User Licensing Agreement
END USER LICENSE AGREEMENT
By using this product and any related websites, materials and/or services (along with the product to which this End User License Agreement is attached, collectively, the “Services”) provided to you by Realcore Applications, Inc. (“Realcore”), you hereby accept and agree to be bound by the terms and conditions of this End User License Agreement (these “Terms”). IF YOU DO NOT ACCEPT AND AGREE TO THESE TERMS YOU MUST CHOOSE [DECLINE] AND IMMEDIATELY CEASE ALL USE OF THE SERVICES.
In addition to these Terms, your access to and use of the Services is subject to the terms and conditions of a related Realcore Applications License Agreement Subscription Form (a “Subscription”). If you are using and/or accessing the Services for your own benefit, you must enter into a Subscription directly with Realcore. If you are using and/or accessing the Services for the benefit of and/or on behalf of any company, business, firm or other entry that has entered into a Subscription with Realcore (your “Firm”), you expressly represent, acknowledge and agree that (a) you have the authority to enter into these Terms on behalf of your Firm and to bind your Firm to these Terms, (b) you have been provided with the Subscription by your Firm and are familiar with the terms and conditions included therein and (c) these Terms, along with the terms and the conditions of the applicable Subscription, shall apply both to your use of the Services as an individual user of such Services and to your Firm by virtue of your relationship with such Firm. IF YOU DO NOT HAVE THE AUTHORITY SET FORTH ABOVE YOU MUST CHOOSE [DECLINE] AND IMMEDIATELY CEASE ALL USE OF THE SERVICES.
Whether you are using and/or accessing these Terms directly or for the benefit of and/or on behalf of your Firm, you expressly acknowledge and agree that these Terms, along with the terms and the conditions of the applicable Subscription, shall govern at all times your use and/or access of the Services. In the event of any conflict between these Terms and the Subscription, the terms and conditions of the Subscription shall control. Capitalized terms used in these Terms and not otherwise defined shall have the meaning given such terms in the applicable Subscription.
Realcore reserves the right, in its sole discretion and without prior notice to you and/or to your Firm, to revise, modify, suspend and/or cancel the Services in whole or in part from time to time, including in connection with the introduction or removal of additional features. In addition, Realcore may revise or amend these Terms from time to time, in its discretion, by providing written notice to you, and you acknowledge and agree that your continued use of the Services following such notification shall represent and constitute your acceptance of such revised or amended End User License Agreement.
BY CONTINUING TO USE THE SERVICES WEBSITE AND BY CHECKING THE “[I HAVE READ AND AGREE TO BE BOUND BY THESE TERMS]” BOX AND CLICKING [“CONTINUE”] AS PART OF THE REGISTRATION CONFIRMATION PROCESS PRIOR TO COMMENCING YOUR USE OF THE SERVICES , AND BY CONTINUING TO ACCESS AND USE THE SERVICES AFTER THE DATE THEREOF, YOU REPRESENT THAT YOU ARE CAPABLE OF FORMING A LEGALLY BINDING CONTRACT WITH REALCORE, INCLUDING THAT YOU ARE PERMITTED TO RECEIVE THE SERVICES BY THE LAWS OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION, AND YOU EXPRESSLY AGREE AND CONSENT TO BE BOUND BY, AND EVIDENCE YOUR UNDERSTANDING OF THESE TERMS, INCLUDING AS THEY MAY BE MODIFIED OR REVISED FROM TIME TO TIME AS DESCRIBED HEREIN.
IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST CHOOSE [DECLINE] AND IMMEDIATELY CEASE ALL USE OF THE SERVICES. YOU ARE ENCOURAGED TO PRINT AND TO READ THESE TERMS CAREFULLY AND TO CONTACT REALCORE AND/OR YOUR FIRM, IF APPLICABLE, WITH ANY QUESTIONS THAT YOU MAY HAVE BEFORE COMMENCING YOUR USE OF THE SERVICES.
1. Use. (a) By using the Services and agreeing to these Terms, you represent and warrant that you are an Authorized User as described in the applicable Subscription, and that you shall immediately cease your access and use of the Services if at any time you are no longer an Authorized User. (b) For so long as you remain an Authorized User, you may access and use the Licensed Product solely for the following purposes in the ordinary course of its business (in each case either solely for yourself, if you have entered into a Subscription directly with Realcore, or for the benefit of your Firm if your use of the Services is in connection with your status as an Authorized User of such Firm): (1) internal research and evaluation purposes; (2) individual and firm production forecasting; (3) financial and metric reporting; (4) managing company databases and proprietary information including electronic files; (5) general accounting purposes; (6) management to track production; and (7) creating reports for in-house use or for Licensee Clients’ or prospective Licensee Clients’ use. (c) Subject to the provisions set forth below, you may print Information or copy Information into word processing, spreadsheet and presentation programs (or other software programs with the express written consent of Realcore). Notwithstanding the foregoing, you shall not: (1) upload, post or otherwise transmit any screen shots of the Licensed Product to non-licensees or provide access to all or any portion of the Licensed Product through the Internet, any bulletin board system, electronic network, listing service, service bureau, batch processing, remote computing or other time- or data-sharing arrangement not restricted exclusively to you or to your Firm and its Authorized Users, as applicable, or otherwise rent, distribute, license, sublicense, lease, assign or transfer the Licensed Product except as expressly permitted herein; (2) use any portion of the Licensed Product to create, directly or indirectly, any external database or product, including creating any derivative works based on the Licensed Product; (3) access or use the Licensed Product if you or, if applicable, your Firm is a direct or indirect competitor of Realcore or provide any portion of the Licensed Product to any direct or indirect competitor of Realcore; (4) store, copy or export any portion of the Licensed Product or screen shot into any database or other software program, except as set forth in this Section; (5) modify, merge, disassemble, decompile or reverse engineer any portion of the Licensed Product or otherwise derive or attempt to derive the source code, source files or any component or structure of all or any portion of the Licensed Product; (6) use or distribute Information that has been verified or confirmed by you for the purpose of developing or contributing to the development of any external database, product or service; or (7) use any portion of the Licensed Product in a manner that would violate any U.S., international, state or local law, regulation, rule or ordinance, including real estate practice, spam, export and import, consumer protection and privacy laws.
2. Ownership of Licensed Product. You acknowledge that Realcore and its licensors have and shall retain exclusive ownership of all proprietary rights to the Services (including, without limitation, the Licensed Product), including all U.S. and international intellectual property and other rights such as patents, trademarks, copyrights and trade secrets. This is a license agreement and not an agreement for sale. Neither you nor, if applicable, your Firm shall have any right or interest in any portion of the Services (including, without limitation, the Licensed Product) except the right to access and to use the Licensed Product as set forth herein. You acknowledge that the Services (including, without limitation, the Software, Information and Licensed Product) constitute the valuable property and confidential copyrighted information of Realcore and its licensors (collectively, the “Proprietary Information”). You agree to (a) comply with all copyright, trademark, trade secret, patent, contract and other laws necessary to protect all rights in the Proprietary Information, (b) not challenge Realcore’s and its licensor’s ownership of (or the validity or enforceability of their rights in and to) the Proprietary Information, and (c) not remove, conceal, obliterate or circumvent any copyright or other notice or license, use or copying technological measure included in the Services (including, without limitation, in the Licensed Product). You shall be liable for any violation of the provisions of these Terms or any unauthorized use of the Services by you or by any of your Representatives. Without Realcore’s consent, you may not use or reproduce any trademark, service mark or trade name of Realcore or its affiliates (including “Realcore Apps” and “Realcore Applications” and the associated commercial product names).
3. Licensee Data. (a) In connection with your use of the Services (including, without limitation, the Licensed Product), you and/or your Representatives may, from time to time, upload or otherwise provide to Realcore and/or its Representatives certain information, documents, files, materials and/or other data (collectively, the “End User Data”). For the avoidance of doubt, Realcore does not claim ownership of any such End User Data; provided, however, that your use of the Services (including, without limitation, the Licensed Product) is subject to your granting of the license set forth in the following sentence. As a condition to your access to and use of the Services (including, without limitation, the Licensed Product), you hereby grant to Realcore a limited, worldwide, royalty-free, perpetual and irrevocable license, with right to sublicense, to use, reproduce, copy, access, view, modify, edit, perform, display, prepare derivative works of, reformat, translate, distribute and transfer all End User Data and any portion thereof in order to (1) perform its obligations under these Terms and to provide you with access to and use of the Services as described herein and/or in the Subscription; (2) enforce the terms and conditions of these Terms; (3) take any action required or permitted of Realcore pursuant to the Subscription or any other applicable agreement between you and/or your Firm and Realcore; and/or (4) fulfill any other obligation, carry out any other activity or provide any other feature or service reasonably contemplated and/or required of Realcore pursuant to any applicable law or regulation.
(b) You represent, warrant, covenant and agree that, in addition to any restrictions set forth herein, you shall not upload or otherwise provide to Realcore and/or its Representatives, or use in connection with the Services, any End User Data (1) to which you do not have right or license required in connection with such use; (2) in violation of any fiduciary duty, any contractual duty to a third party, any proprietary or intellectual property right of any third party or any applicable law or regulation; (3) that contains viruses, malicious code, corrupted files, “Trojan Horses,” or any other contaminating, destructive or disruptive feature; and/or (4) in violation of any term or condition of these Terms. For the avoidance of doubt, “End User Data” shall not include any Information or other data, analyses, reports, files, materials and/or other information provided or made available by Realcore or any Realcore Party in connection with the Services (including, without limitation, the Licensed Product), including in connection or in conjunction with any End User Data and all of the foregoing shall remain the sole and exclusive property of Realcore or its licensees, as applicable.
(c) For the avoidance of doubt, any comments, feedback, ideas and/or reports about the Services (including, without limitation, the Licensed Product) that is provided to Realcore by you or on your behalf, whether in written, electronic or any other form, shall not constitute End User Data and shall be the sole and exclusive property of Realcore, and you hereby automatically assign and transfer any rights you may have therein to Realcore.
4. Term and Termination. These Terms shall govern your access to and use of the Services at all times; provided, however, that you acknowledge and agree that in the event that (a) the applicable Subscription terminates and you or your Firm, as applicable, is not a party to any other current subscription agreement; (b) you cease to be an Authorized User; (c) you breach any term or condition of these Terms, including the applicable Subscription; or (d) as otherwise set forth in these Terms, the applicable Subscription or any other agreement between you and Realcore, Realcore shall have the right to immediately and without notice to you suspend and/or terminate your ability to access and/or use the Services and you shall immediately cease all access and/or use of such Services.
5. LIMITATION ON LIABILITY. (a) YOU ACKNOWLEDGE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, REALCORE AND THE REALCORE PARTIES SHALL NOT BE LIABLE FOR ANY LOSS, COST OR DAMAGE SUFFERED OR INCURRED BY YOU, YOUR REPRESENTATIVES OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO ANY FAULTS, INTERRUPTIONS OR DELAYS IN THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE LICENSED PRODUCT), OUT OF ANY INACCURACIES, ERRORS OR OMISSIONS IN THE INFORMATION OR OTHER REALCORE DATA CONTAINED IN OR PROVIDED IN CONNECTION WITH THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE LICENSED PRODUCT), REGARDLESS OF HOW SUCH FAULTS, INTERRUPTIONS, DELAYS, INACCURACIES, ERRORS OR OMISSIONS ARISE, OR FOR ANY UNAUTHORIZED USE OF THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE LICENSED PRODUCT AND ANY INFORMATION CONTAINED THEREIN). (b) THE REALCORE PARTIES’ AGGREGATE, CUMULATIVE LIABILITY RELATING TO THESE TERMS, IF ANY, SHALL BE AS SET FORTH IN THE APPLICABLE SUBSCRIPTION. (c) NOTWITHSTANDING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL ANY OF THE REALCORE PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, ARISING OUT OF, BASED ON, RESULTING FROM OR IN CONNECTION WITH THESE TERMS OR ANY USE OF THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE LICENSED PRODUCT), EVEN IF REALCORE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. (d) NO ACTION ARISING OUT OF OR PERTAINING TO THESE TERMS MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ARISEN. (e) THE PROVISIONS OF THIS SECTION APPLY WITHOUT REGARD TO THE CAUSE OR FORM OF ACTION, WHETHER THE DAMAGES ARE GROUNDED IN CONTRACT, TORT OR ANY OTHER CAUSE OF ACTION.
6. NO WARRANTIES. ALTHOUGH REALCORE MAKES EFFORTS TO PROVIDE AN ACCURATE PRODUCT, THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE LICENSED PRODUCT) AND ALL PARTS THEREOF (INCLUDING ALL INFORMATION OR OTHER REALCORE DATA) ARE PROVIDED ‘AS IS’, ‘WITH ALL FAULTS’, AND ‘AS AVAILABLE’. THE REALCORE PARTIES MAKE NO WARRANTIES WITH RESPECT TO THE SERVICES OR OTHERWISE IN CONNECTION WITH THESE TERMS. THE REALCORE PARTIES DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION (a) MERCHANTABILITY, FITNESS FOR ORDINARY PURPOSES AND FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, WORKMANLIKE EFFORT, QUIET ENJOYMENT AND NO ENCUMBRANCES OR LIENS, (b) THE QUALITY, ACCURACY, EFFICACY, TIMELINESS OR COMPLETENESS OF THE SERVICES, INCLUDING THE LICENSED PRODUCT AND ANY REALCORE DATA, (c) THOSE ARISING THROUGH COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, (d) THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE LICENSED PRODUCT) CONFORMING TO ANY FUNCTION, DEMONSTRATION OR PROMISE BY ANY REALCORE PARTY, AND (e) THAT ACCESS TO OR USE OF THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE LICENSED PRODUCT) WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
7. Passcodes. As set forth in the Subscription, you may be provided with certain Passcodes necessary to access and/or to use the Services. You may not access and/or use the Services (including, without limitation, the Licensed Product) using any Passcode other than the Passcodes assigned to you. You may not share your assigned Passcodes with any other person nor allow any other person to use or have access to your Passcodes. In the event you cease to be an Authorized User, you must immediately cease all use of such Passcodes.
8. Force Majeure. Realcore shall not have any liability for any damages resulting from any failure to perform any obligation hereunder or from any delay in the performance thereof due to causes beyond Realcore’s reasonable control (each a “Force Majeure Event”), including, without limitation, industrial disputes, acts of God or government, public enemy, war, fire, flood, earthquake, civil unrest, acts of terror, other casualty, strikes or labor issues, failure, delay or malfunction of any link or connection whether by computer or otherwise (including of any Internet service provider or as the result of any network intrusion or denial of service attack), or failure, delay or malfunction of technology (including hardware, software or power systems) or telecommunications or other method or medium of storing, transmitting or otherwise enabling access to and/or use of the Services.
9. Notices. For contractual purposes, and as a necessary condition to Realcore’s agreeing to provide the Services pursuant to these Terms, you (a) consent to receive Communications (as defined below) from Realcore in an electronic form; and (b) agree that all terms and conditions, agreements, notices, documents, disclosures and other communications (“Communications”) that Realcore provides electronically to you satisfy any legal requirement that such Communications would satisfy if they were delivered in writing and otherwise in compliance with the terms and conditions of applicable law and shall have the same meaning, force and effect as if delivered and/or executed by hand, and all of the laws to which a hand executed agreement are subject will govern such Communications.
10. Choice of Law; Jurisdiction; International Arbitration. These Terms shall be construed under the laws of the State of North Carolina of the U.S. without regard to choice of law principles. The federal and state courts located in the State of North Carolina shall be the exclusive jurisdiction for any action brought against Realcore in connection with these Terms or the use of the Services. You irrevocably consent to the jurisdiction of the federal and state courts located in the State of North Carolina for any action brought against you in connection with these Terms or your use of the Services.
11. Assignment. The parties’ obligations hereunder are binding on their successors, legal representatives and assigns. You may not assign or transfer (by operation of law or otherwise) these Terms nor the license granted hereunder, in whole or in part, without the prior written consent of Realcore. Any attempted assignment or transfer in violation of this provision shall be void.
12. User Information. You acknowledge that if you create any settings, surveys, fields or functions in connection with your use of the Services (including, without limitation, the Licensed Product) or input, add or export any settings into or from the Services (collectively, the “User Settings”), Realcore shall not have any liability or responsibility for the retention or the return of any of such User Settings, including the loss, destruction or use by third parties of such User Settings, and such User Settings shall not constitute End User Data and you acknowledges that it is your responsibility to make back-up copies of such User Settings.
13. Miscellaneous. These Terms, along with the Subscription and any other agreement explicitly incorporated by reference herein or therein, contains the entire understanding of the parties with respect to the Services and supersedes any prior oral or written statements and documents with respect to such subject matter; provided, however, (a) that these Terms do not supersede any other written license agreement between the parties unless expressly provided herein and (b) in the event of any conflict between these Terms and the Subscription, the terms and conditions of the Subscription shall control. These Terms may not be amended, modified or superseded, nor may any of its terms or conditions be waived, unless expressly agreed to in writing by all parties. If any provision of these Terms not being of a fundamental nature is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remainder of these Terms will not be affected. If a provision is held to be invalid, illegal or otherwise unenforceable, it shall be deemed to be replaced with an enforceable provision that retains the intent and benefits of the original provision. You acknowledge that in the event of a breach of any of these terms by you or your Representative, Realcore may suffer irreparable harm and shall be entitled to injunctive relief (without the necessity of posting a bond) as well as all other monetary remedies available at law or in equity. The failure of any party at any time to require full performance of any provision hereof will in no manner affect the right of such party at a later time to enforce the same. Headings are for reference only. These Terms do not grant any rights or remedies to any person or entity that is not a party to these Terms. No person or entity is a third party beneficiary of these Terms. If Realcore retains any third party to obtain any remedy to which it is entitled under these Terms, Realcore shall be entitled to recover all costs, including attorney’s fees and collection agency commissions, Realcore incurs. It is expressly agreed that the parties hereto shall be independent contractors and that the relationship between the parties shall not constitute a partnership, joint venture or agency. No party shall have the authority to make any statements, representations or commitments of any kind, or to take any action, which shall be binding on any other party, without the prior written consent of such other party.
