SOFTWARE AS A SERVICE terms and conditions
WHEREAS, Client wishes to purchase and utilize a subscription/license to Localize’s “software as a service,” a matching and recommendation engine that connects, among other individuals, prospective purchasers and leasees of residential property to real estate agents, (the “Services”), as more fully described in the Statement of Services (“SOS”) between the Parties;
WHEREAS, Localize desires to provide and manage the Services, all on the terms and conditions set forth herein.
WHEREAS, the parties agree that the Client is contracting with the local Localize entity where the Client is domiciled, as more fully listed in Entity List in Section 10.9 hereto.
NOW, THEREFORE, in consideration of the mutual covenants and promises set forth in this Agreement, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
1.1 All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the SOS.
2. SERVICES AND SUPPORT
2.1 Subject to the terms of this Agreement, Localize will use commercially reasonable efforts to provide Client the Services. As part of the registration process, Client may need to identify an administrative username and password for Client’s Localize account. Localize reserves the right to refuse registration of or cancel passwords it deems inappropriate.
2.2 Subject to the terms hereof, Localize will provide Client with reasonable technical support services during Localize’s normal business hours in accordance with Localize’s standard practice.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1 Client will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Localize or authorized within the Services); use the Services or any Software for time sharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. With respect to any Software, user interface, browser extension, thin client or other intellectual property that is distributed or provided to Client for use on Client premises or devices (collectively, the “Resident IP”), Localize hereby grants Client a non-exclusive, non-transferable, non-sublicensable license to use such Resident IP during the Term (defined below) only in connection with the Services, subject at all times however, to all applicable terms and conditions of this Agreement.
3.2 Further, Client may not remove or export from the United States or allow the export or re-export of the Services, Software, any other Resident IP or anything related to any of the foregoing, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
3.3 When Client provides (“refers”) a Lead to Localize that includes a telephone number, Client represents, covenants, and warrants that Client or a third party has obtained from the owner of the telephone number a valid prior express written consent to be called and texted by or on behalf of Client under all applicable telemarketing laws such as the Telephone Consumer Protection Act (“TCPA”)—such as a signature agreeing that “I voluntarily consent to receive text messages and calls from or on behalf of Client and its service providers at my telephone number, including messages and calls sent or initiated through automated means. I understand that these communications may include marketing and related content and that consent is not a condition of any purchase.” Client should consult with its own counsel about the exact requirements and language necessary for valid consent and agrees that the above language is not necessarily legally sufficient. If the owner of a telephone number or the customary user of a telephone number requests that calls or texts no longer be sent to the phone number, Client agrees to comply and to notify Localize immediately.
3.4 Client represents, covenants, and warrants that Client will use the Services only in compliance with Localize’s standard published policies then in effect and all applicable laws and regulations. Client hereby agrees to defend, indemnify and hold harmless Localize against any damages, losses, liabilities, settlements and expenses (including without limitation costs and reasonable attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Client’s use of the Services by concurrent users (“CCU’s”) or other users of Client’s. Although Localize has no obligation to monitor Client’s use of the Services, Localize may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
3.5 Client acknowledges that, in the course of performing the Services, Localize may use software and related processes, instructions, methods, and techniques that have been previously developed by Localize (collectively, the “Pre-existing Materials,” which shall include the Services) and that the same shall remain the sole and exclusive property of Localize. Except as expressly set forth herein, no license is granted by Localize to Client with respect to the Pre-existing Materials and nothing contained in this Agreement shall be construed to grant to Client any ownership or other interest or rights, in or to the Pre-existing Materials, except to the extent they are part of the Services, in which case, Client shall have such rights thereto consistent with the rights granted hereunder with respect to the Services.
3.6 Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Client shall also be responsible for maintaining the security of the Equipment, Client account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Client account or the Equipment with or without Client’s knowledge or consent.
4. PROPRIETARY RIGHTS; OWNERSHIP OF DATA AND TECHNOLOGY
4.1 Localize shall own and retain all right, title and interest in and to (a) the Services, Resident IP (including but not limited to the Software), all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Services or support, and (c) all intellectual property rights related to any of the foregoing. Client shall own and retain all right, title and interest in and to contact information (and information associated with such contact information) that it submits to the Services about its own clients or customers.
4.2 Notwithstanding anything to the contrary, Localize shall have and is hereby granted the right to collect, use and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information and content concerning and/or containing Client Data and data derived therefrom, including voice recordings and transcriptions, and processes and scenarios of Client’s generated, developed or observed by Localize), and Localize shall have and is hereby granted the right and license (during and after the term hereof) without any obligation, financial or otherwise, to Client except as expressly stated herein, to access, use, sublicense and display such information and data to improve and enhance the Services or to create, develop and/or build new services, datasets and related products or other product offerings, whether offered to Client or other clients, and for such other development, diagnostic, internal and/or corrective purposes in connection with the Services and other Localize offerings to Client or to other Localize clients provided however that Localize will not license any Client Data obtained from a real estate broker to another real estate broker.. No rights or licenses are granted except as expressly set forth herein.
4.3 During any period when this Agreement is in effect, Localize shall reasonably and promptly upon Client’s written request, provide Client, without charge and without any conditions or contingencies whatsoever (including, but not limited to, the payment of any fees due to Localize), an extract of the Client Data in a format securely downloadable from Localize’s servers, or such other format mutually agreeable to Client and Localize. However, Localize shall have the right to decline such request if Client makes more than six (6) requests for an extract in any consecutive six (6) month period.
5. PAYMENT OF FEES
5.1 Client will pay Localize the then applicable Fees described in the SOS for the Services, including the license/subscription fees, any set up or implementation fees, and any monthly retainer fees, all in accordance with the terms in the SOS. Localize reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days’ prior notice to Client (which may be sent by email). If Client believes that Localize has billed Client incorrectly, Client must contact Localize no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit (to the extent warranted). All billing inquiries should be directed to Localize’s customer support department.
5.2 Client shall pay the Fees in accordance with the terms set forth in the SOS. If any Fees become due and are not paid within ten (10) days after notice of non-payment, Client shall pay Localize all costs of collection, including reasonable attorneys’ fees, court costs and disbursements, incurred by Localize. In addition, any amounts owed pursuant to this Agreement and not paid when due shall accrue interest at the rate of one and one-half percent (1.5%) per month, commencing from the due date until paid in full. Client shall be responsible for all taxes associated with Services other than U.S. taxes based on Localize’s net income.
5.3 Client shall deliver to Localize, promptly after issuance thereof, a true and correct copy of the invoice or other documentation reflecting the amount of Client’s Commission paid to Client in connection with the sale, purchase, or lease of Residential Property to or by an Identified Lead.
5.4 In addition to its termination rights provided in Section 6 below, Localize shall have the right to suspend the Services in the event any Fees are not paid when due.
6. TERM AND TERMINATION
6.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the SOS and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either terminates this Agreement, as provided below, prior to the end of the then-current term.
6.2 In addition to any other remedies it may have, either Party may terminate this Agreement upon five (5) business days written notice to the other by email or overnight mail at the address listed above, or immediately if the other Party materially breaches any of the terms or conditions of this Agreement. The termination or expiration of this Agreement shall not affect the rights of Localize to collect the Fees with respect to transactions pursuant to which Fees are due or to become due thereafter pursuant to the terms of this Agreement, including the terms of the SOS, and such rights shall survive the expiration or earlier termination of this Agreement. Within five (5) business days after the expiration or earlier termination of this Agreement, Localize shall provide Client with a list (the “List”) of all Identified Leads. Localize shall receive the Commission Fees with respect to a sale or lease of Residential Property to or by an Identified Lead included on the List if the sale or lease is entered into with respect to such Residential Property within one (1) year after the termination or expiration of this Agreement (such one (1) year period being hereinafter referred to as the “Tail Period”).
6.3 Upon termination of this Agreement and the express written request of Client, which request shall be given to Localize within five (5) days of the termination, Localize will make all Client Data available to Client for electronic retrieval in a format securely downloadable from Localize’s servers, or such other format mutually agreeable to Client and Localize, for a period of thirty (30) days, but thereafter Localize may, but is not obligated to, delete stored Client Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, rights and restrictions concerning the Services, Pre-Existing Materials, and Client Data, warranty disclaimers, and limitations of liability.
7.1 WARRANTY AND DISCLAIMER; REPRESENTATIONS
7.1 Localize shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Localize or by third-party providers, or because of other causes beyond Localize’s reasonable control, but Localize shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Localize does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND LOCALIZE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8.1 Localize shall hold Client harmless from liability to third parties resulting from infringement by the Services of any United States patent or any copyright or misappropriation of any trade secret, provided Localize is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Localize will not be responsible for any settlement it does not approve in writing.
8.2 The foregoing obligations of Section 8.1 do not apply with respect to portions or components of the Services (i) not supplied by Localize, (ii) made in whole or in part in accordance with Client specifications, (iii) that are modified after delivery by Localize, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Client continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Client’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Localize to be infringing, Localize may, at its option and expense (a) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Client a license to continue using the Services, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Client’s rights hereunder and provide Client a refund of any prepaid, unused fees for the Services.
8.3 In the event that, as a result of Client’s referring a Lead to Localize, another person or entity (the “Claimant”) asserts a claim or commences an action against Localize and/or its partners, members, shareholders, beneficial owners, officers, directors, managers, employees, agents or affiliates (collectively, the “Indemnified Parties”) for any reason relating to an act or omission by Client through no fault of Indemnified Parties, Client shall indemnify and hold harmless the Indemnified Parties against all liabilities, claims or actions made or asserted by the Claimant against any of the Indemnified Parties, and the cost of defending same (including reasonable attorneys’ fees, court costs and disbursements).
9. LIMITATION OF LIABILITY
9.1 NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, LOCALIZE AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND LOCALIZE’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CLIENT TO LOCALIZE FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT LOCALIZE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.1 Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related exhibits, including but not limited to the SOS, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
10.2 Notices. Notices must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this provision). All Notices may be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only if the Party giving the Notice has complied with the requirements of this provision.
10.3 Force Majeure. In no event shall Localize be liable to Client, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Localize’s reasonable control, including, but not limited to, (i) acts of God, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, flood, fire, arson, or civil disturbance, or (ii) mechanical, electronic or communications failure, natural disasters and traffic disruption, data corruption, service interruption caused by viruses, network and service defects, caused by connection and transfer conditions beyond its control or other such disruption.
10.4 Amendment and Modification; Waiver. Localize reserves the right to periodically update the terms and conditions contained in this Agreement. No waiver by either Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
10.5 Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to affect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
10.6 Audit Rights. Localize shall have the right to conduct an on-premises audit of Client’s compliance with the use of the Services and Resident IP at any time, and from time to time, during the Term upon no less than five (5) days‘ notice.
10.7 Publicity and Use of Trademarks. Absent the other Party’s prior written consent, neither Party shall (a) use the names, addresses, logos, trademarks, trade names or any facsimile thereof of the other Party, it affiliates or it’s customers or consumers, or prospective customers or consumers in publicity releases, promotional material, advertising, marketing or business generating efforts of any nature, including, but not limited to, social media sites (e.g. Facebook, Twitter, etc.); or (b) disclose the existence or details of the Parties’ relationship or the terms of this Agreement. Notwithstanding the foregoing, Localize may use and display on its web properties and in other marketing, promotional and publicity collateral in all media, Client’s name, trademark, trade name and/or logo indicating Client is a customer, as well as any testimonial provided by Client.
10.8 Ownership. Localize, in its own name or in the name of one or more of its affiliates, owns all right in and to the Services, the Software, the Pre-existing Materials, and the all features, functionality, design aspects and content in and within the Services, and these terms as used throughout this Agreement shall be construed accordingly.
10.9 Governing Law; Submission to Jurisdiction; Contracting Party. This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Services provided hereunder may be instituted in the federal courts of the United States or the courts of the State of New York in each case located in the County and State of New York, and each Party irrevocably submits to the exclusive jurisdiction and venue of such courts in any such suit, action, or proceeding. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees. All references to
All references to “Localize” in this Agreement depend on where Client is domiciled and shall refer to the applicable entity in the following table:
|DOMICILE||LOCALIZE CONTRACTING ENTITY||ADDRESS|
|NEW YORK||LOCALIZE NYC LLC||35 WEST 31ST STREET, 6TH FLOOR, NEW YORK, NEW YORK 10001|
|ILLINOIS||LOCALIZE CHICAGO LLC||35 WEST 31ST STREET, 6TH FLOOR, NEW YORK, NEW YORK 10001|
10.10 Assignment; Binding on Successors. Client may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Localize. Any purported assignment or delegation in violation of this provision will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
10.11 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 3 would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
10.12 No Partnership. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Client does not have any authority of any kind to bind Localize in any respect whatsoever.
10.13 Licenses and Authority. Client represents that Client is a licensed real estate broker or licensed real estate salesperson or associate broker in the State of in which Client is utilizing the Services and performing Client’s obligations hereunder, and has included Client’s registered license number in the space provided when agreeing to, acknowledging, and accepting this Agreement and its governing terms and conditions, including those set forth in the SOS. Client represents it has full authority to enter into this Agreement, including the SOS, and bind Client to all of its terms and conditions. If Client is an entity, the person on behalf of Client who is executing this Agreement, including the SOS, represents that he or she has authority to do so and to bind Client to all of its terms and conditions.
10.14 Digital Signatures. The Parties agree that a facsimile or other digitally tranmitted signature may substitute for and have the same legal effect as the original signature. By checking the box stating “I Agree” you acknowledge your assent to this Agreement and all its terms and conditions.