Effective date: August 11, 2023
This Subscription Agreement (“Agreement”) is entered into between SkySlope, Inc. (“SkySlope”) and the subscribing party identified on the applicable Order Form (“Broker”), and is effective as of the effective date set forth on the Order Form (“Effective Date”), which is hereby incorporated by reference and forms a part of this Agreement. SkySlope may modify the terms of this Agreement from time to time and such modifications shall become effective upon the start of Broker’s next subscription term, provided that SkySlope shall notify Broker of any modification at least thirty-five (35) days in advance by sending Broker an email, posting a notice on the Services, or some other means.
1.1 Access. Subject to Broker’s compliance with the terms and conditions of this Agreement, Broker has the right to access and use the services specified in the applicable Order Form (collectively, the “Service”) during the term of this Agreement for the purposes of its internal real estate transactions management and only in accordance with SkySlope’s applicable documentation.
1.2 Restrictions. Broker will not (and will not allow any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service; (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof, or (vi) use the Service to create any other product or service. Broker will use the Service only in compliance with (i) the Order Form, (ii) the rights granted hereunder, and (iii) in accordance with all applicable laws and regulations. Broker shall ensure that all of its employees, agents, contractors, and other authorized users who access the Service (“Users”) comply with the terms of this Agreement. Broker shall be responsible for any breach of this Agreement by its Users.
1.3 Ownership. Except for the rights expressly granted under this Section 1, SkySlope retains all right, title, and interest in and to the Service (and all data, software, products, and other intellectual property created, used, or provided by SkySlope for the purposes of this Agreement).
Broker will pay SkySlope the fees for the Service as set forth in the Order Form (“Fees”). SkySlope reserves the right to modify its fees at any time for any reason upon notice to Broker through posting on SkySlope’s website or notification by email – made at least sixty (60) days prior to the end of the then-current subscription period. Any increase in fees will become effective beginning with the next subscription term. If Broker does not agree to any increase in fees, its sole remedy is to not renew. In the event SkySlope does not provide notice of a different increase, fees will automatically be increased by three percent (3%) over SkySlope’s general price list in effect during the immediately preceding term. Unless otherwise specified in the Order Form (e.g. for automatic charges to Broker’s credit card), all Fees will be invoiced in advance and all invoices issued under this Agreement are payable in U.S. dollars within fifteen (15) days from date of invoice. Unpaid or late invoices are subject to a finance charge of 1.5% per month or the maximum permitted by law, whichever is lower, plus all costs of collection (including
attorneys’ fees). Broker shall be responsible for payment of (i) all taxes associated with Service other than taxes based on SkySlope’s net income, and (ii) SkySlope’s costs of collection in the event of Broker’s delinquent payment.
All Fees paid are non-refundable (except as otherwise expressly set forth in the Order Form) and not subject to set-off. Broker is responsible for all costs associated with MLS IDX or RETS feed data where applicable.
Broker will be charged additional fees for any users in excess of the number of users specified on the Order Form; such fees will apply retroactively to the beginning of the applicable service month. Any increase in users will remain in effect for the remainder of the subscription period and any renewal periods. No license reductions can be done during the initial subscription period. Reductions may be made on at least thirty (30) days prior written notice – with such reduction taking effect at the beginning of the next subscription term.
SkySlope may offer additional products and services to Broker’s agents (such as ‘DigiSign’ and ‘add-on’ products) (‘Add-On Services’). Fees for Add-On Services will be charged directly to the individual agents. Broker will not be responsible for such fees. If purchased by an agent, such Add-On Services will be deemed “Services” hereunder.
Subject to earlier termination as provided below, this Agreement shall commence on the Effective Date and continue for the initial subscription period specified in the Order Form; thereafter (unless otherwise stated on the Order Form) this Agreement will automatically renew for consecutive periods of equal length to the initial subscription period (unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then current period). If no initial subscription period is set forth in an Order Form, the initial subscription period will be one (1) year. Either party may terminate this Agreement in the event the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days (ten (10) days in the case of non-payment) from receipt of written notice thereof (provided that, such written notice contains sufficient detail for the breaching party to identify and remedy the breach). Without limiting the foregoing, if payment is not received by the 10th of the month the Service may be suspended by SkySlope. In the event of any suspension, if Broker subsequently makes the delinquent payment, SkySlope may charge a fee (as it determined in its discretion) to reactivate the Service account. Furthermore, if payment remains outstanding by the 10th of the month the Service may be terminated by SkySlope (in its discretion).
In addition, Broker may terminate this Agreement at any time, for convenience, on thirty (30) days’ written notice; provided that, Broker pays SkySlope for all fees that but for termination would otherwise have been due for the full term (as if no
termination had occurred (and such amounts shall accelerate and be due and payable within thirty (30) days from the termination date). Upon termination of this Agreement, all rights granted herein to Broker will terminate and Broker will make no further use of the Services. The following provisions will survive termination of this Agreement: Sections 1.2, 1.3, and 2 through 12.
During the term of this Agreement, each party (a “Disclosing Party”) may provide the other party (a “Receiving Party”) with confidential information (“Confidential Information”). All materials and information provided by Disclosing Party to Receiving Party and identified at the time of disclosure as “Confidential” and all other information that the Receiving Party reasonably should have known was the Confidential Information of the Disclosing Party, shall be considered Confidential Information; for the avoidance of doubt, the Service and terms of this Agreement and the Order Form are Confidential Information of SkySlope. Receiving Party shall (i) maintain the confidentiality of the Confidential Information, (ii) not disclose such information to any third party without the prior written consent of Disclosing Party, and (iii) only use the Confidential Information internally for the purposes contemplated hereunder. The obligations in this Section 5 shall not apply to any information that: (i) is made generally available to the public without breach of this Agreement, (ii) is developed by the Receiving Party independently from the Disclosing Party’s Confidential Information, (iii) is disclosed to Receiving Party by a third party without restriction, or (iv) was in the Receiving Party’s lawful possession prior to the disclosure to the Receiving Party and was not obtained by the Receiving Party either directly or indirectly from the Disclosing Party. Receiving Party may disclose Confidential Information as required by law or court order; provided that, Receiving Party provides Disclosing Party with prompt written notice thereof and uses its best efforts to limit disclosure. At any time, upon Disclosing Party’s request, Receiving Party shall return to Disclosing Party all Disclosing Party’s Confidential Information in its possession, including, without limitation, all copies and extracts thereof.
Upon request by Broker made within thirty (30) days after the effective date of termination of an Order Form/Services subscription, SkySlope will make available to Broker for download, for a period of five (5) business days after such request, a file of Brokers documents and data (.zip format) along with attachments in their native format. After such thirty (30) day period, SkySlope shall have no obligation to maintain or provide any such documents and shall thereafter, unless legally prohibited, delete all such documents and data in SkySlope systems or otherwise in SkySlope possession or control.
SkySlope warrants that it will use commercially reasonable efforts to (i) ensure the Service is available on a 24/7 basis, and (ii) promptly correct all verifiable defects in the Service of which SkySlope is aware. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, SKYSLOPE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. SKYSLOPE DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, NEITHER PARTY, SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, FOR ANY: (A) ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE, OR TECHNOLOGY, OR LOSS OF BUSINESS; (B) INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; (C) MATTERS BEYOND SUCH PARTY’S REASONABLE CONTROL; OR (D) AMOUNTS IN THE AGGREGATE THAT EXCEED THE FEES PAID BY BROKER TO SKYSLOPE DURING THE SIX (6) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION ACCRUES (PROVIDED THAT, IF NO FEES ARE PAID, SUCH AMOUNTS SHALL BE LIMITED TO US $1,000.00). THE LIMITATIONS ON LIABILITY CONTAINS HEREIN SHALL NOT APPLY TO BREACH(ES) OF SECTIONS 1.2 OR 5.
SkySlope will indemnify, defend and hold Broker harmless from and against all third party claims (and all resulting, to the extent payable to third parties: damages, cost and expenses, including reasonable attorneys’ fees) arising from infringement by the technology used by SkySlope of any third party’s U.S. intellectual property rights; provided that, Broker provides SkySlope with prompt written notice of all claims and threats thereof, sole control of all defense and settlement activities, and all reasonably requested assistance with respect thereto. In the event of any such claim, or if SkySlope determines any such claim may arise, SkySlope may terminate this Agreement without penalty on thirty (30) days written notice. SkySlope will not be responsible for any settlement it does not approve in writing. Broker and its associates will indemnify, defend and hold SkySlope harmless from and against all third party claims (and all resulting, to the extent payable to third parties: damages, cost and expenses, including reasonable attorneys’ fees) arising from any violation or alleged violation of any regulations or laws, including, but not limited to, trademark, copyright, illegal use of logos, as a result of or based on content supplied by any person or entity through or in connection with Broker (such as any agent).
Until one (1) year after termination of this Agreement, Broker will not encourage or solicit any employee or consultant of SkySlope to leave SkySlope for any reason. This section will not apply to hiring resulting from general job postings.
SkySlope may issue a press release(s) regarding the relationship hereunder (“Press Release”). Broker also agrees that SkySlope may use Broker’s name and logo on SkySlope’s website and in SkySlope’s promotional materials as part of a general list of customers – or individually as part of a case study.
The parties will comply with all terms and conditions set forth in the Order Form. To the extent an Order Form conflicts with this Agreement, the Order Form will control. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable or transferable by a party except with the other party’s prior written consent; provided that, a party may transfer and assign its rights and obligations under this Agreement without consent to a successor to all or substantially all of its assets or business to which this Agreement relates. This Agreement (including the Order Form) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement. Any notices in connection with this Agreement will be in writing and sent by first class US mail, confirmed facsimile, email, or major commercial rapid delivery courier service to the address specified on the Order Form (or such other address as may be properly specified by written notice hereunder). Any legal notice sent by Broker to SkySlope must also be emailed to [email protected]. This Agreement shall be governed by the laws of the State of California, without regard to the conflict of law provisions thereof. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in Sacramento, California, USA, in the English language and the arbitral decision may be enforced in any court. With respect to all disputes arising in relation to this Agreement, but subject to the preceding arbitration provision, the parties consent to exclusive jurisdiction and venue in the state and Federal courts located in Sacramento, California. The prevailing party in any action or proceeding to enforce this Agreement will be entitled to recover costs and attorneys’ fees.