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PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY.
1. DEFINITIONS “Effective Date” means the date Customer executes the initial Order Form. 2. GRANT OF LICENSE During the term of this Agreement Customer grants REofUSA.com a limited term non-exclusive right to (i) display or deliver Customer’s Listing Content to consumers who visit the REofUSA.com Website; (ii) extract Customer’s Listing Content from Customer’s website from a data feed provided by Customer to REofUSA.com; and (iii) permit operators of websites displaying real estate listing information, to include hypertext links to enable visitors to such sites to search and view Listing Content that appears on the REofUSA.com Website. 3. REofUSA.com OBLIGATIONS For the term of this Agreement REofUSA.com will include the Listing Content on the REofUSA.com Website and provide consumers who view the Listing Content on the REofUSA.com Website or other sites displaying real estate listing information as authorized under Section 2, the ability to connect via a hypertext link to Customer’s website on which the Listing Content appears. 4. CUSTOMER OBLIGATIONS Customer is solely responsibility for the accuracy, quality, integrity, legality, and reliability of all Listing Content. Customer’s interactions with consumers viewing Listing Content on the REofUSA.com Website, including without limitation any terms, conditions, warranties or representations associated with the Listing Content, is solely between Customer and such consumers. REofUSA.com shall not be responsible or liable for any loss or damage of any sort incurred as the result of any dealings between Customer and a consumer viewing Listing Content on the REofUSA.com Website. In the event that you have a dispute with one or more other users, Customer hereby releases REofUSA.com, its officers, employees, agents and successors in rights from claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to any dispute between Customer and a consumer viewing Listing Content on the REofUSA.com Website. 5. OWNERSHIP As between the parties, REofUSA.com shall retain all ownership rights in REofUSA.com Technology and REofUSA.com Content. As between the parties, all Listing Content remains the sole property of Customer. No license, right or interest in any REofUSA.com or Customer trademark, copyright, trade name or service mark is granted hereunder. Customer shall not disassemble, reverse engineer, license, sub-license, create derivative works from or re-license any of the REofUSA.com Content. 6. FEES 6.1 Unless specified otherwise in an Order Form Fees are payable monthly in arrears. All undisputed fees due hereunder shall be due and payable within thirty (30) days of date of invoice. If the monthly Service Fee for the Service product ordered by Customer is based on unit pricing with a maximum monthly fee, Customer will be invoiced for the lower of (i) unit pricing times the number of units (e.g. listings or clicks); or (ii) maximum monthly charge. 6.2 REofUSA.com may increase the Service Fees applicable to an Order Form upon 30 days prior written notice; provided, that any increase in Fees noticed during a month shall not take effect until the beginning of the month. 6.3 Upon execution of the applicable ordering document, payment obligations are non-cancelable and, except as expressly provided in this Agreement, upon payment, all payments made by Customer are non-refundable. All undisputed fees due hereunder shall be due and payable within thirty (30) days of receipt of invoice. If any Customer account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights and remedies (including the termination rights set forth in this Agreement), REofUSA.com reserves the right to not include the Listing Content on its website until such account is paid in full. 6.4 Unless otherwise provided, REofUSA.com’s fees do not include any Taxes, and Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding Taxes based on REofUSA.com’s net income or property. If REofUSA.com has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides a valid tax exemption certificate authorized by the appropriate taxing authority. 7. SUPPORT REofUSA.com shall provide support provided Customer is current in payment of the applicable Service Fees. 8. WARRANTIES 8.1 Each party represents and warrants that (i) it has the legal power to enter into and perform under this Agreement; and (ii) it shall comply with all other applicable laws in its performance hereunder. 8.2 Customer warrants that (i) for each listing included in the Listing Content Company has a valid listing agreement with the owner of the advertised property; (ii) it owns or has acquired all necessary rights in the trademarks, logos, brand name, and other intellectual property works that appear on Customer’s web page to which viewers of the Listing Content are linked; and (iii) it is, and will remain through the term of this Agreement, duly licensed in good standing in the state in which its principal office is located 8.3 EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE REofUSA.com WEBSITE IS PROVIDED IS PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. REofUSA.com HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TO THE FULLEST EXTENT PERMITTED BY LAW, REofUSA.com DISCLAIMS ANY WARRANTIES FOR THE SECURITY, RELIABILITY, TIMELINESS, ACCURACY, AND PERFORMANCE OF THE REofUSA.com WEBSITE. 9. INDEMNIFICATION 9.1 Indemnification by REofUSA.com. Subject to this Agreement, REofUSA.com shall defend, indemnify and hold Customer harmless against any loss or damage (including without limitation reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Customer by a third party alleging that the REofUSA.com Technology or REofUSA.com Content infringe the intellectual property rights of a third party; provided, that Customer (a) promptly gives written notice of the Claim to REofUSA.com; (b) gives REofUSA.com sole control of the defense and settlement of the Claim; and (c) provides to REofUSA.com all reasonable assistance. If REofUSA.com reasonably believes that the Customer’s use of any portion of the REofUSA.com Technology or REofUSA.com Content is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party’s intellectual property rights then REofUSA.com may, at its expense: (i) procure for the Customer the right to continue using the REofUSA.com Technology or REofUSA.com Content; (ii) replace the REofUSA.com Technology or REofUSA.com Content with other services or other material of equivalent functions and efficiency that is not subject to an action of infringement; or (iii) modify the REofUSA.com Technology or REofUSA.com Content so that there is no longer any infringement or breach, provided that such modification does not adversely affect the functional capabilities of the REofUSA.com Technology or REofUSA.com Content as set out herein.REofUSA.com shall have no obligations to Customer under this Section 9.1 to the extent such Claims arise from Customer’s breach of this Agreement or from the combination of the REofUSA.com Technology or REofUSA.com Content with any of Customer’s products, services, hardware or business processes. 9.2 Indemnification by Customer. Subject to this Agreement, Customer shall defend, indemnify and hold REofUSA.com harmless against any loss or damage (including without limitation reasonable attorneys’ fees) incurred in connection with Claims made or brought against REofUSA.com by a third party alleging that (i) Customer has breached its representation or warranties defined in this Agreement; or (ii) the Listing Content, or the use thereof has caused harm to a third party or infringes the intellectual property rights of a third party; provided, that REofUSA.com(a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases REofUSA.com of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance. Customer shall have no obligations to REofUSA.com under this Section 9.2 to the extent such Claims arise from REofUSA.com’s breach of this Agreement. 10. CONFIDENTIALITY 10.1 As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in Order Forms), the Service, REofUSA.com Technology, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any obligation owed to Disclosing Party; (iii) was independently developed by Receiving Party without breach of any obligation owed to Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to Disclosing Party. 10.2 Receiving Party shall not disclose any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except with Disclosing Party’s prior written consent. Receiving Party shall protect the confidentiality of Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). REofUSA.com represents and warrants that it will maintain the confidentiality of Customer Data in accordance with all applicable laws and, except as required by applicable law, will not disclose Customer Data to any third party for any purpose other than to provide the Service or implementation services to Customer. Each party represents and warrants that it will collect, maintain and handle all personal data in compliance with all applicable data privacy and protection laws. Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party’s Confidential Information. 10.3 If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if Disclosing Party wishes to contest the disclosure. 10.4 If Receiving Party discloses (or threatens to disclose) any Confidential Information of Disclosing Party in breach of confidentiality protections hereunder, Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies are inadequate. 10.5. Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party’s Confidential Information and, upon request, return to the Disclosing Party or destroy (at the Disclosing Party’s election) all materials containing such Confidential Information. 11. LIMITATION OF LIABILITY 11.1 EXCEPT (i) FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS; (ii) FOR CUSTOMER’S FAILURE TO PAY ANY FEES DUE UNDER THIS AGREEMENT; OR (iii) EITHER PARTY’S MATERIAL BREACH OF SECTION 10 (“CONFIDENTIALITY”), IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID TO REofUSA.com DURING TWELVE MONTHS PRIOR TO THE CLAIM. 11.2 IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 12. TERM AND TERMINATION 12.1 This Agreement commences on the Effective Date and continues until all User licenses granted in accordance with this Agreement have expired or been terminated. The term applicable to each Order Form commences upon Customer’s execution of such Order Form and will automatically continue on a month-to-month basis unless terminated in accordance with this Agreement. 12.2 A party may terminate this Agreement for cause: (i) upon 60 days written notice to the other party of a material breach of this Agreement if such breach remains uncured at the expiration of such period; (ii) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; or (iii) as otherwise provided herein. Upon any termination for cause by Customer, REofUSA.com shall refund Customer any prepaid Services Fees for the remainder of its subscription term after the date of termination. 12.3 The parties’ rights and obligations with respect to the fees and payment terms, audit rights, title and protection, confidentiality, patent and copyright indemnification, warranty disclaimers, limitation of liability, and governing law provisions of this Agreement shall survive termination of this Agreement. 12.4 Upon the effective date of termination of this Agreement: Customer’s license to use the Service will cease and REofUSA.com will delete all backed-up Customer Data from REofUSA.com systems within 30 days of termination of this Agreement. GENERAL 13.1 The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third party beneficiaries to this Agreement. 13.2 Notices shall be in writing and effective upon receipt. 13.3 No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by Customer and REofUSA.com. To the extent of any conflict between this Agreement and any other schedule or attachment, this Agreement shall prevail unless expressly stated otherwise. Notwithstanding any language to the contrary therein, no terms stated in a purchase order or in any other order document (other than a mutually executed order document expressly incorporated herein) shall be incorporated into this Agreement, and all such terms shall be void. This Agreement, which includes all schedules, statements of work and attachments hereto, represents the entire agreement of the parties, and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. 13.4 No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect. 13.5 Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to a Force Majeure Event. 13.6 Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms hereunder), without consent of the other party, to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity not involving a direct competitor of the other party. Any attempted assignment in breach of this section shall be void. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. 13.7 Customer agrees to comply fully with all applicable regulations of the United States Department of Commerce and with the United States Export Administration Act, as amended from time to time, and with all applicable laws and regulations of other jurisdictions with respect to the importation and use of the Service. 13.8 This Agreement shall be governed exclusively by the internal laws of the state of California, without regard to its conflicts of laws rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. The parties’ duties and obligations under this Agreement may be carried out using electronic media and electronic stored information, as permitted by the Uniform Electronic Transactions Act as adopted by the State of California. |
