Terms & Conditions
Last modified date: May 1, 2024
Table of Contents
The following Software-as-a-Service terms and conditions (“Terms and Conditions”) apply to the legal Agreement formed between EstateSpace, Inc. (“EstateSpace”) and the client purchasing a SaaS subscription that is accompanied by or references this document (“Client”). EstateSpace and Client may be referred to herein individually as a “Party” and collectively as “Parties.”
1. Definitions
As used in this Agreement:
“Agreement” means the SaaS agreement between Client and EstateSpace consisting of these Terms and Conditions.
“Actual Availability” means the total time, in minutes, during the relevant calendar month less the Downtime due to Exceptions during that calendar month.
“Applicable Laws” means all legislation, statutes, regulations, ordinances, rules, judgments, orders, decrees, rulings, and other requirements enacted, promulgated, or imposed by any governmental authority or judicial or regulatory body (including any self-regulatory body) at any level (e.g., municipal, county, provincial, state or national) that are applicable to or enforceable against a Party or its personnel in relation to their activities under or pursuant to this Agreement.
“Authorized Client Entities” means specific Client-related entities named or who are authorized to access and use the Service during the Subscription Term.
“Authorized User(s)” means end users of Client and Authorized Client Entities who have completed EstateSpace’s online registration process or who otherwise receive a user ID or other access credentials from EstateSpace or Client authorizing them to access and use the SaaS.
“Authorized Purpose(s)” means those purposes set forth on EstateSpace’s Web Site describing the purposes for which the applicable SaaS and associated Content are permitted to be used by Client, Authorized Client Entities, and their Authorized Users. If no Authorized Purpose is stated, the Authorized Purpose shall be limited to use of the SaaS in Client’s and Authorized Client Entities’ internal business operations.
“Confidential Information” shall have the meaning in the Mutual Non-Disclosure Agreement.
“Content” means any data, media, information and/or other type or form of content displayed, distributed, or otherwise made available to a Party through or in connection with the SaaS or other Services, including User Content and EstateSpace Content.
“Client Data” means any data owned by Client or an Authorized Client Entity that is submitted to the Service for processing transmission, and/or storage.
“Data Privacy and Security Laws” means all applicable federal, state, regional, territorial and local laws, statutes, ordinances, regulations, rules, or executive orders governing the data privacy, data protection and cybersecurity of Personal Data, and any other laws in force in any jurisdiction (regulatory or otherwise) in which the SaaS is being utilized, including, but not limited to, Title V of the Gramm-Leach-Bliley Act of 1999 (Public Law 106-102, 113 Stat. 1338), as may be amended from time to time, and its implementing regulations, and the “Interagency Guidelines Establishing Standards for Safeguarding Client Information” (12 CFR Part 364). To the extent that EstateSpace processes Personal Data of California residents in connection with the Services, Data Privacy and Security Laws shall be deemed to include “CCPA,” defined as: (i) the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020, including any subsequent amendments; and (ii) CCPA Regulations, including any of its revisions, and any equivalent, replacement or similar legislation implemented in California. To the extent that EstateSpace processes Personal Data of individuals within the European Union, European Economic Area, the United Kingdom, and Switzerland in connection with the Services, Data Privacy and Security Laws shall be deemed to include “EU Data Protection Laws,” defined as the General Data Protection Regulation 2016/679 (“EU GDPR”), and supplementing data protection law of the European Union Member States; the United Kingdom’s Data Protection Act 2018 and the EU GDPR as saved into United Kingdom law by virtue of Section 3 of the United Kingdom’s European Union (Withdrawal) Act 2018 (“UK GDPR”); any European Union Member national implementing legislation, and the Swiss Federal Act of Data Protection (“FADP”).
“Downtime” means the time, in minutes, that the applicable Services are not generally accessible and available, excluding inaccessibility due to Exceptions.
“Including” (and its derivative forms, whether or not capitalized) means including without limitation.
“Intellectual Property Rights” means the legal rights held by the owner of a copyright, patent, trademark, or trade secret, including (i) the rights to copy, publicly perform, publicly display, distribute, adapt, translate, modify and create derivative works of copyrighted subject matter; (ii) the rights to exclude others from using, making, having made, selling, offering to sell, and importing patented subject matter and to practice patented methods, (iii) the rights to use and display any marks in association with businesses, products or services as an indication of ownership, origin, affiliation, or sponsorship; and (iv) the rights to apply for any of the foregoing rights, and all rights in those applications. Intellectual Property Rights also include any and all rights associated with particular information that are granted by law and that give the owner, independent of contract, exclusive authority to control use or disclosure of the information, including privacy rights and any rights in databases recognized by applicable law.
“Losses” means, in connection with a Claim that is subject to defense and indemnification by a Party under this Agreement, all reasonable attorneys’ fees, reasonable costs of investigation, discovery, litigation and settlement, and any resulting liabilities, damages, settlements, judgments and awards, including associated taxes, interest and penalties.
“Mobile App” refers, if and when applicable, to proprietary client software, in object code form, that is made available by EstateSpace for installation on mobile devices to allow interaction and use with the SaaS.
“Mutual Non-Disclosure Agreement” means, specific mutual non-disclosure between EstateSpace and Client.
“Professional Services” means any professional services performed or contracted to be performed by EstateSpace pursuant to the Parties under this Agreement.
“EstateSpace Content” means Content owned, originated, or controlled by EstateSpace that is made accessible to Client and Authorized Client Entities via the SaaS or other Services.
“EstateSpace’s Web Site” means the web interface of the SaaS platform that EstateSpace offers for interaction with and receipt of the Services.
“Exceptions” means (a) planned downtime (of which (i) EstateSpace will give at least 48 hours written notice, (ii) EstateSpace shall schedule to the extent practicable during the weekend hours between (Friday and Monday), (iii) occurs no more than once per week, and (iv) lasts no longer than four hour), and (b) unavailability caused by force majeure events.
“Personal Data” means (i) information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual, device, or household, including without limitation, names, addresses, e-mail addresses, dates of birth, phone numbers, government identifiers such as Social Security number or driver’s license number, financial information such as account numbers and credit card information, and health information; or (ii) “Personal Information,” Nonpublic Personal Information,” or “Personally Identifiable Information” as such terms are used under Data Privacy and Security Laws.
“SaaS” means EstateSpace’s proprietary web-based software-as-a-service platform and related services made available for use by Authorized Users under this Agreement, including its technology components, such as EstateSpace’s Web Site, applicable Mobile App(s), and related documentation.
“SDK License” means, if and when applicable, a license granted by EstateSpace to Client through a separate written supplement to this Agreement in which EstateSpace grants additional rights to Client to access the program code of the SaaS for the purpose of integrating it with other Client applications or platforms.
“Services” means, collectively, the SaaS, the Support Services, and any Professional Services performed or provided by EstateSpace pursuant to this Agreement.
“Service Level Agreement” means, specific Service Level Agreement.
“Subscription Fees” means the non-recurring and recurring fees payable by Client to EstateSpace for the SaaS and associated Support Services, which shall be payable in accordance with the payment terms set forth in the SaaS subscription purchase. Unless and except as otherwise expressly stated in this Agreement, the Subscription Fees are non-cancellable and non-refundable.
“Subscription Term” means the period during which Client’s Authorized Users are permitted to access and use the SaaS.
“Support Services” has the meaning given in Section 3.
“Update” means any improvement, enhancement, modification and/or changes to the SaaS offered or provided by EstateSpace to its subscribers at no charge.
“User Content” means any Content submitted, posted, or displayed by Authorized Users of the SaaS or the Mobile App.
“User Data” means any data or information (other than User Content) received or collected by EstateSpace concerning Authorized Users of the SaaS or the Mobile App, including data provided by Authorized Users to register to use the SaaS or a Mobile App.
2. Access to and Use of the SaaS
Limited-Purpose Access Grant.
EstateSpace hereby grants to Client a limited, personal, non-exclusive, non-transferable right for Authorized Users of Client and any other Authorized Client Entities to access the features and functions of the SaaS during the Subscription Term, solely through EstateSpace’s Web Site or Mobile App and solely for the Authorized Purpose(s). This access grant may not be sublicensed, in whole or in part. The scope of Client’s use of the SaaS is subject to the terms and conditions of this Agreement, including any usage or other parameters or limitations.
Hosting Environment for the SaaS.
As agreed between EstateSpace and Client, the core components of the SaaS will be deployed in a secure AWS cloud environment solely owned/operated by EstateSpace. 3rd Party services are leveraged for some features and are housed within their own environment – i.e. in-app messaging (Stream), authentication (Firebase), database (Atlas), and push notifications (Firebase Cloud Messaging)
Access Protocols.
On or as soon as reasonably practicable after the execution of this Agreement, EstateSpace shall provide to Client the necessary access credentials and protocols to allow Authorized Users to access the SaaS (the “Access Protocols”). The Parties further agree that prior to installing any EstateSpace product, all Authorized Users shall be required to accept an End User License Agreement listed in Exhibit D (“EULA”). Client acknowledges and agrees that, as between Client and EstateSpace, Client shall be responsible for all acts and omissions of Authorized Users, including any act or omission by an Authorized User, which, if undertaken by Client, would constitute a breach of this Agreement. Client shall use commercially reasonable efforts to make all Authorized Users aware of the provisions of this Agreement that are applicable their use of the SaaS and shall cause them to comply with such provisions.
Account Administration.
Client shall designate at least one (1) Authorized User to act as an administrator who will act as Client’s principal point of contact with EstateSpace for purposes of this Agreement.
User Content.
The SaaS may enable Client’s Authorized Users to search for, find, store, manage and use User Content of interest that is provided or made accessible through the SaaS. Client acknowledges that EstateSpace does not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, reliability, or other attributes of any User Content, nor does EstateSpace review or attempt to verify the accuracy or currency of any User Content. As between Client and EstateSpace, Client is solely responsible for (i) determining the suitability of any User Content for its intended use by Client and its Affiliates; and (ii) as necessary for its intended use, verifying the authenticity, integrity, and accuracy of the User Content prior to using it. EstateSpace has no obligation to preview, verify, flag, modify, filter, or remove any User Content. Either EstateSpace or Client may remove or disable access to any User Content at its sole discretion but is not responsible for any failures or delays in removing or disabling access to any User Content unless otherwise provided herein, including User Content that may be considered harmful, inaccurate, unlawful, or otherwise objectionable.
Protected Health Information.
The Service may involve the use of Protected Health Information (PHI, as defined by HIPAA). Prior to transmitting or otherwise submitting any PHI to the Service, Client shall convert such PHI into de-Identified data in accordance with a methodology set forth in HIPAA for the de-identification of PHI. Client shall not permit to be transmitted or otherwise submitted to EstateSpace or the Service any PHI that is not in de-identified form, and any violation of this restriction shall constitute a material breach of this Agreement by Client.
Compliance.
Client shall comply and cause its Authorized Users to comply to the extent applicable with (i) the terms and conditions set forth in this Agreement, where the Parties agree that in the event of a conflict between Exhibit F and the Exhibit C, the terms of Exhibit F of the Agreement shall control with respect to the collection, processing, transfer, and storage of any Personal Data; (ii) EstateSpace’s EULA in Exhibit D and Privacy Policy in Exhibit C; and (iii) Applicable Laws, including Data Privacy and Security Laws. In the event of a conflict between this Agreement and the EULA in Exhibit D, this Agreement shall prevail and control. In addition to complying with applicable Data Privacy and Security Laws, EstateSpace will employ commercially reasonable security and access controls designed to protect the types of data collected and stored by the Service, including Personally Identifiable Information.
Restrictions.
Client agrees not to act outside the scope of the rights that are expressly granted by EstateSpace in this Agreement. Further, Client will not (i) use the SaaS in any manner that is inconsistent with this Agreement; (ii) except as expressly permitted under an SDK License (if any) granted by EstateSpace to Client or in the event of an Release Event, modify any program code of the SaaS or attempt to create or permit the creation of any derivative works of the SaaS; (iii) except in the event of an Release Event, access or use the SaaS in order to develop or support, or assist another Party in developing or supporting, any products or services competitive with the SaaS; (iv) except in the event of an Release Event, decompile, reverse engineer (unless required by law for interoperability), or use any other method in an attempt to view or recreate any of the source code of the SaaS or extract any trade secrets from it; (v) use the SaaS to operate the business of a third-party or to process data or content provided by a third-party for the operation of a third-party’s business, or otherwise use the SaaS on a third-party’s behalf, or to act as a service bureau or provider of application services to any third-party; (vi) knowingly or intentionally re-use, disseminate, copy, or otherwise use the SaaS or associated Content in a way that infringes, misappropriates, or violates any trademark, copyright, patent, trade secret, publicity, privacy or other right of EstateSpace or any third-party; or (vii) sell, lend, lease, assign, transfer, pledge, permit a lien upon, or sublicense any of the rights granted by this Agreement with respect to the SaaS. For the avoidance of any doubt, Authorized Users shall not be considered to be a third party of the Client for the purposes of this Section 2.7.
No Interference with Service Operations.
Client and its Authorized Users will not take any action designed or intended to: (i) interfere with the proper working of the SaaS; (ii) circumvent, disable, or interfere with security-related features of the SaaS or features that prevent or restrict use, access to, or copying the SaaS or any Content or other data, or that enforce limitations on use of the SaaS or Content; or (iii) impose (or which may impose, in EstateSpace’s sole discretion) an unreasonable or disproportionately large load on the SaaS infrastructure.
Access and Use of the SaaS from Outside the U.S.
The SaaS is offered for use in the U.S. and any other territory set forth by and at the sole discretion of EstateSpace. As between Client and EstateSpace, Client is solely responsible for compliance with Applicable Laws relevant to its Authorized Users accessing or using the SaaS while outside the U.S. and such other territory.
Service Level.
EstateSpace will exercise commercially reasonable efforts to keep the SaaS operational and available to Client twenty-four (24) hours a day, seven (7) days per week except in the case of Exceptions. If EstateSpace is unable to provide Actual Availability of 99.9% of the total time in each calendar month for the Software (“Uptime Commitment”), then Client will be eligible for a service credit (“Service Credit”) equal to ten (10) times the fees due or paid from Client to EstateSpace for the SaaS for the portion of the calendar month that constituted Downtime (calculated by dividing the Downtime by the total number of minutes in the calendar month), provided that Customer reports to EstateSpace such failure to meet the Uptime Commitment. If EstateSpace confirms that Customer is eligible for a Service Credit, EstateSpace will issue a credit to Client’s account within thirty (30) days. If EstateSpace fails to meet the Uptime Commitment for three (3) successive calendar months or five (5) calendar months in any twelve (12) month period, such failures will collectively be deemed a material breach and, in addition to all other remedies available to Client, Client may terminate this Agreement.
3. Support Services
3.1 Technical Support.
At no additional charge and during EstateSpace’s normal business hours, which are 8:00 a.m. to 5:00 p.m. Eastern Standard Time, Monday through Friday, excluding EstateSpace designated holidays, EstateSpace CTO Chris Weicht will provide reasonable technical support and assistance for Authorized User requests by telephone (434) 409-0358 or sent via email to chrisw@estatespace.com. Jonathan Fishbeck will be a secondary point and can be reach by phone (434) 806-3812 or by email jonathan@estatespace.com. EstateSpace may also offer upgraded support services for an additional fee.
3.2 Updates.
Client will be given access to Updates of the SaaS that EstateSpace implements during the Subscription Term. Client acknowledges, however, that EstateSpace may in the future offer optional value-added functions, features, or other capabilities for a separate fee; provided, however, the features, functionality, operability, reliability, and performance of the SaaS shall remain the same or better throughout the Subscription Term.
3.3 Scheduled Maintenance.
EstateSpace reserves the right to take down applicable servers hosting the SaaS to conduct scheduled and emergency maintenance; provided that, unless otherwise approved by Client, EstateSpace shall use commercially reasonable efforts to perform emergency maintenance outside regular business hours. EstateSpace will use commercially reasonable efforts to perform scheduled maintenance outside regular business hours. Other with respect to providing Service Credits pursuant to Section 2.9, EstateSpace will not be responsible for any damages or costs incurred by Client due to unavailability of the SaaS during scheduled or emergency maintenance.
4. Professional Services
If EstateSpace has agreed to perform Professional Services for Client or an Authorized Client Entity under this Agreement, the Parties shall prepare and sign a separate agreement describing the Professional Services to be performed and setting forth any other pertinent details, including the locations at which the Professional Services will be performed, the planned schedule of performance, the deliverables (if any) to be produced by EstateSpace and delivered to Client, the amount and manner of payment of EstateSpace’s fees for the Professional Services, and any associated responsibilities of Client or Authorized Client Entities relating to the Professional Services. Client’s obligation to pay the Subscription Fees set forth in Client’s purchasing of the SaaS subscription is not dependent on EstateSpace’s performance of any Professional Services.
5. Allocations of Risk
5.1 Representations and Warranties.
(a) Each Party represents to the other (i) that the execution and performance of its obligations under this Agreement will not conflict with or violate any provision of Applicable Law or any other agreement or order by which the representing Party is bound; and (ii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
(b) EstateSpace represents and warrants to Client that: (i) the features, functionalities, operability, reliability and performance of the SaaS and any Support Services shall remain the same or better throughout the Subscription Term, (ii)(x) EstateSpace owns, or has obtained all Intellectual Property Rights necessary to facilitate Client’s use of the SaaS and the Support Services and (y) the SaaS and the Support Services when used as contemplated by this Agreement by Client and Authorized User, shall not infringe, violate or misappropriate Intellectual Property Rights of any third party, (iii) EstateSpace and its personnel shall comply with all Applicable Laws applicable to its provision of the SaaS and Support Services, (iv) EstateSpace shall not introduce any code or virus or unauthorized disabling code into the SaaS or through the Support Services or into Client’s or Authorized Users’ network or system and (v) the SaaS shall operate in accordance with its documentation and specifications in all material respects.
(c) EstateSpace warrants that any Professional Service performed by EstateSpace under this Agreement will be performed in a timely, good, and workmanlike manner in accordance with prevailing industry standards with qualified and trained personnel using reasonable skill and care. In the event of a breach of this warranty, EstateSpace’s sole obligation and Client’s sole remedy will be for EstateSpace to correct or re-perform the affected Professional Service without undue delay to remedy the breach, at no charge to Client.
5.2 DISCLAIMERS.
(a) CLIENT REPRESENTS THAT IT IS ENTERING THIS AGREEMENT WITHOUT RELYING UPON ANY ESTATESPACE REPRESENTATION OR WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ESTATESPACE DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES THAT MAY OTHERWISE BE IMPLIED. NO WARRANTIES ARE MADE ON THE BASIS OF TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE.
(b) CLIENT ASSUMES COMPLETE RESPONSIBILITY, WITHOUT ANY RECOURSE AGAINST ESTATESPACE, FOR THE SELECTION OF THE SAAS TO ACHIEVE CLIENT’S INTENDED RESULTS AND FOR ITS USE OF THE RESULTS OBTAINED FROM THE SAAS IN CLIENT’S BUSINESS. CLIENT ACKNOWLEDGES THAT IT IS SOLELY RESPONSIBLE FOR THE RESULTS OBTAINED FROM USE OF THE SAAS, INCLUDING THE COMPLETENESS, ACCURACY, AND CONTENT OF SUCH RESULTS. ESTATESPACE DOES NOT WARRANT THAT THE SAAS WILL MEET CLIENT’S REQUIREMENTS, THAT THE OPERATION OF THE SAAS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
(c) THE SAAS IS NOT DESIGNED OR PERMITTED TO BE USED IN OR FOR HIGH-RISK OR HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, WEAPONS SYSTEMS, DIRECT LIFE-SUPPORT MACHINES, OR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE SAAS COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE (COLLECTIVELY, “HIGH RISK ACTIVITIES”). ESTATESPACE EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS OF THE SAAS FOR HIGH-RISK ACTIVITIES.
5.3 Indemnification of Client by EstateSpace.
EstateSpace agrees to defend, indemnify, and hold harmless Client and its Affiliates from and against all third-party claims and actions (collectively, “Claims” and individually, a “Claim”), that may, at any time, arise out of or relate to (i) a breach or alleged breach by EstateSpace of any of its representations given in Section 5.1(a) and (b); or (ii) a Claim that the SaaS or any EstateSpace Content (excluding, however, User Content) provided by EstateSpace hereunder or Client’s use of same in accordance with the terms hereof infringes, misappropriates or violates any third-party’s Intellectual Property Rights; (iii) the gross negligence, willful misconduct, or fraud of EstateSpace or (iv) a Claim arising with respect to EstateSpace’s posting or displaying EstateSpace Content on EstateSpace’s Web Site; and, in each case, associated Losses.
5.4 Indemnification of EstateSpace by Client.
Except for any Claims in respect of which EstateSpace is obligated to indemnify Client under Section 5.3, Client agrees to defend, indemnify, and hold harmless EstateSpace and its Affiliates from and against all Claims, that may, at any time, arise out of or relate to use of the SaaS or any Content by or on behalf of Client or an Authorized Client Entity other than in accordance with this Agreement.
5.5 Indemnification Procedures.
If any third-party makes a Claim covered by Section 5.3 or Section 5.4 against an indemnified Party (the “Covered Party”) with respect to which the Covered Party intends to seek indemnification under this Agreement, the Covered Party shall give prompt written notice of the Claim to the indemnifying Party, including a brief description of the amount and basis for the claim, if known. Upon receiving such notice, the indemnifying Party shall be obligated to defend the Covered Party (and its indemnitees) against the Claim and shall be entitled to assume control of the defense and settlement of the Claim. The Covered Party may participate in the defense and settlement of the Claim at its own expense, using its own counsel, but without any right of control. The indemnifying Party shall keep the Covered Party reasonably apprised as to the status of the Claim. Neither the indemnifying Party nor any Covered Party shall be liable for any settlement of a Claim made without its consent. Notwithstanding the foregoing, the Covered Party shall retain responsibility for all aspects of the Claim that are not subject to indemnification by the indemnifying Party hereunder.
5.6 Limitation of Liability.
Except as expressly provided in this Section 5.6, neither Party shall have any liability under or in connection with this Agreement for any indirect, incidental, consequential, special, exemplary, or punitive damages, nor any liability for lost profits, regardless of the theory of liability (including theories of contractual liability, tort liability, or strict liability), even if the liable Party knew or should have known that those kinds of damages were possible. Each Party’s maximum cumulative liability under or in connection with this Agreement shall never exceed the injured Party’s actual direct damages, capped at an amount equal to the greater of (i) the total amount paid under this Agreement by Client to EstateSpace during the 12-month period preceding the occurrence of the event giving rise to liability; or (ii) ten thousand dollars and zero cents ($10,000.00 USD). The foregoing limitations of liability shall not be applicable to a Party’s indemnification obligations under this Section 5, a Party’s gross negligence, willful misconduct or fraud, a Party’s breach of Section 8 or to any damages that the liable Party is not permitted to disclaim (or, as applicable, limit) under Applicable Law. Client acknowledges that this Section 5.6 is an essential part of this Agreement, absent which the economic terms and other provisions of this Agreement would be substantially different.
6. Duration and Termination
6.1 Duration of Agreement.
This Agreement commences on the Subscription start date and continues until Client’s subscription has expired or has been terminated in accordance with this Agreement.
6.2 Termination.
Either Client or EstateSpace may terminate this Agreement, and all Client subscriptions and Professional Services (i) for cause upon written notice to the other Party if the other Party has committed a material breach of this Agreement and the breach remains uncured thirty (30) days after the breaching Party has received written notice of the breach from the non-breaching Party; or (ii) 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.
6.3 Effect of Termination on Fees.
If this Agreement is terminated by Client pursuant to Section 6.2, any pre-paid fees for the unused portion of the terminated Subscription Term shall be refunded to Client. In all other cases, all fees paid or during the Subscription duration are non-cancellable and non-refundable.
6.4 Other Effects of Termination.
Effective immediately upon expiration or termination of this Agreement, (i) all rights granted under this Agreement will become void, (ii) Client shall cease all use of the SaaS; and (iii) neither Party will have continuing rights to use any Confidential Information of the other Party or to exercise any Intellectual Property Rights of the other Party that were licensed under this Agreement. However, Client shall have thirty (30) days after any such expiration or termination to download or otherwise obtain an extract of any Client Data stored by the Services at the time of expiration or termination.
6.5 Survival.
Any provision of the Agreement that contemplates or governs performance or observance subsequent to its termination or expiration will survive the expiration or termination of this Agreement for any reason.
7. Proprietary Rights
7.1 Services and EstateSpace Content.
The Services (including the SaaS) and EstateSpace Content, and all Intellectual Property Rights in and to them, are and shall remain owned by EstateSpace (and its licensors, as applicable) and are protected by copyright, trademark, patent, trade secret and other laws and treaties. Subject to the Terms and Conditions of this Agreement, EstateSpace hereby grants Client and Authorized Client Entities a limited, personable, revocable, non-sublicensable and non-transferable license for their Authorized Users to access and use the functions and features of the SaaS during the Subscription Term solely for the Authorized Purpose(s). Any derivative work Client, an Authorized Client Entity, or any Authorized Users may create of any part of the SaaS or EstateSpace Content, and all rights therein, shall be owned solely by EstateSpace. To that end, Client hereby irrevocably transfers and conveys to EstateSpace, without further consideration, all right, title and interest that Client or any Authorized User may have or acquire in any such derivative work and, upon EstateSpace’s request, Client shall perform, during and after the term of this Agreement, all acts that EstateSpace reasonably deems necessary or desirable to permit and assist EstateSpace, at its expense, to obtain, perfect, and enforce the full benefits, enjoyment, rights and title throughout the world in any such derivative works as provided herein.
7.2 User Content License.
Client hereby grants to EstateSpace a non-exclusive, non-transferable right and license to access, use, host, copy, display, process, transmit, and deliver the User Content as necessary or convenient for EstateSpace to comply with its obligations and exercise its rights under this Agreement.
7.3 Trademarks.
If EstateSpace agrees to create, at Client’s request, any Client-branded or co-branded user interfaces through which Authorized Users will access the SaaS, Client hereby grants to EstateSpace during the Subscription Term a non-exclusive, worldwide, royalty-free license to use and display the Client’s name, logo, and other trademarks (“Client Trademarks”) designated by Client on such user interface(s). In such event, EstateSpace will use the relevant Client Trademarks in accordance with Client’s then-current trademark usage guidelines, if any, provided by Client to EstateSpace and only for the agreed purposes. Subject to the foregoing license, Client will retain all Intellectual Property Rights that it may have in and to the Client Trademarks, and all use thereof by EstateSpace shall inure to the sole benefit of Client.
7.4 EstateSpace Content and Service Usage Data.
As between EstateSpace and Client, EstateSpace shall be and remain the sole owner of all EstateSpace Content, as well as all data in de-identified form pertaining to usage of the Services.
7.5 Feedback.
If EstateSpace receives from Client or any of its Authorized Users any suggestions, ideas, improvements, modifications, feedback, error identifications or other information related to improving the Services or any other EstateSpace products, offerings or services (“Feedback”), EstateSpace may use, disclose and exploit such Feedback without restriction and without paying any royalties or other compensation, including to improve the Services and to develop, market, offer, sell and provide other products and services.
7.6 No Implied Licenses by EstateSpace.
Client acknowledges that there are no licenses granted by EstateSpace by implication under this Agreement. EstateSpace reserves all rights that are not expressly granted herein. Client acknowledges that, as between the Parties, EstateSpace owns all Intellectual Property Rights and proprietary interests that are embodied in, or practiced by, the SaaS or other Services, with the exception of Intellectual Property Rights in or to Client Data or to User Content that may be distributed through the SaaS.
8. Confidentiality Obligations; Publicity
All activities of the Parties under or in relation to this Agreement are subject to the confidentiality terms set forth in Exhibit C below. Neither Party may use the name of the other in any published advertising or publicity materials without the prior written consent of the other Party. However, and notwithstanding anything to the contrary in this Agreement, EstateSpace may include Client’s name on EstateSpace’s Client list and may describe briefly, and in general terms, the nature of the services provided by EstateSpace to Client.
9. General
9.1 Governing Law.
The validity, construction, and interpretation of this Agreement and the rights and duties of the Parties shall be governed by the internal laws of the State of Virginia without regard to principles of conflicts of laws.
9.2 Force Majeure.
Notwithstanding any other provision of this Agreement, no Party to the Agreement shall be deemed in default or breach of this Agreement or liable for any loss or damages or for any delay or failure in performance (except for the payment of money) due to any cause beyond the reasonable control of, and without fault or negligence by, such Party or its officers, directors, employees, agents, or contractors.
9.3 Insurance.
EstateSpace shall have and maintain in force throughout the Subscription Term insurance coverage in types and amounts customarily maintained by reputable companies in the same or similar line of business as EstateSpace.
9.4 Dispute Resolution.
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be decided by a single arbitrator in binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its then-current Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Each Party shall bear its own costs, fees and expenses incurred in connection with the arbitration proceeding, including attorneys’ fees and expenses and witness costs and expenses. The arbitrator shall apportion the fees, expenses and compensation of the American Arbitration Association and the arbitrator between the Parties in such amount as the arbitrator determines is appropriate. Arbitration shall take place in Northern Virginia unless the Parties mutually agree to another location. Notwithstanding the foregoing, a Party may, without waiving any remedy under this Agreement, seek from any court with jurisdiction, interim or provisional equitable relief necessary to protect such Party’s rights or property. Any civil action seeking injunctive relief, challenging an arbitration proceeding or award or otherwise related to this Agreement will be instituted and maintained exclusively in the federal or state courts situated in Fairfax County, Virginia.
9.5 Notice.
All notices required or permitted under this Agreement will be in writing and sent by certified mail, return receipt requested, or by reputable oversight courier, or by hand delivery. The notice addresses for EstateSpace shall be the address specified on the EstateSpace website. Any notice sent in the manner sent forth above shall be deemed sufficiently given for all purposes hereunder (i) in the case of certified mail, on the second business day after deposited in the U.S. mail; and (ii) in the case of overnight courier or hand delivery, upon delivery. All notices to Client shall be effective upon receipt when delivered by electronic mail, or hand delivered or on the third business day after the day on which mailed. , Either Party may change its notice address by giving written notice to the other Party by the means specified in this Section.
9.6 Construction; Headings.
No provision of this Agreement shall be construed against or interpreted to the disadvantage of any Party by any court or arbitrator by reason of such Party having or being deemed to have structured or drafted such provision. The headings in this Agreement are for reference purposes only and shall not be deemed to have any substantive effect.
9.7 Severability.
If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, then the Parties agree to replace it with an enforceable provision reflecting the intent of the original provision as nearly as possible in accordance with applicable law, and the remaining provisions of this Agreement will remain in full force and effect.
9.8 Waiver.
The failure of either Party at any time to require performance by the other Party of any provision of this Agreement shall not affect in any way the full right to require the performance at any subsequent time. The waiver by either Party of a breach of any provision of this Agreement shall not be taken or held to be a waiver of the provision itself. Any course of performance shall not be deemed to amend or limit any provision of this Agreement.
9.9 EU GDPR Compliance.
EstateSpace may be subject to the European Union’s General Data Privacy Regulation [Regulation (EU) 2016/679] (the “GDPR”) when EstateSpace is a “controller” or “processor” of “personal data” from an individual “data subject” located in the European Union, as those terms are defined in the GDPR. The Client acknowledges and agrees that it is acting as a “processor” of “personal data” for the capabilities specified under this Agreement and that all applicable requirements of the GDPR are incorporated by reference as material terms of this Agreement. The Client represents and warrants that: (i) it is aware of and understands its compliance obligations as a “processor” under GDPR; (ii) it has adopted a GDPR compliance policy/program; (iii) it will process “personal data” only in accordance with the regulatory instructions; and (iv) with regard to its obligations under this Agreement, it shall comply with all applicable requirements of the GDPR to the same extent as required by EstateSpace. Additionally, the Client shall indemnify and hold EstateSpace, its officers, and employees harmless from and against any claims, demands, suits, damages, penalties, fines, or costs arising from any violation of GDPR by the Client.
9.10 Entire Agreement; Amendments.
This Agreement constitutes the entire agreement between EstateSpace and Client with respect to the subject matter hereof. There are no restrictions, promises, warranties, covenants, or undertakings other than those expressly set forth herein and therein. This Agreement supersedes all prior negotiations, agreements, and undertakings between the Parties with respect to such matter. EstateSpace reserves the right to update or modify this SaaS Terms and Conditions from time to time, with any such changes to be effective prospectively. Please visit this page periodically (available at https://estatespace.com/SaaS/) so that You will be apprised of any such changes. Your continued use of the EstateSpace Products after any modification to this SaaS Terms and Conditions will constitute Your acceptance of such modification.
