1.Introduction.
A. This electronic-license agreement along with any appendices, addenda,
amendments and Pricing Schedule and Fees (as defined below) are collectively
known as the 'Agreement.' The terms “you” and “your”, as used in this
Agreement, define the user of the software, products, and information
provided under this Agreement. In the case where you are representing a
corporation, limited liability, or other business entity, “you” and “your”
means such entity.
B. This Agreement represents your binding consent to conduct your contractual
relationship with DataQuick Information Systems, Inc. ('DataQuick') through
electronic means and to license certain DataQuick data, software and/or
product (collectively 'Licensed Information') as specified on your Licensed
Information order form (“Pricing Schedule and Fees”). Such Licensed
Information will be delivered through your access to the DataQuick website
('Site').
C. The Licensed Information is not available for your use other than via the
Site, however you may agree to the use of such Licensed Information via hard
copy license agreement.
D. You will choose a user name and a password. You are responsible for
maintaining the confidentiality of your account and your password. You are
also responsible for restricting access to your computer. You agree to accept
responsibility for all activities that occur under your account or password.
You must provide DataQuick with your e-mail address, and keep it current at
all times. Otherwise, your service may be interrupted. You can update your
e-mail address by contacting DataQuick at http://my.dataquick.com.
E. This Agreement shall be effective upon the date of DataQuick's approval
('Effective Date'). YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT,
INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY AND TERMINATION
PROVISIONS INCLUDED IN IT. Further, you agree to be bound by any terms of
use of any product contained within the Licensed Information. DataQuick
reserves the right to update and change the Agreement from time to time
without notice. Any new features that augment or enhance the current Licensed
Information, including the release of new tools and products, shall be
subject to the Agreement. Continued use of the Licensed Information after any
such changes shall constitute your consent to such changes. You can request
the most current version of the Agreement at any time by contacting your
representative at DataQuick.
2.Grant of License
Subject to your payment of the fees mentioned herein, and subject to your
compliance with the terms and conditions of this Agreement, DataQuick grants
you during the term of this Agreement a limited, non-exclusive,
non-transferable, non-assignable (by merger, sale, change of control,
operation of law or otherwise) license to:
A. Access certain Licensed Information via the Site.
B. Use the Licensed Information solely for your lawful internal business
purposes within the scope of your professional activities. The scope of the
this license is limited to your internal business purposes only and does not
include or permit any form of external commercial exploitation whatsoever,
including but not limited to sublicense, distribution, or sale.
3.Additional Terms of Use Related to the Dataquick Licensed Information
A. You are prohibited from using the name, logo, trademarks, or service marks
of DataQuick without DataQuick’s prior written consent.
B. You shall not sell, resell, distribute, rent, or lease the Licensed
Information or use or display the Licensed Information in a network,
timesharing, on the internet, or multiple CPU or multi-user arrangement,
without the prior written consent of DataQuick. In the event of consent,
DataQuick reserves the right to adjust your license fees applicable to the
additional use(s).
C. You shall not copy, modify, alter, adapt, or transfer, in whole or in
part, the Licensed Information or any documentation related thereto,
including, but not limited to comparing, translating, decompiling,
disassembling, reverse engineering, or creating derivative works of the
Licensed Information or any documentation related thereto.
D. You shall not use the Licensed Information for credit reporting, insurance
eligibility, flood hazard determination (on FEMA form 81-93 or its successor
or replacement), employment purposes, illegal activities including sexual
products or services, drugs, pornographic, weapons or credit repair or title
insurance purposes, including, but not limited to policies, abstracts of
title, or commitments.
E. You shall provide for all telephone lines, local and long distance
telephone charges and/or other equipment necessary to access the Licensed
Information.
F. You agree to use the Licensed Information lawfully and agree that you will
perform your obligations hereunder in accordance with all applicable laws,
rules and regulations now or hereafter in effect. As such you are permitted
to store or archive the Licensed Information on a per report basis solely as
may be necessary to comply with such laws, rules and regulations, however
such storage must be in a manner that prevents you from aggregating the
Licensed Information.
G. You agree not to provide or otherwise make available any licensed
application, program, or material, or access to the Licensed Information
licensed hereunder to any entity or person (other than your designated
employees or agents for whom you agree to accept responsibility for their use
of the Licensed Information).
H. DataQuick specifically prohibits you from incorporating any Licensed
Information into any product or service for any commercial purpose or
distribution whatsoever.
I. You shall be responsible for receiving and answering any and all customer
and consumer complaints connected with your use of the Licensed Information.
4.Order Of Precedence
In the event of a conflict or ambiguity between the terms and conditions of
this Agreement and any Pricing Schedule and Fees, the terms and conditions of
this Agreement will prevail
5.Term/Termination
A. You have various options by which you may enter into this Agreement via
the Pricing Schedule and Fees, each of which is described below.
1. Residential Realtor Direct, Commercial Realtor Direct,
and Lender Direct
In the
event you select one of these options, upon entering into the Agreement, the
initial term of this Agreement commences on the Effective Date and prepayment
by you via credit card and shall continue for a period of SIX (6) MONTHS
thereafter (the “Initial Six Month Period”) or until the prepayment is
depleted, whichever occurs earliest. Upon conclusion of the Initial Six
Month Period the term shall expire naturally and any unused prepayment will
be forfeited. In the event that you prepay an additional six-month fee prior
to the end of the Initial Six Month Period, the term of this Agreement
automatically adjusts to expire on the SIX (6) MONTH anniversary of the date
the last prepayment was made. Transactions will be debited against the
pre-paid fee at the rates listed in your Pricing Schedule and Fees. If your
transactions during any month exceed the number of transactions included in
the selected package pursuant to the Pricing Schedule and Fees, any overages
shall be billed to you monthly, in arrears. All invoices are due and payable
within thirty (30) days of receipt.
2. Foreclosure Finder – Pre-paid (Transaction Based).
In the event you select this option, upon entering into the
Agreement and upon paying the pre-paid fee, you shall have access to
ForeclosureFinder at the rates listed in the Pricing Schedule and Fees during
the Initial Six Month Period, or until the prepayment is depleted, whichever
occurs earliest. Transactions will be debited against the pre-paid fee at
the rates listed in your Pricing Schedule and Fees. Upon conclusion of the
Initial Six Month Period the term shall expire naturally and any unused
prepayment will be forfeited. In the event that you prepay an additional
six-month fee prior to the end of the Initial Six Month Period, the term of
this Agreement automatically adjusts to expire on the SIX (6) MONTH
anniversary of the date the last prepayment was made.
3. Foreclosure Finder – Monthly Subscription with Unlimited Access
In the event you select this option upon entering into the
Agreement, the initial term of this Agreement commences on the Effective
Date, and continues on a month-to-month basis, during which either party may
terminate the Agreement on THIRTY (30) DAYS prior written notification by
email, as provided on the DataQuick Site or within the ForeclosureFinder
product. During the term, you may access an unlimited amount of Licensed
Information provided under this option pursuant to the Pricing Schedule and
Fees in consideration of the corresponding license fee
B. Either party shall also have the right to terminate this
Agreement if: (i) if the other party is in breach and fails to cure such
breach within thirty (30) days following written notice from the
non-breaching party specifying the nature of such breach in reasonable detail
(including failure of you to make payment hereunder which shall constitute a
breach); (ii) immediately if changes occur which result in DataQuick's
inability to obtain or deliver the Licensed Information; or (iii) immediately
if the other party has become insolvent or has become the subject of a
voluntary or involuntary bankruptcy proceeding or similar law, or makes and
assignment for the benefit of its creditors. DataQuick shall have the right
to terminate this Agreement upon any transfer, change of control, sale,
merger, or acquisition of more than fifty percent (50%) of the issued and
outstanding shares or assets of your company.
C. Upon termination or natural expiration of this Agreement, you shall: (i)
immediately cease using the Licensed Information, and (ii) purge and delete
any Licensed Information from your files, systems, and overall computing
environment.
6.Delivery
All Licensed Information delivered hereunder shall be accessed and delivered
to you on a transactional basis at www.dataquick.com. The types of Licensed
Information available is subject to change at DataQuick's discretion.
7.Billing, Payment and Credit
You agree to pay the license fees as set forth in Section 5 of the Agreement
and on the Service Schedule and Fees plus all sales and use taxes as
applicable, and any other charges listed. All rates are subject to change
upon sixty (60) days notice to you. DataQuick reserves the right to charge
you $25.00 for any check or credit card charge returned unpaid by your bank
and may require that future payments occur through electronic debit from your
bank account. You are responsible for and shall be charged for any overdue
account collection expenses including, but not limited to, agent fees,
attorney's fees, court costs, and other associated expenses. DataQuick may,
at its discretion, charge you a $25.00 reinstatement fee and a security
deposit (to a maximum of $300.00), prepaid account, C.O.D., or establish a
credit line, in order for you to receive or continue to receive the Licensed
Information. Withholding the Licensed Information for non-compliance or
non-payment shall not impact or change in any way DataQuick's rights under
this Agreement. You further agree that DataQuick may, at its discretion,
reduce or increase your credit line based on new or further credit
information received with regard to your account.
8.Confidentiality
A. You agree not to publicly name or disclose DataQuick as its provider of
the Licensed Information.
B. The parties agree that the terms and conditions of this Agreement
including all attachments hereto and any policies, information about
customers or partners, business practices, pricing, plans and methods not in
the public domain which may be known or disclosed to either party as a result
of this Agreement, will be held in confidence and not disclosed to any third
party for any reason whatsoever without prior written consent of the other
party.
9.Communications
DataQuick reserves the right to send automatic e-mail to you to market or
announce additional products and services, features, or topics related to
DataQuick's business. Automatic email may contain advertisements, of which
you will be provided the ability to unsubscribe from such communications.
10.Disclaimers / Warranty
A. DataQuick does not independently verify the completeness, accuracy or
authenticity of the public information or third party information contained
in the Licensed Information. The information reported to and by DataQuick may
be subject to transcription and/or transmission errors.
B. DataQuick (including DataQuick's suppliers or licensors) does not make any
warranties, express or implied, including, without limitation, those of
merchantability or fitness for a particular purpose, with respect to the
Licensed Information which may include automated valuation model output.
ACCORDINGLY, THE LICENSED INFORMATION IS PROVIDED ON AN 'AS IS' 'AS
AVAILABLE' BASIS, WITH ALL FAULTS AND DEFECTS. DataQuick does not warrant
that the Licensed Information is error-free, or that it will meet your
requirements or that the electronic transmission thereof will operate in an
error free manner. DataQuick does not warrant that access to any DataQuick
Internet site will be uninterrupted.
C. You acknowledge that certain state and federal regulatory bodies have
enacted laws which place restrictions upon marketing activities including,
but not limited to, use of public record information in connection with
mortgage lending or other financial services mail marketing, or permitting a
telephone customer to give public notice that such customer does not wish to
receive sales solicitation telephone calls. DataQuick and its data suppliers
disclaim any warranty, express or implied, that the Licensed Information is
free from any consumer information that may give rise to a privacy claim.
11. Ownership and Dissemination of the Licensed Information
You acknowledge that DataQuick and/or its suppliers shall remain the
exclusive owner of all rights, title, and interest in the Licensed
Information licensed hereunder and all copyrights and renewals thereof,
heretofore or hereafter secured therein and has been furnished to you in
trust for your own use and benefit only. Except as specifically set out in
this Agreement, no license or right in or to any Licensed Information, or any
other technology, patent, patent application, trade marks, trade names or
other trade identifier owned by or vested in DataQuick is granted to you
under this Agreement. You acknowledge that the Licensed Information is a
valuable commercial product, the development of which has involved the
expenditure of substantial time and money by DataQuick and/or its suppliers.
All publication, dissemination and other rights of the Licensed Information
licensed hereunder are reserved for DataQuick and/or its suppliers in all
languages, formats and media throughout the world for the sole and exclusive
use or any other disposition by DataQuick and/or its suppliers, their
respective assignees or grantees at any time from time to time without obligation
or liability to you.
12.Responsibility for Use and Limitation of Liability
YOU ASSUME SOLE RESPONSIBILITY FOR ALL USE OF THE LICENSED INFORMATION
INCLUDING THE LIABILITY AND RESPONSIBILITY FOR ANY AND ALL CLAIMS, DEMANDS,
LOSSES, DAMAGES, LIABILITIES, COSTS, CHARGES AND EXPENSES, INCLUDING
REASONABLE ATTORNEY'S FEES, ARISING OUT OF YOUR USE OF ANY LICENSED
INFORMATION AND HEREBY INDEMNIFY DATAQUICK AND ITS SUPPLIERS WITH RESPECT
THERETO. IN NO EVENT SHALL DATAQUICK OR ITS SUPPLIERS OR LICENSORS BE LIABLE
FOR USE OR MISUSE OF THE LICENSED INFORMATION, ANY USE OR MISUSE IN VIOLATION
OF ANY LAW, REGULATION, OR INDUSTRY STANDARD. IN NO EVENT WILL DATAQUICK OR
ANY OF ITS SUPPLIERS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE,
EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE, MISUSE OF OR
INABILITY TO USE THE LICENSED INFORMATION OR ANY DOCUMENTATION PROVIDED IN
CONNECTION THEREWITH, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR
FOR ANY CLAIM BY ANY THIRD PARTY. NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY, THE MAXIMUM AGGREGATE AMOUNT OF MONEY DAMAGES FOR WHICH DATAQUICK
MAY BE LIABLE TO YOU UNDER THIS AGREEMENT, RESULTING FROM ANY CAUSE
WHATSOEVER, SHALL BE LIMITED TO THE AMOUNTS ACTUALLY PAID BY YOU TO DATAQUICK
UNDER THIS AGREEMENT.
13.Audit/Non-Compliance
DataQuick reserves the right to audit any and each of your computer systems
and applicable business records to ensure your compliance with the terms and
conditions of this Agreement. Similarly, DataQuick may monitor your use of
the Licensed Information. DataQuick reserves the right, in its sole
discretion, to immediately suspend your use of the Licensed Information in
the event of any suspected or actual violation of the terms of this
Agreement. In the event an audit reveals that you are not in compliance with
the terms and conditions of this Agreement, you shall be responsible for the
costs of the audit, as well as any and all damages resulting from such
non-compliance including, without limitation, any special, incidental, indirect,
or consequential damages whatsoever (including punitive damages and damages
for loss of goodwill).
14.Authority
Each party has full power and authority to enter into and perform this
Agreement and the person agreeing to this Agreement on behalf of each has
been properly authorized and empowered to enter into this Agreement on its
behalf.
15.Notices
Any notice required hereunder shall be in writing and delivered certified
mail return receipt requested to you or DataQuick, as applicable. Your address
will be collected at the time of your order, and will be used as the address
to provide notices to you. DataQuick's address for notices is:
DataQuick Information Systems, Inc.
Attention: Customer Care
9620 Towne Centre Drive
San Diego, CA 92121
16.Non-Waiver DataQuick may accept any payment from any person
or entity tendering the same without thereby accepting such person or entity
as you hereunder or waiving any breach of covenant or provision against
assignment or transfer by you. Waiver by DataQuick of any breach of any
provision by you shall not operate or be construed as a waiver of any
subsequent breach by you.
17.Force Majeure
Neither party shall be responsible for delays or failures in performance
resulting from acts beyond the control of such parties. Such acts shall
include, but not be limited to, acts of God, strikes, lock-outs, riots, acts
of war, epidemics, governmental regulations superimposed after the fact,
fire, communication line failures, power failures, earthquakes or other disasters.
8.Governing Law
This Agreement is construed in accordance with and governed by the laws of
the State of California, except as to copyright and trademark matters which
shall be governed by the laws of the United States and any applicable
international treaties and/or conventions. Furthermore, this Agreement shall
be interpreted and enforced according to the laws of the State of California,
without application of its conflict of law or choice of law rules. Both
parties irrevocably submit to the jurisdiction of the state or federal courts
located in San Diego County, California for any action or proceeding
regarding this Agreement, and both parties waive any right to assert the
doctrine of forum non conveniens or otherwise object to the jurisdiction or
venue of the courts in San Diego County, California.
19.Right to Get a Hard Copy if a Special Need Arises
You have the right to get a copy of this Agreement in hard copy format for up
to five years after the date it was created. Contact DataQuick at customercare@dataquick.com
for a hard copy version of this Agreement. The fee will be $25.00 per
document/request. Normally, we will mail you a hard copy version within four
to six weeks after your request.
20.Right to Withdraw Consent
You have the right to withdraw your consent to conduct your contractual
relationship with DataQuick through electronic means at any time, by
contacting DataQuick at customercare@dataquick.com . You will then be
provided with hard copy documents you have previously agreed to electronically
within four to six weeks after your request for a fee of $25.00 your consent
to conduct business with DataQuick through electronic means shall terminate
and your data, software and/or product license agreement will continue in
full force and effect. Your billing for any data, software or products you
have licensed will continue unaffected.
21.Computer and Browser Hardware and Software Requirements
All information retrieved from the Site is delivered through your web
browser. No additional hardware or installation is required, other than your
PC. Internet access is required and a minimum internet connection speed of
56K is required. High speed access via DSL or cable modem is recommended.
Internet Explorer version 5.0 or higher is required.
22.Contact Information
This Agreement contains important information that we are required by law to
provide to you, you should print out a copy and keep if for your records. If
you have any questions about this Agreement, feel free to contact DataQuick
at customercare@dataquick.com or in writing at:
DataQuick Information Systems, Inc.
Attention: Customer Care
9620 Towne Centre Drive
San Diego, California 92121
23.Severability
If any term or provision of this Agreement is found to be unenforceable then,
notwithstanding, this Agreement shall remain in full force and effect and
such term or provision shall be deemed stricken.
24.Counterparts
This Agreement may be executed in counterparts, all of which, taken together,
shall be deemed one (1) original document.
25.Amendments
No amendment of this Agreement shall be effective unless it is in writing and
signed by a duly authorized representative of both parties.
26.Equal Opportunity Employer/Contractor
DataQuick is an equal opportunity employer/contractor on purchase orders,
leases, contracts, recruiting advertisements, and employment applications.
27.Survival
The provisions of this Agreement will, to the extent applicable, survive the
expiration or any termination hereof.
28.Entire Agreement
This Agreement constitutes the entire agreement between the parties with
respect to the subject matter. All prior agreements, representations,
statements, negotiations and undertakings are superseded hereby.
29.Your Consent
By clicking 'I Accept' below, you give your binding consent to:
A. Conduct your contractual relationship with DataQuick through electronic
means, and such electronic transactions shall have the same binding force and
effect as if you signed hard copy documents provided to you by DataQuick.
B. Transact business as contemplated herein, and to access the DataQuick
Licensed Information as specified on your Pricing Schedule and Fees.
This Agreement shall have the same binding force and effect as if you signed
hard copy documents provided to you by DataQuick. For your consent to be
effective, your computer and browser must meet the hardware and software
requirements discussed herein.
30.Additional Terms Related to ForeclosureFinder
This following terms apply to DataQuick’s ForeclosureFinder product
only:
A.
The information contained within the ForeclosureFinder
product is available only for the purpose of providing general information on
properties in every phrase of the foreclosure process and other real-estate
related issues. You should not rely on any Licensed Information as a
replacement or substitute for any professional, financial, legal or other
advice or counsel.
B.
The Licensed Information may not be scraped, mined or
otherwise accessed by equipment, software or other means which facilitate anything
other than direct, individual, in person, non-automated use by you.
C.
You agree to cooperate and comply with all investigations
of abuse, complaints, third party infringement or any other unauthorized use
of the Licensed Information.
D.
You have no right to copy, modify, adapt any APIs provided
pursuant to this Agreement or any code that any provided software HTML,
JavaScript, or to reverse engineer, decompile, reverse assemble, modify or
attempt to discover any source code used to generate or provide the Licensed
Information, nor to insert any code or product to manipulate the content
provided in any way that affects any user’s experience.
E.
By using the mapping functionality, data, materials and/or
services provided by MapQuest, Inc. (“Map Quest”) you agree to be bound by
the terms and conditions of Map Quest’s then-current ‘End-User Terms’ located
at http://www.mapquest.com/terms-of-use.
F.
By registering or otherwise subscribing to the “FLX”
service, you agree to be bound by the following additional terms: (1) Data
provided through the FLX service may not be combined or merged with any other
data with the exception of maps and/or aerial images; and (2) While using the
FLX service, you shall not, or not attempt to, alter, partially conceal, or
otherwise obstruct any portion of the data, user interface, logo or any other
element of the FLX service.
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