UPDATER BUSINESS SOLUTIONS

Updater Service Agreement

Updated September 10, 2014
The Privacy Pledge referenced herein was last updated June 23, 2015

1. INTRODUCTION

Updater Inc. ("we", "us" or "Updater") may provide you (“Client” or “you”, and together with Updater, the “Parties”) certain technology products and services, including, but not limited to an Enterprise Solution or a Professional Account (as applicable, the "Product"). If you wish to use the Product, please carefully read this service agreement (this "Agreement"). This Agreement sets forth the terms and conditions that apply to your access to, and use of, the Product and the related Services (as defined below).

2. THE UPDATER GUARANTEE

If you are not reasonably satisfied with the Product, you may terminate this Agreement (and any corresponding Client Order or subscription) at any time.

3. BUSINESS SOLUTIONS PRIVACY PLEDGE

Updater will never sell, rent or share data about your business or your relationship with Updater, without your prior consent.

Updater will only use the data that you share about your customers/clients/residents to facilitate delivering the Product and offering our various services in accordance with this Agreement and our Privacy Pledge (defined below).

Any information that your customers/clients/tenants provide to Updater via the Product shall be subject to, and protected by, our Privacy Pledge.

We would only make an exception to this pledge if we were required to do so by law.

4. THE PRODUCT

4.1 Enterprise Solutions.

*This entire Section 4.1, and the defined terms contained herein, are only applicable for Clients who sign a Client Order for an Updater Enterprise Solution.

“Enterprise Solutions” are products that Updater offers real estate brokerage firms, real estate teams, property managers, mortgage companies, moving companies and title companies.

(a) Access to the Product. Subject to the terms and conditions of this Agreement, and effective upon the signing of a Client Order (the “Effective Date”), Updater shall make the Product available to you and shall grant to you a revocable, limited, non-transferable and non-exclusive license to use the Product during the Term (as defined below).

(b) Term. This Agreement shall begin on the Effective Date of a Client Order and shall continue in effect for the initial term set forth in the Client Order (the “Initial Term”). This Agreement shall automatically renew after the Initial Term for successive 12 month periods (each a “Renewal Term”) and together with the Initial Term, the "Term". Notwithstanding the foregoing, if you are not reasonably satisfied with the Product during the Term, you may terminate this Agreement at any time pursuant to the Updater Guarantee. Termination shall be effective upon your written notice.

(c) Pricing and Payment.

Annual or monthly pricing for the Product set forth in your Client Order(s) is only applicable for the Initial Term specified in such Client Order, and such pricing arrangements are not guaranteed for Renewal Terms or future Client Orders, unless otherwise specified in the Client Order. Any special first-year only pricing, special discounts, or first-year only integration charges shall not apply to any Renewal Terms. The Parties shall mutually agree in writing (email shall suffice) to the pricing for each Renewal Term prior to the beginning of such Renewal Term.

* Pricing for Updater Enterprise Solutions is determined by Updater based on a number of factors, including your estimated transaction volume, your industry and geographic location, your customization and branding requirements, the level of customer service required for your solution, the features included in your branded end-user Updater websites, whether Professional Accounts are included in your solution (and the features included in such Professional Accounts), the extent and complexity of your required analytics and reporting, among other factors.

* Pricing for your Enterprise Solution is Confidential Information pursuant to Section 6 of this Agreement.

You agree to pay Updater the agreed-upon price for use of the Product. You may elect to pay any and all Updater fees by credit card, bank wire or check (your "Payment Method"). All invoices are due when received. You agree that if credit card is your selected Payment Method, your credit card will be subject to automatic recurring charges (without notice), at the agreed-upon price. If you wish to terminate your Client Order pursuant to the Updater Guarantee, you shall be entitled to a pro-rata refund for any advance payments made.

(d) Customization. Any Product customizations set forth in your Client Order are only applicable for the Initial Term specified in the Client Order, and such customization obligations are not guaranteed for Renewal Terms or future Client Orders, unless otherwise specified in the Client Order. The Parties shall mutually agree in writing (email shall suffice) as to the Product customization requirements for each Renewal Term prior to the beginning of such Renewal Term.

(e) Professional Accounts. If Professional Accounts are included as a feature of your Enterprise Solution, you shall promptly notify Updater when individual professionals leave or join your company during the Term.

4.2 Professional Accounts

*This entire Section 4.2, and the defined terms contained herein, are only applicable for Clients who purchase or claim a subscription for a Professional Account (real estate professionals and loan officers).

“Professional Accounts” are online Updater accounts for professionals to invite clients to use Updater and review their clients’ Updater experience. Your Professional Account may be linked to a company or team Enterprise Solution and/or include branding elements of a company or team with which you are affiliated, at Updater’s discretion. If your company or team affiliation changes or terminates, you shall promptly notify Updater.

(a) Access to the Product. Subject to the terms and conditions of this Agreement, and effective upon the creation of a Professional Account (“the Effective Date”), Updater shall make the Product available to you and shall grant to you a revocable, limited, non-transferable and non-exclusive license to use the Product during the Term (as defined below).

(b) Term. This Agreement shall begin on the date on which an Updater Professional Account subscription begins and shall continue in effect for 12 months (the “Initial Term”). This Agreement shall automatically renew after the Initial Term for successive 12 month periods (each a “Renewal Term”) and together with the Initial Term, the "Term". Notwithstanding the foregoing, if you are not reasonably satisfied with the Product during the Term, you may terminate this Agreement at any time pursuant to the Updater Guarantee. Termination shall be effective upon terminating your Professional Account.

(c) Pricing and Payment.

If you pay for your subscription, you may be entitled to special pricing based on your company affiliation or referral source. The current schedule of fees for a subscription for a Professional Account shall be set forth on a publicly available Updater pricing page. Updater may revise such schedule from time to time. Unless otherwise notified, the revised fees will be effective only with regard to new subscriptions ordered after the revised fees have been posted. Any special first-year only pricing, special discounts, or first-year only integration charges shall not apply to any Renewal Terms, unless otherwise specified. Your company or team may elect to pay for your subscription or charge you directly for your subscription, in which case no fees will be payable and due to Updater. The payment obligations and renewal date for your subscription will be displayed in the settings tab of your Professional Account.

You shall provide current, complete and accurate information for billing purposes. If you fail to provide Updater with current and accurate information, then you shall be responsible for fees accrued by Updater for attempting to charge an invalid credit card. In addition, you authorize Updater to obtain updated or replacement expiration dates and card numbers for you credit or debit card as provided by your credit or debit card issuer. If you initiate a chargeback or otherwise reverse a payment made, Updater may, in its sole discretion, close your account immediately.

After your Initial Term, and again after each Renewal Term, your subscription will automatically continue for an additional Renewal Term, at the price you agreed to when subscribing, unless you cancel your subscription by closing your Professional Account. You agree that if you provide Updater with your credit card information, your credit card will be subject to automatic recurring charges. Updater shall have no obligation to provide advance notice of the automatic recurring payment other than pending renewal dates in your Professional Account. By providing Updater with your credit card information, you authorize Updater to charge the credit card at the time the credit card information is provided and again at the beginning of each subsequent Renewal Period. Upon the renewal of your subscription, if Updater does not receive payment from your credit card provider, you agree to pay all amounts due upon request and/or you agree that Updater may either terminate or suspend your Professional Account and continue to attempt to charge your credit card provider until payment is received (upon receipt of payment, your account will be activated.

Your Updater subscription will continue indefinitely until (a) you cancel your subscription, (b) Updater terminates this Agreement and your subscription, or (c) Updater transfers you to a different subscription plan, which it may do in its sole discretion. Updater may transfer you to a different subscription plan if you no longer qualify for your original subscription plan (such as when you leave your company). You shall receive notice if and when Updater transfers your subscription plan before any subsequent automatic billing charge. Fees for your new subscription plan shall be determined by Updater, in its sole discretion, although such fees may not be higher than the fees for a subscription for a Professional Account set forth on the publicly available Updater pricing page.

If you want to change or cancel your subscription, you must log in to your Professional Account and follow the directions contained under the settings tab. If you terminate your subscription, you may use your Professional Account until the end of your then-current subscription period, and your subscription will not be renewed thereafter. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period, unless this Agreement is terminated by Updater or you request a refund in writing pursuant to the Updater Guarantee.

4.3 Offering the Product.

As an Updater Client, you agree to incorporate offering the Product to your clients/customers/residents as part of your standard service offering. Offering the Product shall therefore not be considered a data share with a third-party, as Updater shall gain no right, interest, or license to the Required Data (as defined below) as a result of you offering the Product.

5. USE OF PRODUCT

5.1 Client Guidelines. You shall not use the Product, in part or in whole, for any purpose, or in any way, not contemplated by the terms of this Agreement. Additionally, you agree to not knowingly use the Product in any manner that may disable, impair, damage, compete or interfere with any of Updater’s products, hardware, software applications, intellectual property rights, or Services (as defined below). You shall not reproduce, copy, sell, exploit, share, or transfer the Product, any portion of the Product, or the rights granted to you by Updater to use or access the Product. You shall not offer or promote any relocation software system or website competitive to Updater during the Term. You shall not use the Product to construct or devise products or services that may compete with the Product or any of Updater’s Services. If applicable, you shall provide commercially reasonable notice and education about the Product and the Services to your agents and staff to facilitate seamless adoption of the Product. In addition to agreed upon fees, you shall pay all sales, use, excise and other taxes that may be levied upon either party in connection with this Agreement or on activities related to your use of the Product, except for taxes based on Updater’s net income.

5.2 Client Data. You shall share with Updater, or enable Updater to access, information necessary, as reasonably determined by Updater (the “Required Data”), to invite your customers/clients/residents to your branded Updater website and to perform the Services contemplated by the Product. Required Data shall include applicable (a) relocation data (such as old and/or new address and an applicable date), (b) data necessary to generate Professional Accounts, and (c) customer/client/resident email addresses and/or phone number for purposes of generating invitations. You shall send Updater Required Data or you shall enable Updater to access and utilize Required Data from third-party sources, such as transaction management software providers. You shall not knowingly transmit false data to Updater and you shall take reasonable measures to ensure accuracy of data transmitted to Updater. You hereby authorize Updater to contact your customers/clients/residents, on your behalf (or on behalf of your agents, as applicable), for the sole and explicit purpose of facilitating the Services and offering the Product; and you hereby warrant that you have authority to authorize Updater to implement your various service offerings on your behalf, such as by emailing your customers/clients/residents on your behalf. You hereby authorize Updater to display your email address (or the email addresses of your agents) as the sender of any and all applicable emails sent to you customers/clients/resident as contemplated by the Product. Unless you instruct Updater that you wish to opt-out of feedback solicitation, Updater may contact your customers/clients/resident to solicit feedback, as Updater deems reasonably necessary to improve and optimize the Services and the Product.

5.3 Data Privacy and Ownership. Updater may store and use Required Data for the purposes of delivering and/or distributing the Product and/or Services and Updater's use of the Required Data shall be governed by Updater's privacy policy, which can be found at http://www.updater.com/privacy (our “Privacy Pledge”).

5.4 Obligations and Rights Related to Users. Updater’s software, service and applications, including the Product, are designed to help individuals more seamlessly manage and complete various relocations logistics and tasks (the “Services”). Individuals for whom Updater provides its Services, regardless of whether such individual creates an end-user account for the Product, shall be a “User”, or collectively the “Users”. Updater shall, at our sole cost and expense, offer the Services contemplated by the Product. Specifically, Updater shall (i) generate and send to the Users all required (transactional) emails necessary to properly facilitate the Services offered via the Product; (ii) process all requests and address updates for the Users in compliance with all applicable laws, rules, regulations, and requirements; and (iii) handle all customer service issues arising from the use of the Services and the Product. The Services offered via the Product may include Updater premium features (for a fee to the User) and/or third-party offerings. You shall have no rights to any revenue that Updater generates from the Users, including the Users who are your customers/clients/residents. In order to facilitate the Services, Updater shall facilitate acquiring a legally valid authorized agency on behalf of each User, and Updater shall obtain and secure any and all consents and authorizations that may be required by any applicable law or terms of use. Updater may take actions on behalf of each User, including the distribution of the User’s data to third-parties, pursuant to, and in accordance with, our Privacy Pledge and terms of use, such as when such distribution is instructed by the User. Updater may conduct an identity verification process for each User to ensure authenticity of User data and requests. Updater shall bear full responsibility for all data distributions to third-parties pursuant to the Services and use of the Product.

6. CONFIDENTIALITY

6.1 Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”) that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, the terms and conditions of this Agreement (including pricing and other terms reflected in all Client Orders) and/or business and marketing materials, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party, which can be demonstrated with clear and convincing evidence; or (iv) is received from a third-party without breach of any obligation owed to the Disclosing Party.

6.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Notwithstanding the foregoing, the Receiving Party may disclose such Confidential Information to those of its employees and contractors who need to know such information for purposes of performing or implementing the Product and certifies that such employees and contractors have agreed, either as a condition of employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those in this Agreement. The Receiving Party shall use the same degree of care to protect the Confidential Information as it uses to protect its own information of a confidential and proprietary nature, but in no event shall it use less than a commercially reasonable degree of care. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted). This Section 6.2 shall survive the termination of this Agreement.

7. LIABILITY AND REMEDIES

7.1 Updater Indemnification. Updater shall indemnify you against, and hold you harmless from, any liabilities, claims or damages arising out of allegations (a) that the Product and Services misappropriate or infringe a third-party's patents, copyrights, trademarks, or trade secrets; or (b) that that the Product and Services misappropriate the data of a User in violation of Updater’s User Privacy Pledge. Updater shall pay any and all liabilities, damages, awards, judgments, settlements, fees and costs, including reasonable attorneys' fees and other costs incurred in the defense and/or settlement of such claims described in the preceding sentence. Updater’s obligations under this Section 7.1 are expressly conditioned on (a) you giving Updater prompt written notice of any claims, demand, or suit threatened or instituted against it; (b) you providing Updater (at Updater’s expense) with all information and assistance necessary to defend or settle such liability or claim; (c) Updater having control of the defense and all related settlement negotiations; and (d) you taking no action that may prejudice Updater’s ability to defend the claim. THIS SECTION 7.1 STATES UPDATER’S ENTIRE LIABILITY AND OBLIGATION, AND CLIENT'S EXCLUSIVE REMEDY, FOR APPLICABLE CLAIMS. This section 7.1 shall survive the expiration or early termination of this Agreement.

7.2. Client Indemnification. You shall indemnify Updater against, and hold Updater harmless from, any liabilities, claims or damages arising out of (i) your use of the Product and Services in violation of this Agreement; or (ii) allegations that your use of the Product violates the terms of any third-party agreement that you are a party to and to which Updater is not a party. You shall pay any and all liabilities, damages, awards, judgments, settlements, fees and costs, including reasonable attorneys' fees and other costs incurred in the defense and/or settlement of such claims described in the preceding sentence. Your obligations under this Section 7.2 are expressly conditioned on (a) Updater giving your prompt written notice of any damages or claims; (b) Updater providing you (at your expense) with all information and assistance necessary to defend or settle such liability or claim; (c) you having control of the defense and all related settlement negotiations; and (d) Updater taking no action that may prejudice your ability to defend the claim. THIS SECTION 7.2 STATES YOUR ENTIRE LIABILITY AND OBLIGATION, AND UPDATER’S EXCLUSIVE REMEDY, FOR APPLICABLE CLAIMS. This section 7.2 shall survive the expiration or early termination of this Agreement.

7.3 Limitation of Liability.

(a) Except in connection with indemnification obligations pursuant to Section 7.1 and 7.2 and the confidentiality obligations pursuant to Section 6.1 and 6.2, neither Party's liability to the other Party, or to any third-party, however caused, and whether arising under contract, tort (including negligence) or any other theory of liability, shall in any event exceed the fees payable by you to Updater during the prior 12 months under this Agreement.

(b) Except in connection with indemnification obligations pursuant to Section 7.1 and 7.2 and the confidentiality obligations pursuant to Section 6.1 and 6.2, neither Party shall be liable to the other Party for any special, consequential, incidental or indirect damages, however caused or based on any theory of liability, arising out of this Agreement, whether or not such Party has been advised of the possibility of such damage, and notwithstanding any failure of essential purpose of any limited remedy.

(c) You acknowledge that Updater has no obligation or responsibility to review content and messages generated via the Professional Accounts and Updater therefore bears no legal responsibility for the consequences of content and messages that are not created by Updater and which are distributed via the Product.

8. OWNERSHIP AND MISCELLANEOUS PROVISIONS

8.1 Ownership. Updater warrants and represents that it owns the Product and has the authority to grant you rights to use the Product subject to the terms and conditions set forth herein. The Product is licensed, not sold, solely for your use under the terms of this Agreement. You agree and acknowledge that the Product, and all rights to access and use the Product, are and shall be owned and/or controlled exclusively by Updater. You shall not reverse engineer, decompile, disassemble, or reproduce the Product or any Updater software applications, and you shall not attempt to copy any of Updater’s products or source code. You may not copy, modify, distribute, sell, assign, pledge, sublicense, lease, rent, deliver, or otherwise transfer, directly or indirectly, any rights in the Product. Except as specifically set forth herein, Updater retains all right, title, and interest, including all intellectual property rights, relating to or embodied in the Product, including without limitation all technology, hardware, and software relating to the Product. All graphics, logos, service marks, and trade names, including third-party names, product names, and brand names (collectively, the “Updater Marks”) relating to the Product, which are not identifying the Client, are the trademarks of Updater. You shall not use any Updater Marks to the extent they are owned by Updater without Updater’s prior written permission, which shall be at the sole and exclusive discretion of Updater. Updater reserves all rights and interests not expressly granted in this Agreement, and no direct or indirect ownership interest or license right in or to the Updater Marks, the Product, or any other Updater intellectual property rights is granted to Client or created by implication in this Agreement. This paragraph shall survive the termination of this Agreement.

8.2 Assignment. This Agreement may not be transferred or assigned, in whole or in part, by you without the prior written authorization of Updater, which shall not be unreasonably withheld. Notwithstanding the foregoing sentence, either Party may assign this Agreement to a successor in interest in the event of a reorganization, merger, consolidation or sale of all of such party’s assets or stock, except that neither party may assign this Agreement to any entity that competes, directly or indirectly, with the non-assigning party without the non-assigning Party’s written prior consent. A Party properly assigning this Agreement will provide notice of such assignment within sixty (60) days of the effective day of the assignment.

8.3 Updater’s Termination Rights. Updater may terminate this Agreement upon 60 days written notice and shall use commercially reasonable efforts to continue providing the Product and related Services to your customers/clients/residents who created a User account.

8.4 Governing Law and Forum. The laws of the State of New York shall exclusively govern this Agreement without regard to any contrary conflicts of laws principles. All legal disputes arising from this Agreement and not resolved by non-binding mediation shall be resolved in the Federal and/or State Courts of New York.

8.5 Independent Contractor. Updater is an independent contractor, and no partnership, joint venture or any legal relationship other than that of independent contractor is established by this Agreement.

8.6 Entire Agreement. This Agreement, along with any applicable Client Orders, represents the entire Agreement between the Parties and supersedes all prior and contemporaneous agreements and understandings, both oral and written in nature, between the Parties relating to the matters contained and set forth within the terms and conditions of this Agreement.

8.7 Changes to this Agreement. This Agreement is subject to change by Updater at any time. If you are not a Client at the time of any change, the revised terms will be effective upon the date that you become a Client. If you are a Client at the time of any change, the previously-existing Agreement will continue to govern your relationship with Updater until your next Renewal Term, after which the revised Agreement shall govern, and your renewal shall constitute acceptance by you of the revised Agreement. Clients shall be notified of any and all material changes to this Agreement prior to renewal if such notice is requested in writing.