This Master Services Agreement (the “Agreement”) is effective as of the date that the Statement of Work in which this Agreement is incorporated takes effect (the “Effective Date”) and is binding between the customer identified in that Statement of Work (the “Customer”), and Constellation Data Labs Inc., a Maryland corporation having offices at 11350 McCormick Road, Executive Plaza III, Suite 200, Hunt Valley, MD 21031 (the “Supplier”), each of whom may be referred to herein as a “Party” and collectively as the “Parties.”

NOW THEREFORE, in consideration of the premises and the mutual covenants hereinafter set forth, the parties hereto agree as follows:

• • “Affiliate” means any entity that now or hereafter (i) directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or control with a given Party, and (ii) is under common management with a given Party.
  • “API” means Supplier’s proprietary application programming interface and its associated tools and Documentation, that may be used to transmit the Listing Data to Customer for use in the Permitted Use Case(s).
  • “Authorized Users” means those individuals who are authorized by Customer to access and use the API, Listing, and Property Data pursuant to Section 2(e) below, subject to the limitations and obligations of Customer under the Agreement or any SOW.  An individual cannot be an Authorized User if that individual, or class of individuals to which it belongs, is otherwise ineligible per the terms of the Agreement or any SOW.
  • “Customer Data” means all information, data, and other content that is provided by Customer or its Authorized Users to Supplier, or Supplier’s Affiliates or Personnel, under this Agreement, including but not limited to any information about the Permitted Use Case(s).
  • “Permitted Use Case” means Customer’s actual or proposed use case for the Listing Data or Property data, as described in more detail in a SOW, which could be for Customer’s own internal use or use in the products or services Customer provides to its end users.
  • “Documentation” means the technical and functional documentation that Supplier distributes in connection with its API, as revised by Supplier 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 API.
  • “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.
  • “Listing Data” means real estate listing information made available by an MLS for use in the Permitted Use Case(s), including data, text, property descriptions, photographs, images, video, and audio, and including any such information that has been cleansed, standardized, or normalized.
  • “Managed Services” means MLS License facilitation and maintenance services, data standardization services, and professional services performed by Supplier as described in an SOW.
  • “Marks” means a Party’s logos, tradenames, trademarks, service marks, design marks, word marks, and trade dress, whether registered or otherwise.
  • “MLS” means a multiple listing service.
  • “Personnel” means any employee, director, officer, or subcontractor for a given Party or that Party’s Affiliate.
  • “Products” means, collectively, the API and Services.
  • “Property Data” means publicly available property data, including tax, ownership, deed, and mortgage records, demographic information, pre-foreclosure data, school information and rankings, and property valuation, whether such data is represented as text, models, analytics, reports, scores, images, or any other form, and including any such information that has been cleansed, standardized, or normalized.
  • “Statement(s) of Work” or, “SOW(s)” means a written document between Supplier and Customer which describes the Products provided to Customer and incorporates the terms of this Agreement.
  • “Services” means the Support Services and the Managed Services.
  • “Supplier Materials” means any and all information, data, documents, materials, works, content, methods, processes, technical or functional descriptions, database structures, requirements, plans, reports, devices, hardware, software, websites, technologies, and inventions that are developed, provided, or used by Supplier or its Personnel in connection with the Products. Supplier Materials include Usage Data and Deliverables, but do not include Customer Data, Listing Data, Property Data, or Standardized Data.
  • “Usage Data” means data created by Supplier or the API about Customer’s use of the API, including, but not limited to, any use statistics and analytical data.  The aforementioned data shall be deidentified to the extent that it contains attributes that can be used to identify a natural person.
  • “Usage Metric” means the standard of measurement and quantity for determining the permitted use or calculating the Fees or Expenses due for the Products, as set forth in an SOW.

• • API.  Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of the Agreement and any applicable SOW, Supplier hereby grants to Customer a limited, non-exclusive, non-transferable (except in compliance with Section 13(g)) license to use the API set forth in the applicable SOW, during the applicable SOW Term (as defined in the SOW), solely for use by Authorized Users, in a manner that does not exceed the Usage Metrics, for the purpose of accessing the Listing Data. All other use of the API is expressly prohibited without Supplier’s prior written authorization. All rights not expressly granted to Customer hereunder are reserved by Supplier.
  • Listing Data.  Customer hereby acknowledges that the Listing Data is licensed from one or more MLSs exclusively for use in the Permitted Use Case(s) and further acknowledges that the MLS(s) from which the Listing Data is licensed is/are the sole and exclusive owner(s) of the Listing Data.  Customer agrees that the Listing Data shall be used by Customer and its Authorized Users exclusively for the Permitted Use Case(s), during the applicable SOW Term, and in a manner that does not exceed the Usage Metrics, subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of the Agreement and any applicable SOW and MLS License (including any MLS Rules incorporated by reference therein).  Any other use of the Listing Data is not permitted under this Agreement.
  • Property Data.  Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of the Agreement and any applicable SOW, Supplier hereby grants to Customer and its Authorized Users a limited, non-exclusive, non-transferable (except in compliance with Section 13(g)) license to use the Property Data exclusively for the Customer Uses Cases, during the applicable SOW Term, and in a manner that does not exceed the Usage Metrics, subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of the Agreement and any applicable SOW. All other use of the Property Data is expressly prohibited without Supplier’s prior written authorization.  Where applicable, Customer shall use any Property Data that contains the name, address, email address, telephone number or other information about an individual consumer (“Consumer Information”) in accordance with the Direct Marketing Association guidelines and shall not use such Consumer Information to solicit to any individual who has requested protection from solicitation. Customer agrees to allow Supplier immediate access to any transient or stored Property Data upon request by Supplier in the event such data requires modification, deletion, or for Supplier audit purposes.
  • Restrictions. Customer shall not, and shall not permit any other person to, access or use the API, Listing Data, or Property Data except as expressly permitted by the Agreement and any SOW. For the sake of clarity and without limiting the generality of the foregoing, Customer shall not, except as the Agreement or any SOW expressly permits: (i) subject to any non-waivable rights Customer may enjoy under applicable law, decompile, disassemble, reverse engineer, or otherwise attempt to derive the API source code; (ii) modify, enhance, change the data structures for or create derivative works from, the API, Listing Data, or Property Data, including any attempt to data mine, screen scrape, copy, extract, or perform any other activity intended to circumvent the intended use of the Listing Data or Property Data; (iii) rent, lease, sell, sublicense or otherwise transfer the API, Listing Data, or Property Data to third parties; (iv) make the API, Listing Data, or Property Data available in any form to any person other than Authorized Users who require such access; (v) use the API, Listing Data, or Property Data in any way that would disparage Supplier or the licensors of the Listing Data or Property Data, including making inaccurate or inappropriate representations with respect to the foregoing or the API, Listing Data, or Property Data; (vi) access or use the API, Listing Data, or Property Data 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; (vii) access or use the API, Listing Data, or Property Data for purposes of competitive analysis of the API, Listing Data, or Property Data or to develop competing products; (viii) access or use the API, Listing Data, or Property Data to distribute (or facilitate the distribution of) content that contains, or links to, material that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing, or is otherwise objectionable to Supplier; (ix) access or use the API, Listing Data, or Property Data to distribute or facilitate any promotional material, including but not limited to spam; (x) remove, alter, or obscure any trademark or other notices contained in the Listing Data or Property Data; and (xi) use the Property Data in any way that would cause the Property Insights Data and Services to constitute a “consumer report” under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. or similar statute, or by any other authority having jurisdiction over the Parties, or to replace any title, legal, vesting, ownership, or encumbrance report.  In the event that Customer becomes aware of any access or use of the API, Listing Data, or Property Data in a manner that is not permitted by the Agreement or an SOW, Customer shall notify Supplier and make best efforts to stop or mitigate the non-permitted use.
  • Authorized Users. Customer may authorize its employees to use the API, Listing Data, or Property Data, provided that those employees must only make use of the API, Listing Data, or Property Data as intended by and in accordance with the Agreement and any SOW.  Customer must ensure that it its employees use the API, Listing Data, and Property Data in accordance with the terms of the Agreement and any SOW and Customer shall be liable to Supplier for the acts and omissions of its employees in conjunction with their use of the API, Listing Data, and Property Data.  Customer may also authorize its third-party contractors to use the API, Listing Data, or Property Data, provided that: (i) prior to authorizing any such third-parties, Customer must compel those third-parties, through contractual obligations or otherwise, to comply with those portions of the Agreement or an SOW that govern the use of the API, Listing Data, or Property Data, including without limitation license grants and use restrictions, and non-disclosure of Supplier Confidential Information; (ii) Customer must be appropriately licensed for any and all increased usage of the API, Listing Data, or Property Data attributable to such third-parties; (iii) Customer shall be liable to Supplier for the acts and omissions of such third-parties in conjunction with their use of the API, Listing Data, or Property Data; (iv) a breach of the Agreement or SOW terms by such third-parties shall be considered a breach by Customer hereunder; and (v) use by any such third-party that is in market competition with Supplier is prohibited.  Customer may only authorize its Affiliates and their Personnel to use the API, Listing Data, or Property Data if such right is expressly granted in an SOW.  Any such authorized use is subject to the same conditions that pertain to authorized third-party contractors, as set forth above.
  • Changes.  Generally speaking, Supplier reserves the right, in its sole discretion, to make any changes or updates to the API, Listing Data, or Property Data it deems necessary or useful to: (i) maintain or enhance: (A) the quality or delivery of the API, Listing Data, or Property Data; (B) the competitive strength of or market for the API, Listing Data, or Property Data; or (C) the cost efficiency or performance of the API, Listing Data, or Property Data; or (ii) to comply with applicable law or applicable rules, regulations, contractual obligations, and/or guidance regarding the use of the API, Listing Data, or Property Data.  Customer acknowledges that Supplier’s ability to provide access to Listing Data is dependent upon the approval of the MLS that licenses the applicable Listing Data, and such approvals are outside of Supplier’s control.  Similarly, Customer acknowledges that Supplier’s ability to provide access to Property Data is dependent upon the ability of Property Data vendors to supply such data.  Therefore, Customer agrees that Supplier may terminate, suspend, or forego provision of access to some Listing Data or Property Data as necessary due to the aforementioned dependencies.  In the event that access to Listing Data or Property Data is terminated, suspended, or never obtained, Supplier shall make commercially reasonable efforts to reinstate access to or replace that Listing Data or Property Data.  Furthermore, some MLSs have separate feeds for certain data points, such as off-market or sold data, in which case additional Fees or Expenses for these feeds may apply.  Finally, Supplier reserves the right to throttle access to the API when necessary, in its sole discretion, in order to optimize access to the Listing Data and the Property Data.

• Support Services.
  
  • Supplier, through its Personnel, will provide the Support Services set forth in an SOW. 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 SOW. Customer acknowledges and agrees that Support Services are intended to address specific problems experienced by Customer relating to the API, Listing Data, and Property Data and are not intended to train Customer’s employees or to support third party products.
  • Supplier shall not be obligated to provide Support Services to the extent a particular request for Support Services arises from any of the following conditions: (A) Customer’s failure to use the API, Listing Data, or Property Data in accordance with the terms and conditions of the Agreement or any SOW, including but not limited to any applicable Documentation; (B) Customer’s modification or alteration of the API, Listing Data, or Property Data, except where expressly permitted by Supplier; (C) Customer’s failure to maintain any equipment on which the  API, Listing Data, or Property Data is operated in accordance with the Documentation or other commercially reasonable standards; (D) Customer’s failure to implement all available updates to third party programs that are necessary for the proper operation of the  API, Listing Data, or Property Data; and (F) Customer’s failure to provide reasonable access to its systems as Supplier deems necessary to provide the Support Services, including, but not limited to, by way of telecommunications, internet or other remote access to the server environment in which the  API, Listing Data, or Property Data resides. All time and materials expended by Supplier resulting from Customer’s breach of such conditions shall be billed to Customer at Supplier’s standard time and materials rates.
• Managed Services.
  • • Scope.  Supplier, through its Personnel, will provide the Managed Services to Customer as specified in an SOW, subject to the terms of the Agreement.
    • MLS License Facilitation. For those SOWs that include Managed Services pertaining to the facilitation of an MLS Data license agreement for Listing Data (a “Data License”), Customer acknowledges that the MLSs must approve particular uses of such Listing Data, and Customer agrees that its use of all Listing Data shall be subject to the conditions and limitations set forth in the Data License as if Customer were a direct party to such Data License. Customer further acknowledges that Data Licenses are approved based on the particular Permitted Use Case(s) that is/are presented during the Data License application process, and Customer agrees to provide accurate information about the Permitted Use Case(s) to Supplier on a timely basis as needed to support the application and respond to any requests by the applicable MLSs. Customer further agrees to promptly inform Supplier of any material changes in the information provided to Supplier and the MLSs in support of the Data License application, including but not limited to any information pertaining to the Permitted Use Case(s) or how the applicable Listing Data will be used, displayed, transferred or collected by Customer or any other third parties.
    • Standardized Data and Deliverables.  As part of the Managed Services, Customer may engage Supplier to cleanse, standardize, or normalize the Listing Data or Property Data (the resulting data hereinafter referred to as “Standardized Data”).  The Parties agree that the Standardized Data is not new intellectual property (i.e. derivative works or works made for hire); instead, the Parties agree that the Standardized Data is subject to the same terms and conditions of this Agreement and any SOW which govern the Listing Data and Property Data.  Furthermore, the Standardized Data is not a “Deliverable,” which shall mean all other documents, work product, and other materials that are prepared by or on behalf of Supplier specifically for Customer as part of Supplier’s obligation to provide the Products.  Supplier hereby grants to Customer a limited, non-exclusive, revocable, non-transferrable (except in compliance with Section 13(g)) license to use any such Deliverables during the SOW Term for its own internal business purposes.  For the sake of clarity, the aforementioned license does not permit the use of any underlying Supplier Materials contained in a given Deliverable independent of the Deliverable as a whole.
    • Personnel.  Supplier will determine the Supplier Personnel assigned to perform the Managed Services. Nothing contained in the Agreement or any SOW shall create any contractual relationship between Customer and any Supplier Personnel.

• • Fees and Expenses.  Customer shall pay to Supplier the fees and expenses as set forth in the applicable SOW (“Fees” and “Expenses,” respectively).  All Fees and Expenses shall be paid in U.S. Dollars.  Except as otherwise expressly permitted by the Agreement or any SOW, payment obligations are non-cancellable and Fees and Expenses paid are non-refundable.  Amounts due under the SOW, including Fees and Expenses, shall remain fixed for the Initial Term, unless (i) an applicable MLS increases or charges additional Fees or Expenses based on Customer’s use of the Listing Data, (ii) Customer requests new or additional Products, or (iii) Customer otherwise agrees to Fee or Expense fluctuations in an applicable SOW.   Usage Metrics cannot be decreased during any given Initial Term or Renewal Term Unless otherwise stated in the applicable SOW. All Fees are subject to annual increase, beginning on the first anniversary of the Initial Term (as hereinafter defined).
  • Billing.  The first billing cycle will follow as outlined under the SOW. For each subsequent billing period, specified in the SOW, Supplier will issue a billing statement thirty days in advance of such billing period to Customer which includes Fees and Expenses that will be charged to Customer. Charges are processed on the 15th or 31st day of the pay period based on the Effective Date and subject to statutorily holidays. The amount indicated on the billing statement will be automatically paid by Customer via ACH, unless Customer has elected to pay via credit card. All Products which are paid for by credit card are subject to a +3% price difference, which may be reflected as a separate line item on the billing statement for clarity.  In the event of a failed or declined ACH or credit card payment, Customer shall have three (3) days to correct the outstanding balance. If the balance remains outstanding after three (3) days the outstanding balance will be subject to interest at a rate of 2.0% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. In the event that Supplier incurs legal costs in retaining an attorney or filing a legal action to recover overdue Fees or Expenses, Customer shall be responsible for the payment to Supplier of any collection costs incurred by Supplier, including but not limited to reasonable attorneys’ fees, costs, and collection agency fees.
  • 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 and any SOW.

• Term.
  • Initial Term.  The initial term of an SOW will commence on the effective date set forth in an SOW and will continue thereafter for the period set out in the SOW (“Initial Term”), unless terminated earlier by Supplier or Customer in accordance with the terms of the Agreement or any SOW.  If no effective date is specified in an SOW, the effective date of such SOW shall be the date of final signature.
  • Renewal Term.  Unless otherwise specified in an SOW, an SOW will automatically renew at the then-current Usage Metrics for additional recurring periods equal to length of the Initial Term (each being a “Renewal Term” and, collectively, with the Initial Term, the “SOW Term”), unless either Party provides the other Party with ninety (90) days written notice prior to the conclusion of an Initial Term or any Renewal Term, as applicable. All terms and conditions of the Agreement and any SOW shall remain in effect during any Renewal Term, except as otherwise stated in the Agreement or an SOW or expressly agreed to by the Parties in writing.
  • Agreement Term. The term of the Agreement shall begin on the Effective Date and shall continue for the then-current SOW Term.
• Suspension; Excused Performance.
  • Failure to Pay Fees or Expenses.  If any Fees remain unpaid for more than three (3) business days after a failed or declined ACH or credit card payment, Supplier may suspend its obligations under the Agreement and any SOW without notice for as long as any Fees or Expenses are delinquent and remain unpaid.
  • Misuse. Supplier may suspend its obligations under the Agreement and any SOW in the event that any Product, the Listing Data, or the Property Data is not being used in conformance with the terms of the Agreement, an SOW, or MLS License, including any MLS Rules incorporated by reference therein, for as long as any such nonconformity remains uncured.  Supplier will provide notice of such suspension (a) at least fifteen (15) days in advance, or (b) within the period requested by the applicable MLS for such suspension, whichever of (a) and (b) is less.  Notwithstanding the foregoing, if any such nonconformity is, in Supplier’s sole discretion, likely to result in a violation of applicable law, or cause harm or risk of harm to Supplier, its Affiliates, its Personnel, or the licensors of the Listing Data or Property Data, Supplier may suspend its obligations under the Agreement or any SOW immediately without notice to Customer.
  • Additional Terms.  In the event of any suspension under this Section 5(b), (A) Supplier shall not be precluded from exercising any additional remedies that might be available to it under the terms of the Agreement, an SOW, or otherwise, (B) the SOW Term will not be extended and no Fees or Expenses will be refunded to account for any period of suspension, (C) Customer’s obligation to pay Fees and Expenses shall not be suspended during the period of suspension, (D) Supplier reserves the right to charge a Fee to reinstate Customer’s access to the Products, Listing Data, or Property Data, and (E) Customer forfeits all right to use the Products, Listing Data, Property Data, and any Supplier Materials, including without limitation Supplier’s Confidential Information, during the period of suspension, except to the extent that Supplier gives Customer 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 5(b) shall also satisfy the written notice requirements of Section 5(c) below.  Any choice by Supplier to forego suspension under this Section 5(b) shall not be construed as a waiver of any rights under the Agreement, SOW, or otherwise.
  • Excused Performance. Any delay by or failure of Supplier to provide the Product(s), Listing Data, or Property Data in accordance with this Agreement or the applicable SOW will be excused to the extent caused by any of the following: (i)  Customer not performing its obligations under this Agreement or the SOW in a timely manner, including Customer not providing data or materials in the prescribed form or in accordance with the requirements of this Agreement or a SOW;  (ii) Customer not providing adequate resources, including but not limited to personnel, to perform the tasks, functions or other responsibilities it has under this Agreement or a SOW; (iii) any action or inaction, taken or not taken by Supplier at the request or direction of Customer or as a result of Customer not providing any required written direction; or (iv) rejection or revocation of any MLS approvals to use the Listing Data for the Permitted Use Case(s). If either Party learns of the occurrence or likely occurrence of any of the foregoing, it will inform the other party within a reasonable period and the parties will cooperate to develop and implement a mutually acceptable plan to minimize the adverse effects caused by such circumstances.  Customer remains responsible for all Fees and Expenses during the period of delay or delivery failure.
• Termination by Supplier. Supplier has the right to terminate the Agreement, SOW, or any portion thereof, if Customer is in default of any material term or condition of the Agreement or SOW and fails to cure such default within the lesser of (a) thirty (30) days after Supplier provides written notice of such default, or (b) if applicable, the cure period set forth in an applicable MLS License if the default is related to the breach or violation of any such MLS License. Without limitation, it will be deemed a Customer default under the Agreement or SOW if Customer fails to pay any amount when due hereunder. Supplier may terminate the Agreement or any SOW immediately if: (i) in Supplier’s sole discretion, Customer’s acts or omissions are likely to result in a violation of applicable law or breach of any MLS License (including any MLS Rules incorporated therein), or cause harm or risk of harm to Supplier, its Affiliates, its Personnel, or the licensors of the Listing Data or Property Data; or (ii) Customer becomes insolvent, a receiver, administrator, controller or a liquidator is appointed to Customer, Customer assigns any of its property for the benefit of creditors or any class of them or any proceedings have been commenced by or against Customer under any bankruptcy, insolvency or similar laws. Supplier may also terminate this Agreement, SOW, or any portion thereof upon notice to Customer in the event Customer has made three or more late payments or breaches of this Agreement or any SOW, even where such breaches are cured within the applicable cure period.
• Termination by Customer. Customer has the right to terminate the Agreement, SOW, or any portion thereof, if Supplier is in default of any material term or condition therein and fails to cure such default within thirty (30) days after receipt of written notice of such default, or if Supplier becomes insolvent or any proceedings are to be commenced by or against Supplier under any bankruptcy, insolvency or similar laws.
• Effect of Termination and Expiration. Upon termination or expiration of the Agreement, SOW, or any portion thereof, for any reason, (i) any and all amounts owed to Supplier pursuant to the Agreement, or the portion of the Agreement or an SOW which has terminated or expired, will be immediately due and payable, (ii) all rights, or those rights attributable the portion of the Agreement or SOW which has terminated or expired, granted to Customer hereunder will be immediately revoked and terminated, (iii) Customer must immediately cease the use of any Listing Data and Property Data.  In the event this Agreement or an SOW is terminated by Supplier for cause pursuant to Section 5(c), all amounts for Products which are currently due and would have become due over the remainder of the SOW Term shall become due and payable as of the date of termination and any such amounts may also be subject to any collection costs actually incurred by Supplier, including reasonable attorneys’ fees, court costs, and collection agency fees.

• Ownership of API and Supplier Materials. Subject to any rights expressly granted by the Agreement or any SOW, as between Supplier and Customer, Supplier retains all right, title, and interest, including but not limited to IP Rights, in the API and Supplier Materials, including all enhancements and modifications thereto.  Customer acknowledges and agrees that it is only licensing the right to use the API and Supplier Materials and that no sale or other transfer of any title or ownership or any proprietary interest of any kind to the API and Supplier Materials is contemplated hereunder, other than the grant of the limited licenses as expressly set forth herein.  Customer covenants, on behalf of itself and its successors and assigns, not to assert against Supplier, its Affiliates, or licensors, any rights, or any claims of any rights, in the API or Supplier Materials.
• Ownership of Listing Data and Property Data.  Subject to any rights expressly granted by the Agreement or any SOW, the third-party licensors of the Listing Data and Property Data retain any and all right, title, and interest, including but not limited to IP Rights, in the Listing Data and Property Data.  Any Customer use of the Listing Data that is not expressly set forth in this Agreement or an SOW is not permitted under this Agreement.
• Ownership of Customer Data.  Subject to any rights expressly granted by the Agreement or any SOW, as between Supplier and Customer, Customer retains any and all right, title, and interest, including but not limited to IP Rights, in the Customer Data.
• Consent to Use Customer Data.  Supplier may use Customer Data as necessary for Supplier, its Affiliates, and their respective Personnel, to (i) enforce the Agreement or any SOW, (ii) exercise their respective rights under the Agreement or an SOW, and (iii) perform their respective obligations under the Agreement or an SOW.  Customer may grant to Supplier additional rights to use Customer Data as set forth in an SOW.  Supplier shall not use Customer Data except as permitted by this Section 6(d).
• Use of Marks. Subject to any rights expressly granted by the Agreement or any SOW, each party retains all right, title, and interest in its Marks.  Customer shall not use Supplier’s Marks without prior written consent.

• Approvals and Information.  Customer acknowledges that Supplier’s ability to provide the Product(s) successfully requires cooperative efforts by both parties and is dependent on Customer providing complete, timely and accurate information to Supplier. Where information provided by Customer is incomplete or inaccurate, Supplier may request that Customer review and approve assumptions or workarounds proposed by Supplier in writing.  Customer will respond promptly to any Supplier request to provide information, approvals, decisions or authorizations that are reasonably necessary for Supplier to provide the Product(s) in accordance with the SOW.  If a SOW does not specify a period for Customer’s response, Supplier will specify a reasonable period in the context of the situation or project schedule.  Supplier’s request may also describe the course of action Supplier intends to follow if it does not receive a timely response from Customer, which may include suspension of the affected Product(s).  Where Customer provides a timely response, Supplier may rely on the response and will not be liable for the inaccuracy of information presented to and approved by Customer.
• Use and Verification.  Customer is responsible for the results of using any Product(s), Listing Data, and Property Data  in its business operations.  Customer understands that successful use of the Product(s) requires, among other things, that Customer submits accurate information to Supplier.  In addition, Customer acknowledges and agrees that it is responsible for verifying that its Authorized Users’ use of the Product(s), the Listing Data, and the Property Data complies with the Terms of the Agreement and any SOW, all applicable laws, and any MLS Licenses (including any MLS Rules incorporated therein).
• Credentials. Supplier may provide credentials to enable Customer to access the API, Listing Data, and Property Data.  Customer is solely responsible for the security, distribution, and use of the API, Listing Data, and Property Data under Customer’s credentials and the selection and implementation of controls to restrict access and use of the API, Listing Data, and Property Data to only Authorized Users in accordance with the terms of this Agreement and any applicable SOW.

• Mutual Warranties. Each Party represents and warrants to the other party that it: (i) 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 the Agreement and any SOW; and (iii) the execution of the Agreement and any SOW by its representative whose signature is set forth in the Agreement or any SOW has been duly authorized by all necessary corporate or organizational action of such Party, and when executed and delivered by both parties, the Agreement or SOW will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
• Additional Supplier Warranties.  Supplier warrants that the API will perform in material conformance with its current Documentation for a period of ninety (90) days after the API is made available by Supplier to Customer.  For the sake of clarity, upon conclusion of the warranty period, Supplier will continue to provide Support Services to Customer in accordance with Section 3(a) of this Agreement.  Supplier further warrants that the Services will be performed in a professional manner consistent with generally accepted industry standards for the Services.  As Customer’s sole remedy for any breach of either warranty in this Section 8(b), if Customer provides notice to Supplier of any documented incidence of non-conformance within thirty (30) days of discovering any such non-conformance, or the date the Customer reasonably should have discovered any such non-conformance, Supplier will use commercially reasonable efforts to correct such non-conformance, provided such non-conformance is not caused by: (A) Customer’s failure to adhere to its obligations under the Agreement, including but not limited to any terms set forth in an SOW, or (B) any product or service not provided by Supplier, its Affiliates, or its Personnel.
• Additional Customer Representations and Warranties. Customer represents and warrants to Supplier that: (i) the information it provides to Supplier or any MLS pursuant to an SOW, including but not limited to the proposed or actual use of the Listing Data for the Permitted Use Case(s), is true, correct, and complete; and (ii) it complies, and will continue to comply, with all applicable laws and regulations, including but not limited to those applicable to the use of the Listing Data and Property Data in connection with this Agreement and any SOW, and (iii) Customer understands the limitations placed upon its use of the Listing Data pursuant to the applicable MLS Licenses (including any MLS Rules incorporated therein) and complies, and will continue to comply, with the requirements of any such MLS Licenses.
• Disclaimers.  EXCEPT FOR THE WARRANTIES PROVIDED IN THIS SECTION 8 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER ACKNOWLEDGES THAT THE PRODUCTS, LISTING DATA, PROPERTY DATA, AND STANDARDIZED DATA ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND SUPPLIER DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, AND COVENANTS, 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: (i) SUPPLIER DOES NOT WARRANT THAT THE PRODUCTS WILL OPERATE UNINTERRUPTED OR ERROR FREE; (ii) NOTWITHSTANDING STATEMENTS TO THE CONTRARY IN ANY DOCUMENTATION OR SUPPLIER MARKETING MATERIALS, SUPPLIER DOES NOT WARRANT THAT THE PRODUCTS, LISTING DATA, PROPERTY DATA, OR STANDARDIZED DATA WILL MEET ALL OF CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, INCLUDING ANY REQUIREMENTS WITH RESPECT TO CUSTOMER’S OBLIGATIONS UNDER APPLICABLE LAWS, REGULATIONS, OR THIRD-PARTY CONTRACTUAL OBLIGATIONS; AND (iii) SUPPLIER DISCLAIMS ALL LIABILITY ARISING FROM CUSTOMER’S USE OF THE LISTING DATA IN ANY WAY THAT IS NOT ALIGNED TO THE PERMITTED USE CASE(S) THAT ARE APPROVED BY AN MLS.  SUPPLIER PERSONNEL SHALL HAVE NO AUTHORITY TO MAKE ANY REPRESENTATIONS, WARRANTIES, OR COVENANTS ON BEHALF OF SUPPLIER OR ITS AFFILIATES, AND ANY PURPORTED REPRESENTATIONS, WARRANTIES, OR COVENANTS TO THE CONTRARY SET FORTH IN ANY COMMUNICATIONS FROM PERSONNEL SHALL BE NULL AND VOID. NOTHING IN THIS AGREEMENT OR ANY SOW 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 CUSTOMER’S RESPONSIBILITY TO DETERMINE IF THE PRODUCTS, LISTING DATA, AND PROPERTY DATA ARE SUITABLE FOR CUSTOMER’S REQUIREMENTS. NO OTHER TERMS, CONDITIONS, REPRESENTATIONS, WARRANTIES, COVENANTS, OR GUARANTEES, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, WILL FORM A PART OF THE AGREEMENT OR ANY SOW OR HAVE ANY LEGAL EFFECT WHATSOEVER.

• By Supplier. Supplier shall indemnify and hold Customer harmless with respect to any third party claim, demand, suit, proceeding or action (a “Claim”) made against Customer that any Product(s) provided by Supplier infringes any U.S. patent, copyright or other intellectual property right of a third party; provided that Supplier will have no liability for any infringement Claim of any kind to the extent it results from: (i) modifications made other than by Supplier or authorized in writing by Supplier; (ii) combination of the Supplier Product(s) with any other product not provided by Supplier to Customer for such purpose; (iii) failure of Customer to use updated, modified or substitute Supplier Product(s) provided by Supplier to avoid infringement; or (iv) use of the Supplier Product(s) and/or Services by Customer or any Authorized User other than as authorized under this Agreement and the pertinent SOW.  Customer agrees to give Supplier immediate written notice of any threat, warning or notice of any such Claim or action against Customer. Customer further agrees to give Supplier immediate written notice of any Claim or action, where Customer has knowledge of such Claim or action, against any other user of the Supplier Product(s), including without limitation any Authorized User, that could have an adverse impact on Customer’s or Authorized Users’ use of the Supplier Product(s); provided, however, that Supplier shall have no obligation to indemnify any Authorized User.  If in any such suit so defended, all or any part of the Supplier Product(s) or any component thereof is held to constitute an infringement or violation of any other party’s intellectual property rights and its use is enjoined, or if in respect of any Claim of infringement, Supplier deems it advisable to do so, Supplier shall at its sole option take one or more of the following actions at no additional cost to Customer: (a) procure the right to continue the use of the Supplier Product(s) without material interruption for Customer; (b) replace the same with non-infringing materials; (c) modify said Supplier Product(s) so as to be non-infringing; or (d) if, after using commercially reasonable efforts, Supplier is not successful in accomplishing (a), (b) or (c), then Supplier may immediately terminate this Agreement or the pertinent SOW without cost to Supplier by providing written notice to Customer of such termination. The foregoing represents the sole and exclusive remedy of Customer with regard to any infringements or alleged infringements.  If Supplier engages option (d) or if Customer terminates the Agreement or an SOW under this paragraph, Customer is excused from making any further payments under the Agreement. Amounts previously due and owing remain due and payable to Supplier.  The foregoing states supplier’s sole and exclusive liability to the customer, and customer’s sole and exclusive remedy against the supplier, with respect to any third-party claim of infringement or misappropriation of intellectual property rights or proprietary rights.
• By Customer. Customer shall defend, indemnify and hold Supplier and its officers, directors, shareholders, Affiliates and agents harmless with respect to any and all losses, liabilities, demands, costs, or expenses, including reasonable attorneys’ fees and costs, arising out of or relating to any and all Claims (i) alleging facts that would constitute a breach of Customer’s warranties set forth in Section 8; (ii) that results from Customer’s failure to fully and timely deliver true, accurate, and complete documents and materials required under this Agreement or any applicable SOW; and (iii) that results from Customer’s or any Authorized User’s use of any Listing Data or Property Data accessed in connection with this Agreement and any SOW for any reason that is not a permitted under this Agreement or an SOW.
• Procedure. Each party shall give the other party immediate written notice of any written threat, warning, or notice of any such Claim to which the indemnification described herein applies or may apply.  The indemnifying party shall have the sole right to conduct and control the defense of any such Claim and all negotiations for its settlement or compromise, unless otherwise mutually agreed to in writing between the Parties hereto; provided, however, that the indemnifying party shall not settle any Claims without the prior written consent of the indemnified party. The indemnified party shall reasonably cooperate with the indemnifying party, at the indemnifying party’s expense, in the defense or settlement of any Claim.

• SUPPLIER’S ENTIRE LIABILITY UNDER THE AGREEMENT AND ANY SOW IN THE AGGREGATE OR IN ANY WAY RELATED TO THE PRODUCTS, LISTING DATA, OR PROPERTY DATA WILL BE LIMITED SOLELY TO DIRECT DAMAGES IN AN AMOUNT EQUAL TO THE FEES PAID BY CUSTOMER TO SUPPLIER UNDER THE AGREEMENT DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM. IN THE EVENT FEES ARE INVOICED ON A BASIS LESS FREQUENTLY THAN THE FOREGOING PERIOD, SUPPLIER’S LIABILITY SHALL BE LIMITED TO THE PORTION OF FEES ATTRIBUTED TO SUCH TIME PERIOD (FOR EXAMPLE, IF INVOICES ARE ISSUED ANNUALLY, SUPPLIER’S LIABILITY SHALL BE LIMITED TO 3/12 OF SUCH ANNUAL AMOUNT). IN NO EVENT WILL SUPPLIER BE LIABLE FOR: (A) ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THE AGREEMENT OR AN SOW OR IN ANY WAY RELATED TO THE PRODUCTS, LISTING DATA, OR PROPERTY DATA; OR (B) 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 CUSTOMER BY ANY THIRD PARTY OTHER THAN AS SET OUT IN SECTION 9, EVEN IF SUPPLIER 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 SOWS, AND ANY OTHER DOCUMENT RELATED TO THE AGREEMENT.  THE PARTIES AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY SET FORTH IN THIS SECTION OF THE AGREEMENT WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.  THE FOREGOING LIMITATIONS OF LIABILITY ALLOCATE THE RISKS BETWEEN SUPPLIER AND CUSTOMER AND FORM A MATERIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.  CUSTOMER MUST FILE ANY CLAIM AGANST SUPPLIER WITHIN ONE (1) YEAR OF THE DATE IT KNEW OR SHOULD HAVE KNOWN OF THE BASIS FOR ANY SUCH CLAIM OR CUSTOMER WAIVES ITS RIGHT TO BRING SUCH A CLAIM.  SUPPLIER’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
• CUSTOMER IS NOT AUTHORIZED TO AND SHALL NOT MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT THE PRODUCT(S), LISTING DATA, OR PROPERTY DATA TO ITS AUTHORIZED USERS OR ANY THIRD PARTY AND SHALL DEFEND, INDEMNIFY AND HOLD SUPPLIER HARMLESS FROM AND AGAINST ANY ACTIONS, CLAIMS, DEMANDS, LIABILITIES, LOSSES, COSTS, EXPENSES, REASONABLE ATTORNEY’S FEES OR ANY OTHER AMOUNT SUPPLIER MAY INCUR ARISING FROM OR RELATED TO SUCH A REPRESENTATION OR WARRANTY.

• Nondisclosure Obligations

• • 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; or (C) from the relevant circumstances should reasonably be known by recipient to be confidential (e.g. pricing, non-public Personal Information, Products, etc.). Confidential Information does not include any portion of the information that recipient can prove (V) was rightfully known to recipient before receipt from discloser ; (W) was generally known to the public on the date the Agreement takes effect; (X) becomes generally known to the public after the Agreement takes effect, through no fault of recipient; (Y) was received by recipient from a third party without breach of any obligation owed to discloser; or (Z) was independently developed by recipient without breach of the Agreement or an SOW.
  • 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 Supplier and Personal Information provided by either Party, such obligation shall terminate three (3) years after termination or expiration of the Agreement. With respect to Products and Documentation provided by Supplier and Personal Information provided by either Party, such obligation is perpetual.
  • Except as otherwise expressly stated in the Agreement or an SOW, Confidential Information may only be disclosed to the receiving Party’s and its Affiliates’ employees, subcontractors, consultants, agents, and other service providers 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 or an SOW, 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. 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 11.  Supplier may also disclose Customer’s Confidential Information to an MLS or licensor of any Property Data to the extent necessary to facilitate Customer’s relationship with that MLS or receipt of the Listing Data or Property Data.
  • It shall not be a breach of this Section 11(a) 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.
  • The Parties recognize and agree that monetary damages are an inadequate remedy for breach of the obligations set forth in this Section 11(a) 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.
  • Except to the extent that the continued use of a Party’s Confidential Information is necessary for the other Party to exercise rights granted under the Agreement that are intended to survive the Agreement, 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 permitted 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 11 for as long it retains such Confidential Information.  Supplier has no obligation to Customer to retain Customer Data for more than thirty (30) days beyond the expiration or termination of the Agreement or any given SOW.

• Privacy Obligations

• • Customer Responsibilities. Customer will comply with all applicable anti-spam and data privacy laws and shall secure all rights as necessary for it to meet its obligations under the Agreement and any SOW.
  • Supplier Responsibilities. Supplier will comply with all applicable anti-spam and privacy laws as necessary for it to meet its obligations under the Agreement and any SOW. Supplier’s Privacy Policy, located at privacy policy, describes the extent to which Supplier may collect, use, share, or otherwise process that Personal Information, and further provides any opt-out mechanisms available to Customer’s Personnel, Authorized Users, and other Authorized Users.  Customer hereby acknowledges that it has read Supplier’s Privacy Policy and gives its consent for Supplier to collect, use, share, or otherwise process any such Personal Information in accordance with Supplier’s Privacy Policy.  Supplier’s Privacy Policy may also contain links to additional data privacy and security terms, such as those contained in a Data Processing Agreement or a Business Associate Agreement (the “Privacy Agreements”), in which case those Privacy Agreements are hereby incorporated into the Agreement by this reference.  The Privacy Agreements shall apply to the extent that Supplier processes any data that is governed by the requisite Privacy Agreements, as determined in accordance with the terms of the Privacy Agreements. Supplier’s Privacy Policy and the Privacy Agreements may be updated by Supplier at any time as necessary to comply with changes to applicable law or by providing notice to Customer of such updates

12. DISPUTE RESOLUTION. Upon any dispute controversy, or claim between the parties, except for any of the foregoing which arise from Customer’s failure to pay Fees, 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 under the Delaware Rapid Arbitration Act and Delaware Rapid Arbitration Rules whenever possible; otherwise, the Delaware Uniform Arbitration Act and Commercial Arbitration Rules of the American Arbitration Association, by a single arbitrator independent of both parties who is skilled in the legal and business aspects of the software industry.  Notwithstanding the foregoing, the Delaware Uniform Arbitration Act may supplant the Delaware Rapid Arbitration Act in the event that (a) the Delaware Rapid Arbitration Act is not available to the Parties, (b) the subject matter of the dispute includes allegations that Customer has infringed, or has permitted others to infringe, Supplier’s IP Rights, or (c) the amount in dispute is greater than or equal to one million dollars ($1,000,000).  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.  Any award by an arbitrator pursuant to arbitration, whether for costs, expenses, damages, or otherwise, is final and may be entered in and enforceable by the court having jurisdiction over the Agreement, as set forth in Section 13(h).  The arbitration shall be conducted in the English language and shall take place in Wilmington Delaware.  Nothing in this Section 12 shall limit the ability of a Party to seek injunctive relief.

13. MISCELLANEOUS.

• Export Compliance. The Products, and derivatives thereof, may be subject to export laws and regulations. Customer 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. Customer 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 Customer is in breach of this Section 13(a), whether such a breach arises from current or future restrictions, prohibitions, or embargos, Supplier shall have the right to suspend or terminate this Agreement or any SOW immediately upon notice to Customer.
• Anti-Corruption. Customer represents to Supplier that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Supplier’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 Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Supplier.
• Subcontractors. Supplier reserves the right to make use of subcontractors to provide or develop any of the Products and to use such means as Supplier, in its sole discretion, considers appropriate. Supplier’s use of subcontractors shall not relieve Supplier of its obligations under the Agreement.
• Notices.  All notices required or permitted hereunder will be in writing and will be deemed to have been properly given 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 below; or (iii) when delivered by electronic mail to the applicable Party at the email address set forth below with read receipt notification; except for notices of material breach of the Agreement or an SOW, 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 13(d).
  If to Supplier:
  Constellation Data Labs Inc.
  11350 McCormick Road, EP III, Suite 200
  Hunt Valley, MD 21031
  legal@cdatalabs.com

   

  If to Customer:
  To the mailing address or email address shown on the most recent SOW or invoice, or if the SOW or invoice does not contain such information, the last known mailing address or email address for Customer known to Supplier.
• Waiver. The waiver by either Party of any breach of any provision hereof by the other Party shall not be construed to be either a waiver of any succeeding breach of any such provision or a waiver of the provision itself. No waiver of any provision of this Agreement or any SOW shall be effective unless made in writing and signed by the waiving Party.
• Construction.  The language used in this Agreement and any SOW shall be deemed to be language chosen by both parties hereto to express their mutual intent, and no rule of strict construction against either Party shall apply to any term or condition of this Agreement or any SOW. It is expressly understood and agreed that in the event any remedy under this Agreement is determined to have failed of its essential purpose, all limitations of liability and exclusions of damages or other remedies shall remain in effect.

• Non-Assignment.  Due to restrictions in the applicable MLS Licenses, Customer may not assign, transfer or sublicense this Agreement, any SOW, or any of its rights, interests or benefits granted hereunder or any obligations assumed hereunder without the prior written consent of Supplier.  Any assignment, transfer or sublicense in violation of this section shall be null and void.  If Supplier assigns, transfers, or sublicenses this Agreement, SOW, or any of its rights, interests, or benefits, Supplier must notify Customer in writing. Subject to the foregoing, this Agreement and all SOWs are binding upon and shall inure the benefit of the parties and their successors and assigns.
• Governing Law and Jurisdiction.  This Agreement and any SOW shall be construed in accordance with and governed for all purposes by the internal laws of the State of Delaware, and any action to enforce an arbitration award under Section 12(a), any action for non-payment described in Section 12(b) or any injunctive relief sought shall be brought only in (a) The United States District Court for the District of Delaware (to the extent it has subject matter jurisdiction), or (b) the Delaware Court of Chancery, and each of the parties consents to the exclusive jurisdiction of such courts.
• Entire Agreement.  The Agreement, together with any exhibits, addenda, Purchase Orders or SOWs made in accordance with 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 and any SOW, 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 or an SOW. The Agreement and any SOW will prevail over terms and conditions of any Customer-issued purchase order, which will have no force and effect, even if Supplier accepts or does not otherwise reject the purchase order.  In the event of conflict between these this Agreement or an SOW, the terms of the SOW shall control, but only as to that SOW.  In the event of a conflict between the Privacy Agreements and any other component of the Agreement, the Privacy Agreements shall control.  If any provision contained in this Agreement, an SOW, 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.
• Executed in Counterparts.  This Agreement and any SOW may be executed in counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same document.
• Electronic Signatures. The Parties acknowledge and agree that this Agreement and any SOW may be executed by electronic signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature. Without limitation, “electronic signature” shall include faxed versions of an original signature or electronically scanned and transmitted versions (e.g., via pdf) of an original signature.
• Remedies Cumulative.  Unless otherwise provided for under this Agreement or an SOW, all rights of termination or cancellation, or other remedies set forth in this Agreement and any SOW, are cumulative and are not intended to be exclusive of other remedies to which the injured Party may be entitled by law or equity in case of any breach or threatened breach by the other Party of any provision in this Agreement or an SOW.  Use of one or more remedies shall not bar use of any other remedy for the purpose of enforcing any provision of this Agreement or any SOW.
• Amendments.  This Agreement and any SOW may be amended from time to time; provided, however, that such amendments may be made only by subsequent agreement in writing and signed by both Parties.  It is further agreed that a response to a request for amendment will be tendered to the requesting Party within thirty (30) days.
• No Third-Party Beneficiaries.  The parties agree that this Agreement and any SOW is for the benefit of the parties hereto and is not intended to confer any legal rights or benefits on any third party, including any Authorized User, and that there are no third party beneficiaries to this Agreement, SOW, or any part or specific provision thereof.
• Severability.  If any provision of this Agreement or SOW is held to be invalid or unenforceable, then both parties shall be relieved of all obligations arising under such provision, but only to the extent that such provision is invalid or unenforceable, and this Agreement and any applicable SOW shall be deemed amended by modifying such provision to the extent necessary to make it valid and enforceable while preserving its intent or, if that is not possible, by substituting another provision that is valid and enforceable and achieves the same objective and economic result.  If such invalid or unenforceable provision does not relate to the payments to be made to Supplier, and if the remainder of this Agreement or SOW is capable of substantial performance, then the remainder of this Agreement or applicable SOW shall be enforced to the extent permitted by law. It is expressly understood and agreed that each provision of this Agreement and any SOW that provides for a limitation of liability, disclaimer of warranties, indemnification or exclusion of damages or other remedies is intended to be severable and independent of any other provision and to be enforced as such.
• Press Releases.  Customer agrees that Supplier may publish a press release, public announcement, news media response or other form of release of information concerning this Agreement, any SOW, or the transactions contemplated hereby that is intended to provide such information to the news media or the public (a “Press Release”) announcing the nature of this relationship between the parties within ninety (90) days of the Effective Date or at Supplier’s sole discretion during the SOW Term.  Supplier shall give Customer notice of the contents of such Press Release and Customer will review and provide comments, if any, within five (5) business days. In the event Customer does not approve the Press Release, such approval not to be unreasonably withheld, Customer and Supplier will draft a press release acceptable to both parties within a further (5) business days.  In the absence of any comments or upon the incorporation of such comments, as applicable, Supplier may publish such Press Release.  Additionally, the Customer agrees that Supplier may include the Customer in its customer lists and publications. Subject to the parties’ confidentiality obligations under this Agreement and any SOW, this paragraph does not prohibit Customer from communicating nonconfidential information about the Agreement and any SOW.
• Non-Solicitation. During the SOW Term of this Agreement and for twelve months after any termination of this Agreement, Customer will not, without the prior written consent of Supplier, either directly or indirectly, on behalf or in the service or on behalf of others, solicit or attempt to solicit, divert or hire away any person employed by Supplier. The restrictions in this section shall not apply to individuals that respond to general employment advertisements.
• Force Majeure. Neither Party will be liable for any delay or failure to perform its obligations under the Agreement or an SOW 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.
• Survival.  The rights and obligations of the parties which by their nature must survive termination or expiration of this Agreement in order to achieve its fundamental purposes including, without limitation, the provisions of Sections 6 (Intellectual Property), 9 (Indemnification), 10 (Limitation of Liability), 11 (Confidentiality), 12 (Dispute Resolution) and 13 (Miscellaneous), shall survive any termination or expiration of this Agreement.
• Audit. Supplier may, no more frequently than annually, audit Customer’s use of the Products (e.g., through use of software tools or otherwise) to assess whether Customer’s use of the Products is in accordance with the terms of the Agreement and any SOW. Customer agrees to cooperate with Supplier’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Customer’s normal business operations. Customer agrees to pay, within thirty (30) days of written notification to Customer, any fees applicable to Customer’s use of the Products in excess of the applicable Usage Metrics. Supplier shall bear all costs of the audit, except for any of Customer’s costs incurred in cooperating with the audit.
• Independent Contractors.  The relationship of the Parties established by the Agreement and any SOW is that of independent contractors.  The Agreement and any SOW does not establish an agency, joint venture or partnership relationship between Supplier and Customer. Supplier and its Personnel, and other entities which represent Supplier, are acting as independent contractors and not as employees or agents of Customer. Nothing in the Agreement or any SOW will be construed to permit either Party to bind the other or to enter into obligations on behalf of the other Party.