Software License and Services Agreement
This Agreement is between you, hereinafter referred to as "Licensee", and iHomefinder Inc. ("iHOMEFINDER"), a California Corporation, located at 1900 Addison Street, Suite 300, Berkeley, California, 94704, for use of Software and Services that iHOMEFINDER supplies. Each of iHOMEFINDER and Licensee is sometimes referred to herein as a "Party" and sometimes are collectively referred to herein as the "Parties".
Whereas, the Parties desire that iHOMEFINDER will grant, and Licensee will receive, a license to iHOMEFINDER's real estate website technology and hosted display of licensed Multiple Listing Service® ("MLS®") System content on Licensee's website in accordance with Licensee's MLS® Internet Data eXchange ("IDX") program and under the applicable MLS® rules, regulations, and policies.
By using the Software and Services, you accept the following terms.
1. License Grant. Subject to compliance with the terms and conditions provided in this Agreement, iHOMEFINDER grants Licensee a limited, personal, non-exclusive, non-sublicensable, non-transferable right and license in the region served by the MLS® of which the Licensee is a member in good standing, during the Term of this Agreement and under iHOMEFINDER's Intellectual Property rights, to use the Software and Services ("IDX website technology") solely for the purpose of operating a website and displaying MLS® content to consumers. The Software and Services may be used in conjunction with one (1) Internet universal resource locator ("URL"). To qualify for the Software and Services, Licensee’s designated broker of record must be able and willing to authorize Licensee, in writing, to operate a website displaying MLS® content to consumers. The License shall commence as of the Effective Date of this Agreement and shall terminate upon expiration of the Term of this Agreement. This License shall be automatically revoked upon Licensee's failure to comply with the terms and conditions of this Agreement or Licensee's MLS® Agreements. This Agreement is subject to immediate termination at iHOMEFINDER's discretion.
2. Term and Termination
2.1. Term. This Agreement shall commence on the Effective Date, shall continue in full force and effect for a period of one (1) month, or twelve (12) months for annual accounts, and shall be automatically renewed thereafter for successive periods unless written notice of intent not to renew is received by either Party at least thirty (30) days prior to the commencement of any subsequent Term.
2.2. Termination. This Agreement may be terminated by either Licensee or iHOMEFINDER: (i) in the event of a material default or breach any term, condition or covenant contained in this Agreement by the other Party which is not cured within thirty (30) calendar days after written notice of the default or breach; (ii) immediately upon written notice if the other Party files or is the subject of a bankruptcy case, makes an assignment for the benefit of creditors, becomes insolvent, is generally unable to pay its debts as they become due, or has a receiver, trustee, or conservator appointed for any substantial part of its assets or properties; (iii) immediately upon notice of an MLS® violation; or, (iv) without cause upon thirty (30) days written notice. Licensee shall forfeit any fees paid in advance in the event that Licensee terminates this Agreement before the expiration of the Term.
3. Ownership. iHOMEFINDER is and shall remain the sole and exclusive owner of all right, title and interest in its IDX website technology, Intellectual Property rights embodied herein, and Improvements thereto, including any Improvements made to meet Licensee's needs.
4. Payment. In consideration for the rights granted to Licensee hereunder, Licensee agrees to pay iHOMEFINDER the fees for the Software license and Services selected by Licensee in accordance with iHOMEFINDER's published schedule of fees. iHOMEFINDER shall, and is hereby authorized to, automatically charge Licensee's credit card account for the monthly or annual payments due hereunder. iHOMEFINDER reserves the right to adjust such fees from time to time, provided that not less than thirty (30) days' written notice of such adjustment shall be given to Licensee prior to the effective date of each such adjustment.
4.1. Setup Fees. Setup Fees are due and payable upon execution of this Agreement. Setup Fees are non-refundable. For all Licensees, Setup fees include administrative account setup and MLS® Paperwork Processing.
4.2 Service Fees. Assessment of monthly or annual Service Fees begins upon execution of this Agreement. A prorated Service Fee will be due for the remainder of the calendar month in which the Effective Date falls. Regular Service Fees will commence upon the first of the month following the Effective Date. Service Fees are non-refundable in the event that Licensee cancels service before the end of the Term. If Licensee selects a Managed Service package, Licensee’s account will remain on that package for a minimum of three months.
4.3. MLS®-Imposed Fees. iHOMEFINDER reserves the right to charge and collect from Licensee, on a pro rata basis, all fees imposed on iHOMEFINDER by the MLS® System(s) used by Licensee.
4.4. Past Due Accounts.
4.4.1. Licensee's account shall be considered past due if payment has not been received by iHOMEFINDER one (1) month after such payment is due. Past due amounts will accrue a 1.5% finance charge per month on the total unpaid balance and a $20.00 late payment processing fee plus any fees charged to iHOMEFINDER for payment processing.
4.4.2. iHOMEFINDER will charge a $20.00 processing fee plus any fees charged to iHOMEFINDER by payment processing service providers each time Licensee's credit card is declined.
4.4.3. iHOMEFINDER reserves the right to suspend Licensee's account for failure to make timely payment. iHOMEFINDER shall reactivate suspended accounts upon the receipt of Licensee's payment of all current obligations and a $10.00 reactivation fee. Payment of the reactivation fee does not satisfy other outstanding obligations owed to iHOMEFINDER.
5. Disclaimer of Warranties. Neither iHOMEFINDER nor any of its employees, officers, directors, affiliates, or agents makes any representation or warranty of any kind, including, without limitation, that access to or use of any software, products, or services to be provided pursuant to this Agreement shall be uninterrupted or error free, that agreed-upon security measures shall prevent unauthorized access to the internet, or unauthorized interception of information on the Internet, any Intranet or any common carrier communications facility. iHOMEFINDER does not control the source or quality of any data or data feeds received from multiple listing services and cannot provide any quality guarantees in connection with the MLS® data we provide.
Licensee understands and expressly agrees that all use of iHOMEFINDER's Software and Services is at the sole risk of Licensee. All software, content, and services are provided ON AN "as is" and "as available" basis. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE AND SERVICES IS DONE AT LICENSEE'S OWN DISCRETION AND LICENSEE WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO THEIR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
iHOMEFINDER expressly disclaims all warranties of any kind, whether express or implied, statutory, or other warranties, including but not limited to warranties of merchantability, fitness for a particular purpose, title, quiet enjoyment, and non-infringement. iHOMEFINDER MAKES NO WARRANTY THAT (i) THE SOFTWARE AND SERVICES WILL MEET LICENSEE'S REQUIREMENTS, (ii) THE SOFTWARE AND SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE AND SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY LICENSEE THROUGH THE SOFTWARE AND SERVICES WILL MEET LICENSEE'S EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE AND SERVICES WILL BE CORRECTED.
6. Limitation of Liability
6.1. General Limitation. Both parties understand and agree that neither party will be liable to the other for any indirect, incidental, consequential, punitive, or special damages, arising out of or related to this Agreement including, without limitation, damages for loss of business profits, business interruption, loss of business information, and the like, even if such party has been advised of the possibility of such damages. Neither party shall be liable for any delay or failure to perform which is caused by matters beyond its reasonable control, including without limitation failure or unavailability of, or impaired access to, MLS® Data Feeds, legal or regulatory restrictions, labor disputes, mechanical, electronic or equipment, breakdowns in facilities controlled by third parties, acts of terror, or Acts of God.
6.2. Damages Limitation. The maximum liability AND the exclusive remedy available to Licensee in connection with this agreement shall be to recover no more than the cumulative amounts paid by Licensee to iHOMEFINDER OVER the previous ninety (90) days during which Licensee received service or USED SOFTWARE under the term of this Agreement, and/or to receive equitable relief, (INCLUDING BUT NOT LIMITED TO INJUNCTIVE RELIEF OR SPECIFIC PERFORMANCE) and/or to terminate this Agreement in accordance with SECTION 2. The foregoing limitation of money damages shall be calculated up to the date of such Termination. The existence of multiple claims or suits under or related to this Agreement will not enlarge or extend the limitation of money damages. Licensee acknowledges that other parts of this Agreement rely upon the inclusion of this Section 6.
6.3. Exclusions. None of the limitations in Section 6 shall apply in the case of infringement of iHOMEFINDER's, or an MLS®'s, Intellectual Property rights.
6.4. Licensee acknowledges that damages suffered by iHOMEFINDER from unauthorized access to or display of MLS® content, or violation of Licensee's MLS® licenses and rules, whether as a result of violation of the terms and conditions of this Agreement or Licensee's MLS® agreement, or any other unauthorized disclosure of MLS® content to a third party is speculative and difficult to quantify. Accordingly, as a material inducement to iHOMEFINDER to enter into this Agreement, Licensee agree that in the event of such violation, regardless of whether intentional or negligent, Licensee shall be liable to iHOMEFINDER for liquidated damages in the amount of $15,000 for each such violation.
7. Indemnification. Each Party to this Agreement, shall, upon written request, indemnify and hold the other Party, its affiliates, subsidiaries, directors, officers, employees, agents and licensors harmless from and against all claims, demands and actions of or by any third Party, including all liabilities, damages, obligations, costs and expenses (such as reasonable attorneys' and experts' fees) ("Claims"), which arise from or relate to: (i) breach of such Party's warranty set forth in this Agreement, (ii) such Party's gross negligence or willful misconduct, or (iii) an allegation that the Licensee's use of products, services, content, or materials provided by iHOMEFINDER under this Agreement, as set forth in this Agreement, violates the intellectual property, including but not limited to copyright, trademark, trade secret, patent, or right of personality, publicity, or privacy of any third party.
The Party receiving indemnification (the "Indemnified Party") agrees that the Party providing indemnification (the "Indemnifying Party") may assume sole and exclusive control over the defense and settlement of any third party claim with respect to which the foregoing indemnity obligations apply, except that the Indemnifying Party will not, however, enter into any settlement that adversely affects the Indemnified Party's rights or interests without the prior written consent of the Indemnified Party. The Indemnified Party shall promptly notify the Indemnifying Party of any Claim against it of which it becomes aware. At the Indemnifying Party's expense, the Indemnified Party will provide reasonable cooperation to the Indemnifying Party in connection with the defense or settlement of any such claim. At the Indemnified Party's expense, the Indemnified Party will be entitled to participate in the defense of any such claim.
8.1. Party Representations and Warranties. Each Party to this Agreement hereby represents and warrants to the other that it is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation and has full power and authority under its organizational documents and the laws of such jurisdiction to execute and deliver this Agreement and to perform its obligations hereunder; and this Agreement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation enforceable in accordance with its terms.
8.2. Technical Support. During the Term of this Agreement, iHOMEFINDER shall make available to Licensee during normal business hours such personnel as iHOMEFINDER may have reasonably available, and who have appropriate knowledge to provide technical support to Licensee on the use of the Software and Service.
8.3. Licensee MLS® Compliance. Licensee represents and warrants that it is, and will remain for the Term, a member in good standing and in full compliance with the rules and regulations of the MLS®(s) whose data iHOMEFINDER displays on Licensee's IDX website. Licensee shall notify iHOMEFINDER within three (3) days of any change in Licensee's MLS® membership status, broker affiliation, website URL, website design, or website provider. Licensee expressly understands and agrees that MLS® Compliance is the sole responsibility of Licensee at all times and Licensee will indemnify iHOMEFINDER, under Section 7 of this Agreement against any claims which arise from Licensee's failure to comply with the rules and regulations of their MLS®(s) at all times.
8.4. Licensee Account Information. iHOMEFINDER will create, maintain and record Licensee information including the identifying details of the Licensee, the Licensee provided under this Agreement, and the payment records. iHOMEFINDER will make reasonable commercial effort to maintain the confidentiality of any of Licensee's confidential or proprietary information. iHOMEFINDER may share any and all Licensee account and end-user information with MLSs® and related third-party service and product providers, which are bound by contractual arrangements with iHOMEFINDER to maintain confidentiality.
8.5. Fair Usage. In order to preserve the quality of service delivered to all end-users and iHOMEFINDER Licensees, iHOMEFINDER reserves the right to either charge additional usage fees, to modify certain aspects of the Software and Service's configuration, or to terminate this Agreement, in the event Licensee is determined solely by iHOMEFINDER to have used the provided Software and Service beyond its reasonably intended use.
8.6. Third Party Beneficiaries. This Agreement is for the sole and exclusive benefit of Licensee and iHOMEFINDER. It shall not be deemed to be for the direct or indirect benefit of customers of Licensee or iHOMEFINDER products or any other person, and customers of these products shall not be deemed to be third party beneficiaries of this Agreement or to have any other contractual relationship with Licensee or iHOMEFINDER by reason of this Agreement.
8.7. Covenant Not to Sue. Subject to the Parties' compliance with this Agreement, iHOMEFINDER and Licensee hereby agree that and covenant that either Party shall not sue or otherwise assert any claim against the other Party based on the Parties' use of any iHOMEFINDER Product. Other than those claims falling directly and solely within the scope of the foregoing covenant, iHOMEFINDER reserves the right to assert, protect and enforce all of its proprietary rights to the fullest extent permitted by applicable law.
8.8. Dispute Resolution. The Parties hereto agree to submit any unresolved disputes concerning the interpretation of this Agreement to a mediation process to occur within Alameda County, California with each Party to bear its own attorneys' fees and cost of the mediation to be borne equally by both Parties. If mediation is unsuccessful, the parties agree to resolve the dispute through arbitration to occur within Alameda County, California following the rules and practices of the American Arbitration Association.
8.9. Construction. In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (i) such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions of this Agreement will remain in full force and effect. This Agreement has been negotiated by the parties and their respective counsel and will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party. The section headings used in this Agreement are intended for convenience only and will not be deemed to affect in any manner the meaning or intent of this Agreement or any provision hereof.
8.10. Independent Contractors. The Parties are independent contractors, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, or a joint venture between the Parties.
8.11. Attorney's Fees. If any legal action, including an action for declaratory relief, is brought to enforce or interpret the provisions of this agreement, the prevailing Party will be entitled to reasonable attorney's fees and costs, as well as other out of pocket legal expenses.
8.12. Assignment. Neither this Agreement nor any duties or obligations under this Agreement may be assigned by either Party without the prior written consent of the other Party.
8.13. Agreement Governed By. This Agreement and performance hereunder and all suits and special proceedings hereunder shall be construed in accordance with the laws of the State of California.
8.14. Waivers. Waiver of one Party hereto of breach of any provision of this Agreement by the other shall not operate or be construed as a continuing waiver.
8.15. Entire Agreement. This Agreement constitutes the entire agreement between the Parties as to the subject matter hereof, and supersedes any prior or contemporaneous agreements or understandings relating to such subject matter.
9. DMCA Compliance. iHOMEFINDER strongly respects copyright protections. Use of iHOMEFINDER services is subject to our Digital Millennium Copyright Act ("DMCA") Notice. Licensee must take adequate precautions to ensure that neither they nor any employee, representative, or other agent upload any copyright-infringing text, photos, or any other matter for which they do not hold the copyright or a copyright license, through the Software and Services. Licensee must indemnify and hold iHOMEFINDER harmless from any damages resulting from copyright infringement arising from Licensee’s use of the Software and Services.