TRANSACTIONPOINTä ACCESS AGREEMENT YOU MUST READ THIS TRANSACTIONPOINT ACCESS AGREEMENT ("AGREEMENT") BEFORE APPLYING FOR, ACCEPTING, OR USING THE TRANSACTIONPOINT SOFTWARE OR SERVICE. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT APPLY FOR, ACCEPT, OR USE TRANSACTIONPOINT. This TRANSACTIONPOINTä
Access Agreement (“Agreement”)
will become effective on the date that you click “I AGREE” at the end of this
Agreement (“Effective Date”), by and between LPS Real Estate Group, Inc. (“Licensor”) and the party identified on the login screen
(“Licensee”). 1. GRANT OF LICENSE. Licensor hereby grants
Licensee a non-exclusive, non-transferable license to remotely access and use
the application software (the “Licensed Software”) and the Application Service
Provider (“ASP”) services set forth in Schedule 1 hereto solely in connection
with and for the purpose of supporting and offering certain real estate
services in real estate transactions in which Licensee is acting as a real
estate service provider or a real estate sales agent with respect to real
property situated in the United States or Canada (each a “Transaction”). The Licensed Software and ASP services are
collectively referred to as the “Services.”
Licensee shall have no right to sublicense or further distribute or
provide access to the Licensed Software or the Service. 2. PROPRIETARY
PROTECTION AND RESTRICTIONS. 2.1 Licensee acknowledges that Licensor,
or other third parties licensing the Licensed Software and Service to Licensor
(collectively, “Licensor”), shall have sole and exclusive ownership of all
right, title, and interest in and to the Licensed Software and Services
(including any images, “applets”, photographs, animations, video, audio, music
and text incorporated into the Services and/or the Licensed Software), and all
modifications, revisions and enhancements thereof (including ownership of all
trade secrets and copyrights pertaining thereto), subject only to the rights
and privileges expressly granted herein by Licensor. This Agreement does not
provide Licensee with title or ownership of, or an interest in, the Licensed
Software or Service, but only a right of limited use. Licensee must keep the
Licensed Software and its access to the Service free and clear of all claims,
liens, and encumbrances. 2.2 Licensee may not use, copy, modify,
or distribute the Licensed Software (electronically or otherwise), or any copy,
adaptation, transcription, or merged portion thereof, except as expressly
authorized by Licensor or as set forth in this Agreement. Licensee may not
reverse assemble, reverse compile, or otherwise translate the Licensed
Software. Licensee’s rights may not be transferred, leased, assigned, or
sublicensed without Licensor’s prior written consent. No service bureau work,
multiple-user license, or time-sharing arrangement is permitted, except as
expressly authorized by Licensor. Without Licensor’s express prior written
authorization, Licensee may not install the Licensed Software in any other
computer system or use it at any facility or location other than at Licensor’s
address designated in the preamble hereto. 2.3 Licensee acknowledges that in the
event of Licensee’s breach of any of the foregoing provisions, Licensor will
not have an adequate remedy at law in money or damages. Licensor shall
therefore be entitled to obtain an injunction against such breach from any
court of competent jurisdiction (without being required to post a bond or
security) to restrain such a breach. Licensor’s right to obtain injunctive
relief shall not limit its right to seek further remedies. 3. CONFIDENTIALITY. The Services and/or
the Licensed Software and all related information licensed hereunder constitute
confidential, proprietary and trade secret information of Licensor, having been
developed by great expenditures of time, resources and money. Therefore,
Licensee shall keep the Licensed Software, the Services and all related
information received hereunder in the strictest confidence and will exercise
the highest degree of care to safeguard the confidentiality thereof. The
existence of a copyright notice shall not cause or be construed as causing, the
Licensed Software to be in the public domain or to be other than an unpublished
work with all rights reserved under applicable copyright laws. 4.
TERM AND TERMINATION. 4.1 This Agreement is effective as of
the Effective Date and will remain in effect until terminated as hereinafter
provided. 4.2 Licensor or Licensee may terminate
this Agreement at any time, without cause and without liability to the other
party upon thirty (30) days prior written notice. Licensor may terminate this Agreement immediately without notice
for Licensee’s breach of Sections 2, 3 and 5, and for cause upon five days
prior written notice to Licensee in the event that Licensee shall have failed
to cure a material breach of the terms of this Agreement during such notice
period. 4.3 Upon termination of this Agreement
for any reason, all rights granted to Licensee by Licensor will terminate and
revert to Licensor. Promptly upon termination of this Agreement for any reason
or upon discontinuance or abandonment of Licensee’s possession or use of the
Licensed Software or Service, Licensee must return or destroy, as requested by
Licensor, all materials pertaining to the Licensed Software (including all
copies thereof). Licensee agrees to certify Licensee’s compliance with this
restriction upon Licensor’s request. 5. COMPLIANCE
WITH LAWS. Licensee
acknowledges and agrees that Licensee’s access to and use of the Services
and/or the Licensed Software and/or participation in a Transaction may be
subject to applicable federal, state and local laws, including without
limitation, the rules and regulations of the Federal Communications Commission,
the Federal Trade Commission or some other regulatory body or agency (a
“Regulatory Agency”). Licensee agrees to comply with all requirements imposed
by any Regulatory Agency. Furthermore, it is the intent of the Parties to
comply in all respects with the Real Estate Settlement Procedures Act and with
other applicable state and federal laws, rules and regulations in connection
with their performance under this Agreement. Anything in this Agreement to the
contrary notwithstanding, if either party (the “Notifying Party”) reasonably
determines that this Agreement poses a significant risk of causing the
Notifying Party, or any of the Notifying Party’s affiliates, to be in violation
of any of the foregoing laws, rules and regulations, the Notifying Party and
the other party shall renegotiate the terms of this Agreement so that this
Agreement complies with such law, rule or regulation in the reasonable
determination of both parties or the Notifying Party may terminate this
Agreement. 6.
LIMITED WARRANTY. 6.1 Due to the complex nature of the
Licensed Software and the Services, neither Licensor nor any third party
contributing to the content or provision of Services or Licensed Software
warrants that the access to the Services and/or the operation or performance of
the Licensed Software will be uninterrupted or error free. As Licensee’s
exclusive remedy for any material defect in the Licensed Software or Services
provided hereunder, Licensor shall request Licensor to use reasonable efforts
to correct or cure any such reproducible and documented material defect.
Licensor shall not be obligated to ask Licensor to correct, cure, or otherwise
remedy any nonconformity or defect in the Licensed Software and/or Services if
Licensee has made any changes whatsoever to the Licensed Software and/or
Services, if the Licensed Software and/or Services have been misused or damaged
in any respect, or if Licensee has not reported to Licensor the existence and
nature of such nonconformity or defect promptly upon discovery thereof.
Subliensor shall not be obligated to correct, cure or otherwise remedy any
nonconformity or defect in the Licensed Software or Services. This warranty is
expressly conditioned on Licensee’s observance of the specifications, operating
procedures, security measures, and data-control procedures with respect to the
Licensed Software or Services provided to or made available to Licensee. 6.2 EXCEPT AS EXPRESSLY SET FORTH IN
THIS AGREEMENT, LICENSOR DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND
WARRANTIES WITH RESPECT TO THE Licensed
Software AND ServiceS, INCLUDING THEIR CONDITION, CONFORMITY TO ANY
REPRESENTATION OR DESCRIPTION, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS,
ANY NEGLIGENCE, AND MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OF THE Licensed Software AND/OR ServiceS. 6.3 The cumulative liability of Licensor
to Licensee for all claims relating to the Licensed Software and/or the
Services arising under this Agreement, including any cause of action sounding
in contract, tort, or strict liability, shall not exceed the total amount of
all access and license fees (if any) paid to Licensor hereunder. This
limitation of liability is intended to apply without regard to whether other
provisions of this Agreement have been breached or have proven ineffective. 6.4 IN NO EVENT SHALL LICENSOR BE LIABLE
FOR ANY LOSS OF PROFITS; ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL
DAMAGES; OR ANY CLAIMS OR DEMANDS BROUGHT AGAINST LICENSEE, EVEN IF LICENSOR
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS OR DEMANDS. THIS LIMITATION
UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER
PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. 7. DATA. Licensee acknowledges
that data conversion is subject to the likelihood of human and machine errors,
omissions, delays, and losses, including inadvertent loss of data or damage to
media, that may give rise to loss or damage. None of Licensor or any web site
host shall be liable for any such errors, omissions, delays, or losses, unless
caused by its gross negligence or willful misconduct. Licensee is responsible
for adopting reasonable measures to limit the impact of such problems,
including backing up data, and adopting procedures to ensure the accuracy of
input data; examining and confirming results prior to use; and adopting
procedures to identify and correct errors and omissions, replace lost or
damaged media, and reconstruct data. Licensee is also responsible for complying
with all local, state, and federal laws pertaining to the use and disclosure of
any data. 8. DISCLAIMER
OF LIABILITY. LICENSEE
AGREES THAT NEITHER LICENSOR, ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES
OR AGENTS NOR ANY WEB SITE HOST SHALL BE LIABLE TO LICENSEE OR TO ANY OTHER
PERSON, FIRM, OR CORPORATION WHATSOEVER FOR ANY LOSSES, DAMAGES, CLAIMS,
PENALTIES, COSTS OR EXPENSES (INCLUDING LOST PROFITS) ARISING OUT OF OR
RELATING TO ANY TRANSACTION OR THE USE OR INABILITY TO USE THE ServiceS AND/OR THE Licensed Software, IN ANY WAY,
INCLUDING BUT NOT LIMITED TO ANY DELAY, INACCURACIES, ERRORS OR OMISSIONS AND
WHETHER OCCASIONED BY ANY CAUSE WHATSOEVER, WHETHER RESULTING FROM NEGLIGENCE
OR OTHERWISE. IF THE FOREGOING DISCLAIMER AND WAIVER OF LIABILITY SHOULD BE
DEEMED INVALID OR INEFFECTIVE, NEITHER LICENSOR, ITS SHAREHOLDERS, DIRECTORS,
OFFICERS, EMPLOYEES OR AGENTS NOR THE WEB SITE HOST SHALL BE LIABLE IN ANY
EVENT, INCLUDING THEIR OWN NEGLIGENCE, BEYOND AN AMOUNT EQUAL TO TEN THOUSAND
DOLLARS ($10,000). LICENSEE FURTHER AGREES THAT NEITHER LICENSOR, ITS
SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS NOR THE WEB SITE HOST
SHALL BE LIABLE TO LICENSEE OR TO ANY OTHER PERSON, FIRM, OR CORPORATION
WHATSOEVER FOR ANY LOST REVENUES OR PROFITS, LOSS OF DATA OR OTHER SPECIAL,
DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, EVEN IF LICENSOR OR THE
WEB SITE HOST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 9. INDEMNITY. Licensee agrees to
indemnify and hold Licensor, its shareholders, directors, officers, employees
and agents and the web site host harmless and to pay all losses, damages,
expenses and costs (including reasonable attorneys’ fees) incurred by them
based upon any third party claim or action: (a) arising from Licensee’s breach
of Licensee’s obligations, representations, warranties or covenants hereunder;
or (b) arising from any delay, inaccuracies, errors or omissions in connection
with a Transaction or the use or inability to use the Services and/or the
Licensed Software. Licensor and the Licensor shall have the right ,but not the
obligation, to participate in any defense or settlement of such claim or
action. 10. PRIVACY
OF DATA. Licensee
acknowledges and agrees that it is responsible for ensuring that it complies
with Title V of the Gramm-Leach-Bliley Act and its implementing regulations (the
“GLB Act”) and otherwise protects all “non-public personal information,'' as
such term is defined in the GLB Act (the “Customer Information”). Licensor shall not have any obligation to
verify the propriety of Licensee’s access to Customer Information, or
Licensee’s use or intended use of the same.
11.
GENERAL TERMS AND CONDITIONS. 11.1
Waivers and Limitation of
Actions. No delay or omission in the exercise of any power or remedy
available hereunder shall impair or affect either party’s right to the exercise
thereof. No action or claim, including, without limitation, any claim for
indemnification, regardless of form, arising out of the transactions
contemplated herein may be brought by either party more than one (1) year after
the party seeking indemnification has actual knowledge that the cause of action
has accrued. 11.2
Force Majeure. If
either party shall be delayed in its performance of any obligation hereunder or
be prevented entirely from performing any such obligation due to causes or events
beyond its control including, without limitation, any act of God, fire, strike
or other labor problem, legal action, present or future law, government order,
rule or regulation, such delay or non-performance shall be excused and the time
for performance shall be extended to include the period of such delay or
non-performance for a period not to exceed 90 days. 11.3
Notices. All notices
shall be made in writing and shall be deemed given or made on the date
delivered if delivered in person, on the date initially received if delivered
by telecopy transmission (with machine generated transmittal confirmation)
followed by certified mail or reputable overnight courier, on the date
delivered by an overnight courier service or on the third (3rd) business day after
it is mailed if mailed by certified mail (return receipt requested, with
postage and other fees prepaid) to the parties at the addresses indicated on
the login screen (or at such other addresses as shall be given in writing by
either of the parties to the other, if given in accordance with the terms of
this Subsection 11.3). 11.4
Severability. If any
provision or portion of any provision of this Agreement is declared void or
unenforceable or against public policy, such provision or portion thereof shall
be deemed stricken from this Agreement and the remainder of this Agreement
shall remain in full force and effect. In the event that any provision(s) of
this Agreement or any portion thereof shall be held to be in any way an
unreasonable restriction, the court so holding may reduce the geographical area
and/or period of time in which such provision operates to the maximum permitted
under applicable law, or otherwise modify or eliminate any such restriction to
the least extent necessary to render such provision enforceable. In the event
that any provision hereof is found invalid or unenforceable pursuant to
judicial decree, the remainder of this Agreement shall remain valid and
enforceable according to its terms. 11.5
Governing Law. This
Agreement shall be construed and enforced in accordance with the substantive
laws of the State of New York and the United States of America, without regard
to choice of law principles. 11.6
Dispute Resolution. In
connection with any dispute arising out of or relating to this Agreement,
except for disputes arising out of or relating to Sections 2, 3 and 5 above,
the parties hereto agree to attempt in good faith to resolve such dispute
promptly by negotiation through an individual with the authority necessary to
settle the controversy. Negotiations shall be commenced by written notice being
delivered by a party to the other party. The parties are obligated to meet
within ten (10) business days after delivery of such notice at a mutually
acceptable time and place, and thereafter as often as they reasonably deem
necessary, to exchange relevant information and to attempt to resolve the
dispute. If the matter has not been resolved within forty-five (45) days of the
initiating notice, or if the parties fail to meet within ten (10) business
days, any party may initiate mediation of the dispute as provided below. All
negotiations pursuant to this Section are confidential and shall be treated as
compromise and settlement negotiations for purposes of the federal and state
rules of evidence. If the parties agree, or if a party gives notice to mediate
under the prior sentence, the parties shall engage in a mediation to resolve
the dispute. The proceeding will be conducted in accordance with the then
current Commercial Mediation Rules of the American Arbitration Association
(“AAA”). Neither party may withdraw from the mediation before the conclusion of
the proceeding. If the mediation concludes without a resolution of the dispute,
any party may initiate arbitration of the dispute as follows. The obligation to
mediate is an essential provision of this Agreement and both parties agree is
legally binding upon it. In case of a violation of the obligation to mediate by
either party, the other party may bring an action to seek enforcement of such
obligation in any state or federal court of general jurisdiction located in New
York County, New York, but in no other court. The mediator shall allocate legal
fees and expenses as deemed equitable. If a party initiates arbitration as
permitted by this Section, the dispute shall be resolved by binding arbitration
conducted in accordance with the then current Commercial Arbitration Rules of
the AAA. All arbitrators shall have not less than ten (10) years’ experience in
commercial software marketing or management. The decision of the arbitrators is
final and binding upon all parties. Judgment upon the final arbitration
decision may be entered by any court having jurisdiction thereof. The
arbitrators shall allocate legal fees and expenses as deemed equitable 11.7
Assignment. This
Agreement shall be binding upon the parties hereto and their respective
successors and permitted assignees. The rights granted to Licensee by this
Agreement or any duty or obligation of performance hereunder shall not be
assigned, delegated, sublicensed, or otherwise transferred by Licensee, either
voluntarily or by operation of law, except as specifically provided for herein.
Any attempt by Licensee to assign, delegate, sublicense, or transfer any of the
rights, duties, or obligations hereunder except as expressly provided by this
Agreement is null and void. Licensor shall not assign its obligations hereunder
without the written consent of Licensee, except in connection with the sale of
substantially all of its assets. 11.8
Contractors. The
relationship created by this Agreement is solely that of independent
contractors and the parties hereby acknowledge and agree that nothing in this
Agreement shall be deemed to constitute either party as an agent or a
franchisee of the other party. The parties hereby waive the benefit of any
state or federal statutes dealing with the establishment and regulation of
franchises. Neither party shall have any power or express or implied
authorization to bind the other party or to assume or to create any obligation
or responsibility, express or implied, on behalf of the other party or in the
other party’s name. This Agreement shall not be construed as constituting the
parties’ partners or to create any other form of joint venture or other
relationship which could impose liability upon one party for any act or
omission of the other. 11.9 Headings. The Section and
Subsection headings used herein are for reference and convenience only and
shall not enter into the interpretation hereof. 11.10
Further Assurances.
After the date hereof, each party hereto will take all such further actions,
and sign all such further documents, as may be reasonably required to confirm
and effectuate the terms of this Agreement. 11.11
Public Announcements;
References. Licensee acknowledges that Licensor may desire to use
Licensee’s name in press releases, product brochures and financial reports
indicating that Licensee is a Licensee of Licensor, and Licensee agrees that
Licensor may use Licensee’s name in such manner. 11.12
Export Laws. In no
event may Licensee export any Licensed Software outside the United States
unless it has complied fully with all relevant United Stated export laws and
regulations including without limitation the U.S. Export Administration Act and
its associated rules and regulations. Upon the request of Licensor, Licensee
shall promptly deliver to Licensor a certification that it has complied with
the provisions of this Section 11.12. 11.13 Survival. Sections 2, 3, 5,
and 6 through 11 will survive the termination of this Agreement for any reason. BY CLICKING “I AGREE” BELOW, YOU ARE DEMONSTRATING
YOUR KNOWLEDGE AND ACCEPTANCE OF THE TERMS OF THIS AGREEMENT ON BEHALF OF
LICENSEE.
<I
AGREE> SCHEDULE 1 DESCRIPTION OF Licensed
Software The Licensee will be provided a user
name and login to the service provider utility, contained within
TransactionPoint, which is embedded in the TSP site. TransactionPoint is a web
application service. The user must have Internet Explorer version 5.0 or above to access
the system. The Licensee will be provided a hosted and secure operating
environment within their clients Transaction Services Portal (TSP). DESCRIPTION OF ServiceS The service
provider component of the TransactionPoint platform, accessed from the TSP,
will provide the user with the following utilities: ·
Receive open orders from TransactionPoint,
delivered via their TSP provider/client ·
Transmit receipt and confirmation of the order
back to the TSP ·
Provide specific status information as it
relates to activities relating to the Transaction ·
Provide the ability to upload documents to the
TSP ·
Receive a detailed transaction log of the
activities from the TSP |