REscour Terms & Conditions
Master Subscription Agreement
THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES. IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. This Agreement was last updated on June, 24th 2014. It is effective between You and Us as of the date of You accepting this Agreement.
Table of Contents
Use of the Services
Fees and Payment for Purchased Services
Warranties and Disclaimers
Limitation of Liability
Term and Termination
Who You Are Contracting With, Notices, Governing Law and Jurisdiction
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“NonREscour.com Applications” means online applications and offline software products that are provided by entities or individuals other than Us and are clearly identified as such, and that interoperate with the Services.
“Order Form” means the documents for placing orders hereunder, including addenda thereto, that are entered into between You and Us or any of Our Affiliates from time to time, including addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference.
“Purchased Services” means Services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a free trial.
“Services” means the products and services that are ordered by You under a free trial or an Order Form and made available by Us. “Services” exclude NonREscour.com Applications.
“Users” means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business.
“We,” “Us” or “Our” means the rescour.com company described in Section 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
“Your Data” means all electronic data or information submitted by You to the Purchased Services.
2. FREE TRIAL
If You register on our website for a free trial, We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered or are registering to use the applicable Service or (b) the start date of any Purchased Services ordered by You. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL. NOTWITHSTANDING SECTION 9 (WARRANTIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “ASIS” WITHOUT ANY WARRANTY.
Please contact firstname.lastname@example.org if You have questions during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.
If You are located in the United States, then during any free trial period We may disclose anonymous data about Your use of the Services (“Usage Statistics”) to our service providers for the purpose of helping us improve our users’ experience with the Services, or as required by law. Any such disclosures of Usage Statistics to our service providers will not include Your identity.
3. PURCHASED SERVICES
3.1. Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
3.2. User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the applicable subscription term at the same pricing as that for the preexisting subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the preexisting subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
4. USE OF THE SERVICES
4.1. Our Responsibilities. We shall: (i) provide Our basic support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 8 hours notice via the Purchased Services and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday Pacific Time), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods,fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
4.2. Our Protection of Your Data. We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 8.3 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services and prevent or address service or technical problems, or at Your request in connection with customer support matters. 4.3. Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of thirdparty privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or thirdparty data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
4.3. Usage Limitations. Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls You are permitted to make against Our application programming interface, and, for Services that enable You to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in the User Guide. The Services provide realtime information to enable You to monitor Your compliance with such limitations.
5. NONRESCOUR.COM PROVIDERS
5.1. Acquisition of NonRescour.com Products and Services. We or third parties may from time to time make available to You thirdparty products or services, including but not limited to NonRescour.com Applications and implementation, customization and other consulting services. Any acquisition by You of such nonrescour.com products or services, and any exchange of data between You and any nonrescour.com provider, is solely between You and the applicable nonrescour.com provider. We do not warrant or support nonrescour.com products or services, whether or not they are designated by Us as “certified” or otherwise, except as specified in an Order Form. Subject to Section 5.3 (Integration with NonRescour.com Services), no purchase of nonrescour.com products or services is required to use the Services except a supported computing device, operating system, web browser and Internet connection.
5.2. NonRescour.com Applications and Your Data. If You install or enable NonRescour.com Applications for use with Services, You acknowledge that We may allow providers of those NonRescour.com Applications to access Your Data as required for the interoperation of such NonRescour.com Applications with the Services. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by NonRescour.com Application providers. The Services shall allow You to restrict such access by restricting Users from installing or enabling such NonRescour.com Applications for use with the Services.
5.3. Integration with NonRescour.com Services. The Services may contain features designed to interoperate with NonRescour.com Applications (e.g., Google, Facebook or Twitter applications). To use such features, You may be required to obtain access to such NonRescour.com Applications from their providers. If the provider of any such NonRescour.com Application ceases to make the NonRescour.com Application available for interoperation with the corresponding Service features on reasonable terms, We may cease providing such Service features without entitling You to any refund, credit, or other compensation.
6. FEES AND PAYMENT FOR PURCHASED SERVICES
6.1. Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are noncancelable and fees paid are nonrefundable, and (iii) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.
6.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 14 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
6.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
6.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least 7 days’ prior notice that Your account is overdue, in accordance with Section 13.2 (Manner of Giving Notice), before suspending services to You.
6.5. Payment Disputes. We shall not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
6.6. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to valueadded, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against it based on Our income, property and employees.
7. PROPRIETARY RIGHTS
7.1. Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
7.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services except as authorized herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
7.3. Your Applications and Code. If You, a third party acting on Your behalf, or a User creates applications or program code using the Services, You authorize Us to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Us to provide the Services in accordance with this Agreement. Subject to the above, We acquire no right, title or interest from You or Your licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.
7.4. Your Data. With respect to all submitted content you elect to upload, post, email or otherwise transmit to or via the Product, you grant Us and Our affiliates and their licensees a royaltyfree, perpetual, irrevocable, nonexclusive and fully sublicensable right and license (through multiple tiers) to use, reproduce, communicate to the public by telecommunications, make available, adapt, perform, display, publish, translate, prepare derivative works from, modify, distribute, sell, rent and take any other action with respect to such content (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed. You further acknowledge and agree that We may preserve any such content and may also disclose such content in its discretion. The foregoing license is without restrictions of any kind and without payment due from Us.
7.5. Suggestions. We shall have a royaltyfree, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
7.6. Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.2277015 (Technical Data – Commercial Items) and DFAR 227.72023 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
7.7 RealtyTrac, its affiliates, or third party data providers own and hold all right, title, and interest in and to the Licensed Information, including, without limitation, all underlying data compilations and information, all materials related to the Licensed Information, and all intellectual property derived from the Licensed Information, including, without limitation, all patents, trademarks, copyrights, and trade secrets, notwithstanding that portions of the Licensed Information may be derived in whole or in party from publicly available sources. Third party data providers are an express third party beneficiary to this Agreement and to any Customer Agreement.
7.8 “RealtyTrac” the RealtyTrac logo and all RealtyTrac product names are trademarks or service marks of RealtyTrac or its affiliates or of third party data providers (collectively, the “Marks”). No right or license to use the Marks is granted under this Agreement, except that Licensee shall have the limited right to use the Marks solely as they appear in the Licensed Information. Licensee shall not use the Marks in any advertising or promotional material unless a Schedule grants rights to RealtyTrac creative material nor shall Licensee disclose RealtyTrac or any third party data provider as a data source to any third party, except for such disclosures required by federal, state or local government regulations, or as otherwise may be prior authorized in writing by RealtyTrac or a third party data provider. Licensee shall not remove, alter or obscure any Marks or proprietary notices contained in the Licensed Information or other materials provided by RealtyTrac.
8.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2. Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.
8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
9. WARRANTIES AND DISCLAIMERS
9.1. Our Warranties. We warrant that (i) We have validly entered into this Agreement and have the legal power to do so, (ii) the Services shall perform materially in accordance with the User Guide, (iii) subject to Section 5.3 (Integration with NonRescour.com Services), the functionality of the Services will not be materially decreased during a subscription term, and (iv) We will not transmit Malicious Code to You, provided it is not a breach of this subpart (iv) if You or a User uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code. For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 12.3 (Termination for Cause) and Section 12.4 (Refund or Payment upon Termination) below.
9.2. Your Warranties. You warrant that You have validly entered into this Agreement and have the legal power to do so.
9.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9.4. NonGA Services. From time to time We may invite You to try, at no charge, Our products or services that are not generally available to Our customers (“NonGA Services”). You may accept or decline any such trial in Your sole discretion. Any NonGA Services will be clearly designated as beta, pilot, limited release, developer preview, nonproduction or by a description of similar import. NonGA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NONGA SERVICES ARE NOT CONSIDERED “SERVICES” HEREUNDER AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue NonGA Services at any time in Our sole discretion and may never make them generally available.
10. MUTUAL INDEMNIFICATION
10.1. Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against You”), and shall indemnify You for any damages, attorney fees and costs finally awarded against You as a result of, and for amounts paid by You under a courtapproved settlement of, a Claim Against You; provided that You (a) promptly give Us written notice of the Claim Against You; (b) give Us sole control of the defense and settlement of the Claim Against You (provided that We may not settle any Claim Against You unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense. In the event of a Claim Against You, or if We reasonably believe the Services may infringe or misappropriate, We may in Our discretion and at no cost to You (i) modify the Services so that they no longer infringe or misappropriate, without breaching Our warranties under “Our Warranties” above, (ii) obtain a license for Your continued use of the Services in accordance with this Agreement, or (iii) terminate Your User subscriptions for such Services upon 30 days’ written notice and refund to You any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination.
10.2. Indemnification by You. You shall defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Us”), and shall indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a courtapproved settlement of, a Claim Against Us; provided that We (a) promptly give You written notice of the Claim Against Us; (b) give You sole control of the defense and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Your expense.
10.3. Exclusive Remedy. This Section 10 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.
11. LIMITATION OF LIABILITY
11.1. Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF $500,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
11.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12. TERM AND TERMINATION
12.1. Term of Agreement. This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
12.2. Term of Purchased User Subscriptions. User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of nonrenewal at least 30 days before the end of the relevant subscription term. The perunit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 60 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
12.3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.4. Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
12.5. Return of Your Data. Upon request by You made within 30 days after the effective date of termination of a Purchased Services subscription, We will make available to You for download a file of Your Data in comma separated value (.csv) format along with attachments in their native format. After such 30day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
12.6. Surviving Provisions. Section 6 (Fees and Payment for Purchased Services), 7 (Proprietary Rights), 8 (Confidentiality), 9.3 (Disclaimer), 10 (Mutual Indemnification), 11 (Limitation of Liability), 12.4 (Refund or Payment upon Termination), 12.5 (Return of Your Data), 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction) and 14 (General Provisions) shall survive any termination or expiration of this Agreement.
13. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION
13.1. General. You are contracting with: REscour, Inc., a Deleware Corporation. Notices should be addressed to: 75 5th St. NW, Suite 208, Atlanta, GA 30308 The governing law is: Georgia and controlling United States Federal Law The courts having exclusive jurisdiction are: Fulton County, Georgia, USA
13.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billingrelated notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.
13.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
13.4. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
14. GENERAL PROVISIONS
14.1. Export Compliance. The Services, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government deniedparty list. You shall not permit Users to access or use Services in a U.S.embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
14.2. AntiCorruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department (email@example.com).
14.3. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.4. No ThirdParty Beneficiaries. There are no thirdparty beneficiaries to this Agreement.
14.5. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
14.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
14.7. Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 6.2 (Invoicing and Payment).
14.8. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the nonassigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.9. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
15.1 Confidential Information. In the course of this Agreement, each party may obtain nonpublic information from the other party that is confidential and/or proprietary in nature (“Confidential Information”). Such Confidential Information includes, but is not limited to, the terms of this Agreement, information relating to the Licensed Information, information regarding a party’s current, future and proposed products and services, product designs, plans and roadmaps, prices and costs, trade secrets, patent applications, development plans, ideas, samples, media, techniques, works of authorship, models, inventions, know-how, processes, algorithms, software schematics, code and source documents, data, formulas, financial information, procurement requirements, customer lists, suppliers, investors, employees, business and contractual relationships, sales and marketing plans, nonpublic personal information of consumers as defined by the Gramm-Leach-Bliley Act (Pub. L. 106-102) and any implementing regulations or guidelines, whether disclosed before or after the Effective Date, and any other information the receiving party knows or reasonably ought to know is confidential, proprietary or trade secret information, of the disclosing party. Confidential Information also includes any and all nonpublic information provided to the disclosing party by third parties.
15.2 Obligations. The parties agree that at all times, and notwithstanding the termination or expiration of this Agreement, they shall hold all Confidential Information of the other party in strict confidence and trust, and shall not use, reproduce or disclose the Confidential Information of the other party to any person or entity except as specifically permitted in this Agreement. Each party may disclose Confidential Information of the other party to its employees, contractors, service providers, consultants and advisors who have previously agreed to be bound by terms and conditions at least as restrictive as those set forth in this Agreement and who have a need to know such information.
15.3 Exclusions to Confidentiality. The restrictions on use and disclosure of Confidential Information set forth in Section 8.2 shall not apply to the extent the Confidential Information: (i) is or becomes generally available to the public through no fault of the receiving party (or anyone acting on its behalf); (ii) was previously rightfully known to the receiving party free of any obligation to keep it confidential; (iii) is subsequently disclosed to the receiving party by a third party who may rightfully transfer and disclose the information without restriction and free of any obligation to keep it confidential; (iv) is independently developed by the receiving party or a third party without reference or access to the disclosing party’s Confidential Information; or (v) is otherwise agreed upon by the parties not to be subject to the restrictions set forth in Section 8.2. Notwithstanding that portions of the Licensed Information may be derived in whole or in part from publicly available sources, the Licensed Information and any of RealtyTrac’s databases used in deriving the Licensed Information are proprietary, copyrighted and trade secrets of RealtyTrac and its third party data providers and, for the avoidance of doubt, are not excluded under this Section 8.3 from the restrictions on use and disclosure set forth in Section 8.2.
15.4 Disclosures Required by Law. The receiving party may disclose Confidential Information if required to do so as a matter of law, regulation or court order, provided that: (i) the receiving party shall, unless not permitted by law, regulation or court order, promptly notify the disclosing party of any such request for disclosure, (ii) the receiving party shall disclose only that portion of the Confidential Information that is legally required to be furnished, and (iii) the receiving party shall cooperate with the disclosing Party and/or use its own reasonable efforts to seek from the party to which the information must be disclosed confidential treatment of the disclosed Confidential Information.
16. LICENSE RESTRICTIONS
16.1 Licensee shall not use the Licensed Information for any purpose other than the Permitted Uses. Licensee shall not disclose, deliver, disseminate, reproduce or the Licensed Information in Bulk Format.
16.2 Unless expressly authorized in the Permitted Uses, Licensee shall not: (i) disclose, deliver, disseminate, reproduce or publish any portion of the Licensed Information in any manner; (ii) sublicense, resell, relicense or redistribute the Licensed Information in whole or in part; (iii) commingle, process, modify or combine any portion of the Licensed Information with Other Data; (iv) use the Licensed Information to create, develop, enhance, or structure any database, or to create models, analytics, derivative products or other derivative works for resale or external distribution; (v) disassemble, decompile, or reverse engineer the Confidential Information or any portion of the Licensed Information; (vi) allow access to the Licensed Information through any servers located outside of Licensee’s or Customer’s operations or facilities, except that employees and third party service providers of Licensee or Customers may use the Licensed Information remotely via VPN connections in connection with the performance of their duties for Licensee or Customers, as applicable; (vii) use the Licensed Information in any way that is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (viii) use the Licensed Information in any way that infringes RealtyTrac’s or any other third party’s copyright, patent, trademark, trade secret, or other proprietary rights or rights of publicity or privacy; (ix) use the Licensed Information in a manner which violates any law, statute, ordinance, or governmental regulation (including without limitation the laws and regulations governing unfair competition, anti-discrimination or false advertising); (x) publish or publicly disclose the results of any comparison of Licensed Information to Other Data; or (xi) selectively extract data elements from any Licensed Information for any purpose other than the Permitted Uses.
16.3 Licensee shall not and shall not allow Customers to sublicense, resell, relicense or redistribute the Licensed Information, in whole or in part, to any entity that is domiciled outside of the United States or Canada.
16.4 Licensee shall abide by all applicable federal, state, and local laws and regulations of any kind, including but not limited to governing fair information practices and consumers’ rights to privacy, including without limitation, any applicable non-solicitation laws and regulations. Licensee shall limit access to consumer information, including without limitation, any consumer information contained in the Licensed Information, to those individuals who have a “need-to-know” in connection with Licensee’s business and shall obligate those individuals to acknowledge consumers’ rights to privacy and adhere to fair information practices.
16.5 Licensee shall not use the Licensed Information: (i) as a factor in establishing an individual’s eligibility for credit or insurance; (ii) in evaluating an individual for employment purposes; (iii) in connection with a determination of an individual’s eligibility for a license or other benefit granted by a governmental authority; (iv) in a way that would cause the Licensed Information to constitute a “consumer report” under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq.; or (v) in any other manner that would cause such use of the Licensed Information to be construed as a consumer report by any authority having jurisdiction over any of the parties.
16.6 Licensee shall obtain any necessary licenses, certificates, permits, approvals, or other authorizations required by all laws, statutes, ordinances and regulations applicable to the Permitted Uses.
16.7 Licensee shall not use the Licensed Information in any way that would cause the Licensed Information to constitute a ‘consumer report’ under the Fair Credit Reporting Act, 15 U.S.C. Sec. 1681 et seq. or similar statute, or by any other authority having jurisdiction over the parties.
16.8 Licensee shall use commercially reasonable efforts to prevent scraping by unauthorized parties on any web portals that display any Licensed Information in whole or in part.
16.9 The restrictions on Licensee’s use of the Licensed Information set forth herein shall apply to any use of the Licensed Information by Customers. Further, Licensee shall take all commercially reasonable steps to enforce the terms of the Customer Agreement.
17. CUSTOMER AGREEMENT
17.1 In addition to the clauses set forth below, the Customer Agreement shall include restrictive provisions materially similar to Section 16 (License Restrictions), Section 7.7 (Proprietary Rights); Section 7.8 (Trademarks), and Section 15 (Confidentiality).
17.2 Customer may use the Licensed Information internally, and shall not use any Licensed Information for reproduction, sale, publication, or any other use in relation to any product or service to be provided to any third party, or any other commercial exploitation except as expressly provided in the applicable Schedule;
17.3 Customer shall not acquire any proprietary rights in or to the Licensed Information, which rights remain in RealtyTrac and/or its third party data providers, and Customer acknowledges that the Licensed Information is a valuable commercial product, the development of which has involved the expenditure of substantial time and money;
17.4 Customer acknowledges that the Licensed Information is sourced from public documents or statistical calculations, is provided on an “as is, as available” basis with all faults and defects, and neither RealtyTrac, Licensee, nor their third party data providers make any warranties, express or implied, including without limitation, those of merchantability and fitness for a particular purpose. Further, neither RealtyTrac, Licensee, nor their third party data providers are responsible for errors, omissions, miscalculations, or misrepresentations of value; and
17.5 Any use of the Licensed Information by Customer shall be at its own risk, and Customer shall indemnify and hold harmless RealtyTrac, Licensee, and Third Party Data Suppliers with respect thereto.