1.1. “Affiliate” means an entity controlling, controlled by or under common control with a party to this Agreement at any time during the term of this Agreement, for so long as such ownership and control exists, provided such entity is not a competitor to RealAtom or in the business of developing and offering products or technologies that are substantially similar to the Services.
1.2. “Customer Data” means: (a) all data in Customer’s databases; and (b) Customer Confidential Information used to provision the Services.
1.3. “Disclosing Party” is defined in Section 7.1 (Confidentiality).
1.4. “Documentation” means the user guides and manuals for the Services provided by RealAtom for Customer’s own internal use.
1.5. “Enablement Services” means the setup, training, and lender onboarding services provided to Customer.
1.6. “Feedback” is defined in Section 3.3 (Feedback).
1.7. “Fees” is defined in Section 6.1 (Payment).
1.8. “Order Form” means RealAtom’s order form for Services that has been executed by RealAtom and Customer. Each executed Order Form will be incorporated into this Agreement by reference.
1.10. “Services” means the RealAtom cloud-based service, other services set forth on the Order Form and data platform accessed on the Site pursuant to this Agreement, excluding Third Party Software and Documentation.
1.11. “Proprietary Information” is defined in Section 7.1 (Confidentiality).
1.12. “Receiving Party” is defined in Section 7.1 (Confidentiality).
1.13. “Renewal Term” is defined in Section 5.2 (Subscription Term).
1.14. “Scope of Use” means Customer’s specific use case for the Service as defined in the Order Form.
1.15. “Site” means the RealAtom website, currently located at www.realatom.com which RealAtom may change in its sole discretion.
1.16. “Software” is defined in Section 2.4 (Restrictions).
1.17. “Subscription” means Customer’s right to use the Service for the Subscription Term, subject to the Scope of Use and related terms as outlined in an applicable Order Form.
1.18. “Subscription Term” means the period of time Customer may access and use the Service.
1.19. “Support Hours” is defined in Section 4.1 (Support Terms).
1.20. “Third Party Software” is defined in Section 3.1 (License Grant).
1.21. “User” means an individual who has been authorized by Customer to use the Services. A User may be provisioned directly in the Service or indirectly in another system, with privileges or privileged access to the Service.
1.22. “Technical Support.” Subject to the terms of this Agreement, the Company will use commercially reasonable efforts to provide Customer with technical support services in accordance with Company’s standard practice.
2.1. Usage. Upon registration of a RealAtom account on RealAtom Site or execution of an Order Form by both parties, RealAtom will provide Customer with access to the Services. Customer understands and agrees that: (a) the Services may not be accessed or used by more than the registered number of Users or specified number of Users on the applicable Order Form; (b) that each User constitutes one individual and log-on credentials for each User may not be shared; (c) the Services are limited by the Scope of Use and other agreed upon restrictions or described on the applicable Order Form; (d) only the specified number and category of Users registered or specified on an Order Form shall be provisioned by Customer; and (e) the Services are for use with databases and servers managed and/or owned by Customer. Any circumvention of technical measures constitutes a material breach of this Agreement. If Customer exceeds the number of Users and/or Scope of Use, Customer and/or RealAtom will, upon becoming aware, promptly notify the other party and the parties agree to discuss in good faith the additional fees due by Customer to RealAtom for such over-use. The agreed upon additional fees associated with the over-use shall be memorialized in a new Order Form signed by both parties.
2.2. Use by Affiliates. Customer’s Affiliates may, upon executing a new Order Form and agreeing to be bound by the provisions of this Agreement, use the Service subject to Customer’s Scope of Use or license a Subscription for their own defined Scope of Use. Upon execution of an Order Form by RealAtom and the Affiliate(s), the Affiliate(s) will be bound by the provisions of this Agreement as if they were an original party hereto.
2.3. Customer Responsibilities. Customer shall: (a) use the Services in accordance with this Agreement and all Documentation; (b) be responsible for its Users’ compliance with this Agreement; (c) prevent unauthorized use or access to the Services, any account or password, or any copying of the Service, and notify RealAtom immediately of any such unauthorized use, access or copying; and (d) be solely responsible for: (i) the accuracy and legality of Customer Data, the means by which it properly acquires and uses such Customer Data, including compliance with any regulations and laws applicable to the Customer Data (including, without limitation, privacy and data protection), and has obtained all rights in the Customer Data necessary to permit RealAtom’s compliance with its obligations under this Agreement; and (ii) any acquisition, implementation, support or maintenance of third-party products or services obtained by Customer that may interoperate with the Services. Customer shall not upload any data, images or other materials to the Site that were obtained from or available at any website or server owned, operated or used by CoStar Realty Information Inc. or any of its affiliates in common control therewith.
2.4. Restrictions. Customer will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to Services software, documentation or data (“Software”); (b) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); (c) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (d) remove any proprietary notices or labels.
3.1. License Grant.
a. Right To Use Service. Subject to the terms of this Agreement, RealAtom hereby grants Customer a limited, revocable, non-exclusive, non-transferable license for its authorized Users to access and use the Services during Paid Subscription Term subject to the defined Scope of Use described in the applicable Order Form or Trial Subscription Term subject to the defined Scope of Use described in this MSA.
b. Third Party Software. The Services include software licensed from third parties (“Third Party Software”) that is subject to its own terms and conditions. The licensing terms and attributions for the Third Party Software used by RealAtom can be found at: Notices and Acknowledgments.
c. Customer Data. Customer hereby grants RealAtom: a limited, revocable, non-exclusive, non-transferable license for RealAtom to store, access, use and analyze Customer Data during the Subscription Term in accordance with this Agreement.
3.2. Ownership Rights.
a. What RealAtom Owns. The Service constitutes proprietary intellectual property of RealAtom and its licensors, protected by patents, trademark, copyright and/or other intellectual property laws. Except for the rights granted herein, RealAtom and its licensors retain all right, title and interest, including all intellectual property rights in the Service (and any improvements, enhancements, modifications and derivatives of or to any of the foregoing) and Documentation. Except as expressly provided herein, this Agreement does not grant Customer any rights in any of RealAtom’s intellectual property. Customer agrees that any and all use of RealAtom’s trademarks by Customer will inure to the benefit of RealAtom and Customer shall have no rights in RealAtom’s trademarks.
b. What Customer Owns. Except as expressly provided herein, Customer retains all rights and interests in and to Customer Data.
3.3. Feedback. Customer or Users may, from time to time, provide suggestions, comments, corrections, ideas, enhancement or feature requests or other information to RealAtom with respect to any of RealAtom’s Services, Documentation, or operations (collectively, referred to hereafter as “Feedback”). Customer agrees that such Feedback is given voluntarily, and that RealAtom may use, disclose, reproduce, modify, commercialize, license, distribute and exploit the Feedback freely, in its sole discretion, without any restriction or obligation of any kind. For the avoidance of doubt, Feedback does not include Customer Confidential Information or Customer Data.
4.1. Support Terms. Company will provide technical support to Customer via both chat and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Eastern time, with the exclusion of Federal holidays (“Support Hours”). Customer may initiate a helpdesk ticket during Support Hours by using support chat or any time by emailing email@example.com. Company will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.
4.2. Enablement Services. As part of the Enablement Services, RealAtom will provide setup, training and lender onboarding for the Service.
5.1. Term of Agreement. Unless otherwise provided in an Order Form, this Agreement commences on the Effective Date and continues until all Subscription Terms have expired or been terminated.
5.2. Subscription Term. Unless otherwise provided in an Order Form, each Paid Subscription is for a one (1) year Subscription Term and: (a) Subscriptions will automatically renew for additional one (1) year periods (each a “Renewal Term”) unless either party notifies the other in writing of its non-renewal at least thirty (30) days prior to expiration of the then-current Subscription Term; and (b) Customer will pay the Subscription fees at the list prices in effect at the time of renewal, unless the parties agree to different pricing in writing, sixty (60) days prior to commencement of the Renewal Term.
5.3. Termination. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice, if the other party materially breaches any of the terms or conditions of this Agreement and does not cure such breach within thirty (30) days’ notice thereof. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data.
5.4. Survival. All sections of this Agreement, which, by their nature, should survive the expiration or termination of this Agreement will survive termination or expiration, including but not limited to: 2.4 (Restrictions), 3 (License Rights), 5 (Term and Termination), 6 (Payment; Invoicing), 7 (Confidentiality; Proprietary Rights), 8.4 (No Implied Warranties), 9 (Indemnification), 10 (Limitation of Liability).
6.1. Payment. For Customer who agree to fee based Services on an Order Form, Customer will pay Company the then-applicable fees described in the Order Form for the Service and Enablement Services in accordance with the terms therein (the “Fees”); provided that if no such payment period is otherwise specified, then all Fees shall be paid by Customer within fifteen (15) days of invoice or notice. If Customer’s use of the Services exceeds the usage terms set forth on the Order Form or otherwise requires additional payments (per the terms of this Agreement), Customer will be billed for such usage and Customer agrees to make the additional payment(s) in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Subscription Term or then-current Renewal Term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department at firstname.lastname@example.org.
6.2. Invoicing. Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company fifteen (15) days after the date of the invoice. Unpaid amounts are subject to a finance charge of one and one-half percent (1.5%) per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of the Services. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
7.1. Confidentiality. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Services or a Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance or receipt of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
8.1. Authority. Each of RealAtom and Customer represents and warrants that: (a) it has the full right, power and authority to enter into and perform this Agreement; (b) the person signing this Agreement on its behalf is a duly authorized representative of such party who has in fact been authorized to execute this Agreement; (c) its entry herein does not violate any other agreement by which it is bound; and (d) it is a legal entity in good standing in the jurisdiction of its formation. Customer covenants, represents and warrants that it: (x) has obtained all rights, interests, consents and approvals for the Customer Data to be used as describe herein; (y) is a properly registered and operated lender or broker (“Customer Type”) as stated in its application; and (z) shall at all times refer to itself publically as such Customer Type.
8.2. Security. RealAtom will use procedural, technical, and administrative safeguards for its Services designed to protect the confidentiality, security, integrity, availability, and privacy of Customer Data. Notwithstanding any other provision of this Agreement or any other agreement related to the Services, RealAtom will not be responsible for any breach or loss resulting from Customer’s security configuration or administration of the Services.
8.3. Warranty Exclusions. RealAtom is not liable for or obligated to correct errors caused by: (a) unauthorized modification to the Service; (b) using the Services other than as described in the Documentation; (c) non-RealAtom software; (d) combining the Service with any other software not authorized by RealAtom in writing, or (e) inaccurate or incomplete information provided by Customer.
8.4. NO IMPLIED WARRANTIES. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 9 AND AS PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW. REALATOM RESERVES THE RIGHT TO RESTRICT OR TERMINATE CUSTOMER’S ACCESS TO THE SITE AND SERVICES OR ANY FEATURE OR PART THEREOF AT ANY TIME. REALATOM EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES THAT MATERIALS ON THE SITE ARE NONINFRINGING, AS WELL AS WARRANTIES IMPLIED FROM A COURSE OF PERFORMANCE OR COURSE OF DEALING; THAT ACCESS TO THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT THE SITE WILL BE SECURE; THAT THE SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE WILL BE VIRUS- FREE; OR THAT INFORMATION ON THE SITE WILL BE COMPLETE, ACCURATE, TIMELY, ADEQUATE, USEFUL, RELIABLE OR OTHERWISE. IF YOU DOWNLOAD ANY MATERIALS FROM THIS SITE, YOU DO SO AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIALS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM REALATOM OR THROUGH OR FROM THE SITE SHALL CREATE ANY WARRANTY OF ANY KIND.
Customer agrees to indemnify, defend and hold harmless Company and its affiliates and their officers, directors, employees, contractors, agents, licensors, service providers, subcontractors and suppliers from and against any and all losses, liabilities, expenses, damages and costs, including reasonable attorneys’ fees and court costs, arising or resulting from Customer’s Data and Customer’s access to the Services and any violation of this Agreement and the terms hereof. If Customer causes a technical disruption of the Site or the systems transmitting the Site to Customer or others, Customer agrees to be responsible for any and all losses, liabilities, expenses, damages and costs, including reasonable attorneys’ fees and court costs, arising or resulting from that disruption. Company reserves the right, at its own expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by Customer and, in such case, Customer agrees to cooperate with Company in the defense of such matter.
10.1. NO INDIRECT DAMAGES. EXCEPT FOR A BREACH BY CUSTOMER OF SECTION 3, IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS (INCLUDING THEIR DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUE, GOODWILL, OR INDIRECT, SPECIAL, COVER, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF THE PARTY AND/OR ITS LICENSORS HAS/HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10.2. LIMIT ON DAMAGES. EXCEPT FOR A BREACH BY CUSTOMER OF SECTION 3, THE AGGREGATE, CUMULATIVE LIABILITY OF EACH PARTY (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL BE LIMITED TO THE FEES PAID OR PAYABLE BY CUSTOMER TO REALATOM DURING THE TWELVE-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO ANY CLAIM. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 6.
10.3. Allocation of Risk. The provisions of this Agreement fairly allocate the risks between RealAtom, on the one hand, and Customer on the other. Customer acknowledges and agrees that the pricing reflects this allocation of risk and the limitation of liability specified herein, and that RealAtom would not enter into this Agreement without such allocation and limitation.
11.1. Assignment. This Agreement may not be assigned by either party without the other party’s prior written consent, whether by operation of law or otherwise, except that RealAtom may assign this Agreement to its successor in the event of a merger, acquisition, corporate reorganization or sale of all or substantially all of RealAtom’s assets. Any other purported assignment shall be void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns.
11.2. Severability; Interpretation. If a court of competent jurisdiction holds any provision of this Agreement to be invalid or unenforceable, the remaining provisions will remain in full force and effect and the Agreement will be amended to the minimum extent necessary to achieve, to the maximum extent possible, the same legal and commercial effect originally intended by the parties. Section headings are inserted for convenience only and shall not affect the construction of the agreement.
11.3. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter hereof, including any non-disclosure or confidentiality agreements entered previously.
11.4. Force Majeure. Neither party shall be liable to the other for its failure to perform its obligations under this Agreement, except for payment obligations, during any period in which such performance is delayed or rendered impracticable or impossible due to unforeseen circumstances beyond its reasonable control.
11.5. Amendment; Counterparts. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. This Agreement may be executed electronically or by written signature and delivered in multiple versions, including facsimile, PDF, or other electronic counterparts, all of which will constitute one and the same instrument and agreement.
11.6. Governing Law and Venue. This Agreement shall be governed by the laws of the Commonwealth of Virginia and the United States of America without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act. You irrevocably consent to the jurisdiction of the state and federal courts located in Richmond, Virginia for any legal action relating to this Agreement.
11.7. Independent Contractors. RealAtom and Customer are independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture, franchise, agency, fiduciary or employment relationship between Customer and RealAtom.
11.8. Changes to this Agreement. RealAtom reserves the right to change the terms of this Agreement or other policies at any time by posting the proposed revised terms on the Site (“Change Notice”). Customer will have the option after receiving the Change Notice to accept such new terms and continue using the Services under such terms or terminate this Agreement and stop using the Services.