ROCKPORT VAL, LLC, with its principal place of business located at 505 Fifth Avenue, New York, NY 10017 (“ROCKPORT VAL”) agrees to furnish to the client (“Client”) defined in its signed Order Form (“Order Form”) and the Client agrees to subscribe to and license from ROCKPORT VAL, certain software, data and/or other services (collectively, the “Service”) described in the Order Form.
2. SCOPE OF LICENSE.
Client’s license to use the Service is non-exclusive and non-transferable. This license is for use only by the number of employees of Client (“Authorized Users”) and in the authorized departments, if applicable, specified in the Order Form, unless otherwise provided in the Order Form. Except as otherwise provided herein, this license is restricted to Client’s internal use of the Service in connection with commercial real estate owned by Client or for which Client provides regular management, financial or brokerage services or internal evaluation of commercial real estate property in Client may not use the Service to provide data reporting or modeling for third parties or in an application services provider, service bureau, or similar capacity for third parties without written approval of Client and subject to payment of additional fees. Client will make no representations or warranties to any third party based upon the Service, nor will Client transfer or purport to transfer or assign any rights in the Service or any portion thereof to any third party.
3. AUTHORIZED USERS.
To use this Service, Authorized Users must be registered and receive passwords. Client is responsible for maintaining the confidentiality of its passwords. Client is fully liable for all use of the Service under its passwords, including any use by a user not authorized by Client who accesses the Service using Client’s passwords. ROCKPORT VAL may terminate a password and require a new password if it believes that the password is being used without authorization or contrary to the Agreement. Client agrees to promptly notify ROCKPORT VAL of any unauthorized use of its passwords or other breach of security. Client is solely responsible for providing and maintaining any and all computer and telecommunications equipment required to access the Service.
4. BETA TESTING, EVALUATION AND DEMONSTRATION USE.
If Client has received access to the Service for trial or evaluation purposes or has been provided access to the Service for demonstration or beta testing purposes, Client is permitted to use the Service for beta testing, trial, evaluation or demonstration (i.e. non-production) purposes only for the limited time period as specified in the Order Form. If no time period is specified, Client’s usage is limited to a thirty (30) day period. Client may provide suggestions for changes or enhancements to the Services, which ROCKPORT VAL may accept or reject in its sole discretion. The Service may contain an automatic disabling mechanism that prevents its use beyond the permitted beta testing, trial, evaluation or demonstration period. Access to and use of the Software for beta testing, trial, evaluation or demonstration purposes is entirely at Client’s own risk. IF THE SERVICE IS PROVIDED FOR BETA-TESTING, TRIAL, EVALUATION OR DEMONSTRATION PURPOSES, THE SERVICE IS PROVIDED “AS IS”, FREE OF CHARGE AND ANY WARRANTY IN SECTION 10 and 13(a) OF THIS AGREEMENT WILL NOT APPLY. If Client has a paid subscription for the Service, then this section does not apply.
5. TERM AND TERMINATION.
This Agreement is for the term set forth in the Order Form commencing on the effective date set forth therein and will be automatically renewed as provided in the Order Form. Either party may terminate this Agreement or Order Form at any time upon written notice in the event that the other has materially violated any of the provisions of this Agreement. In addition, ROCKPORT VAL may terminate the Agreement on the occurrence of any of the following
(a) Client fails to pay any fees payable to ROCKPORT VAL by Client set forth hereunder or in the Order Form;
(b) Client attempts to transfer this Agreement (or any rights or licenses under this Agreement) to any third party in violation of Section 16 (Assignment) below;
(c) Client’s use of the Service exceeds the permitted uses set forth in this Agreement or Order Form; or
(d) Client is the subject of any proceeding relating to insolvency, bankruptcy, receivership, liquidation, or composition for the benefit of creditors.
Current fees and terms are set forth in the Order Form. Client will be responsible for any applicable sales or use tax. ROCKPORT VAL fees and service charges will be due when invoiced to Client. Interest will accrue at the rate of 1.5% per month upon any unpaid amounts commencing forty-five (45) days after date of invoice.
7. OWNERSHIP OF DATA; RESTRICTIONS.
ROCKPORT VAL owns all right, title and interest, including all intellectual property rights, in and to the Service and related documentation, any aggregated and anonymized data related to Client’s use of the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client relating to the Service and Client assigns and agrees to assign any and all rights therein to ROCKPORT VAL. The Service constitutes valuable commercial property and trade secrets of ROCKPORT VAL or its third party information providers. Client will not claim any ownership interest in, or right to use, the Service except as provided herein, nor will it contest ROCKPORT VAL’s ownership rights. Client further agrees that ROCKPORT VAL or the third party information providers will maintain exclusive ownership and rights (including the copyright) in the Service and that this Agreement will not be construed to vest in the Client any rights with respect to the Service except to use it for its own internal purposes during the term of this Agreement. Client will treat all aspects of the Service and any information obtained there from as confidential and will not allow access to any software or databases included within the Service to any other person or entity, including any entity that is affiliated with the Client. Client will not (i) adapt, reverse engineer, decompile or disassemble any portion of the Service or otherwise attempt to derive its source code; (ii) remove any identification markings, including but not limited to copyright notices and trademarks, from the Service, or (iii) make any modification, enhancement, or derivative work of the Service, or incorporate the Service, or any portion thereof, into or with any other software. Client represents, warrants, and covenants that it owns or otherwise has all rights, licenses, permissions and approvals necessary to make the assignment described above, to provide the consents described in Section 10, and to perform all of its other obligations hereunder.
Each party shall implement commercially reasonable security measures designed to meet the following objectives: (a) ensure the security and confidentiality of Confidential Information; (b) protect against any reasonably anticipated threats or hazards to the security or integrity of Confidential Information; and (c) protect against unauthorized access to or use of the Confidential Information. The parties will cooperate fully with each other regarding efforts to monitor compliance with this Agreement, including for example providing upon request and at no cost, copies of audits, test results, or equivalent measure of the party’s efforts to protect the Confidential Information. ROCKPORT VAL shall not intentionally introduce and will use reasonable safeguards consistent with industry standards to prevent third-parties from introducing into the Service any trojan horses, viruses, worms, time bombs or trap doors designed to disrupt, disable, harm, or otherwise impede the operation of the Service or to corrupt or damage Client’s data, storage media, programs, or equipment.
ROCKPORT VAL will provide commercially reasonable telephone support from 8:30 A.M. to 6:00 P.M. EST daily. Unless otherwise provided in the Order Form, ROCKPORT VAL will provide telephonic training in use of the Service as required by Client. Additional training may be agreed upon in a separate Order Form. ROCKPORT VAL shall provide reasonable disaster recovery and backup capabilities consistent with industry standards to minimize disruptions or delays in providing the Service.
10. PERFORMANCE; LIMITATIONS OF LIABILITY.
ROCKPORT VAL will use commercially reasonable efforts to prepare and provide the Service in accordance with the technical documentation supplied therewith but shall not be liable for any inability to provide such Service when caused by any event, condition, or circumstance beyond ROCKPORT VAL’s or any Third party information providers’ reasonable control. Client is aware that the foregoing includes, but is not limited to, possible data deficiencies such as inconsistency, incompleteness, sparseness, or untimeliness of data. Client acknowledges that ROCKPORT VAL’s ability to deliver the Service may be dependent, in part, on the Client’s ability to deliver to ROCKPORT VAL certain proprietary information and commentary which the Client may want included in the Service. Any and all such information and commentary uploaded, transmitted, stored, or otherwise provided by or on behalf of the Client (including by any Authorized Users) in connection with Client’s use of the Service is referred to collectively as “User Data”). Client further acknowledges that similar data may come from multiple Third party information providers and that ROCKPORT VAL applies ROCKPORT VAL’s decision to the use of specific data from one source versus another. Client is solely responsible for obtaining, installing, maintaining, and operating, at its own expense, compatible computer equipment and communications devices as required to utilize the Service meeting the minimum configuration requirements published from time to time by ROCKPORT VAL. In providing for the compilation of data for inclusion in the Service, ROCKPORT VAL and the Third party information providers rely upon sources that they believe to be accurate, but the Client acknowledges neither ROCKPORT VAL nor the Third party information providers will independently verify significant portions of such data.
ROCKPORT VAL does not warrant the Service to be free from defects or bugs or to be error-free. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, ROCKPORT VAL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. NEITHER ROCKPORT VAL NOR THE THIRD PARTY INFORMATION PROVIDERS REPRESENT OR WARRANT THE ACCURACY OR ADEQUACY OF THE DATABASES OR ANY WORK PRODUCT OR PROJECTIONS BASED UPON SUCH DATABASE OR OF ANY DATA COMPILED BY ROCKPORT VAL OR THE THIRD PARTY INFORMATION PROVIDERS IN CONNECTION WITH THE SERVICES PROVIDED HEREUNDER OR ANY WORK PRODUCT OR PROJECTIONS BASED UPON SUCH DATA INCLUDING ANY VALUATION PROVIDED TO THE CLIENT HEREUNDER. NO REPRESENTATION IS MADE THAT THE SERVICE WILL PRODUCE CERTAIN RESULTS. ANY ANALYSES, OPINIONS, ESTIMATES, RATINGS OR RISK CODES PROVIDED BY ROCKPORT VAL OR THROUGH THE SERVICE ARE PROVIDED FOR ILLUSTRATIVE PURPOSES ONLY, AND ARE NOT INTENDED TO PROVIDE, NOR SHOULD THEY BE INTERPRETED AS PROVIDING, ANY FACTS REGARDING, OR PREDICTION OR FORECAST OF, ANY PARTICULAR EVENT OR RISK. CLIENT FULLY AND KNOWINGLY ASSUMES ALL RISK THAT ANALYSIS, DATA OR OTHER RESULTS, EVALUATIONS OR CONCLUSIONS OBTAINED OR DERIVED USING THE SERVICE WILL BE ACCURATE, VALUABLE OR USEFUL. IN NO EVENT SHALL ROCKPORT VAL OR THE THIRD PARTY INFORMATION PROVIDERS BE LIABLE TO CLIENT OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY CLIENT IN RELIANCE THE SERVICE.
NEITHER ROCKPORT VAL NOR THE THIRD PARTY INFORMATION PROVIDERS WILL BE LIABLE FOR ANY LOSS RESULTING DIRECTLY OR INDIRECTLY FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS, OR DEFECTS, WHETHER HUMAN OR MECHANICAL, OCCURRING IN THE COURSE OF FURNISHING SERVICE, EXCEPT STEMMING FROM WILLFUL MISCONDUCT OR GROSS NEGLIGENCE. NEITHER ROCKPORT VAL NOR THE THIRD PARTY INFORMATION PROVIDERS WILL BE IN ANY WAY LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES. ROCKPORT VAL’S LIABILITY HEREUNDER, REGARDLESS OF THE NATURE OR FORM OF CLIENT’S CLAIM, WILL BE LIMITED TO THE COST PAID OR PAYABLE BY THE CLIENT FOR THE SERVICE FOR THE THREE (3) MONTH PERIOD PRECEDING THE DATE ANY SUCH LIABILITY MAY ARISE. CLIENT FURTHER AGREES THAT NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO ROCKPORT VAL SERVICES MAY BE BROUGHT BY THE CLIENT MORE THAN ONE (1) YEAR AFTER THE EVENT GIVING RISE TO SUCH ACTION HAS OCCURRED.
CLIENT AGREES AND ACKNOWLEDGES THAT ROCKPORT VAL IS NOT AN INVESTMENT ADVISOR, A FINANCIAL ADVISOR OR A SECURITIES BROKER. THE SERVICE HAS BEEN PREPARED SOLELY FOR INFORMATIONAL AND EDUCATIONAL PURPOSES, AND IS NOT AN OFFER TO ORIGINATE, BUY OR SELL ANY MORTGAGE INSTRUMENT, TO BUY OR SELL OR A SOLICITATION OF AN OFFER TO BUY OR SELL ANY SECURITY OR INSTRUMENT OR TO PARTICIPATE IN ANY PARTICULAR TRADING STRATEGY. THE SERVICE IS INTENDED TO BE AN AID TO CLIENT’S OWN INVESTMENT PROCESS AND CLIENT’S INVESTMENT ACTIONS SHOULD BE SOLELY BASED UPON ITS OWN DECISIONS AND RESEARCH.
By executing an Order Form, registering for, and/or using any Service, Client consents to the use of User Data (including any personal data or information such as name, address, and IP address(es) contained therein), as described below. User Data may be stored, processed, and used by ROCKPORT VAL and its affiliates in connection with providing, maintaining, and supporting the Service (for example, to improve user experience and/or tailor user interaction with the Service), and for other related purposes. ROCKPORT VAL and its affiliates may share User Data with its third-party investors and business partners (and their respective affiliates) to provide products and services, and such third parties may also use User Data to provide products and services, either jointly with ROCKPORT VAL, with other third parties, and/or independently. ROCKPORT VAL and such third-party investors/business partners may also: (i) use User Data in aggregated, anonymized format for any lawful purpose; (ii) share User Data with its/their respective affiliates and successors, and third-party service providers and/or business partners, in connection with the above-described uses; and (iii) share User Data in connection with the sale, assignment, merger or other transfer of its/their respective business(es), as applicable. Such third parties will be subject to contractual confidentiality requirements.
11. CONFIDENTIAL INFORMATION.
Each party acknowledges that it or its employees may, in the course of performing its responsibilities under this Agreement, be exposed to or acquire information which is proprietary to or confidential to the other, its affiliated companies or third parties to whom such party has a duty of confidentiality. Any and all non-public information of any form obtained by ROCKPORT VAL or its employees in the performance of this Agreement shall be deemed to be confidential and proprietary information. Any and all non-public information of any form obtained by Client or its employees including, without limitation, the Service, documentation and terms of this Agreement, shall be deemed to be confidential and proprietary information. Each party agrees to hold such information in strict confidence and not to disclose such information to third parties or to use such information for any purpose whatsoever other than as contemplated by this Agreement and to advise each employees, agents or consultants who may be exposed to such proprietary and confidential information of their obligations to keep such information confidential. Notwithstanding the foregoing, ROCKPORT VAL may list Client as a client of ROCKPORT VAL on its website or in other material.
Confidential information shall not include information which the disclosing party can show by objective or verifiable evidence is (i) in or becomes part of the public domain other than by disclosure by a party in violation of this Agreement, (ii) demonstrably known to such party previously, (iii) independently developed by such party outside of this Agreement or (iv) rightfully obtained by such party from third parties. If the receiving party is required by law to disclose confidential information, the receiving party may do so without breaching this section upon notice to the disclosing party, unless legally prohibited, and then only to the extent necessary to comply with the law. ROCKPORT VAL and Client understand and agree that, in the event of a breach of this section, damages may not be an adequate remedy and each party shall be entitled to injunctive relief to restrain any such breach, threatened or actual.
Client agrees not to solicit to hire and/or hire or otherwise directly or indirectly solicit to retain and/or retain the services of any person who is or was during the previous six month period an employee of or consultant to ROCKPORT VAL or ROCKPORT VAL affiliates for the period beginning with the date that this Agreement is executed and ending one year after termination of this Agreement. If Client does hire or otherwise directly or indirectly retain any such employee or consultant, ROCKPORT VAL may, in its sole discretion, elect to receive from Client an amount equal to forty percent (40%) of the previous year’s compensation (including bonus) for such employee or consultant. If Client retains any such employee or consultant on less than 90 days’ notice to ROCKPORT VAL, the amount of such payment will be sixty percent (60%) of the previous year’s compensation (including bonus) for such employee or consultant. Client agrees that these amounts are a reasonable estimate of the cost savings Client is likely to realize from hiring such employee or consultant and of the damages ROCKPORT VAL is likely to suffer from Client’s breach of this covenant and that they do not constitute a penalty. Nothing in the preceding sentence will be construed to negate, limit, or waive any right ROCKPORT VAL may have to equitable relief to prevent a violation of this provision, nor as a waiver of any contractual or other common law rights ROCKPORT VAL may have with its employees or consultants.
(a) ROCKPORT VAL, shall, (i) at its own expense defend Client with respect to any third party claim that the Service as used by Client in accordance with the terms of this Agreement infringes or violates any U.S. patents, copyrights, trade secrets, licenses or other proprietary rights; and (ii) pay the resulting costs and damages finally awarded against Client by a court of competent jurisdiction that are the result of the third party claim, the amounts negotiated and agreed to by ROCKPORT VAL in a written settlement. The foregoing obligations are subject to the following: Client promptly providing ROCKPORT VAL with written notice of any claim which Client believes falls within the scope of this paragraph, Client reasonably cooperates with Rockport Val’s request for information, and Client is not in material breach of this Agreement. Client may, at its own expense, assist in such defense if it so chooses, provided that ROCKPORT VAL shall control such defense and all negotiations relative to the settlement of any such claim. This provision shall survive the termination of this Agreement.
(b) If the Service or any portion of the Service becomes, or in ROCKPORT VAL’s opinion is likely to become subject to any claim of infringement, ROCKPORT VAL will either (i) procure for Client the right to continue exercising its rights under this Agreement with respect to the Service; or (ii) replace or modify the Service to make it non-infringing, or if, neither (i) nor (ii) are, in Rockport Val’s sole discretion, commercially feasible, terminate this Agreement and refund to Client a pro-rated portion of the applicable fee paid for the Service, in which case Client will immediately cease all use of the Service. The provisions in Sections 13 (a) and (b) are ROCKPORT VAL’s sole obligation and Client’s sole remedy with respect to any infringement claim.
(c) Client will indemnify and hold ROCKPORT VAL and any Information Provider harmless from and against any claim, liability, loss, injury, damage, cost or expense (including attorneys’ fees) incurred by ROCKPORT VAL or any Information Provider to any third party arising from any use by Client of the Service supplied pursuant to this Agreement, except as related to a claim, liability, loss, injury, damage, cost or expense (including attorneys’ fees) (i) covered by clause 13(a) above or (ii) arising out of ROCKPORT VAL’s gross negligence or willful misconduct. ROCKPORT VAL may, at its own expense, assist in such defense if it so chooses, provided that Client shall control such defense and all negotiations relative to the settlement of any such claim. ROCKPORT VAL shall promptly provide Client with written notice of any claim which ROCKPORT VAL believes falls within the scope of this paragraph. This provision shall survive the termination of this Agreement.
In the event of a material breach or threatened material breach of any term of this Agreement that threatens any rights of ROCKPORT VAL or any Information Provider in the Service or the economic value of the Service, ROCKPORT VAL and the third party information providers will be entitled to preliminary and permanent injunctive relief to protect such rights and interests. Nothing herein will preclude ROCKPORT VAL or the third party information providers from pursuing any action or other remedy for any breach or threatened breach of this Agreement, all of which will be cumulative.
15. THIRD PARTY BENEFICIARIES.
Third party information providers are intended third party beneficiaries of this Agreement with respect to the provisions of each section in which the term appears.
Neither this Agreement or Order Form, nor any rights, duties, or obligations under this Agreement or Order Form may be assigned, or otherwise transferred, by Client without the prior written consent of ROCKPORT VAL. In the case of an assignment by Client to any of its affiliates that are in substantially the same business as Client, ROCKPORT VAL’s consent will not be unreasonably withheld.
17. APPLICABLE LAW.
This Agreement, and any modification thereto, will be governed and construed under the laws of the State of New York without giving effect to the conflicts of law principles thereof. The Client agrees to the jurisdiction of the courts of the State of New York. If any term or condition of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining terms and conditions hereof shall not in any way be affected or be impaired thereby. Each party in any judicial action or proceeding shall be responsible for its own costs, including without limitation, filing fees, attorney’s fees, witness fees, expert fees, and travel expenses.
18. SCOPE OF THE AGREEMENT.
This Agreement represents the entire agreement between ROCKPORT VAL and the Client relating to the Services defined in the Order Form. This Agreement supersedes all prior proposals, representations, understandings, and agreements, whether oral or in writing, and may not be modified or amended except by an instrument in writing executed by both parties hereto. This Agreement will not be valid until the Order Form is signed by a duly authorized agent of both parties. The provisions of paragraphs 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 will survive the termination of this Agreement.
Any notice, request, demand or other communication required or permitted to be given by one party to the other under this Agreement will be sufficient and deemed to have been given if sent in writing by certified or registered mail, by hand, facsimile or overnight courier, to the party to receive the notice at its address set forth on the attached addendum or to such other address as the party to receive the notice has designated by notice to the other party.
20. Force Majeure.
Except for payment of fees, neither party will be liable for failure to perform its obligations during any period if performance is delayed or rendered impracticable or impossible due to circumstances beyond that party’s reasonable control.
Client agrees that it will not, directly or indirectly, export or re-export, or knowingly permit the export or re-export of, the Service, or any technical information or documentation about the Service, to any country for which the United States Export Administration Act, any regulation thereunder, or any similar United States law or regulation, requires an export license or other United States government approval, unless the appropriate export license or approval has been obtained and such use is otherwise within the limits of the rights licensed to Client under this Agreement.
THIS AGREEMENT IS SUBJECT TO THE TERMS OF THE SIGNED ORDER FORM, WHICH TERMS ARE INCORPORATED HEREIN.