Last modified: July 29, 2016
HouseCanary, Inc., a Delaware corporation (“HouseCanary”), makes the Licensed Software described herein available to the applicable Licensee (the “Licensee”) on the terms and conditions set forth in these Standard Terms For Enterprise License (these “Terms”). These Terms are a legally binding contract between Licensee and HouseCanary. Licensee must agree to these Terms before Licensee may use the Licensed Software.
BY AGREEING TO THESE TERMS (INCLUDING BY A CLICK-THROUGH OR OTHER AGREEMENT), LICENSEE EXPRESSLY ACKNOWLEDGES THAT LICENSEE 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), Licensee 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 Licensee uses the Licensed Software, Licensee will be deemed to have accepted these Terms even if Licensee did not click to accept them. These Terms will apply, and Licensee 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 Licensed Software on behalf of such individual’s employer or another entity that is the Licensee under these Terms, such individual represents and warrants that they have full legal authority to bind the Licensee to these Terms. If an individual does not have such authority, then such individual may not use the Licensed Software on behalf of Licensee and they must discontinue all use of the Licensed Software immediately.
1.1 In addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the following meanings when used in this Agreement:
“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.
“Agreement” means these Terms, together with each applicable Order that incorporates these Terms, and any schedules, exhibits or Statements of Work as may be added from time to time by written agreement of the Parties, as amended or restated from time to time in accordance with its terms.
“Appraisal” means each real estate appraisal report produced by or through, or derived from, or with the assistance of, the Licensed Software by an Appraiser. For the avoidance of doubt, Appraisals shall only include those real estate appraisal reports produced by or through, or derived from, or with the assistance of, the Licensed Software as a result of this Agreement.
“Appraisal Data” means any and all statistics, information and data generated or received by HouseCanary on or through, or with the assistance of, the Licensed Software or arising as a result of the use by Licensee or any given Appraiser of the Licensed Software, including, without limitation, all measurements, interior and exterior photos of residential properties that are the subject of a given Appraisal, photos of comparable residential properties, and all specific characteristics and related factual or subjective data of or relating to subject properties (including, without limitation, square footage, location characteristics, and other property information arising from the Appraisal or the use of the Licensed Software).
“Appraiser” means an employee or independent contractor of Licensee that is contracted or directed by Licensee to deliver residential real estate appraisals for or in connection with Licensee’s or its Affiliates’ business, including, without limitation, Licensee’s or its Affiliates’ appraisal and/or lending practices and procedures.
“Business Day” means a day that is not a Saturday, Sunday or federal public holiday in the United States.
“HouseCanary Data” means any and all statistics, information and data generated by HouseCanary or arising as a result of the use by HouseCanary and/or the Licensed Software of any information accessible by HouseCanary from any public or private source, but expressly excluding the Appraisal Data.
“HouseCanary Intellectual Property” means the Licensed Software, HouseCanary Marks, all software source code and object code embodied in the Licensed Software and any and all component parts thereof, any and all documentation relating to the Licensed Software, the Appraisals, the Appraisal Data, HouseCanary Data 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.
“HouseCanary Marks” shall mean those trademarks, service marks, logos and other distinctive brand features of HouseCanary or its Affiliates as designated by HouseCanary from time to time.
“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.
“Covered Appraisal” means an Appraisal applicable to a residential property within a territory that is covered by any multiple listing service licensed by HouseCanary. “Fees” means the amounts set out in ?a given Order and any other fees payable for Services.
“Historical Data” means Licensee’s historical appraisal data and appraisals, as completed by Licensee’s past and current Appraisers, and if applicable, Licensee’s other data or information relating to the performance of loans or other appraisal data, including, without limitation, addendum/revision requests, buyback requests, and loan performance information.
“Improvement” means any invention, modification, addition, derivative work, enhancement, revision, translation, abridgment, condensation or expansion to or arising from HouseCanary Intellectual Property, or any other form in which HouseCanary Intellectual Property or any part thereof, may be recast, transformed, or adapted.
“Initial Term” means the period specified in ?a given Order.
“Licensed Software” means HouseCanary’s proprietary software application known as HouseCanary Appraiser, as made available by HouseCanary from time to time in its sole discretion. “Non-Covered Appraisal” means an Appraisal applicable to a residential property within a territory that is not covered by any multiple listing service licensed by HouseCanary.
“Order” means a website order form, written purchase order or license agreement, or other written or electronic document setting forth the Licensed Software licensed by Licensee and any other applicable terms and conditions agreed between HouseCanary and Licensee.
“Person” means any individual, company (whether general or limited), limited liability company, corporation, trust, estate, association, nominee or other entity.
“Statement of Work” means a document in a format to be mutually agreed by the Parties which may include a description of additional services and fees, and which, once signed by authorized officers of each of the Parties, is incorporated into this Agreement.
“Term” means the Initial Term and any Renewal Terms, if any.
2.GRANT OF RIGHTS
2.1 Limited License. Subject to the terms and conditions of this Agreement, HouseCanary grants to Licensee a non-exclusive, nontransferable, nonsublicensable license during the Term and in the Territory to (i) use the Licensed Software, in object code only, for the limited internal purposes of having its Appraisers prepare and deliver Appraisals, and (ii) promote and make available the Licensed Software to, and for use by, its Appraisers.
2.2 Appraisal License. Subject to the terms and conditions of this Agreement, HouseCanary grants to Licensee a non-exclusive, transferable, sublicensable, perpetual, irrevocable right and license in the Territory 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 Appraisals received as a result of this Agreement or the Licensed Software for the limited purpose of facilitating its existing real estate related businesses.
2.3 Restrictions on License. Notwithstanding the foregoing, the rights in Sections 2.1 through 2.2 are subject to the following restrictions. Licensee will not (and will ensure that is Affiliates and Appraisers do not):
(i) promote, sell, resell, lease, sublicense, distribute, copy, transfer, assign, or disclose the Licensed Software to, or otherwise permit the use of the Licensed Software by, any person, firm or entity, except to its Appraisers as specifically permitted in this Agreement;
(ii) modify, merge, alter, adapt or customize the Licensed Software in any manner, for any purpose;
(iii) decompile, disassemble, scrape, decode, reverse translate, reverse engineer or otherwise attempt to discover or directly access the source code, analytics, algorithms, methodologies or other know-how of the Licensed Software or any component or portion thereof;
(iv) directly or indirectly, distribute, disclose, copy, reproduce, display, make available, transmit, transfer, assign, sublicense, provide access to, use, rent or sell any Appraisal Data or HouseCanary Data contained within the Appraisals on a stand-alone basis for any purpose;
(v) directly or indirectly, attempt to derive, mine, extract, reverse engineer, store, scrape and/or otherwise exploit any stand-alone data contained within the Appraisals, including, without limitation, any Appraisal Data or HouseCanary Data contained within the Appraisals, for any purpose, including, without limitation, for purposes of developing a database of information for any owned or third party software, technology, product or service;
(vi) use the Appraisals for direct marketing or telemarketing purposes; and/or
(vii) export or re-export the Licensed Software or copies thereof in violation of the United States Export Administration regulations or any other applicable regulations.
2.4 Reservation of Rights. HouseCanary hereby expressly reserves unto itself all rights not granted in this Agreement. Nothing in this Agreement shall be construed as granting Licensee the right to use any of HouseCanary Marks.
3.STORAGE; DELIVERY; SUPPORT AND OTHER SERVICES; SOWS.
3.1 Storage. HouseCanary shall retain and store all Appraisals for a period of not less than five (5) years following the delivery thereof to Licensee. 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. Appraisals shall be accessible to Licensee upon written request to HouseCanary by Licensee, in each case, in a form and medium as may be agreed in writing from time to time by the Parties.
3.2 Delivery. HouseCanary shall deliver each Appraisal submitted by an Appraiser through the Licensed Software in PDF electronic file format and via XML data feed to a Licensee recipient electronic address mutually agreed by the Parties. Each Appraisal shall be made available to Licensee within two (2) hours of an Appraiser’s submission thereof through the Licensed Software.
3.3 Services. HouseCanary will provide:
(i) maintenance and support services (the “Support Services“) as described in any Service Level Agreement provided in connection with this Agreement; and
(ii) any additional services, as agreed to in writing and described in any Statements of Work executed by written signature of the authorized officers of the Parties, (collectively, the “Services“), to Licensee during the Term, provided Licensee has been in compliance with the terms and conditions of this Agreement, including, but not limited to, having paid all amounts owing under this Agreement.
3.4 Statements of Work. The provision of any customization, training, installation, consultancy or other additional services or products not described in this Agreement will be at HouseCanary’s sole discretion, and subject to the Parties entering into an agreed Statement of Work regarding such services or products.
(i) Unless otherwise agreed in the relevant Statement of Work, additional services will be supplied on a time and materials basis and in the sole discretion of HouseCanary. For the avoidance of doubt, HouseCanary is under no obligation to provide any support or other services to Licensee.
(ii) Each Statement of Work shall be incorporated into this Agreement.
(iii) A Statement of Work may not amend the terms of this Agreement.
4.1 Use by Appraisers. During the Term, Licensee shall promote and make available the Licensed Software to each Appraiser delivering residential real estate appraisals and/or appraisal services to Licensee and/or its Affiliates.
4.3 Unauthorized use. Licensee shall promptly notify HouseCanary if it becomes aware of any illegal or unauthorized use of any part of HouseCanary Intellectual Property, including any use of HouseCanary Marks, and shall reasonably assist HouseCanary in taking all steps necessary to defend HouseCanary’s rights therein.
4.4 Licensed Appraisers Only. Licensee shall ensure that Appraisers utilizing the Licensed Software are licensed in compliance with all applicable laws, regulations, standards and industry best practices. Licensee shall submit Appraisals prepared only by licensed Appraisers, and Licensee shall promptly notify HouseCanary if it becomes aware of any Appraisals that have not been prepared in accordance with the foregoing.
5.OWNERSHIP OF LICENSED SOFTWARE AND OTHER INTELLECTUAL PROPERTY
5.1 Ownership. As between HouseCanary and Licensee, HouseCanary exclusively owns and at all times retains all right, title and interest in and to HouseCanary Intellectual Property. Licensee will not claim for itself or for any third parties any rights, title, interest or licenses to HouseCanary Intellectual Property, except for the licenses expressly set forth herein. As between HouseCanary and Licensee, Licensee exclusively owns and at all times retains all right, title and interest in and to the Historical Data. HouseCanary will not claim for itself or for any third parties any rights, title, interest or licenses to the Historical Data, except for the licenses expressly set forth herein. Licensee shall execute such documents, render such assistance, and take such other actions as may be reasonably requested by HouseCanary when necessary to apply for, register, perfect, confirm and protect any rights in its intellectual property described in this Section. Licensee acknowledges that any goodwill or reputation for any part of HouseCanary Marks, Licensed Software or related services generated by this Agreement will belong to HouseCanary and upon termination of this Agreement for whatever reason, Licensee shall not be entitled to claim recompense or compensation for such enhanced goodwill or reputation.
5.2 Ownership of Improvements. HouseCanary shall, at all times, exclusively own all right, title, and interest in and to any Improvement (including Enhancements) to any HouseCanary Intellectual Property. If any intellectual property rights that are subject to legal protection are created or developed by HouseCanary or its Affiliates, with or without the involvement or participation of Licensee, such rights shall be owned exclusively by HouseCanary, and may not be exploited by Licensee outside of this Agreement without the express written consent of HouseCanary. In the event that Licensee desires for HouseCanary to develop and implement a specific feature(s) or functionality (“Enhancements“) in addition to enhancements, improvements, or new feature(s) and functionality planned in HouseCanary product roadmap, then the Parties will use commercially reasonable efforts to specify the requirements for the Enhancements and agree on the scope, schedule and fee defined in a mutually developed and duly executed Statement of Work. For the avoidance of doubt, HouseCanary shall own all right, title and interest in and to any modifications to the Licensed Software including any customizations or Enhancements, including, without limitation, those developed by or on behalf of Licensee, as defined above as Enhancements. Licensee hereby irrevocably assigns and agrees to assign to HouseCanary all right, title and interest in and to any such modifications, including, without limitation, any and all Enhancements.
5.3 Notices. Licensee will not remove, alter, destroy or distort any proprietary patent, trademark or copyright markings or notices on or contained within the Licensed Software, or any related materials or documentation provided by HouseCanary.
6.1 License Fee. As consideration of the grant to Licensee of the license rights granted hereunder, Licensee will pay HouseCanary the Fees as set forth in a given Order.
6.2 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.
7.1 Each Party acknowledges and agrees that by reason of its relationship to the other Party under this Agreement it will have access to material, data, systems and other information concerning the operation, business, financial affairs, products, customers and intellectual property of the other Party that may not be accessible or known to the general public, including, but not limited to the terms of this Agreement (“Confidential Information“). The Parties agree that Confidential Information shall remain the sole and exclusive property of the disclosing Party (“Disclosing Party“), and the receiving Party (“Receiving Party“) agrees to maintain the Confidential Information in strict confidence and, except as otherwise provided in this Section 7, to use the Confidential Information solely for the purposes set forth in this Agreement. The Parties further acknowledge and agree for the purposes of this Section 7, Confidential Information of HouseCanary shall be deemed to include all HouseCanary Intellectual Property, provided, however, the Parties acknowledge and agree that, as between the Parties, the Appraisals are not the Confidential Information of either Party.
7.2 The Receiving Party agrees: (i) that it will maintain the confidentiality of all Confidential Information including, without limitation, taking such steps to protect and preserve the confidentiality thereof as it takes to preserve and protect the confidentiality of its own confidential information; (ii) that it will disclose such Confidential Information only to its own or its Affiliate’s employees or consultants, on a “need-to-know” basis only, and only to those employees, consultants and Affiliates who have entered into a confidentiality agreement, the obligations of which are at least as stringent as those contained in this Section 7; (iii) that if software is involved, it will not disassemble, “reverse engineer,” “reverse compile” or analyze the inputs and outputs of any software or hardware provided under this Agreement for any purpose, including but not limited to, attempting to ascertain or deduce the functionality or workings of the software or hardware; and (iv) that it will not disclose such Confidential Information to any third party (including subcontractors) without the express written consent of the Disclosing Party, provided, however, that the Receiving Party may disclose the financial terms of this Agreement to its legal and business advisors and to potential investors, so long as such third parties have entered into a confidentiality agreement with the Receiving Party, the obligations of which are at least as stringent as those contained in this Section 7.
7.3 The Receiving Party agrees (i) not to alter or remove any identification of any patent, trademark, copyright or other proprietary rights notice which indicates the ownership of any part of the Confidential Information, and (ii) to notify the Disclosing Party of the circumstances surrounding any possession, use or knowledge of the Confidential Information by any person or entity other than those authorized by this Agreement.
7.4 Confidential Information shall exclude any information that (i) has been or is obtained by the Receiving Party from a source independent of the Disclosing Party and not receiving such information from the Disclosing Party, (ii) is or becomes generally available to the public other than as a result of an unauthorized disclosure by the Disclosing Party or its personnel, (iii) is independently developed by the Receiving Party without reliance in any way on the Confidential Information provided by the Disclosing Party, or (iv) the Receiving Party is required to disclose under judicial order, regulatory requirement, or statutory requirement, provided that the Receiving Party provides written notice and an opportunity for the Disclosing Party to take any available protective action prior to such disclosure.
7.5 For the avoidance of doubt, any information, including Confidential Information, supplied by HouseCanary or obtained by Licensee, as permitted hereunder, may only be used by Licensee for the purpose described herein and may not be disclosed to any third party or used to create any product which is substantially similar to the functionality of the Licensed Software.
8. REPRESENTATIONS AND WARRANTIES
8.1 Mutual Representations and Warranties. Each Party represents and warrants to the other that it has the right and authority to enter into this Agreement and to perform all of its respective obligations and undertakings and to grant the rights set forth herein, including, without limitation. Each Party further represents and warrants to the other that (i) it is validly existing and in good standing under the laws of the jurisdiction of its organization, and (ii) the execution, delivery and performance of this Agreement does not and shall not conflict with or violate any organizational documents of such Party or the terms of any agreement between it and a third party.
8.2 HouseCanary Representations and Warranties. Without limiting the generality of Section 8.1 above, HouseCanary represents and warrants to Licensee that, to the best of HouseCanary’s knowledge, HouseCanary Intellectual Property does not infringe the copyrights, trademarks, trade secrets or patents in the Territory of any third party.
8.3 Disclaimer of Warranties.
(i) THE WARRANTIES SET FORTH HEREIN ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY THE RESPECTIVE PARTIES. THE PARTIES EXPRESSLY DISCLAIM, AND HEREBY EXPRESSLY WAIVE, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH HEREIN, HOUSECANARY PROVIDES AND LICENSEE ACCEPTS THE LICENSED SOFTWARE AND SERVICES “AS IS” WITHOUT ANY OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY. HOUSECANARY DOES NOT WARRANT THAT THE LICENSED SOFTWARE OR THE SERVICES WILL MEET ALL OF LICENSEE’S BUSINESS REQUIREMENTS. TO THE EXTENT PERMITTED BY LAW, AND EXCEPT AS SET FORTH IN THE SUPPORT SERVICES, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY THAT THE OPERATION OF ITS RESPECTIVE PRODUCTS, SERVICES OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE PRODUCTS, SERVICES OR SOFTWARE WILL BE FREE FROM VIRUSES OR OTHER HARMFUL CODE.
(ii) WITH RESPECT TO HOUSECANARY SPECIFICALLY, THE LICENSEE ACKNOWLEDGES AND AGREES AS TO THE FOLLOWING:
(a) The appraisal, market information, indexes, scores and other information contained in Appraisals derived from the Licensed Software (and/or HouseCanary’s databases and analytical processes) are based upon tested methodologies for accuracy. However, the appraisal, market information, indexes, scores and other information contained in Appraisals derived from the Licensed Software are not definitive forecasts, appraisals or valuations. All Appraisals are stated in terms of probability of likelihood and based on market factors and information submitted by Appraisers, and the Appraisals 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 Licensee or Appraisers or other third parties, including, without limitation, the Appraisal Data and HouseCanary 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 appraisals (including the Appraisals).
(b) Except as may be expressly provided herein, HouseCanary makes no representations or warranties, express or implied, regarding the Appraisals or the information contained therein, including the recommendations or the advice given therein, and HouseCanary has no liability to Licensee, or to any third parties, relating to the use or implementation of the information contained in the Appraisals, or any action, inaction or decisions (including any lending, investment, purchase or disposition decisions) that may be made based on the information provided in the Appraisals. Licensee 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 or analysis contained in the Appraisals is made solely by Licensee, and its Affiliates, agents and employees, at the sole and exclusive discretion of Licensee, and its Affiliates, agents and employees. Licensee further agrees that Licensee, and its Affiliates, agents and employees shall not hold HouseCanary or any of the parties indemnified by Licensee hereunder liable for the use or implementation, by Licensee or any other party, of the information contained in the Appraisals, or for any action, inaction or decisions (including any lending, investment, purchase or disposition decisions) made, by Licensee or any other party, based on the information provided in the Appraisals.
(c) Licensee acknowledges and agrees that HouseCanary’s information and data providers/licensors shall not be liable for any claim or loss resulting from the content of, errors or omissions in, or Licensee’s use of the information contained in or retrieved from the Appraisals.
9. LIMITATION OF LIABILITY
9.1 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.
9.2 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 THIS AGREEMENT PURSUANT TO SECTION 10, IN NO EVENT SHALL A PARTY’S TOTAL CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) EXCEED TWENTY-FIVE THOUSAND DOLLARS ($25,000) , 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 THIS AGREEMENT.
9.3 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 THIS AGREEMENT.
10. INDEMNIFICATION; INTELLECTUAL PROPERTY INFRINGEMENT
10.1 Licensee’s Indemnity. Licensee shall indemnify, defend and hold harmless HouseCanary and its parent entities and Affiliates and each of their respective officers, directors, managers, members, stockholders, employees, contractors, agents, successors and assigns (the “HouseCanary 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) (collectively, “Claims“) (including, without limitation, by any of Licensee’s officers, directors, employees, contractors, Appraisers, customers, clients, suppliers or vendors (the “Licensee Parties“)) raised by a third party and incurred by the foregoing in connection with, arising out of, or in any way related to (i) Licensee’s breach of any representation or warranty, or any of its obligations, under this Agreement; (ii) any gross negligence or willful misconduct by Licensee; and/or (iii) any illegal or unauthorized use of the Licensed Software by Licensee or the Licensee Parties.
10.2 HouseCanary’s Indemnity. HouseCanary shall indemnify, defend and hold harmless Licensee and its parent entities and 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) (including, without limitation, by any of HouseCanary’s officers, directors, employees, contractors, customers, clients, suppliers or vendors) 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.
10.3 Infringement Claim. If the Licensed Software becomes subject to any claim, suit, action or proceeding alleging that Licensee’s use of the Licensed Software according to this Agreement’s terms and conditions infringes or violates a third party’s patent, copyright or trade secret (a “Infringement Claim“), or if as a result of a Claim or the settlement thereof, Licensee’s use of the Licensed Software under this Agreement is prohibited or enjoined, HouseCanary will in its sole and absolute discretion: (i) obtain for Licensee the right to use the Licensed Software; (ii) modify the Licensed Software so that it becomes non-infringing but without impairing its functionality or deleting any material features; (iii) replace the Licensed Software with non-infringing software having features and functionality substantially similar to the Licensed Software and customizations acceptable to Licensee; or (iv) if the foregoing actions in clauses (i) through (iii) are not reasonably available after having used commercially reasonable efforts to cause or obtain the same, terminate this Agreement upon sixty (60) days prior written notice to Licensee with no further liability to Licensee.
10.4 Exclusions. Notwithstanding any other provision of this Section 10, HouseCanary will have no liability or indemnity obligations for any claim arising (i) from Licensee’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 Licensed Software other than by HouseCanary or (iii) from any non-compliance by Licensee with applicable law, regulations and standards. Licensee will at its own expense defend, or at its option settle, subject to Section 10.5 and 10.6, and hold HouseCanary Indemnified Parties harmless from any action resulting from any Claim or Infringement Claim based on any of the foregoing, including claims for damages and attorneys’ fees.
10.5 Exclusive Remedy. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, SECTION 10.3 STATES HOUSECANARY’S ENTIRE LIABILITY AND LICENSEE’S EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE LICENSED SOFTWARE, WHETHER UNDER THEORY OF CONTRACT, WARRANTY, INDEMNITY OR OTHERWISE.
10.6 Notice; Participation. The Party claiming indemnification pursuant to this Section 10 (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.
10.7 Settlement. 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 prior written consent of the Indemnified Party.
11. TERM AND TERMINATION
11.1 Term. Either Party may terminate the Agreement at the end of the Initial Term or the end of any Renewal Term by providing at least thirty (30) days’ prior written notice to the other, such notice to be effective as of the end of the Initial Term or Renewal Term, as applicable.
11.2 Termination for Breach.
(i) Termination by HouseCanary. If Licensee breaches any material term or condition of this Agreement, including, without limitation, its payment obligations hereunder, Licensee will have thirty (30) days (or five (5) days, in the case of any breach of its payment obligations hereunder) 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 Licensee 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 such Party and not dismissed within sixty (60) days, HouseCanary will have the right (but not the obligation) to terminate this Agreement.
(ii) Termination by Licensee. If HouseCanary breaches any material term or condition of this Agreement, HouseCanary will have thirty (30) days after the delivery of written notice by Licensee 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 such Party and not dismissed within sixty (60) days, Licensee will have the right (but not the obligation) to terminate this Agreement.
11.3 Additional Rights of HouseCanary to Suspend or Terminate. Without limiting the provisions of Section 11.2, HouseCanary shall also have the right, in its sole discretion, to suspend access to Licensed Software, or to terminate this Agreement, in each case, upon written notice to Licensee, if:
(i) any payment due from Licensee to HouseCanary under this Agreement remains unpaid for a period of 5 days after HouseCanary has notified Licensee of non-payment;
(ii) there is a merger, reorganization or sale of all or substantially all of the assets or voting securities or other change of Control involving Licensee, the holding company of Licensee or the ultimate parent company of Licensee (and Licensee shall provide prompt notice to HouseCanary in the event of any of the foregoing); or
(iii) Licensee commits a material breach of this Agreement, which is not curable; or is curable, but which Licensee fails to remedy within 30 days of receiving notice from HouseCanary specifying the breach with reasonable particularity and requiring the breach to be remedied.
11.4 No compensation. Licensee shall not be entitled to any compensation (whether for the loss of distribution rights, goodwill or otherwise) as a result of the termination of this Agreement in accordance with its terms.
11.5 Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, Licensee will immediately (i) cease using the Licensed Software; (ii) return to HouseCanary or destroy every copy of the Licensed Software in its possession or control; and (iii) provide HouseCanary with written certification of its compliance with the foregoing. For the avoidance of doubt, notwithstanding any expiration or termination of this Agreement, HouseCanary shall continue to be entitled to all Fees arising under this Agreement for any period occurring prior to any expiration or termination hereof, and any and all licenses granted in this Agreement and intended to survive its termination or expiration shall continue in full force and effect.
Licensee is solely responsible for payment of any taxes (including sales taxes, transfer taxes, excise taxes, property taxes, and similar taxes) resulting from the transactions contemplated by this Agreement, excluding, however, any taxes payable by HouseCanary as a result of income earned by HouseCanary hereunder.
13. ESCALATION PROCEDURE
13.1 If there is a disagreement in relation to this Agreement, Licensee and HouseCanary shall use their reasonable efforts to negotiate and settle the disagreement. If it is not possible to settle the disagreement within five (5) Business Days, then the matter may be referred by either Party to a meeting to be convened between the Parties’ respective executives, which may include their respective chief executive officers (or, if they are not available, their appointed deputies). If any such meeting fails to result in a settlement within twenty (20) Business Days of such referral to it (or it is not possible to convene such a meeting within this period) then the matter may be referred to arbitration as set forth in Section 14.1.
13.2 Subject to Section 14.1(iii), the Parties shall not refer any dispute to arbitration unless and until the escalation procedure in Section 13.1 has been followed and the deadline for settlement under Section 13.1 has expired.
13.3 For the avoidance of doubt, the Parties’ obligations under this Agreement shall not be affected as a result of any matter being dealt with under the escalation procedure.
14. GENERAL PROVISIONS
14.1 Arbitration; Governing Law; Venue.
(i) The Parties shall attempt to resolve any differences, disputes or controversies which may arise between them amicably; however, it is specifically understood and agreed that, subject to the provisions of Section 14.1(iii), any dispute, conflict or controversy arising from or in connection with this Agreement shall be settled by final and binding arbitration to be entrusted to and administered by JAMS upon request of any of the parties in accordance with the JAMS Comprehensive Arbitration Rules & Procedures in effect at the time of the arbitration request (the “Rules“). The arbitration shall be conducted by an arbitration panel comprised of one (1) arbitrator appointed in accordance with the Rules, who shall be qualified to practice law in the United States of America. The arbitration shall take place in San Antonio, Texas, and it shall be conducted in English. Notwithstanding the Rules, there will be no discovery other than the exchange of information that is provided to the arbitrator by the Parties. The arbitrator’s decision and award will be final and binding, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereon.
(ii) This Agreement 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 14.1(i), in San Antonio, Texas. Subject to the provisions of Section 14.1(i), the Parties agree to submit to the sole and exclusive jurisdiction and venue of the state and Federal courts of the State of Texas 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.
(iii) The foregoing shall not, however, preclude either Party from obtaining interim injunctive relief on an immediate basis from a court of competent jurisdiction pending the initiation, or outcome, of the legal or arbitration proceedings regarding an alleged breach of confidentiality obligations or infringement of intellectual property rights.
14.2 Entire Agreement. This Agreement, including, without limitation, any terms and conditions set forth in a given Order and/or governing the use of the Licensed Software constitute the entire agreement and understanding between the Parties and integrate all prior discussions between them related to its subject matter and supersede all prior or contemporaneous oral and written statements of any kind whatsoever made by the Parties with respect to such subject matter. Any reference herein to this Agreement will include a reference to each Order that incorporates these Terms. HouseCanary may update these Terms from time to time in its sole discretion. HouseCanary will use reasonable efforts to notify Licensee of any update to these Terms and the updated version of these Terms will be made available on the HouseCanary Site. Licensee may be prompted to agree to or decline an update of these Terms in connection with their next login (and in such event, Licensee will be required to agree to the update in order to continue using the Licensed Software).
14.3 Assignment. This Agreement may not be assigned by either Party to any other Person without the express written approval of the other Party and any attempt at assignment in violation of this Section shall be null and void. Notwithstanding the foregoing, HouseCanary may assign this Agreement without such consent to (i) any Affiliate, or (ii) to any third party in the event of a merger, reorganization or sale of all or substantially all of HouseCanary’s assets or voting securities.
14.4 Notices. All legal notices required or permitted hereunder shall be given in writing addressed to the respective Parties as set forth below and shall either be (i) personally delivered, (ii) transmitted by postage prepaid certified mail, return receipt requested, or (iii) transmitted by nationally recognized private express courier, and shall be deemed to have been given on the date of receipt if delivered personally, three (3) days after deposit in mail if delivered by mail, or on the date of receipt if delivered by express courier. Either Party may change its address for purposes hereof by written notice to the other in accordance with the provisions of this Section 14.4. The addresses for the Parties are as set forth in the applicable Order.
14.5 Waiver. The waiver, express or implied, by either Party of any breach of this Agreement by the other Party will not waive any subsequent breach by such Party of the same or a different kind.
14.6 Independent Contractors. The Parties acknowledge and agree that they are dealing with each other hereunder as independent contractors. Nothing contained in this Agreement 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.
14.7 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 this Agreement 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 this Agreement by written notice to the other Party.
14.8 Severability. In the event any provision of this Agreement 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 this Agreement will remain in full force and effect.
14.9 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. For purposes hereof, a facsimile or PDF copy of this Agreement, including the signature pages hereto, shall be deemed to be an original.
14.10 Third Parties. The Parties acknowledge and agree that certain of HouseCanary’s licensors and data providers are a direct third party beneficiary with respect to Sections 2 and 8.3 of this Agreement and may rely on and enforce each of such provisions as if such licensor or data provider 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 this Agreement, and accordingly any provisions of law conferring rights to third parties shall not apply to this Agreement.
14.11 Attorney’s Fees. Should either Party hereto initiate a legal or administrative action or proceeding (an “Action“) to enforce any of the terms or conditions of this Agreement, 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.
14.12 Conflict. In the event of any conflict between these Terms and any Statements of Work, these Terms shall govern. In the event of any conflict between these Terms and a given Order, the Order shall govern.
14.13 Publicity. HouseCanary may publicly disclose that Licensee is a client/licensee of HouseCanary and display Licensee’s name and logo in connection with such disclosure.
14.14 Survival. Sections 1, 2.3, 2.4, 2.5, 3.1, and 5 through 14 of these Terms, and the provisions of any Order contemplated to survive the termination or expiration of such Order, shall survive the termination or expiration of such Order.