RERC LLC SUBSCRIPTION AND USER AGREEMENT
The RERC products and services, including information provided in the Situs RERC Real Estate Report, the RERC DataCenter™, the annual Expectations & Market Realities in Real Estate report, and any miscellaneous current or historical Situs RERC data, research and other information, reports and services offered by Situs RERC to Customer (individually and collectively the “RERC Products”), are provided solely for general information, and do not constitute real estate, legal, tax, accounting, or other professional advice. The information provided in the RERC Products is intended for use as background on the real estate industry as a whole and not as support for any particular real estate investment or security. Although RERC uses only sources that it deems reliable and accurate, RERC does not warrant the accuracy of the information contained herein. Before acting on any information provided by RERC, Customer should consult an appropriate professional.
Subject to the terms and conditions of this Agreement and the applicable order form, RERC hereby grants to Customer a limited, revocable, non-transferrable and non-exclusive license to use the RERC Products only in the ordinary course of its business operations for its own internal business purposes, and in accordance with this Agreement.
Unless otherwise provided in the applicable order form, access to the RERC Products is by way of individual subscriptions. By entering into such an order form, Customer agrees to be bound by the terms of this Agreement. Customer will pay all fees specified in the applicable order forms. Except as otherwise specified herein or in the applicable order form: (a) the fees are based on access to the RERC Products and not actual usage; and (b) payment obligations are non-cancelable and fees paid are non-refundable. RERC shall have the right to suspend or terminate Customer’s subscription in its sole discretion in the event fees are not paid in accordance with this provision or the applicable order form.
The term of each subscription shall be as specified in the applicable order form. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated. Upon expiration or termination of this Agreement, all of Customer’s rights and licenses with respect to the RERC Products shall immediately terminate.
Customer shall: (a) provide accurate, current and complete registration information; (b) maintain and update this information to keep it accurate, current and complete; and (c) use commercially reasonable efforts to prevent unauthorized access to RERC Products, and notify RERC promptly of any such unauthorized access or use. Only a registered Customer user may access the RERC Products using Customer’s user name and password. Each Customer user must enroll separately and complete his or her own subscription registration.
Transfer, sharing, or assignment of a Customer’s password or user name to any person is strictly prohibited. RERC reserves the right to require Customer to reset Customer’s user password from time to time. RERC further reserves the right to audit and electronically monitor the number of accesses and/or requests for information a Customer submits, and the frequency and duration of a Customer’s activity with the RERC Products. RERC may terminate Customer’s subscription to the RERC Products or deny access to all or part of the RERC Products without prior notice if Customer violates any of the terms of this Agreement or the applicable order form. RERC may also terminate Customers subscription to the RERC Products at such time as Customer acquires, or is acquired, by any third party which is, in the reasonable opinion of RERC, a competitor of RERC. In the event of a merger or acquisition of Customer with another entity, including another RERC customer, separate terms must be negotiated to add or combine any user/user groups from the new entity with Customer, and Customer further agrees to promptly notify RERC if such merger or acquisition is with another entity that is a competitor of RERC.
It is understood that Customer is purchasing a user license to the RERC Products. This Agreement provides no other entity or individual outside of the Customer named herein to have access to the RERC Products through your subscription.
III. CUSTOMER USE LIMITATIONS.
Customer’s use of the RERC Products is limited. Except as set forth elsewhere in this agreement or as specifically authorized by RERC, Customer shall not, nor shall it aid or permit any third party to: (a) make or retain any copy of the RERC Products except as part of Customer’s normal business practices; (b) create any database, compilation or organized collection of data based upon the RERC Products or any component thereof, including for internal business purposes; (c) edit, modify, access, adapt, translate, port, reproduce, transfer, lend, sell, lease, rent, sublicense, assign, or otherwise transfer any of the RERC Products; (d) prepare any derivative work based upon the RERC Products or any component thereof; (e) reverse engineer, disassemble or decompile the RERC Products or any component thereof, or attempt to discover or disclose any source code related thereto; (f) distribute, sublicense, or resell the RERC Products or any portion thereof, its media, or output; (g) directly or indirectly use, rent, resell, change, recompile, or manipulate any of the information or compilations of data, or any portion thereof, for commercial gain, nor for purposes of external distribution or publication; (h) use the RERC Products as part of any effort to compete with RERC, including without limitation, using the RERC Products to provide, alone or in combination with any other product or service, any services to any third party or any use that causes a reduction or loss of the RERC Products sales from an existing or potential customer; (i) permit or allow any unauthorized person to use or access the username and password provided to Customer; (j) attempt to or actually disrupt, impair, interfere with, alter, or modify the RERC Products or presentation thereof; (k) otherwise retransmit, distribute, disseminate, sell, publish, or circulate charts, data or other information received through the RERC Products to any third party without the express prior written consent of RERC; or (l) remove, erase, or tamper with any copyright or other proprietary notice printed or stamped on, affixed to, or encoded or recorded on any of the RERC Products.
Subject to the prior written approval by RERC which shall not be unreasonably withheld, Customer may include limited amounts of the RERC Products in periodic or custom reports to Customer’s existing or prospective clients and investors so long as such reports are not provided in connection with any information vending or commercial publishing activity carried on by Customer.
For the purposes of this Agreement, “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.
RERC Products and images, illustrations, designs, icons, graphs, charts, lists, photographs, and written and other materials contained in the RERC Products are provided to the Customer on a strictly limited use basis. All rights, including without limitation, Intellectual Property Rights as defined above, title, and interest lie exclusively with RERC and its data suppliers. This Agreement is not an agreement of sale, and no title or Intellectual Property Rights or other ownership rights to RERC are transferred to Customer pursuant to this Agreement. Customer acknowledges that the restrictions in this Agreement are reasonable and necessary to protect RERC and its data suppliers’ legitimate business interests. Customer also acknowledges that the real property ownership information is proprietary information of RERC and its data suppliers. Customer acknowledges that RERC information is a valuable commercial product, the development of which has involved the expenditure of substantial time and money.
RERC Products have been compiled from public and private sources believed to be reliable. Any reliance upon the RERC Products is at Customer’s risk, and RERC and its data suppliers shall not be responsible to Customer or any third party for any liability arising from or related to the use of RERC Products in any way. Customer assumes the sole responsibility for the selection of the RERC Products to achieve Customer’s intended results, the use of the RERC Products, and the results attained from such selection and use.
EXCEPT AS SPECIFIED IN THIS AGREEMENT, ALL SERVICES AND RERC PRODUCTS ARE PROVIDED AS IS, AS AVAILABLE AND WITH ALL FAULTS, AND RERC AND ITS DATA SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES, AND 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. RERC AND ITS DATA SUPPLIERS ARE NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS.
Customer shall defend RERC and its affiliates, and the directors, officers, employees, independent contractors, data suppliers, and agents of RERC and its affiliates, at Customer’s sole cost and expense, against any and all demands, claims, actions, suits, or other proceedings (“Claims”) against RERC arising from or related to Customer’s selection or use of RERC research, whether or not such use is in accordance with this Agreement, and shall indemnify and hold RERC 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 Claims. Customer’s liability shall be reduced to the extent that Customer is actually prejudiced by RERC’s failure to give notice of a claim to Customer promptly after RERC learns of such claim and in no circumstance exceed the per year fee in the applicable order form. Customer shall have the right to control the defense and settlement of any claims for which Customer is obligated to indemnify and hold accountable, but RERC shall have the right to participate in such claims at its own cost and expense.
Notwithstanding any other provisions of this Agreement, Customer acknowledges that breach of any provision of this Agreement by Customer which relates to the protection of RERC’s Intellectual Property Rights and license or use restrictions, may cause RERC irreparable damage for which recovery of money damages would be inadequate, and RERC shall therefore be entitled to obtain injunctive relief to protect its rights under this Agreement in addition to any and all remedies available at law. Customer hereby waives the requirement of a bond in the event RERC seeks injunctive relief.
This Agreement, and all licenses, rights and obligations under this Agreement, may be assigned by RERC. This Agreement, and all licenses, rights and obligations under this Agreement, may not be assigned or otherwise transferred by Customer without the prior written consent of RERC. 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 RERC and Customer.
This Agreement shall be governed in accordance with the laws of the State of Iowa. All disputes under this Agreement shall be resolved by litigation in the courts of the State of Iowa including the federal courts therein and the parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.
No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same or other provisions of this Agreement.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
This Agreement constitutes the entire understanding of the parties, and revokes and supersedes all prior agreements between the parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents that may conflict with this Agreement.