Last revised: April 30, 2024
Top Producer
General Terms and Conditions
THESE GTCs TAKE EFFECT UPON ACCEPTANCE (AS HEREINAFTER DEFINED). BY CLICKING ON THE “I ACCEPT” BUTTON, OR BY TAKING SIMILAR ACTION WHICH INDICATES ASSENT TO THESE GTCs (“ACCEPT(S)” OR “ACCEPTANCE”), THESE GTCs BECOME BINDING ON THE DATE OF ACCEPTANCE (THE “EFFECTIVE DATE”) BETWEEN EITHER (i) TOP PRODUCER SOFTWARE INC. IF CLIENT IS LOCATED IN THE UNITED STATES OF AMERICA, OR (ii) TOP PRODUCER SOFTWARE CORP. IF THE CLIENT IS LOCATED IN CANADA (“COMPANY”) AND EITHER (1) THE INDIVIDUAL THAT SO ACCEPTS, OR (2) IF THE INDIVIDUAL THAT ACCEPTS IS ACTING AS AN AUTHORIZED REPRESENTATIVE OF A LEGAL ENTITY, THEN THAT LEGAL ENTITY (IN EITHER CASE, THE “CLIENT”). UPON ACCEPTANCE OF THESE GTCs, CLIENT (A) ACKNOWLEDGES THAT THEY HAVE READ AND UNDERSTAND THESE GTCs; (B) REPRESENTS AND WARRANTS THAT THE INDIVIDUAL WHO ACCEPTS THESE GTCs HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THESE GTCs ON BEHALF OF CLIENT AND CAN BIND CLIENT HERETO; AND (C) AGREES THAT CLIENT IS LEGALLY BOUND BY ITS TERMS. IF CLIENT DOES NOT AGREE TO THESE GTCs, THE INDIVIDUAL SHALL NOT ACCEPT THESE GTCs, AND CLIENT MAY NOT ACCESS OR USE THE PRODUCTS.
1. DEFINITIONS.
b. “Agreement” means these GTCs, including any appendices attached hereto, as they exist on the date that they are incorporated, by reference or otherwise, into any fully executed Order Form or SOW, and as these GTCs may be modified in accordance with Section 16(f), together with the additional terms and conditions set forth in any Order Form, SOW, or addenda which incorporates the GTCs by reference.
c. “Authorized User” means those individuals who are authorized by Client to access and use the Cloud Services, including any third parties that are authorized pursuant to Section 2(a)(ii) below, subject to the limitations and obligations of Client under the Agreement.
d. “Client Data” means all information, data, and other content that is provided by Client or its Authorized Users to Company, or Company’s Affiliates or Personnel, through Client’s or its Authorized Users’ use of the Cloud Services, as well as all information, data, and other content created specifically for Client as a result of processing the same through the Cloud Services, but only to the extent that any such information, data, and other content does not contain any Company Materials. Client Data also includes Client Content, as defined in Section 6(f) below.
e. “Client Lead Data” means all prospect information generated by Company on behalf of Client as a result of Client’s purchase of Lead Products and Advertising Services (as defined in Appendix A). For the sake of clarity, Client Lead Data is not a type of Client Data.
f. “Cloud Services” means any on-demand, subscription-based solution or technology enabled service that is hosted, supported, and operated by Company and provided to Client pursuant to an Order Form, along with any related Documentation, Embedded Third-Party Content, and Company Materials necessary for Client to make use of the Cloud Services in accordance with the terms of the Agreement. Cloud Services does not include Third-Party Content.
g. “Company Materials” means any and all other information, data, documents, materials, works, content, methods, processes, technical or functional descriptions, requirements, plans, reports, devices, hardware, software, websites, technologies, and inventions that are developed, provided, or used by Company or its Personnel in connection with the Products, or otherwise comprise or relate to the Products. Company Materials include Usage Data and Deliverables, but do not include Client Data or Third-Party Content.
h. “Documentation” means the technical and functional documentation that Company distributes in connection with its Products, as revised by Company from time to time, and which may include end-user manuals, operation instructions, installation guides, release notes, and on-line help files regarding the use of the Products.
i. “IP Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, design rights, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
k. “Order Form” means an ordering document, quotation, or online order entered into by the Parties, which (i) incorporates these GTCs by reference or otherwise, and (ii) specifies the Products to be provided pursuant to the Agreement.
l. “Personnel” means any employee, director, officer, or subcontractor for a given Party or that Party’s Affiliate.
m. “Products” means, collectively, the Cloud Services and Services.
n. “Professional Services” means the implementation, integration, configuration, training, and other professional services performed by Company as described in an Order Form or SOW, excluding any development services.
o. “Services” means, collectively, the Professional Services, and the Support Services, to the extent specified in the applicable Order Form.
p. “Statement of Work” or “SOW” means a written document, entered into by the Parties, which (i) incorporates these GTCs by reference or otherwise, and (ii) describes the Professional Services to be performed by Company pursuant to the Agreement.
q. “Support Services” means Company’s standard and premium customer support services and maintenance that are provided to Client by Company in support of its Products pursuant to the Agreement.
r. “Territory” means the United States and Canada.
s. “Update” means any update, release, or other adaptation or modification of the Products, including any updated Documentation, that Company may provide to Client from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Product.
t. “Usage Data” means data created by Company or its Products utilizing information derived from Client’s use of the Products, including, but not limited to, any end user profile, visit, session, impression, clickthrough or clickstream data, and any statistical or other analysis, information, or data based on or derived from any of the foregoing. The aforementioned data shall be deidentified to the extent that it contains attributes that can be used to identify a natural person.
u. “Usage Metric” means the standard of measurement and quantity for determining the permitted use or calculating the Fees due for the Software or Cloud Services.
2. USAGE RIGHTS; LICENSE.
a. Rights Granted & Permitted Use.
i. Products. Subject to and conditioned on Client's and its Authorized Users' compliance with the terms and conditions of the Agreement, including but not limited to payment of any Fees set forth on the applicable Order Form, Company hereby grants to Client a limited, non-exclusive, non-transferable (except in compliance with Section 13) right to (i) access and use the Product(s) set forth in the applicable Order Form through the internet using Client’s authorized username(s)and password(s), during the Term, solely for use by Authorized Users in the Territory, in a manner that does not exceed any Usage Metrics stated in an Order Form, for use in connection with its internal business purposes (unless explicitly otherwise set forth in the applicable PSTs or Order Form), (ii) download, install, and use on Client’s personal computing device (or on multiple computing devices insofar as use on multiple computing devices is possible without breaching this Agreement and is not otherwise prohibited) any and all software components of the Product that Company makes available to Client for downloading over the Internet; and (iii) access and use the Products and any and all components (including, without limitation, data, tools, materials, and features) of the Products (“Components”) that Company makes available to Client directly through the Internet using Client’s authorized username(s) and password(s). Additional terms and conditions set forth in Appendix A to these GTCs (“Product Specific Terms” or “PSTs”) apply to the extent that an Order Form is for the purchase of or subscription to a Product that is listed in the PSTs. All rights not expressly granted to Client hereunder are reserved by Company. Client acknowledges that internal controls in the Products do not necessarily restrict usage and deployment of the Products to comply with the Usage Metrics set forth in an Order Form. Client is responsible for its Authorized Users’ compliance with the Agreement and shall be liable to Company for the actions of its Authorized Users.
ii. Third-Party Authorized Users.
1. Affiliate Use. Client may authorize its Affiliates to use the Products, subject to the following: (i) Client warrants that it has the authority to, and by executing an Order Form with permitted Affiliate use does, bind Affiliates and their Authorized Users to the terms of the Agreement, including, where reasonably appropriate, those terms that do not expressly identify Affiliates as obligors; (ii) Client must be appropriately licensed for any and all increased usage of the Products attributable to Affiliates and their Authorized Users; (iii) Client and Affiliates shall remain jointly and severally liable to Company for its Affiliates’ and their Authorized Users’ use of the Products; (iv) a breach of the Agreement terms by an Affiliate or its Authorized Users shall be considered a breach by Client hereunder; and (v) use by any Affiliate that is in market competition with Company is prohibited. The Affiliate use rights set forth herein may only be exercised pursuant to a valid Order Form executed by Client for only as long as that Order Form is in effect. In instances where Company has permitted Affiliate use of the Cloud Services, Client must request additional prior written approval to expand any such Affiliate use beyond the originally defined Territory.
2. Service Provider Use. Client may authorize its third-party service providers and contractors (collectively “Service Providers”) to use the Products, but only to the extent necessary for Client to make use of the Products as intended by and in accordance with the Agreement. Any authorized use of the Products by Service Providers is subject to the following: (i) these rights will continue only while Client and Service Providers have in place a written agreement that gives Client the authority to compel any such Service Providers’ compliance with terms that are not materially different than those portions of the Agreement that govern the use of the Products, including without limitation license grants and restrictions, and non-disclosure of Company Confidential Information; (ii) Client must be appropriately licensed for any and all increased usage of the Products attributable to Service Providers; (iii) Client shall remain jointly and severally liable to Company for its Service Providers’ use of the Products; (iv) a breach of the Agreement terms by a Service Provider shall be considered a breach by Client hereunder; and (v) under no circumstances may Service Providers use the Products to operate or provide services to any other party, or in connection with Service Providers’ own business operations.
3. Team Products.
a. Some Products may allow one principal Client (the “Payee”) to purchase multiple accounts for “Team Member Users” that are part of their broader organization (“Team Products”).
b. Unless otherwise specified herein, the Payee will maintain ownership of all prospects and Client Data in their account, including any agent data, website name or other information. Those Team Member Users who are not employees of Client shall be subject to the Service Provider Use terms above as if they were a Service Provider. Payee will promptly notify Company of the identity of each Team Member User on Payee’s account. A Team Member User may purchase additional Products directly from Company, in which case that Team Member User must execute its own separate agreement with Company. Only those additional Products that a Team Member User purchases directly from Company will be governed by that separate agreement. Otherwise, a Team Member User's use of Products purchased by Client shall continue to be governed by this Agreement. Clients who execute these GTCs as a Payee and Clients who execute separate GTCs as a Team Member User each acknowledge that they share an instance of the Team Products, through which they will have access to each other’s Client Data and Client Lead Data. Payee and Team Member Users each agree that Company cannot be held liable for any acts or omissions of each other that may result from each other’s access to the shared instance of the Team Products.
c. As part of the written agreement requirement set forth in Section 2(a)(ii)(2)(i) above, Payee must have Team Member Users acknowledge and agree that Payee has the right to use Team Member User performance data that is accessible by Payee through the Team Products and that the Payee may terminate his/her access to the Team Product at any time.
b. Restrictions. Client shall not, and shall not permit any other person to, access or use the Products except as expressly permitted by the Agreement. For purposes of clarity and without limiting the generality of the foregoing, Client shall not, except as the Agreement expressly permits: (a) subject to any non-waivable rights Client may enjoy under applicable law, decompile, disassemble, reverse engineer, or otherwise attempt to derive the Products’ source code; (b) modify, enhance, change the data structures for or create derivative works from, the Products, (c) rent, lease, sell, sublicense or otherwise transfer the Products to third parties; (d) make the Products available in any form to any person other than Authorized Users who require such access; (e) input, upload, transmit, or otherwise provide to or through the Products, any information or materials that are unlawful or injurious, or contain, transmit, or activate any virus, worm, malware, ransomware, or other malicious computer code (“Harmful Code”); (f) access or use the Products in any manner or for any purpose that infringes, misappropriates, or otherwise violates any IP Rights or other right of any third party, or that violates any applicable law; (g) access or use the Products for purposes of competitive analysis of the Products; (h) access or use the Products to distribute (or facilitate the distribution of) Client Data that contains, or links to, material that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing, or is otherwise objectionable to Company; (i) access or use the Products to facilitate spam, excessive or unlawfully sourced data transfers, or engage in activity that results in spam warnings from industry spam monitors; (g) remove any product identification, copyright or other notices from the Products; (h) use the Products for timesharing, service bureau or hosting purposes or otherwise use, resell, sublicense, distribute or transfer or allow others to use the Products to or for the benefit of third parties (except as expressly permitted hereunder); (i) use the output or other information generated by the Products for any purpose other than as contemplated by this Agreement, (j) attempt to circumvent or otherwise interfere with the intended operation of the Products, or (k) attempt to compromise the security on the Company servers by any means including, but not limited to: (1) attempting to gain access to restricted information on the Company servers; (2) attempting to disable, cripple or modify Company servers or any service running on a Company server; or (3) attempting to access information in other Client accounts. Company reserves the right to prosecute any person or entity attempting to compromise the security of the Company servers to the fullest extent allowed by applicable law.
c. New Products. Company may offer to Client for license, either under or separately from the Agreement, upgrades or programs which provide new functionality or materially expand the function of the Products (“New Products”).
d. Changes. Company reserves the right, in its sole discretion, to make any changes to the Products it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Company's services to its customers; (ii) the competitive strength of or market for Company's Products; or (iii) the cost efficiency or performance of the Products or (b) to comply with applicable law. Such changes may include but are not limited to the decommissioning or addition of Product features.
3. SERVICES
a. Support Services.
i. Company, through its Personnel, will provide the Support Services set forth in an Order Form (if any). The Support Services shall also be provided as specified in the applicable Documentation, subject to any other terms and conditions set forth in the applicable Order Form. Client acknowledges and agrees that Support Services are intended to address specific problems experienced by Client relating to the Cloud Services and are not intended to (i) train Client’s employees, except for those Support Services which are specifically designated to include training Products, (ii) support third party products or (iii) develop custom features, integrations or other projects for Client.
ii. Company shall not be obligated to provide Support Services to the extent a particular request for Support Services arises from any of the following conditions: (i) Client’s failure to use the Cloud Services in accordance with the terms and conditions of the Agreement, including but not limited to any applicable Documentation; (ii) Client’s modification or alteration of the Cloud Services, except where expressly permitted by Company; (iii) Client’s use of any third party components to interface with the Cloud Services, whether by Application Programming Interface (API) or otherwise, without the express prior written consent of Company; (iv) Client’s failure to implement (or failure to permit implementation by Company for applicable Cloud Services) all available Updates and any updates to third party programs that are necessary for the proper operation of the Software; and (v) Client’s failure to provide reasonable access to its systems as Company deems necessary to provide the Support Services. All time and materials expended by Company resulting from Client’s breach of such conditions shall be billed to Client at Company’s standard time and materials rates. Support provided pursuant to this Section relates to the Cloud Services only. Unless, and only to the extent that, Company and Client have expressly agreed for Company to provide hardware support pursuant to the Order Form, should the problems that arise be the result of hardware malfunction or misconfiguration, Company will advise Client to have the hardware/network repaired. Support resulting from such hardware/network problems will be billed to Client at Company’s then-current hourly rates.
iii. On at least one hundred twenty (120) days prior written notice to Client, Company may declare any Product or hardware, or any particular version or component of any Product or hardware, “End of Life.” Upon an End-of-Life declaration, Company may, in its sole discretion, either decline to offer End of Life Support Services or continue offering End of Life Support Services on a limited basis. Company reserves the right to charge additional Fees for any End-of-Life Support Services and offer any length of term that it sees fit. Notwithstanding any other provision in the Agreement, all End of Life Products are provided by Company AS IS without ANY indemnification or warranty of any kind, and without any liability to Client WHATSOEVER OR ANY LIMITATIONS ON CLIENT’S LIABILITY TO COMPANY.
iv. On-Site Maintenance and Support. Support Services will be performed remotely and do not include onsite support or maintenance services.
v. Client’s Obligations. Client shall use all reasonable efforts to provide to Company information (including, where appropriate, reproducible test cases and other diagnostic information) reasonably required by Company to diagnose and correct or repair such problems as Client may report to Company, and Client shall otherwise provide reasonable assistance and access to Client’s systems and personnel as are reasonably necessary to enable Company to provide the Support Services. As a condition of Support Services, Client shall properly train its personnel in the use and application of the Covered Products and use such trained personnel to work with Company in resolving support and maintenance issues.
b. Professional Services.
i. Scope. Company, through its Personnel, will provide the Professional Services to Client only as specified in a Statement of Work (“SOW”), subject to the terms of the Agreement.
ii. Project Change Requests. Either Party may request a modification to any material provision of the SOW by submitting a Project Change Request (“PCR”). Upon receipt of a PCR, Company will determine whether such modifications are in its sole discretion commercially feasible and, if so, estimate its financial and schedule impacts, if any.
iii. Deliverables and Acceptance. As part of the Professional Services, some SOWs or Order Forms may specify particular “Deliverables” which shall mean all documents, work product, and other materials, expressly identified as Deliverables in an SOW, that are prepared by or on behalf of Company specifically for Client. For the sake of clarity, Client Lead Data is not a Deliverable. Company hereby grants to Client a nonexclusive, irrevocable, transferrable, sublicensable, perpetual license to use any such Deliverable to the extent necessary for Client to make use of the Deliverable for its own internal business purposes. For the sake of clarity, the aforementioned license does not (A) apply to any custom programming services for new software development or software modifications, which, as stated in Section 3(b)(v) below, are not covered by this Agreement, or (B) permit the use of any underlying Company Materials contained in a given Deliverable independent of the Deliverable as a whole. If Client reasonably believes that Company did not perform the Deliverables in material conformance with the SOW or Order Form, Client will notify Company, in writing, within ten (10) business days of delivery of the Deliverable (the “Acceptance Period”). Client’s notice must specifically identify and explain each alleged non-conformance. For those Deliverables that do not conform to the SOW or Order Form, Company will use commercially reasonable efforts to correct the non-conformity at no cost to Client. If Company does not receive Client’s acceptance or rejection within the Acceptance Period, the Deliverables will be deemed accepted by Client.
iv. Personnel. Company will determine the Company Personnel assigned to perform the Professional Services. Company shall remain fully responsible for the performance of all Company Personnel and for their compliance with all of the terms and conditions of the Agreement, regardless of whether the Company Personnel in question is an employee of Company or otherwise. Nothing contained in the Agreement shall create any contractual relationship between Client and any Company Personnel.
v. Custom Development and Enhancement Requests. The Agreement does not include any programming services for new software development or software modifications.
4. FEES AND PAYMENT.
a. Fees. Client will pay all fees for Products as set out in an Order Form (the “Fees”) in accordance with the Agreement and any additional terms set out in, and in the currency specified in, an Order Form, including but not limited to One-Time Fees, monthly System Fees and Advertising Fees. Except as otherwise expressly permitted by the Agreement, payment obligations are non-cancellable, and Fees paid are non-refundable. Fees shall be made via automatic payment from Client’s bank account or credit card (subject to Company’s sole discretion and the provisions in Section 4(b) below). Fees shall remain fixed for the Initial Term, unless Client (i) exceeds the quantities licensed in the Order Form, (ii) upgrades or requests additional Products, or (iii) otherwise agrees to Fee fluctuations in an Order Form. Quantities purchased cannot be decreased during any given Initial Term or Renewal Term. Prior to the start of any Initial Term or Renewal Term contract period, Company reserves the right to increase the Fees with at least 10 days’ notice.
b. Credit Card Payments. In the event Company permits Client to pay by credit card in its sole discretion, Client hereby authorizes Company to debit Client credit card for any and all Fees owed by Client under this Agreement, and Client will keep such credit card as Client registers with Company for this purpose in effect and in good standing and with available open credit sufficient to cover any such amounts arising under this Agreement. If for any reason the credit card that Company has on file for Client becomes, in Company’s understanding or judgment, cancelled, invalid, insufficient, non-authorized, frozen, unavailable, unreliable or for any reason unusable or ineffective for prompt payment to Company, Client will immediately provide Company with a replacement credit card and related information; all authorizations under this Agreement (including, without limitation, any given at the time of an Order Form, any renewal or any such replacement) will apply to any such replacement credit card(s). In addition, if Company requests that Client products a back-up credit card, then Client will immediately provide Company with a back-up credit card and related information; all authorizations under this Agreement (including, without limitation, any given at the time of Order Form or any renewal or upon updating a credit card or providing a back-up credit card) will apply to any such back-up credit card(s) and Company may debit the primary or any back-up credit card in its discretion, to the extent necessary to satisfy such amounts as are then due from Client under this Agreement. Client authorizes Company, its Affiliates, and Personnel to have access to, use, store and communicate Client credit card information, contact information and all other data identifying or pertaining to Client but only insofar as is reasonably related to the performance, enforcement or administration of this Agreement or Client account or provision or administration of any Product. Client shall undertake any additional actions reasonably requested by Company to implement the foregoing automated fee payment process. Company reserves the right to invoice, bill or otherwise request or demand payment from Client in any other lawful method, in which case Client will make payment of such invoice, bill or other demand or request as soon as possible but in no event later than within ten (10) business days after Client’s receipt of same.
c. Past Due Amounts; Administrative Fees. Any amounts past due from Client under this Agreement shall accrue interest at a rate which is the lesser of two percent (2%) per month or, if less, the maximum rate allowable by law. Sales tax, if applicable will be added to fees owing pursuant to this Agreement. In the event that payment is over 90 days past due the total value of the Agreement for the then-current Term will be due immediately and will be turned over a collection agency if not paid immediately. Client will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Company in collecting such amounts and for the remainder of the amounts due. In the event of any attempted credit card charge back or dispute resolved in favor of Company, Company reserves the right to charge Client twenty-five dollars ($25.00). Client is responsible for and shall immediately reimburse Company for (if Company has paid same) all chargebacks, penalties and other related charges, assessments and costs asserted by any credit card company, bank, payment processor or other organization involved in the payment process (“CC Assessments”) unless the sole cause of the CC Assessment was Company’s breach of this Agreement or violation of applicable law.
d. Taxes. Each Party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that Party upon or with respect to the transactions and payments under the Agreement.
e. Disputes. Any invoice disputes must be initiated by Client in good faith and in writing within thirty (30) days following the date of the applicable invoice, after which time the invoice shall be deemed to be accepted by Client. If Client initiates a dispute with regard to a particular invoice, any undisputed amounts charged on such invoice will continue to be due and payable. Company and Client agree to use reasonable efforts to address and attempt to resolve any invoice dispute within thirty (30) days after Company’s receipt of Client’s notice to Company regarding such dispute.
5. THIRD PARTY CONTENT
a. Third parties, or Company on behalf of third parties, may make available to Client software, application programming interfaces (APIs), documents, data, content, specifications, products, equipment, components, websites, or professional services licensed by third parties that are (i) interoperable with or accessible through the Products, and (ii) not embedded in or inseparable from the Products (“Third-Party Content”) for use in conjunction with or support of the Products. Except as otherwise specified in an Order Form, Company shall have no responsibility for the licensing, implementation, or operation of Third-Party Content.
b. Third-Party Content does not include any third-party software, libraries, or code that (i) are embedded in or form an inseparable part of the Cloud Services, and (ii) have been licensed by Company for use in Cloud Services (“Embedded Third-Party Content”). Client agrees to comply with any additional terms and conditions which are flowed down from Embedded Third-Party Content providers, as further specified in the applicable PSTs. To the extent that Embedded Third-Party Content is open source software, any such open source software is made available under the applicable open source licenses specified in the applicable PSTs.
c. Client acknowledges that some Embedded Third-Party Content requires Company to share some Client Data with those Embedded Third-Party Content providers, and Client agrees to share Client Data, or permits Company to share Client Data on its behalf, with third parties who provide Embedded Third-Party Content. The Client Data that is shared with Embedded Third-Party Content providers includes personally identifiable information, such as Client’s name, email address, and authentication credentials. Third-Party Content Providers are only permitted to use this Client Data in order to provide the Embedded Third-Party Content.
d. As a convenience to Client, Company may provide links to websites owned and operated by third parties not affiliated with Company. Client's use of the services and products offered via any such linked website shall be at Client's own risk and Company assumes no responsibility for the products and services offered via any such linked website, regardless of whether Company receives a referral fee for Client's use of the linked website. Client acknowledges and agrees that Company shall not be held responsible for the legality, accuracy or inappropriate nature of any content, advertising, products, services or information located on or through any of the linked websites, nor for any losses or damages caused or alleged to have been caused by the use of or reliance on any content from any such linked website.
6. Intellectual Property
a. Ownership of Products and Company Materials. Subject to any rights expressly granted by the Agreement, as between Company and Client, Company retains all right, title, and interest, including but not limited to IP Rights, in the Products and Company Materials, including all enhancements and modifications thereto. Client acknowledges and agrees that it is only licensing the right to use the Products and Company Materials and that no sale or other transfer of any title or ownership or any proprietary interest of any kind to such Products and Company Materials is contemplated hereunder, other than the grant of the limited licenses as expressly set forth herein. Client covenants, on behalf of itself and its successors and assigns, not to assert against Company, its Affiliates, or licensors, any rights, or any claims of any rights, in any Products or Company Materials.
b. Ownership of Client Data. Subject to any rights expressly granted by the Agreement, as between Company and Client, Client retains any and all right, title, and interest, including but not limited to IP Rights, in the Client Data.
c. Consent to Use Client Data. Client grants to Company a non-exclusive, world-wide, royalty-free, fully paid up, perpetual and irrevocable license to access and use Client Data as necessary for Company, its Affiliates, and their respective Personnel, to (i) enforce the Agreement (ii) exercise their respective rights under the Agreement, (iii) perform their respective obligations under the Agreement; and (iv) to make improvements to, conduct internal analysis of, or perform testing on any of the Products or Services. Client further grants Company, and its Personnel working in an official capacity on behalf of Company, a non-exclusive, world-wide, royalty-free, fully paid up, irrevocable license to use Client Data to create Usage Data. Usage Data, once created, shall be Company Materials. In the event that Usage Data, or any portion thereof, is ever deemed Client Data, Client shall grant to Company a nonexclusive, irrevocable, transferrable, sublicensable, perpetual license to use Client Data to the extent necessary for Company to make use of any such Usage Data in any manner it sees fit. Client may grant to Company additional rights to use Client Data as set forth in an Order Form. Company shall not use Client Data except as permitted by this Section 6(c).
d. Client Feedback. Company shall own all right, title, and interest to any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Client to Company relating to the improvement of the Products (“Client Feedback”). Company shall have no obligation to Client with regard to the Client Feedback. Client shall have no obligation to provide Client Feedback.
e. Use of Marks. Subject to any rights expressly granted by the Agreement, each party retains all right, title, and interest in its Marks. Client shall not use Company’s Marks without prior written consent. Unless indicated otherwise in the applicable Order Form, Client provides Company with permission to use its Marks in Company’s promotional and marketing materials and as necessary to fulfill the purposes contemplated in this Agreement. Company is granted no other right to the Marks and acknowledges that it shall not have any proprietary interest in the same; however, Company shall be the exclusive owner of all right, title, and interest, including copyright in its promotional and marketing materials to the extent that they do not include the use of Client’s Marks. Company is not obligated to use or to compensate Client for its use of the Marks. The permission to use the Marks may be terminated at any time by Client by providing thirty (30) days’ written notice to Company. Upon such termination, Company shall refrain from future use of the Marks; however, Company may continue to distribute and use the promotional and marketing materials where Client’s Marks have been previously printed prior to the notice of termination and where such placements cannot reasonably be discontinued or altered.
f. Client Content.
i. Client will be the owner of the copyrights with respect to text, images, domain names (when registered by Client), and all other content that Client authors and publishes using the Products or otherwise provides to Company for use in advertising (“Client Content”). Client unconditionally represents and warrants that they are the owner, assignee or authorized user of any and all copyrights or trademarks with respect to the Client Content. This includes, without limitation, text, images, photographs and graphic designs. Company is not responsible for verifying Client ownership of such rights. Company does not review any of these materials before they appear on websites or in email or text.
ii. Client acknowledges and agree that they have retained a copy of all Client Content, and hereby release Company and any third parties involved in the creation or delivery of any advertisement, the display of any Client Content, or the provision of any Product from any and all liability for loss of, or damage to, the copy(ies) of Client Content or content that Client inputs, stores, or transmits in connection with use of any Product. Client understands that content or provision thereof is not confidential.
iii. Client warrants the Client Content will not: (i) infringe on any third-party’s copyright, patent, trademark, trade secret or other proprietary or intellectual property rights; (ii) violate any law or regulation, including without limitation those governing export control; (iii) be defamatory or trade libelous; (iv) be pornographic or obscene or contain any nudity or other sexual materials; (v) contain viruses, Trojan horses, worms, time bombs, or other similar harmful or deleterious programming routines; (vi) contain material that is threatening, abusive, harassing, defamatory, obscene, profane, indecent, or otherwise objectionable or offensive; (vii) contain content promoting or encouraging a raffle, contest, game, or pyramid scheme requiring payment of a fee by participants; (viii) contain hate propaganda or fraudulent material or activity; (ix) contain any property owner information, including but not limited to name and phone number, and for sale by owner listing information; or (x) contain confidential information or trade secrets of Client or of any third party.
iv. Client hereby grants a perpetual, worldwide, royalty-free, limited, non-exclusive right, authorization, and license for Company to copy, store, reproduce, modify, edit, distribute, create derivative works of, and display the Client Content.
g. Client Lead Data. The Parties hereby acknowledge and agree that Client Lead Data is personal information and is not comprised of any IP Rights. Nevertheless, as part of the consideration for Client’s purchase of Company’s Lead Products and Advertising Services, Company agrees that Client is entitled to the exclusive use of Client Lead Data that is generated by Company on behalf of Client, subject to the terms of Section 11(f) of this Agreement.
7. CONFIDENTIALITY; DATA PRIVACY
a. Client Responsibilities. Client agrees to comply with all applicable anti-spam and data privacy laws and regulations. Client shall be responsible for securing all rights and permissions to use the Client Data, or to instruct Company to use the Client Data on Client’s behalf, in conjunction with the Products, including all the necessary rights and permissions to license the Client Data to Company as set forth in the Agreement. Furthermore, Client shall be responsible for (i) the integrity of the Client Data, (ii) the selection and implementation of controls to restrict access and use of the Products to only Authorized Users, and (iii) implementing all commercially reasonable measures to secure and protect the Client Data from unauthorized access and loss, to the extent that it is possible for Client to do so based on a given Product’s available features, functionality, configuration settings, or implementations methods. The responsibilities of Client set forth in this Section 7(a) are not shared with Company unless, and only to the extent that, any such responsibilities are expressly borne by Company pursuant to the Agreement.
b. Company Responsibilities.
i. Compliance with Applicable Laws. Company will comply with all applicable anti-spam and privacy laws in its performance of the Agreement and will provide assistance as may be reasonably requested by Client to meet its obligations under any such laws in connection with the Agreement; however, such assistance may be subject to an additional expense for Client unless the need for such assistance arises from a breach of the Agreement by Company.
ii. Data Privacy and Security. Company’s Privacy Policy, located at https://www.topproducer.com/privacy, describes how Company collects, uses, shares, or otherwise processes the personal information it collects from Client and its Authorized Users through their use of the Products, and further provides any available opt-out mechanisms available to Client and its Authorized Users. Additional data privacy and security terms are located at https://www.topproducer.com/dpa (the “DPA”). By agreeing to this Agreement, Client hereby gives consent to Company to collect, use, share, or otherwise process such personal information in accordance with Company’s Privacy Policy.
c. Mutual Nondisclosure Obligations.
i. By virtue of the Agreement, the parties may have access to the other Party’s Confidential Information, which shall mean any information disclosed under the Agreement that (a) if tangible, is clearly marked as “Confidential” or with a similar designation; (b) if intangible, is identified as “Confidential” by discloser at the time of disclosure and confirmed in writing to recipient as being Confidential Information; or (c) from the relevant circumstances should reasonably be known by recipient to be confidential (e.g. pricing, non-public personal data, Products, etc.). Confidential Information does not include any portion of the information that recipient can prove (a) was rightfully known to recipient before receipt from discloser; (b) was generally known to the public on the Effective Date of the Agreement; (c) becomes generally known to the public after the Effective Date of the Agreement, through no fault of recipient; (d) was received by recipient from a third party without breach of any obligation owed to discloser; or (e) was independently developed by recipient without breach of the Agreement.
ii. The Parties will hold each other’s Confidential Information in confidence and will treat it with the same degree of care with which it would treat its own Confidential Information of a like nature, and in no case less than a reasonable degree of care. With respect to all Confidential Information other than Products and Documentation provided by Company, such obligation shall terminate three (3) years after termination of the Agreement. With respect to the Products and Documentation provided by Company, such obligation is perpetual.
iii. Except as otherwise expressly stated in the Agreement, Confidential Information may only be disclosed to the receiving Party’s and its Affiliates’ employees, subcontractors, consultants, agents, and other representatives who are required to access it to carry out the obligations or exercise the rights of the receiving Party and its Affiliates under the Agreement, provided that those to whom the receiving Party and its Affiliates disclose the Confidential Information are contractually obligated to protect such Confidential Information in a manner that is no less restrictive than the requirements set forth in the Agreement. Client Confidential Information may also be disclosed to Company’s Affiliates as necessary to facilitate work performed under an agreement that Client may have directly with an Affiliate, provided that any such Confidential Information shall be deemed Confidential Information, or the equivalent thereof, under that agreement. Each Party shall be responsible for any acts or omissions of its or its Affiliates’ employees, subcontractors, consultants, agents, and other representatives which, if they were acts or omissions of that Party, would be deemed a breach of that Party’s obligations of this Section 7. Company may also disclose Client’s Confidential Information to a Third-Party Content provider to the extent necessary to facilitate Client’s relationship with that Third-Party Content provider.
iv. It shall not be a breach of this Section 7(c) if Confidential Information is disclosed pursuant to subpoena or other compulsory judicial or administrative process, provided that the Party served with such process promptly notifies, to the extent legally permissible, the other Party and provides reasonable assistance so that the other Party may seek, at its own cost and expense, a protective order against disclosure.
v. The parties recognize and agree that monetary damages are an inadequate remedy for breach of the obligations set forth in this Section 7(c) and further recognize that any breach would result in irreparable harm to the non-breaching Party. In the event of such a breach or threatened breach, the non-breaching Party may seek injunctive relief from a court of competent jurisdiction to pursue those remedies available to it.
d. Sensitive Personal Information. “Sensitive Personal Information” means an individual’s sexual preferences, medical, or health information protected under any health data protection laws, biometric data (for purposes of uniquely identifying an individual), personal information of children protected under any child data protection laws (such as the personal information defined under the US Children’s Online Privacy Protection Act (“COPPA”)) and any additional types of information included within this term or any similar term (such as “sensitive personal information” or “special categories of personal data”) as used in applicable data protection or privacy laws. Client shall not collect, process, or store any Sensitive Personal Information using the Products unless permitted by an Order Form, or otherwise without prior written consent of Company, provided that the execution of any agreement or addendum to an agreement which governs the use of any such Sensitive Personal Information (e.g. a Business Associate Addendum or Data Processing Agreement which expressly covers Sensitive Personal Information) shall be deemed consent.
e. Return and Destruction of Confidential Information. Except to the extent that the continued use of a Party’s Confidential Information is necessary for the other Party to exercise rights that are intended to survive the Agreement as expressly granted hereunder, upon the termination or expiration of the Agreement: (i) all rights granted by the disclosing Party with respect to its Confidential Information will automatically terminate and the receiving Party shall immediately cease (and cause its and its Affiliates employees, subcontractors, consultants, agents, and other representatives to cease) any access to and use of the disclosing Party’s Confidential Information; and (ii) the receiving Party shall securely delete or destroy the disclosing Party’s Confidential Information in a manner consistent with the sensitivity of the Confidential Information. Upon request of the disclosing Party, an officer of receiving Party shall certify to all such deletion or destruction in writing. Notwithstanding the foregoing, the receiving Party may retain a copy of Confidential Information for archival purposes if required by law or in accordance with receiving Party’s bona fide records retention policies, provided that the receiving Party continues to abide by the restrictions set forth in this Section 7 for as long it retains such Confidential Information. Company is under no obligation to retain data for more than thirty (30) days beyond the expiration or termination of the Agreement or any given Order Form.
f. Usage Analytics. Company may use one or more analytics systems to help improve usability and Client experiences and create Usage Data. Company may (or may use one or more vendors to) record Client activity on the Product, including mouse clicks; mouse movements; scrolling activity; and keystroke information that Client voluntarily enter on the platform. Client should stop using the Product if Client does not agree to such recording of Usage Data. Note that, if available, disabling vendor analytic system(s) may disable other features of the analytics system(s) that the Product employs.
8. INDEMNIFICATION.
a. Company will indemnify, defend and hold Client harmless from, at Company’s expense, any action brought against Client by a third party based upon a claim that Client’s use of the Products within the scope of this Agreement infringes or misappropriates the IP Rights of such third party (a “Claim Against Client”) and will indemnify Client from any damages, attorney fees and costs finally awarded against Client, or for amounts paid by Client under a settlement approved by Company in writing, as a result of a Claim Against Client; provided that Client notifies Company promptly in writing of the Claim Against Client, provide Company with the sole control and authority to defend or settle such Claim Against Client, and gives Company the authority, information and assistance necessary to settle or defend the Claim Against Client. If any of the Products are, or in Company’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party IP Rights, Company may in its discretion and at no cost to Client: (a) procure the right for Client to continue using the Products as contemplated by this Agreement; (b) replace or modify the Products so that they become non-infringing, without materially decreasing the functionality of the Products; or (c) if neither (a) or (b) above is commercially practical, then at Company’s sole option, by written notice to Client, terminate the Agreement with respect to all or part of the Products, and require Client to immediately cease any use of the Products, or any specified part or feature thereof, provided that Client shall be entitled to a pro rata refund for any Products that are terminated pursuant hereto. Notwithstanding the foregoing, Company shall have no obligation to defend against or indemnify for any Claims Against Client to the extent they arise from: (a) use of a version of the Products that were not, at the time that the claim arose, the current unaltered version of the Products provided by Company hereunder, including, without limitation, Client failure to install apply or incorporate updates or changes containing modifications to make the Products non-infringing; (b) combination, operation, integration or interfacing of the Products with Third Party Content or any third party materials, if such Claim Against Client would not have arisen but for such combination, operation, integration or interfacing; (c) use of the Products in a manner other than as authorized by this Agreement; (d) Company’s compliance with the designs, plans, or specifications furnished by or on behalf of Client; (e) modifications to the Products by any person other than Company or its authorized agents or subcontractors; or (f) Client failure to accept any procured right to continue using the Products.
b. By Client. Client will, at its expense, defend Company against any claim, demand, suit, or proceeding made or brought against Company or any of its Affiliates or Personnel by a third party (i) arising from or related to Client’s failure to use the Products in accordance with the terms of the Agreement or any applicable laws, rules or regulations by any applicable authority (for example, MLSs or other real estate associations), or (ii) alleging that any Client Data, use of Client Data by Company within the scope of the Agreement, or Client action or inaction described in the final sentence of Section 8(a), infringes or misappropriates any rights of such a third party (a “Claim Against Company”), and will indemnify Company from any damages, attorney fees and costs finally awarded against Company, or for amounts paid by Company under a settlement approved by Client in writing, as a result of a Claim Against Company; provided that Company notifies Client promptly in writing of the Claim Against Company, provides Client with the sole control and authority to defend or settle the Claim Against Company, and gives Client the authority, information and assistance necessary to settle or defend the Claim Against Company.
c. THE FOREGOING STATES THE INDEMNIFYING PARTY’S SOLE AND EXCLUSIVE LIABILITY TO, AND THE INDEMNIFIED PARTY’S SOLE AND EXCLUSIVE REMEDY AGAINST, THE OTHER PARTY WITH RESPECT TO ANY THIRD-PARTY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OR PROPRIETARY RIGHTS DESCRIBED IN SECTIONS 8(a) AND 8(b).
9. WARRANTY &WARRANTY DISCLAIMER.
a. Mutual Representations. Each Party represents and warrants to the other Party that: (i) if it is a corporate entity, it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (ii) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under the Agreement; (iii) the execution of the Agreement by its representative whose signature is set forth at the end of the Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and (iv) when executed and delivered by both parties, the Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
b. Additional Company Representations, Warranties, and Covenants. Company warrants that it will provide the Products and Services specified in this Agreement with reasonable diligence in a professional and workmanlike manner, consistent with generally accepted standards in the information systems industry. As Client’s sole remedy for any breach of this warranty, if Client provides notice to Company of any documented incidence of non-conformance within thirty (30) days of discovering any such non-conformance, Company will use commercially reasonable efforts to correct such non-conformance, provided such non-conformance is not caused by: (A) Client’s failure to adhere to its obligations under the Agreement, including but not limited to any assumptions set forth in an SOW, or (B) Third-Party Content or any other product or service not provided by Company, its Affiliates, or its Personnel.
c. Additional Client Representations, Warranties, and Covenants. Client represents, warrants, and covenants to Company that Client (i) has complied, and will continue to comply, with all applicable laws and regulations, including but not limited to those applicable to the collection and use of Client Data in connection with this Agreement, including governmental and quasi-governmental rules and regulations, treaties and regulations (including, but not limited to, Fair Housing Act, US Federal TCPA regulations, and state privacy and SPAM regulations), (ii) owns or otherwise has and will have the necessary rights and consents in and relating to the Client Data so that, as received by Company and processed in accordance with the Agreement, including the DPA, they do not and will not infringe, misappropriate, or otherwise violate any IP Rights, or any privacy or other rights of any third party or violate any applicable law or regulation, and (iii) Client shall promptly provide all information and materials reasonably requested by Company to implement the any Product or Cloud Service capabilities. To the extent that any Client Data was collected first by a third-party, such as a data broker, Client further represents, warrants, and covenants to Company that it has a written agreement with any such third-party which requires that third-party to comply with all applicable laws and regulations, including but not limited to those applicable to the collection and use of the data obtained from that third-party. Client additionally represents and warrants that currently and throughout the Term (i) the Client or at least one Authorized User is a real estate agent or broker in good standing and are fully authorized to publish, and authorize Company to publish, without the necessity of obtaining any further permissions from or payments to any third party, all of the materials provided for publication on Client's designated website, including without limitation, MLS listings, text, logos, photos and other graphics, and (ii) Client and any Users will honor any "opt out" requests received from any sales prospects who are identified through the activities contemplated in this Agreement.
d. DISCLAIMERS. EXCEPT FOR THE WARRANTIES PROVIDED IN THIS SECTION 9 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLIENT ACKNOWLEDGES THAT THE PRODUCTS (INCLUDING ANY FINANCIAL CALCULATORS), AND THAT COMPANY CANNOT GAURANTEE THE NUMBER OF QUALITY OF LEADS, PROSPECTS, OR RESULTS GENERATED THROUGH THE PRODUCTS, INCLUDING ANY ADVERTIZING SERVICES, OR THAT THE PRODUCTS WILL BE CONTINUOUSLY AVAILABLE FOR USE WITHOUT TEMPORARY INTERRUPTION, AND THIRD-PARTY CONTENT ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND COMPANY DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY AND CONDITION OF MERCHANTABLE QUALITY, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR THE USE OF REASONABLE SKILL AND CARE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (1) COMPANY DOES NOT WARRANT THAT THE PRODUCTS WILL MEET ALL OF CLIENT’S REQUIREMENTS OR EXPECTATIONS, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR FREE; (2) COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS WITH RESPECT TO ANY THIRD-PARTY CONTENT PROVIDED WITH OR AS PART OF THE PRODUCTS; AND (3) COMPANY DISCLAIMS ALL LIABILITY FOR ANY THIRD PARTY’S PRIVACY OR DATA SECURITY PRACTICES. COMPANY’S LIMITED WARRANTIES DO NOT APPLY TO ANY PRODUCT WHICH HAS BEEN MODIFIED OR ALTERED IN ANY MANNER BY ANYONE OTHER THAN COMPANY, ITS AFFILIATES, OR ITS PERSONNEL. Some jurisdictions may not allow the exclusion of certain or any express or implied warranties, representations, guarantees, or conditions, so the above disclaimers many not apply to Client. Nothing in the Agreement excludes, restricts, or modifies any right or remedy, or any guarantee, representation, warranty, condition or other term, implied or imposed by any applicable law which cannot lawfully be excluded or limited. The Parties agree that it is Client’s responsibility to determine if the Products are suitable for Client’s requirements. No other terms, conditions, representations, warranties or guarantees, whether written or oral, express or implied, will form a part of the Agreement or have any legal effect whatsoever. Any financial calculators are made available to you "AS IS" for your independent use and are not intended to provide investment advice. Company cannot and does not guarantee their applicability in regards to Client’s individual circumstances.
10. LIMITATION OF LIABILITY.
a. COMPANY AND ITS AFFILIATES AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT EQUAL TO THE AMOUNT PAID BY CLIENT WITH RESPECT TO SYSTEM FEES ONLY (AND NOT AMOUNTS PAID WITH RESPECT TO ADVERTISING FEES OR ANY OTHER FEES) DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM GIVING RISE TO SUCH LIABILITY WAS FIRST ASSERTED. COMPANY WILL NOT BE LIABLE FOR: (I) ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THE AGREEMENT OR IN ANY WAY RELATED TO THE PRODUCTS; OR (II) ANY LOSS OF REVENUE, PROFITS, GOODWILL OR DATA (INCLUDING DUE TO A VIRUS OR OTHERWISE), BUSINESS INTERRUPTION, FAILURE TO REALIZE EXPECTED SAVINGS, CORRUPTION OF DATA, OR CLAIMS AGAINST CLIENT BY ANY THIRD PARTY OTHER THAN AS SET OUT IN SECTION 8, EVEN IF COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THESE LIMITATIONS WILL APPLY REGARDLESS OF HOW THE CLAIM ARISES, INCLUDING FOR BREACH OF CONTRACT, TORT, NEGLIGENCE OR OTHERWISE, AND WILL APPLY TO ALL ORDER FORMS, SOWS, AND ANY OTHER DOCUMENT RELATED TO THE AGREEMENT. THE FOREGOING LIMITATIONS OF LIABILITY ALLOCATE THE RISKS BETWEEN COMPANYAND CLIENT AND FORM A MATERIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. COMPANY’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
b. No Liability for Unauthorized Use or Access. Client is solely responsible for ensuring that each password for Client’s website is utilized only by Client or, if applicable, by Client’s authorized employees and agents. Company shall have no liability for any loss, claim, damage or other liability that may arise from the unauthorized use of a password. If a password is lost or stolen or if you have reason to believe that your website is no longer secure for any reason, it is your responsibility to notify Company of such loss or theft so that the password can be deactivated and a new password assigned. Company will use commercially reasonable efforts to effect password deactivation requests promptly.
11. TERM AND TERMINATION
a. Term.
i. The “Initial Term” shall mean the number of months specified on the Order Form. If the Order Form is silent as to the duration of the Initial Term, then the Initial Term of this Agreement shall be twelve (12) months (or such other duration as might be indicated by the pricing or invoicing applicable to the Order Form or the relevant Product)
ii. Upon expiration of the Initial Term, this Agreement will automatically renew on a month-to-month basis, or longer if Order Form specified an “Auto Renewal Term”. Client and Company may agree to additional multi-month “Renewal Terms” as shown on an updated Order Form, the Initial Term, any Renewal Terms, an Auto Renewal Term, and automatic month-to-month extension periods shall collectively constitute the "Term").
b. Suspension.
i. Failure to Pay Fees. Upon fifteen (15) days prior written notice to Client, including, without limitation, any notice of late or past due payment, Company may suspend (A) Client’s right to use of any Cloud Services, including any Updates thereto, and/or (B) the provision of any Services, for as long as any undisputed Fees are delinquent and remain unpaid. An invoice which indicates a past due amount shall satisfy the notice requirements of this Section 11(b)(i).
ii. Misuse. Upon fifteen (15) days prior written notice to Client, Company may suspend Client’s right to use any Product which is not being used in conformance with the terms of the Agreement for as long as any such nonconformity remains uncured. Notwithstanding the foregoing, if any such nonconformity is, in Company’s sole discretion, likely to cause material harm or risk of harm to Company, its Affiliates, its Personnel, or the Products, Company may suspend Client’s right to use the Product immediately without notice to Client.
iii. Additional Terms. In the event of any suspension under this Section 11(b), (A) Company shall not be precluded from exercising any additional remedies that might be available to it under the terms of the Agreement or otherwise, (B) the Term will not be extended and no Fees will be refunded to account for any period of suspension, and (C) Client forfeits all right to use the Products and any Company Materials, including without limitation Company’s Confidential Information, during the period of suspension, except to the extent that Company gives Client its prior written consent to use any of the foregoing to cure the default that led to the suspension. Any written notice provided under this Section 11(b) shall also satisfy the written notice requirements of Section 11(c) below. Any choice by Company to forego suspension under this Section 11(b) shall not be construed as a waiver of any rights under the Agreement or otherwise.
c. Termination by Company. Company has the right to terminate the Agreement or any portion thereof, if Client is in default of any term or condition of the Agreement and fails to cure such default within thirty (30) days after receipt of written notice of such default. Without limitation, it will be deemed a Client default under the Agreement if Client fails to pay any amount when due hereunder. Company may terminate the Agreement immediately if: (i) Client uses a Product in a way that violates any law or is causing, or is reasonably expected to cause, material harm to Company, its Affiliates, its Personnel, or the Products; or (ii) Client becomes insolvent, a receiver, administrator, controller or a liquidator is appointed to Client, Client assigns any of its property for the benefit of creditors or any class of them or any proceedings have been commenced by or against Client under any bankruptcy, insolvency or similar laws. Company will not tolerate rude behavior, abusive behavior or any type of threats by the client in any way. This will be considered a breach of agreement. Any Client doing so is subject to contract termination at Company discretion. In the case of termination by Company for any breach, all remaining fees as part of the current term shall become immediately payable and due. In addition to the foregoing, Company may terminate this Agreement at any time, without cause, upon thirty (30) days prior written notice to Client.
d. Termination by Client.
i. Client has the right to terminate the Agreement, or any portion thereof, if Company is in default of any material term or condition herein and fails to cure such default within thirty (30) days after receipt of written notice of such default, or if Company becomes insolvent or any proceedings are to be commenced by or against Company under any bankruptcy, insolvency or similar laws.
ii. Except as specified in this Section 11(d) Client may not terminate this Agreement prior to the expiration of the Initial Term, or any agreed upon subsequent Renewal Terms.
iii. When termination by Client is permitted by this Agreement at the end of any Renewal Period or month-to-month term, Client may terminate this Agreement by giving notice 15 days prior to start of following billing cycle. Example: Client signs agreement for 6 months starting January 20th and billing cycle charge occurs on 20th of every month. If Client cancels:
· On March 1: Last charge would occur June 20 in order to fulfill original 6-month term.
· On June 15: Last charge would occur July 20 because notice was not given 15 days prior to June 20 billing.
· On June 5: Last charge would occur June 20 as notice was given 15 days prior to June 20 billing.
In order to provide such notice, Client must email support@topproducer.com on or before the date specified herein.
iv. Notwithstanding anything to the contrary in this Agreement, Client may, within three (3) business days following the date of Order Form and prior to any use of the Product by Client, terminate this Agreement and obtain a refund on subscription Fees, to the extent Client has prepaid any such amount, by contacting Company by the methods set forth in Section 11(d)(iv). However, there are no refunds on setup Fees or activation Fees.
e. Effect of Termination and Expiration. Upon termination or expiration of the Agreement, or any portion thereof, for any reason, any and all amounts owed to Company pursuant to the Agreement, or the portion of the Agreement which has terminated or expired, will be immediately due and payable, and all rights, or those rights attributable the portion of the Agreement which has terminated or expired, granted to Company hereunder will be immediately revoked and terminated. Client agrees to immediately delete, remove, un-install or otherwise un-deploy all copies of the Products they may have downloaded and installed. Company may, without notice, delete any and all content that Client may have introduced, stored, or transmitted in connection with Client’s use of the Products. The obligations of the Parties and the provisions of the Agreement which are expressly stated to survive, or may be reasonable expected to survive, shall survive the expiration or termination of the Agreement, including without limitation Sections 6, 7(c), 8, 10, 14 and 15 of the Agreement.
f. Effect of Termination on Client Lead Data. In the event the Agreement, or any portion thereof with respect to Lead Products or Advertising Services, is terminated by Company for Client’s breach pursuant to Section 11(c) above (including for non-payment), Client acknowledges and agrees that Client will no longer use Client Lead Data for any purpose, exclusively or otherwise, except where use by client is necessary for client to meet its obligations under applicable laws or regulations. As of the effective date of any termination referenced herein and subject to the rights of those individuals that make up the Client Lead Data (the “Leads”), Client agrees that Company may use the Client Lead Data only for the following specific and limited purposes: (1) to contact Leads to confirm whether they are still interested in the services that are the same or materially similar to those services that Client would offer to the Leads (the “Client Services”), (2) to connect Leads with a real estate agent that has hired Company to provide the same or materially similar Lead Products and Advertising Services described in this Agreement, or (3) to further disclose the Leads to one of Company’s Affiliates identified in Company’s privacy policy, provided that Company obligates that Company Affiliate to use that Client Lead Data only for the specific and limited purpose of connecting Leads with a real estate agent that has hired that Company Affiliate to provide the same or materially similar Lead Products and Advertising Services described in this Agreement.
12. ADDITIONAL COMPLIANCE PROVISIONS
a.
Client Email, Text
Message, and Telephone Communications. To the extent an applicable Product has email, text message and
telephone communication capabilities with Client’s Clients or prospects, Client
and each of its Authorized Users agree to comply with all Company policies and
all laws, rules and regulations relating to the sending of email messages and
initiating text messages (including the CAN-SPAM Act, the Telephone Consumer
Protection Act, and these acts’ implementing regulations) through such Product.
Additionally, Client and all of its Authorized Users agree not to disable or
attempt to circumvent any consumer protection implemented by Company for email
communication or text message communication through the applicable Product(s).
While Company does not ordinarily monitor the content of Client messages, it
reserves the right to investigate reports of misuse of its service and to
protect its property and assets. The following conduct is prohibited on the
Product: (a) sending harassing, abusive, or threatening messages; (b) sending
obscene or pornographic messages or images; (c) sending defamatory or libelous
messages; (d) sending viruses or other harmful, disruptive, or destructive
files; (e) attempting to steal passwords or credit card information; (f)
sending messages in furtherance of unlawful, criminal, or fraudulent activity;
or (g) attempting to conceal or misrepresent the identity of the sender. Any
violation of this section may result in loss of features, up to and including
the immediate termination of Client’s account or this Agreement. If Client or
any of its Authorized Users imports lists for the purpose of sending email or
initiating text messages to such list, then Client warrants that each person on
such list has previously opted-in to receive email or text message
communication from Client. Client will indemnify Company for any costs or
damages incurred by Company due to Client's or its User's failure to comply with
this section. Client initiated emails are limited to one thousand (1,000) bulk
or marketing email messages per day.
SMS/Text Messaging via Short Code. We may contact You via SMS/text messaging
using the short codes 72438 and/or 63317. Short code 72438 is used by
FiveStreet for new lead alerts, claiming leads and to confirm your phone number
in the website. Short code 63317 will be used by Top Producer X for new message
alerts.
You can cancel the SMS service at any time. Just text “STOP” to the short code.
After this, You will no longer receive SMS messages from us. If You are
experiencing issues with the messaging program You can reply with the keyword
HELP for more assistance, or You can get help directly at support@topproducer.com.
Carriers are not liable for delayed or undelivered messages.
As always, message and data rates may apply for any messages sent to You from us and to us from You. Message frequency varies. If You have any questions about Your text plan or data plan, it is best to contact Your wireless provider.
If You have any questions regarding privacy, please read Top Producer’s Privacy Statement, which is available at: https://www.topproducer.com/privacy/.
b. Email Inbox and Contact Sync Integration. This paragraph shall apply when a Product
includes third party email inbox integration or contact synchronization
functionality. When Client provides Company with credentials for Client’s email
or other third party account(s), Client’s email account(s) (including without
limitation Client’s email communications, contacts, and calendar entries) will
be monitored, copied, stored, and used by Company and/or its vendors on an
ongoing basis in order to provide Client with current or contemplated System
features and/or functionality. If Client deletes information from Client’s
email account or contacts after Client links it to the Product, Company may,
but is not obligated to, retain a copy of the deleted information even though
it has been deleted from Client’s email account. If Client deletes or modifies
information within the Product, Client acknowledges that this will update and
potentially delete this data from the third party email or contact systems.
Upon expiration or termination of this Agreement, Company and its Service
Providers may, but are not obligated to, keep copies of Client’s email account
information that has been copied and stored by Company and/or its Service
Providers.
c.
Violations of the
Acceptable Use Policy
will not be tolerated and may result in termination of service. Company may
disable the sender's account without compensation or refund. COMPANY RESERVES
THE RIGHT IN ITS SOLE DISCRETION TO DISCLOSE TO THIRD PARTIES, INCLUDING
MESSAGE RECIPIENTS, THEIR COUNSEL, AND/OR LAW ENFORCEMENT AUTHORITIES, RELEVANT
INFORMATION ABOUT A COMMUNICATION, INCLUDING, BUT NOT LIMITED TO, THE SENDER
NAME, ACCOUNT INFORMATION, MEMBER AND COOKIE NUMBERS, TRANSMISSION DATA, PAST
AND SUBSEQUENT SERVICE USE, AND ANY OTHER INFORMATION DEEMED NECESSARY BY
COMPANY TO ADDRESS PAST VIOLATIONS OF THE ACCEPTABLE USE POLICY AND TO PREVENT
FUTURE VIOLATIONS. THESE DISCLOSURES MAY BE MADE WITH OR WITHOUT PRIOR NOTICE
TO CLIENT. BY USING THE SERVICE, YOU IRREVOCABLY CONSENT TO SUCH DISCLOSURES.
d. Consent to Email Marketing. The applicable Product may include the
capability to automatically send email and text message marketing to Client’s
Clients or end users on Client’s behalf. Client consents to such email and
text message marketing on its behalf, and acknowledges that it shall configure
the system with logo and client name and other Company Content to ensure Client
is appropriately represented in these messages. If Client does not wish to
have such automated content sent as described herein, it is Client’s
responsibility to configure the Product to prevent the various types of
automated messaging to be sent. Client and any Users expressly agree to
receive text message communications and telephone communications from Company.
These communications may include marketing text messages and telephone calls
offering Company Product add-on purchases to Client. These communications may
also include System related communications and alerts.
e.
Inquiries and
Communications. Client
may receive consumer contacts or consumer contact information, including,
without limitation, names, phone numbers, email addresses and other contact
information, financial information or other personal information (collectively,
“User Data”) in connection with certain Products. Client agrees (unless the
following terms are expressly excluded in a written agreement signed by
Company): (a) to respond to or use User Data only in accordance with Client’s
then-current Privacy Policy published on Client’s site and in accordance with applicable
law. (b) to respond to or use User Data solely for the purpose of responding to
the corresponding consumer’s specific inquiry (“Inquiry”) and/or to provide the
specific service(s) requested by such consumer (as applicable) (the “Authorized
Purpose”), and to do so in a prompt, courteous and professional manner; (c) not
to sell, transfer, disclose, distribute or otherwise share any User Data,
provided that Client may make User Data available to Client’s Affiliates or
Service Providers who Client retains to assist in undertaking an Authorized
Purpose, but only for that purpose and only if they have agreed to be bound by
the terms of this Section 12(e) and have agreed that Company may enforce this
policy directly as to them; and (d) not to make any use of User Data or
Inquiries except as specified above. Further, Client agrees that: (a) Client
shall comply, and are solely responsible for complying (and will cause Client’s
affiliates, contractors and distributees to comply), with all federal, state and
local laws and regulations applicable to the use, handling, safekeeping,
storage and/or disposition of User Data and/or applicable to any business
operations, third-party transactions or communications or other conduct
relating to the subject matter of this section — whether “do not call” rules,
mobile device rules, so-called “robo-calling” rules, telemarketing rules,
privacy rules, marketing email rules, or otherwise; (b) Client may not be
excessive, abusive or annoying with respect to the quantity or frequency of
communications, and must cease contacting any person who makes a request that
Client not do so; and (c) as to all Inquiries and User Data received by or on
behalf of Client or Client’s affiliates, Client agrees (and agrees to cause
Client’s affiliates, contractors and distributes) to maintain commercially
reasonable safeguards to protect such information from unauthorized access, use
or disclosure, to take reasonable steps to test and assure that such safeguards
are at all relevant times reasonably effective in achieving their intended
purposes, and to otherwise comply with this section. In recognition of the
importance to Company, its business and reputation of prompt and professional
responsiveness by Client regarding Inquiries, and in recognition that consumers
might tend to associate any slow or unsatisfactory responsiveness and/or
professionalism with Company, Client agrees that Company (and/or its designated
affiliates or contractors) shall at all times be free to provide copies of such
Inquiries to Client’s broker and/or follow up with and otherwise contact
persons associated with Inquiries to assess their satisfaction with Client’s
responsiveness and professionalism. In the event Company sells or offers a
limited number of Units with respect to a Product, then Company reserves the
right in its sole and absolute discretion to increase, decrease, subdivide or
merge from time to time the Units, or number of sold or available Units,
associated with such Product. (For example, if Company’s sales or offering of a
Product was based on or allocated by way of zip codes and Company had offered
or made sales of such Product such that three Product Clients would have
Advertisements appear, on a rotation basis, with respect to a given zip code,
Company’s discretion reserved here would, for example, enable it to change such
allocation such that a greater or a fewer number of advertisers might
participate with respect to such zip code. The foregoing is merely an example
and shall not be construed as a limitation on Company.) In order to keep Client
apprised of matters potentially of interest to Client, Client authorizes
Company and its affiliates, solely to the extent permitted by applicable law,
while Client is a Client and thereafter, to send Client (directly or by way of
Company’s contractors, and via email, telephone and SMS/text messaging (using
the phone no.(s) provided in connection with any purchase under this agreement
or at the request of Company or any of its affiliates), instant messaging, the
Web, fax (using the fax no.(s) provided in connection with any purchase under
this agreement or at the request of Company or any of its affiliates), mail,
courier, computer or otherwise, and in such form and content, and with such
frequency, as Company elects from time to time) renewal, informational,
advertising and promotional communications regarding Client’s account, Client’s
Client status, or products, services, data, offerings, initiatives, events or
other matters developed, offered, followed, sponsored or promoted by Client or
its affiliates or otherwise potentially of interest to Client.
13. ASSIGNMENT. Client may not assign any of its rights or obligations under this Agreement without Company's prior written consent. Subject to the foregoing, the provisions of this Agreement shall be binding on and inure to the benefit not only of the parties hereto but also to their successors and assigns. Company shall be free to perform all or any part of this Agreement through one or more subcontractors. Company may freely assign and delegate this Agreement or any or all of its rights and obligations hereunder. If Client is acquired by, sells substantially all of its assets to, or undergoes change of control in favor of, a direct competitor of Company, then Company may terminate the Agreement with immediate effect upon written notice.
14. GOVERNING LAW
a. The law that will apply to any question of interpretation regarding the Agreement, any question of the existence of the Agreement, or a lawsuit arising out of or in connection with the Agreement, and which courts have jurisdiction over any such lawsuit, depend on the country of incorporation or organization, as applicable, of Client, and will be determined as follows:
|
Client Country of Incorporation: |
Governing Law: |
Courts Having Jurisdiction: |
|
The United States of America, Mexico or a Country in Central or South America or the Caribbean |
The laws of the State of Maryland and the federal laws of the United States applicable in that state. |
(a) The United States District Court for the District of Maryland (to the extent it has subject matter jurisdiction), or (b) the courts of the State of Maryland in Baltimore County) |
|
Canada |
The laws of the Province of Ontario and the laws of Canada applicable in that province. |
Toronto, Ontario |
b. Each Party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and, subject to the availability of injunctive relief pursuant to Section 7(c) (Confidentiality) and to Section 15 (Disputes and Agreement to Arbitrate), to the jurisdiction of the applicable courts above. The parties exclude the operation of the United Nations Convention on Contracts for the International Sale of Goods.
15. DISPUTES AND AGREEMENT TO ARBITRATE. Upon any dispute, controversy or claim between the parties, each of the parties will designate a representative from senior management to attempt to resolve such dispute. The designated representatives will negotiate in good faith in an effort to resolve the dispute over a period of thirty (30) days. If the dispute is not resolved in this 30 day period, the parties will submit the dispute to binding arbitration in the appropriate jurisdiction listed in Section 14(a), by a single arbitrator independent of both parties who is skilled in the legal and business aspects of the software industry. The parties agree that the arbitrator’s fee shall be shared equally between the parties and that each party shall be responsible for its costs, legal and otherwise, in relation to the arbitration, unless the arbitrator decides that the circumstances justify an award of costs. The arbitration shall be conducted in the English language and shall take place in accordance with arbitration rules and in the location set forth in the below chart, depending on the country of residence, incorporation or organization, as applicable, of Client. Nothing in this Section 15 shall limit the ability of a Party to seek injunctive relief. If the value of the relief sought is $10,000 or less, Client or Company may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on Client and Company subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. Attendance at an in-person hearing may be made by telephone by Client and/or Company, unless the arbitrator requires otherwise. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. If a court decides that any part of this Section 15 is invalid or unenforceable, the other parts of this Section 15 shall still apply.
|
Client Country of Incorporation: |
Applicable Arbitration Rules: |
Location of Arbitration: |
|
The United States of America, Mexico or a Country in Central or South America or the Caribbean |
Commercial Arbitration Rules of the American Arbitration Association |
Baltimore County, Maryland |
|
Canada |
Canadian Arbitration Association |
Toronto, Ontario |
16. General
a. Export Compliance. The Products, and derivatives thereof, may be subject to export laws and regulations. Client represents that it is not restricted or prohibited from doing business in the United States of America, Canada, United Kingdom, or European Union, or with any persons or entities therefrom. Client shall not resell or permit access or use of the Products in any country which has been embargoed by the United States of America, Canada, United Kingdom, European Union, or United Nations, or in violation of any other applicable embargo, export law, or regulation. In the event that Client is in breach of this Section 16(a), whether such a breach arises from current or future restrictions, prohibitions, or embargos, Company shall have the right to suspend or terminate this Agreement immediately upon notice to Client. The Company shall have no obligation to supply Products under this Agreement to Client if to do so would impose on the Company the risk of being in contravention of the export controls legislation of any country.
b. Anti-Corruption. Client represents to Company that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Company’s employees or agents in connection with the Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Client learns of any violation of the above restriction, Client will use reasonable efforts to promptly notify Company.
c. Subcontractors. Company reserves the right to make use of subcontractors to provide or develop any of the Products and to use such means as Company, in its sole discretion, considers appropriate. Company’s use of subcontractors shall not relieve Company of its obligations under the Agreement.
d. Notices. Unless otherwise specified herein, all notices will be in writing, and will be deemed to be delivered upon (i) personal delivery; (ii) one business day after being delivered by reputable international shipping service to the address of the applicable Party set forth on the most recent Order Form, or if no such address exists, the last known address available to the Party providing notice; or (iii) when delivered by electronic mail the Parties at the email addresses shown on the most recent Order Form or SOW, or if no such email address exists, the last known email address available to the Party providing notice, except for notices of termination or an indemnifiable claim (“Legal Notices”) which cannot be delivered electronically. Each Party may modify its recipient of notices by providing notice pursuant to this Section 16(d).
e. Entire Agreement; Order of Precedence; Severability. The Agreement constitutes the entire agreement between the Parties with respect to the subject matter of the Agreement and supersedes all proposals, oral and written, and all previous negotiations and communications between the Parties and their representatives with respect to the subject matter of the Agreement. Each Party acknowledges that, in entering into the Agreement, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a Party to the Agreement or not) other than as expressly set out in the Agreement. The Agreement will prevail over terms and conditions of any Client-issued purchase order, which will have no force and effect, even if Company accepts or does not otherwise reject the purchase order. In the event of conflict between these GTCs and an Order Form or SOW, the terms of the Order Form or SOW shall control, but only as to that Order Form or SOW. In the event of a conflict between the DPA and any other component of the Agreement, the DPA shall control. If any provision contained herein or part thereof is determined to be void or unenforceable in whole or in part by a court of competent jurisdiction, such invalid provision or part thereof shall be deemed not to affect or impair the validity or enforceability of any other provision or part thereof contained herein, all of which remaining provisions or parts thereof shall be and remain in full force and effect.
f. Amendment. Client acknowledges and agrees that Company may, in its sole discretion, modify these GTCs from time to time, and that any such modifications become effective thirty (30) days after the date that Company provides the updated GTCs to Client, which may be done by providing Client with a URL that hosts the updated GTCs along with a clear message that these GTCs have been updated. Client is responsible for reviewing and becoming familiar with the updated GTCs. If, prior to the effective date of the updated GTCs, Client notifies Company of its objection to a modification of the GTCs which would result in a material degradation of Client’s rights or Company’s obligations to Client under the GTCs, then Company shall either conduct good faith negotiations of only those modifications which would result in such a material degradation, or, upon thirty (30) days notice to Client, terminate the Agreement. Notwithstanding anything in the Agreement to the contrary, the termination right set forth in this Section shall be in addition to any other termination right Company may otherwise have under the Agreement. If Company exercises its right to terminate pursuant to the terms of this Section, Client shall be entitled to a Pro-Rata Refund of any Fees already paid by Client for the affected Products, calculated from the effective date of any such termination. Client’s failure to object prior to the effective date of the updated GTCs shall be deemed acceptance of the updated GTCs. Except for Company’s right to update these GTCs pursuant to this Section, and except as otherwise agreed to in an SOW or Order From, the Agreement may only be modified by written amendment signed by the Parties.
g. Non-Waiver. Except as expressly stated in the Agreement, no term of the Agreement will be deemed waived, and no breach of a term excused, unless the waiver or excuse is provided in writing and signed by the Party issuing it.
h. Force Majeure. Neither Party will be liable for any delay or failure to perform its obligations under the Agreement, except for Client’s payment obligations, due to any cause beyond the Party’s reasonable control, which may include labor disputes or other industrial disturbances, systemic electrical, telecommunications or other utility failures, earthquakes, storms or other acts of nature, pandemic, embargoes, riots, acts or orders of government, acts of terrorism, or war (each a “Force Majeure Event”). The affected Party shall be excused from performance for as long as the Force Majeure Event continues, provided that the affected Party uses commercially reasonable efforts to mitigate the effect of the Force Majeure Event and resume performance as soon as possible.
i. Audit. Company may, no more frequently than annually, audit Client’s use of the Products (e.g., through use of software tools or otherwise) to assess whether Client’s use of the Products is in accordance with the terms of the Agreement. Client agrees to cooperate with Company’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Client’s normal business operations. Client agrees to pay, within thirty (30) days of written notification to Client, any fees applicable to Client’s use of the Products in excess of the applicable Usage Metrics. Company shall bear all costs of the Audit, except for any of Client’s costs incurred in cooperating with the audit.
j. Independent Contractors. The relationship of the Parties established by the Agreement is that of independent contractors. The Agreement does not establish an agency, joint venture or partnership relationship between Company and Client. Company and its Personnel, and other entities which represent Company, are acting as independent contractors and not as employees or agents of Client. Nothing in the Agreement will be construed to permit either Party to bind the other or to enter into obligations on behalf of the other Party.
APPENDIX A – PRODUCT SPECIFIC TERMS
1. MLS Products. To the extent that any Product depends on Company receiving a data feed from an MLS, the Term for such Product will terminate automatically upon the expiration, cancellation or termination of the agreement between Company and the applicable MLS or upon the expiration, cancellation or termination of the agreement between Client and the applicable MLS. Client's MLS is not responsible for any damages in the event that the Product cannot access or otherwise use the data from such MLS or any other breach of this Agreement. Client acknowledges that the Product may depend on Client to complete MLS paperwork to obtain permission for Company to access Client’s MLS, and agrees to complete in a timely manner.
2. Lead Products. For Cloud Services that include a committed number of prospects per initial six-month term (as specified on the Order Form) (“Lead Products”), and each subsequent six-month cycle, Company will provide an average monthly volume of prospects as specified in the Order Form. For clarity, Client acknowledges and agrees that Client commissions Company to generate Client Lead Data as part of the purchase of the Lead Products, and in the event Client is in default of any term or condition of the Agreement, including its obligations with respect to Fees, Client’s rights with respect to the Client Lead Data will be affected in accordance with the terms of Section 11(f) above. Agreement. If Company delivers fewer prospects, than purchased during initial six-month term and each subsequent six-month cycle, Company will review Client's account upon notice from Client during the 30 days following the conclusion of the initial term and each subsequent six-month cycle and, provided Client has met the requirements of this Agreement, as Client's exclusive remedy, Company may adjust Client's monthly fee and/or monthly prospect purchase quantity for any future months (but not prior months).
3. Advertising Services
If included on the “Order Form”, Client hereby also agrees to purchase real estate lead or advertising services (consisting of advertising to be purchased by Company for the purpose of generating visitor traffic to the website and/or generating new client prospects in the CRM system) (“Advertising Services”). For clarity, Client acknowledges and agrees that Client commissions Company to generate Client Lead Data as part of the purchase of the Advertising Services, and in the event Client is in default of any term or condition of the Agreement, including its obligations with respect to Fees, Client’s rights with respect to the Client Lead Data will be affected in accordance with the terms of Section 11(f) above.
a. Company has absolute discretion as to where (and how often) ads will be displayed on Client’s behalf and that the ads can be displayed next to direct or indirect competitors.
b. As part of the Advertising Services, Client hereby authorizes Company as Client's agent and attorney in fact, to place Client's content, including any and all forms of advertising, directly on Client's social media accounts as well as on the Client Site or any website owned by Company. Client shall be solely responsible for obtaining authorized access for Company to Client's social media accounts and as between Client and Company, shall be solely responsible for compliance with the applicable terms of use for any social media website where Client maintains an account. Client shall indemnify, defend and hold harmless Company and its officers, employees, agents and affiliates from and against all losses, expenses, liabilities, damages and costs including, without limitation, reasonable attorneys' fees (collectively "Costs"), to the extent that such Costs are attributable to Company providing Adverting Services to Client on Client's social media accounts. Company' liability to Client in respect of Advertising Services shall be limited as provided in the Agreement.
c. Company shall use its reasonable commercial judgment with regard to the application of any amounts paid by Client with respect to the Advertising Services under this Agreement ("Advertising Fees"), with the goal of generating new prospects in the Client’s CRM system. Notwithstanding the foregoing, Company shall have sole discretion with respect to the application of all Advertising Fees and may, without limitation, utilize any or all of the following methods, and retain a portion of the Advertising Fees as payment for such services: (i) contract with third-parties to place advertisements on Client's behalf, (ii) purchase web traffic from third-parties, which traffic will be directed to the Client Site, (iii) contract with Company or its affiliates to place advertisements on Client's behalf, and/or (iv) redirect visitors from any web site owned by Company to the Client Site.
d. Client acknowledges that certain MLS listings to be displayed on the Client Site may also be "syndicated" (e.g., displayed in advertising placed on Clients behalf by Company pursuant to this Agreement) or otherwise used by Company, in each case, solely for the purpose of generating additional traffic to Client's Company Site. Client represents and warrants that it has permission and authority to use all MLS listings to be displayed on Client's Company Site in the manner contemplated hereby.
4. Mapping. In the event a Product set forth on an applicable Order Form implements mapping services from Google, Client’s use of such mapping services is subject to, and with respect to such mapping services Client agrees to comply with, Google’s then-current terms at the following URLs:
a. the terms of service at http://maps.google.com/help/terms_maps.html;
b. the legal notices at http://maps.google.com/help/legalnotices_maps.html; and
c. the acceptable use policy at: https://www.google.com/work/earthmaps/legal/universal_aup.html.
5. Website Products.
a. Ownership. Company will retain ownership of the URL and/or domain name applicable to any website furnished by Company for Client's use in connection with this Agreement pursuant to an applicable Order Form ("Client Site"). Client will retain ownership of the URL and/or domain name applicable to any website furnished by it for use in connection with the Client Site. Any materials provided to Client by Company for use in connection with the website (such as sample or form content, privacy policies or sample terms of use) shall be considered a “Deliverable” under the GTCs and subject to the terms of Section 3(b)(iii) thereof.
b. Assistance. Company shall have sole discretion with respect to the content and layout of the Client Site and banner ads, pop-up ads and all other forms of advertising of any nature whatsoever shall be prohibited on the Client Site.
c. Prohibited Conduct. Client shall not use the Client Site to conduct any of the following activities: (a) send bulk/spam e-mail; (b) send mass/spam news postings; (c) disclose the trade secrets of any other person or entity; (d) use patented or trademarked materials without the prior consent of the patent or trademark owner; (e) rent, sell or otherwise distribute web space to third parties; or (f) conduct any other activity that Company determines, in its sole discretion, to be fraudulent, illegal or an unreasonable drain on system resources.
d. Website Content. For any Product that contains website functionality where Client has control of website content (a) Client understands and agrees that Client, and not Company, are responsible for the operation and control of the website content and Client understands that legal liability can arise from, and legal duties can apply to, publishing or allowing the posting of any content on websites or otherwise operating or controlling websites; (b) Client acknowledges and agrees that Client is exclusively responsible for, and Company will have no duty or responsibility whatsoever for providing to Client or for the website, any warnings, notices, terms of website use, legal terms, disclaimers, terms purporting to limit, exclude or shift liability, responsibility or risk, proprietary rights notices, acceptable use policy, privacy policy or other legends, agreements or terms of any nature, whether legal, exculpatory, protective or otherwise; (c) Client agrees to assume full responsibility for any Company-provided web content on the website and for causing any such Company-provided web content that is in any way inappropriate to be removed from the website or made inaccessible; (d) Client acknowledges and agrees that Company’s making the Company-provided web content available does not constitute legal, tax, accounting, real estate, financial, regulatory or other professional advice, and should not relied upon by Client as appropriate for Client’s website unless Client specifically deems it appropriate based on their own judgment and any advice Client obtains from advisors they retain; (e) Client must at all times make it clear on Client’s website that Client is the party responsible for the website and the content posted to or available through it and that any comments, complaints, claims or questions regarding the website or the content posted to or available through it are to be directed solely to Client; Client may not in any way identify Company as the party responsible for the website or the content posted to or available through it; (f) Client hereby authorizes Company to transfer in or acquire a domain name from a third-party domain name vendor (“TPDNV”) and renew or permit the renewal of the domain name annually; (g) Client agrees, and will remain agreeable throughout the duration of the use of the domain name, to the TPDNVs’ terms of service, which Client acknowledges the TPDNVs may change at any time in their sole discretion and without notice; (h) Client understands that Client may become a party to a separate contractual relationship between Client and the TPDNVs, and that Client, and not Company, will be fully and solely responsible for all liability and obligations in connection with that relationship, provided that Company may act on Client’s behalf in connection with such relationship, the TPDNVs and Client’s account(s) with them; (i) if, after registering one or more domain names in connection with the website or Website Application (for example, because of Client’s incorrect registration of a domain name or otherwise), Client chooses to delete a previously registered domain name and subsequently register one or more additional different domain names, Client will be charged the resulting domain name registration fees; (j) Company may list Client or, in Company’s discretion, Company, as the registrant and/or administrative, billing, and/or technical contact in connection with the domain name; however, upon any termination of Client subscription for the Website Application, Company may immediately cease acting in those capacities including in connection with switching registrars and will not be responsible to forward any notices, emails or other correspondence to Client or to take any other actions in connection with the domain name after any such termination; (k) Client, and not Company, shall be solely responsible for renewing any domain names that may become due for renewal; (l) if Company is contacted with a complaint, comment or inquiry about, or otherwise becomes aware of, any use of, activity, or problem relating to, or content that may be posted to or otherwise available on or through, the website, then Company will be free (without notice) to take or refrain from taking any action it deems, in its sole discretion, to be appropriate, advisable, useful, preferable, prudent, protective or mitigating, and Company shall have absolutely no responsibility or liability to Client or others as a consequence of any such action or inaction, and Client will indemnify, defend and hold Company and its affiliates and their respective directors, officers, employees, agents and representatives harmless from and against all lawsuits, claims, actions, damages, loss, injury, costs (including, without limitation, attorneys’ fees, experts fees and other defense costs), expenses, penalties, interest and liability incurred by Company or its affiliates as a result of, in the course of defending or addressing, or in connection with any such lawsuit, claim or action, any such action or inaction or any such use, activity, trend, problem or Content; and (m) Company shall be under no obligation, but does reserve the right (without notice), to monitor, pre-screen, block, remove, render inaccessible and otherwise regulate and address any website or content, and in no event will Company be responsible for any legal wrong that might be committed in connection with the website, nor for the appropriateness, accuracy, sufficiency, correctness, legality, veracity, completeness, or timeliness of any use of, activity, trend or problem relating to, or content that may be posted to, available on or through the website;
e. Domain Name. To the extent Client purchases or registers or renews an Internet domain name, whether from Company or third party registrar, Client hereby represents and warrants that: (i) the statements Client make in such purchase or registration or renewal are complete and accurate; (ii) such purchase or registration or renewal of the domain name will not infringe upon or otherwise violate the rights of any third party; (iii) Client are not purchasing or registering or renewing the domain name for an unlawful purpose; (iv) Client will not knowingly use the domain name in violation of any applicable laws or regulations; and (v) Client agrees to be bound by the terms and conditions of Registrar’s service agreement. In the event domain management is transferred to Client, Client agrees to be bound by the Registrar’s agreement. It is Client’s responsibility to determine whether Client domain name purchase or registration or renewal infringes or violates someone else’s rights. Internet domain names purchased or registered or renewed for Client are licensed to Client and Client assume all liability associated with such Internet domain names.
f. An advertisement may be permitted to include a link to a web site or other media. Client agrees that during the term of the Agreement, any such destination website(s) or other media shall not contain (i) any real estate listing information, listings of real estate agents or brokers or home search listings (“Prohibited Content”) nor (ii) any links to, nor any advertisements or promotion of, any Prohibited Content; however, such advertisement may nonetheless include a link to Client’s own website or the website of Client REALTOR® office. If Client ordered an Advertising Product that includes as a feature of the Product the right to create a link from the Advertisement(s) resulting from such Product to the Company Site (a “Link-Permitted Product”), then Company hereby grants to Client a limited, revocable right to link to the Company Site from such Advertisement during the Term, subject to the following conditions: (a) any and all links to the Company Site (to the extent complying with this Agreement, “Authorized Links”) must be configured according to Company’s Specifications; (b) Client may not link to or frame any other page or area of or in the Company Site, any Company Distribution Channel or any web site owned, operated or provided by Company or any of its affiliates without Company’s prior written permission; and (c) Client may not configure any web page (nor any other page or area of any web site, mobile application or other media) in such a way as to require users to register, sign up for services, or otherwise submit personal information as a condition of accessing any web page, web site, mobile application, media or service of Company or its affiliates without Company’s prior written permission. If Client Order is for a Link-Permitted Product, Company grants Client during the Term a non-exclusive, royalty-free, revocable right to use the graphic images and text and other such images for which Company grants express permission, solely for the purpose of establishing Authorized Links in the Advertisement(s) resulting from such Product. Company reserves all of its rights in the graphic images and text, any other images, its trade name and trademarks, and all of its other intellectual property rights. Notwithstanding any other terms of this Agreement, Company may revoke Client’s license to create Authorized Links at any time by providing Client notice of such revocation.
6. Office Professional/Volume Seat Products.
a. Some products may allow one principal Client (the "Payee") to purchase multiple accounts for individual Clients ("Individual System Users") for access to a particular Product (a "Volume Seat Product"). The terms of this section will apply to all Volume Seat Products.
b. Those Individual System Users who are not employees of Client shall be subject to the Service Provider Use terms in Section 2(a)(ii)(3) above as if they were a Service Provider. Any agent data, website name or other information is the sole property of the Payee. The Volume Seat Product is for payment of system fees only by Payee for the benefit of the Individual System Users Payee will notify Company of the identity of each Individual System User on Payee's account. An Individual System User may purchase additional Products directly from Company, in which case that Individual System User must execute its own separate agreement with Company. If the Payee would like to add or remove an Individual System User from its Volume Seat Product, such request must be received in writing by the 25th of the month, in order to be effective at the end of the following month. Only those additional Products that an Individual System User purchases directly from Company will be governed by that separate agreement. Otherwise, a Individual System User's use of Products purchased by Client shall continue to be governed by this Agreement. Clients who execute these GTCs as a Payee and Clients who execute separate GTCs as an Individual System User each acknowledge that they share an instance of the Team Products, through which they will have access to each other’s Client Data, including but not limited to Client Lead Data. Payee and Individual System Users each agree that Company cannot be held liable for any acts or omissions of each other that may result from each other’s access to the shared instance of the Team Products.
c. Notwithstanding the terms of Section 2 of the GTCs (License), Payee may designate any agent in Payee's office, brokerage, franchise or other designated group approved by Company to access the Volume Seat Product.
d. Any Individual System User may choose to cancel or leave the Volume Seat Product and maintain an individual account directly with Company by contacting support in writing at support@topproducer.com. The request must be received in writing by the 25th of the month, in order to be effective at the end of the following month.
e. As part of the written agreement requirement set forth in Section 2(a)(ii)(2)(i) above, Payee must have Individual System Users acknowledge and agree that Payee has the right to use Individual System User performance data that is accessible by Payee through the Volume Seat Products and that the Payee may terminate his/her access to the Volume Seat Product at any time.