ACEABLEAGENT BROKER-AGENT MATCH PROGRAM
LICENSED DATA TERMS AND CONDITIONS
These AceableAgent Broker-Agent Match Program Licensed Data Terms and Conditions (these “Terms”) together with any order form or online order that you sign or submit (an “Order”) and any addenda to either of them (collectively, the “Agreement”) are effective as of the Effective Date (defined below) between you (“you” or “Broker”) and Aceable, Inc. dba AceableAgent, with its headquarters at 610 West 5th Street, Suite 603, Austin, TX 78701 (“AceableAgent”). Broker and AceableAgent are sometimes referred to collectively as the “parties” and each, a “party.”
BY PURCHASING, ACCESSING, DOWNLOADING AND/OR USING ACEABLEAGENT’S BROKER-AGENT MATCHING PROGRAM DATA (HEREAFTER REFERRED TO AS THE “LICENSED DATA”), BROKER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THE AGREEMENT. IF YOU DO NOT HAVE THE AUTHORITY TO BIND BROKER, YOU MUST NOT PURCHASE, ACCESS, DOWNLOAD AND/OR USE THE LICENSED DATA.
Scope. The Agreement governs the terms and conditions under which you may purchase, access, download, and use the Licensed Data, which includes the names and contact information of pre-licensed real estate agent trainees (“Potential Agent(s)”) who enrolled in AceableAgent’s Broker-Agent Match Program indicating that they would like to be contacted by brokers for possible employment opportunities.
Licensed Data. Subject to the terms and conditions of the Agreement and Broker’s payment of all the license fee(s) (the “Fees”), AceableAgent will send Broker the most recent monthly list of Potential Agents enrolled in AceableAgent’s Broker-Agent Match Program. Notwithstanding anything to the contrary in the Agreement, AceableAgent reserves the right not to fulfill any Order. AceableAgent may, in its sole discretion, cancel an Order prior to fulfillment and Broker will be entitled to receive a full refund of the Fees for such Order.
License. Subject to the terms and conditions of the Agreement and Broker’s payment of all Fees, AceableAgent hereby grants to Broker, during the Term (as defined below), a worldwide, non-exclusive, non-transferable, non-assignable, non-sublicensable right to access, download, and use the Licensed Data solely for internal business purposes and to contact the Potential Agents listed therein by phone, email, or direct mail to solicit such Potential Agents for hire. The foregoing license does not include any rights to, and Broker will not, with respect to any Licensed Data (or any portion thereof): (a) further use or disclose the Licensed Data or any information contained therein other than as expressly permitted by this Agreement or required by law, (b) create derivative works of the Licensed Data without AceableAgent’s permission; (c) sell, sublicense, distribute, or otherwise transfer the Licensed Data to any third party; (d) allow third parties to access or use the Licensed Data (except as expressly permitted herein); (e) create public Internet “links” to the Licensed Data or “frame” or “mirror” Licensed Data on any other server or wireless or Internet-based device; (f) remove or alter any notice of proprietary right appearing on Licensed Data; or (g) cause, encourage or assist any third party to do any of the foregoing. Broker agrees to use the Licensed Data in accordance with all applicable laws, rules and regulations (“applicable law(s)”). Broker shall promptly notify AceableAgent of any unauthorized use or disclosure of the Licensed Data of which Broker becomes aware. Broker shall all mitigate any harmful effect caused by Broker’s unauthorized use or disclosure of the Licensed Data in violation of this Agreement.
Intellectual Property. Broker acknowledges and agrees that the Licensed Data is and shall remain the property of AceableAgent and that no ownership rights are conveyed to Broker through the Agreement. Broker will take no action to infringe on the rights of AceableAgent therein. Nothing in the Agreement grants to either party any right, title, or interest in or to the other party’s trademarks, trade names, service marks, name and logos (“Trademarks”), and any and all goodwill associated with a party’s Trademarks shall inure directly to the benefit of such party. At no time will Broker challenge or assist others to challenge the Trademarks of AceableAgent or its affiliates or the registration thereof or attempt to register any Trademarks that are confusingly similar to those of AceableAgent or its affiliates.
Payment. The applicable pricing and payment schedule for the Licensed Data are listed at the AceableAgent Partner Store (unless you enter into a separate Order or other written agreement with AceableAgent). Fees are non-refundable except as expressly stated in other parts of the Agreement. Unless we agree otherwise in an Order or other written agreement, all Fees are due and payable in advance in U.S. dollars. The Fees do not include sales, excise, use, VAT, or similar taxes (“Sales Tax”). Broker represents to AceableAgent that its address for Sales Tax purposes is the address provided by Broker to AceableAgent in writing at the time of sale, in the Order, or a different address that Broker has certified as the correct address in a written statement provided to AceableAgent. Broker shall pay AceableAgent’s invoices for applicable Sales Tax on the payment terms applicable to the Fees, or shall provide evidence of a Sales Tax exemption or direct payment in a form reasonably acceptable to AceableAgent. Broker acknowledges that the laws applicable to Sales Tax for data such as the Licensed Data are evolving and are subject to different interpretations. Broker agrees that AceableAgent’s reasonable interpretation of the laws applicable to Sales Tax shall control. If Broker does not pay Fees on time, AceableAgent may (at its option and in addition to other remedies) charge a late fee on the unpaid balance at the lesser of one and one-half percent (1.5%) per month or the maximum lawful rate permitted by applicable law, rounded to the next highest whole month and compounded monthly. Broker will be responsible for any costs of collection efforts, including reasonable attorneys’ fees and court costs.
Term and Termination.
Term. The initial term of Broker’s license to use the Licensed Data will commence on the date that Broker first purchases, accesses, downloads or uses the Licensed Data (the “Effective Date”) and shall continue for 1 year thereafter (the “Initial Term”), automatically renewing for successive one (1) year terms (each, a “Renewal Term” and together with the Initial Term, the “Term”) unless either party provides written notice of nonrenewal to the other party at least ninety (90) days before the end of the then-current term, or unless the Agreement is otherwise terminated in accordance with its terms.
Termination for Cause. If either party is in breach of the Agreement and fails to cure such breach within thirty (30) days of receiving written notice from other party specifying the breach and requesting its cure, the non-breaching party may terminate the Agreement by providing the breaching party with written notice of such termination on or after the expiration of the thirty (30) day cure period.
Termination for Convenience. Either party may terminate the Agreement for convenience by providing the other party with ninety (90) days’ prior written notice; provided that, if AceableAgent terminates the Agreement for convenience during the Initial Term of the Agreement, Broker shall be entitled to receive a pro-rata refund of the Fees for the remainder of the Initial Term measured from the date of termination.
Effect of Termination. Upon any expiration or termination of the Agreement for any reason, (a) all rights and licenses granted to Broker under the Agreement will immediately cease, (ii) Broker will make no further use of the Licensed Data and will immediately destroy or permanently erase all copies of the Licensed Data under Broker’s control, and (iii) neither party shall have continuing rights to the other party’s Confidential Information. Termination of this Agreement is not an exclusive remedy and the exercise of either party of any remedy under the Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
No Warranties. NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, THE LICENSED DATA IS PROVIDED “AS IS” WITHOUT ANY INDEMNIFICATION, TECHNICAL SUPPORT, OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. ACEABLEAGENT MAKES NO WARRANTIES AND HEREBY DISCLAIMS, ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, OR ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE, WITH RESPECT TO ANY LICENSED DATA OR OTHER INFORMATION THAT MAY BE PURCHASED, ACCESSED, DOWNLOADED OR USED.
Representations. Each party represents and warrants that it is a legal entity duly organized and in good standing and has full authority to enter into the Agreement and to perform its obligations thereunder. Additionally, Broker represents and warrants that it will: (a) comply with all applicable law, including data privacy and security laws, laws related to hiring and employment practices, and laws related to use of the Licensed Data; (b) use appropriate administrative, technical, and physical safeguards to prevent any unauthorized use or disclosure of the Licensed Data; (c) immediately discontinue contact with any Potential Agent that opts out of further communication with Broker; and (d) not use the information contained in the Licensed Data to identify or contact Potential Agents other than expressly permitted herein.
Indemnification. Broker will indemnify, defend, and hold harmless AceableAgent and its officers, directors, employees, agents, affiliates and contractors from and against any and all claims, liabilities, damages, losses, expenses, demands, suits and judgments, including without limitation reasonable attorneys’ fees and costs (collectively referred to as “Losses”) arising from or relating to: (i) its use of the Licensed Data; (ii) the unauthorized use, loss, destruction or access of the Licensed Data, including any personally identifiable data included therein; (iii) any breach of the Agreement; and (iv) any violation of applicable laws by Broker or its officers, directors, employees, agents, affiliates, or contractors.
Limitation of Liability. EXCEPT FOR BREACHES OF SECTION 3 (LICENSE), SECTION 4 (INTELLECTUAL PROPERTY), SECTION 9 (INDEMNIFICATION), AND SECTION 12 (CONFIDENTIAL INFORMATION), IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES OF ANY TYPE OR KIND ARISING OUT OF OR RELATING TO THE AGREEMENT, WHETHER SUCH CLAIMS ARE FORESEEABLE OR UNFORESEEABLE. THE AGGREGATE LIABILITY OF ACEABLEAGENT IN CONNECTION WITH THE AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY BROKER TO ACEABLEAGENT DURING THE 6-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
Injunctive Relief. Each party acknowledges that a breach of Section 3 (License), Section 4 (Intellectual Property), or Section 12 (Confidential Information) of these Terms may cause irreparable injury not compensable with monetary damages and that, in the event of such breach, a party shall be entitled to seek injunctive relief, without bond, from a court of competent jurisdiction.
Confidential Information. The term “Confidential Information” means all information disclosed by a party to the other party, regardless of the form or medium of disclosure, falling within the following categories: (i) information designated as confidential or proprietary by the disclosing party; (ii) information that should reasonably be understood by the receiving party to be confidential given the nature of the information or the circumstances of its disclosure; and (iii) the terms and conditions of the Agreement and all records generated under the Agreement; and shall not include information that: (A) is publicly available through no fault of the party receiving such information; (B) the receiving party received from a third party under no duty of confidentiality; or (C) is independently developed by the receiving party before such information is provided by the disclosing party. During the Term and at all times following the expiration or termination of the Agreement, each party agrees that it will not make use of, disseminate, or in any way disclose any of the other party’s Confidential Information to any other person, firm, or business, except as specifically authorized by the Agreement. Each party will take reasonable security precautions at least as great as the precautions it takes to protect its own confidential information of a similar nature (but in any event no less than reasonable precautions), to keep the Confidential Information confidential. Each party agrees that, if required by law to disclose the Confidential Information of the other party, it will provide prompt written notice of such requirement prior to disclosure and assistance in obtaining an order protecting such information from public disclosure.
General.
Independent Contractor. The parties are independent contractors with respect to the subject matter of the Agreement, and not employees, partners, agents or joint venture partners. Neither party shall make any commitment, by contract or otherwise, binding upon the other or represent that it has any authority to do so. Each party shall be solely responsible for and shall hold the other harmless from any and all claims for employment-related or similar taxes, fees, or costs, including withholding, income tax and workers’ compensation.
Assignment. Neither party may assign its rights and obligations without the written consent of the other, except that AceableAgent may assign the Agreement or its rights and obligations thereunder pursuant to a merger, acquisition, or sale of all or substantially all of its assets. Subject to the foregoing, the Agreement will be binding upon and inure to the benefit of the parties and their successors and assigns.
Notices. All notices under the Agreement will be in writing and sent by email, fax, certified, or registered mail. If sent to AceableAgent, notices shall be sent to 610 West 5th Street, Suite 603, Austin, TX 78701 with a copy to legal@aceable.com. If sent to Broker, notices shall be sent to the legal notice address(es) set forth on the Order.
Governing Law and Venue. The laws of the State of Texas govern the Agreement without giving effect to conflict of laws provisions. Venue and jurisdiction of any lawsuit involving the Agreement exists exclusively in the federal or state courts in Travis County, Texas. The prevailing party in any lawsuit arising from or relating to the Agreement is entitled to seek recovery of its costs, including reasonable attorney fees.
Waiver and Amendment. No failure by either party to insist upon strict performance of any term, covenant, agreement or provision of the Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute a waiver of any such breach or of any such term, covenant, agreement, or provision. No term, covenant, agreement or provision of the Agreement and no breach thereof shall be waived, altered, or modified except by a written instrument executed by the parties.
Survival. Sections 3 (License), Section 4 (Intellectual Property), Section 5 (Payment), Section 6.4 (Effect of Termination), Section 9 (Indemnification), 10 (Limitation on Liability), Section 11 (Injunctive Relief), Section 12 (Confidentiality), this Section 13 (General) and any and all provisions of these Terms which by their nature should, or by their express term do, will survive any termination or expiration of the Agreement.
Entire Agreement; Amendment. The Agreement is the final and complete expression of all agreements between the parties and supersedes all previous oral and written agreements regarding the subject matter of this Agreement. The Agreement may be amended only by a written agreement signed by both parties.
Severability. If any provision of the Agreement is determined to be invalid under any statute or rule or law, then it shall to that extent alone be deemed omitted and the validity of the remaining provisions shall not be affected.