Software License and Services Agreement
This Agreement is between you,
hereinafter referred to as “Licensee”, and Lumiere Systems Inc.
(“Lumiere Systems”), a Delaware Corporation, located at 254 Chapman
Rd, Ste 208 #9294 Newark, Delaware 19702 for use of Software and Services that Lumiere
Systems & its partner(s) supplies. Each of Lumiere Systems and Licensee is
sometimes referred to herein as a “Party” and sometimes are
collectively referred to herein as the “Parties”.
Whereas, the Parties
desire that Lumiere Systems will grant, and Licensee will receive, a license to
Lumiere Systems’s real estate website technology and hosted display of licensed
Multiple Listing Service® (“MLS®”) System content on Licensee’s
website in accordance with Licensee’s MLS® Internet Data eXchange
(“IDX”) program and under the applicable MLS® rules, regulations, and
policies.
By using the
Software and Services, you accept the following terms.
1. License Grant.
Subject to compliance with the terms and conditions provided in this Agreement,
Lumiere Systems grants Licensee a limited, personal, non-exclusive,
non-sublicensable, non-transferable right and license in the region served by
the MLS® of which the Licensee is a member in good standing, during the Term of
this Agreement and under Lumiere Systems’s Intellectual Property rights, to use
the Software and Services (“IDX website technology”) solely for the
purpose of operating a website and displaying MLS® content to consumers. The
Software and Services may be used in conjunction with one (1) Internet
universal resource locator (“URL”). To qualify for the Software and
Services, Licensee’s designated broker of record must be able and willing to
authorize Licensee, in writing, to operate a website displaying MLS® content to
consumers. The License shall commence as of the Effective Date of this
Agreement and shall terminate upon expiration of the Term of this Agreement.
This License shall be automatically revoked upon Licensee’s failure to comply
with the terms and conditions of this Agreement or Licensee’s MLS® Agreements.
This Agreement is subject to immediate termination at Lumiere Systems’s
discretion.
2. Term and
Termination
2.1. Term. This
Agreement shall commence on the Effective Date, shall continue in full force
and effect for a period of one (1) month, or twelve (12) months for annual
accounts, and shall be automatically renewed thereafter for successive periods
unless written notice of intent not to renew is received by either Party at
least thirty (30) days prior to the commencement of any subsequent Term.
2.2. Termination.
This Agreement may be terminated by either Licensee or Lumiere Systems: (i) in
the event of a material default or breach any term, condition or covenant
contained in this Agreement by the other Party which is not cured within thirty
(30) calendar days after written notice of the default or breach; (ii)
immediately upon written notice if the other Party files or is the subject of a
bankruptcy case, makes an assignment for the benefit of creditors, becomes
insolvent, is generally unable to pay its debts as they become due, or has a
receiver, trustee, or conservator appointed for any substantial part of its
assets or properties; (iii) immediately upon notice of an MLS® violation; or,
(iv) without cause upon thirty (30) days written notice. Licensee shall forfeit
any fees paid in advance in the event that Licensee terminates this Agreement
before the expiration of the Term.
3. Ownership. Lumiere
Systems is and shall remain the sole and exclusive owner of all right, title
and interest in its IDX website technology, Intellectual Property rights
embodied herein, and Improvements thereto, including any Improvements made to
meet Licensee’s needs.
4. Payment. In
consideration for the rights granted to Licensee hereunder, Licensee agrees to
pay Lumiere Systems the fees for the Software license and Services selected by
Licensee in accordance with Lumiere Systems’s published schedule of fees. Lumiere
Systems shall, and is hereby authorized to, automatically charge Licensee’s
credit card account for the monthly or annual payments due hereunder. Lumiere
Systems reserves the right to adjust such fees from time to time, provided that
not less than thirty (30) days’ written notice of such adjustment shall be
given to Licensee prior to the effective date of each such adjustment.
4.1. Setup Fees.
Setup Fees are due and payable upon execution of this Agreement. Setup Fees are
non-refundable. For all Licensees, Setup fees include administrative account
setup and MLS® Paperwork Processing.
4.2 Service Fees.
Assessment of monthly or annual Service Fees begins upon execution of this
Agreement. A prorated Service Fee will be due for the remainder of the calendar
month in which the Effective Date falls. Regular Service Fees will commence
upon the first of the month following the Effective Date. Service Fees are
non-refundable in the event that Licensee cancels service before the end of the
Term. If Licensee selects a Managed Service package, Licensee’s account will
remain on that package for a minimum of three months.
4.3. MLS®-Imposed
Fees. Lumiere Systems reserves the right to charge and collect from Licensee,
on a pro rata basis, all fees imposed on Lumiere Systems by the MLS® System(s)
used by Licensee.
4.4. Past Due
Accounts.
4.4.1. Licensee’s
account shall be considered past due if payment has not been received by Lumiere
Systems one (1) month after such payment is due. Past due amounts will accrue a
1.5% finance charge per month on the total unpaid balance and a $20.00 late
payment processing fee plus any fees charged to Lumiere Systems for payment
processing.
4.4.2. Lumiere
Systems will charge a $20.00 processing fee plus any fees charged to Lumiere
Systems by payment processing service providers each time Licensee’s credit
card is declined.
4.4.3. Lumiere
Systems reserves the right to suspend Licensee’s account for failure to make
timely payment. Lumiere Systems shall reactivate suspended accounts upon the
receipt of Licensee’s payment of all current obligations and a $10.00 reactivation
fee. Payment of the reactivation fee does not satisfy other outstanding
obligations owed to Lumiere Systems.
4.5. Payment
Details. We will keep your detailed payment information such as credit card
number and expiry date on file. You are responsible for keeping your payment
details up-to-date by changing the details in your account settings. Where your
details change or are due to expire, we may obtain or receive from your payment
provider updated payment details including your card number, expiry date and
CVV (or equivalent). This enables us to continue to provide you access to Lumiere
Systems services. You authorize us to continue to charge your card using the
updated information. You also agree that we may charge your payment method on
file if you decide to restart your Lumiere Systems account.
5. Disclaimer of
Warranties. Neither Lumiere Systems nor any of its employees, officers,
directors, affiliates, or agents makes any representation or warranty of any
kind, including, without limitation, that access to or use of any software,
products, or services to be provided pursuant to this Agreement shall be
uninterrupted or error free, that agreed-upon security measures shall prevent
unauthorized access to the internet, or unauthorized interception of
information on the Internet, any Intranet or any common carrier communications
facility. Lumiere Systems does not control the source or quality of any data or
data feeds received from multiple listing services and cannot provide any
quality guarantees in connection with the MLS® data we provide.
Licensee understands
and expressly agrees that all use of Lumiere Systems’s Software and Services is
at the sole risk of Licensee. All software, content, and services are provided
ON AN “as is” and “as available” basis. ANY MATERIAL
DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE AND SERVICES
IS DONE AT LICENSEE’S OWN DISCRETION AND LICENSEE WILL BE SOLELY RESPONSIBLE
FOR ANY DAMAGE TO THEIR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE
DOWNLOAD OF ANY SUCH MATERIAL.
Lumiere Systems
expressly disclaims all warranties of any kind, whether express or implied,
statutory, or other warranties, including but not limited to warranties of
merchantability, fitness for a particular purpose, title, quiet enjoyment, and
non-infringement. Lumiere Systems MAKES NO WARRANTY THAT (i) THE SOFTWARE AND
SERVICES WILL MEET LICENSEE’S REQUIREMENTS, (ii) THE SOFTWARE AND SERVICES WILL
BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE
OBTAINED FROM THE USE OF THE SOFTWARE AND SERVICES WILL BE ACCURATE OR
RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER
MATERIAL PURCHASED OR OBTAINED BY LICENSEE THROUGH THE SOFTWARE AND SERVICES
WILL MEET LICENSEE’S EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE AND SERVICES
WILL BE CORRECTED.
6. Limitation of
Liability
6.1. General
Limitation. Both parties understand and agree that neither party will be liable
to the other for any indirect, incidental, consequential, punitive, or special
damages, arising out of or related to this Agreement including, without
limitation, damages for loss of business profits, business interruption, loss
of business information, and the like, even if such party has been advised of
the possibility of such damages. Neither party shall be liable for any delay or
failure to perform which is caused by matters beyond its reasonable control,
including without limitation failure or unavailability of, or impaired access
to, MLS® Data Feeds, legal or regulatory restrictions, labor disputes, mechanical,
electronic or equipment, breakdowns in facilities controlled by third parties,
acts of terror, or Acts of God.
6.2. Damages
Limitation. The maximum liability AND the exclusive remedy available to
Licensee in connection with this agreement shall be to recover no more than the
cumulative amounts paid by Licensee to Lumiere Systems OVER the previous ninety
(90) days during which Licensee received service or USED SOFTWARE under the
term of this Agreement, and/or to receive equitable relief, (INCLUDING BUT NOT
LIMITED TO INJUNCTIVE RELIEF OR SPECIFIC PERFORMANCE) and/or to terminate this
Agreement in accordance with SECTION 2. The foregoing limitation of money
damages shall be calculated up to the date of such Termination. The existence
of multiple claims or suits under or related to this Agreement will not enlarge
or extend the limitation of money damages. Licensee acknowledges that other
parts of this Agreement rely upon the inclusion of this Section 6.
6.3. Exclusions.
None of the limitations in Section 6 shall apply in the case of infringement of
Lumiere Systems’s, or an MLS®’s, Intellectual Property rights.
6.4. Licensee
acknowledges that damages suffered by Lumiere Systems from unauthorized access
to or display of MLS® content, or violation of Licensee’s MLS® licenses and
rules, whether as a result of violation of the terms and conditions of this
Agreement or Licensee’s MLS® agreement, or any other unauthorized disclosure of
MLS® content to a third party is speculative and difficult to quantify.
Accordingly, as a material inducement to Lumiere Systems to enter into this
Agreement, Licensee agree that in the event of such violation, regardless of
whether intentional or negligent, Licensee shall be liable to Lumiere Systems
for liquidated damages in the amount of $15,000 for each such violation.
7. Indemnification.
Each Party to this Agreement, shall, upon written request, indemnify and hold
the other Party, its affiliates, subsidiaries, directors, officers, employees,
agents and licensors harmless from and against all claims, demands and actions
of or by any third Party, including all liabilities, damages, obligations,
costs and expenses (such as reasonable attorneys’ and experts’ fees)
(“Claims”), which arise from or relate to: (i) breach of such Party’s
warranty set forth in this Agreement, (ii) such Party’s gross negligence or
willful misconduct, or (iii) an allegation that the Licensee’s use of products,
services, content, or materials provided by Lumiere Systems under this
Agreement, as set forth in this Agreement, violates the intellectual property,
including but not limited to copyright, trademark, trade secret, patent, or
right of personality, publicity, or privacy of any third party.
The Party receiving
indemnification (the “Indemnified Party”) agrees that the Party
providing indemnification (the “Indemnifying Party”) may assume sole
and exclusive control over the defense and settlement of any third party claim
with respect to which the foregoing indemnity obligations apply, except that
the Indemnifying Party will not, however, enter into any settlement that
adversely affects the Indemnified Party’s rights or interests without the prior
written consent of the Indemnified Party. The Indemnified Party shall promptly
notify the Indemnifying Party of any Claim against it of which it becomes
aware. At the Indemnifying Party’s expense, the Indemnified Party will provide
reasonable cooperation to the Indemnifying Party in connection with the defense
or settlement of any such claim. At the Indemnified Party’s expense, the
Indemnified Party will be entitled to participate in the defense of any such
claim.
8. Miscellaneous
8.1. Party
Representations and Warranties. Each Party to this Agreement hereby represents
and warrants to the other that it is duly organized, validly existing, and in
good standing under the laws of the jurisdiction of its incorporation and has
full power and authority under its organizational documents and the laws of
such jurisdiction to execute and deliver this Agreement and to perform its obligations
hereunder; and this Agreement has been duly authorized, executed and delivered
by it and constitutes its legal, valid and binding obligation enforceable in
accordance with its terms.
8.2. Technical
Support. During the Term of this Agreement, Lumiere Systems shall make
available to Licensee during normal business hours such personnel as Lumiere
Systems may have reasonably available, and who have appropriate knowledge to
provide technical support to Licensee on the use of the Software and Service.
8.3. Licensee MLS®
Compliance. Licensee represents and warrants that it is, and will remain for
the Term, a member in good standing and in full compliance with the rules and
regulations of the MLS®(s) whose data Lumiere Systems displays on Licensee’s
IDX website. Licensee shall notify Lumiere Systems within three (3) days of any
change in Licensee’s MLS® membership status, broker affiliation, website URL,
website design, or website provider. Licensee expressly understands and agrees
that MLS® Compliance is the sole responsibility of Licensee at all times and
Licensee will indemnify Lumiere Systems, under Section 7 of this Agreement
against any claims which arise from Licensee’s failure to comply with the rules
and regulations of their MLS®(s) at all times.
8.4. Licensee
Account Information. Lumiere Systems will create, maintain and record Licensee
information including the identifying details of the Licensee, the Licensee
provided under this Agreement, and the payment records. Lumiere Systems will
make reasonable commercial effort to maintain the confidentiality of any of
Licensee’s confidential or proprietary information. Lumiere Systems may share
any and all Licensee account and end-user information with MLSs® and related
third-party service and product providers, which are bound by contractual
arrangements with Lumiere Systems to maintain confidentiality.
8.5. Fair Usage. In
order to preserve the quality of service delivered to all end-users and Lumiere
Systems Licensees, Lumiere Systems reserves the right to either charge
additional usage fees, to modify certain aspects of the Software and Service’s
configuration, or to terminate this Agreement, in the event Licensee is
determined solely by Lumiere Systems to have used the provided Software and
Service beyond its reasonably intended use.
8.6. Third Party
Beneficiaries. This Agreement is for the sole and exclusive benefit of Licensee
and Lumiere Systems. It shall not be deemed to be for the direct or indirect
benefit of customers of Licensee or Lumiere Systems products or any other
person, and customers of these products shall not be deemed to be third party
beneficiaries of this Agreement or to have any other contractual relationship
with Licensee or Lumiere Systems by reason of this Agreement.
8.7. Covenant Not to
Sue. Subject to the Parties’ compliance with this Agreement, Lumiere Systems
and Licensee hereby agree that and covenant that either Party shall not sue or
otherwise assert any claim against the other Party based on the Parties’ use of
any Lumiere Systems Product. Other than those claims falling directly and
solely within the scope of the foregoing covenant, Lumiere Systems reserves the
right to assert, protect and enforce all of its proprietary rights to the
fullest extent permitted by applicable law.
8.8. Dispute
Resolution. The Parties hereto agree to submit any unresolved disputes
concerning the interpretation of this Agreement to a mediation process to occur
within Alameda County, California with each Party to bear its own attorneys’
fees and cost of the mediation to be borne equally by both Parties. If
mediation is unsuccessful, the parties agree to resolve the dispute through
arbitration to occur within Alameda County, California following the rules and
practices of the American Arbitration Association.
8.9. Construction.
In the event that any provision of this Agreement conflicts with governing law
or if any provision is held to be null, void or otherwise ineffective or
invalid by a court of competent jurisdiction, (i) such provision will be deemed
to be restated to reflect as nearly as possible the original intentions of the
parties in accordance with applicable law, and (ii) the remaining terms,
provisions, covenants and restrictions of this Agreement will remain in full
force and effect. This Agreement has been negotiated by the parties and their
respective counsel and will be interpreted fairly in accordance with its terms
and without any strict construction in favor of or against either party. The
section headings used in this Agreement are intended for convenience only and
will not be deemed to affect in any manner the meaning or intent of this
Agreement or any provision hereof.
8.10. Independent
Contractors. The Parties are independent contractors, and nothing in this
Agreement shall be construed as creating an employer-employee relationship, a
partnership, or a joint venture between the Parties.
8.11. Attorney’s
Fees. If any legal action, including an action for declaratory relief, is
brought to enforce or interpret the provisions of this agreement, the
prevailing Party will be entitled to reasonable attorney’s fees and costs, as
well as other out of pocket legal expenses.
8.12. Assignment.
Neither this Agreement nor any duties or obligations under this Agreement may
be assigned by either Party without the prior written consent of the other
Party.
8.13. Agreement
Governed By. This Agreement and performance hereunder and all suits and special
proceedings hereunder shall be construed in accordance with the laws of the
State of California.
8.14. Waivers.
Waiver of one Party hereto of breach of any provision of this Agreement by the
other shall not operate or be construed as a continuing waiver.
8.15. Entire
Agreement. This Agreement constitutes the entire agreement between the Parties
as to the subject matter hereof, and supersedes any prior or contemporaneous
agreements or understandings relating to such subject matter.
9. DMCA Compliance. Lumiere Systems strongly respects copyright
protections. Use of Lumiere Systems services is subject to our Digital
Millennium Copyright Act (“DMCA”) Notice. Licensee must take
adequate precautions to ensure that neither they nor any employee,
representative, or other agent upload any copyright-infringing text, photos, or
any other matter for which they do not hold the copyright or a copyright
license, through the Software and Services. Licensee must indemnify and hold Lumiere
Systems harmless from any damages resulting from copyright infringement arising
from Licensee’s use of the Software and Services.