A. Relitix has developed certain technology (including but not limited to the Software) providing for conducting data analytics which assist in the operation of real estate brokerages (the "Service").
B. Relitix desires to provide to Client and its Authorized Users, and Client desires to obtain from Relitix the right to access and use the Service on the terms and conditions set forth herein.
In consideration of the Recitals and agreements that follow, the Parties agree as follows:
1. Definitions.
Unless defined elsewhere in this Agreement, capitalized terms used in this Agreement will have the meanings set forth:
"Authorized User" means any individual who is an employee of Client, but only so long as such individual remains an employee of Client.
"Client Data" means data input by or on behalf of Client or Authorized Users into the Service including emailed data updates. Client Data shall not include MLS Provider Data.
"Relitix Confidential Information" means (i) all information of Relitix marked "confidential," "restricted," "proprietary" or with a similar designation; (ii) the Software; (iii) know-how, technical information, data or other proprietary information relating to the Software; (iv) all source codes, object codes, software programs, computer processing systems and techniques employed or used by Relitix; (v) any related items such as specifications, layouts, flow charts, manuals, instruction books and training materials, programmer, technical and user documentation, and any and all upgrades, enhancements, improvements or modifications to the foregoing; (vi) any non-public information related to Relitix's business or customers; and (vii) the terms and conditions of this Agreement.
"Force Majeure Event" means (i) fire, flood, earthquake, hurricane, tornado, tsunami or other elements of nature or acts of God, (ii) acts of vandalism or terrorism (electronic or otherwise) or war, (iii) riots, civil disorders or revolutions, (iv) strike or other significant labor disruption, (v) nonperformance by a third party, (vi) any failures or fluctuations in telecommunications systems, lines or other equipment or (vii) any other cause beyond the reasonable control of Relitix.
"Law" means all applicable state, federal and local laws, rules and regulations.
"MLS Provider" means the relevant regional Multiple Listing Services, Inc. as identified in Schedule 2.
"MLS Provider Data" means any unmodified data provided by the MLS Provider.
"MLS Provider Fees" means the one-time and monthly fees charged by MLS Provider to Relitix that are passed onto the Client without markup.
"Software" means (i) the Relitix software and all related documentation; (ii) any patents, copyrights, trade secrets, engineering and technical data, knowledge, experience, know-how, expertise and proprietary or other information possessed by Relitix relating to the design, development, sale and use of the Relitix software or the documentation, including, but not limited to, specifications, test procedures, operation and maintenance manuals and all other proprietary information relating, directly or indirectly, to the Relitix software; (iii) documentation, (iv) any revision, modification, translation, abridgment, condensation, expansion, collection, compilation or other form in which the Relitix software and documentation may be recast, transformed, posted or adopted, regardless of whether it qualifies as a derivative work under U.S. copyright law and regardless of whether Relitix created it; and (v) any and all modifications to the Software.
"User Equipment" means the hardware, software, network connections, communications lines and other infrastructure that may be necessary for Client or any Authorized User to use the Service.
2. Services.
(a) Right to Use Service. Subject to the terms of this Agreement, including Client's payment of all Fees due hereunder, Relitix hereby grants to Client a limited, non-exclusive, non-transferable right to use the Service in accordance with the Agreement during the Term. Client shall not permit any persons other than Authorized Users to use the Service.
(b) User Equipment. Client shall obtain, operate, support and maintain all User Equipment, at its sole expense.
(c) Provision of Services. Relitix will provide Client with use of the Service in accordance with the terms of this Agreement and will perform the implementation services and training services set forth on Schedule 2, if any. Any additional services to be provided by Client shall be subject to a separate written agreement.
3. Client and Authorized User Responsibilities.
(a) Operational Responsibilities. During the Term, Client shall be responsible, at its own cost, for:
(i) provisioning and maintaining its User Equipment;
(ii) complying with the Agreement and all security measures reasonably required by Relitix;
(iii) ensuring that only Authorized Users access the Service and that such Authorized Users comply with the terms of this Agreement;
(iv) ensuring that no virus or other disruption to the Service occurs due to any action or failure to act on the part of Client or any Authorized User;
(v) designating a suitably-qualified contact person to work with Relitix to implement and maintain the Service and provide training to Authorized Users; and
(vi) complying with all applicable Laws in connection with its and its Authorized Users' use of the Service.
(b) Client Data. Relitix shall have no responsibility for Client Data or any use thereof by Client or any Authorized User. Client shall be responsible for obtaining all necessary rights to use the Client Data in connection with the Service and shall be solely responsible for any damages arising in connection with such use.
(c) Compliance with MLS Provider. Client agrees to comply with all MLS Provider-related agreements and documentation, including any data fee application documents (collectively, "MLS Provider Documentation"). Client further agrees to cooperate with Relitix as necessary to execute any required MLS Provider Documentation. Client is solely responsible for its compliance with MLS Provider Documentation, and any MLS Provider rules while accessing or using the Software or Services. Relitix disclaims all liability related to Provider's use or misuse of MLS Provider Data or Provider's breach of MLS Provider Documentation or rules. MLS Provider retains all right, title and interest in MLS Provider Data. Client is solely responsible for all MLS Provider Fees. Nothing in this Agreement shall supersede or override any of Client's obligations in MLS Provider Documentation to which Client is also a party.
4. Data Security, Confidentiality and Access.
(a) Ownership of Client Data. As between Relitix and Client, all Client Data is and shall remain the property of Client. Relitix shall not, without Client's written consent, use or disclose Client Data other than in the performance of its obligations under this Agreement. Notwithstanding the foregoing, Relitix shall be permitted to (i) use, derive, or create anonymized and/or aggregated data related to the Service or generated by Client's use of the Service as well as data relating to attributes or characteristics of Client Data (collectively "Metadata"), provided that Metadata shall not identify Client, Authorized User, or any individual, and (ii) use, publicize, or share with third parties such Metadata to improve Relitix's products and services and for its legitimate business purposes.
(b) Access to Service. Subject to the Terms of Use, Client and Authorized Users may use the Service as set forth in this Agreement except (i) during any scheduled downtime of the Service; (ii) during a period of repair or maintenance of the Service; or (iii) when Relitix has suspended or terminated use of the Service as permitted under this Agreement. Relitix shall use commercially reasonable efforts to provide Client with prior notice of any downtime of the Service related to items (ii) or (iii) above.
(c) Safeguarding Client Data. Client acknowledges that Relitix employs software and other technology requiring Authorized Users to enter user identification codes and passwords in order to access or use the Service. Client shall be solely responsible for ensuring that Authorized Users maintain the security of such codes and passwords and for any unauthorized use or breach of security resulting from the failure to do so.
(d) Confidential Information.
(i) General Requirements and Exclusions. Client shall use Relitix Confidential Information only as expressly permitted by this Agreement and shall not disclose Relitix Confidential Information to any third party without the prior written consent of Relitix. Client may disclose such information to its employees and authorized agents who have a need to know such information in connection with Client's use of the Service and who have agreed in writing to preserve the confidentiality of such information as set forth in this Agreement. Client shall be responsible for any breach by any Authorized User, employee or agent of any such confidentiality obligations. Following the termination of this Agreement, Client shall, and shall ensure that each Authorized User shall, promptly return to Relitix all embodiments of Relitix Confidential Information and shall delete all copies of such Confidential Information from its systems.
(ii) Exceptions. The foregoing obligations of confidentiality shall not apply to the extent any Relitix Confidential Information (A) enters the public domain (other than as a result of an act or omission of Client, its employees or agents), (B) is received by Client from a third party without breach of any obligation of confidentiality, or (C) is required to be disclosed by order of any court of competent jurisdiction, provided that prior to making such disclosure Client will, to the extent practicable, consult and cooperate with Relitix regarding an appropriate protective order or other means to preserve the confidentiality of the Confidential Information at issue.
5. Limited Use of the Service.
(a) Client Rights to Use.
(i) Client shall not, and shall ensure that each Authorized User shall not:
(1) access, reverse engineer, modify, adapt, translate or create derivative works based on any part of the Software;
(2) reproduce, modify, copy, sell, trade, lease, rent or resell the Service;
(3) provide access to or otherwise share the Service or any output thereof with any third party other than an Authorized User, except that Client may deliver the reports generated by the Service to its own direct customers, provided that Client does not remove any copyright notices or other proprietary rights notices included on or in such reports;
(4) directly or indirectly challenge, or assist others to challenge, Relitix's ownership of or right to operate the Service or any technology used to provide the Service, or the ownership, validity or enforceability of any intellectual property rights claimed by Relitix with respect thereto;
(5) engage in, solicit, or promote any activity that is objectionable or may be illegal, violates the rights of others, is likely to cause notoriety, harm, or damage to the reputation of Relitix or could subject Relitix to liability to third parties, including: (i) unauthorized access, monitoring, interference with, or use of the Service or third-party accounts, data, computers, systems, or networks; (ii) interference with others' use of the Service or any system or network, including mail bombing, broadcast, or denial of service attacks; (iii) unauthorized collection or use of personal or confidential information, including phishing, pharming, spidering, and harvesting; (iv) any other activity that places the Service or Relitix in the position of fostering, or having potential or actual liability for, illegal activity in any jurisdiction; (v) directly or indirectly using or accessing the Service to create, develop, or procure products or services which are competitive to the Service, or to solicit users to join or use any such competitive services, or (vi) attempting to probe, scan, penetrate, or test the vulnerability of the Relitix system or network or to breach Relitix's security or authentication measures, whether by passive or intrusive techniques.
(ii) Client agrees to not use, or allow any Authorized User or third party to use the Service to upload, post, distribute, link to, publish, reproduce, engage in, promote, or transmit any of the following:
(1) Illegal, fraudulent, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate, or objectionable information or communications of any kind, including without limitation conduct that is excessively violent, incites or threatens violence, encourages "flaming" others or criminal or civil liability under any local, state, federal, or foreign law;
(2) Client Data that would impersonate someone else or falsely represent an individual's identity or qualifications, or that may constitute a breach of any individual's privacy, is illegally unfair or deceptive, or creates a safety or health risk to an individual or the public; or
(3) Virus, Trojan horse, worm, or other disruptive or harmful code or data.
(b) Relitix Ownership Rights. Relitix and its licensors shall retain all right, title and interest in the Service and the technology used to provide the Service, including without limitation the Software, any modifications, improvements, enhancements, derivative works thereof, and all intellectual property rights inherent therein (including, without limit, all inventions, patents, trade secrets, trademarks, trade names, copyrights, and all other proprietary rights pertaining thereto), whether or not based upon information provided pursuant to the Agreement. Neither Client nor any Authorized User shall have or obtain any such rights, except for the express rights grants herein. Client agrees that Relitix may use Client's and its Authorize Users' feedback, suggestions, or ideas, including for future modifications of the Service, other products or services, or advertising or marketing materials. Client grants Relitix a perpetual, worldwide, fully transferable, sublicensable, non-revocable, fully paid-up, royalty free license to use the feedback Client and its Authorized Users provide to Relitix.
(c) Updates. Relitix may enhance or modify the Service from time to time in its sole discretion. Relitix will use commercially reasonable efforts provide notice to Client prior to implementation of enhancements of or modifications to the Service that would adversely affect Client's use and enjoyment of the Service. Client acknowledges and agrees that Relitix retains all Rights in any such enhancements and modifications, including but not limited to modifications resulting from requests for changes made by Client or any Authorized User.
(d) Monitoring the Service. Relitix may, but has no obligation to, monitor access to or use of the Service or Client Data or review or edit any Client Data for the purpose of operating the Service, to ensure compliance with this Agreement, and to comply with applicable law or other legal requirements. Relitix may disclose any information necessary to satisfy Relitix's legal obligations, protect Relitix or its customers, or operate the Service properly. Relitix, in its sole discretion, may refuse to post, remove, or refuse to remove, or disable any Client Data, in whole or in part, that is alleged to be, or that Relitix considers to be unacceptable, undesirable, inappropriate, or in violation of this Agreement.
6. Warranties; Limitations.
(a) Services Warranty. Relitix represents and warrants that it will use commercially reasonable efforts to make the Service available for use in accordance with the terms of this Agreement.
(b) Mutual Warranties. Each Party represents and warrants to the other that (i) it has all necessary right, power and authority to enter into and perform its obligations under this Agreement, (ii) such entry into and performance of this Agreement has been duly authorized by all requisite corporate action (or the equivalent) and (iii) its entry into and performance of this Agreement shall not conflict with or result in a violation of any agreement with any third party, except where such conflict or violation would not materially impair the ability of such Party to enter into and perform its obligations under this Agreement.
(c) "As is, where is". Except as provided in Section 6(a), the Parties acknowledge and agree that the Service and any other services provided by Relitix hereunder are being provided "as is, where is" and Relitix shall have no liability for Client's use of or reliance on the Service or such other services, even if such use or reliance were to produce incorrect information or erroneous results.
(d) Voidance of Warranty. The warranty set forth in Section 6(a) shall be void if any breach of such warranty or failure of the Service results from modifications to the Service (other than by Relitix) or improper use of the Service.
(e) Disclaimer of Warranties. Except for the express warranties set forth in Sections 6(a) and 6(b), each Party hereby expressly disclaims all other warranties of any kind or nature, whether statutory, express, or implied, including without limitation any implied warranties of merchantability, non-infringement, performance and fitness for a particular purpose.
(f) Limitation of Liability.
(i) No Liability for Consequential and Other Damages. IN NO EVENT SHALL RELITIX BE LIABLE TO CLIENT FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOSS OF BUSINESS, LOSS OF REVENUES, LOSS OF DATA OR INTERRUPTION OR CORRUPTION OF DATA, EVEN IF CLIENT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(ii) Maximum Liability. IN NO EVENT SHALL RELITIX'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID OR PAYABLE BY CLIENT TO RELITIX DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE CLAIM OR CLAIMS FIRST AROSE, PROVIDED THAT THE FOREGOING LIMITATION OF LIABILITY SHALL IN NO EVENT OPERATE TO DIMINISH CLIENT'S OBLIGATION TO PAY ANY FEES HEREUNDER.
(iii) Waiver of Claims. Client hereby irrevocably and unconditionally waives the right to bring any claim against Relitix arising from or in connection with this Agreement more than one (1) year after the date that Client first becomes aware of the facts constituting the basis for such claim.
(iv) Applicability. THE LIMITATIONS SET FORTH IN THIS SECTION 6(f) WILL APPLY TO ANY AND ALL CLAIMS AND CAUSES OF ACTION WHATSOEVER, REGARDLESS OF WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY.
(v) Basis of the Bargain; Failure of Essential Purpose. Client acknowledges that Relitix has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the Parties. The Parties agree that the limitations and exclusions of liability and disclaimers of warranties and damages specified in this Agreement will survive and apply even if found to have failed their essential purpose.
(g) Force Majeure. Relitix shall not be liable to Client for any default or delay in the performance of its obligations under this Agreement if and to the extent such default or delay is caused, directly or indirectly, by a Force Majeure Event. If a Force Majeure Event occurs, Relitix shall be excused from further performance or observance of the obligations so affected for as long as the Force Majeure Event remains in place. Client shall continue to pay all Fees due under this Agreement upon the occurrence of any Force Majeure Event unless the Force Majeure Event continues for more than ten (10) business days, in which event the obligation of Client to pay such amounts shall be suspended until such time as the Force Majeure Event ends and services are resumed or this Agreement is terminated as permitted herein.
(h) Indemnification by Relitix. Relitix shall defend Client from and against any third-party claims brought against Client alleging that the Service infringes any third-party copyright, trade secret or U.S. patent right (each, a "Claim") and shall indemnify Client for any damages awarded in a final adjudication of any Claim. The foregoing indemnification obligation is expressly conditioned on Client providing Relitix with prompt, written notice of any Claim, cooperating fully with Relitix in the investigation and defense of such claim, and permitting Relitix to assume control of the defense and settlement of the Claim, at Relitix's expense. Relitix's indemnification obligations exclude any Claim based on (i) use of the Service by Client other than as expressly permitted herein, (ii) modification of the Service or any portion thereof, other than by Relitix, (iii) combination of the Service with any other products, services or technology not provided by Relitix, and (iv) any feature, function, specification or design element of the Service that is in widespread use in the marketplace during the period of alleged infringement by the Service. Relitix shall have the right, at its option, to modify the Service so as to avoid infringement or, if such modification is not commercially practicable, to terminate this Agreement and all rights hereunder, provided that if Relitix exercises such right to terminate it shall refund to Client any prepaid Fees for periods subsequent to the date of termination. The foregoing states Client's sole and exclusive remedy and Relitix's entire liability for infringement.
(i) Indemnification by Client. Client shall defend and indemnify Relitix from any third party claims and all resulting liabilities and expenses including reasonable attorneys' fees and costs, arising from (i) Client's use of the Service in violation of Section 5(a) (Client Rights to Use); or (ii) Relitix's use of Client Data pursuant to this Agreement.
7. General.
(a) Notices. Any notice or other communication required or permitted to be given under this Agreement shall be in writing and shall be delivered in person, by facsimile or sent by registered mail, charges prepaid, to the address set forth above or such address as a Party may provide in writing to the other Party.
(b) Relationship of the Parties. The relationship established between the Parties by this Agreement during its Term shall be solely that of vendor and vendee. Under no circumstances shall the contractual relationship between the Parties be deemed or construed to be any other type of relationship, including without limitation as one of agency, partnership, joint venture or employment.
(c) Governing Law; Venue. This Agreement shall be construed, interpreted and enforced in accordance with, and the respective rights and obligations of the Parties shall be governed by, the laws of the State of Wisconsin, without regard to that state's principles of conflicts of law, and each Party hereby irrevocably and unconditionally agrees that any and all claims and disputes arising hereunder shall be submitted exclusively to binding arbitration under the Rules of the American Arbitration Association, with such arbitration to be conducted in Chicago, Illinois; provided that the foregoing shall be without prejudice to either Party's right to seek injunctive or other equitable relief in any court of competent jurisdiction to enjoin or prevent any breach or threatened breach of this Agreement.
(d) Waiver. The failure of a Party to insist, in any one or more instances, upon the performance of any term or condition of this Agreement shall not be construed as a waiver or relinquishment of any right granted hereunder, including any right to require future performance of such term or condition.
(e) Priority. The attached Schedules form part of this Agreement. If there is any conflict or inconsistency between the provisions set forth in the body of this Agreement and the provisions set forth in any Schedule, the provisions set forth in the Agreement shall prevail unless the conflicting provisions in the Schedule expressly indicates that they are intended to prevail.
(f) Remedies. Each Party shall be entitled to exercise any legal, equitable or other rights or remedies to which it is entitled, including, without limitation, the right to obtain injunctive relief or specific performance with respect to the actual or threatened violation of any term or condition of this Agreement. Each such remedy shall be cumulative and not exclusive.
(g) Waiver of Jury Trial. Each of the Parties hereto waives to the fullest extent permitted by law any right it may have to trial by jury in respect of any claim, demand, action or cause of action based on, or arising out of, under or in connection with this Agreement, or any course of conduct, course of dealing, verbal or written statement or action of any Party hereto, in each case whether now existing or hereafter arising, and whether in contract, tort, equity or otherwise.
