This Agreement is between you (a visitor to our website(s), including but not limited to www.clickIDX.com, and/or a consumer using IDX content and displays that clickIDX licenses from Real Estate Board Multiple Listing Service® Systems (“MLS® Systems”) for their participating members), hereinafter referred to as “Licensee”, and clickIDX Inc. (“clickIDX “), a California Corporation, located at 1900 Addison Street, Suite 300, Berkeley, California, 94704, for use of Software and Services that clickIDX supplies. Each of clickIDX 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 clickIDX will grant, and Licensee will receive, a license to view clickIDX’s websites, and/or hosted displays of licensed MLS® System content on the websites of Real Estate Board MLS® System (“Board”) members, in accordance with Board Internet Data eXchange (“IDX”) programs and under the applicable Board 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, clickIDX grants Licensee a limited, personal, non-exclusive, non-sublicensable, non-transferable right and license, during the Term of this Agreement and under clickIDX’s Intellectual Property rights, to use the Software and Services (“IDX website technology”) solely for the purpose of learning about IDX technology and clickIDX products and services (including for use of a “demo” or “trial” account), or for personal and non-commercial viewing of IDX content featuring properties consumers may be interested in purchasing or leasing. 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 Board Agreements. This Agreement is subject to immediate termination at clickIDX’s discretion.
2. Ownership. clickIDX is and shall remain the sole and exclusive owner of all right, title and interest in its websites and its IDX website technology, Intellectual Property rights embodied herein, and Improvements thereto, including any Improvements made to meet Licensee’s needs.
3. Disclaimer of Warranties. Neither clickIDX 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. clickIDX 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® System data we provide. Licensee understands and expressly agrees that all use of clickIDX’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. clickIDX 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. clickIDX 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.
4. Limitation of Liability
4.1. General Limitation. Licensee understands and agrees that clickIDX will not be liable 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® System 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.
4.2. Exclusions. None of the limitations in Section 4 shall apply in the case of infringement of clickIDX’s, or a Board’s, Intellectual Property rights.
4.3. Licensee acknowledges that damages suffered by clickIDX from unauthorized access to or display of MLS® System content, or violation of Board licenses and rules is speculative and difficult to quantify. Accordingly, as a material inducement to clickIDX to enter into this Agreement, Licensee agrees that in the event of such violation, regardless of whether intentional or negligent, Licensee shall be liable to clickIDX for liquidated damages in the amount of $15,000 for each such violation.
5. Indemnification. Licensee shall, by entering into this agreement, indemnify and hold clickIDX , 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 actions including, but not limited to: (i) breach of warranty set forth in this Agreement, (ii) gross negligence or willful misconduct, or (iii) an allegation that the Licensee’s use of products, services, content, or materials provided by clickIDX 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.
6. DMCA Compliance. clickIDX strongly respects copyright protections. Use of clickIDX 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 clickIDX harmless from any damages resulting from copyright infringement arising from Licensee’s use of the Software and Services.
7.1. 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.
7.3. Fair Usage. In order to preserve the quality of service delivered to all end-users and clickIDX Licensees, clickIDX 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 clickIDX to have used the provided Software and Service beyond its reasonably intended use.
7.4. Third Party Beneficiaries. This Agreement is for the sole and exclusive benefit of Licensee and clickIDX. It shall not be deemed to be for the direct or indirect benefit of customers of Licensee or clickIDX 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 clickIDX by reason of this Agreement.
7.5. Covenant Not to Sue. Licensee hereby agrees that and covenant that Licensee shall not sue or otherwise assert any claim against clickIDX based on the Licensee’s use of any clickIDX Product. Other than those claims falling directly and solely within the scope of the foregoing covenant, clickIDX reserves the right to assert, protect and enforce all of its proprietary rights to the fullest extent permitted by applicable law.
7.6. 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.
7.7. 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.
7.8. 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.
7.9. 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.
7.10. 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.
7.11. 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.
7.12. 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.
7.13. 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.
7.14 Typographical Errors. clickIDX is not responsible for any typographical errors in this Agreement.