This Agreement governs the use by you and your authorized employees, agents, affiliates and/or contractors (collectively, “Client”) of the Signal Intent, Inc dba Chimney (“Chimney”) services (this “Agreement” or this “EULA”). If Client has entered into an order form with Chimney setting forth pricing and other terms (Client’s “Order Form”), this Agreement is incorporated therein by reference.” Any references to Client’s Order Form shall only apply to Client so long as Client has an Order Form with Chimney. In the event of a conflict between the terms of Client’s Order Form and this Agreement, the terms of Client’s Order Form shall control.
DEFINITIONS
“Affiliates” means entities directly or indirectly controlled by Client, and entities under common control with Client.
“Calculator Management Platform” means Chimney’s proprietary SaaS platform that allows Clients the ability to launch new calculators, make ongoing edits, update web copy and see real-time analytics and performance metrics of its Calculators.
“Login Credentials” means the unique username and password provided by Chimney to Client.
“Services” collectively means (i) Chimney’s Calculator Management Platform; (ii) the individual Calculators provided to Client; and (iii) any professional services performed by Chimney relating to the implementation and/or adoption in connection therewith.
1.0 SERVICES
1.1 Chimney hereby grants to Client and its Affiliates, on the terms and conditions set forth herein, a limited, non-exclusive, non-assignable, non-sublicensable right and license to use the Chimney Login Credentials in order to access and use the Chimney Services during the Term of Client’s Agreement. All rights not expressly granted to Client in this Agreement are reserved by Chimney.
1.2 Client agrees that: (i) Client shall not copy and/or distribute the Chimney Login Credentials or provide access to the Services to anyone outside of permissioned employees, agents and/or contractors, and shall protect the Services from unauthorized access, modification or distribution; (ii) Client will not use the Services in contravention of any laws or regulations, including, but not limited to, intellectual property law and/or privacy laws; (iii) Client shall not use the Services in a manner that adversely impacts the stability of Chimney’s servers or adversely impacts the behavior of other applications using the Chimney platform; (iv) Client will not use the Services to build or support, or assist a third party in building or supporting, products or services competitive to Chimney.
1.3 Chimney reserves the right to include the phrase “POWERED BY Chimney” (the “Chimney Logo”) and an active link to Chimney’s website on the Calculators. Customer may not modify the Chimney Logo in any way without Chimney’s prior written consent.
2.0 INTELLECTUAL PROPERTY
2.1 Client acknowledges and agrees that (i) as between Chimney and Client, Chimney owns all right, title and interest in the Chimney Services, and Chimney’s name and trademarks, whether now existing or which may subsequently come into existence (collectively, the “Chimney Property”), (ii) nothing in this Agreement shall confer in Client any right of ownership in the Chimney platform or calculators and (iii) any goodwill generated through Client’s use of the Chimney name and trademarks will inure solely to Chimney. All suggestions, feedback, enhancement requests, recommendations or other input provided by Client or any other party relating to the Services shall be owned by Chimney and Client hereby does and shall make all assignments and take all reasonable acts necessary to accomplish the foregoing ownership.
2.2 Client hereby permits Chimney to use Client’s trademarks in the marketing and promotion of the Services, including but not limited to mutually agreed upon press releases and/or case studies.
3.0 CONFIDENTIALITY
3.1 The parties acknowledge that each party may have access to confidential and proprietary information, in any form, whether written or oral, of a business, financial or technical nature, which is (i) marked or otherwise indicated as being, or (ii) is, or ought reasonably to be, known to be confidential (“Confidential Information”). Each receiving party agrees to preserve and protect the confidentiality of the Confidential Information of the disclosing party, disclose any and all breaches of confidential information, and the receiving party will use Confidential Information of the disclosing party solely in connection with the performance of this Agreement. The receiving party agrees not to disclose the Confidential Information of the disclosing party without the prior written consent of the other party; provided, however, that the receiving party may disclose to any other party information which: (i) is or becomes publicly known through no fault of the receiving party; (ii) is discovered or developed independently of any involvement with the disclosing party; (iii) is learned through legitimate means other than from the disclosing party; or (iv) was known to the recipient before receipt from the disclosing party.
4.0 FEES
4.1 All Fees shall be documented in a Client Order Form. The parties shall be responsible for their own respective taxes including, but not limited to, their own income taxes and/or VAT. All fees are non-cancelable, non-refundable, and are based on the Services purchased and not based on usage or adoption of such Services by Client.
4.2 All pricing and discounts are valid for the Initial Term of Client’s Order Form only, unless otherwise noted.
4.3 Any fees associated with procurement, invoicing, and/or sourcing systems (e.g. Ariba) that Client requires Chimney to use shall be fully borne by Client.
5.0 WARRANTIES
5.1 Each party represents and warrants to the other party that it has the power and authority to enter into the Agreement. Chimney warrants that it will provide the Services in a manner consistent with generally accepted industry standards. Client warrants that its use of the Services will not violate any applicable law, rule or regulation.
5.2 NOTWITHSTANDING THE FOREGOING, Chimney DOES NOT REPRESENT OR WARRANT THAT THE SERVICES ARE FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS, OR ARE RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID. EXCEPT AS OTHERWISE PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND. Chimney EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND/OR TITLE. CLIENT ACKNOWLEDGES THAT Chimney DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND ANY THIRD PARTY PLATFORMS OR SYSTEMS, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH SYSTEMS. Chimney IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
5.3 ANY Chimney CALCULATOR IS NOT MEANT TO CONSTRUE FINANCIAL ADVICE AND ITS APPLICABILITY TO YOUR OR YOUR CUSTOMERS CIRCUMSTANCES IS NOT PREDICTIVE OR GUARANTEED.
6.0 LIMITATION OF LIABILITY
6.1 NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE), OR ANY OTHER PECUNIARY LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOSS OF PROFITS, LOSS OF SALES OR BUSINESS, LOSS OF CONTRACTS OR CUSTOMERS, OR LOSS OF GOODWILL. NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES HEREUNDER SHALL EXCEED TWO TIMES (2X) THE TOTAL AMOUNT OF FEES DUE AND PAYABLE BY CLIENT TO Chimney DURING THE TERM OF THIS AGREEMENT.
7.0 INDEMNITY
7.1 Chimney agrees, at its own expense, to defend, or at its option to settle, any claim or action brought against Client to the extent that such claim or action is based on or arises from any claim that use of the Chimney Services infringes any third party’s intellectual property rights and to indemnify Client against any and all damages and costs, including reasonable legal fees, that a court awards against Client under any such claim or action. The foregoing obligation does not apply to the extent the alleged infringement arises from any modification of the Services by any third party without Chimney’s consent.
7.2 Client agrees, at its own expense, to defend, or at its option to settle, any claim or action brought against Chimney to the extent that such claim or action is based on or arises from Client’s use of the Services or Client’s breach or alleged breach of its representations, warranties, or covenants provided herein and to indemnify Chimney against any and all damages and costs, including reasonable legal fees, that a court awards against Chimney under any such claim or action.
7.3 Chimney shall have no liability respecting any claim of infringement as aforesaid to the extent such claim is based upon the combination, operation or use of the Services (i) with other equipment or software not supplied by Chimney, or (ii) in a manner not consistent with Chimney’s instructions and/or the terms of this Agreement. If Chimney reasonably believes that Client’s use of any portion of the Services is likely to be enjoined for the aforementioned reasons, then Chimney may, at its expense: (i) procure for Client the right to continue using the Services; (ii) replace the same with other services or other material of equivalent functions that is not subject to a legal action; (iii) modify the applicable Services so that there is no longer any infringement or breach; and/or (iv) terminate the Services and refund any unused fees paid in advance.
7.4 Each party seeking indemnification hereunder (the “Indemnified Party”) will provide the party providing indemnification hereunder (the “Indemnifying Party”) with (i) prompt written notice of any claim for indemnification under this Agreement (provided, however, that any failure to provide such notice shall not relieve the Indemnifying Party of its indemnification obligations hereunder unless the Indemnifying Party’s ability to defend such claim is actually prejudiced by such failure), and (ii) proper and full information and reasonable assistance to defend and/or settle any such claim. The Indemnified Party shall have the right to participate fully, at its own expense, in the defense of an indemnified claim. Any compromise or settlement by the Indemnifying Party of an indemnified claim shall require the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld or delayed. An Indemnifying Party, in settling an indemnified claim, shall not make any admission of wrongdoing on behalf of any Indemnified Party or impose any obligation on any Indemnified Party without the Indemnified Party’s prior written approval.
8.0 TERM & TERMINATION
8.1 This Agreement becomes effective on the date of signature, with an Effective Date specified herein. All Order Forms are bound to minimum 12-month terms with no termination for convenience provisions.
8.2 Either party may terminate Client’s Order Form (i) upon the other party’s material breach without cure within thirty (30) days of written request; (ii) if the other party files for bankruptcy and/or enters into a composition with its creditors; (iii) if an order is made for the winding up of the other; or (iv) if the other has a receiver, manager, or administrator appointed in respect of it.
8.3 Chimney may suspend or shut down Client’s Services if Client is more than forty-five (45) days past due payment.
8.4 On the effective date of cancellation or termination for any reason under this Agreement, Client must cease all use of the Services and remove all Chimney Calculators displayed by Client on any Client owned or operated property. Client’s license to use the Chimney Services is temporary and specific to the Term in Client’s Order Form.
9.0 MISCELLANEOUS
9.1 This Agreement and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of New York, without giving effect to principles of conflicts of law. Each party hereby expressly waives the application of New York General Obligation Law Section 5-903 to any renewal of this Agreement.
9.2 The parties hereby agree that any controversy, claim or dispute arising out of or relating to this Agreement, shall be settled by binding arbitration in New York County, New York. Such arbitration shall be conducted in accordance with the then prevailing commercial arbitration rules of JAMS Arbitration, Mediation and ADR Services (“JAMS”), with the following exceptions if in conflict: (a) one arbitrator shall be chosen by JAMS; and (b) each party to the arbitration will pay its pro rata share of the expenses and fees of the arbitrator, together with other expenses of the arbitration incurred or approved by the arbitrator. The award may be confirmed and enforced in any court of competent jurisdiction. The parties hereby agree that any federal or state court sitting in the County of New York in the State of New York is a court of competent jurisdiction. All such controversies, claims or disputes shall be settled in this manner in lieu of any action at law or equity; provided however, that nothing in this section shall be construed as precluding the bringing of an action for injunctive relief or other equitable relief. IF FOR ANY REASON THIS ARBITRATION CLAUSE BECOMES NOT APPLICABLE, THEN EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO.
9.3 Neither party may assign the Agreement without the prior written approval of the other; provided that such approval shall not be required in connection with a merger or acquisition of all or substantially all of the assets of either party.
9.4 If one or more provisions of this Agreement are held to be unenforceable, then the balance of this Agreement shall be interpreted as if such provision were so excluded and shall be enforceable.
9.5 The failure of Chimney to exercise any right, power or remedy provided under this Agreement or otherwise available in respect hereof at law or in equity, or to insist upon compliance by Client with its obligations hereunder, and any custom or practice of the parties at variance with the terms hereof, shall not constitute a waiver by Chimney of its right to exercise any such or other right, power or remedy or to demand such compliance.
9.6 The relationship between the parties shall be that of independent contractors, and neither Client nor Chimney or contractor shall be deemed an agent or employee of any other party hereunder.
9.7 This EULA and any Order Form or subsequent addendum that is governed by this Agreement constitute the entire agreement between the parties regarding the subject matter hereof, and supersedes any prior oral or written negotiations or agreements.
9.8 As used in this Agreement, the words “execution,” “signed,” “signature,” and words of like import shall be deemed to include electronic signatures (including any electronic symbol or process attached to, or associated with, a contract or record and adopted by a with the intent to sign, authenticate or accept such contract or record) or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based record keeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
9.9 From time to time, Chimney may use third party data from Zillow or other third party sources. Chimney shall remain in compliance with such third party’s terms of use.
9.9.1
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