These Terms and Conditions are an integral part of the Licensing Agreement between Firepoint Solutions, Inc. and Client, which Client entered into in order to access and use Firepoint’s real estate Lead Capture and Management System (Service). Client and all Authorized Users are bound by the terms hereof.
1. THE SERVICE
1.1 Authorized Users: Authorized Users means and includes Client and Client’s current and prospective clients, employees, contractors, and partners to whom such access has been given and are in the Network. The Service shall be used only by and between Authorized Users and only within the Network. The term Network means Client’s immediate team members and vendors/ affiliates facilitating lead conversion with the team.
1.2 Network Participation: Nothing in this Agreement shall be construed to mean that referrals must be made by the Client to the Lender Partner or that leads will result in loans funded by the Lender Partner. All leads generated for the Network will become the exclusive property of the agreed upon Realtor and Lender Partners. No one is under any obligation to designate any Lender Partner as its exclusive lender or mortgage broker. Lender Partner Client means those mortgage lender partner(s) within Client’s Network and Realtor Partner Client means those real estate agents or broker partners within Client’s Network.
1.3 Shared Data Access: The Client will have access to the data from the Network in which it participates. Access to information is dependent on continued participation in the Network and payment of all amounts due in full and on time. Payment of all such amounts entitles Authorized Users to access the Service initiated between 12:01AM on the first day of the month and 12:00AM on the last day of the month for which payment is received.
1.4 Exclusivity of Data: Client and the Realtor Partner(s) own all lead data paid for by the Client and its Network generated for the Network. Firepoint retains the right to generate lead data for other Realtor Networks in the same geographic area, and to establish more than one Network in the geographic area in which Client conducts business. Firepoint will not share lead data across multiple networks in a given region.
1.5 Training: Firepoint will provide a reasonable amount of training on the use of the Service to Client and Client’s personnel.
1.6 Lead Generation: While Firepoint will reasonably attempt to generate leads within the area that the Client requests, there may be times when either that area becomes unavailable or leads are generated in other areas in addition to the requested area. Firepoint does not guarantee that that leads will be exclusively generated in the requested area. Firepoint does not warrant the quality of leads generated, nor make any guarantees as to how many closings may result from leads generated. Results vary widely based on location, and more importantly, based on the Client’s ability to cultivate the leads.
1.7 Account Information and Data: Firepoint is not responsible for the deletion of information or accounts by Authorized Users. Firepoint will use commercially reasonable methods to maintain the physical integrity of the data and to make data available to Authorized Users. All data, documents, or account information submitted by an Authorized User or created by the system at an Authorized User’s request will be anonymized within 30 days in the event of account termination.
1.8 No Ownership Rights: This Agreement does not convey to the Client any rights of ownership in or related to the Service. No rights are granted to the Client hereunder other than the limited license expressly set forth herein.
1.9 Data Losses and Service Outages: Firepoint is not responsible for any data loss or corruption or any service outages due to Client’s, Client’s Authorized Users’ or any third party’s technical problems.
2. CLIENT OBLIGATIONS
2.1 Security Measures: The Client will use commercially reasonable efforts to prevent unauthorized access to and use of the Service. Each Authorized User will be given a unique user name and password. Generally, the Authorized User can change his/her password. Client shall caution all Authorized Users in writing to protect the confidentiality of his/her user name and password. Client shall be held responsible for all access and use by or emanating from Client and Client’s Network (including unauthorized use and misuse).
2.2 Restrictions: Only Authorized Users may access and use the Service. No person, including any Authorized User, may access or use the Service for any purpose other than as set forth in the Licensing Agreement without Firepoint’s prior written consent. The Client shall not, and shall not permit or assist any Authorized User or other third party to, (i) sell, resell, share, sublicense, lease, assign, or distribute the Service to any third party, (ii) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms of any portions of the software used to provide the Service, (iii) copy or otherwise incorporate into any separate software program or other work of authorship any of the look and feel or graphics developed and used by Firepoint in connection with or associated with any portion of the Service, or (iv) modify or alter any portion of the Service. Any violations of this Agreement may result in termination or suspension of the Service and Firepoint taking legal action.
2.3 Acceptable Use Policy
2.3.1 No Inappropriate Content or Users. Do not use the Services to transmit or store any content or communications (commercial or otherwise) that is illegal, harmful, unwanted, inappropriate, objectionable, confirmed to be criminal misinformation, or otherwise poses a threat to the public. This prohibition includes use of the Services by a hate group or content or communications that originate from a hate group or are exploitative, abusive, or hate speech.
2.3.2 Prohibited Activities. Do not use the Services to engage in or encourage any activity that is illegal, deceptive, harmful, violating others’ rights, or harmful to Firepoint’s business operations or reputation, including: (i) Violations of Laws. Violating laws, regulations, governmental orders, or industry standards or guidance in any applicable jurisdiction (collectively, “Applicable Laws”). This includes violating Applicable Laws requiring (a) consent be obtained prior to transmitting, recording, collecting, importing or monitoring data or communications or (b) compliance with opt-out requests for any data or communications. (ii) Falsification of Identity or Origin. Creating a false identity or any attempt to mislead others as to the identity of the sender or the origin of any data or communications.
2.3.3 Messaging Requirements: The Client is responsible for following all laws, regulations, and best practices regarding digital marketing in communication including but not limited to the following. (i)Consent: In compliance with the Telephone Consumer Protection Act (TCPA), you must obtain and record consent before sending any text messages, and no purchase can be required as a condition of their consent. (ii)Identify Yourself as the Sender: Every message you send must clearly identify you (the party that obtained the opt-in from the recipient) as the sender, except in follow-up messages of an ongoing conversation. (iii)Opt-out/ Unsubscribe: The initial message that you send to an individual needs to include the following language: “Reply STOP to unsubscribe.” Subsequent marketing messaging must also include opt-out language at least once per month.
3. FIREPOINT’S PROPRIETARY RIGHTS
3.1 Intellectual Property: Subject to the limited license granted in this Agreement, Firepoint, and any parties that Firepoint works with to deliver the Service, retains all right, title, and interest in and to the Service, all underlying technology, software (source and object code), any and all methods, business rules, algorithms, discoveries, inventions, materials, ideas, and other work product that is conceived, originated, prepared, or reduced to practice by Firepoint in connection with the Service or any other services provided by Firepoint, the look and feel of Firepoint’s website, any and all trademarks and copyrights, and all related tangible and intangible property rights in the foregoing items and other intellectual property incorporated in and/or used to deliver the Service, all modifications, enhancements and improvements of, and all derivative works based upon, the foregoing. This Agreement does not convey to the Client any rights of ownership.
3.2 Website: Firepoint maintains all rights to the design, layout, and function of the Firepoint website. If this Agreement is terminated, or a breach occurs by either party, the Client shall not be entitled to use the website. Under no circumstance shall the Client build, or engage any third party to build, a similar website during the Term of this Agreement or at any time within one year of the termination of this Agreement.
3.3 Suggestions: Firepoint shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Service any suggestions, enhancement requests, recommendations, or other feedback provided by the Client and the Network, including Authorized Users, relating to the operation of the Service.
4.1 Confidential Information: The parties acknowledge and agree that each party (Receiving Party) has had and will have access to, certain confidential or proprietary information (together, Confidential Information) of the other party (Disclosing Party). Notwithstanding anything to the contrary in this Agreement, the Service, the underlying software (object and source code) and all related documentation and oral information (including, without limitation, training, training manuals and user documentation) are the Confidential Information of Firepoint. All Client Data is the Confidential Information of Client. Aggregated data such as overall metrics and data analysis reports from multiple networks shall constitute Confidential Information of Firepoint, which Firepoint may use in any way in its discretion.
4.2 Confidentiality: With respect to Confidential Information received from the Disclosing Party during the Term, the Receiving Party shall (i) maintain such Confidential Information in strict confidence and exercise the same degree of care to safeguard such Confidential Information as it uses to protect its own Confidential Information (but at least a reasonable degree of care), (ii) not use or reproduce such Confidential Information, except to the extent necessary to perform its obligations, or to exercise the rights granted to it hereunder, and solely for the purposes specified in the Licensing Agreement, (iii) not disclose any such Confidential Information, except to those of its employees and contractors with a need to know in order to perform its obligations, or to exercise the rights granted to it hereunder, and (iv) not disclose such Confidential Information to any third party without the Disclosing Party’s prior written consent and without first obtaining such third party’s written agreement to maintain the confidentiality of the Confidential Information under terms and conditions at least as stringent as those set forth in this Section 4.2.
5. MAINTAINING THE SERVICE
5.1 Availability of the Service: Firepoint will use commercially reasonable efforts to ensure that the Service will be available to Authorized Users at least 99.0% of the time in any calendar month, excluding scheduled maintenance, power outages, Internet problems, force majeure and any other events beyond Firepoint’s control. Firepoint will do it’s best to schedule maintenance during off-peak hours.
5.2 Support and Maintenance: During the Term, Firepoint will provide Client assistance and support via email or phone concerning the use of the Service. This assistance and support will be provided only to the technical support contact(s) designated by the Client, and only during Firepoint’s normal business hours (weekends and holidays are excluded).
5.3 Hosting: The Service is hosted on one or more servers maintained by Firepoint or, at Firepoint’s discretion, a third party designee. The servers may be located anywhere, including in another country or in the cloud.
5.4 Modifications: Firepoint may modify the features, components, and functionality of the Service from time to time. Firepoint will use commercially reasonable efforts to notify Client in advance of any modification or maintenance of the Service that would significantly affect Authorized Users’ ability to access or use the Service.
6. DISCLAIMER OF WARRANTIES
6.1 EXCEPT AS EXPRESSLY SET FORTH IN SECTION 1.6 ABOVE, THE SERVICE, AND ALL OTHER SERVICES AND PRODUCTS OF FIREPOINT ARE PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT. FIREPOINT ALSO DISCLAIMS ANY WARRANTY THAT THE SERVICE (AND ANY ADDITIONAL SERVICES AND PRODUCTS) WILL MEET CLIENT’S REQUIREMENTS OR THAT THE SERVICE (AND ANY ADDITIONAL SERVICES AND PRODUCTS) WILL BE UNINTERRUPTED, TIMELY, ERROR-FREE OR GENERATE QUALITY LEADS.
7. LIMITATION OF LIABILITY
7.1 NOTWITHSTANDING ANYTHING ELSE CONTAINED IN THE AGREEMENT, INCLUDING THESE TERMS AND CONDITIONS, EXPRESSED OR IMPLIED, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER FIREPOINT NOR ITS, OFFICERS, DIRECTORS, OWNERS, EMPLOYEES, CONTRACTORS OR AGENTS SHALL BE LIABLE, UNDER ANY CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR (A) ANY LOSS OF BUSINESS, PROFITS, OR GOODWILL, LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, (B) THE COST OF PROCURING SUBSTITUTE GOODS, SERVICES, TECHNOLOGY OR RIGHTS, EVEN IF FIREPOINT HAS BEEN ADVISED OF THE POSSIBIITY OF SUCH DAMAGE.
7.2 UNDER NO CIRCUMSTANCES WILL FIREPOINT, ITS, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS OR AGENTS BE LIABLE FOR ANY AMOUNTS IN EXCESS OF THE AGGREGATE AMOUNT OF LICENSE AND MARKETING FEES CLIENT ACTUALLY PAID TO FIREPOINT DURING THE TERM OF THE AGREEMENT (LIMITED TO THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE) NOTWITHSTANDING THE NUMBER OF CLAIMS AND NOTWITHSTANDING ANY CLAIM THAT SUCH REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
7.3 SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES AND LIMITS ON LIABILITY, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
8.1 Indemnification by Firepoint: Firepoint shall defend Client from and against any claim, action, or proceeding brought against Client by a third party alleging that the Service or the use thereof as permitted in this Agreement infringes any third party’s copyright or misappropriates a third party’s trade secret and shall pay all damages finally awarded against Client resulting from such claim, action, or proceeding (or settlements thereof), including, but not limited to, all awards, judgments, costs, damages, settlements, attorneys’ fees, and expenses provided that Client (i) provides Firepoint with prompt written notice of any threat of any action or the institution of any such claim, action or proceeding, (ii) permits Firepoint to have sole control of the investigation, preparation, defense, and settlement of any such suit, including appeals, and (iii) reasonably cooperates, at Firepoint’s expense, in the defense and/or settlement of such a suit.
8.2 Exceptions to Indemnification: Firepoint’s obligations under Section 8.1 shall not apply to any claim that results from: (i) any data or information provided by Client, (ii) any modifications to the Service made by Firepoint at Client’s request, (iii) any modifications to the Service made by anyone other than Firepoint, (iv) any unauthorized use of the Service, (v) use of the Service in combination with any software, technology, hardware, process, trademark, logo, product, or other property not authorized or provided by Firepoint, or (vi) continued use of the Service after notice of the infringement.
8.3 Indemnification by Client: Client shall defend and indemnify Firepoint from any claim, action, or proceeding brought against Firepoint by a third party alleging a claim of infringement or misappropriation of such third party’s proprietary rights arising from any action or circumstance described in Section 8.2 caused by, related to or originating from Client or Client’s Authorized Users and shall pay all damages finally awarded against Firepoint resulting from such claim, action, or proceeding (or settlements thereof) including, but not limited to, all awards, judgments, costs, damages, settlements, attorneys’ fees, and expenses.
8.4 Firepoint reserves the right to modify the Service at any time to make it non-infringing.
9. TERMINATION; SUSPENSION
9.1 Terminating the Agreement
Agreements remain in force until either party provides the other with written notice of termination or non-renewal at the earlier of a) 30 days prior to the cancellation or renewal date or b) the date determined by the Notice of Cancellation provisions set forth in the Licensing Agreement, or if prior to such action, the other party materially breaches any of its representations, warranties or obligations under the Licensing Agreement. Except as may be otherwise provided in the Licensing Agreement, such breach by either party will result in the other party being responsible to reimburse the non-defaulting party for all costs incurred directly as a result of the breach of the Licensing Agreement, and shall be subject to such damages as may be allowed by law including all attorneys’ fees and costs of enforcing the Licensing Agreement.
9.2 Termination for Non-Payment
Firepoint may terminate the Licensing Agreement in whole or in part if the other party (or parties) fails to pay any amounts due under the Licensing Agreement within fifteen (15) calendar days following written notice of non-payment from Firepoint (a “Non-Payment Event”); provided, that service that is terminated due to non-payment by the Client may be reinstated by Firepoint, subject to Firepoint’s approval, within ninety (90) calendar days of the date of termination, and upon payment of all amounts in arrears including any additional fees accrued thereon.
9.3 Consequences of Termination
Upon the expiration or termination of the Licensing Agreement for any reason, (a) all sums owed to Firepoint according to the Licensing Agreement shall become immediately due and payable, (b) all remaining obligations of Firepoint to shall immediately cease, (c) Client and all other Authorized Users shall immediately cease all access to and use of the Service except as specified by Firepoint and (d) Customer shall promptly return to Firepoint all Confidential Information and other Firepoint property in their possession. The license and all rights granted under the Licensing Agreement as to all Authorized Users shall expire immediately upon termination. Firepoint has no obligation to retain Client data more than 90 days after termination. Termination of the Customer Agreement does not relieve either party of any obligations set forth in the Customer Agreement at the time of termination.
10.1 Entire Agreement; Amendments: The License Agreement, including these Terms and Conditions, contains the entire agreement of the parties with respect to the subject matter hereof. No amendment or waiver of this Agreement shall be effective unless in writing and signed by both parties, which signature may be electronic or electronically transmitted.
10.2 Assignment: Client may not assign any of its rights or obligations hereunder without the prior written consent of Firepoint and any purported assignment without such consent shall be null and void. This Agreement shall bind and benefit the parties and their respective successors, permitted transferees and permitted assignees.
10.2 Notices: Either party may give notice by electronic mail, facsimile, certified mail with return receipt (postage prepaid), or courier service (no signature required). Notices shall be sent to the addresses specified in the signature block of the Agreement. A party may change its address for notices from time to time by providing notice to the other party in accordance with this Section 10.2, but notice shall be effective only upon receipt.
10.3 Severability: If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, that provision will be modified to make such provision enforceable to the maximum extent permitted by law. If modification will not make the provision enforceable, the provision shall be stricken, but the remaining provisions will remain in full force and effect.
10.4 Force Majeure: Neither party shall be liable for non‐performance or delay in performance (other than payment and confidentiality obligations) caused by any event reasonably beyond the control of such party including, but not limited to, Internet failures, outages or inaccessibility; computer equipment failures or viruses; telecommunication transmission or equipment failures, outages or inaccessibility; other equipment failures; electrical power failures; wars; acts of terrorism; hostilities; revolutions; riots; civil commotion; national emergency; strikes; lockouts or other labor disputes or shortages; compliance with laws or regulation (including, but not limited to, those related to infringement); epidemics; fire; flood; earthquake; force of nature; explosion; embargo; act of God; any law, proclamation, regulation or ordinance; or act or order of any court, government or governmental agency.
10.5 Survival: The provisions of Sections 3, 4, 6, 7, 8 and 10 shall survive termination of this Agreement.
10.6 Headings: The section headings in this Agreement are for convenience only and do not define or limit the scope of this Agreement.
10.7 Waiver: No delay or failure to exercise any right or remedy in the event of a breach of this Agreement shall be construed as a waiver of that breach or any later breach. The waiver of any condition or any breach of this Agreement shall not be deemed to be a waiver of any other condition or any other breach.
10.8 Governing Law: This Agreement shall be governed by Colorado law. Any legal action related to this Agreement shall be brought only in the state or federal court located in or having jurisdiction over the county in which Firepoint’s principal corporate office is located. All persons governed by this Agreement hereby irrevocably and voluntarily waive their right to object to such jurisdiction as an inconvenient forum and the court in such jurisdiction exercising personal jurisdiction over such person. Any action arising out of or related to this Agreement shall be brought within one (1) year after the claim arose, or such action shall be barred forever. In any such action, the court shall award to the prevailing party its costs, expenses, and reasonable attorneys’ and expert witness fees payable by the non-prevailing party.
10.9 No International Use: The Service is intended for users located in the United States (U.S.). Firepoint makes no representation that accessing the Service from territories outside the U.S. is legal, and accessing the Service from any territory in which such access is illegal is prohibited under this Agreement. If you are located outside of the U.S. and you use or attempt to use the Service, you do so at your own risk and you are responsible for compliance with all applicable local and national laws, rules and regulations and, if applicable, international treaties, that apply to you.