This REALSTACK Master Subscription Agreement (the “Agreement”) is made and entered into by and between Polk Three, LLC, d/b/a REALSTACK (“RS”), and its Affiliates (as defined in 1.3 below), (RS and its Affiliates collectively referred to herein as “Company”) and the person, business, or other entity agreeing to this Agreement and the Order Form (“Client”). “Client” means the legal entity executing the Order Form, and its officers, directors, agents and employees; or in the case of a non-legal entity, an individual. This Agreement is effective as of the date Client executes an Order Form (the “Effective Date”). This Subscription Agreement governs your access to and use of our services and products (collectively, the “Subscription Services”) set forth on the order form (“Order Form”).
1. Subscription Services.
1.1 Subscription Services. Subject to Client’s compliance with the terms of this Agreement, and in consideration of the payment of fees set forth on the applicable Order Form, Company grants to Client, solely during the applicable Term, a limited, non-transferable, non-sublicensable, non-exclusive right to access and use the specific Subscription Services set forth on the Order Form solely for Client’s own internal business purposes. Client is responsible for obtaining any equipment and Internet service necessary to access and use the Subscription Services.
1.2 Content. Subject to Client’s compliance with the terms of this Agreement, and in consideration of the payment of fees set forth on the applicable Order Form, Company grants to Client, solely during the applicable Term, a limited, non-transferable, non-sublicensable, non-exclusive right to access and use the Content made available by Company (or any third party) via the specific Subscription Services to which Company has granted Client right of access and use pursuant to Section 1.1, solely for Client’s own internal business purposes. “Content” means the audio and visual information, documents, software, products and other materials contained or made available to Client and its Users (as defined in Section 1.4 below) in the course of using the Subscription Services.
1.3 Affiliates and Franchisees. Client’s Affiliates and any franchisee who is bound by a valid franchise agreement with Client (“Franchisee”) are permitted to access and use the Subscription Services and Content indicated on the Order Form for use by Client’s Affiliates and Franchisees during the applicable Term, in accordance with the terms of this Agreement, provided that: (i) Client has purchased User Rights (defined in 1.4 below) for such Affiliates and Franchisees pursuant to the Order Form; (ii) such Franchisees and Affiliates are not competitors of Company or any of its Affiliates; and (iii) at any time, within three business days of Company’s written request, Client provides Company with the names of all Affiliates and Franchisees and the number of User Rights used by each.
Client is liable for any breach of this Agreement by any of its Affiliates or Franchisees. If an Affiliate or Franchisee ceases to meet the definition of Affiliate or Franchisee as set forth herein, its authorization to access and use the Subscription Services (including any websites using the Subscription Services) and the Content ceases immediately. Any User Right restrictions (User counts, etc.) set forth on an Order Form shall be deemed to apply to Client and its Affiliates and Franchisees in the aggregate. “Affiliate” means any corporation, partnership or other entity in which a party owns the majority of shares and/or voting rights.
1.4 Users. Client is solely responsible for ensuring that Client, all Client’s Affiliates, Franchisees, independent contractor real estate agents, and their respective employees, and consultants (collectively, “Users”) comply with the terms of this Agreement and all applicable laws and regulations. Client is fully liable for any breach of this Agreement by Client’s Users. Client is responsible providing such Users with unique User identifications and passwords (“User Credentials”), for keeping all such User Credentials secure and for all activities conducted under the User Credentials. Client will take all commercially reasonable steps to protect the Subscription Services, Content and the Documentation (as defined in Section 1.9) from unauthorized use and/or access. Client shall immediately notify Company of any known or suspected unauthorized use of any User Credentials or any other known or suspected breach of security and shall use best efforts to stop said breach.
“User Right” means Client’s right of access and use of the Subscription Services and Content corresponding to a single User under such User’s User Credentials. Users must be unique human individuals, with one set of User Credentials assigned to a single User. No User may impersonate another individual or User, or otherwise provide false information to Company. Users may not share User Credentials to create a “concurrent” User Right. Client and its Affiliates and Franchisees are expressly prohibited from circumventing any User access or usage metrics by engaging in tactics such as sharing an account or creating a username “alias” for a group of individuals. User Rights may be reassigned, and corresponding User Credentials changed from time to time to a new User who is replacing a former User who has terminated employment or otherwise changed job status or function and no longer requires use of the Subscription Services. Client will purchase the appropriate number of User Rights needed for Users. Client understands that it may not decrease the number of Users ordered under an Order Form during the Term. Client acknowledges that User Rights are subject to volume and other restrictions set forth on the applicable Order Form (the “Volume Limitations”). If and when Client’s usage (including that of Affiliates and Franchisees) exceeds the Volume Limitations set forth on the Order Form, Client will pay Company the applicable fees associated with such Volume Limitations at Company’s then-current excess fee rates (the “Excess Fee”). Client may also add User Rights for additional Users or other offerings purchased by Client by executing a new Order Form or amendment thereto.
1.5 Integrations; Third-Party Products; MLS. Company may maintain integrations for the Subscription Services with third-party vendors. Any such integrations specified in an Order Form are considered Subscription Services; it being understood and agreed that use of such integrations requires separate licenses and the payment of any applicable fees to third-party vendors for access to the software, services and/or data feed (“Third-Party Products”) to which the integration connects. Certain Third-Party Products may be available for optional download and use by Client via the Subscription Services; it being understood and agreed that such Third-Party Products are not Subscription Services under this Agreement. Company is not responsible or liable for any Third-Party Products, or errors or defects that may arise in the Subscription Services as a result of any such Third-Party Products or modifications thereto. Company reserves the right to add or delete any third-party integration(s) at any time, without notice to Client. Client may request a current list of integrations at any time. Company may provide access to and use of licensed property data provided by a third-party multiple listing service (“MLS”) in order to facilitate Client’s use of the Subscription Services to market and transact on internet data exchange (“IDX”) properties. Use of MLS data is subject to the payment of additional fees as set forth on the applicable Order Form. Client acknowledges that it has no right or license to use any MLS data not expressly stated on the Order Form and unless all the required paperwork by the MLS has been completed and the MLS’s approval has been received by Company for Client to use such MLS data. For the purpose of maintaining compliance with all MLSs, Client agrees to notify Company immediately of any: (i) change or termination in membership status with an MLS whose MLS data Client is currently using with Company; (ii) addition or subtraction of agents/brokers receiving Subscription Services from Company within Client’s firm, including Client Affiliates and Franchisees. Client acknowledges and agrees that use of the MLS data may be subject to additional terms and conditions from the third party providing such MLS data, and the update frequency and availability of MLS data (including, without limitation, sold listing data and open house information) is defined by such third party and any generally applicable MLS rules.
1.7 Restrictions. Unauthorized use, resale or commercial exploitation of the Subscription Services and Content in any way is expressly prohibited. Client understands that any Subscription Services and Content supplied by Company is exclusively for use by Client and its Users (on behalf of Client). Client and Client’s Users shall not, and shall not permit any person or entity to: (i) copy, sell, rent, assign, transfer, license, lease, distribute, resell or use the Subscription Services or Content on a service bureau, time sharing or any similar basis, or for the benefit of any other person or entity; (ii) share non-public System features, access or content with any third party; (iii) alter, enhance, modify, or make derivative works of the Subscription Services or Content; (iv) reverse engineer, reverse assemble or decompile, or otherwise attempt to derive source code from, the Subscription Services or any software component of the Subscription Services or access the Subscription Services or Content in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services or Content; (v) use, or allow the use of, the Subscription Services or Content for any unfair or deceptive practices or in violation of any applicable law, or regulation; (vi) act in a fraudulent, tortious, malicious, or negligent manner when using the Subscription Services or Content; (vii) engage in web scraping or data scraping on or related to the Subscription Services, including without limitation collection of information through any software that simulates human activity or any bot or web crawler (viii) create Internet “links” to the Subscription Services or “frame” or “mirror” any Content on any other server or wireless or Internet-based device.
1.7 Acceptable Use. Client and Client’s Users will not use the Subscription Services to: (a) send, upload or otherwise transmit any data or content that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (b) upload or otherwise transmit, display or distribute any data or content that infringes any trademark, trade secret, copyright or other proprietary or intellectual property rights of any person; (c) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (d) interfere with or disrupt the Subscription Services or networks connected to the Subscription Services; or (e) violate any applicable law or regulation.
1.8 Backups. Company will back up the Subscription Services and the Client Materials (as defined in Section 6.1 below) from time to time in accordance with Company’s then current backup policies and procedures. In the event of any errors or corruptions to Client Materials processed by the Subscription Services resulting solely from an error or defect in the Subscription Services (“Data Errors”), Company shall, as Client’s sole and exclusive remedy for such Data Error, restore the affected Client Materials from the most recent backup. This remedy is expressly contingent upon the following: (i) the Subscription Services have not been altered or changed in any way by anyone other than Company; (ii) the Subscription Services are being used by Client in strict conformance with this Agreement and the applicable Documentation; and (iii) the Subscription Services have not experienced interference from products, applications, integrations, data, or configurations provided by anyone other than Company.
Documentation. Company will make Documentation available to Client. “Documentation” means the documentation for the Subscription Services generally supplied by Company to assist its Clients in the use of the Subscription Services, including any user and system administrator guides and manuals and other written materials.
2. Professional Services.
2.1 Order and SOW. If set forth in the applicable Order Form or in a statement of work (“SOW”) executed pursuant thereto, Company will provide installation, integration, configuration, consulting, training and/or other computer related professional services (“Professional Services”), and Client shall provide any assistance and cooperation necessary or convenient to facilitate the Professional Services, or call for in the Order Form or SOW.
2.2 Change Orders. Professional Services may be changed pursuant to a Change Order agreed upon and executed by the parties, which shall amend the existing Order Form or SOW. Either party may request a Change Order and the parties shall discuss such request within ten (10) business days after receipt of such request. The Change Order shall set forth the agreed changes and any corresponding change in fees for the Professional Services.
2.3 Acceptance and Rejection. Any deliverable produced pursuant to Professional Services (“Deliverable”) will be considered accepted (“Acceptance”) (a) when Client provides Company written notice of acceptance or (b) 7 days after delivery, if Client has not first provided Company with written notice of rejection. Client may reject a Deliverable only in the event that it materially deviates from its specifications and requirements listed in the applicable SOW and only via written notice setting forth the nature of such deviation. In the event of such rejection, Company shall correct the deviation and redeliver the Deliverable within a reasonable amount of time. After redelivery pursuant to the previous sentence, the parties shall again follow the acceptance procedures set forth in this Section 2.3. This Section 2.3, in conjunction with Client’s right to terminate for material breach where applicable, sets forth Client’s only remedy and Company’s only liability for failure of Deliverables.
2.4 Incorporation of Deliverables. Upon Acceptance, each Deliverable will constitute an element of the Subscribed Services, as specified in the applicable Order Form or SOW, and will thereafter be subject to this Agreement’s terms regarding Subscription Services, including without limitation license, access, usage, intellectual property and indemnity terms. Company retains ownership of all Deliverables, and Client receives no right, title, or interest in or to Deliverables except as specifically set forth in this Agreement. Deliverables are Company’s Confidential Information. Company may incorporate the Deliverables in future releases of any of its Subscription Services or Professional Services.
2.5 Company Staff. Company’s employees are valuable business assets, and Client agrees that during the term of the Agreement and for a period of one (1) year thereafter, it shall not solicit any employee that has performed work under this Agreement to terminate their employment with Company.
3. Fees; Payment Terms.
3.1 Fees. Client shall: (a) pay Company the Subscription Fees set forth in the Order Form for the Subscribed Services, as well as the Professional Services Fees set forth in the Order Form for the Professional Services (collectively the “Fees”); and (b) pay all reasonable travel and out-of-pocket expenses incurred by Company in connection with any Subscription Services and Professional Services rendered. Client is responsible for all fees associated with use of the Subscription Services by its Users. The initial fees are specified in the applicable Order Form. Any additional charges are based on Company’s then-current rates. Any additional Subscription Services added during the applicable Term will run coterminous with the existing subscriptions and be pro-rated for the remainder of the then-current Term. Fees for Subscription Services are due and payable as set forth in the Order Form. All fees are non-refundable and non-cancellable. The amounts listed in the Order Form for Professional Services Fees are estimates and will not be binding, except to the extent that the Order Form specifically provides to the contrary. If Client’s use of the Subscribed Services exceeds the Volume Limitations set forth on the Order or otherwise requires the payment of additional fees per the terms of this Agreement, Client agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then current Renewal Term, upon thirty (30) days prior notice to Client (which may be sent by email), or upon the execution of any new Order Form. In the event of an increase in fees charged by any third-party service provider, Company may proportionally increase the fees charged to Client for such Subscription Services or Professional Services at any time upon reasonable notice to Client.
3.2 Invoices. Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Subscription Services and Professional Services.
3.3 Taxes. Client shall be responsible for all taxes, tariffs or assessments of any governmental authority associated with the Subscription Services or Professional Services other than U.S. taxes based on Company’s net income and any taxes or obligations imposed upon Company under federal, state and local wage laws. Amounts due under this Agreement are payable to Company without deduction and are net of any tax, tariff or assessment for which Client is responsible pursuant to the preceding sentence. If applicable law requires withholding or deduction of taxes or duties, Client shall separately pay Company the withheld or deducted amount.
3.4 Suspension. If Client declines to pay any undisputed fees when due, Company may suspend Client’s access to the Subscription Services and/or Professional Services (a “Suspension”), provided that Company will provide Client with five (5) business days’ notice of any Suspension, and no Suspension shall occur if payment is made within the five (5) business day period. Client will continue to be charged all applicable fees during a Suspension.
3.5 Disputes. If Client has a good-faith dispute with respect to any fees, charges, or amounts and such dispute cannot be resolved promptly through discussions between the parties, Client agrees to pay the amounts due under this Agreement less the disputed amount, and the parties shall diligently proceed to resolve such disputed amount. An amount will be considered disputed in good faith if (i) Client delivers a written statement to Company on or before the due date of such amount, describing in detail the basis of the dispute and the amount being withheld by Client, (ii) such written statement represents that the amount in dispute has been determined after due investigation of the facts and that such disputed amount has been determined in good faith, and (iii) all other amounts due from Client that are not in dispute have been paid in full as and when required under this Agreement.
4. Term and Termination.
4.1 Term. The term of this Agreement (the “Term”) commences on the Effective Date and continue for the Initial Term set forth in the initial Order (the “Initial Term”). Thereafter, the Term will renew for successive one-month periods (each a “Renewal Term”), unless either party refuses such renewal by written notice thirty (30) or more days before the renewal date.
4.2 Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure or the other party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing . Without limiting Company’s other rights and remedies, Company may suspend or terminate a User’s to the Subscription Services at any time, without advanced notice, if Company reasonably concludes such User has conducted itself in a way that is not consistent with the requirements of this Agreement or in a way that subjects Company to potential liability, including but not limited to violation of Sections 1.6 or 1.7.
4.3 Effect of Termination. Upon any termination or expiration of this Agreement or any applicable Order Form or SOW Company shall cease providing the applicable Subscription Services (including any websites using the Subscription Services), Professional Services or Deliverables to Client under this Agreement; and Client and its Users shall cease using the Subscription Services (including any websites using the Subscription Services) and the Deliverables. Upon termination of this Agreement or any applicable Order Form or SOW, other than a termination by Client as a result of any uncured breach by Company, Client shall pay Company for any fees that had accrued prior to the termination date that are not yet paid. Upon any termination, Client will no longer be able to use, access or modify Client Materials (defined in Section 6.1). If Client makes written request to Company for a copy of Client Materials within ten (10) days from the date of termination, Company will provide a file containing the Client Materials in a commercially reasonable format within thirty (30) days of receipt of such request. Thereafter, Company will have no further obligation to store or make available Client Materials and may delete the same. Company shall not be liable to Client nor to any third party for any termination of Client access to the Subscription Services or deletion of Client Materials pursuant to this Section 4.3. Upon termination of this Agreement, each Party shall promptly return or destroy all Confidential Information of the other Party in its possession. All rights and obligations of the parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement.
5. Intellectual Property Rights.
5.1 Ownership. Company and/or its licensors retain exclusive ownership of Company IP. “Company IP” means: (a) the Content, Deliverables, the Subscription Services; (b) all information, content methodologies, data, ideas, concepts, materials, templates, know-how, techniques, documentation, software, algorithms, user interfaces, designs, and development tools that Company possesses prior to the commencement of the Subscription Services or which it develops independently of any activities governed by this Agreement, and any derivatives, modifications or enhancements made to any such property while performing the Subscription Services or Professional Services; (c) all modifications, enhancements, derivatives of the Company IP (collectively, the “Derivatives”); and (d) any and all unpatented inventions, patents, patent applications, design rights, copyrights, trade secret rights, trademarks, service marks, trade names, domain name rights, mask work rights, moral rights, know-how and other proprietary and intellectual property rights embodied in the Company IP and Derivatives or associated therewith anywhere in the world; and all copies thereof. Company may utilize any and all methods, computer software, know-how or techniques related to programming and processing of data, developed by it while providing the Subscription Services and Professional Services and may incorporate the same in future releases of any of its Subscription Services and Professional Services. Except as expressly set forth in this Agreement, no license or other right in or to the Company IP and Derivatives are granted to Client, by implication, estoppel, or otherwise, and all such licenses and rights are hereby reserved. The Company’s name, logos and product names are trademarks of Company, and no right or license is granted to use them.
5.2 Feedback. Company has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that Client or other Users provide to Company, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Company’s right to use, profit from, disclose, publish, keep secret, or otherwise benefit from Feedback, without compensating or crediting Client or any User in question. Client hereby grants Company a perpetual, irrevocable right and license to use, profit from, disclose, publish, keep secret, or otherwise benefit from Feedback, without compensating or crediting Client or any User in question. Notwithstanding any contrary provision of Article 7 below (Confidentiality), Feedback will not constitute Client’s Confidential Information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying or expanding any of Company’s products or services.)
6. Client Materials.
6.1 Client Materials. “Client Materials” means any intellectual property, data, information, documents, things or other materials provided or submitted by Client or its Users to or for use or processing by the Subscription Services. Client retains all rights to and ownership of Client Materials. Client represents and warrants it is the creator and owner of the Client Materials, or has all necessary rights and title to provide Client Materials to Company to use and/or process Client Materials with the Subscription Services. Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and requisite intellectual property ownership rights necessary for any use or processing of Client Materials and Company will have no responsibility or liability therefor. Company is not responsible or liable for the deletion, correction, unauthorized access, destruction, damage, loss or failure to store any of the Client Materials caused by Client or its Users. Client represents, warrants it has confirmed that all Client Materials have been obtained and shall be maintained throughout the Term of this Agreement, in compliance with all applicable laws (including all intellectual and data privacy and protection laws). Client further represents and warrants Client has obtained all appropriate and necessary rights, consents and authorizations to legally access, use or provide any Client Materials to Company for use by or with the Subscription Services [[and/or Professional Services]] as well as that Company’s use or processing of Client Materials will not infringe a third party’s intellectual property and/or privacy rights.
6.2 Use. During the Term, Client grants to Company a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 11.2), royalty-free right to use, display, and process Client Materials as necessary to provide the Subscription Services and the Professional Services to Client and to help operate, support, secure and improve the Subscription Services and the Professional Services, and to develop new services or functionality. Aggregated Data. Client acknowledges and agrees that Company has the right to use any information, analysis, statistics and other data generated by the Subscription Services (or derived from Client’s use of the Subscription Services) to compile generalized, aggregated statistics about the Subscription Services and how Company’s Clients use the Subscription Services (“Aggregated Data”) for its own internal purposes and may disclose such data solely in aggregate or other de-identified form in connection with its business. Aggregated Data may be used by Company in perpetuity.
6.3 Applicable Laws. Client shall comply with all applicable laws, rules and regulations (including all applicable data privacy laws, rules and regulations) in its use of the Subscription Services, including without limitation the federal “CANSPAM ACT OF 2003” (http://www.ftc.gov/spam) and any additional Anti-Spam laws of their respective countries. All emails built and/or sent by or on behalf of Client using the Subscription Services must use an unsubscribe link. Client agrees that if at any time any person chooses to no longer receive an electronic communication from Client it will immediately remove such person from the distribution list of any and all future communications and that Client will keep them removed from the distribution list until such person chooses to receive the communications again. Client agrees to indemnify and hold harmless Company and its owners, officers, employees, representatives, agents, licensors, successors and assigns from and against any and all claims, damages, charges, costs, expenses, causes of action, liabilities and other obligations resulting from Client’s failure to so comply.
6.4 Email Standards. Client shall send emails on an “Opt-In” basis only; no email sends shall be made unless they are “Opt-In” and are in compliance with all applicable laws. Company strongly urges Client to send to double Opt-In lists only. In no event shall any Subscription Services be used to send SPAM. As used herein, “Spam” shall mean (a) unsolicited commercial email sent to a recipient who has not provided his/her/its email address directly to the sender or sent to a recipient who would not have a reasonable expectation of receiving email from the sender, or (b) any email advertising illicit or illegal activities, or (c) any electronic message sent to email addresses provided by a third party. Client agrees that its data and lists loaded into the Subscription Services will not be used to send Spam, or otherwise constitute Spam. Client accepts any and all liability for, and agrees to indemnify and hold harmless Company and its owners, officers, employees, representatives, agents, licensors, successors and assigns from and against, any and all costs, expenses, liabilities, damages and other obligations in connection with any and all complaints, fines, cleaning of IP addresses and/or other services required as a result of supplying Company with addresses and/or sending electronic mail that do not comply with the foregoing.
6.5 In addition to the above rights, Client provides and fully authorizes Company to process and/or use Client Materials in and with the Subscription Services, as well as any other Subscription Services and/or Professional Services or other offerings provided by Company to the Client, which may include but are not limited to following: (a) Subscription Services; (b) offerings requiring a feed setup by the Company; (c) any use by Client or Client’s Users of Company’s Subscription Services or other offerings such as a feed setup; (d) Client’s selection or creation of listings to be exported or otherwise provided to other website(s); (e) Company’s provision of Client Materials to, or configuration or integration with third-party systems; and/or (e) Client’s or Client’s Users configuration or integration of any Client Materials with third-party systems.
7. Confidentiality.
7.1 “Confidential Information” refers to the following items either party (“disclosing party”) discloses to the other party (“receiving party”): (a) any document the disclosing party marks “Confidential”; (b) any information disclosing party orally designates as “Confidential” at the time of disclosure, provided disclosing party confirms such designation in writing within 5 business days; and (c) any other nonpublic, sensitive information the receiving party should reasonably consider a trade secret or otherwise confidential. Company’s Confidential Information includes Company IP and Derivatives and all pricing. Client’s Confidential Information includes Client Materials. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in receiving party’s possession at the time of disclosure; (ii) is independently developed by receiving party without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of disclosing party’s improper action or inaction; or (iv) is approved for release in writing by the disclosing party.
7.2 Use and Disclosure. The receiving party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to a director, officer, employee, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving party and who are bound by a duty of confidentiality no less protective of the disclosing party’s Confidential Information than this Agreement. The receiving party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for purposes other than as set forth in this Agreement. Each party accepts responsibility for the actions of its Representatives and shall protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care. Client agrees that it (and its Users) shall not use the Company IP and Derivatives for the purposes of conducting comparative analysis, evaluations or product benchmarks with respect to the Subscription Services and will not publicly post any analysis or reviews of the Company IP and Derivatives without Company’s prior written approval in each instance. Receiving party shall promptly notify disclosing party of any misuse or misappropriation of Confidential Information that comes to receiving party’s attention. Notwithstanding the foregoing, receiving party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Receiving party shall give disclosing party prompt notice of any such legal or governmental demand and reasonably cooperate with disclosing party in any effort to seek a protective order or otherwise to contest such required disclosure, at disclosing party’s expense.
8. Warranty and Disclaimer.
8.1 Subscription Services. Company warrants that, during the applicable Term, Company will provide commercially reasonable availability and performance of the Subscription Services provided by Company to Client. For any breach of this warranty, Company will, at no additional cost to Client, provide remedial services necessary to enable the Subscription Services to conform to this warranty. Client will provide Company with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects. The remedy set out in this Section 8.1 is Client’s sole remedy for breach of this warranty. This warranty shall only apply if the Subscription Services have been utilized by Client in accordance with this Agreement.
8.2 Professional Services. Company warrants that any Professional Services provided hereunder shall be provided in a competent manner in accordance with any specifications set forth in the Order Form or SOW (as the case may be), in all material respects. If the Professional Services are not performed as warranted, then, upon Client’s written request, Company shall promptly re-perform, or cause to be re-performed, such Professional Services, at no additional charge to Client. Such warranty shall only survive for sixty (60) days following the completion of the applicable Professional Services. Such re-performance and Client’s right to terminate this Agreement for material breach shall be Client’s exclusive remedies and Company’s sole liability for any such nonperformance.
8.3 DISCLAIMERS. EXCEPT TO THE EXTENT SET FORTH IN SECTIONS 8.1 AND 8.2 ABOVE, CLIENT ACCEPTS THE SYSTEM AND SERVICES “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. SUBJECT TO AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING COMPANY MAKES NO REPRESENTATION OR WARRANTY: (a) THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; (b) THAT THE SYSTEM WILL BE COMPATIBLE WITH ANY SOFTWARE OR OTHER SYSTEM; (c) THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CLIENT MATERIALS WILL REMAIN PRIVATE OR SECURE; OR (d) THAT ANY DATA PROVIDED BY ANY USER OR THIRD PARTY IS RELIABLE, ACCURATE OR LEGALLY COMPLIANT.
9. Indemnification.
9.1 Indemnification By Company. Company shall indemnify, defend, and hold harmless Client from and against any and all losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (“Losses”) resulting from any third-party claim, suit, action, or proceeding that use of the Subscription Services infringes upon or misappropriates such third party’s US patents, copyrights, or trade secrets, provided that Client promptly notifies Company in writing of the claim, cooperates with Company, and allows Company sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Client agrees to permit Company, at Company’s sole discretion, to (i) modify or replace the Subscription Services, or any component or part thereof, to make it non-infringing, or (ii) obtain the right for Client to continue use, or (iii) terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Client. This Section 9.1 will not apply to the extent that the alleged infringement arises from: (i) use of the Subscription Services in combination with data, software, hardware, equipment, technology or services not provided by Company or authorized by Company in writing; (ii) modifications to the Subscription Services not made by Company; (iii) Client Materials, Client Advertisements or Third-Party Products; (iv) any third-party products provided with or incorporated into the Subscription Services; (v) use of the Subscription Services in violation of this Agreement or applicable law; (vi) portions or components of the Subscription Services made in whole or in part in accordance with Client specifications; (vii) use of the Subscription Services after Company notifies Client to discontinue use because of an infringement claim or (viii) use of the Subscription Services not in accordance with this Agreement.
9.2 Indemnification By Client. Client shall indemnify, defend, and hold harmless Client from and against any and all Losses resulting from any third-party claim, suit, action, or proceeding alleging that Client Materials, Client Advertisements, or Client’s use of Company IP in breach of this Agreement, infringes upon or misappropriates such third party’s US patents, copyrights, or trade secrets or violates applicable law, provided that Company promptly notifies Client in writing of the claim, cooperates with Client, and allows Client sole authority to control the defense and settlement of such claim.
10. Limitation of Liability.
EXCEPT AS MAY ARISE OUT OF EITHER PARTY’S WILLFUL MISCONDUCT OR CLIENT’S BREACH OF ARTICLES 1 OR 5, NEITHER PARTY WILL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR LOSS OF PROFITS, OR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING LOSS OF REVENUE, PROFITS AND COSTS, LOSS OF DATA, LOSS OF USE, AND LOSS OF ECONOMIC ADVANTAGE) IN CONNECTION WITH THE PERFORMANCE OF THE COMPANY IP OR DERIVATIVES (INCLUDING INABILITY TO USE THE SUBSCRIPTION SERVICES, OR FOR ANY CONTENT OBTAINED VIA THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR
OMISSION IN THE CONTENT, REGARDLESS OF CAUSE), OR THE PERFORMANCE OF ANY OTHER OBLIGATIONS UNDER THIS AGREEMENT, EVEN IF IT IS AWARE OF THE POSSIBILITY OF THE OCCURRENCE OF SUCH DAMAGES. THE TOTAL CUMULATIVE LIABILITY OF COMPANY TO CLIENT FOR ANY AND ALL CLAIMS AND DAMAGES UNDER THIS AGREEMENT, WHETHER ARISING BY STATUTE, CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE FEES ACTUALLY PAID BY CLIENT TO COMPANY UNDER THE APPLICABLE ORDER FORM OR SOW FOR THE SUBSCRIPTION SERVICES AND/OR PROFESSIONAL SERVICES WHICH FORM THE SUBJECT OF THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
11. Miscellaneous.
11.1 Publicity. Company may include Client’s name and logo in a list of Company’s Clients, online or in promotional, sales or advertising materials. Company may also verbally reference Client as a Client of Company.
11.2 Assignment. This Agreement shall be binding upon and for the benefit of Company, Client and their permitted successors and assigns. This Agreement may not be assigned by either Client or Company without the prior written approval of the other. Except as expressly stated in this Agreement, neither party may otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party, and any attempted assignment or delegation without such consent will be void. Company may use independent contractors or subcontractors to assist in the delivery of Subscription Services; provided, however, that Company shall remain liable for the actions or omissions of such independent contractors or subcontractors and for the payment of their compensation.
11.3 Governing Law. This Agreement shall be governed by the laws of the State of Texas without regard to its principles of conflicts of law where such principles would permit the application of the law of any other jurisdiction.
11.4 Disputes. Any disputes between the Parties arising out of this Agreement shall be subject to the following dispute resolution procedures prior to filing of any governmental proceeding: members of the senior management of both parties shall meet to attempt to resolve such disputes. If a dispute cannot be resolved within thirty (30) days, either party may make a written demand for mediation. Within thirty (30) days after such written notification, the parties shall meet for one day with an impartial mediator. The costs and expenses of the mediator shall be shared equally by the parties. If the dispute is not resolved within fifteen days following the conclusion of mediation, either party may initiate a governmental proceeding. The parties agree that a party need not invoke the procedures set forth in this Section 11.4 in order to seek injunctive relief.
11.5 Relationship of the Parties. Company and Client are independent contractors, and nothing in this Agreement shall be construed as making them partners or creating the relationships of employer and employee, or principal and agent between them, for any purpose whatsoever. Neither party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other party’s name or on its behalf.
11.6 Force Majeure. Nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing party.
11.7 Modifications. Company may make modifications to the Company IP from time to time provided that such modifications do not materially degrade any functionality or features of the Company IP.
11.8 Notices. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered personally to the party to whom the same is directed; (ii) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt, or (iii) five (5) business days after the mailing date whether or not actually received, if sent by U.S. certified mail, return receipt requested, postage and charges pre-paid or any other means of rapid mail delivery for which a receipt is available, to the address of the Party set forth on the applicable Order Form. Either party may change its address by giving written notice of such change to the other party.
11.9 Third-Party Beneficiaries. Nothing contained in this Agreement is intended or shall be construed to confer upon any person any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a party to any such person.
11.10 Export Restrictions. Client acknowledges that the Company IP is subject to United States export control laws. Client shall comply with all applicable export laws, obtain all applicable export licenses and will not export or reexport any part of the Company IP to any country in violation of such restrictions or any country that may be subject to an embargo by the United States.
11.11 Waiver and Severability. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein. The failure of either party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.
11.12 Equitable Relief. Notwithstanding any other provision of this Agreement, both parties acknowledge that breach of the other party’s intellectual property rights, or any use of the disclosing party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the non-breaching party irreparable and immediate damage for which remedies other than equitable or injunctive relief may be inadequate. Therefore, both parties agree that, in addition to any other remedy to which the non-breaching party may be entitled hereunder, at law or equity, the non-breaching party shall be entitled to seek an injunction or injunctions to restrain such use in addition to other appropriate remedies available under applicable law.
11.13 Amendment. Company may revise this Agreement from time to time at its sole discretion by publishing such changes on Company’s website: https://app.realstack.com/legal/, provided such revision is either for purposes of compliance with applicable laws and regulations or does not materially reduce Client’s rights or protections hereunder. Client’s continued use of the Subscription Services will be deemed acceptance of any such revisions. Any other revision to this Agreement or an Order Form may be made only by mutual written agreement by Company and Client or as otherwise provided herein. Any conflict between this Agreement and any Order Form shall be resolved in favor of the Order Form.
11.14 Entire Agreement. This Agreement, including all linked documents referenced herein, all Order Forms, and the REALSTACK Privacy Policy (as such Privacy Policy may be revised from time to time) contains the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the parties relating thereto and is binding upon the parties and their permitted successors and assigns. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the party drafting this Agreement in construing or interpreting the provisions hereof. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
REALSTACK
536 S. Coppell Rd
Suite 100
Coppell, TX 75019
(972) 471-1424