MEGA Platform License Agreement
Renwood RealtyTrac, LLC ("RealtyTrac")
One Venture Plaza, Suite 300
Irvine, CA 92618
RealtyTrac may modify this Agreement from time to time by posting a modified Agreement on the website. Your continued use of the Services thereafter will constitute agreement to such modifications. At the time of any material modifications, RealtyTrac will change the "Last Updated" date at the end of this Agreement. Please review this Agreement from time to time so that you are apprised of any changes.
By registering with this website, you understand and agree that you have established a business relationship between you and RealtyTrac. You represent that you are of legal age to form a binding contract and have the full power, capacity and authority to accept this Agreement , on behalf of yourself (if you are an individual) or, if applicable, on behalf of your company. BY REGISTERING ON THE WEBSITE, YOU AGREE THAT REALTYTRAC MAY CONTACT YOU BY TELEPHONE AT THE NUMBER YOU PROVIDED OR BY EMAIL AT THE ADDRESS YOU PROVIDED REGARDING OTHER PRODUCTS OR SERVICES OFFERED BY OR THROUGH REALTYTRAC EVEN IF YOUR TELEPHONE NUMBER IS ON A DO-NOT-CALL REGISTRY OR SIMILAR LIST. With any email communication, RealtyTrac will provide a means by which you may opt-out of further communication.
1. Grant of License.
Subject to this Agreement, and any applicable List Rental Schedule executed by the parties, RealtyTrac hereby grants to Licensee a non-exclusive, non-transferable, limited license, to use the List Data solely for the lawful purposes set out below under 'Permitted Use of List Data and as identified in any separate List Rental Schedule. Unless expressly provided otherwise, the Services are solely for use within Licensee's own organization by Licensee's own employees.
2. Permitted Use of List Data.
Unless expressly provided otherwise in a List Rental Schedule, Licensee is permitted to use the Services solely for its own internal direct marketing purposes. Licensee may use each address or telephone number connected to a given property one (1) time only for direct marketing activities, including but not limited to: promoting, marketing, surveying or soliciting by Licensee, by way of telemarketing, email marketing, any other advertising or promotional materials, such as flyers, pamphlets, brochures, mailers, video or audio tapes or electronic mail, whether in print or other media. Further, Licensee shall comply with the CAN-SPAM Act, COPPA, and any State Registry laws, the most current published guidelines of the Direct Marketing Association (DMA), and all federal, state and local laws and regulations (including, but not limited to Do Not Call legislation and rules and guidelines of the Federal Trade Commission) regarding direct mailing campaigns and the use and dissemination of data or media similar to the List Data. If Licensee is not a member of the DMA, Licensee will use best efforts to comply with the DMA's guidelines.
Licensee may use a third party processor ("Processor") to process data on Licensee's behalf for purposes of appending data or preparing mail, email or calling campaigns. The Processor shall only use the List Data on behalf of Licensee for the sole purpose of fulfilling such specific obligations, and shall not use the List Data for its own internal business purposes or on behalf of any third party. Licensee is liable for the Processor's use of the List Data, and compliance with the terms of this Agreement.
3. License Restrictions.
- Licensee shall not: (i) disclose, use, disseminate, reproduce or publish any portion of the Services in any manner other than as expressly permitted in this Agreement or the applicable List Rental Schedule, (ii) permit any parent, subsidiary, other affiliated entity or other third party, including any third party entity involved in a joint marketing arrangement with Licensee, to use the Services or any portion thereof, (iii) grant access to the Services, or any portion thereof, to individuals incarcerated in prisons or correctional institutions, (iv) allow access to the Services through any terminal located outside of Licensee's operations, (v) use the Services outside the United States.
- Licensee shall not: (i) resell, relicense or redistribute the Services in whole or in part without the prior written consent of RealtyTrac, (ii) use the Services to create any derivative product, (iii) use the Services to create, enhance or structure any database in any form for resale or distribution, (iv) process or permit to be processed the Services or any portion thereof, with other data from any other source, (v) merge or incorporate the Services with any other file, (vi) use the Services to enhance a file or list owned by any third party, (vii) use the Services to develop any list, enhancement or product, or (viii) use the Services to prepare, publish, clean or maintain any directory.
- Licensee shall (i) comply with all federal, state, and local laws, regulations, ordinances and court orders from competent jurisdictions as well as the published guidelines of the Direct Marketing Association and other applicable industry guidelines, regarding the use, storage and dissemination of data such as the List Data, (ii) abide by all prevailing federal, state, and local laws, regulations, ordinances and court orders from competent jurisdictions, including but not limited to those governing fair information practices and consumers' rights to privacy, telemarketing, and any applicable non-solicitation laws and regulations; (iii) limit access to consumer information to those individuals who have a "need to know" in connection with Licensee's business and will obligate those individuals to acknowledge consumers' rights to privacy and adhere to fair information practices and consumers' right to privacy; (iv) abide by RealtyTrac's privacy policies and Licensee's own privacy policies; and (v) use the Services in a manner that gives due consideration to matters concerning privacy.
- Licensee understands that the List Data has not been collected for credit purposes and is not intended to be indicative of any consumer's credit worthiness, credit standing, credit capacity, or other characteristics listed in Section 1681(a) of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. Licensee shall not use the Services (i) as a factor in establishing an individual's eligibility for credit or insurance, (ii) in connection with underwriting individual insurance, (iii) in evaluating an individual for employment purposes, (iv) in connection with a determination of an individual's eligibility for a license or other benefit granted by a governmental authority, (v) in any way that would cause the Services to constitute a "consumer report" under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., or (vi) in any other manner that would cause such use of the Services to be construed as a consumer report by any pertinent governmental authority.
- Licensee represents and warrants that it is not, nor does it represent, one of the following entities, nor is it an affiliate or subsidiary of one of the following entities: Acxiom Corporation, Black Knight Financial Services, Inc., CBC Innovis, Experian, Equifax, Fair Isaac Corporation, Fidelity National Financial, Inc., First American Financial Corporation, FNC, Lexis-Nexis, TransUnion, Verisk, or Zillow.
- Licensee shall be solely responsible for maintaining the confidentiality of all usernames and passwords used by its employees and Licensee shall be responsible for all use and fees associated with accessing the data with the password, whether or not authorized by Licensee
- Licensee shall not use the Services for any purpose that (i) infringes any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy, or (ii) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing.
- Licensee shall not remove, alter or obscure any proprietary notices in the Services and will reproduce all such notices on all copies or portions thereof.
- Licensee shall not refer to any selection criteria or any presumed knowledge about the consumer being contacted in any direct mail solicitation, telephone solicitation or survey.
- Licensee further represents, warrants, affirms and agrees that Licensee will not transfer, sell, convey, use, resell or sublicense any List Data provided by RealtyTrac to Licensee in any medium, form, manner or format whatsoever, for any purpose including, but not limited to the reproduction, reformatting, publication, distribution or dissemination associated with any service or product provided or made available to any third party; World Wide Web, Internet or online uses, real estate valuation models, programs or systems, inclusion or in combination with any other service or product of any kind, real estate appraisal, evaluation of risk or marketing and/or sale of insurance products of any kind, including but not limited to life, health, long-term care, disability, casualty, umbrella, mortgage, title or property, debt collection, to advertise, sell, or exchange any products or services that involve sexual paraphernalia, drug paraphernalia, adult products (Re: films, or recordings or magazines), weapons, credit repair services, or other illegal or illicit activities. Licensee shall not use the "deceased flag" for marketing purposes based solely on the presence of the deceased identification. "Mailing Address" is an aid to keep Licensee's mail files current. It can only be used to update mailing lists. It cannot be used to identify movers for any promotional purpose.
4. Proprietary Rights.
The Services and all intellectual property rights therein are owned by RealtyTrac or its third party data providers. No ownership rights are granted by this Agreement and, except for the limited license provided, RealtyTrac reserves all rights in and to the Services and all underlying data compilations and information contained therein, including but not limited to the exclusive intellectual property rights and the right to grant further licenses. Licensee acknowledges that the Services are the proprietary property of RealtyTrac or its third party data providers and are a valuable commercial product, the development of which involved an expenditure of substantial time and money by RealtyTrac. Licensee's use is subject to the express limitations and restrictions provided for in this Agreement.
5. Consequences of Non-Compliance with Agreement.
At any time that RealtyTrac believes, in its sole discretion, that Licensee has violated any term, condition, restriction, permitted use or limitation provided in this Agreement, RealtyTrac may immediately terminate this Agreement and pursue any or all available legal remedies. The prevailing party shall be awarded its reasonable attorney's fees and costs in any lawsuit arising out of or related to this Agreement. Seed names, code and/or content have been included in the List Data to detect unauthorized use.
RealtyTrac reserves the right to cancel access to the List Data by Licensee at any time.
7. Survival of Terms.
The License Restrictions, Proprietary Rights, and Consequences sections described herein survive any termination of this Agreement. Further, any other provision of this Agreement that contemplates performance subsequent to the expiration or earlier termination of this Agreement shall survive such expiration or termination and shall continue in full force and effect until fully satisfied.
8. Modification of RealtyTrac Services.
RealtyTrac reserves the right to modify or discontinue any service, portion or attribute thereof, and the offering of any information, goods, content or product, with or without notice to Licensee. RealtyTrac is not liable to Licensee in the event that RealtyTrac exercises its right to modify or discontinue any service.
9. Payment of Charges.
A. RealtyTrac charges a per record fee along with additional field fees (the additional field fees may vary and are only charged when selected). Licensee agrees to pay any costs associated with these fees as deemed necessary by RealtyTrac.
B. On Time Payment
In consideration of the rights granted to Licensee hereunder, Licensee shall pay to RealtyTrac the fees stated within the Services prior to delivery of List Data. By submitting an order to RealtyTrac, Licensee authorizes RealtyTrac to charge the credit card provided by Licensee for the Services at the fees stated within the Services, unless expressly agreed to otherwise in a List Rental Schedule. Fees are exclusive of use, ad valorem, personal property, and other taxes, which are the responsibility of Licensee. RealtyTrac shall charge Licensee applicable sales tax, and Licensee shall be responsible for filing all other taxes. RealtyTrac reserves the right to change the fees for the Services at any time. Credit card transactions require an acceptable and currently working/continuously valid credit card number/account. RealtyTrac may terminate or disable Licensee's access to the Services if the Licensee fails to pay fully and in a timely manner all amounts due to RealtyTrac. If Licensee's credit card expires or is otherwise declined for payment, access to the Services and website can be modified or suspended without notice to Licensee. Licensee shall provide all Internet connectivity, hardware and software necessary to access the Services.
If any Licensee payment is more than thirty (30) calendar days past due, interest pro-rated daily, at the rate of 12 percent (12%) per annum on the outstanding balance, or the maximum allowable by law, whichever is less, shall accrue, and the entire amount of unpaid charges and/or any other outstanding balance (if any), plus this assessment, will become immediately due and payable. The Licensee shall pay all costs of collection, including legal fees, incurred by RealtyTrac. Licensee is responsible for any premium charges incurred in connection with the use of information, content, goods, products or services that are provided at an extra cost pursuant to Section A above. All fees are quoted and payable in United States Dollars. Licensee is responsible for paying all applicable taxes for information, content, goods, products or services and any other costs incurred in connection with the use of the Services and website.
C. Payment Methods
Licensee's complete billing address and telephone number must be provided to RealtyTrac. RealtyTrac accepts major credit cards including Visa, MasterCard and American Express.
D. Account Discrepancies and Customer Support
Licensee may contact RealtyTrac via email at email@example.com concerning charges or other questions regarding the status of Licensee's account or issues related to use of the website.
RealtyTrac's Exchange and Refund Policy is posted separately on the website. RealtyTrac reserves the right to change the terms of its Exchange and Refund Policy without notice to Licensee.
10. Disclaimers and Limitations.
REALTYTRAC, ITS SUPPLIERS, PARTICIPATING LENDERS, PROFESSIONAL SERVICE PROVIDERS, THIRD-PARTY CONTENT PROVIDERS AND OTHER SERVICE PROVIDERS MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE METHODOLOGIES USED OR THE ACCURACY, TIMELINESS, RELIABILITY OR COMPLETENESS OF ANY OF THE SERVICES. THE SERVICES ARE INFORMATIONAL ONLY AND ARE NOT INTENDED TO PROVIDE SPECIFIC COMMERCIAL, FINANCIAL OR INVESTMENT ADVICE. THE SERVICES ARE BASED UPON CERTAIN DATA, SUBJECT TO FREQUENT CHANGE. THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND WHATSOEVER, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. ANY RELIANCE ON OR USE BY LICENSEE OF THE SERVICES SHALL BE ENTIRELY AT LICENSEE'S OWN RISK. REALTYTRAC MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE LEGALITY OR PROPRIETY OF THE USE OF THE SERVICES IN ANY JURISDICTION, STATE OR REGION. LICENSEE SHALL BE SOLELY RESPONSIBLE FOR OBTAINING ANY AND ALL NECESSARY LICENSES, CERTIFICATES, PERMITS, APPROVALS OR OTHER AUTHORIZATIONS REQUIRED BY FEDERAL, STATE OR LOCAL STATUTE, LAW OR REGULATION APPLICABLE TO LICENSEE'S USE OF THE SERVICES.
REALTYTRAC SHALL HAVE NO LIABILITY UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT FOR ANY LOSS OF PROFIT OR REVENUE OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, EVEN IF REALTYTRAC IS AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY. LICENSEE AGREES THAT THE LIMITATIONS SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THIS AGREEMENT, AND THAT THE SERVICES WOULD NOT BE PROVIDED TO LICENSEE ABSENT SUCH LIMITATIONS. REALTYTRAC'S TOTAL LIABILITY AND LICENSEE'S EXCLUSIVE REMEDY UNDER OR RELATED TO THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, SHALL BE LIMITED TO DIRECT MONEY DAMAGES NOT EXCEEDING THE AMOUNT PAID BY LICENSEE TO REALTYTRAC DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THIS LIMIT IS CUMULATIVE AND ALL PAYMENTS UNDER THIS AGREEMENT WILL BE AGGREGATED TO CALCULATE SATISFACTION OF THE LIMIT. THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT ENLARGE THE LIMIT.
LICENSEE SHALL INDEMNIFY REALTYTRAC AND ITS SUPPLIERS, DISTRIBUTORS, THIRD PARTY DATA PROVIDERS, OR OTHER SERVICE PROVIDERS FROM AND AGAINST ANY AND ALL LIABILITIES, EXPENSES (INCLUDING ATTORNEYS' FEES) AND DAMAGES ARISING OUT OF CLAIMS RESULTING FROM LICENSEE'S USE OF THE LIST DATA, OR ATTRIBUTABLE TO LICENSEE'S BREACH OF THIS AGREEMENT; PROVIDED THAT REALTYTRAC GIVES LICENSEE PROMPT WRITTEN NOTICE OF ANY SUCH CLAIM. REALTYTRAC SHALL CONTROL THE DEFENSE AND ANY SETTLEMENT OF SUCH CLAIM, AND LICENSEE SHALL COOPERATE WITH REALTYTRAC IN DEFENDING AGAINST SUCH CLAIM.
12. Dispute Resolution.
Licensee agrees that any claim or controversy, arising out of or relating to the Services, including but not limited to any claim or controversy ("Dispute"), shall be finally, and exclusively, settled by arbitration in Orange County, California under the commercial arbitration rules of the American Arbitration Association ("AAA") in force at that time. Any judgment upon the award rendered by the arbitrator may be entered only in a court of competent jurisdiction in Orange County, California.
The parties agree that the arbitrator shall have limited authority to award damages such that the arbitrator shall not have the power to award damages in excess of actual compensatory damages and shall not multiply actual damages or award consequential, punitive or exemplary damages, and each party irrevocably waives any claim thereto.
The agreement to arbitrate shall not be construed as an agreement or consolidation of arbitration under this Agreement with arbitration of disputes or claims of any non-party, regardless of the nature of the issues or disputes involved. THIS AGREEMENT PROVIDES THAT ALL DISPUTES BETWEEN LICENSEE AND REALTYTRAC WILL BE RESOLVED BY BINDING ARBITRATION IN ORANGE COUNTY, CALIFORNIA. LICENSEE THUS GIVES UP ITS RIGHT TO GO TO COURT TO ASSERT OR DEFEND ITS RIGHTS. LICENSEE ALSO GIVES UP ITS RIGHT TO PARTICIPATE IN OR BRING CLASS ACTIONS. LICENSEE'S RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY. LICENSEE AND REALTYTRAC RETAIN THE RIGHT TO PURSUE INJUNCTIVE RELIEF IN COURT, AND AGREE THAT SUCH CLAIMS FOR INJUNCTIVE RELIEF MAY ONLY BE BROUGHT IN A COURT OF COMPETENT JURISDICTION IN ORANGE COUNTY, CALIFORNIA.
A printed version of this Agreement, the List Rental Schedule, and/or any notice given in electronic form shall be admissible in arbitration, judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
13. Term and Termination.
This Agreement is effective immediately, and shall continue in full force and effect until the earlier of (i) such time as both parties mutually agree to terminate in writing, or (ii) the termination of this Agreement as set forth below or as otherwise provided herein. Each List Rental Schedule executed by the parties hereunder shall clearly set forth the term of such List Rental Schedule. A termination of any List Rental Schedule shall not affect the obligations of the parties as to any other List Rental Schedules. If either party breaches any provision of this Agreement, the non-breaching party shall, upon providing written notice of such breach, be entitled to immediately terminate this Agreement, provided such breach is not cured within five (5) days following such notice. Upon termination of this Agreement by either party, Licensee, at its own expense, shall return all Services to RealtyTrac or certify that the Services have been destroyed within ten (10) business days of termination, and any amounts unpaid by Licensee shall be immediately due and payable. Failure to return or certify the destruction of the Services to RealtyTrac will result in: (i) Licensee's obligation to pay a perpetual license fee for the Services; or (ii) Licensee's obligation to permit RealtyTrac's agent to have access to Licensee's premises for the retrieval of the Services and Licensee shall pay the actual costs as reasonably incurred by RealtyTrac to retrieve same.
Licensee shall maintain current, accurate and complete records relating to its use of the Services for at least twelve (12) months after any direct marketing activity, including, but not limited to: sample mail pieces, telemarketing scripts, ad copy and other communications, as applicable. RealtyTrac, or any representative it designates, shall have the right to examine, copy and make extracts from all such records and any source documents used in preparation thereof, at any time during normal business hours, provided RealtyTrac gives Licensee reasonable notice prior to any such examination. At any time upon RealtyTrac's request, Licensee shall provide RealtyTrac with a copy of the direct mail solicitations or telephone scripts used in connection with the Services. Upon reasonable notice, RealtyTrac reserves the right to review any such solicitations or scripts for compliance with this Agreement. In the event Licensee fails to provide such items, RealtyTrac may delay delivery of the Services with no liability. If, in RealtyTrac's sole judgment, the subject solicitations or scripts fail to comply with this Agreement, RealtyTrac may cancel or terminate this Agreement, with no liability.
15. Other Terms.
The interpretation and construction of this Agreement, and all matters relating hereto, shall be governed by the laws of the State of California applicable to agreements executed and to be performed solely within California. The parties hereby submit to the jurisdiction of, and waive any venue objections against, the United States District Court for the Central District of California, Orange County Branch and the Superior and Municipal Courts of the State of California, Orange County in any litigation arising out of relating to this Agreement or its subject matter. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, including but not limited to the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid enforceable provision that most closely matches the intent of the original provision, and the remainder of the Agreement shall continue in effect.
Unless specified otherwise in a fully-executed license agreement with RealtyTrac, this Agreement constitutes the entire agreement between the parties with respect to the Services and supersedes any prior understanding or agreement, oral or written, relating to the Services. RealtyTrac shall not be liable for any delay or failure in its performance of any of the acts required by this Agreement when such delay or failure arises for reasons beyond RealtyTrac's reasonable control. Licensee may not assign this Agreement or any rights or obligations hereunder.
Neither party shall use, or permit their respective employees, agents and subcontractors to use the trademarks, service marks, copyrighted material, logos, names, or any other proprietary designations of the other party, or the other party's affiliates, whether registered or unregistered, without such other party's prior written consent. Except with RealtyTrac's prior written approval, Licensee shall not disclose RealtyTrac as a data source to any third party, unless required by federal, state or local laws or government regulations and with prior written notice to RealtyTrac.
Licensee shall provide for physical security of the Services with the same degree of care (provided that such is at least a reasonable degree of care) that Licensee uses to protect its own most sensitive data. Any notice or other communication required or permitted under this Agreement shall be sufficiently given if delivered in person or sent by one of the following methods: (a) registered U.S. mail, return receipt requested (postage prepaid); (2) certified U.S. mail, return receipt requested (postage prepaid); or (3) commercially recognized overnight service with tracking capabilities. Notices to RealtyTrac shall be sent to One Venture Plaza, Suite 300, Irvine, California 92618, with a copy to RealtyTrac's counsel at the same address marked Attention: Legal Department. Notices to Licensee shall be sent to the address entered by Licensee in the website's registration information. Notices or communications shall be deemed properly delivered as of the date personally delivered or sent by mail or overnight service.
The website may include links to other websites beyond the control of RealtyTrac. RealtyTrac provides you with these links solely for your convenience. Some of these websites may be co-branded (i.e., bear the name and/or logo of both a third party RealtyTrac and RealtyTrac). The provision of any link to another RealtyTrac does not signify an endorsement by RealtyTrac of the RealtyTrac's website or the services offered by that RealtyTrac. RealtyTrac has no control over, does not review, and cannot be responsible for the information contained on other websites. Your use of such websites will be subject to that website's terms and conditions. YOU AGREE THAT REALTYTRAC WILL NOT BE RESPONSIBLE OR LIABLE FOR LOSS OR DAMAGE YOU MAY INCUR AS THE RESULT OF A TRANSACTION YOU ENTER INTO THROUGH ANOTHER WEB SITE.
Access to the website may from time to time be unavailable, delayed or limited due to, among other things: hardware failure; software failure, including among other things, bugs, errors, viruses, configuration problems, incompatibility of systems, utilities or applications, the operation of firewalls or screening programs, unreadable codes, or content irregularities; system overload; damage caused by severe weather, natural disasters, war or acts of God; terrorism; interruption of power supplies; strike or other stoppage of labor; governmental or regulatory restrictions; or any other cause whatsoever beyond the control of RealtyTrac.
All rights not expressly granted herein are reserved.
Last Updated July 30, 2015.