of the Licensed Data incorporated into Customer Reports is not modified, altered or changed, (y) RealMassive is acknowledged within the Customer Report as the source of the portion of the Licensed Data incorporated, and (z) the portion of the Licensed Data incorporated into the Customer Report does not constitute more than ten percent (10%) of the entire Data reflected in the Customer Report), (2) distribute the Customer Reports internally to Authorized Personnel, and (3) distribute the Customer Reports externally to Persons who are not Authorized Personnel.
l. “Person” means any individual, partnership, corporation, limited liability company, trust, joint stock company, government (including any department or agency thereof) or any other form of association or entity.
m. “Services” means the Application Service and/or the Other Services, as applicable.
n. “Term” has the defined meaning set forth in Section 10(a) of the Subscription Terms.
a. License. Subject to the terms and conditions of this Agreement, RealMassive grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right and license, during the Term and under RealMassive’s Intellectual Property Rights, to access and use the Application Service (and, to the extent subscribed for in the Order Form, the Data Feed) and the Licensed Data solely for the Permitted Use. Any permitted copy of the Licensed Data (x) will remain the exclusive property of RealMassive, (y) will be subject to the terms and conditions of this Agreement, and (z) must include all copyright or other Intellectual Property Rights notices contained in the original.
b. Conditions and Restrictions. Customer is only authorized to use the Application Service, the Data Feed and the Licensed Data (as applicable) for the Permitted Use to the extent expressly described in Section 3(a) above. Without limiting the foregoing, and except to the limited extent as may be otherwise expressly permitted in Section 3(a) above, the rights and licenses granted in Section 3(a) above do not authorize Customer to, and Customer will not (directly or indirectly): (i) reproduce, modify, adapt, alter, translate, or create derivative works of the Application Service, the Data Feed or Licensed Data; (ii) rent, lease, loan, sell, distribute, disseminate, disclose, publish, display, transfer or otherwise make available (including on a time share, application service or outsourced basis) the Application Service, the Data Feed or Licensed Data to any Person; or (iii) reverse engineer, decompile, disassemble, decode or otherwise attempt to discover the architecture, structure, source of, methods used to create, or underlying technology of the Application Service, Data Feed or Licensed Data. As a further condition to the rights and licenses granted in Section 3(a) above, Customer shall comply with RealMassive’s then-current technical and security procedures with respect to its access to the Application Services and Data Feed. Anything to the contrary notwithstanding, the rights and licenses granted in Section 3(a) above do not authorize Customer to, and Customer will not (directly or indirectly), use or permit the use of the Application Service, Data Feed or the Licensed Data (1) to develop, enhance or structure any commercial real estate database (including any product, service or offering relating thereto) for commercial sale, licensing or other distribution, (2) in any manner or for any purpose that infringes, misappropriates or violates any Intellectual Property Rights of any Person, that is defamatory, trade libelous, unlawfully threatening or unlawfully harassing, or that violates applicable law, (3) as a factor in establishing an individual’s eligibility for credit or insurance, (4) in connection with underwriting individual insurance, (5) in evaluating an individual for employment purposes, (6) in connection with a determination of an individual’s eligibility for a license or other benefit granted by a governmental authority, (7) in any way that would cause the information to constitute a “consumer report” under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., (8) in any other manner that would cause such use to be construed as a consumer report by any governmental authority, (9) to create, replace, supplement or enhance any title, legal, vesting, ownership or encumbrance report for the purposes of underwriting title insurance, (10) coupled with alternative insurance approaches or products, (11) to gain unauthorized access to, interfere with, damage or disrupt any portions of the Application Service (including any servers, databases or accounts), or attempt to do any of the foregoing, (12) to introduce into the Application Service any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful, or (13) to use the Application Service in any manner that could disable, overburden, damage, or impair the Application Service or interfere with the authorized use of the Application Service by others.
c. Authorized Users; Authorized Personnel. The license grant in Section 3(a) above is limited to access and use of the Application Service (and, if applicable, the Data Feed) by Authorized Users on behalf of Customer, up to the maximum number of Authorized Users identified in the Order Form for the particular subscription version purchased. Customer is responsible for all activities that occur as a result of the use of usernames and passwords issued to or adopted by Authorized Users. Customer shall ensure that its Authorized Users and Authorized Personnel comply with the terms and conditions of this Agreement with respect to access and use of the Application Service, Data Feed and the Licensed Data (as applicable) and agrees that Customer will be responsible for any non-compliance. RealMassive shall have the right (but not the obligation) to monitor Customer’s use of the Application Service, Data Feed and the Licensed Data to confirm Customer’s compliance with the terms of this Agreement.
d. Rights Reserved. All rights in and to the Application Service, Data Feed and Licensed Data not expressly granted to Customer in this Agreement are expressly reserved by RealMassive and its licensors. For the avoidance of doubt, a violation or breach of any of the provisions of this Section 3 shall constitute a material breach of this Agreement.
Customer acknowledges that the Application Service, Data Feed (including any API software or keys) and/or Licensed Data are licensed and not sold to Customer. Customer is not being provided with any source or object code of any software constituting a part of the Application Service (or rights to receive or copy any of the foregoing) under this Agreement. Except for the limited licenses expressly granted to Customer in Sections 3(a) above, nothing in this Agreement will be construed, either by implication, estoppel, or otherwise, as a grant to Customer of any right, title, license, or interest in the Application Service, Data Feed or the Licensed Data (including any Intellectual Property Rights with respect to any of the foregoing). RealMassive and/or its licensors shall retain exclusive ownership and title (including all Intellectual Property Rights) in and to the Application Services, Data Feed and the Licensed Data. Customer further acknowledges and agrees that the Licensed Data is an original compilation protected under U.S. copyright laws and RealMassive has dedicated substantial resources to collect, manage and compile the Licensed Data. Anything to the contrary notwithstanding, to the extent that Customer (including any Authorized Personnel) provides to RealMassive any suggestions, recommendations, or other feedback relating to any modifications, corrections, improvements, updates or enhancements to the Application Services, Data Feed, Licensed Data and/or other RealMassive offerings (whether current or proposed), Customer hereby grants to RealMassive a non-exclusive, irrevocable, worldwide, perpetual, fully transferable and sublicensable (through multiple tiers), royalty-free right and license to use and otherwise exploit the same without restriction.
If Customer is a U.S. government entity or a contractor to any U.S. government entity, or the Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Customer acknowledges that the Application Service constitutes software and documentation provided as “commercial items” under 48 C.F.R. 2.101, developed solely at private expense, and is being licensed and made accessible as “commercial computer software” subject to the terms, conditions and restrictions set forth in this Agreement and the restricted rights described in 48 C.F.R. 2.101 and 12.212.
RealMassive and its authorized representatives shall have the right to inspect, upon five (5) business days’ prior written notice to Customer, the Licensed Data and Customer’s computer systems, books, records, processes and controls related thereto for the purpose of evaluating Customer’s compliance with this Agreement. Any such inspection will be conducted during normal business hours and in a manner that does not unreasonably interfere with Customer’s normal business operations. If the inspection indicates that there has been a breach of this Agreement, then, without limitation of any other rights or remedies available to RealMassive (at law or in equity), RealMassive may terminate this Agreement effective immediately upon delivery of written notice to Customer and Customer will pay for the cost of such inspection. If Customer does not cooperate with RealMassive’s good faith request to inspect for compliance, Customer will be deemed in material breach of this Agreement.
Customer acknowledges that the availability of Data elements varies from area to area and circumstances may exist or arise that result in the modification, limitation or discontinuation of availability of one or more Data elements as part of the Licensed Data. Anything to the contrary notwithstanding, RealMassive reserves the right to modify, limit or discontinue the availability of one or more Data elements as part of the Licensed Data and provide prior written notice to Customer of such modification, limitation, or discontinuation to the extent such availability is modified, limited, discontinued or prohibited by applicable third-party providers of such Data elements or by applicable law; provided, however, in the event that such modification, limitation or discontinuation of availability of Data elements results in a material degradation of the overall scope of the Licensed Data made available (as compared to when such affected Data elements previously were made available), then, upon Customer’s written request delivered to RealMassive within thirty (30) days following the effective date of such modification, limitation or discontinuation of availability, the parties will mutually agree upon an equitable adjustment to the applicable Fees charged for the Licensed Data for the remaining portion of the then-current Term.
Customer is solely responsible for obtaining and maintaining, at its own expense, all hardware, software and services needed to access and/or use the Application Service, Data Feed and Licensed Data, including any and all computers and internet access services.
a. Fees. Customer will pay to RealMassive fees based on the rates and charges as set forth in the Order Form (“Fees”). Fees for the Application Service, Data Feed and Licensed Data (“Subscription Fees”) will be assessed on the billing cycle basis as indicated on the Order Form. Unless RealMassive provides written notice (which may be via email or electronic notice) to Customer of a different rate/charge at least thirty (30) days prior to the commencement of a Renewal Term, the Fees applicable to the Services for any Renewal Term will be RealMassive’s standard published rates and charges in effect as of the commencement of such Renewal Term (and the Order Form shall be deemed amended to include such revised rates).
b. Expenses. Customer will reimburse RealMassive for any expenses incurred by RealMassive that are specified for reimbursement in the Order Form or otherwise approved in writing (which may be via email) by Customer. RealMassive will provide reasonable supporting documentation with respect to any requests for such expense reimbursements.
c. Invoicing; Payment Terms; Taxes. Subscription Fees for the initial billing cycle of the Term will be due and payable in advance on the effective date of the Order Form. Subscription Fees for each subsequent billing cycle of the Term will be due and payable in advance on the first day of each such period. Any other applicable Fees or reimbursable expenses will be invoiced as incurred. Customer will pay invoiced Fees and reimbursable expenses on the applicable due date, without deduction or set-off. All amounts are payable in U.S. Dollars and are non-refundable. If Customer has furnished a credit card or debit card for payment of amounts due, Customer hereby grants permission to RealMassive to charge all Fees and reimbursable expenses due and owing to such credit card or debit card (including Subscription Fees with respect to renewals of subscriptions for the Application Service) on or after the applicable due date(s). Customer represents that it is the card holder of any credit card or debit card that it provides to RealMassive for payment(s), or that Customer is duly authorized to provide the consent to use such credit card or debit card as set forth in this Section. Failure of Customer to pay any amounts when due under and in accordance with this Agreement shall constitute a material breach of this Agreement. All amounts payable by Customer are exclusive of applicable sales, use, value-added and other taxes assessed on the provision of the products, services and/or offerings provided by RealMassive under this Agreement, and Customer agrees to pay any such applicable taxes as invoiced by RealMassive. If Customer asserts a tax exemption with respect to any such taxes, Customer will furnish RealMassive with a valid tax exemption for each jurisdiction in which it is claiming an exemption. Unless otherwise agreed to by the parties, offerings provided by RealMassive to Customer under this Agreement are provided and sourced to Customer at the billing address identified on the Order Form.
a. Term; Auto-Renewal Provisions. The initial term of this Agreement will commence on the effective date of the Order Form and, unless earlier terminated in accordance with this Section, will continue for the period indicated in the Order Form (the “Initial Term”), and thereafter will renew automatically for consecutive renewal terms each equal to the duration of the Initial Term unless a party notifies the other party prior to the end of the then-current term of its decision not to renew (each renewal term, a “Renewal Term”; and the Initial Term and any and all Renewal Terms, collectively, the “Term”).
b. Termination for Breach. This Agreement may be terminated by a party immediately upon notice to the other party if the other party is in material breach of this Agreement and has failed to cure such breach within thirty (30) days after notice of the breach.
c. Termination on Other Grounds. This Agreement may be terminated pursuant to any other specific right of termination expressly granted to a party under Agreement.
d. Effect of Termination. Upon termination or expiration of this Agreement, (i) all unpaid Fees and other amounts payable to RealMassive under this Agreement (including any unpaid Subscription Fees for the remaining portion of the then-current Term) shall become immediately due and payable, (ii) the rights and licenses granted to Customer under Section 3 above will terminate automatically, (iii) Customer will immediately cease further use of the Application Services, the Data Feed and the Licensed Data, and (iv) Customer will delete the Licensed Data, and, to the extent provided, any API software code and documentation, (including all copies) from Customer’s servers, equipment or storage devices, and return to RealMassive or destroy any other copies of the Licensed Data and any such API software code and documentation in Customer’s care, custody or control; provided, however, to the extent that the version of the Application Service subscribed to by Customer in the Order Form includes the right to prepare Customer Reports as part of the Permitted Use, then, following the expiration or termination of this Agreement, Customer shall not be required to delete or destroy any specific Customer Reports that (x) were authored by Authorized Personnel and distributed by Customer prior to the effective date of the expiration or termination of this Agreement and (y) contain excerpts, extracts and other limited portions of the Licensed Data (to the extent that the use and distribution of such Licensed Data was done in compliance with the terms and conditions of Section 3 above) and the Customer shall be permitted to continue to use and distribute such Customer Reports subject to and in accordance with the terms and conditions of Section 3 (which shall survive for such limited purpose). Upon RealMassive’s request, Customer will provide RealMassive with written certification of Customer’s compliance with the foregoing obligations.
e. Survival. Anything to the contrary notwithstanding, termination or expiration of this Agreement will not affect any of the parties’ respective rights or obligations that (A) are vested pursuant to this Agreement as of the effective date of such termination or expiration (including obligations for payment and remedies for breach of this Agreement) or (B) arise under Sections 2, 4, 6, 9, 10(d), 10(e), 11, and 13 through 25 of the Subscription Terms, all of which will survive any termination or expiration of this Agreement.
f. Suspension of Use. RealMassive may (without limitation of any other rights or remedies) suspend access to and use of the Application Service, Data Feed and/or the Licensed Data in the event that (i) Customer is delinquent in payment of any amount due to RealMassive under this Agreement (and has not cured such delinquency within five (5) days following written notice thereof to Customer), (ii) Customer has breached any of the provisions of Section 3 of this Agreement, or (iii) in RealMassive’s reasonable good faith determination, suspension of the Application Service or Data Feed is necessary to avoid or mitigate harm to the security of RealMassive’s systems or data. Any such suspension will not constitute a termination of this Agreement.
a. Each party (a “Receiving Party”) agrees that any and all information (regardless of form or medium) obtained or otherwise received by Receiving Party from, through, by or on behalf of the other party (a “Disclosing Party”) during the Term that (i) is conspicuously marked as “proprietary” or “confidential” or similar designation, or (ii) if disclosed orally or visually, is identified by Disclosing Party as “proprietary” or “confidential” or similar designation either through an oral or written statement at the time of such disclosure or through a written statement delivered to Receiving Party within a reasonable period of time (not to exceed ten (10) days) following such disclosure, or (iii) based on the nature of the information, or the manner of its disclosure, should reasonably be considered as confidential, in each case, will be deemed the confidential information of Disclosing Party (“Confidential Information”). Receiving Party will maintain the Confidential Information in confidence and, subject to the terms and conditions of this Section, will not disclose or use any Confidential Information. Receiving Party agrees to use the same degree of care to protect the Confidential Information as it uses to protect its own confidential information of like importance, but in no event will Receiving Party use less than reasonable care.
b. Receiving Party may use the Confidential Information only to the limited extent necessary to perform its duties and/or exercise its rights subject to and in accordance with this Agreement, and for no other purpose, commercial or otherwise. Receiving Party may disclose the Confidential Information only to those (i) Receiving Party personnel, (ii) Disclosing Party personnel, and (iii) such other Persons approved in writing by Disclosing Party, who need to know the Confidential Information in order to assist Receiving Party in its authorized use of the Confidential Information; provided, that such persons described in clauses (ii) and (iii) above agree to be bound by obligations of confidentiality and nonuse (without further rights of distribution) no less restrictive than those contained herein, and Receiving Party will be jointly and severally liable for any such Person’s breach of the foregoing obligations of confidentiality and nonuse.
c. Disclosure or use of any Confidential Information (excluding any Licensed Data) will not be restricted to the extent that: (i) it is or becomes generally available to the public without any breach of this Agreement, (ii) it is known to Receiving Party without restriction prior to the date of disclosure by or on behalf of Disclosing Party hereunder; (iii) Receiving Party rightfully obtains it from a third party who Receiving Party reasonably believes has the right to transfer or disclose it without restriction; or (iv) it is developed independently by Receiving Party without any breach of this Agreement and without any use of the Confidential Information.
d. Further, disclosure of any Confidential Information to any judicial or other governmental entity will not be prohibited to the extent that such disclosure is required by applicable laws, so long as (x) Receiving Party will first have given prompt written notice to Disclosing Party of the same (to the extent not prohibited by applicable law), and (y) Receiving Party reasonably cooperates with Disclosing Party’s efforts to prevent or limit any such disclosure.
e. Receiving Party agrees to return to Disclosing Party, or, upon Disclosing Party’s prior written approval, to destroy (and to certify to such destruction in writing to Disclosing Party), all information and materials containing or embodying any Confidential Information, within thirty (30) days after demand therefor by Disclosing Party. For the avoidance of doubt, the provisions of this Section 11 shall not be deemed to expand the scope of the rights and licenses granted to Customer under Section 3 above (or reduce any of the restrictions and conditions applicable to such rights and licenses) with respect to the Application Service, Data Feed or the Licensed Data.
Each party agrees to comply with all laws, rules and regulations applicable to such party and its performance under this Agreement.
ANYTHING TO THE CONTRARY NOTWITHSTANDING, REALMASSIVE (INCLUDING, FOR PURPOSES OF THIS SECTION, ITS LICENSORS) DOES NOT MAKE ANY, AND HEREBY EXPRESSLY DISCLAIMS ALL, WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE APPLICATION SERVICE, THE DATA FEED, THE LICENSED DATA, AND ANY OTHER PRODUCTS, SERVICES, OFFERINGS, INFORMATION OR ITEMS PROVIDED, OR TO BE PROVIDED, TO CUSTOMER ARISING OUT OF OR RELATNG TO THIS AGREEMENT (COLLECTIVELY, THE “OFFERINGS”), INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR ANY OTHER WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. THE OFFERINGS ARE PROVIDED ON AN “AS IS” BASIS, “WITH ALL FAULTS”. WITHOUT LIMITING THE FOREGOING, REALMASSIVE DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS, WARRANTIES AND/OR GUARANTEES REGARDING (I) THE USE OF OR THE RESULTS OF THE USE OF THE OFFERINGS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, AVAILABILITY, SECURITY OR OTHERWISE, OR (II) WHETHER ACCESS TO, OR USE OR OPERATION OF, THE OFFERINGS WILL BE UNINTERRUPTED OR ERROR FREE. THE OFFERINGS DO NOT CONSTITUTE, AND SHOULD NOT RELIED UPON AS, AN ABSTRACT, LEGAL OPINION, OPINION OF TITLE, TITLE INSURANCE COMMITMENT, OR ANY FORM OF TITLE INSURANCE OR GUARANTY. REALMASSIVE IS NOT IN THE BUSINESS OF RENDERING LEGAL, TAX, ACCOUNTING, REAL ESTATE BROKERAGE, OR OTHER PROFESSIONAL ADVICE, AND NEITHER REALMASSIVE NOR THE OFFERINGS SHOULD BE RELIED UPON AS SUCH. IF SUCH ADVICE OR EXPERT ASSISTANCE IS REQUIRED BY CUSTOMER, CUSTOMER SHOULD SEEK THE SERVICES OF A COMPETENT LICENSED PROFESSIONAL. CUSTOMER IS SOLELY RESPONSIBLE FOR THE CUSTOMER REPORTS, AND CUSTOMER SHALL NOT EXTEND ANY WARRANTIES ON BEHALF OF REALMASSIVE WITH RESPECT TO, OR IMPLY THAT REALMASSIVE IS RESPONSIBLE FOR THE ACCURACY, COMPLETENESS OR CURRENCY OF, ANY CUSTOMER REPORTS OR CUSTOMER DATA.
a. IN NO EVENT WILL REALMASSIVE (OR ITS LICENSORS) BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOSS OF REVENUE OR PROFIT, LOSS OF DATA, OR LOSS OF TIME OR BUSINESS, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OFFERINGS, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR IN TORT (INCLUDING STRICT LIABILITY OR NEGLIGENCE) OR OTHERWISE, AND REGARDLESS OF WHETHER REALMASSIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. ANYTHING TO THE CONTRARY NOTWITHSTANDING, IN NO EVENT WILL THE TOTAL MAXIMUM AGGREGATE LIABILITY OF REALMASSIVE FOR ANY AND ALL CLAIMS, DAMAGES AND LIABILITIES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OFFERINGS, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR IN TORT (INCLUDING STRICT LIABILITY OR NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES PAID TO REALMASSIVE BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE OCCURRENCE OF SUCH CLAIM, DAMAGE OR LIABILITY, LESS THE AMOUNT OF ANY CLAIMS, DAMAGES OR LIABILITIES PREVIOUSLY PAID BY OR ON BEHALF OF REALMASSIVE.
Customer will indemnify, defend and hold harmless RealMassive from and against any and all claims, demands, suits, proceedings, losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees and other costs of litigation) arising out of or relating to any breach of Customer’s representations, warranties or covenants set forth in this Agreement, including any use of the Licensed Data in breach of the terms, conditions and restrictions set forth in this Agreement.
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCLUSIVE OF ANY PROVISIONS OF THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS (WHICH CONVENTION SHALL NOT APPLY TO THIS AGREEMENT) AND WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
EACH PARTY IRREVOCABLY SUBMITS AND CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED IN AUSTIN, TEXAS, AND HEREBY AGREES THAT SUCH COURTS WILL BE THE EXCLUSIVE PROPER FORUM FOR THE DETERMINATION OF ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT. FURTHERMORE, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
Customer agrees that its breach of Sections 3, 4 or 11 of this Agreement would cause irreparable harm to RealMassive for which monetary damages alone would not be an adequate remedy. Accordingly, Customer agrees that, in addition to any other remedies to which RealMassive may be entitled, in the event of any such breach by Customer, RealMassive will be entitled to seek equitable relief (including injunctive relief) with respect to such breach in any court of competent jurisdiction (notwithstanding any exclusive venue provisions of this Agreement).
If a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
Except to the extent as may be otherwise expressly permitted in this Agreement and for routine electronic communications regarding the Services provided on or through the Application Service, any notice required or permitted under this Agreement will be in writing, and will be delivered (a) personally by hand, (b) by certified mail, postage prepaid, with return receipt requested, (c) by email, or (d) by internationally recognized express delivery service (e.g., UPS or FedEx), to the parties as follows: if to Customer, at the address(es) indicated in the Order Form; and if to RealMassive, at 3736 Bee Cave Road, Suite 1-250, Austin, TX 78737, Attn: Legal Department. Notice given will be deemed effective on the date delivered, if by hand, three (3) days following deposit in the U.S. Mail properly addressed, if by mail, or on the date of delivery, if by email or internationally recognized express delivery service. Either party may change the person(s) and/or address(es) designated for notice effective ten (10) days following delivery of notice of such change(s).
Customer shall not assign or otherwise transfer this Agreement, or any of its rights or obligations hereunder, in any manner, including by way of merger, exchange, consolidation or combination, or sale of fifty percent (50%) or more of its capital stock or similar ownership interests, or sale of all or substantially all of its assets, without the prior written consent of RealMassive. Any attempted assignment or transfer of this Agreement by Customer in violation of this Section will be void. RealMassive may assign and transfer this Agreement, and any of its rights and obligations hereunder, without restriction. Subject to the foregoing, this Agreement will be binding on the parties and their respective successors and assigns.
Each instance in this Agreement of the words “include,” “includes,” and “including” will be deemed to be followed by the words “without limitation.” As used in this Agreement, the term “days” means calendar days, not business days, unless otherwise specified. All headings or section divisions contained in this Agreement are for reference purposes only and will not be construed to affect the meaning or interpretation of this Agreement.
RealMassive will not be liable for any failure or delay in performance resulting from any event beyond its reasonable control, including due to fire, flood, action or decree of civil or military authority, insurrection, act of war, vandalism, terrorism, hackers, denial of service attacks, labor disputes or shortages, material shortages, power outages, failure of internet connections, failure of suppliers, or embargo.
Amendments. No waiver of any provision of this Agreement will be effective unless made in writing and signed by the party to be charged with such waiver. Except as otherwise expressly provided in this Agreement, this Agreement may only be amended by a written agreement executed by Customer and RealMassive referencing this Agreement and the provisions hereof to be amended; provided, however, that RealMassive may amend these Subscription Terms at any time by providing notice to you on or through the Application Service or such other means of notice permitted under this Agreement, but, except as otherwise provided in this Agreement, such amended Subscription Terms will not be effective as to any Service under an Order Form that we accepted prior to the date we provided notice of the revision until the first day of next Renewal Term that follows the effective date of the amendment. Any preprinted legal terms contained on any purchase order, confirmation notice or other similar document delivered by Customer in connection with this Agreement will not serve to amend or modify any provision of this Agreement.
This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes any and all prior representations, warranties, understandings or agreements (written or oral) between the parties with respect to the subject matter hereof. This Agreement may be executed in multiple counterparts. Facsimile, electronic or scanned signatures are effective in all respects.
Last Updated: 5/2020