Last Modified on May 8, 2019
BY AGREEING TO THESE TERMS (INCLUDING BY A CLICK-THROUGH OR OTHER AGREEMENT), CUSTOMER EXPRESSLY ACKNOWLEDGES THAT CUSTOMER HAS READ THESE TERMS AND AGREES TO ALL OF THEIR RESPECTIVE TERMS AND CONDITIONS. Also, by agreeing to these Terms (including by a click-through or other agreement), Customer is waiving, to the extent permitted under applicable law, any rights or legal requirements that require an original (non-electronic) signature or the delivery or retention of non-electronic records in order for a contract to be legally binding. If Customer uses the Products, Customer will be deemed to have accepted these Terms. These Terms will apply, and Customer will be deemed to have accepted these Terms, to the extent they are incorporated by reference into an Order. If an individual is using the Products on behalf of such individual’s employer or another entity that is the Customer under these Terms, such individual represents and warrants that they have full legal authority to bind the Customer to these Terms. If an individual does not have such authority, then such individual may not use the Products on behalf of Customer and they must discontinue all use of the Products immediately.
The Customer and HouseCanary, each of whom may hereinafter be referred to as a “Party”, and collectively as the “Parties” hereby agree as follows:
1. Definitions. As used herein, the following terms shall have the meanings set forth below:
a. “Agile Certified” means, if licensed, a proprietary insurance-backed real estate evaluation report with respect to a Subject Property and the Agile Data included therein, as and in the form made available by HouseCanary from time to time in its discretion.
b. “Agile Evaluation” means, if licensed, a proprietary real estate evaluation report with respect to a Subject Property and the Agile Data included therein, and any associated inspection or other services provided in connection therewith, as and in the form made available by HouseCanary from time to time in its discretion.
c. “Agile Insights” means, if licensed, a proprietary real estate pre-appraisal evaluation report with respect to a Subject Property and the Agile Data included therein, as and in the form made available by HouseCanary from time to time in its discretion.
d. “Agile Suite” means, if licensed, the proprietary valuation reports and services with respect to a Subject Property, including, without limitation, Agile Insights, Agile Evaluation and Agile Certified, and any associated inspection or other services provided in connection therewith, as and in the form made available by HouseCanary from time to time in its discretion.
e. “Agile Report” means, if the Agile Suite or any portion thereof is licensed, as applicable, an Agile Certified, Agile Evaluation or Agile Insights report.
f. “Agile Data” means, if the Agile Suite or any portion thereof is licensed, any and all proprietary analytics, statistics, data, scores and metrics, risk factors, forecasts, images and condition assessments included by HouseCanary in any given Agile Report, including, without limitation, all information contained in any valuation, such as measurements, interior and exterior photos of residential properties that are the subject of a given valuation, photos of comparable residential properties, and all specific characteristics and related factual or subjective data of or relating to any Subject Property (including, without limitation, square footage, location characteristics, and other property information arising from a valuation).
g. “Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by, or under direct or indirect common Control with such Person.
h. “Analytics Materials” means, if Data Explorer is licensed, a specified set of proprietary analytics, statistics, data, scores and metrics, reports, risk factors and/or forecasts, including, if specifically licensed, the set of endpoints in Annex 1 herein, as may be made available from time to time in HouseCanary’s sole discretion, that may be licensed to Customer from time to time pursuant to a given Order and delivered via the Data and Analytics API or Match & Append.
i. “Analytics Platform” means the HouseCanary proprietary software and web platform that allows Customer to access and use the Products.
j. “API” means any application programming interface applicable to a given Product, as made available by HouseCanary from time to time in its sole discretion.
k. “Control, Controlling and Controlled” means, with respect to any Person, the possession, directly or indirectly, of the affirmative power to direct or cause the direction of the management and policies of such Person, whether through the ownership of securities, partnership interests or other ownership interests, by contract, by membership or involvement in the board of directors or other management structure of such Person, or otherwise.
l. “Customer Reports” means reports, documents or presentations created by Customer using independent skill and effort and which incorporate, make available and/or display the applicable Licensed Materials in addition to a substantial amount of materials that are not Licensed Materials.
m. “Data and Analytics API” means, if Data Explorer is licensed, the API pursuant to which HouseCanary may make Analytics Materials available pursuant to a given Order, as and in the form made available by HouseCanary from time to time in its discretion.
n. “Data Explorer” means, if licensed, HouseCanary-provided means to access to Analytics Materials made available by HouseCanary from time to time in its sole discretion, including the Data and Analytics API and Match & Append, subject to the terms and limitations more specifically set forth in a given Order.
o. “HouseCanary Brand Features” means “HouseCanary”, the HouseCanary (House and Canary) logo and any other trademarks, trade names, service marks, service names, logos and other distinctive brand features of HouseCanary or its Affiliates, and any additions, modifications or improvements to the foregoing, that (i) may be made available by HouseCanary from time to time in its sole discretion, and (ii) that HouseCanary incorporates into any Licensed Materials.
p. “HouseCanary Intellectual Property” means the Products, API, the Licensed Materials (including, without limitation, any Licensed Materials underlying, or contained in, any Customer Report), the HouseCanary Site, the HouseCanary Brand Features, all software source code and object code embodied in the Products, API and Licensed Materials and any and all component parts thereof, any and all documentation relating to the Products, API and any Licensed Materials, and all copyrights, trade secrets, patents, trademarks, service marks, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property and proprietary rights therein or arising therefrom, as they may exist now and/or hereafter come into existence, and all renewals and extensions thereof. The HouseCanary Intellectual Property includes, without limitation, HouseCanary’s knowledge of business principles, and those analytical concepts, approaches, methodologies, models, algorithms, processes, discoveries, ideas, and formats developed by HouseCanary in the course of its work for other parties, or during its own research or research with others, as well as all databases therein.
q. “HouseCanary Site” means HouseCanary’s website located at www.housecanary.com or any underlying website or webpage located at the housecanary.com domain.
r. “Internal Business Purposes” means the Customer’s use, reproduction and storage of the applicable Products or Licensed Materials, as applicable, solely within the Customer’s organization for Customer’s own internal research and analysis with respect to one or more Subject Properties, including, without limitation, for the purposes of facilitating a real estate purchase, sale or lending transaction, and not for the purposes of competing with HouseCanary or the Products or exploiting the same commercially vis-à-vis any third party.
s. “Licensed Materials” means, as and to the extent applicable, the following materials that may be licensed to Customer from time to time pursuant to a given Order: Analytics Materials, the Agile Reports, the Market Explorer Materials and/or the Property Explorer Materials, and if licensed in a given Order and made available by HouseCanary to support any of the foregoing, the Underlying Data.
t. “Market Explorer” means, if licensed, the HouseCanary application software made available via the Analytics Platform that provides interactive neighborhood analysis via customized reports and analytics (including, without limitation, via PDF, HTML or an API), as and in the form made available by HouseCanary from time to time in its discretion.
u. “Market Explorer Materials” means, if Market Explorer is licensed, the proprietary analytics, statistics, data, scores and metrics, risk factors and forecasts that may be included by HouseCanary in its discretion within the customized reports and analytics delivered via Market Explorer, including with respect to a Subject Property.
v. “Match & Append” means, if Data Explorer is licensed, the HouseCanary application software made available via the Analytics Platform that allows Customer to upload a CSV file and receive Analytics Materials pursuant to a given Order, as and in the form made available by HouseCanary from time to time in its discretion.
w. “Order” means a website order form, written purchase order, license agreement, master services agreement or other written or electronic document setting forth the Products and/or Licensed Materials licensed by Customer and any other applicable terms and conditions agreed between HouseCanary and Customer.
x. “Order Manager” means the HouseCanary order management dashboard and platform made available via the Analytics Platform that allows Customer to submit, track orders of and receive Agile Reports.
y. “Person” means any individual, company (whether general or limited), limited liability company, corporation, trust, estate, association, nominee or other entity.
z. “Products” means the following software and analytics products that may be licensed to Customer from time to time pursuant to a given Order: Agile Suite (or the applicable Agile Reports thereunder), Custom Products, Market Explorer, Property Explorer and Data Explorer.
aa. “Property Explorer” means, if licensed, the HouseCanary application software made available via the Analytics Platform that provides interactive data and details relating to a given Subject Property (including, without limitation, via PDF, HTML or an API), as and in the form made available by HouseCanary from time to time in its discretion.
bb. “Property Explorer Materials” means, if Property Explorer is licensed, the proprietary analytics, statistics, data, scores and metrics, risk factors and forecasts that may be included by HouseCanary in its discretion within the display, reports and analytics made available via Property Explorer with respect to a Subject Property.
cc. “Subject Property” means an individual real estate property or parcel.
dd. “Term” has the meaning set forth in Section 11.a.
ee. “Underlying Data” means, if and to the extent licensed in a given Order, any data or information provided, directly or indirectly, by HouseCanary to Customer for the purpose of supporting the information contained in any Analytics Materials, the Market Explorer Materials and/or the Property Explorer Materials.
2. License Grants.
a. HouseCanary Products License. Subject to the terms and conditions of these Terms and any Order, including, but not limited to, Customer’s timely and complete payment to HouseCanary of all applicable fees, HouseCanary grants to Customer a limited, non-exclusive, non-sublicensable and non-transferable license during the applicable Term to access and use the Products via the Analytics Platform, in object code format, in accordance with the following rights and licenses, if and to the extent licensed in a given Order:
i. a limited, non-exclusive, non-sub-licensable and non-transferable license during the applicable Term to access and use the Products set forth in the given Order, in object code format, as applicable, for Internal Business Purposes;
ii. a limited, non-exclusive, non-sub-licensable and non-transferable license during the applicable Term to: (A) copy, store and use the Market Explorer Materials obtained by Customer during the applicable Term (i) for Customer’s Internal Business Purposes, and/or (ii) to create Customer Reports, and/or (B) copy, store, use and make available Customer Reports incorporating, making available and/or displaying Market Explorer Materials obtained by Customer during the applicable Term for (i) Customer’s Internal Business Purposes, and/or (ii) the purposes of Customer’s marketing, purchase and/or sale of real estate and/or marketing the loans available with respect thereto, and/or (iii) the purposes of facilitating the origination, purchase, sale or transfer of real estate or loans;
iii. a limited, non-exclusive, non-sub-licensable and non-transferable license during the applicable Term and thereafter to: (A) copy, store and use any Analytics Materials and/or Property Explorer Materials obtained by Customer during the applicable Term (i) for Customer’s Internal Business Purposes, and/or (ii) to create Customer Reports, and/or (B) copy, store, use and make available any Analytics Materials and/or Property Explorer Materials obtained by Customer during the applicable Term and/or any Customer Reports incorporating, making available and/or displaying Analytics Materials and/or Property Explorer Materials obtained by Customer during the applicable Term, for (i) Customer’s Internal Business Purposes, and/or (ii) the purposes of Customer’s marketing, purchase and/or sale of real estate and/or marketing the loans available with respect thereto, and/or (iii) the purposes of facilitating the origination, purchase, sale or transfer of real estate or loans;
iv. (A) a limited, non-exclusive, non-sublicensable and non-transferable license during the applicable Term to use the Order Manager, in object code form only, for the limited purpose of accessing the Agile Suite and ordering and managing the orders of Agile Reports; and (B) a non-exclusive, transferable, sublicensable, perpetual, irrevocable right and license to distribute, disclose, copy, reproduce, display, make available, transmit, transfer, assign, provide access to and use, directly or indirectly (including in electronic form), in any and all mediums, all Agile Reports received during the Term for the limited purpose of facilitating the origination, purchase, sale or transfer of real estate or loans; and
v. if any Underlying Data is licensed pursuant to a given Order and made available by HouseCanary to Customer to support the information contained in any Analytics Materials, the Market Explorer Materials and/or the Property Explorer Materials, a limited, non-exclusive, non-sublicensable and non-transferable license during the applicable Term to use such Underlying Data for Customer’s marketing purposes and Customer’s Internal Business Purposes.
b. HouseCanary Brand Features License. Subject to the terms and conditions of these Terms, HouseCanary hereby grants to Customer a limited, non-exclusive, non-sublicensable and non-transferable license to display the HouseCanary Brand Features as they appear in any Licensed Materials made available to Customer hereunder solely in connection with Customer’s use of such Licensed Materials as permitted under, and in accordance with, these Terms.
c. Attribution. At any time that any Licensed Materials are incorporated into, displayed or otherwise made available within a Customer Report or otherwise, Customer will, unless otherwise set forth in a given Order, provide attribution to HouseCanary as communicated by HouseCanary from time to time to Customer through an API or otherwise (including on or through any branding guidelines published by HouseCanary from time to time), or as otherwise set forth in the given Order. Any Licensed Materials that are exposed to the general public are subject to additional attribution requirements which includes linkable, SEO-friendly, branded attribution to the relevant property page on comehome.com. or as instructed by HouseCanary.
d. Limitations. Notwithstanding any portion of the foregoing to the contrary, (i) no multiple listing service (MLS) data, as identified by HouseCanary from time to time, may be used or displayed on a stand-alone basis for any marketing purposes, (ii) no Licensed Materials may be made available or displayed to any third party, including, without limitation, to the general public via the Internet or other electronic or print media, including on a website, mobile site or by email or direct mail, for more than thirty (30) days following the date that such Licensed Materials were made available to Customer, unless the presentation or display of such Licensed Materials clearly and conspicuously identifies the date that such Licensed Materials were made available to Customer (or other applicable “as of” date), (iii) except as set forth in a given Order, no Underlying Data may be publicly displayed or made available to consumer end users on a stand-alone basis without charge, and no Underlying Data (in whole or in part) may be resold, relicensed, redistributed or used to create derivative works, and (iv) Customer’s access to API endpoints through Data Explorer and certain reports generated through Property Explorer may be subject to monthly usage limits, as further described in a given Order, and Customer acknowledges that regularly exceeding any such limits may cause HouseCanary to initiate a renegotiation of Customer’s fee structure under the applicable Order (without limitation of any other remedies HouseCanary may have hereunder).
e. Reservations. The licenses granted hereby shall not constitute a sale of the Products, Licensed Materials, or the underlying software and rights therein. All rights not expressly granted to Customer under these Terms are expressly reserved to HouseCanary.
3. Restrictions. Notwithstanding anything to the contrary contained herein, except as expressly permitted herein or otherwise set forth in a given Order, Customer will not (and if applicable, will ensure that its agents and employees do not), directly or indirectly:
a. use the Products or Licensed Materials to analyze, review or obtain information regarding the functionality, features, content, materials or individual elements of the Products or Licensed Materials, whether for commercial purposes or otherwise;
b. derive, mine, extract, scrape and/or store any Licensed Materials for purposes of developing a database of information for any owned or third party software, technology, product or service;
c. provide its credentials or access passwords to the Products to any Person (other than Customer’s direct officers, managers, directors, employees, contractors and agents);
d. modify, merge, decompile, disassemble, scrape, translate, decode or reverse engineer any portion of the Products or Licensed Materials, or technology used by HouseCanary to deliver the Products for any purpose (including, without limitation, to discover or directly access the source code, analytics, algorithms, methodologies or other know-how of the Products, Licensed Materials or any component or portion thereof), or use any data mining, gathering or extraction tool, or any robot, spider or other automatic device or manual process, to monitor or copy any portion of the Products, Licensed Materials, or other technology of HouseCanary or the data generated thereby;
e. (i) use, reproduce, compile, disclose, publish, display, distribute, transmit or make available any portion of the Products or Licensed Materials or technology of HouseCanary or the data generated thereby for the purpose of selling or licensing the same on a stand-alone basis or otherwise; (ii) make any portion of the Products or Licensed Materials publicly available; (iii) create derivative works from the Products or Licensed Materials; or (iv) store the Licensed Materials outside of the United States;
f. use, resell or sublicense the Licensed Materials for use: (i) as a factor in establishing an individual’s eligibility for credit, insurance, or employment; (ii) in connection with a determination of an individual’s eligibility for a license or other benefit granted by a governmental authority; (iii) in connection with underwriting individual insurance; or (iv) in a way that would cause the Licensed Materials to constitute a “consumer report” under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. or similar statute, or by any other authority having jurisdiction over the Parties;
g. promote, sell, resell, lease, sublicense, distribute, copy, transfer, assign, or disclose the Analytics Platform or Order Manager to, or otherwise permit the use of the Analytics Platform or Order Manager by, any person, firm or entity, except as specifically permitted in the applicable Order or these Terms;
h. use the Agile Reports or any Agile Data therein for advertising, marketing or promotional purposes (including for telemarketing purposes), or for any purpose other than to facilitate the origination, purchase, sale or transfer of real estate or loans; or
i. export or re-export the Analytics Platform or Order Manager or copies thereof in violation of the United States Export Administration regulations or any other applicable regulations.
4. Fees and Payment. The following invoice and payment terms apply to Customer’s use and license of the Products and Licensed Materials (for purposes of the invoice and payment terms set forth in this Section 4, the Products and Licensed Materials are collectively referred to as the “Products”). In the event of any conflict between these invoice and payment terms and the terms of any Order, these invoice and payment terms will govern unless expressly set forth in the given Order.
a. Fees and Charges.
i. One-Time Charge: HouseCanary will charge Customer immediately for any single purchase, such as a single Agile Insight.
ii. Monthly Subscription: HouseCanary will charge Customer monthly in arrears for any Products licensed on a monthly subscription basis unless and until Customer or HouseCanary cancels/terminates the Product subscription. Fees will include the monthly subscription and overage fees, if any.
iii. Annual Subscription: HouseCanary will charge Customer annually in advance for any Products licensed on an annual subscription basis unless and until Customer or HouseCanary cancels/terminates the Product subscription. HouseCanary will charge Customer monthly in arrears for overage fees, if any.
iv. Fees Upon Renewal. The foregoing fees are subject to increase at the commencement of each Renewal Term as set forth in Section 11.a.iii
b. Invoices; Payments. Customer will be invoiced monthly or as otherwise set forth in a given Order. Payment for all amounts is due within thirty (30) days of the delivery by HouseCanary of an invoice to the Customer. HouseCanary may, from time to time and at any time, change the amount of or basis for determining any fees or charges. Customer acknowledges that the amount invoiced each month may vary from month to month for various reasons, including due to overage fees, promotional offers, changes to Customer’s Product licenses or subscriptions and changes in taxes and fees, if any. Customer agrees to pay all amounts invoiced for the Products, as well as all taxes, fees, and other charges, if any, that are now or may in the future be assessed in connection with any of the Products that Customer accesses or uses, and any other charges due and owing to HouseCanary.
c. Delinquent Payments. Any payments not received when due will be considered delinquent and subject to interest accrual at a rate of one percent (1%) per month (12% per annum) or the highest amount allowed by law, whichever is lower. Interest on delinquent payments will accrue from the date due until paid. HouseCanary may terminate or suspend Customer’s Account for any failure to timely pay any amounts or maintain up-to-date payment method information within Customer’s Account. State and local taxes or reimbursement charges for gross earnings taxes in some states may apply.
d. No Returns, Credits or Refunds. CUSTOMER UNDERSTANDS AND AGREES THAT PAYMENTS ARE NONREFUNDABLE. HOUSECANARY IS NOT OBLIGATED, AND CUSTOMER IS NOT ENTITLED AND HEREBY WAIVES ANY RIGHT, TO ANY CREDIT, REFUND, PRICE ADJUSTMENT OR ANY OTHER DISCOUNT, COMPENSATION OR RECOMPENSE FOR ANY PARTIALLY USED PRODUCTS (E.G., SUBSCRIPTIONS NOT USED OR TRANSACTIONAL PRODUCTS NOT DOWNLOADED OR FULLY VIEWED). Although not required or obligated, HouseCanary reserves the right to evaluate or elect to provide credits, refunds, price adjustments or other discounts, compensation or recompense, from time to time, and at any time, in its sole and absolute discretion; provided that any such elections to offer any such credits, refund, price adjustments or other discounts, compensation or recompense in one instance does not entitle Customer to the same or any such benefit in the future for similar or unrelated instances, nor does it create any obligation whatsoever for HouseCanary to offer such benefit to Customer or any other user in connection with any past, present, or future requests under any circumstance whatsoever. Any amounts refunded in the form of credits, cash payments or any other form shall be inclusive of all applicable taxes, fees and surcharges that were originally paid on such amounts. Credit amounts that do not represent a refund of, or a discount to, the price paid for any good or service will not result in the refund of any tax, fee, or surcharge previously paid. HOUSECANARY IS NOT RESPONSIBLE FOR CUSTOMER’S FAILURE TO PROPERLY CANCEL A SUBSCRIPTION AND HOUSECANARY DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL SUBSCRIPTION PERIOD.
e. Free Trial. Notwithstanding the foregoing, in some cases, Customer may be provided a free trial or evaluation period to use the Products for a limited period of time free of charge, as may be set forth on the HouseCanary Site or in a given Order. In the case of any free trial, Customer will not be charged during the free trial period or will not be charged for a specified number of specific reports or other Licensed Materials during the free trial, as will be set forth in a given Order. Free trials may be subject to various limitations, including, without limitation, a limited number of accessible reports, a limited number and scope of Analytics Materials, a limited territory and/or a limited time period for the free trial. When Customer agrees to a free trial for the Products, Customer may be asked to authorize, and by accepting these Terms, Customer hereby expressly authorizes HouseCanary to invoice the applicable fees for such Products upon the expiration of the free trial, in each case, as set forth on the HouseCanary Site or in a given Order. For clarity, Customer must notify HouseCanary of its determination to terminate a free trial on or before the last day of the free trial. Unless otherwise set forth on the HouseCanary Site or a given Order, upon the expiration of a free trial, Customer will only be able to access the Products in connection with a paid license, on a pay-per-transaction basis or as otherwise described on the HouseCanary Site or the given Order.
5. Storage and Delivery.
a. Delivery. HouseCanary shall make the applicable Products and Licensed Materials available via the Analytics Platform, and individual Licensed Materials may be made available via PDF electronic file format, HTML, XML, FTP, API or such other medium made available by HouseCanary from time to time. HouseCanary shall deliver each Agile Report in PDF electronic file format, via XML data feed or via such other medium made available by HouseCanary from time to time to a Customer recipient electronic address mutually agreed by the Parties. HouseCanary shall make available and deliver each Agile Report on or through the Order Manager, in each case, in PDF electronic file format or via such other medium made available by HouseCanary from time to time.
b. Storage. HouseCanary shall retain and store all Agile Reports for a period of not less than five (5) years following the delivery thereof to Customer. HouseCanary shall use its reasonable efforts to implement, or to cause its third party service providers to implement, security measures that are customary in the real estate industry for the retention and storage of such information.
6. Intellectual Property.
a. HouseCanary Intellectual Property. As between HouseCanary and Customer, HouseCanary exclusively owns and at all times retains all right, title and interest in and to the HouseCanary Intellectual Property. Customer will not claim for itself or for any third parties any rights, title, interest or licenses to the HouseCanary Intellectual Property, except for the licenses expressly set forth herein. Customer further acknowledges that, as between the Parties, any derivative works, improvements, modifications, feedback, ideas or suggestions made by Customer or HouseCanary with respect to the HouseCanary Intellectual Property are, and shall at all times be, the property of HouseCanary, with all right, title and interest therein. Customer hereby assigns to HouseCanary all right, title and interest that Customer may have in and to any such derivative works, improvements, modifications, feedback, ideas, or suggestions. Notwithstanding the foregoing, except with respect to any HouseCanary Intellectual Property incorporated, made available and/or displayed in a Customer Report (all of which shall remain the exclusive property of HouseCanary), HouseCanary expressly disclaims all right, title and interest in or to any Customer Report, which shall be owned exclusively by Customer. Customer further acknowledges that any goodwill or reputation for any of the HouseCanary Intellectual Property will belong to HouseCanary, with all right, title and interest therein. Customer shall not be entitled to claim recompense or compensation for such enhanced goodwill or reputation.
b. Commercial Work. If Customer violates any portion of Section 3 above, Customer acknowledges, agrees and confirms that any software, data, database, product, service or business (and any and all revenue therefrom) created, designed or developed by Customer that arises as a result of such violation (collectively, a “Commercial Work”), shall be held by Customer in constructive trust for the benefit of and on behalf of HouseCanary until such time that such Commercial Work can be duly assigned to HouseCanary. Customer expressly acknowledges and consents to such constructive trust, and expressly agrees to, upon written notice from HouseCanary, execute and deliver any and all documents deemed reasonably necessary or appropriate by HouseCanary to evidence the due assignment to HouseCanary of any such Commercial Work.
c. Proprietary Notices. Customer shall not remove or modify any trademark, copyright or other proprietary legend, marking, disclaimer or notice contained in any Licensed Materials, whether delivered or communicated via an API or otherwise.
d. Customer Data. “Customer Data” consists of information input into the Products by Customer and Customer behavior on the Products, as captured by the Products. HouseCanary agrees that Customer will own all Customer Data. Customer is ultimately responsible for making and keeping current copies of all Customer Data and related information. Customer hereby grants to HouseCanary a royalty-free, worldwide, perpetual, irrevocable and fully transferable right and license to use Customer Data for the purpose of making available, enhancing, operating, developing and otherwise exploiting HouseCanary’s products and services, including the Products or any other websites and mobile applications, in all events, in a manner that others exercising reasonable diligence cannot determine the Customer Data to be information concerning or describing Customer’s specific business.
a. Confidentiality Obligations. From and after the date Customer accesses the Products, each Party receiving Confidential Information (the “Receiving Party”) of the other Party (the “Disclosing Party”) shall: (i) treat such Confidential Information as the confidential property of the Disclosing Party and be responsible for any breach of the terms hereof by itself or any authorized Person who receives Confidential Information of the Disclosing Party on its behalf; (ii) not use the Confidential Information except as permitted under these Terms; (iii) not disclose or otherwise make available the Confidential Information of the Disclosing Party to any third party (except as authorized herein and other than to such Party’s employees or independent contractors who (A) have a need to know such Confidential Information, (B) have been advised of the confidential nature of such information and the obligations that apply to them in connection therewith and (C) are subject to obligations of confidentiality with respect to such information as stringent as those set forth herein); and (iv) maintain the confidentiality of the Confidential Information of the Disclosing Party as it would its own most highly confidential information, but in no event shall the Receiving Party use less than reasonable care.
b. Confidential Information. “Confidential Information” means, with respect to a given Party, such Party’s formulas, methods, know how, processes, designs, new products, developmental work, marketing requirements, business and marketing plans, customer names, prospective customer names, the terms and pricing under these Terms or any Order, any data relating to any research project, work in process, engineering, manufacturing, marketing, servicing, financing or personnel matter, data relating to such Party’s present or future products, sales, suppliers, clients, customers, employees, investors or business partners (including any confidential information of such suppliers, clients, customers, employees, investors or business partners) and all information clearly identified in writing at the time of disclosure as “confidential”, and in the case of HouseCanary, the Products, API and the Licensed Materials shall be deemed the Confidential Information of HouseCanary. Confidential Information does not include information that: (i) was or is in the public domain prior to the date of disclosure; (ii) was or is lawfully received by the Receiving Party from a third party who is not subject to an obligation of confidentiality with respect to such information; (iii) was or is already known by or in the possession of the Receiving Party; or (iv) is required to be disclosed under applicable law or by a governmental or court order, decree, regulation or rule, provided that the Receiving Party gives written notice to the Disclosing Party to the extent legally permissible prior to disclosure.
c. Data Protection and Security; Breach Notification. Receiving Party shall implement and maintain administrative, technical and physical safeguards (the “Security Procedures”) designed to: (i) ensure the security and confidentiality of Confidential Information; (ii) protect against any anticipated threats or hazards to the security, integrity or confidentiality of Confidential Information; and (iii) protect against unauthorized access to or use of Confidential Information that could result in harm to the Disclosing Party, its employees, customers or consumers. In case of any breach or suspected breach of any systems or physical locations of Receiving Party, including those that may result in the loss or disclosure of Confidential Information (each, a “Security Incident”), Receiving Party will immediately notify Disclosing Party and take prompt action to investigate such Security Incident, identify all losses or potential losses relating to such Security Incident, take all commercially reasonable steps to prevent any similar Security Incident from recurring, and, if necessary, comply with all requirements relating to notifications to any parties who are entitled to Security Incident notifications pursuant to applicable regulations. All such measures will be undertaken at the sole expense of Receiving Party.
8. Representations and Warranties; Indemnities; Disclaimers.
a. Representations and Warranties. Customer represents and warrants to HouseCanary that (i) Customer’s responsibilities, promises and negative covenants herein will be fully complied with and rendered in accordance with all requirements identified in these Terms; and (ii) Customer has the authority to enter into and perform its obligations under these Terms and to grant the rights set forth herein. HouseCanary represents and warrants to Customer that, to the best of HouseCanary’s knowledge, the HouseCanary Intellectual Property does not infringe the copyrights, trademarks, trade secrets or patents of any third party.
i. Customer shall indemnify, defend and hold harmless HouseCanary and its parent entities and its Affiliates and each of their respective officers, directors, managers, members, stockholders, employees, contractors, agents, successors and assigns (the “HC Indemnified Parties”) against any and all claims (alleged or actual), damages, liabilities, losses, charges, obligations, demands, suits at law or in equity, proceedings, violations, penalties, costs and expenses (including, without limitation, investigation costs, expert costs, and attorneys’ fees) raised by a third party and incurred by the foregoing in connection with, arising out of, or in any way related to (i) Customer’s breach of any representation or warranty, or any of its obligations, under these Terms or any Order; (ii) any gross negligence or willful misconduct by Customer; and/or (iii) any display or use by Customer or any third party of the Products, Licensed Materials or Customer Reports.
ii. HouseCanary shall indemnify, defend and hold harmless Customer and its parent entities and its Affiliates and each of their respective officers, directors, managers, members, stockholders, employees, contractors, agents, successors and assigns against any and all claims (alleged or actual), damages, liabilities, losses, charges, obligations, demands, suits at law or in equity, proceedings, violations, penalties, costs and expenses (including, without limitation, investigation costs, expert costs, and attorneys’ fees) raised by a third party and incurred by the foregoing in connection with, arising out of, or in any way related to (i) HouseCanary’s breach of any representation or warranty, or any of its obligations, under these Terms or any Order; or (ii) any gross negligence or willful misconduct by HouseCanary.
iii. The party claiming indemnification pursuant to this Section 8.b. (the “Indemnified Party”) shall promptly notify the other party (the “Indemnifying Party”) of any such claim of which it becomes aware and shall: (i) at the Indemnifying Party’s expense, provide reasonable cooperation to the Indemnifying Party in connection with the defense or settlement of any such claim, and (ii) at the Indemnified Party’s expense, be entitled to participate in the defense of any such claim.
iv. The Indemnified Party agrees that the Indemnifying Party shall have sole and exclusive control over the defense and settlement of any such third party claim. However, the Indemnifying Party shall not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party’s rights or interests without the prior written consent of the Indemnified Party.
v. If HouseCanary is the Indemnifying Party and any claim for indemnification relates to the alleged infringement by the Products or Licensed Materials of any third party intellectual property right, HouseCanary may, at its sole discretion and at its own expense, (i) procure for Customer the right to continue using the Products and Licensed Materials consistent with these Terms, (ii) modify the Products or Licensed Materials so that they become non-infringing, or (iii) immediately terminate these Terms or any given Order with no further liability to Customer.
vi. Notwithstanding any other provision of this Section 8, HouseCanary will have no liability or indemnity obligations for any claim arising (i) from Customer’s alleged breach of a contractual obligation to any third party, whether express, implied or quasi contractual; (ii) from any modifications or customizations of the Products or any Licensed Materials other than by HouseCanary; or (iii) from any non-compliance by Customer with applicable law, regulations and standards. Customer will at its own expense defend, or at its option settle, subject to Section 8.b.iii and 8.b.iv, and hold HouseCanary Indemnified Parties harmless from any action resulting from any claim based on any of the foregoing, including claims for damages and attorneys’ fees.
vii. NOTWITHSTANDING ANYTHING IN THESE TERMS TO THE CONTRARY, SECTION 8.b.v. STATES HouseCanary’S ENTIRE LIABILITY AND LICENSEE’S EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE PRODUCTS OR LICENSED MATERIALS, WHETHER UNDER THEORY OF CONTRACT, WARRANTY, INDEMNITY OR OTHERWISE.
c. Disclaimer of Warranties.
i. EXCEPT AS OTHERWISE EXPRESS SET FORTH HEREIN, THE PRODUCTS, API AND LICENSED MATERIALS ARE PROVIDED “AS-IS” AND WITHOUT ANY OTHER EXPRESSED OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. HOUSECANARY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE PRODUCTS, API, LICENSED MATERIALS, OR THE INFORMATION THEREIN, OR THE OPERATION OR USE THEREOF, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES REGARDING ACCURACY, QUALITY, CORRECTNESS, COMPLETENESS OR COMPREHENSIVENESS. HOUSECANARY HEREBY EXCLUDES ALL IMPLIED WARRANTIES AND CONDITIONS TO THE EXTENT PERMITTED BY LAW, INCLUDING, ANY IMPLIED WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE. HOUSECANARY HEREBY EXCLUDES ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, AND OF NON-INFRINGEMENT, CONCERNING THE PRODUCTS, API, LICENSED MATERIALS, AND OPERATION OR USE THEREOF. HOUSECANARY DOES NOT WARRANT THAT THE PRODUCTS, API OR LICENSED MATERIALS WILL MEET ALL OF CUSTOMER’S BUSINESS REQUIREMENTS, OR THAT THE OPERATION OF THE PRODUCTS OR API WILL BE UNINTERRUPTED OR ERROR FREE.
ii. Customer acknowledges and agrees that projected market and financial information, conclusions and other information contained in the Licensed Materials (and/or HouseCanary’s databases and analytical processes) are not definitive forecasts, appraisals or opinions of valuations, and are subject to market availability and the rights obtained by HouseCanary in the given markets (if any). All such information and conclusions are stated in terms of probability of likelihood based on market factors and information submitted to HouseCanary, and such information and conclusions are not guaranteed by HouseCanary and should not be construed as investment advice or relied upon for critical decision making. HouseCanary uses or has used public and/or confidential data and assumptions provided to HouseCanary by Customer or other third parties, including, without limitation the Customer Data, and HouseCanary has not independently verified the data and assumptions used in these analyses or data sets. Changes in the underlying data or operating assumptions, or any loss of access to any one or more sources will clearly impact the analyses, conclusions and valuations.
iii. Customer acknowledges and agrees that, except as may be expressly provided herein, HouseCanary makes no representations or warranties, express or implied, regarding the Products, API, Licensed Materials (including, without limitation, any Licensed Materials underlying, or contained in, any Customer Report), or the information contained therein, including the recommendations or the advice given therein, and HouseCanary has no liability to Customer, or to any third parties, relating to the use or implementation of the information contained in the Products or Licensed Materials (including, without limitation, any Licensed Materials underlying, or contained in, any Customer Report), or any action, inaction or decisions (including any lending, investment, purchase or disposition decision) that may be made based on the information provided therein. Customer agrees that any decision (including any lending, investment, purchase or disposition decision) regarding or relating to or based on the use or implementation of any output, data, analysis, recommendation or advice contained in the Products or Licensed Materials (including, without limitation, any Licensed Materials underlying, or contained in, any Customer Report) is made solely by Customer, and its agents and employees, at the sole and exclusive discretion of Customer, and its agents and employees. Customer further agrees that Customer, and its agents and employees shall not hold HouseCanary or any of the HC Indemnified Parties liable for the use or implementation by Customer or any other party of the information contained in the Products or Licensed Materials (including, without limitation, any Licensed Materials underlying, or contained in, any Customer Report), or for any action, inaction or decisions (including any lending, investment, purchase or disposition decision) made by Customer or any other party based on the information provided in the Products or Licensed Materials (including, without limitation, any Licensed Materials underlying, or contained in, any Customer Report).
iv. The Products and Licensed Materials are provided solely for general business information, do not constitute real estate, legal, tax, accounting or other professional advice, or an offer to sell or lease real estate, and may not be used for or relied upon for these purposes. No lawyer-client, advisory, fiduciary or other relationship is created by Customer’s acceptance or use of the Products, API or Licensed Materials. Customer shall not use the Products, API or Licensed Materials for personal, family or household purposes or to determine an individual’s eligibility for credit, insurance, employment, or government license or benefit.
v. Customer acknowledges and agrees that HouseCanary’s information providers shall not be liable for any claim or loss resulting from the content of, errors or omissions in, or Customer’s use of the information contained in or retrieved from the Products, API or Licensed Materials or any Customer Report.
9. Limitation of Liability.
a. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE WILLFUL MISCONDUCT, GROSS NEGLIGENCE, BREACH OF CONFIDENTIALITY OR MISAPPROPRIATION OR INFRINGEMENT OF THE INTELLECTUAL PROPERTY OF THE OTHER PARTY, IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY UNDER ANY THEORY OF TORT, CONTRACT, OR STRICT LIABILITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, DATA OR GOODWILL, REGARDLESS OF WHETHER SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, NEITHER PARTY WILL BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS, OR FOR ANY LOST DATA OR CONTENT CAUSED BY ITS RESPECTIVE PRODUCTS, SERVICES OR SOFTWARE.
b. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE WILLFUL MISCONDUCT, GROSS NEGLIGENCE, BREACH OF CONFIDENTIALITY OR MISAPPROPRIATION OR INFRINGEMENT OF THE INTELLECTUAL PROPERTY OF THE OTHER PARTY, OR THE OBLIGATIONS OF THE PARTIES TO THESE TERMS OR ANY GIVEN ORDER PURSUANT TO SECTION 8.b., IN NO EVENT SHALL A PARTY’S TOTAL CUMULATIVE LIABILITY FOR DAMAGES UNDER THESE TERMS OR ANY GIVEN ORDER (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) EXCEED THE AMOUNT PAID BY CUSTOMER TO HOUSECANARY UNDER THE ORDER PURSUANT TO WHICH THE GIVEN CLAIM AROSE DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO THE GIVEN CLAIM, PROVIDED, HOWEVER, THAT IN NO EVENT SHALL THE LIMITATION SET FORTH HEREIN LIMIT A PARTY’S RIGHT TO OBTAIN EQUITABLE RELIEF AGAINST THE OTHER PARTY OR LIMIT A PARTY’S RIGHTS TO ANY AMOUNTS PAYABLE UNDER THESE TERMS OR ANY GIVEN ORDER.
c. EACH PARTY ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY REFLECTS AN INFORMED, VOLUNTARY ALLOCATION BETWEEN THE PARTIES OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THESE TERMS OR ANY GIVEN ORDER.
10. Compliance with Applicable Laws. Customer shall comply with all applicable federal, state, county and local laws, rules, ordinances, regulations, and codes, including those governing privacy, data protection, fair information practices, public records, marketing to consumers, and consumers’ rights to privacy, in connection with its use of the Licensed Materials, Customer Reports or otherwise. Customer will procure all required permits, approvals, inspections and certificates in order to operate its business in compliance with all applicable laws. Customer shall be solely responsible for all uses of the Licensed Materials and/or Customer Reports, including any violation of law arising out of its unauthorized use or misuse of the foregoing.
11. Term and Termination.
a. Term. The term of any subscription or of a given Order will be as set forth in the Order. Except as may be set forth in the given Order:
i. Each Order shall commence on the effective date set forth therein (the “Effective Date”) and shall continue in full force and effect until (1) year from the Effective Date (the “Initial Term”) unless otherwise terminated as described in this section;
ii. Following the Initial Term, the Order shall automatically renew for additional one (1) year terms (each, a “Renewal Term” and together with the Initial Term, the “Term”) unless either party thereto provides notice of its intent not to renew no later than sixty (60) days prior to the end of the then-effective Term; and
iii. The prices charged to Customer pursuant to Section 4.a (including without limitation per-unit pricing and subscription pricing) shall increase by five percent (5%) (measured on the prior Renewal Term or Initial Term, as applicable) at the beginning of each Renewal Term, unless HouseCanary in its sole discretion notifies Customer of different pricing at least sixty (60) days prior to the start of such Renewal Term.
b. Termination for Breach.
i. Termination by HouseCanary. If Customer breaches any material term or condition of a given Order or these Terms, including, without limitation, its payment obligations thereunder, Customer will have thirty (30) days (or five (5) days, in the case of any breach of its payment obligations thereunder) after the delivery of written notice by HouseCanary to cure the breach (if such breach is curable). If such breach is not cured within such thirty (30) day period (or five (5) day period, as applicable), or is not curable, or if Customer becomes insolvent or seeks protection under any bankruptcy, receivership, trust, deed, creditor’s arrangement, or comparable proceeding, or if any such proceeding is instituted against Customer and not dismissed within sixty (60) days, HouseCanary will have the right (but not the obligation) to terminate the applicable Order and/or these Terms.
ii. Termination by Customer. If HouseCanary breaches any material term or condition of a given Order or these Terms, HouseCanary will have thirty (30) days after the delivery of written notice by Customer to cure the breach (if such breach is curable). If such breach is not cured within such thirty (30) day period, or is not curable, or if HouseCanary becomes insolvent or seeks protection under any bankruptcy, receivership, trust, deed, creditor’s arrangement, or comparable proceeding, or if any such proceeding is instituted against HouseCanary and not dismissed within sixty (60) days, Customer will have the right (but not the obligation) to terminate the applicable Order and/or these Terms.
c. Additional Rights of HouseCanary to Suspend or Terminate. Without limiting the provisions of Section 11.b., Customer’s access to the Products may be suspended or terminated if Customer’s payment is past due. HouseCanary may also suspend or terminate Customer’s access to the Products if it is determined that there is previously unpaid, undisputed, and outstanding amounts due with respect to the Products. Such suspension or termination may continue until satisfactory arrangements have been made for the payment of all past unpaid charges. While Customer’s access to the Products are suspended any applicable promotional offers may be discontinued and revoked as determined solely by HouseCanary. Customer may be charged a fee to restore Customer’s access to the Products. In addition, HouseCanary may immediately terminate all or a portion of Customer’s access to the Products or suspend Customer’s access to the Products, without notice, for conduct that HouseCanary believes (a) is illegal, fraudulent, harassing, abusive, or intended to intimidate or threaten; (b) constitutes a violation of any law, regulation, or tariff (including, without limitation, copyright and intellectual property laws); or (c) is a violation of any provision or the spirit of these Terms, or any applicable policies or guidelines, and HouseCanary may refer such use to law enforcement authorities without notice to Customer. For clarity, termination or suspension by HouseCanary of the Products also constitutes termination or suspension (as applicable) of Customer’s license to use any associated software, if applicable. HouseCanary may in its sole discretion, and at any time, discontinue providing the Products, or any part thereof, on notice to Customer.
d. No compensation. Customer shall not be entitled to any compensation (whether for the loss of distribution rights, goodwill or otherwise) as a result of the termination of the applicable Order and/or these Terms in accordance with their respective terms.
e. Effect of Expiration or Termination. Upon any expiration or termination of any given Order or these Terms, Customer will immediately (i) cease all use of the Analytics Platform, the Products and any HouseCanary API; (ii) in the event of a termination of the applicable Order and/or these Terms by HouseCanary pursuant to Section 11.b.i., cease using and return to HouseCanary, or at HouseCanary’s request, destroy, every copy of the Licensed Materials or any derivatives thereof in its possession or control (including the Licensed Materials in any Customer Reports); (iii) cease using and return to HouseCanary, or at HouseCanary’s request, or destroy, every copy of the Licensed Materials or any derivatives thereof in its possession or control (including the Licensed Materials in any Customer Reports) to the extent that any of the foregoing have been licensed for use and retention only during the Term; (iv) provide HouseCanary with written certification of its compliance with the foregoing; and (v) pay all fees and subscription amounts arising under a given Order and these Terms (A) for any period occurring prior to any expiration or termination, plus (B) in the event of a termination of the applicable Order and/or these Terms by HouseCanary pursuant to Section 11.b.i., the applicable fees and subscription amounts for the remainder of the applicable Term.
a. Governing Law; Venue. These Terms and each Order shall be governed by and interpreted in accordance with the laws of the State of Texas, without regard to the principles of conflicts of law. Prior to the filing or initiation of any action or proceeding, each Party agrees to participate in good faith binding arbitration, as set forth in Section 13.b., in San Antonio, Texas. Subject to the provisions of Section 13.b. (and claims proceeding in any small claims court), the Parties agree to submit to the sole and exclusive jurisdiction and venue of the state and federal courts situated in San Antonio, Texas. Each Party consents to the exercise of personal jurisdiction by such courts and waives any right to plead, claim or allege that San Antonio, Texas is an inconvenient forum.
b. Arbitration; Waiver of Class Action Claims.
i. Arbitration Procedures. The Parties agree that, except as provided in Section 13.b.iv. below, all disputes, controversies and claims related to these Terms or any given Order (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either Party by sending a written notice requesting arbitration to the other Party. Any election to arbitrate by one Party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS, Inc. that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in these Terms. In the event of a conflict between the terms set forth in this Section 13 and the JAMS Rules, the terms in this Section 13 will control and prevail. Except as otherwise set forth in Section 13.b.iv., Customer may seek any remedies available to it under federal, state or local laws in an arbitration action. As part of the arbitration, both Parties will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in these Terms or any given Order, (i) the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law. BY AGREEING TO THIS ARBITRATION PROVISION, CUSTOMER UNDERSTANDS THAT CUSTOMER AND HOUSECANARY WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
ii. Location. The arbitration will take place in San Antonio, Texas unless the parties agree to video, phone and/or internet connection appearances.
iii. Limitations. The Parties agree that any arbitration shall be limited to the Claim between HouseCanary and Customer individually. HOUSECANARY AND CUSTOMER AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
iv. Exceptions to Arbitration. The Parties agree that the following Claims are not subject to the above provisions concerning binding arbitration: (i) any Claim seeking to enforce or protect, or concerning the validity of, any of HouseCanary’s or Customer’s intellectual property rights; and (ii) any claim for equitable relief. In addition to the foregoing, either Party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration. In furtherance of the foregoing, each Party acknowledges that any breach of these Terms or any Order by the other Party, including, without limitation, any breach by Customer of its confidentiality obligations or negative covenants hereunder, may cause the non-breaching Party irreparable harm for which there may be no adequate remedy at law and, in such case, each Party agrees that the non-breaching Party shall be entitled, notwithstanding the provisions of this Section 13.b, to obtain equitable relief by injunction or otherwise, in any court of competent jurisdiction, without the obligation of proving damages or posting a bond or surety.
v. Arbitration Fees. If Customer initiates arbitration for a Claim, Customer will need to pay the JAMS arbitration filing fee. If HouseCanary initiates arbitration for a Claim, HouseCanary will pay the JAMS arbitration filing fee. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
vi. Severability (for purposes of this Section 13.b.). The Parties agree that if any portion of this Section 13.b. is found illegal or unenforceable (except any portion of Section 13.b.iv., that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 13.b.iv. is found to be illegal or unenforceable then neither Party will elect to arbitrate any Claim falling within that portion of Section 13.b.iv. found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within San Antonio, Texas, and the Parties agree to submit to the personal jurisdiction of any such court.
d. Assignment. Customer may not assign its rights, or delegate its obligations, under these Terms to any other Person without the express written approval of HouseCanary and any attempt at assignment in violation of this Section 13.d. shall be null and void. HouseCanary may assign these Terms or any given Order without limitation, including to an acquirer of all or a substantial portion of its business or assets.
e. Waiver. The waiver, express or implied, by HouseCanary of any breach of these Terms by Customer will not waive any subsequent breach by Customer of the same or a different kind.
f. Independent Contractors. The Parties acknowledge and agree that they are dealing with each other hereunder as independent contractors. Nothing contained in these Terms shall be interpreted as constituting either Party the joint venturer, employee or partner of the other Party or as conferring upon either Party the power of authority to bind the other Party in any transaction with third parties.
g. Severability. In the event any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable, and the other provisions of these Terms will remain in full force and effect.
h. Third Parties. The Parties acknowledge and agree that certain of HouseCanary’s licensors are a direct beneficiary with respect to Sections 2, 3, 8 and 10 of these Terms and Conditions and may rely on and enforce each of such provisions as if such licensor was a party hereto. Except as set forth in the preceding sentence, the Parties confirm that unless explicitly granted herein (including within the indemnification provisions herein) their intent is not to confer any rights on any third parties by virtue of these Terms, and accordingly any provisions of law conferring rights to third parties shall not apply to these Terms.
i. Attorneys’ Fees. Should either Party hereto initiate a legal or administrative action or proceeding (an “Action”) to enforce any of the terms or conditions of these Terms, the prevailing Party shall be entitled to recover from the losing Party all reasonable costs of the Action, including without limitation attorneys’ fees and costs.
j. Publicity. HouseCanary may publicly disclose that Customer is a client/licensee of HouseCanary and display Customer’s name and logo in connection with such disclosure.
k. Headings. The headings used in these Terms are intended solely for convenience of reference and will be given no effect in the interpretation or construction of these Terms.
l. Force Majeure. Except for its obligations under Section 7 hereof (Confidentiality) and except for any obligations of payment, a Party shall be temporarily relieved in the performance of its obligations under the applicable Order and/or these Terms without liability to the extent, but only to the extent, such performance is delayed or prevented by earthquake, storm, flood, fire, other acts of God, explosion, power failure, civil insurrection, acts of war or terror (collectively, “Force Majeure”), provided that written notice of such Force Majeure is given by the affected Party to the other Party within ten (10) days of such Party’s becoming affected by the Force Majeure, and provided further that in the event any Force Majeure event or events continue for one or more periods of at least thirty (30) days in the aggregate during any twelve (12) month period, the affected Party shall have the unilateral right to terminate the applicable Order and/or these Terms by written notice to the other Party.
m. Survival. Sections 1, 2.a.iii., 2.a.iv., 2.c., 2.d., 2.e., 3, 4, 5.b., and 6 through 13 of these Terms, and the provisions of any Order contemplated to survive the termination or expiration of such Order, shall survive any expiration or termination of an applicable Order or these Terms indefinitely.
Schedule of Endpoints
1) Limits on Included Endpoints. During each month of the Term, Customer may access each of the Included Endpoints up to the Monthly Included Quantity as described in the SOW (e.g., 1,000 Block HCRI calls and 1,000 Property Details calls equal 1,000 calls for each respective endpoint) (“Included Endpoint Call Limit”). Customer agrees that it will take all reasonable efforts to keep usage within the Included Endpoint Call Limit and will make HouseCanary aware of any expected monthly overages in advance. If during the Term, Customer exceeds the Included Endpoint Call Limit, Cusomter shall be notified by HouseCanary. In the event Customer exceeds the Included Endpoint Call Limit in a given month, the parties agree to negotiate in good faith an expanded subscription at a higher monthly fee. Customer acknowledges that HouseCanary reserves the right to temporarily suspend service if usage of the Included Endpoint Call Limit is exceeded in any month.
2) Limits on Premium Endpoints. During each month of the Term, Customer may access each of the Premium Endpoints up to the Monthly Included Quantity as described in the SOW (“Premium Endpoint Call Limit”). Each call above the Premium Endpoint Call Limit will be billed at the rate described in the SOW.