REALZIPS LICENSE AGREEMENT
This RealZips License Agreement (the “Agreement”) sets forth the terms and conditions under which RealZips Inc. (“RealZips,” “we,” or “our”) provides the use of the RealZips Application (defined below), Datasets (defined below), Work Product (defined below) and related professional services (collectively with the Application, Datasets and Work Product, the “Services”). “You” or “Your” as used in this Agreement refers to the company purchasing Services from RealZips, as identified in the corresponding RealZips contract or order form provided by RealZips and executed by such company in connection with such purchase (each an “Order Form”), and Your employees using the Services on Your behalf.
1. GRANT OF LICENSE
RealZips hereby grants You a limited, non-exclusive, non-transferable, revocable, right to use the following, in each case, solely through Your existing implementation of the Salesforce software-as-a-service platform (the “Salesforce Service”), for your own internal business purposes, subject to the terms and conditions of this Agreement: (a) the user-facing functionality of the RealZips software-as-a-service application (the “Application”), (b) all Datasets made accessible to you through the Application and for which you have paid applicable fees to RealZips, and (c) all work product developed by RealZips in connection with any professional services for which you have paid applicable fees to RealZips (“Professional Services”) to the extent made accessible to you through the Application (“Work Product”). For purposes of the foregoing, “Datasets” means (i) sets of data specifically gathered, developed and prepared by RealZips using data that is publicly available or curated by RealZips (“RealZips Datasets”) and (ii) sets of data obtained in whole or in part by RealZips from third parties other than You, which RealZips then makes accessible to You through the Services (“Third Party Datasets”). All rights not expressly granted to You are reserved by RealZips and its licensors. The foregoing license shall immediately terminate upon termination of this Agreement for any reason.
All title to and copyright in and to the Services and each component thereof (excluding Third Party Datasets), and all accompanying printed and electronic materials, constitutes the property of and shall be owned by RealZips or its licensors and are protected by United States copyright laws and international treaty provisions. You are permitted to make copies of the printed training materials accompanying the Services solely for use as reference guides for authorized Users (defined below) using the Services in an authorized manner in accordance with this Agreement. All such copies shall contain the copyright and other notices of RealZips. All other copying of the printed materials accompanying the Services is prohibited without express written permission from RealZips in each instance.
3. YOUR USE OF THE SERVICES
Each subscription to the Services shall entitle one user authorized by You (each a “User”) to use the Application, Datasets and Work Product. User subscriptions cannot be shared or used by more than one User (but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment with You or otherwise changed job status or function and no longer require use of the Service). For clarity, Your subscription to the Services hereunder does not include a subscription to use the Salesforce Service. You must contract directly with Salesforce for any services provided by Salesforce.
You agree not to use the Services (a) for any illegal purpose, (b) for unauthorized access or distribution of any software, data, or material protected by copyright, patent, or trade secret, or (c) to post or transmit any hateful, vulgar, threatening, libelous, abusive, harassing, defamatory, racially, ethnically, or otherwise unlawful or tortious material, including material harmful to children.
You acknowledge and understand that You are solely responsible for the use of and the results obtained from the Services. You understand that it is solely Your responsibility to understand and comply with any and all applicable laws regarding Your use of the Services and all use of the Services in Your place or places of business, regardless of country or jurisdiction. You agree to abide by any and all local, country, and international export rules and regulations, laws and treaties governing Your use of the Services, including but not limited to those related to data privacy, international communications and the transmission of technical or personal data.
You agree to use the Services in conjunction with the operation of your business, and such operation may, subject to the terms of this Agreement, include use by related third party partners, vendors and clients with whom you collaborate in Your normal course of business and to whom you may grant access to Your Account; provided, that You shall be responsible for the use of the Services by any such third party. You shall not (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any unrelated third party or to any competitor of RealZips the Services or any component thereof in any way; (b) modify or make derivative works based upon the Services or any component thereof; (c) reverse engineer the Services or any component thereof; or (d) access or otherwise use the Services or any component thereof in order to (i) build or offer a competitive product or service, (ii) build or offer a product or service using similar ideas, features, functions or graphics of the Services, or (iii) copy any ideas, features, functions or graphics of the Services.
You shall not: (a) intentionally interfere with or disrupt the integrity or performance of the Services; (b) attempt to gain unauthorized access to the Services, or (c) send or store to or within the Services any software virus, worm, Trojan horse or other harmful computer code, file, script, agent or program that is intended to or may interfere with the Services or other users of the Services.
You agree that the Services are not intended for use in the storage, processing or handling of data that is (i) PCI data (defined below), (ii) Protected Health Information (as defined in and subject to the Health Insurance Portability and Accountability Act (“HIPAA”)), (iii) Sensitive Personal Data (defined below) or (iv) comprised of any of the following: (a) Social Security number; (b) driver’s license number or government issued identification card number; or (c) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to an individual’s financial account. “PCI data” means “cardholder data” as defined by the Payment Card Industry (PCI) Data Security Standard (PCI DSS) or any successor payment security standard thereto; and “Sensitive Personal Data” has the meaning set forth in Article 9 of the European Union General Data Protection Regulation or other applicable data protection legislation.
RealZips represents and warrants that:
(a) it has the right, power and authority to enter into this Agreement, grant the rights and licenses granted herein and fully perform its obligations hereunder;
(b) the making and performance of this Agreement by RealZips does not and shall not violate any separate agreement, right or obligation existing between RealZips and any third party;
(c) the Application, RealZips Datasets and Work Product, as delivered by RealZips, do not infringe any intellectual property right of any third party anywhere in the world and no third party and, other than RealZips’ licensors, has any proprietary interest therein or thereto;
(d) the Services do not contain a malicious or disabling code that is intended to damage, destroy or destructively alter software, hardware, systems or data;
(e) the Services have been created using, and RealZips will maintain during the term of this Agreement, at least an industry-recognized level of security given the state of technology available for such Services, RealZips will not materially decrease the overall security of the Services, and RealZips will use commercially reasonable practices to ensure the security and protection of Your Content (defined in Section 7 below); and
(f) the Services will perform materially in accordance with the applicable technical documentation provided to You by RealZips.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
5. LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST BUSINESS REVENUE, OR FAILURE TO REALIZE EXPECTED SAVINGS, IN EACH CASE IRRESPECTIVE OF THE CAUSE OF ACTION UNDERLYING SUCH DAMAGES, INCLUDING, BUT NOT LIMITED TO: (I) BREACH OF CONTRACT, EVEN IF IN THE NATURE OF A BREACH OF CONDITION OR A FUNDAMENTAL TERM OR A FUNDAMENTAL BREACH, OR (II) TORT INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR MISREPRESENTATION.
IN NO EVENT SHALL REALZIPS’ LIABILITY, AND THE LIABILITY OF ITS LICENSORS, TO YOU OR ANY THIRD PARTIES IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE SERVICES IN THE AGGREGATE EXCEED THE AMOUNT OF FEES YOU PAID TO REALZIPS IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY.
Notwithstanding anything to the contrary herein, in no event shall RealZips be liable or responsible to You for any damages arising from or in connection with (a) Your Content, (b) any loss or destruction of any of Your Content, however occasioned, (c) any error, inaccuracy or omission in or from any Dataset, (d) any Third Party Datasets, (e) Your failure to perform in connection with this Agreement or (f) Your use or misuse of any User names or other personal information of any kind. All limitations and disclaimers stated in this Agreement also apply to RealZips’ licensors as intended third party beneficiaries of this Agreement. Any rights or limits stated herein are the maximum for which RealZips and its licensors are collectively responsible.
6. FORCE MAJEURE
Neither party shall be under any liability to the other for any delay in performing any obligation under this Agreement to the extent caused by reason of circumstances beyond the reasonable control of that party and without such party’s fault or negligence, which shall include but not be limited to acts of God, war, strikes, lack or failure of transportation facilities, acts of terrorism, fire, acts of government authority. In the event of a force majeure event, the affected party shall give prompt written notice to the other party, stating the period of time the same is expected to continue. If any such failure or delay in performance continues for more than sixty (60) days, either party may terminate this Agreement upon written notice to the other.
7. YOUR INFORMATION
RealZips provides only storage and delivery Services and it is not the publisher of Your Content. RealZips does not review, censor or monitor and is not in any manner responsible for any of Your Content. You agree that you are solely responsible for Your Content, that Your Content shall not include any information or data that is infringing, abusive, profane, hateful, libelous, unlawful, or offensive, and that all use of Your and any third party data, information or content via the Services, by You or those You have authorized, shall be all at Your own risk. You acknowledge hereby and retain all right, title and interest (including, where appropriate, copyright and other proprietary or intellectual property rights) in any and all content, data or files that you upload through the Application, store through use of the Services, or otherwise provide to RealZips (“Your Content”), and hereby grant RealZips a non-exclusive, transferrable, perpetual, royalty free, worldwide license to use Your Content for purposes of providing the Services. RealZips hereby expressly disclaims any ownership of, or right, title and interest in Your Content and agrees that Your Content is considered Your Confidential Information for purposes of Section 8 below.
RealZips shall use reasonable commercial efforts to ensure as part of the Services, but cannot guarantee that (a) any content, data, or files sent to You by RealZips using the Services will be transmitted to You in uncorrupted form without viruses or other damaging or destructive attributes or within a reasonable period of time and (b) Your Content when stored in or transmitted through the Services will not be subject to unauthorized access by others.
Notwithstanding anything to the contrary, You hereby grant RealZips the revocable right to list You or include Your logo in a list of RealZips customers on its websites.
“Confidential Information” means any confidential or proprietary materials, information or data disclosed under or in connection with this Agreement or the Services, in any form, including, but not limited to oral, written, graphic or electromagnetic forms, models or samples, which the disclosing party identifies as confidential at the time of disclosure or which is of such a nature that the receiving party should reasonably understand that the disclosing party considers such information to be confidential or proprietary, including without limitation, business information, financial data and marketing data. All Confidential Information shall remain the sole property of the disclosing party, and its confidentiality shall be maintained and protected by the receiving party using at least the same degree of care which the receiving party uses to protect its own similar confidential and proprietary information during the term of this Agreement and for a period of three years thereafter. The receiving party shall not use the Confidential Information of the other party except as necessary to fulfill its obligations under this Agreement, nor shall it, without the prior written consent of the disclosing party, disclose such Confidential Information to any third party other than third parties authorized by the disclosing party. The restrictions on the use or disclosure of any Confidential Information shall not apply to any Confidential Information that: (i) is or becomes generally available to the public without breach of this Agreement by the receiving party; (ii) is rightfully in the receiving party’s possession prior to disclosure to it by the disclosing party; (iii) is independently developed by the receiving party without reference to the Confidential Information of the disclosing party; (iv) is rightfully received by the receiving party from a third party without a duty of confidentiality; or (v) is required to be disclosed by any applicable legal requirement. In the event of any such legally required disclosure, the receiving party will promptly notify the disclosing party of such order or requirement to the extent practicable under the circumstances.
You understand that RealZips implementation and support personnel may need to access Your Confidential Information and/or information associated with your RealZips account and/or subscription (“Account Information”) to assist You in Your implementation, as well as to address support requests that may occur from time to time, but such access shall be on a need-to-know basis. You permit RealZips implementation and support personnel to access Your Account Information with the understanding that all Account Information shall be considered Your Confidential Information by RealZips personnel.
You shall indemnify RealZips and RealZips’ officers, directors, employees and agents (each a “RealZips Indemnitee”) against any and all third party claims, actions, suits, proceedings and related losses, damages, liabilities, costs and expenses (including without limitation, attorneys’ fees and associated court costs) (collectively, “Claims”), incurred by any RealZips Indemnitees in any action arising out of or in connection with Your use of the Services, including, without limitation, Your use of the Services in conjunction with any material or content that You store or transmit that: (a) infringes any third party’s intellectual property or publicity/privacy rights; (b) violates any law or regulation; (c) is defamatory, libelous, unlawfully threatening or unlawfully harassing; or (d) is materially false, inaccurate or misleading.
RealZips agrees to indemnify and hold You and Your officers, directors, employees and agents (each “Your Indemnitee”) harmless from and against any and all third party Claims incurred by Your Indemnitee arising out of or in connection with the breach of any of RealZips’ representations or warranties set forth in this Agreement.
RealZips shall indemnify and hold You harmless from any and all legal damages awarded by a court of competent jurisdiction against You as a result of the court’s finding that the Application, RealZips Datasets or Work Product, as delivered by RealZips under this Agreement, infringe any United States patent, copyright or other intellectual property right of a third party, and any and all expenses and costs (including attorneys’ fees and associated court costs) reasonably incurred by You in connection with any such infringement claim; in each case, except to the extent caused by Your (or Your contractors’) (a) use or modification of the Services not in accordance with the Agreement; (b) Your use of the Services in combination with any software, data, content or hardware not provided or recommended by us, to the extent such damages relate to such combination or (c) instructions or Your Content.
If the Application, RealZips Datasets or Work Product or any part thereof becomes the subject of a valid claim of infringement under any patent, copyright or trade secret law, as Your sole and exclusive right and remedy, RealZips shall endeavor to either procure the right, at RealZips’ sole expense, to permit Your continued use of the infringing Application, RealZips Datasets or Work Product, or replace or modify the same so as to avoid infringement without materially altering the functionality and performance thereof. If RealZips reasonably and in good faith determines that either of the foregoing is not commercially practicable, RealZips may terminate this Agreement and the licenses granted herein effective immediately upon written notice to You and shall refund a pro rata portion of any prepaid amounts. RealZips agrees to notify You promptly of any claims asserted against RealZips the outcome or resolution of which RealZips reasonably determines may affect the rights granted to You pursuant to this Agreement.
The indemnification obligations set forth in this Agreement are contingent upon the following conditions: (i) the party entitled to indemnification (the “Indemnified Party”) must promptly notify the other party (the “Indemnifying Party”) in writing of the Claim (however, failure of the Indemnified Party to so promptly notify the Indemnifying Party will not relieve the Indemnifying Party of its indemnification obligations hereunder, except to the extent it has been damaged thereby); (ii) the Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of the matter, including without limitation, by providing the Indemnifying Party all reasonably requested information and assistance; and (iii) the Indemnifying Party will have primary control of the defense of the Claim and negotiations for its settlement and compromise; provided, however, that the Indemnified Party may, at its own cost, obtain separate counsel to represent its interests; and provided, further, that the Indemnifying Party shall not settle any such Claim without first obtaining a complete and total release of the Indemnified Party or the Indemnified Party’s prior written consent in each instance.
You acknowledge and agree that the Application, Datasets and Work Product (if any) are accessible only through the Salesforce Service and that RealZips is not and cannot be responsible for any interruption or accessibility of the Services caused in whole or in part by Salesforce. You acknowledge and agree that scheduled, unscheduled, and emergency downtime and other potential issues with the Salesforce Service can and may cause the Services to be unavailable or unusable. Subject to the foregoing, RealZips will make commercially reasonable efforts to make the Services available in a manner consistent with other integrated third party Salesforce solutions and promptly address reproducible errors in the Services for which You provide notice. Your access to the Services is through the Internet, and you understand that your ability to use the Services is dependent on the global telecommunications infrastructure involving the reliability and performance. Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. RealZips is not responsible for any delays, access or delivery failures, or other damages resulting from any of the foregoing issues or problems.
11. SERVICES UPGRADES, ENHANCEMENTS, AND BRANDING
You understand that RealZips makes regular and sometimes substantial changes and improvements to the Services and that communication with Your and/or Your Users about planned changes may be necessary to ensure Your efficient use of the Services. You understand and agree that from time to time, and solely at its discretion, RealZips may communicate directly with Users using electronic and other means. Such communication shall be restricted to content relating to planned and actual product changes and enhancements, product education, product feedback and suggestions, system availability, and other content relevant or important to the productive use of the Services. Under no circumstances will User information, including email addresses, be shared with third parties.
12. NO AGENCY
You and RealZips are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisee-franchisor relationship is intended or created by this Agreement.
Except as expressly stated otherwise, any notice to RealZips shall be given in writing to RealZips Inc., 2241 North Monroe Street #1091, Tallahassee, FL 32303, Attention: Legal Counsel. Any notice to You will be given to the street address or email address You provide to RealZips during the registration and provisioning process. Notice shall be deemed given three (3) days after deposit in the U.S. mail, one (1) day after deposit with overnight courier for overnight delivery, or upon electronic transmission confirmation or delivery receipt if sent by email (unless the sending party is notified that the electronic mail address is invalid). Either party may update its address(es) by proper notice to the other party in the same manner as provided herein.
This Agreement shall commence as of the date You have executed the Order Form and RealZips provides You with login credentials for Your Account (which shall be deemed acceptance of this Agreement with You by RealZips). Thereafter, subject to earlier termination in accordance with this section or otherwise in accordance with this Agreement, this Agreement shall continue for an initial period of one (1) year (the “Initial Term”), and automatically renew for successive one (1) year periods (each a “Renewal Term”). Either party may, at its option, terminate this Agreement in the event of a material breach of this Agreement by the other party (“Cause”). Any such termination may be affected only through a written notice to the other party, specifically identifying the breach or breaches on which termination is based. Following receipt of such notice, the party in breach shall have thirty (30) days to cure such breach or breaches, and this Agreement shall terminate in the event that such breach is not cured by the end of such period. Additionally, (a) either party may terminate this Agreement effective as of the end of the then current Initial Term or Renewal Term, upon at least ninety (90) days’ prior written notice, and (b) in the event a direct competitor of RealZips directly or indirectly owns or acquires a majority interest in You, You will promptly notify RealZips, and RealZips may terminate this Agreement immediately upon notice.
Upon any termination of this Agreement, the obligations of the parties shall immediately cease, except that (a) the parties’ respective rights and obligations under Sections 2, 5, 7, 8, 9, 12, 13, and 15 through 18 shall survive, (b) if You terminate for Cause, RealZips will refund Your prepaid subscription fees attributable to the portion of the then current Initial Term or Renewal Term remaining after the effective date of such termination, and (c) all other fees and amounts previously paid by You under this Agreement shall be non-refundable.
15. GOVERNING LAW AND ARBITRATION
Any and all disputes arising out of or in connection with this Agreement or the negotiation, execution, interpretation, performance or nonperformance hereof shall be solely and finally resolved by binding arbitration, which shall be conducted in Florida, U.S.A. by a single arbitrator appointed by the American Arbitration Association. The parties hereby renounce all recourse to litigation and agree that the award of the arbitrator shall be final and subject to no judicial review. The arbitration shall be conducted pursuant to the Commercial Arbitration Rules of the American Arbitration Association, as now or hereafter amended. All substantive questions of law shall be determined under the laws of the State of Delaware, U.S.A. (without regard to the principles of conflicts of laws of such state).
This Agreement, together with the Order Form Agreement, if any, comprises the entire agreement between You and RealZips with respect to the subject matter hereof and supersedes all prior agreements, undertakings and arrangements between the parties regarding the subject matter of this Agreement. If one or more of the provisions of this Agreement are found to be unenforceable or invalid, the remaining paragraphs shall remain in effect.
This Agreement may not be assigned by a party without the prior written consent of the other party unless such assignment is to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.
If You are a legal entity and an individual is accepting this Agreement on your behalf, then You and such individual hereby represent, warrant and attest that such individual has the authority to execute this Agreement on Your behalf.
Last Updated: August 9, 2021.