Terms and Conditions
These TERMS AND CONDITIONS (“Terms and Conditions”) govern the services and deliverables provided by Licensor, with its principal place of business located at 2201 Lakeside Boulevard, Richardson, TX 75082, and the client (the “Client”) identified on a Subscription Schedule, Transaction Schedule and/or Order Forms (individually, an “Order Form” and collectively, the “Order Forms”) in which these Terms and Conditions are referenced (collectively, the Terms and Conditions and any Order Form shall be referred to herein as the “Agreement”). Licensor reserves the right to update these Terms and Conditions on the Website from time to time without notice to Client. Licensor recommends that Client review the Terms and Conditions on the Website from time to time. Client’s continued access to the Website and use of the Platform shall be deemed to constitute acceptance of any updated Terms and Conditions. The most current version of these Terms and Conditions posted on the Website supersedes all previous versions.
a) “Agreement” is defined in the Preamble.
b) "Authorized User” means an employee of Client (or subset thereof as specified in the Order Form) who is permitted through use of a unique user name and password to access the Website and portions of the Platform solely for the Permitted Uses set forth herein, and subject to the terms and conditions of the Agreement.
c) “Client” is defined in the Preamble.
d) “Confidential Information” is defined in Section 10
e) “Customer” means a third party with which Client has entered into a contract, or for which Client wishes to pursue a business relationship.
f) “Fees” is defined in Section 3
g) “License” means the license grant set forth in Section 2
h) “Licensed Material” means the Website, Platform, and as applicable, Limited Excerpts.
i) “Licensor” is defined in the Preamble.
j) “Limited Excerpt” is based on a reasonableness test, using the following factors, as determined by Licensor in its sole discretion: (i) degree to which the content accessed via the Website or Platform is transformed into something new rather than simply reproduced in its original form; and (ii) the volume or regularity of content utilized (i.e., if it could reasonably be considered to be a practical alternative for third parties needing to subscribe to the Website or Platform for such content, then it will not be considered a “Limited Excerpt”). In cases of ambiguity or doubt as to what constitutes a Limited Excerpt, Client should seek Licensor’s review and written approval.
k) “Platform” means the materials available at the Website (or other delivery mechanism as determined by Licensor in its discretion), including without limitation data, data arrangement, data analysis, text, graphics, analytical tools and procedures as well as the software permitting access and use of such content.
l) “Resultant Data” means data or other information obtained from the Platform subject to calculations, manipulations, analyses, and/or other processes performed by or on behalf of Client, which data or other information is materially different in form and content from the Licensed Material upon which the Resultant Data is based and is not a Limited Excerpt, extraction, basic calculation, adjustment of or reordering of the data, information or report provided on the Platform.
m) “Term,” “Initial Term” and “Renewal Term” are defined in Section 4(a)
n) “Website” means the website(s) designated by Licensor from time-to-time as the access point for the Platform.
a) License Grant. During the Term, in consideration of Client’s payment of the Fees set forth on the Order Form, and subject to the terms and conditions of these Terms and Conditions, Licensor grants to Client a limited, non-exclusive, non-transferable, non-assignable, revocable license for its Authorized Users to access the Website (or other delivery mechanism as determined by Licensor in its discretion) to view portions of the Platform identified on an Order Form executed by the parties and to use the Platform solely for the Permitted Uses set forth in Section 2(b). There are no implied licenses under the Agreement. Any right not expressly granted herein to Client is reserved by Licensor.
b) Permitted Uses. Under the License, Client may:
i) create limited copies of the materials available through the Platform to be used exclusively by Client for Client’s own internal business purposes, and in a manner that will permit Client to completely purge such Platform materials from its files and/or systems upon expiration or termination of the Agreement;
ii) create Resultant Data using materials available through the Platform in a manner that is not competitive with Licensor;
iii) cite Limited Excerpts of the materials available through the Platform in Client’s presentations and research reports presented to Customers and not to be redistributed or sold by such Customers; provided, however, that in all such instances Client shall provide attribution in accordance with the Licensor attribution policies (http://www.axiometrics.com/attribution-policy), as may be in place from time to time, crediting Licensor as the source of such information; and
iv) disclose Licensed Material to its attorneys or accountants who require it for the purpose of supporting Client’s internal business needs in accordance with the license granted hereunder and only if such attorneys or accountants are subject to use and disclosure restrictions at least as restrictive as those provided in the Agreement, and provided that Client shall remain liable for their unauthorized use or disclosure of any Licensed Material.
c) License Restrictions. Client shall not access the Website or use the Platform for any purposes other than the Permitted Uses. Without limiting the foregoing, and except to the extent expressly authorized as a Permitted Use, Client shall not:
i) Other than for Limited Excerpts, duplicate or redistribute any portion of the Platform into hard copy, machine readable, or any other form without prior written authorization from Licensor;
ii) Publish, resell or disclose any portion of the Platform to any third party;
iii) Other than for Limited Excerpts, copy, display, disclose, disseminate, reproduce or publish any portion of the Website or Platform;
iv) Sublicense, resell, relicense, convey or redistribute the Platform, in whole or in part;
v) Other than to create Resultant Data, commingle, process, modify or combine any portion of the Platform with other data or software from any other source in a manner that could reasonably cause confusion as to the source of the Licensed Material;
vi) Reformat, modify or use any portion of the Platform to create, develop, enhance or structure any database, or create models, analytics, derivative products or other derivative works in a manner that could reasonably cause confusion as to the source of the Licensed Material;
vii) Archive, disassemble, decompile, manipulate or reverse engineer any portion of the Platform;
viii) Permit, enable or allow access to the Website or Platform to any person or entity other than an Authorized User;
ix) Use the Platform in any way that violates any law, statute, ordinance or regulation, or in any way that is defamatory, libelous, or illegal;
x) Use any robot, spider, crawler, deep-links, data-mining, data-gathering , extraction tool, or other automatic device or manual process to monitor, copy, harvest, gather or “scrape” any portion of the Website or Platform;
xi) Perform any technical security, integrity review, penetration test, load test, denial-of-service simulation or vulnerability scan, with respect to the Website, or any Licensor sponsored website or platform;
xii) Share or disclose with any third party any username, password or other login information enabling such third party to gain access to the Website or Platform.
xiii) Remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols or labels in or on the Website or Platform;
xiv) Purport to possess or represent to any third party the ownership of the Website, any portion of the Platform or Limited Excerpt; or
xv) Make any use of any of the information contained within the Website or Platform in a manner that can be perceived as competitive with Licensor.
d) Validation of Authorized Users. Upon request by Licensor, Client agrees to provide reasonably requested information necessary to confirm that persons accessing the Website and Platform are limited to Authorized Users.
a) Fees and Invoice. Licensor shall invoice, and Client shall pay, the non-refundable fees and charges (collectively, “Fees”) set forth in the Order Form. Fees shall be due and payable to Licensor upon receipt of the initial invoice and thereafter on the first day of any Renewal Term. An invoice shall be considered past due if payment is not received by Licensor within 15 days after the due date. Licensor reserves the right to suspend or terminate Client’s access to the Licensed Materials in the event Client fails to make payment when due.
b) Taxes. Client shall pay any tax (and related interest and penalties) imposed for Client’s access to or use of the Website and Platform, including any tax that Client is required to withhold or deduct from payments to Licensor, other than tax imposed on Licensor’s net income or corporate existence. Client shall pay or reimburse Licensor for any such taxes and Licensor may add such taxes to the invoices submitted to Client. Client agrees to indemnify Licensor as to all such taxes.
c) Liquidated Damages. Client acknowledges that the actual damages likely to result from Client’s failure to fulfill its payment obligations under the Agreement after accessing the Licensed Materials (including, without limitation, the reputational harm that would result if third parties learned of such breach and took similar actions) are difficult to estimate on the date of the Agreement and would be difficult for Licensor to prove. Accordingly, if Client accesses the Licensed Materials and subsequently payment is not received by Licensor within 15 days after the due date, Client agrees to pay to Licensor a sum equal to 3 times the total Fees owed for the Term, such amount being deemed liquidated damages. The parties agree that the foregoing liquidated damages constitutes a reasonable forecast of probable damages, is not intended to serve as punishment for any such breach by Client, and that payment of the liquidated damages is the exclusive remedy for such breach.
d) Fee Increase. Following the Initial Term, Licensor reserves the right to increase the Fees set forth in the Order Form for each Renewal Term by providing Client written notice of such increased amount at least 45 days prior to the end of the then current Term. If Licensor does not provide such written notice within the requisite time period, the Fees for the subsequent Renewal Term shall remain unchanged.
4) TERM AND TERMINATION.
a) Term. Except as otherwise set forth in the Order Form, the initial term of each License created by execution of an Order Form shall commence on the Effective Date (as specified in the Order Form) and, unless terminated as provided herein, shall continue for a period of 1 year (the “Initial Term”). Thereafter, except as otherwise set forth in the Order Form, the License will automatically renew for additional 1 year terms (each a “Renewal Term” and together with the Initial Term, the “Term”) unless either party provides the other party with written notice of non-renewal at least 30 days prior to the end of the then current Term.
b) Termination for Cause. If either party materially breaches any provision of the Agreement, the non-breaching party may, upon providing written notice of such breach, terminate the Agreement if the breach is not cured within 30 days after such notice. Notwithstanding the foregoing, Licensor may terminate the Agreement immediately without notice, without refund and without prejudice to any other rights available to Licensor by contract, law or in equity in the event Client, in the sole exercise of Licensor’s reasonable judgment, has (A) committed acts using the Website or Platform that are deemed directly competitive to Licensor; (B) committed acts or omissions which compromise the security of the Website or Platform; (C) permitted or failed to prevent unauthorized access to and use of the Website or Platform; (D) introduced viruses or other harmful contaminants into the Website or Platform, (v) interfered with other users of the Website or Platform; or (E) otherwise engaged in harmful, inappropriate or unlawful conduct relating to the Website or Platform.
c) Effect of Termination. Upon expiration or termination of the Agreement, subject to any pre-existing rights in Resultant Data, Client shall immediately discontinue use of the Website, Platform and Limited Excerpts, and all license rights granted by Licensor to Client pursuant to the Agreement shall terminate. Upon any termination of the Agreement, Client shall remain obligated to make any payments owed under the terms of any applicable Order Form. The rights afforded the parties under this Section 4 will not be deemed to be exclusive, and are in addition to any rights or remedies provided by law—but subject to all limitations of remedies expressly set forth in the Agreement.
d) Return or Destruction of Materials. Within 30 days after the expiration or termination of the Agreement, other than for Resultant Data, which Client may retain and use subject to the License granted in Section 2(b)(ii), Client shall purge its computer systems and archival systems of all electronic copies of the Licensed Material, and destroy any hard copies of tangible portions of the Licensed Materials, and the information contained therein or derived therefrom. In addition, Client shall destroy any other Confidential Information received from Licensor and, upon Licensor’s request, certify in writing signed by an officer of Client that all such materials have been purged and destroyed and that all actions required of Client by this Section 4 have been taken. Notwithstanding the foregoing, subject to continuing obligations of confidentiality (a) Client’s legal counsel may retain copies of the Licensed Materials and Confidential Information as necessary; and (b) Client may retain archive copies for legal and/or regulatory compliance purposes only and subject to ongoing confidentiality obligations and destruction in due course.
5) Intellectual Property Rights.
a) Client acknowledges and agrees that (i) Licensor or its third-party licensors own all right, title and interest in and to the Website, Platform and Limited Excerpts, and all intellectual property derived from the Website, Platform and Limited Excerpts, including without limitation all patents, trademarks, copyrights and trade secrets; (ii) the Website and Platform were created, compiled, prepared, selected and arranged by Licensor through the expenditure of substantial time, effort and resources and constitute valuable Licensor assets; (iii) no title to nor ownership of the Website, Platform or Limited Excerpts is transferred to Client by operation of the Agreement; and (iv) Client will not remove, alter or obscure any Licensor trademarks or proprietary notices contained in the Website, Platform or other materials provided or made accessible by Licensor to Client.
b) Licensor acknowledges and agrees that, subject to the license grant in Section 2, as well as Licensor’s underlying intellectual property rights described in Section 5(a), Client owns all right, title and interest in and to the Resultant Data.
c) Client acknowledges and agrees that Licensor’s business includes the collection and aggregation of publicly available data for research and analytics purposes. Client hereby grants to Licensor the right to access and collect data made available by Client for syndication, on its public facing property websites, or that is otherwise made publicly available by Client or on behalf of Client, and acknowledges and agrees that Licensor shall not be restricted in its use of such data.
6) Disclaimer. CLIENT ACKNOWLEDGES AND AGREES THAT OTHER THAN AS EXPRESSLY PROVIDED HEREIN, LICENSOR PROVIDES THE LICENSED MATERIALS TO CLIENT ON AN “AS IS,” “WHERE IS” BASIS. IN ENTERING INTO THESE TERMS AND CONDITIONS, AND EXECUTING THE ORDER FORMS, CLIENT HAS CONSIDERED ITS BUSINESS RISK INHERENT IN OR ASSOCIATED WITH ACCESS TO AND USE OF THE LICENSED MATERIALS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR GIVES NO WARRANTIES, EXPRESS OR IMPLIED, AND CLIENT HEREBY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE LICENSED MATERIALS WILL BE PROVIDED FREE OF ERROR, DELAYS OR DEFECTS. LICENSOR DOES NOT WARRANT THAT THE LICENSED MATERIALS WILL MEET CLIENT’S REQUIREMENTS, WILL BE PROVIDED WITHOUT INACCURACIES, ERRORS OR DEFECTS, NOR THAT ACCESS TO THE WEBSITE OR PLATFORM WILL BE UNINTERRUPTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ANY OF ITS EMPLOYEES, AGENTS, OR OFFICERS, WILL MODIFY THE LIMITATION SET FORTH IN THIS DISCLAIMER.
7) Limitation of Liability. LICENSOR, FOR ITSELF AND ITS AFFILIATES AND VENDORS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS, DISCLAIMS TO THE EXTENT PERMITTED BY LAW, ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES (INCLUDING LOST REVENUE, BUSINESS OR PROFTIS) INCURRED OR SUFFERED BY CLIENT OR ITS CUSTOMERS, ARISING FROM ITS ACCESS TO OR USE OF THE WEBSITE, PLATFORM OR LICENSED MATERIALS, EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR’S CUMULATIVE LIABILITY UNDER THE AGREEMENT EXCEED THE AMOUNT OF FEES PAID HEREUNDER TO LICENSOR BY CLIENT, OR ON BEHALF OF CLIENT, DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THESE LIMITATIONS APPLY REGARDLESS OF WHETHER SUCH LOSSES OR DAMAGES ARE BASED IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, INDEMNITY OR OTHERWISE. THESE LIMITATIONS APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8) Force Majeure. Other than for payment obligations, either party shall be excused from performance hereunder during any period and to the extent that it is prevented from performing any obligation pursuant thereto, in whole or in part, as a result of delays caused by the other party or any cause beyond its control, and such nonperformance shall not be a default hereunder or a ground for termination hereof. In the event that a third-party supplier suspends or cancels delivery of data incorporated into the Platform, or such data otherwise becomes inaccessible to Licensor due to circumstances outside of Licensor’s reasonable control, Client acknowledges and agrees that Licensor may suspend or cancel delivery of the corresponding portion of the Platform and that such suspension or cancellation by Licensor will not result in the return of any fees paid by Client.
9) Waiver. Any condition of this Agreement which may legally be waived must be waived in writing by the party that is entitled to the benefit thereof. No waiver shall constitute a continuing waiver; thus, no waiver by either party of any default, misrepresentation, or breach of covenant of the other party under this Agreement, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.
10) Confidentiality. In order to effectuate the purposes of this Agreement, it may be necessary and desirable that Licensor discloses to Client its confidential technical, financial, business, strategic, marketing, licensing and client/licensee information, regardless of format or storage medium (the “Confidential Information”). Due to the inherent value of such Confidential Information to Licensor, and due to the immediate and irreparable harm Licensor would suffer should its Confidential Information be disclosed to competitors or to the Internal Revenue Service, Client hereby agrees, with regard to such Confidential Information: (a) to use it only for purposes of effectuating the purposes of this Agreement, (b) to maintain it in a confidential and secure manner, and (c) not to disclose it to any person or entity, unless compelled to do so by a court of competent jurisdiction or governmental agency. In the event of compelled disclosure Client promptly shall notify Licensor of such order (to the extent legally permitted to do so), and provide reasonable assistance to Licensor, at Licensor’s sole expense, in seeking to quash or otherwise void any such compelled disclosure. Confidential Information shall not include information of Licensor which: (w) is in the public domain or which enters the public domain other than as a result of the wrongful actions of Client, (x) was made available by Licensor on a clearly and unequivocal non-confidential basis, (y) becomes available to Client on a non-confidential basis from a person or entity, other than Licensor, who or which is not otherwise bound by a confidentiality agreement with Licensor, or is not otherwise prohibited from transmitting the information to Client, or (z) was independently developed by Client without benefit of or reference to the Licensor’s Confidential Information.
11) Relationship of the Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between the parties, and Licensor shall be an independent contractor to Client.
12) Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer upon any person or entity other than the parties and their respective successors and assigns, any rights, remedies, obligations or liabilities.
13) Notices. When one party is required or permitted to give notice to the other party, such notice shall be deemed given when delivered: (i) by nationally recognized carrier, receipt requested, (ii) by hand personally delivered; or (iii) 3 business days after the date mailed by the United States postal service, certified mail, return receipt requested, postage prepaid, and addressed. In the case of Licensor, to the address set forth in the first paragraph of these Term and Conditions, and in the case of Client, to the address(es) set forth in the Order Forms. Client shall deliver a courtesy copy of any notice to: RealPage, Inc., 2201 Lakeside Boulevard, Richardson, TX 75082, Attn: Chief Legal Officer. Either party may change its address for notification purposes by giving the other party 3 days prior written notice of the new address and the date upon which it will become effective.
14) Severability. Should any term, condition, provision or part of the Agreement be found to be unlawful, invalid, illegal or unenforceable, that portion shall be deemed null and void and severed from the Agreement for all purposes, but such illegality, invalidity or unenforceability shall not affect the legality, validity or enforceability of the remaining parts of the Agreement, and the remainder of the Agreement shall remain in full force and effect, unless such would be manifestly inequitable or would serve to deprive either party of a material part of what it bargained for in entering into the Agreement.
15) Entire Agreement / Amendments. These Terms and Conditions, together with the Order Forms , constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous representations, understandings or agreements, whether oral or written, relating to the subject matter hereof. In the event of any direct conflict between the Order Forms and these Terms and Conditions that cannot be reasonably reconciled, the terms of the Order Forms shall control. Licensor reserves the right to update these Terms and Conditions on the Website from time to time without notice to Client.
16) Governing Law and Venue. The Agreement shall be governed, construed and enforced in accordance with the laws of the State of Texas (without regard to the principles of conflicts of law). The Agreement has been entered into in Dallas County, Texas and it shall be performable for all purposes in Dallas County, Texas. Any action or proceeding concerning, related to, regarding, or commenced in connection with the Agreement must be brought in a state or federal court located in Dallas County, Texas, and the parties to the Agreement hereby irrevocably submit to the personal jurisdiction of such courts and waive any objection they may now or hereafter have as to the venue of any such action or proceeding brought in any such court, or that any such court is an inconvenient forum.
17) Survival of Terms. Upon termination of the Agreement for any reason, the following provisions hereof shall survive: (i) any right or remedy based on prior default or performance, (ii) any limitation on the scope, manner, method, or location of the exercise of rights in the Licensed Materials, (iii) any disclaimer or warranty, (iv) any limitation of remedy, liability or damages, (v) any obligation of confidentiality, nondisclosure, non-competition, indemnification, return of Confidential Information, or similar obligation to the extent that the obligation was created by the terms of the Agreement, and (vi) any right or means for effectuating any of the aforesaid.