The following Terms of Service (the "Terms") govern Customer’s use of the System as agreed on the Order Form. The Terms, together with the Order Form, shall be referred to as the Agreement.
1.1License Grant. Subject to the terms and conditions of the Agreement, HomeSpotter grants to Customer a non-exclusive, non-transferable, limited term, license to access and use the proprietary software applications and applicable mobile apps developed, owned and hosted by HomeSpotter, as identified on the Order Form, including but not limited to Connect, Boost, and Spacio (the "System") solely for Customer’s internal business purposes. HomeSpotter and its licensors reserve all rights in and to the System not expressly granted to Customer. Customer will provide, at Customer’s location, hardware, software, and communications equipment which will allow Customer to access and use the System. Customer will be responsible for providing all additional equipment and internet connectivity at its own expense.
1.2Updates. From time to time, HomeSpotter may make scheduled and/or unscheduled deployments of updates to the System. During such deployments, all or selected portions of the System may be unavailable. In the event HomeSpotter provides Customer with updates, Customer agrees that any such updates will be governed by these Terms.
Customer may not: (a) copy or otherwise reproduce or permit the copying or other reproduction of all or any part of the System except as otherwise permitted herein; (b) reverse engineer, decompile, disassemble or create derived works based on the System; (c) modify, adapt, translate into other programming forms or languages or extend the System to operate in other environments or on other platforms, except in accordance with these Terms; or (d) allow access to the System by other software products for any purpose without prior approval of HomeSpotter.
Customer will pay HomeSpotter for the System in accordance with the terms set forth in the Order Form. Rates described on the Order Form are exclusive of taxes, levies, duties, governmental charges or expenses. If Order Form states that Customer is to be invoiced, invoices remaining unpaid for more than thirty (30) days from receipt will accrue interest at a rate of the lesser of one and one-half (1.5%) percent per month or the highest rate allowed by law, whichever is less. Customer will be liable for all costs and expenses related to collection of past due amounts, including legal and other professional fees and expenses of litigation. HomeSpotter’s rights under this section will be in addition to all other rights and remedies available to HomeSpotter upon Customer’s default.
4.1Customer Data. Customer retains ownership of its data that is processed or hosted by the System, including graphics and text provided by Customer for inclusion. Customer hereby grants to HomeSpotter for the Term a non-exclusive, worldwide license to use, reproduce, distribute, display, and modify any user-perceptible text and multimedia information, including sound, data, text, designs, audio, video, graphics, photographs, information, Customer advertisements, and the like provided by Customer to HomeSpotter through Customer’s use of the System ("Customer Data").
4.2.Software Applications. All right, title and interest (including all intellectual property rights embodied therein) in and to the System and will remain the sole and exclusive property of HomeSpotter. These Terms grant Customer no title or right of ownership in or to the System, or any component thereof including source code, or to any associated materials, documentation, intellectual property, or in or to any derivates of the System, enhancements, modifications or improvements thereto. Customer will not, at any time, take or cause any action, which would be inconsistent with or tend to impair the rights of HomeSpotter or its affiliates in the System. Customer may not remove or alter any of HomeSpotter’s proprietary or copyright notices, trademarks or logos.
4.3.Confidentiality. Customer acknowledge that the existence and the terms of this Agreement and any oral or written information exchanged between the parties in connection with the preparation and performance this Agreement are regarded as confidential information. Customer shall maintain confidentiality of all such confidential information, and without obtaining the written consent of HomeSpotter, it shall not disclose any relevant confidential information to any third parties, except for the information that: (a) is or will be in the public domain (other than through Customer’s unauthorized disclosure); (b) is under the obligation to be disclosed pursuant to the applicable laws or regulations, rules of any stock exchange, or orders of the court or other government authorities; or (c) is required to be disclosed by any party to its shareholders, investors, legal counsels or financial advisors regarding the transaction contemplated hereunder, provided that such shareholders, investors, legal counsels or financial advisors shall be bound by the confidentiality obligations similar to those set forth in this Section. Disclosure of any confidential information by the staff members or agencies hired by Customer shall be deemed disclosure of such confidential information by Customer, and Customer shall be held liable for breach of this Agreement.
The Agreement will commence upon the Effective Date as stated on the Order Form and remain effective for the period set forth in the Order Form unless terminated as permitted in this Section (the "Initial Term"). Unless otherwise agreed upon in the Order Form, the Initial Term will automatically renew for successive one-year periods (together, the "Term"), unless either party gives the other party written notice of non-renewal at least 90 days prior to the end of the then-current Term, or terminates the Agreement pursuant to this Section. Either party may terminate the Agreement for cause if the other party (a) materially breaches the Agreement and fails to cure such breach within 30 calendar days of receiving a written notice of breach from the non-breaching party; (b) ceases to do business in the normal course, (c) becomes or is declared insolvent or bankrupt, (d) is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within 90 calendar days or (e) makes an assignment for the benefit of creditors. This Section 5 contains the parties’ exclusive termination rights, unless otherwise provided in an Order Form. Termination of the Agreement will relieve HomeSpotter of all obligations to provide Customer access to the System and any licenses granted under the Agreement will immediately cease.
6.1.By HomeSpotter. HomeSpotter will indemnify and defend Customer and its affiliates, directors, officers, employees and agents with respect to any claims, liabilities, damages and expenses, including reasonable attorneys’ fees, arising out of any third-party claim that the System as provided by HomeSpotter infringes on any copyright, patent, trademark, trade secret or other intellectual property right of any third party. Notwithstanding the foregoing, HomeSpotter will have no obligation pursuant to the foregoing indemnification provision to the extent that any claim is based on or related to: (a) any use of the System in violation of the Agreement, (b) any use of the System in conjunction with any third party service, data, hardware or software not provided by HomeSpotter, or (c) any material or data provided by Customer. If Customer's use of the System becomes, or is likely to become, the subject of an infringement claim, HomeSpotter may, at its option and expense (i) procure the right for Customer to continue using the System, (ii) replace or modify the infringing components of the System with non-infringing components of substantially equivalent functionality. The foregoing states the entire liability of HomeSpotter with respect to this Section, and Customer hereby expressly waives any other remedies for infringement claims.
6.2.By Customer. Customer will indemnify and defend HomeSpotter and its affiliates, directors, officers, employees and agents with respect to any claims, liabilities, damages and expenses, including reasonable attorneys’ fees, arising out of (a) any material or data provided by Customer, or (b) a breach of any of Customer's representations, warranties, obligations, covenants or agreements under the Agreement.
6.3.Indemnification Procedures. A party seeking indemnification hereunder (an "Indemnified Party") will give the Party from whom indemnification is sought (the "Indemnifying Party"): (a) reasonably prompt notice of the relevant claim; (b) reasonable cooperation and assistance, at the Indemnifying Party’s request and expense, in the defense or settlement of such claim; and (c) sole control the defense and settlement of any such claim; provided, however, that the Indemnifying Party will not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party’s rights or interest. The Indemnified Party will have the right to participate in the defense at its own expense.
ALL WARRANTIES, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE, COMMON LAW OR IN ANY OTHER WAY, INCLUDING ANY IMPLIED WARRANTIES AS TO QUALITY, PERFORMANCE, TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE AND USAGE OF TRADE, ARE EXCLUDED FROM THE AGREEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. THE SYSTEM IS PROVIDED ON AN “AS IS” BASIS AND CUSTOMER’S USE OF THE SYSTEM IS AT ITS OWN RISK. HOMESPOTTER DOES NOT WARRANT THAT THE SYSTEM WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THE OPERATION OF THE SYSTEM WILL BE UNINTERRUPTED OR COMPLETELY SECURE OR ERROR-FREE. CUSTOMER ASSUMES RESPONSIBILITY FOR TAKING ADEQUATE PRECAUTIONS AGAINST DAMAGES WHICH COULD BE CAUSED BY DEFECTS, INTERRUPTIONS OR MALFUNCTIONS IN THE SYSTEM OR THE HARDWARE ON WHICH IT IS INSTALLED.
HOMESPOTTER WILL NOT BE LIABLE FOR VIOLATION OF ANY APPLICABLE LAW, RULE OR REGULATION OR TO ANY THIRD PARTY FOR CLAIMS ARISING OUT OF OR RELATED TO CUSTOMER DATA PROVIDED TO HOMESPOTTER OR PLACED ON THE SYSTEM BY CUSTOMER OR AT CUSTOMER’S DIRECTION. IN NO EVENT WILL (A) HOMESPOTTER BY LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE SYSTEM; AND (B) HOMESPOTTER’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER EXCEED THE AMOUNT PAID TO HOMESPOTTER UNDER THE AGREEMENT DURING THE PREVIOUS TWELVE (12) MONTH PERIOD.
9.1.Assignment. Customer may not assign the Agreement or any right created hereunder without the prior written consent of HomeSpotter. Any prohibited assignment is void. The Agreement shall inure to the benefit of the parties’ respective permitted successors and assigns
9.2.Amendments; Waiver; Severability. The Agreement may only be amended or modified in a writing duly executed by authorized representatives of both parties. Any waiver of any breach of any term or any condition of the Agreement will not be construed as a waiver of any subsequent breach of any term or condition of the Agreement. If any part, term or provision of the Agreement will be held to be illegal or unenforceable it will not affect the validity or enforceability of the remainder of the Agreement. The parties will replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision.
9.3.Publicity. HomeSpotter may disclose in its advertising and marketing materials that: (a) Customer has entered into the Agreement with HomeSpotter; and (b) Customer is a customer of HomeSpotter.
9.4.Disputes. The Agreement will be governed and construed in accordance with the laws of the State of Minnesota without giving effect its conflict of law principles. The 1980 U.N. Convention on Contracts for the International Sale of Goods does not apply to the Agreement. All disputes arising from or relating to the Agreement will be within the exclusive jurisdiction of the state and/or federal courts located within Hennepin County, Minnesota. Any claim arising from or related to the Agreement must be brought in the state or federal courts located in Minneapolis, Minnesota.
9.5.Entire Agreement. The Agreement, including the Order Form and any other exhibits, comprises the entire agreement between the parties relating to the subject matter hereof. The Agreement supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of the Agreement. If there is any conflict between the Order Form and these Terms, the provisions of the Order Form will control. The Agreement may be executed in several counterparts, each of which will be deemed to be an original, and all of which, when taken together, will constitute one and the same instrument. Sections 4 (Proprietary Rights), 7 (Warranty Disclaimer), 8 (Limitation of Liability), and 9 (Miscellaneous) survive termination of the Agreement.