Terms of Service
INSIDERE, LLC CUSTOMER SUBSCRIPTION AGREEMENT TERMS & CONDITIONS
1. ACCEPTANCE OF TERMS
1.1. InsideRE, LLC (“IRE”) provides its software and services (“Subscription”) as defined in the Subscription Agreement (“Agreement”) to the person or entity and its users (“Customer” or “you”) identified on the Agreement subject to these terms and conditions (“T&Cs”), as may be amended from time to time by IRE in its sole discretion. The date these T&Cs were last updated is set forth at the top of this page. All changes are effective immediately and apply to all access to and use of the Subscription thereafter. Your continued use of the Subscription following the posting of revised T&Cs means that you accept and agree to the changes.
1.2. By signing the Agreement or by accessing the Subscription, Customer represents and acknowledges Customer has read, understood, and agrees (a) to be bound by these T&Cs, and the provisions of the Agreement, (b) that the information Customer provides is accurate, complete, and is within Customer’s right to use. If Customer is a company or another legal entity, the individual signing on behalf of the Customer represents that he or she has the authority to bind Customer and its affiliates to these T&Cs.
1.3. Customer acknowledges that these T&Cs constitute a contractual agreement between Customer and IRE, are incorporated into the Agreement, and that these T&Cs govern Customer’s use of the Subscription and supersede any other agreements between Customer and IRE governing the Subscription.
1.4. Customer acknowledges and agrees that IRE does not warrant any products or services offered through the Subscription by any third parties (“Third-Party Services”). Any exchange of data or other interaction between Customer and a provider of any Third-Party Services is solely between Customer and such third party provider, and Customer shall be solely responsible for paying all applicable fees for any Third-Party Services purchased by or on behalf of Customer, whether such fees are directly charged to the Customer by such third party providers or by paying such fees to IRE upon invoicing. The Subscription may provide, or providers of Third-Party Services may provide, links to other external world wide web or mobile sites or resources. Customer acknowledges and agrees that IRE has no control over such external sites and resources and that IRE is not responsible for the availability of such external sites or resources and does not endorse and is not liable for any content, advertising, products or other materials on or available from such sites or resources. In addition, Customer agrees that IRE is not responsible for any and all third party information or data that Customer may transmit, process or transfer to or from such third party through the Subscription (e.g., through the integration of the Subscription with any Third-Party Services).
2. PURCHASED SUBSCRIPTION; SERVICES
2.1. IRE shall make available to Customer during the Subscription Term, as defined in Section 7.1, the purchased Subscription as specified in the Agreement and all applicable end user documentation accompanying the Subscription (the “Documentation”), in each case pursuant to these T&Cs. Subject to Customer’s compliance with these T&Cs, IRE grants to Customer a non-exclusive, non-transferable, non-sublicensable, limited license to access and use the Subscription and the Documentation, during the term of the Agreement. Customer may only permit up to the maximum number of unique users to use the Subscription as specified in the Agreement (each a “User”).
2.2. IRE shall use commercially reasonable efforts to make the Subscription available 24 hours a day, 7 days a week, except for: (a) planned downtime, (b) any unavailability caused by circumstances beyond IRE’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, listings feed outages or failures, Internet service provider failures or delays, or denial of service attacks. IRE’s obligations shall be limited to providing the Subscription only in accordance with applicable laws and government regulations. Customer acknowledges that the Subscription may be subject to other limitations, such as: (i) limits on disk storage space, (ii) the number of calls IRE’s customers are permitted to make against IRE’s application programming interface, and (iii) limitations imposed by third party service providers enabling the Customer to provide public websites with limited page views.
2.3. Customer is limited to the total of one-thousand (1,000) contacts per agent multiplied by the number of agents covered by these T&Cs, unless approved in writing by IRE.
2.4 IRE may provide additional services as requested by Customer and as agreed by IRE from time to time, including without limitation integration or customization services. The terms for any such additional services, including the charges and payment terms, will be set forth in the Agreement.
3. OBLIGATIONS & RIGHTS SURROUNDING CUSTOMER DATA
3.1. Protection of Data: IRE shall maintain commercially reasonable levels of administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of data, content and media supplied by Customer for inclusion in the Subscription (“Customer Data”).
3.2. Customer Data Rights: Subject to the limited rights granted by Customer hereunder, IRE acquires no right, title or interest from Customer or Customer licensors under these T&Cs in or to Customer Data, including any intellectual property rights therein. Customer grants IRE the right to use non-Customer specific aggregated data for use by IRE to create business and best practice metrics and for any other statistical, analytics, machine learning, and product and service enhancement purposes, in its sole discretion and without any additional payment to Customer. Such aggregated data will be the sole property of IRE. For more details on IRE’s DMCA policy please visit our website page at: www.insiderealestate.com/dmca- policy/.
Customer represents and warrants to IRE that: (a) Customer has all necessary rights, permissions, licenses and other authority to use the Customer Data as anticipated under these T&Cs; (b) Customer has the legal authority to enter into this Agreement; (c) Customer’s use of the Subscription, any Customer content provided or posted by Customer and Customer’s conduct of its business as associated with the Subscription: (1) does not and shall not infringe or violate the rights of any third party, including but not limited to, intellectual property, privacy, contractual or publicity rights; (2) is not obscene, profane or offensive to a reasonable person; and (3) is not hateful, discriminatory, threatening or unlawful; (iii) the Subscription will not be used by Customer or its Users in violation of this Agreement, for any illicit or illegal purposes, and Customer shall not interfere with or disrupt other IRE clients’ use of the Subscription or business operations; (d) Customer is able to and shall obtain and maintain the appropriate licenses to secure an IDX Feed from MLS; and (e) Customer is in full compliance with, and shall fully comply with all rules, regulations and policies, including without limitation compliance requirements, as set forth by each applicable MLS, all laws applicable to Customer’s business and use of the Subscription, and all applicable professional associations (including without limitation franchise requirements and realtor designation regulations). . IRE reserves the right to suspend or remove Customer’s website or portions thereof if IRE determines, in its sole discretion, that (i) significant doubt exists as to Customer’s right to use any portion of Customer Data, (ii) any Customer Data is offensive, immoral, obscene, illegal, or likely to incite or encourage illegal or dangerous acts, (iii) Customer is in breach of these T&Cs, or (iv) any Customer Data may harm IRE’s reputation or hinder its ability to provide its services to other customers.
3.3. Return of Customer Data. Upon written request by Customer made within thirty (30) days after the date of termination of the Subscription Term and payment in full of all outstanding fees, IRE shall make available to Customer for download a file of Customer Data that IRE has defined at the time as exportable. Exportable Customer Data may include some or all agent, contact and lender information; front end website style design settings and files which the Customer has paid for if specified in the Agreement; images owned by Customer. Additionally, Customer may be able to receive or download periodic backups of some or all of the Customer Data throughout the Subscription Term based on a request to the IRE support team, no more often than quarterly. IRE shall have no obligation to maintain or provide any Customer Data and may delete Customer Data after the aforementioned thirty (30) day period.
3.5. GDPR Compliance. By signing the Agreement or by accessing the Subscription, you agree that you will not use any of the services provided hereunder to collect the personal information of any individual residing within the European Union (or cause any of your employees, independent contractors, or affiliates to do so) without first obtaining the express written consent of such individual and otherwise complying with the requirements of the European Union’s General Data Protection Regulation (the “GDPR”). In the event you should use the services provided herein to violate any provisions of the GDPR, you hereby agree to indemnify IRE against any and all costs and liabilities of IRE incurred thereby pursuant to Section 5.6 herein.
3.6. CCPA Compliance:
I) COMPLIANCE. BY SIGNING THIS AGREEMENT OR BY ACCESSING THE SUBSCRIPTION, YOU AGREE THAT YOU WILL ONLY USE THE SERVICES PROVIDED HEREUNDER TO COLLECT PERSONAL INFORMATION OF ANY INDIVIDUAL RESIDING IN CALIFORNIA (EACH A “CALIFORNIA CONSUMER”) (OR CAUSE ANY OF YOUR EMPLOYEES, INDEPENDENT CONTRACTORS, OR AFFILIATES TO DO SO) AFTER PROVIDING NOTICE TO EACH CALIFORNIA CONSUMER OF THEIR PRIVACY RIGHTS UNDER THE CALIFORNIA CONSUMER PRIVACY ACT (THE “CCPA”). FURTHERMORE, YOU AGREE TO THAT WILL COMPLY WITH ALL REQUIREMENTS OF THE CCPA, INCLUDING, BUT NOT LIMITED TO, NOTICE RIGHTS, DATA PORTABILITY RIGHTS, DELETION RIGHTS, OPT-OUT RIGHTS AND NON-DISCRIMINATION RIGHTS.
II) SERVICE PROVIDER. YOU ACKNOWLEDGE THAT IRE IS A “SERVICE PROVIDER” UNDER THE CCPA WITH REGARDS TO ANY CALIFORNIA CONSUMER PERSONAL INFORMATION THAT IS SHARED WITH IRE THROUGH YOUR USE OF THE SUBSCRIPTION. IRE WILL ONLY COLLECT, USE, RETAIN OR DISCLOSE THE PERSONAL INFORMATION OF ANY CALIFORNIA CONSUMER FOR WHICH YOU PROVIDE ACCESS IN ACCORDANCE WITH YOUR WRITTEN INSTRUCTIONS. IRE WILL NOT COLLECT, USE, RETAIN, DISCLOSE, SELL OR OTHERWISE MAKE ANY CALIFORNIA CONSUMER’S PERSONAL INFORMATION AVAILABLE FOR IRE’S OWN COMMERCIAL PURPOSES OR IN ANY WAY THAT DOES NOT COMPLY WITH THE CCPA. IF LAW REQUIRES IRE TO DISCLOSE ANY CALIFORNIA CONSUMER’S PERSONAL INFORMATION FOR A PURPOSE UNRELATED TO THE SUBSCRIPTION, IRE WILL FIRST INFORM YOU OF THE LEGAL REQUIREMENT AND GIVE YOU AN OPPORTUNITY TO OBJECT OR CHALLENGE THE REQUIREMENT, UNLESS LAW PROHIBITS SUCH NOTICE. IRE WILL LIMIT COLLECTION, USE, RETENTION AND DISCLOSURE OF PERSONAL INFORMATION TO ACTIVITIES REASONABLY NECESSARY AND PROPORTIONATE TO THE SUBSCRIPTION. IRE SHALL PROMPTLY COMPLY WITH ANY OF YOUR REQUESTS OR INSTRUCTIONS REQUIRING IRE TO PROVIDE, AMEND, TRANSFER OR DELETE ANY CALIFORNIA CONSUMER’S PERSONAL INFORMATION, OR TO STOP, MITIGATE OR REMEDY ANY UNAUTHORIZED PROCESSING. IF THE SUBSCRIPTION REQUIRES THE COLLECTION OF ANY CALIFORNIA CONSUMER’S PERSONAL INFORMATION ON YOUR BEHALF, IRE WILL ALWAYS PROVIDE A CCPA-COMPLIANT NOTICE ADDRESSING USE AND COLLECTION METHODS THAT YOU SPECIFICALLY PRE-APPROVE IN WRITING. IRE SHALL NOT MODIFY OR ALTER THE NOTICE IN ANY WAY WITHOUT YOUR PRIOR WRITTEN CONSENT. IF THE CCPA PERMITS, IRE MAY AGGREGATE, DEIDENTIFY OR ANONYMIZE ANY CALIFORNIA CONSUMER’S PERSONAL INFORMATION SO IT NO LONGER MEETS THE PERSONAL INFORMATION DEFINITION AND MAY USE SUCH AGGREGATED, DEIDENTIFIED, OR ANONYMIZED DATA FOR ITS OWN RESEARCH AND DEVELOPMENT PURPOSES. IRE WILL NOT ATTEMPT TO OR ACTUALLY RE-IDENTIFY ANY PREVIOUSLY AGGREGATED, DE-IDENTIFIED OR ANONYMIZED DATA AND WILL CONTRACTUALLY PROHIBIT DOWNSTREAM DATA RECIPIENTS FROM ATTEMPTING TO OR ACTUALLY RE-IDENTIFYING SUCH DATA.
III) IRE HAS PROVIDED TOOLS TO ASSIST YOU IN MEETING YOUR CCPA COMPLIANCE OBLIGATIONS AND RESPONDING TO CCPA-RELATED INQUIRIES, INCLUDING RESPONDING TO VERIFIABLE CONSUMER REQUESTS. IRE WILL REASONABLY COOPERATE TO PROVIDE ADDITIONAL SUPPORT AS NEEDED, TAKING INTO ACCOUNT THE NATURE OF IRE’S PROCESSING AND THE INFORMATION AVAILABLE TO IRE. FURTHER, IRE SHALL NOTIFY YOU IF IT RECEIVES ANY COMPLAINT, NOTICE OR COMMUNICATION THAT DIRECTLY OR INDIRECTLY RELATES TO YOUR COMPLIANCE WITH THE CCPA. SPECIFICALLY, IRE SHALL NOTIFY YOU WITHIN THREE (3) WORKING DAYS IF IT RECEIVES A VERIFIABLE CONSUMER REQUEST UNDER THE CCPA.
IV) WARRANTIES. BOTH YOU AND IRE SHALL COMPLY WITH ALL APPLICABLE REQUIREMENTS OF THE CCPA WHEN COLLECTING, USING, RETAINING OR DISCLOSING ANY CALIFORNIA RESIDENT’S PERSONAL INFORMATION. IN THE EVENT YOU SHOULD USE THE SERVICES PROVIDED HEREIN TO VIOLATE ANY PROVISIONS OF THE CCPA, YOU HEREBY AGREE TO INDEMNIFY IRE AGAINST ANY AND ALL COSTS AND LIABILITIES OF IRE INCURRED THEREBY PURSUANT TO SECTION 5.6 HEREIN.
4. FEES AND PAYMENT FOR SUBSCRIPTION
4.1. Payment: Customer is responsible for all payments and fees as specified in the Agreement, including Implementation Fee, Monthly Subscription Fee, Monthly Marketing Fee and Monthly MLS Fee, Communication Fee, and Other Fees (collectively, “Fees”), as described herein.
(i) Implementation Fee. Implementation Fees, as indicated on the Agreement, include but are not limited to the amounts specified for initial implementation of the Subscription. The Implementation Fee shall be due and billed on the signing date of the Agreement.
(ii) Subscription Fee. Subscription Fees, as indicated on the Agreement, include but are not limited to the amounts specified for use of the Subscription during the Subscription Term as defined in Section 7.1. Subscription Fees will be due and automatically billed monthly commencing on the beginning of the Subscription Term and continuing each month through the Subscription Term.
(iii) MLS Fees. MLS Fees include charges both direct and indirect associated with connecting Customer websites with required MLS data feeds. MLS Fees will be due and billed as incurred by IRE.
(iv) Communication Fees. Communication Fees include emails, minutes, texts or other usage- based forms of communication. Fees will be billed on a monthly basis and due upon billing.
(v) Marketing Fees. Marketing Fees include advertisements placed through various online services (Google, Facebook, etc.) and are billed monthly. Customer must notify IRE within five (5) days prior to the next billing date in order to cancel any Marketing Services.
(vi) Other Services Fees. Upon request from Customer, from time to time, and agreement by IRE if and as set forth in the Agreement, additional functionality may be made available by IRE to the Subscription that may require the payment of additional charges in order for such functionality to be used by Customer. Customer agrees to promptly pay any and all such additional charges upon receipt of the corresponding invoice(s). Client shall reimburse Company for all out-of-pocket expenses incurred by Company in connection with such services, which are specified in the Agreement or otherwise approved by Customer.
(vii) Third-Party Fees. Customer acknowledges and agrees that IRE may, as an accommodation and convenience to Customer, accept payment of charges from an MLS or from other third parties designated by Customer. Notwithstanding such accommodation, Customer remains solely liable for prompt payment of all charges and expenses due under this Agreement and IRE reserves the right to cease providing such accommodation and to bill Customer directly at any time upon notice.
(viii) Fees added to the Subscription and agreed to by the Customer in writing or via email after the date of the Agreement shall be due and billed at the time IRE receives Customer’s request and adds related services to Customer’s Subscription.
4.2. Billing Method. Customer will provide IRE with valid and updated credit card or automated clearing house (ACH) information (“Billing Method”) throughout the Subscription Term. By providing the Billing Method to IRE, Customer authorizes IRE to charge such Billing Method for all fees due.
4.3. Payment Obligations. Payment obligations are non-cancelable and fees paid are non- refundable. Customer agrees that, due to the nature of the Subscription, all Fees are due under these T&Cs regardless of Customer’s use of the Subscription. IRE reserves the right to suspend Subscription and if applicable, remove any Customer website from viewing on the Internet if any payment from Customer is not made when due. In cases where collection proves necessary, Customer agrees to pay all fees (including all attorney’s fees and court costs) incurred throughout the collection process. All payments must be made in U.S. dollars.
4.4. Taxes: Unless otherwise stated, IRE’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Subscription hereunder other than taxes on IRE’s income. If IRE has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be charged via Customer’s Billing Method, unless Customer provides IRE with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. PROPRIETARY RIGHTS
5.1. Reservation of Rights in Subscription: Subject to the limited rights expressly granted hereunder, IRE reserves all rights, title and interest in and to the Subscription and the Documentation, including all related intellectual property rights in each of the foregoing. No rights are granted to Customer hereunder other than as expressly set forth herein.
Without limiting the generality of the foregoing, copyright to any design-based elements, and special functionality produced by IRE are owned by IRE or used by IRE by permission. Rights to photos, graphics, source code, work-up files, and computer programs available through the Subscription specifically are not transferred to Customer, and remain the property of their respective owners. In cases where customers pay for customized cascading style sheets (“CSS”), IRE will grant, and hereby does grant, to Customer a reciprocal, royalty-free, worldwide, irrevocable, perpetual license for such use for any lawful internal business purpose of Customer. IRE, its licensors, employees and subcontractors retain the ownership, copyright, and distribution rights to themes, templates, designs and any other products or derivatives of such work; and retain the right to display graphics and other web design elements as examples of their work in their respective portfolios. Notwithstanding anything to the contrary contained herein, any use by Customer granted in these T&Cs of intellectual property described in this Section 5.1 shall be deemed to be used under a license (or sublicense, as the case may be) hereby granted by IRE subject to the payment of Fees required herein and to IRE’s right to terminate such license by terminating the Agreement as allowed hereunder. “InsideRE,” “Inside Real Estate,” and “Kunversion” and other IRE marks and logos are service marks and trademarks of IRE.
5.2. Restrictions: Customer shall not, nor allow others to: (a) create derivative works based on the Subscription except as authorized herein, (b) copy, frame or mirror any part or content of the Subscription, other than copying or framing on Customer’s own intranets for internal business purposes, (c) reverse engineer the Subscription, (d) facilitate or allow mass communications such as email or text message ‘blasts’ to contacts that are have not expressly opted-in to such communications, (e) use any part of the Subscription in ways that can be considered an abuse of the Subscription or (f) build a competitive product or service, (g) copy any features, functions or graphics of the Subscription, (h) access or use the Subscription using automated means (bots, spiders, scrapers or similar means or processes) without IRE’s express permission, (i) use the Subscription in any manner that directly or indirectly interferes with the proper working of or places an unreasonable load on the Subscription or IRE’s infrastructure, or (j) resell, sublicense, distribute, offer subscription services or otherwise provide use of the Subscription to third parties other than as expressly set forth in these T&Cs.
5.3. Suggestions: IRE shall have, and Customer hereby grants, a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Subscription and its design and functionalities, whether for Customer use or for any other uses, any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including users, relating to the operation of the Subscription.
5.4. TCPA Notice and Disclaimer: Transmitting unsolicited voice and text messages (as well as other forms of communication) is heavily restricted and regulated under the Telephone Consumer Protection Act (“TCPA”) and other laws as well as various jurisdictions’ laws and regulations. You should consult your legal advisor to ensure compliance with the TCPA and related laws. IRE makes no representations regarding the content and manner of transmission of any text, phone or other communication you may make.
5.5. Customer Communications & Compliance with Laws. Customer is solely responsible for the content of any and all communications and the means of communication (phone, fax, text, etc.) with any third parties, including customers, potential customers, leads or other individuals or entities, and Customer is solely responsible for complying with any laws, Taxes and tariffs applicable in any way to the Subscription or any other services contemplated herein.
5.6. Indemnification. Customer agrees to and shall indemnify and hold harmless IRE, its affiliates, and its and their respective owners, officers, managers, members, employees, agents, contractors, successors and assigns from and against any damages, claims, injury, costs and expenses, including, without limitation, attorney fees and court costs, arising from or related to (i) Customer’s exercise of Internet electronic commerce, (ii) any failure to comply with any laws, Taxes, and tariffs, (iii) any violation of the TCPA and/or related statutes (federal and state), (iv) Customer’s violation of these T&Cs, (v) Customer Data; and (vi) Customer’s use of the Subscription, its website, services provided by IRE in connection therewith, and any information obtained as a result thereof.
Customer agrees to cooperate as fully as reasonably requested by IRE in the defense of any claims, including asserting any available defenses. IRE reserves the right, at its own expense, to assume the exclusive defense and control of any claims or matter otherwise subject to indemnification by Customer and Customer shall not in any event settle any claims without IRE’s prior written consent.T5.6. Equitable Relief: You acknowledge that a breach of any proprietary rights provision of these T&Cs may cause IRE irreparable damage, for which the award of damages would not be adequate compensation. Consequently, IRE may institute an action to enjoin Customer from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and IRE may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which IRE may be entitled at law or in equity.
6. DISCLAIMERS AND LIMITATION OF LIABILITY
EXCEPT AS EXPRESSLY PROVIDED HEREIN, IRE MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT SHALL IRE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT AND THESE T&CS (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER DURING THE PREVIOUS 12 MONTHS. IN NO EVENT SHALL IRE HAVE ANY LIABILITY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT IRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FAILURE OF ANY OTHER REMEDY OF ITS ESSENTIAL PURPOSE. THE FOREGOING LIMITATIONS ON LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
7. TERM AND TERMINATION
7.1. Subscription Term: The Subscription Term shall include the Implementation Term, the Initial Subscription Term and Renewal Term(s). The Implementation Term shall commence upon the effective date of these T&Cs through the launch date of the first IRE product included in the Subscription. The Initial Subscription Term shall commence within the timeframe as detailed on the Agreement or the launch date of the first IRE product included in the Subscription through the Number of Subscription Months specified above. The Agreement will automatically renew at the end of the Initial Subscription Term for an additional Renewal Period equivalent to the Initial Subscription Term (each, a “Renewal Period”) unless Customer provides a written cancellation notice to IRE at least thirty (30) days prior to the end of the Initial or Renewal Term(s).
7.2. Termination: The Agreement may be terminated within the Initial Subscription or Renewal Term(s): (a) by either party if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (b) by IRE immediately upon Customer’s failure to make any payment required under the Agreement or these T&Cs, or (c) in the event of an uncured material breach, which material breach must be documented as such to the breaching party with a sixty (60) day notice that the breach is material; if the noted breach goes uncured for sixty (60) days from date of notice, then such applicable party may then terminate immediately upon written notice to the other party.
7.3. Payment upon Termination: Upon termination by IRE under Section 7.2, Customer shall pay any unpaid fees covering the remainder of the Subscription Term for all Subscriptions. In no event shall any termination by IRE pursuant to Section 7.2 above relieve Customer of the obligation to pay any fees payable to IRE hereunder for the full Subscription Term. In the event of any termination of this Agreement by IRE due to Customer’s breach of these T&Cs or the Agreement, or if Customer terminates these T&Cs without cause prior to the expiration of the then-current Subscription Term, Customer shall remain obligated for all fees due under the Agreement through the effective date of termination and shall pay an amount equal to the remaining unpaid fees that would, absent such termination, have become due for the period remaining in the Subscription Term. IRE reserves to the right to apply prepayments for any portion of the Subscription to all outstanding amounts upon termination of this Agreement.
7.4. Surviving Provisions. Sections 3, 4, 5, 6, 7, and 8 of these T&Cs shall survive any termination or expiration of the Agreement.
7.5. Notices. Except as otherwise specified in these T&Cs, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (a) personal delivery, (b) the second business day after mailing, or (c) the first business day after sending by email, in each case to the parties’ respective addresses set forth in the Agreement.
8. GENERAL PROVISIONS
8.1. Independent Contractors. The parties are independent contractors. Neither the Agreement nor these T&Cs creates a partnership, franchise, joint venture, agency, brokerage, fiduciary or employment relationship between the parties.
8.2. Third-Party Beneficiaries. Except as explicitly provided herein, there are no third-party beneficiaries to the Agreement or these T&Cs.
8.3. No Waiver; Severability. No failure or delay by either party in exercising any right under the Agreement or these T&Cs shall constitute a waiver of that right. If any provision of the Agreement or these T&Cs is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement and these T&Cs shall remain in effect.
8.4. Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of IRE. IRE reserves the right to assign its rights and delegate its duties under the Agreement and these T&Cs, in whole or in part, in its sole discretion. Subject to the foregoing, the Agreement and these T&Cs shall bind and inure to the benefit of the parties, their respective heirs, successors and assigns.
8.5. Entire Agreement. These T&Cs, including all exhibits and addenda hereto, and the Agreement constitute the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer purchase orders or other order documentation (excluding Subscription Agreements) shall be incorporated into or form any part of these T&Cs, and all such terms or conditions shall be null and void.
8.6. Amendment to Agreement; Changes to These T&Cs. No modification, amendment, or waiver of any provision of the Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted.
To the extent of any conflict or inconsistency between the provisions in the body of these T&Cs and any exhibit or addendum hereto or any Agreement, the terms of such Agreement shall prevail provided such conflicting Agreement has been signed or accepted by IRE.
8.7. Governing Law and Jurisdiction: Each party agrees that these T&Cs shall be governed by and construed under the laws of the State of Utah without regard to such state’s choice or conflicts of law rules. The parties further agree to the exclusive jurisdiction of the applicable courts located in Salt Lake County, Utah. In any action to enforce or interpret these T&Cs, the substantially prevailing party shall be entitled to recover its attorney fees and court costs in addition to any other remedy to which it is entitled, whether such fees and costs are incurred in mediation, arbitration, litigation or on appeal.
9. YouTube API Terms
9.1 By using kvCORE, users are agreeing to be bound by the YouTube Terms of Service.