WHEREAS, RealCloud, Inc. has developed an application (the "Service") that allows third parties to view and access data from a database of multifamily, residential and commercial property owners via the www.realcloud.us websites (the "website") and
WHEREAS, Customer desires to utilize the Service to access certain data which is owned or licensed by RealCloud, Inc. (the "Data"), subject to the restrictions and limitations set forth herein.
NOW THEREFORE, in consideration of the mutual covenants herein and other good and valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows.
SECTION 1. SERVICES.
1.1 SERVICE; LICENSE. Pursuant to the terms and conditions of this Agreement, RealCloud, Inc. grants Customer a non-exclusive, non-transferable, non-assignable, limited license to use the WEBSITE to query RealCloud, Inc.`s servers and access and use the Data residing on the servers (subject strictly to the terms and restrictions of this Agreement, including in Section 1.3, below). The foregoing license extends only to the number of unique users for the counties outlined in Exhibit C. The foregoing license shall terminate immediately upon any termination or expiration of this Agreement, including a termination by RealCloud, Inc. due to Customer`s breach. Customer shall be solely responsible for all costs associated with accessing the Data via the WEBSITE (e.g., internet connection costs, bandwidth costs). Such access may be accomplished via any electronic medium, including but not limited to the internet, intranets, portals, land-based lines, cable and wireless services.
1.2 PAYMENTS AND FEES. Customer agrees to pay RealCloud, Inc. for all services ordered in accordance with the payment schedule set forth in Exhibit B. Customer authorizes RealCloud, Inc. to debit the customers credit card for payments. Customer may not license any third parties the right to reproduce or otherwise utilize the WEBSITE or the DATA. Customer acknowledges and agrees that Customer shall be solely responsible for ensuring that any queries are effected by Customer in accordance with the restrictions outlined in Exhibit C. Each RealCloud, Inc. invoice is due and payable on receipt. Any amounts unpaid for thirty (30) days from the invoice date shall be subject to an interest charge of 1.5% per month. Failure to pay any amounts(s) owed when due may result in immediate discontinuance or suspension of the Service. Remedies for non payment past 30 days include, but are not limited to, legal action to collect the full amount of unpaid payments on the contract or submission of the customer`s information to collection agencies and credit reporting companies to collect the full unpaid amount of the contract which may result in damage to the customer`s credit score.
1.3 RESTRICTED USES. Unless explicitly allowed under Exhibit C or in the "REALCLOUD, INC.SERVICE AGREEMENT", Customer shall not:
(a) Copy, Reproduce, or Resell the Data
(b) Share unique user names or the data with other members of the customer`s organization that are not specified as users in Exhibit C.
(c) offer the Data via CD-ROM disc, optical disk, magnetic tape or via other physical media;
(d) further sell, license, or distribute the Data;
(e) use the Data in violation of any federal, state, or local law, rule, or regulation, including but not limited to laws regulating unsolicited (phone, fax, sms, email) advertising (e.g., the Telephone Consumer Protection Act, do-not call, CAN-SPAM), laws regulating privacy or credit information (e.g., the Fair Credit Reporting Act or other laws regulating consumer credit, the Health Insurance Portability and Accountability Act (HIPAA)).
(f) use the Data for purposes other than its own internal business purposes;
(g) use non-commercial phone records for marketing purposes
(h) use service to reverse engineer or compete with RealCloud, Inc.
(i) use real estate agent contact info for any marketing purposes or solicitation purposes other than End Users contacting an agent to make an offer on a property.
1.4 RESERVATION OF RIGHTS. Customer acknowledges and agrees that it has no rights to the Service, WEBSITE, or Data, except for the limited right to utilize the Service and WEBSITE (and access the Data) as set forth above, and during the Term (as defined below). RealCloud, Inc. expressly reserves all rights in the Service, WEBSITE, and Data including data that is contributed by the Customer`s end users to WEBSITE and RealCloud, Inc. The customer represents and warrants that any data added to the website by the customer does not violate the rights of any 3rd parties and the customer has full legal authority to do so. Nothing herein shall be construed to grant to Customer any rights in any trademarks or service marks of RealCloud, Inc.
1.5 AVAILABILITY; SUPPORT. RealCloud, Inc. shall use commercially reasonable efforts to provide the Service to Customer twenty-four (24) hours a day, seven (7) days a week (subject to normal maintenance downtimes), pursuant to the terms and conditions provided herein. RealCloud, Inc. shall use commercially reasonable efforts to provide Customer support in accordance with its prevailing support policies.
2.1 TERM. The term of the Agreement (the "Term") shall begin on the Effective Date and continue as set forth in Exhibit A.
2.2 TERMINATION. Termination provisions shall be set forth in Exhibit A
2.3 SUSPENSION OF SERVICE. In the event RealCloud, Inc. cannot obtain, or loses the Data or rights to provide the Data to Customer, is required to suspend or terminate (or in RealCloud, Inc.`s opinion may be required to suspend or terminate) the Service by order of a regulatory agency having jurisdiction, or by reason of any self-regulatory agency rule, law, statute, or regulation, whether federal, state, or local, which may restrict provision of the Service and access of the Data, is threatened with a claim of infringement (or in RealCloud, Inc.`s opinion may be so threatened) with respect to the Service, or otherwise is unable to provide the Service, RealCloud, Inc. may terminate this Agreement with seven (7) days written (or e-mail) notice. Upon such termination RealCloud, Inc. will have no further liability to Customer (except to refund pro rata any pre-paid fees for the remainder off the term).
2.4 DEFAULT & TERMINATION. RealCloud, Inc. may immediately terminate this Agreement or temporarily suspend the Service (effective upon written or email notice), at any time, if (a) Customer is in violation of local, state or federal laws or regulations, or (b) Customer breaches any term in this Agreement.
2.5 SURVIVAL. Sections 1.3 and 1.4, and Section 3 shall survive the expiration or termination of this Agreement.
2.6 AGREEMENT MODIFICATIONS. Customer hereby agrees that RealCloud, Inc. may change, revise, or modify the terms and conditions of this Agreement at any time, in its sole discretion; provided that RealCloud, Inc. provides Customer written or email notice of such changes and Customer continues to use the Service after the date seven (7) days from the receipt of such notice (such continued use shall constitute acceptance of the new or revised terms). If Customer does not agree to such changes or modifications, it may terminate this Agreement with written/e-mail notice within said seven (7) day period as its sole and exclusive remedy and refund any pre paid fees for the remainder of the term on a pro rata basis.
3.1 CONFIDENTIALITY. Customer shall not reveal to third parties any material non-public information learned by Customer in the course of utilizing the Service or the WEBSITE, including, but not limited to, rate schedules and the terms of this Agreement.
3.2 CUSTOMER MARKS. Customer hereby grants to RealCloud, Inc. a non-exclusive and limited license to use, reproduce, and display Customer`s trade names, logos and other trademarks and service marks (the "Customer Marks") in connection with RealCloud, Inc. advertising, marketing and promotion of the Service. Further, at RealCloud, Inc.`s request, Customer will use reasonable efforts to provide RealCloud, Inc. with data and qualitative input about the application of the Service for use in marketing materials such as use cases, white papers and testimonials (the "Marketing Materials") on RealCloud, Inc. operated Web sites or in similar print materials. Customer acknowledges and agrees that RealCloud, Inc. has all rights in such Marketing Materials, and may freely use and distribute such Marketing Materials. Customer additionally acknowledges that any unsolicited positive feedback Customer provides to RealCloud, Inc., may be used by RealCloud, Inc. for inclusion in Marketing Materials (e.g., customer testimonials). Except as set forth herein, Customer retains all rights in the Customer Marks.
3.3 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REALCLOUD, INC. SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, DATA, THE WEBSITE, AND ANY OTHER MATERIALS MADE AVAILABLE BY IT TO CUSTOMER, INLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF CUSTOMER IS ADVISED OF THE PURPOSE), WARRANTIES AGAINST INTELLECTUAL PROPERTY AND OTHER INFRINGEMENT AND THE IMPLIED WARRANTIES ARISING FROM A PARTICULAR COURSE OF DEALING OR USAGE OR TRADE. REALCLOUD, INC. SPECIFICALLY DISCLAIMS ANY CLAIM IN TORT (INCLUDING NEGLIGENCE), IN EACH CASE, WITH RESPECT TO THE SERVICE, DATA, WEBSITE, OR ANY OTHER MATERIALS PROVIDED BY REALCLOUD, INC. AND ANY OTHER INFORMATION TECHNOLOGY, CONTENT, PRODUCTS OR SERVICES PROVIDED BY REALCLOUD, INC. UNDER THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER.
3.4 LIMITATION OF LIABILITY. REALCLOUD, INC.`S ENTIRE LIABILITY AND CUSTOMER`S EXCLUSIVE REMEDY, IN LAW, IN EQUITY, OR OTHERWISE, WITH RESPECT TO, OR ARISING OUT OF THIS AGREEMENT AND/OR FOR ANY BREACH OF THIS AGREEMENT BY REALCLOUD, INC. IS SOLELY LIMITED TO THE AMOUNT CUSTOMER PAID DURING THE TWELVE (12) MONTH PERIOD PRIOR TO SUCH BREACH. REALCLOUD, INC. WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT, THE DATA, WEBSITE, OR THE SERVICE IN ANY MANNER, INCLUDING LIABILITIES RESULTING FROM (1) THE USE OR THE INABILITY TO USE THE SERVICE OR MALFUNCTIONS IN THE SERVICE, INACCURACY OR INCOMPLETENESS OF THE UNDERLYING DATA; (2) THE COST OF PROCURING SUBSTITUTE SERVICES; (3) ANY SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; OR (4) UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER`S TRANSMISSIONS OR DATA THROUGH THE SERVICE, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF REALCLOUD, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
3.5 REPRESENTATIONS AND WARRANTIES. Customer represents and warrants to RealCloud, Inc. that (1) it is authorized to enter into this Agreement, and the signatory signing this Agreement is authorized to bind Customer and make payments using the mechanism used; (2) Entry into this Agreement shall not violate any outstanding obligation Customer has to any third party; (3) Customer shall use the Service and the WEBSITE strictly in accordance with the limitations set forth in this Agreement, including in Section 1.3; (4) Customer has provided accurate contact information; and (5) Customer will ensure that its end users comply with the restrictions set forth in this Agreement (including Section 1.3) and are only allowed to access the Service subject to entry into terms and conditions containing any restrictions set forth herein (including Section 1.3).
3.6 INDEMNIFICATION. Customer shall indemnify, defend and hold harmless RealCloud, Inc. and any of their officers, affiliates, directors, shareholders, employees and agents, from and against any and all loss, costs damage assessments, injuries, expenses (including but not limited to reasonable attorneys` fees and costs), claims and liabilities arising out of or incurred due to Customer`s: (1) breach of this Agreement, (2) misuse of the Service, (3) negligence, misconduct, misrepresentation to its customers/end users, and (4) failure to abide by the restrictions set forth in Section 1.3. Customer shall not, without the prior written consent of RealCloud, Inc., settle, compromise or consent to the entry of any judgment that could impose any liability or obligation upon RealCloud, Inc.. If RealCloud, Inc. is threatened with suit or sued by a third party, RealCloud, Inc. may seek written assurances from Customer concerning Customer`s promise to indemnify Company; and failure to provide such assurances may be considered by RealCloud, Inc. to be a material breach of this Agreement. RealCloud, Inc. will have the right to participate in any defense by Customer of any indemnified claim, with counsel of RealCloud, Inc.`s choice at Customer`s expense.
3.7 ENTIRE AGREEMENT. This Agreement (including all Exhibits) contains the entire understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements and understanding, express or implied or written, among the parties. This Agreement cannot be modified or amended without the written consent of both parties.
3.8 GOVERNING LAW. This Agreement will be governed by and interpreted in accordance with the applicable U.S. federal law and the laws of the State of California without regard to choice of law provisions. Each party hereto (i) consents to and waives any objections to personal jurisdiction, service of process, and venue in the state and federal courts located in Santa Clara County, California, and (ii) agrees that any action or proceeding arising out of or related to this Agreement will be filed and prosecuted only the aforementioned courts. The most prevailing party in any legal action relate to this Agreement shall be entitled to its reasonable attorneys` fees. Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action brought by Customer against RealCloud, Inc. and arising out of or related to use of the Service, the WEBSITE, or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
3.9 INDEPENDENT CONTRACTORS. RealCloud, Inc. and Customer are independent contractors under this Agreement, and nothing herein will be construed to create a partnership, joint venture, franchise or agency relationship between RealCloud, Inc. and Customer. Neither party has any authority to enter into an agreement of any kind on behalf of the other party.
3.10 FORCE MAJEURE. Except with respect to payment obligations hereunder, neither party will be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance or interruption of the Service, resulting directly or indirectly from acts of nature, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications or Internet services or network provider services, failure of equipment and/or software, other catastrophes or any other occurrences which are beyond each party`s reasonable control.
3.11 ASSIGNMENT. Customer may not assign, delegate, or transfer its rights and obligations under this Agreement to any third party (including but not limited to a successor-in-interest, or pursuant to a sale, merger, or other corporate transaction) without the express prior written consent of RealCloud, Inc. Customer acknowledges that RealCloud, Inc. may assign this Agreement without Customer`s consent (a) in connection with the assignment, sale or transfer of at least a majority of RealCloud, Inc.`s assets or outstanding voting securities, and (b) to a successor-in-interest pursuant to a merger or other corporate combination. All the terms, provisions, and conditions of this Agreement shall inure to the benefit of and shall be enforceable by the parties hereto and their respective successors and assigns.
3.12 OPPORTUNITY TO NEGOTIATE. Customer has had an opportunity to engage counsel of its choice, and to review, and negotiate all of the provisions of this Agreement. Accordingly, the Agreement shall be considered to be jointly drafted by the parties and not interpreted against either party.
3.13 EMAIL AND PHONE COMMUNICATIONS. Customer agrees from time to time that RealCloud, Inc. may send notifications via email, phone or mail to the customer and the customer agrees to receive these communications.
RealCloud, Inc. may terminate this agreement at any time for any reason unless the customer has paid for the service in which case neither party shall have the right to terminate prior to the expiration of the subscription term outlined in the REALCLOUD, INC. SERVICE AGREEMENT except as provided in section 2.3 . Upon termination, the customer shall cease to have access to the website and provided the customer does not have an outstanding balance owed, no further billings shall take place. No refunds will be processed for billings that occurred prior to the termination.
The access to the service shall be free of charge except as specified in the RealCloud Service Agreement.
SCOPE OF USE / ADDITIONAL RESTRICTIONS
This Exhibit C sets forth the scope of use and additional restrictions with respect to Customer`s use of the Service and access of the Data. The scope of acceptable use set forth herein shall be subject to the limitations in Section 1.3 of the Agreement, and unless this Exhibit C specifically references provisions of Section 1.3 of the Agreement, the limitations of Section 1.3 shall take precedence over the scope of acceptable use set forth herein.
Number of Unique Users:
Except as specified in the REALCLOUD, INC.SERVICE AGREEMENT, Access to the website will be restricted to the following number of unique user logins for the Customer only : 1.
Geographic and Data Field Restrictions:
Except as specified in the REALCLOUD, INC.SERVICE AGREEMENT, Users will have access only to the available fields on the free service which typically include the property address and basic property information and may change from time to time. All other fields will be blocked.
Export and Phone Number Usage Restrictions:
Except as specified in the REALCLOUD, INC.SERVICE AGREEMENT, The customer shall not have access to any phone records or export features.