- Grant of License. Licensor hereby grants Licensee a limited non-exclusive, non-transferable, non-sub licensable, non-assignable right to license to the RCA Products indicated on the attached RCA Products Order Form (the “RCA Products”). RCA Products are accessed through Licensor’s password protected web site (the “Web Site”). Use of the trademarks, service marks, logos and designs (the “RCA Trademarks”) is not permitted other than as set forth in the terns of the Agreement. Such license shall be limited to using such marks in a nominative manner, when referring to Licensor. Any goodwill acquired in using the RCA Trademarks shall vest in Licensor. Licensor owns and at all times will continue to own its respective trademarks and Licensee will not take any actions inconsistent with Licensor’s ownership rights.
- Fees. Licensee agrees to pay all fees and charges as outlined on the RCA Product Order Form(s), including, but not limited to, all applicable sales, use, value added or other taxes of any kind excluding income taxes incurred in connection with the Licensee’s subscription, as provided under the Agreement. All fees and charges are non-refundable. In the event of an assignment by Licensee per Section 19, or a merger of Licensee with another entity or the acquisition of the whole or substantial part of Licensee’s (or Licensee’s holding company’s) shares or business by another company, including another licensee, separate terms must be negotiated with Licensor, including in relation to a merger to add or combine any users/user groups from the entity merged with Licensee. Additionally, Licensor reserves the right to increase or modify the fees paid to ensure that the aggregate fees received by Licensor are not reduced by such merger/assignment.
- Permitted Users. Licensor will provide a specified number of employees of Licensee with login credentials to the Web Site as outlined in the attached RCA Product Order Form(s), to be designated by Licensee. Each employee of Licensee must enroll separately and complete his or her own registration. Only a registered Licensee employee may access the RCA Products using their assigned username and password. Assigned usernames and passwords are for the sole use of the employee that it is assigned to and each employee is strictly prohibited from sharing, transferring, and/or assigning those credentials to any other person(s). Licensee may however, reassign Web Site access to a new employee from time to time during the dates as outlined on the RCA Product Order Form(s). Licensee shall: (a) provide accurate, current and complete registration information and (b) maintain and update this information to keep it accurate, current and complete. Licensor reserves the right to require registered users to reset their password from time to time. All uses of the Web Site must be through the interface provided on the Web Site. Licensor reserves the right to audit and electronically monitor the number of requests for information a Licensee submits, and the frequency and duration of a Licensee’s online activity. For the avoidance of doubt, it is understood and agreed that, without the expressed written consent of Licensor, Licensee shall not permit any contractor, consultant, service provider, advisor, agent, or other third party person to have access to the RCA Products or the Web Site for any purpose. Licensee further acknowledges that Licensee is fully responsible for all acts or omissions of its Licensee employees and for all liabilities incurred through use of any login credentials (whether lawful or unlawful) and that any acts or omissions using such login credentials will be deemed to have been undertaken by Licensee. Licensor will not be responsible for any liability to Licensee arising out of or in connection with such acts or omissions.
- Use Restrictions. Licensee may not resell any of the RCA Products in whole or in part. Licensee may only use the RCA Products for its internal business purposes or use insubstantial extracts in external reports or presentations in accordance with the terms of this Agreement and with proper attribution to Licensor, as outlined in section entitled Proper Attribution; in permissible cases, the data/information used may not exceed twenty percent (20%) of the total content. Licensee is strictly prohibited from marketing, selling or publishing any pricing indices, valuation models, derivatives or other products based in whole or in part upon the RCA Products. Licensee may use and copy the RCA Products only as expressly provided by this Agreement. Licensee may copy the RCA Products to the extent reasonably necessary to exercise its rights and perform its obligations under this Agreement. Except as expressly provided by this Agreement, Licensee shall not, nor shall it permit any other person to: (a) make or retain any copy of the RCA Products except for insubstantial extracts in accordance with the terms of this Agreement, however, such insubstantial extracts may not be accessed electronically, manipulated or distributed by Licensee;
(b) use the RCA Products as part of any effort to compete with Licensor, including without limitation, using the RCA Products to provide, alone or in combination with any other product or service, any database services to any third party or any use that causes a reduction or loss of Licensor sales from an existing or potential licensee;
(c) access, monitor or copy any content or information on Licensor’s Web Site for the purposes of data mining, report mining, data scraping, screen scraping or other unauthorized data collection, including without limitation, using any robot, spider, scraper or other automated means or any manual process without Licensor’s express written permission;
(d) take any action that imposes, or may impose, in Licensor’s sole discretion, an unreasonable or disproportionately large load on Licensor’s infrastructure;
(e) violate the restrictions in any robot exclusion headers on Licensor’s Web Site or bypass or circumvent other measures employed to prevent or limit access to Licensor’s Web Site;
(f) sell, market, license, sublicense, distribute, or otherwise grant to any person any right to use the RCA Products;
(g) display or create derivative works from the RCA Products;
(h) remove, erase, or tamper with any copyright or other proprietary notice printed or stamped on, affixed to, or encoded or recorded in the RCA Products, or fail to preserve all copyright and other proprietary notices in any copy of the RCA Products made by Licensee; or
(i) take data obtained from the use of the RCA Products, in any form, whether exported/downloaded directly from the Web Site, through the Data Integration Portal, or provided to by any other means, and upload or input such data into any third party commercial real estate contributory data exchange or data sharing platform, whether it be a free or paid for service.
All rights not explicitly granted under this Agreement are expressly reserved by and to Licensor.
- Proper Attribution. Licensee shall ensure that any reproduction of all or a part of the RCA Products includes the following notice/s: © 202[/] Real Capital Analytics, Inc. All rights reserved or Source: Real Capital Analytics www.rcanalytics.com. If Licensee is making use of the RCA/Walk Score CPPI the notice shall include the following notice: Source: RCA and Walk Score®.
- Term. The Agreement will commence and expire on the dates as outlined on the RCA Product Order Form(s) (the “Term”). At the expiration of the Term, this Agreement will be automatically renewed for successive one (1) year periods (each a “Renewal Term”) with a price increase not to exceed 5% unless either party notifies the other party in writing of its’ intent not to renew this Agreement at least ninety (90) days prior to the end of the Term or any Renewal Term (as applicable).
- Termination. Licensor may terminate Licensee’s subscription to the RCA Products or deny access to all or part of the RCA Products without prior notice if Licensee violates any of the terms of this Agreement. Licensor may terminate Licensee’s subscription to the RCA Products at such time as Licensee is acquired by any third party which in the reasonable opinion of Licensor is a competitor of Licensor.
Upon the expiration or termination of this Agreement, Licensee shall immediately cease and desist from using the RCA Products. Furthermore, Licensor, in its sole discretion, reserves the right to request Licensee make reasonable attempts to deliver to Licensor, or at Licensor’s option, destroy any/all RCA Products in its possession and to provide assertion via written affidavit to that effect.
- Proprietary Rights. RCA Products and images, illustrations, designs, icons, graphs, charts, lists, photographs, and written and other materials contained in the RCA Products (“Proprietary Items”) are provided on a strictly limited use basis. All rights, including without limitation, Intellectual Property Rights (defined below), title, and interest lie exclusively with Licensor and its data suppliers. This Agreement is not an agreement of sale, and no title or Intellectual Property Rights or other ownership rights to the RCA Products are transferred to Licensee pursuant to this Agreement. All implied rights and licences are hereby expressly excluded. Licensee acknowledges that the restrictions in this Agreement are reasonable and necessary to protect Licensor and its data suppliers’ legitimate business interests. Licensee acknowledges that the real property ownership information is proprietary information of Licensor and its data suppliers and has been furnished to Licensee in trust and may be subject to certain export or download limitations. Licensee acknowledges that the real property ownership information is a valuable commercial product, the development of which has involved the expenditure of substantial time and money. Intellectual Property Rights means all intellectual property rights (throughout the universe, in all media, now existing or created in the future, for all versions and elements, in all languages, and for the entire duration of such rights) arising under statutory or common law, contract, or otherwise, and whether or not perfected, including without limitation, (a) all rights associated with works of authorship including without limitation copyrights, moral rights, copyright applications, copyright registrations, synchronization rights; (b) rights associated with trademarks, service marks, trade names, logos, trade dress, and the applications for registration and registrations of trademarks and service marks; (c) rights relating to the protection of trade secrets and confidential information; (d) rights analogous to those set forth in this definition and any and all other proprietary rights relating to intangible property; and (e) divisions, continuations, renewals, reissues, and extensions of the foregoing (as and to the extent applicable) now existing, later filed, issued, or acquired.
- Data Integration. If applicable, Licensor will provide Licensee, on a limited non-exclusive basis, access to its “Transactional Data”. Transactional Data is defined as a set of proprietary data points with regards to a unique commercial real estate transaction(s), as outlined on an attached Addendum. Access to Transactional Data will be granted through Licensor’s Data Integration User Portal. Licensee may not resell any of the Transactional Data in whole or in part. Licensee is also prohibited from marketing, selling or publishing any pricing indices, valuation models, derivatives or other products or services based in whole or in part upon the Transactional Data. Licensee may only use the Transactional Data for its internal business purposes. Under no circumstances shall Licensee give or provide the Transactional Data to its third-party advisors or consultants. The Transactional Data must be kept strictly confidential. Access to Licensor’s Data Integration User Portal will be limited to a select number of Licensee’s employees designated by Licensee as outlined on the attached RCA Product Order Form(s), and Licensee shall advise such employees of their obligations hereunder with respect to keeping the Transactional Data confidential and require such employees to abide by the terms of this Agreement. Licensee and its employees shall maintain the confidentiality of the Transactional Data with the same degree of care, but no less than commercially reasonable, that it uses with its own confidential information.
- Use of Custom Reports. If applicable, Licensor will provide Licensee, on a limited non-exclusive basis, access to its Custom Reports. A “Custom Report” is defined as a customized deliverable containing Licensor’s data that is not readily accessible via the Web Site or Licensor’s Data Integration Portal. Licensee may not resell any Custom Report in whole or in part. Licensee is also prohibited from marketing, selling or publishing any pricing indices, valuation models, derivatives or other products or services based in whole or in part upon the Custom Reports. Licensee may only use the Custom Reports for its internal business purposes. Access to the Custom Reports will be limited to a select number of Licensee’s employees designated by Licensee as outlined on the attached RCA Product Order Form(s), and Licensee shall advise such employees of their obligations hereunder with respect to keeping the Custom Reports confidential and require such employees to abide by the terms of this Agreement. Licensee and its employees shall maintain the confidentiality of the Custom Reports with the same degree of care, but no less than commercially reasonable, that it uses with its own confidential information. Under no circumstances shall Licensee give or provide the Custom Reports to its third-party advisors or consultants. The Custom Reports must be kept strictly confidential. Licensor will deliver the Custom Reports via an Excel spreadsheet according to the delivery schedule outlined on an attached Addendum, during the Term and/or any applicable Renewal Term. All Custom Reports are subject to further revision.
(a)In this clause 12, a word or expression defined in the GST Act which is not otherwise defined in this Agreement has the meaning given to it in that Act. “GST” has the meaning given to that term in the GST Act and “GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(b)All consideration provided under this Agreement is exclusive of GST unless it is specifically expressed to be GST inclusive. If a party (“Supplier”) makes a taxable supply to another party (“Recipient”) under or in connection with this Agreement in respect of which GST is payable, the Recipient must pay the Supplier an additional amount equal to the GST payable on the supply (unless the consideration for the taxable supply was specified to include GST). The additional amount must be paid by the Recipient by the later of: (i) the date when any consideration for the taxable supply is first paid or provided; and (ii) the date when the Supplier issues a tax invoice to the Recipient.
(c)If an adjustment event varies the amount of GST payable by a Supplier under this Agreement, the Supplier must adjust the amount payable by the Recipient to take account of the adjustment event. Any resulting payment must be paid by the Supplier to the Recipient, or the Recipient to the Supplier (as appropriate) within ten (10) business days of the Supplier becoming aware of the adjustment event. Any payment under this clause is to be treated as an increase or decrease of the additional amount payable under clause 12(b).
(d)If the GST payable in relation to a supply is less than the amount the Recipient has paid the Supplier under clause 12(b), the Supplier is only obligated to pay a refund of GST to the Recipient to the extent the Supplier receives a refund of that GST from the Australian Taxation Office.
(e)Subject to an express provision in this Agreement to the contrary, any payment, reimbursement or indemnity required to be made to a party (the “Payee”) under this Agreement which is calculated by reference to an amount paid or payable by the Payee to a third party (“Outgoing”) will be calculated by reference to that Outgoing inclusive of GST, less the amount of any input tax credit which the Payee is entitled to claim on that Outgoing.
(f)If part of a supply is a separate supply under GST law, that part is a separate supply for the purpose of this clause.
(g)Where the Supplier, Recipient or Payee in this clause 12 is a member of a GST group, a reference to the Supplier, Recipient or Payee includes the representative member of the GST group.
- Modern Slavery. Licensor and Licensee both (a) comply with the Modern Slavery Act 2018 (Cth) (“Modern Slavery Act”) and any policy of the Licensor relating to modern slavery, and (b) will do all things required (including by request from Licensor) or necessary to identify, assess and address risks of Modern Slavery practices in the operations and supply chains used by it in performing its obligations under the Agreement. If at any time the Licensee becomes aware of Modern Slavery practices in the operations or supply chains used in performing its obligations under the Agreement, it must (a) promptly notify the Licensor of those practices, and (b) as soon as reasonably practicable, take all reasonable steps to address or remove those practices. “Modern Slavery” has the same meaning as in the Modern Slavery Act.
- Warranty Disclaimer. RCA Products have been compiled from public and private sources believed to be reliable. Any reliance upon the RCA Products is at Licensee’s risk, and Licensor and its data suppliers shall not be responsible to Licensee or any third party for any liability arising from or related to the use of RCA Products in any way.
ALL SERVICES AND RCA PRODUCTS ARE PROVIDED AS IS, AS AVAILABLE AND WITH ALL FAULTS, AND LICENSOR AND ITS DATA SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES, AND, TO THE EXTENT PERMITTED BY LAW, DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT, ACCURACY OF INFORMATIONAL CONTENT, OR ANY WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE REGARDING THE SERVICES OR DELIVERABLES OR ANY OTHER MATTER PERTAINING TO THIS AGREEMENT. TO THE EXTENT PERMITTED BY LAW, LICENSOR AND ITS DATA SUPPLIERS ARE NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS.
TERMS, CONDITIONS, WARRANTIES AND GUARANTEES IMPLIED BY LAW (INCLUDING THE COMPETITION AND CONSUMER ACT 2010 (CTH)) MAY APPLY TO THIS AGREEMENT TO THE EXTENT REQUIRED BY THOSE LAWS (“NON-EXCLUDABLE GUARANTEES”). NOTHING IN THIS AGREEMENT RESTRICTS, EXCLUDES OR MODIFIES, OR PURPORTS TO RESTRICT, EXCLUDE OR MODIFY, ANY NON-EXCLUDABLE GUARANTEE. WHERE LICENSOR IS PERMITTED TO LIMIT LICENSEE’S REMEDY AGAINST IT FOR BREACH OF A NON-EXCLUDABLE GUARANTEE, LICENSOR’S LIABILITY TO LICENSEE FOR BREACH OF THAT NON-EXCLUDABLE GUARANTEE IS LIMITED, AT LICENSOR’S ELECTION, TO:
(I) IN THE CASE OF GOODS: REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS, REPAIR OF THE GOODS, PAYMENT OF THE COST OF REPLACING THE GOODS OR ACQUIRING EQUIVALENT GOODS, OR PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED; AND
(II) IN THE CASE OF SERVICES: EITHER RESUPPLYING THE SERVICES OR PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.
- Selection and Use Indemnification. The RCA Products and all other related information, reports, and services that are offered to Licensee are provided solely for general information, and do not constitute real estate, legal, tax, accounting, or other professional advice. Licensee assumes the sole responsibility for the selection of the RCA Products to achieve Licensee’s intended results, the use of the RCA Products, and the results attained from such selection and use. Licensee shall defend Licensor and its affiliates, and the directors, officers, employees, independent contractors, data suppliers, licensors, and agents of Licensor and its affiliates (“RCA Indemnitees”), at Licensee’s sole cost and expense, against any and all demands, claims, actions, suits, or other proceedings brought by third parties (“RCA Claim(s)”) against RCA -Indemnitees arising from or related to Licensee’s selection or use of RCA Products whether or not such use is in accordance with this Agreement and shall indemnify and hold RCA-Indemnitees harmless from any and all judgments, losses, liabilities, damages, costs, and expenses (including without limitation, reasonable attorney’s fees and attorney’s disbursements) arising out of or incurred in connection with such RCA Claims. Licensee’s liability under this Selection and Use Indemnification shall be reduced to the extent that Licensee is actually prejudiced by Licensor’s failure to give notice of an RCA Claim to Licensee promptly after Licensor learns of such RCA Claim. Licensee shall have the right to control the defense and settlement of any RCA Claims for which Licensee is obligated to defend, but Licensor shall have the right to participate in such RCA Claims at its own cost and expense.
- Indemnification by Licensor. Licensor shall defend Licensee and its affiliates, and the directors, officers, employees, independent contractors, and agents of Licensee and its affiliates (“Licensee Indemnitees”), at Licensor’s sole cost and expense, against any and all demands, claims, actions, suits, or other proceedings brought by third parties (“Licensee Claim(s)”) against Licensee-Indemnitees arising from or related to infringement of such third parties’ intellectual property rights, by the RCA Products as and when delivered, and shall indemnify and hold Licensee-Indemnitees harmless from any and all judgments, losses, liabilities, damages, costs, and expenses (including without limitation, reasonable attorney’s fees and attorney’s disbursements) arising out of or incurred in connection with such Licensee Claims. Licensor’s indemnification liability shall be reduced to the extent that Licensor is actually prejudiced by Licensee’s failure to give notice of a Licensee Claim to Licensor promptly after Licensee learns of such Licensee Claim. Licensor shall have the right to control the defense and settlement of any Licensee Claims for which Licensor is obligated to defend, but Licensee shall have the right to participate in such Licensee Claims at its own cost and expense.
- Limitation of Liability. The total aggregate liability of Licensor, its affiliates, and the directors, officers, employees, independent contractors, data suppliers, licensors, and agents of Licensor and its affiliates (when taken together in aggregate and not per person) under this Agreement shall under no circumstances exceed the amount actually paid to Licensor by Licensee, if any, for accessing the RCA Products in the calendar year in which the related claim accrued.
Excluding Licensor’s indemnity obligations, under no circumstances shall Licensor, its affiliates, and the directors, officers, employees, independent contractors, data suppliers, licensors, and agents of Licensor and its affiliates be liable to Licensee or any other person for:
(a) lost revenues, lost profits, loss of business;
(b) loss of contracts, goodwill or custom or failure to make anticipated savings;
(c) loss of data or use of data;
(d) damage to the other party’s reputation;
(e) third party claims; or
(f) any indirect, incidental, special, punitive, or consequential damages of any nature.
Nothing in this Agreement limits or excludes the liability of Licensee and Licensor, its affiliates, and the directors, officers, employees, independent contractors, data suppliers, licensors, and agents of either party and their affiliates for:
(a) death or personal injury resulting from its or their negligence;
(b) fraud (including fraudulent misrepresentation);
(c) any liability to the extent that such liability cannot be lawfully limited or excluded;
(d) willful misconduct; and/or
(e) gross negligence.
- Force majeure. When, as a result of Force Majeure, a party is prevented in whole or in part from carrying out its obligations under this Agreement it shall give prompt notice of this to the other party specifying the obligations it cannot perform and fully describing the event of Force Majeure. Following this notice and for as long as the Force Majeure continues the obligations which cannot be performed because of the Force Majeure shall be suspended.
An event of Force Majeure shall be remedied to the extent reasonably practicable and performance of the obligations shall be resumed as soon as reasonably possible. No party shall be required against its will to settle any labour dispute or to test the validity or refrain from testing the validity of any Federal, State or local law, order, rule or regulation.
The party which is prevented in whole or in part from performing its duties or carrying out its obligations under this Agreement as a result of Force Majeure shall take all action reasonably practicable to mitigate any loss suffered by another party or a third party as a result of that Force Majeure.
If such Force Majeure event has existed for three (3) consecutive months or more this Agreement may be terminated forthwith by either party by notice to the other in writing. In such case, to the extent that it may be fulfilled, the parties shall still fully comply with the terms of this Agreement in relation to termination matters.
Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure which results in or causes the failure of that party to perform any or all of its obligations under this Agreement. It includes each of the following, to the extent it is beyond the reasonable control of that party: (a) act of God, lightning, storm; flood, fire, earthquake or explosion, cyclone, tidal wave, landslide, adverse weather conditions; (b) strike, lock-out, or other labour difficulties; (c) active public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic or pandemic; (d) the effect of any applicable laws, orders, rules or regulations of any government or other competent authority; (f) shortage of materials; and (g) embargo, inability to obtain any necessary materials, equipment, facilities, or qualified employees, power or water shortage, lack of transportation, except that any event causing a lack of funds or failure or delay in the payment of money will not be considered an event of Force Majeure.
- Tems and Conditions. Licensee acknowledges and agrees to be bound by the terms of this Agreement and the attached RCA Product Order Forms as Addendum A; incorporated into this Agreement by this reference for all purposes. Licensee’s subscription to the RCA Products is for use by the entity defined as Licensee and is not available for the use, access, nor benefit of Licensee’s subsidiaries and/or affiliates without the prior written consent of Licensor and the payment of additional subscription fees. By accessing the RCA Products, Licensee agrees to be bound by this Agreement. Licensee’s use of RCA Products is subject to the terms within this Agreement or posted on Licensor’s Web Site on the date of Licensee’s use of the RCA Products unless otherwise agreed. Licensor reserves the right to add, remove or modify portions of these terms at any time and without notice. Any real estate transactional data provided to Licensor by Licensee may be incorporated into the RCA Products for all purposes. It is the duty of Licensee to make sure it is not a breach of any agreements it may have regarding confidentiality.
- Governing Law/Forum. This Agreement is governed by, and is to be construed in accordance with, the laws of New South Wales, Australia. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia and the courts having appeal from them.
- Assignment and Amendment. This Agreement, and all licenses, rights and obligations under this Agreement, may be assigned by Licensor. This Agreement, and all licenses, rights and obligations under this Agreement, may not be assigned or otherwise transferred by Licensee, whether voluntary or involuntary, by merger, change of control, consolidation, dissolution, operation of law, or any other manner, without the prior written consent of Licensor. For purposes of this Section, a “change of control” is deemed an assignment of rights and a “merger” refers to any merger in which Licensee participates, regardless of whether it is the surviving or disappearing corporation. Any attempted assignment or transfer in violation of this Section shall be null and void. Without limiting the generality of the foregoing sentence, this Agreement and all of the provisions in this Agreement shall be binding upon and inure to the benefit of the successors in interest and permitted assigns of Licensor and Licensee. This Agreement may not be amended, altered, nor modified except by a written instrument signed by Licensee and Licensor.
- Google Maps. Use of Google Maps within the RCA Products is subject to the Google Maps Terms of Service located at http://maps.google.com/help/terms_maps.html and the Google Legal Notices located at https://www.google.com/help/legalnotices_maps.html. The Google Terms of Service and Google Legal Notices may be updated from time to time and are incorporated into this Agreement by reference, as if set forth fully herein.
- Entire Agreement. This Agreement, as it may be amended from time to time, constitutes the entire agreement between Licensee and Licensor and governs Licensee’s use of the RCA Products and any other information, reports or services provided by Licensor. If any part of this Agreement is held invalid or unenforceable, Licensor may terminate the Agreement.