Last updated December 15, 2023
For adequate consideration and intending to be legally bound, the Parties agree as follows:
Capitalized terms not otherwise defined elsewhere in this Agreement shall have the following meaning:
“Account(s)” means the User account(s) created for Customer (including all accounts created by or for Customer’s Administrators, Managed Users, or External Users) to use the redIQ Service.
“Administrator(s)” means a User designated by Customer to have an Account with the authority to utilize the Administrative Console(s) to create and manage other Accounts associated with Customer.
“Administrative Console” means the functionality within the redIQ Service that allows Customer to manage Accounts and where the Administrator shall receive updates or notifications concerning the redIQ Service.
“Affiliate” means an entity controlling, controlled by or under common control of a Party (“control” means at least fifty (50) percent voting or management control). If an Order indicates that the Service may be used by Customer’s Affiliate(s), then the term “Customer” shall include such Affiliate(s). Customer is responsible for Affiliates’ compliance with this Agreement.
“Agreement” means this document and its Exhibits, together with all Orders and any SOWs executed by the Parties.
“API” means the application-programming interface which redIQ may authorize Customer to use to achieve interoperability between other systems operated by Customer and the Service and to make Permitted Use of the Service during the Term.
“Consulting Services” means professional or technical services rendered by redIQ under a Statement of Work (“SOW”) issued under this Agreement and executed by the Parties.
“Customer Data” means all Personal Information, Deal Level Data, Physical Property Data and other information uploaded by Users into Customer’s redIQ Service Account for processing and generation of redIQ Analytic Reports and redIQ Models and the calculations generated by those redIQ Models and Reports (e.g., valuations, cap rates, IRR, etc.) that are specific to Customer’s Deals and/or properties
“Customer Domain” means an internet domain registered, owned or controlled by Customer and which is associated with email addresses used by one or more Users, as specified in the Order (e.g., email@example.com). If Affiliate(s) are authorized in the Order to use the Service, then Customer Domain may also include the Affiliate(s) Domain (e.g., firstname.lastname@example.org).
“Data Security Practices” means the redIQ.com Data Security Practices located at: https://www.rediq.com/data-security/. Our Data Security Practices apply to Customer Data in accordance with the order of precedence set forth in Section 15.8 of this Agreement.
“Deal Level Data” means property size and occupancy rates, cash flow, income, expenses, debt levels and other information specific to an actual or potential real estate transaction (a “Deal”).
“Derived Data” means the results of calculations, manipulations, analyses and processes performed by the Service on redIQ Data Pools to produce output in the form of data aggregates that cannot be linked to a specific person or property. For example, Derived Data may include an average aggregate rent for a given zip code obtained from a column of actual unit rents for a sample of specific properties from redIQ Data Pools but in a manner that does not permit the User to “drill down” to identify a specific person or property.
“External User(s)” means a person specifically authorized in an Order to use the Service but who is not associated with a Customer Domain, such as certain clients or outside consultants of the Customer. External Users may be subject to restrictions on access rights and roles, such as read-only access to certain redIQ Analytic Reports.
“Feedback” means any ideas, suggestions or observations received by redIQ from Customer, such as for new features or improvements to the Service.
“Malware” means viruses, worms, time bombs, Trojan horses and other malicious code designed to interfere in the normal operation of the Service.
“Managed User(s)” means an individual who is permitted to use the Service and is associated with a Customer Domain.
“Order” means a fully executed document or online acceptance of a commitment in which Customer subscribes to the redIQ Service at a specified price during a specified Subscription Period. An Order may contain additional or different usage restrictions on Customer and Users. All Orders are subject to redIQ’s acceptance and payment of fees.
“Physical Property Data” means Customer Data specific to one or more actual real estate properties, such as the property name, property address, number of units, unit floor plan identification, unit and room sizes, number of bedrooms, bathrooms and other features of the property and its units that may be uploaded by Customer to the Service.
“redIQ Analytic Reports” means value-added analytical reports and insights generated by the Service from time to time, which may include embedded elements of redIQ Data and Customer Data.
“redIQ Data” means, as between the Parties, all data used in or obtained from the Service from time to time (other than Customer Data), such as Derived Data, data provided by redIQ or its Affiliates, by other redIQ customers (e.g., participants in the redIQ Data Pools), data that is publicly available and data licensed by redIQ from third party data suppliers.
“redIQ Service” or “Service” is a cloud-based software-as-a-service platform for streamlining and automating the process of evaluating commercial real estate opportunities. Key features of the Service include tools for extracting data from rent roll and financial statements, populating underwriting models in other programs, making and/or sharing assumptions related to particular real estate transactions and managing the data uploaded into the system. The specific features of the Service subscribed to by Customer are specified in an Order, to include all redIQ Data, redIQ Models and redIQ Analytic Reports, but not including Customer Data, and are subject to updates, upgrades and other changes as described in Section 6 (Support and Maintenance).
“redIQ Models” means financial models provided in the Service from time to time, including those based on Microsoft Excel spreadsheet files that may be downloaded by Customer from the Service and used on Customer’s own computer workstations.
“Subscription Period” means the duration of Customer’s license to use the redIQ Service commencing on the Start Date and ending on the End Date specified in the Order.
“Support Services” are specified and available in redIQ’s online Help Center.
“Term” has the meaning set forth in Section 11.1.
“User(s)” means, collectively, any Administrator, Managed User or External User authorized to use the Service who are employees of Customer or contractors that regularly provide services to Customer and are issued an email address based on the Customer Domain.
“User Guide” means redIQ’s then-current published online instructions and knowledge base describing the use and functionality of the redIQ Service that is made generally available by redIQ to its customers. The User Guide does not include any FAQs, forum postings or user-generated content that may be available on the Service website.
2. Access and Use of the redIQ Service
2.1 Access Grants.
(a) redIQ Service Subscriptions. Subject to the terms and conditions of this Agreement, redIQ shall: (a) make the redIQ Service available to Customer during the applicable Subscription Period; (b) allow Customer’s Administrator to use the Administrative Console to create and administer Accounts registered to Customer; (c) allow Users to upload Customer Data to the Service; and (d) permit Customer to use the Service in accordance with any permissions and restrictions outlined in the Order and this Agreement.
(b) API Access. Use of the redIQ API is reserved to our enterprise level customers. Please contact redIQ if you would like to upgrade to an enterprise agreement.
(c) Free Beta Offerings. Free beta features may from time to time be offered to eligible Customers and are provided on an “as-is”, “as available” and “with all faults” basis. redIQ Support and Maintenance Services do not cover free beta offerings. redIQ owns and may use any feedback received from Customers regarding free beta offerings without financial or other obligation. redIQ reserves the right in its sole discretion to discontinue, modify or publicly release free beta offerings under different terms, conditions and pricing.
2.2 Acceptable Use of the redIQ Service.
(a) Permitted Purpose. Customer may use the redIQ Service during the Term in the ordinary course of its business and according to the redIQ User Guide then in effect for (i) its internal purposes (such as managing its real estate deal flow), (ii) to provide limited amounts of information obtained from the Service to its own clients and prospective clients and (iii) to support its valuation, appraisal or counseling regarding a specific real estate property (“Permitted Purpose”). In exercising these rights, Customer may during the Term download redIQ Models, redIQ Analytic Output and other information from the Service into word processing, Excel spreadsheet and presentation files and use, print and distribute those files as reasonably needed to carry out the Permitted Purpose. redIQ reserves the right to modify its User Guide upon advance written notice to customers.
(b) Prohibited Uses. The Permitted Purpose does not include and Customer agrees not to use or permit the use of the redIQ Service: (i) to communicate any message or material that is defamatory, harassing, libelous, threatening, or obscene; (ii) in a way that violates or infringes upon any intellectual property, privacy or publicity rights; (iii) in any manner that may be unlawful or give rise to civil or criminal liability; (iv) in any manner that is likely to damage, disable, overburden, impair the Service or interfere in any way with the use or enjoyment of the Service by others; (v) to knowingly introduce any Malware to the Service; (vi) to frame, sublicense, resell or timeshare the Service; (vii) to obtain through any automated or other means a bulk download of data elements from the Service; (viii) to provide access to the Service to third parties (other than External Users); (ix) to remove any proprietary rights legend from any redIQ Analytic Reports, redIQ Models or other content obtained from the Service. Customer will not attempt to reverse engineer or discover the inner workings of the Service or any redIQ Analytic Reports or redIQ Models (except for formulas that are provided in readily-observable format to Users) and will not use any information obtained from the Service to create any offering that would compete with or usurp the market for the Service. THE SERVICE IS A VALUE-ADDED OFFERING THAT TRANSFORMS DATA INTO HIGHER LEVEL BUSINESS INSIGHTS AND IS NOT A SOURCE OF RAW DATA. CUSTOMER WILL NOT USE THE SERVICE AS A SUBSTITUTE SOURCE OF DATA ELEMENTS THAT HAVE OTHERWISE BEEN LICENSED BY CUSTOMER FROM A THIRD-PARTY DATA VENDOR. CUSTOMER SHALL NOT USE REDIQ DATA RELATED TO AFFORDABLE HOUSING TO UNDERMINE THE PRESERVATION OF AFFORDABLE HOUSING IN THE UNITED STATES. THE SERVICE DOES NOT CONSTITUTE REAL ESTATE, LEGAL, TAX, ACCOUNTING, APPRAISAL, OR OTHER PROFESSIONAL ADVICE, NOR DOES IT EXTEND OFFERS TO BUY, SELL OR LEASE REAL ESTATE, AND MAY NOT BE USED FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES.
2.3 Suspension of Access to Service.
redIQ may (but is not obligated to) monitor use of the Service and reserves the right to suspend Customer’s Account(s) or remove or disable any Customer Data which redIQ in good faith believes is in violation of this Agreement or any applicable law or regulation. redIQ agrees to provide Customer with reasonable advance notice of any such action unless immediate action is necessary to comply with legal process or to prevent imminent harm to the redIQ Service or any third party, in which case redIQ will notify Customer as soon as reasonably practicable thereafter.
3. Third Party Applications and Services.
redIQ may make available to Customer optional third-party applications, services or data for use in connection with the redIQ Service for which a separate charge may apply as specified in the Order or in the User Guide (“Third Party Products”). Customer’s use of any Third-Party Products may be subject to a separate end-user license agreement (“EULA”) from the third-party vendor which will govern Customer’s use of the Third-Party Products. redIQ makes no warranties of any kind and assumes no liability whatsoever for Customer’s use of (or inability to use) Third Party Products, which are made available by redIQ “AS IS,” “AS AVAILABLE” and “WITH ALL FAULTS”.
4. Security of Customer Data
4.1 Data Security. During the Term of this Agreement, redIQ will use due diligence to implement and maintain commercially reasonable administrative, physical and technical safeguards and measures designed to protect against unauthorized access to Customer Data as described more fully in redIQ’s Data Security Practices located at https://rediq.com/data-security. REDIQ DOES NOT WARRANT THAT THE SYSTEM WILL BE ENTIRELY FREE FROM MALWARE OR DATA SECURITY THREATS, SINCE ATTACK VECTORS ARE CONSTANTLY CHANGING.
4.2 Customer Data Storage Location. The redIQ Service is provided from the United States and Customer Data is stored in the United States. redIQ may use its service Affiliate in India to convert into usable form property rent rolls, operating statements and certain other data entry and related technical services in support of the Service and may transfer Customer Data to and from its Indian Affiliate in secure form for such limited purpose. Customer is advised to make regular backups of its Customer Data.
5. Customer Responsibilities
5.1 Establishment of Accounts. Customer will appoint an Administrator who shall be responsible for: (a) configuring the Customer’s settings of the redIQ Service; (b) managing any Customer devices and systems needed to access the Service; (c) assigning and managing Customer’s User Accounts and (d) enforcing and managing User access controls and permissions in accordance with Customer’s own information system security policies and applicable law. redIQ support personnel will never ask for Customer’s passwords. Customer will ensure that Users do not share their password or other login credentials with any other person or permit any other person to log on as such User. If a User’s login credentials become compromised, Customer will promptly notify redIQ’s support desk.
(a) Generally. As between the Parties, Customer Data shall at all times remain the exclusive property of Customer. Customer will: (a) be solely responsible for the nature, quality and accuracy of the Customer Data; (b) ensure that the Customer Data complies with the terms of this Agreement and all applicable laws and regulations; (c) promptly handle and resolve any notices and claims relating to the Customer Data (e.g. take-down notices pursuant to the Digital Millennium Copyright Act); and (d) ensure that it has the rights to the Customer Data in order to grant redIQ the rights contemplated by this Agreement. redIQ has no liability to Customer or any third party as a result of: (i) any unauthorized disclosure or access to a User’s Account or Customer Data as a result of Customer’s misuse of the redIQ Service or loss of any User password or login credentials by a User; (ii) any deletion, destruction, damage or loss of Customer Data caused by or at the direction of Customer; or (iii) any failure of Customer to maintain adequate security or Malware controls in any devices used to access the redIQ Service or to store back-ups of Customer Data.
(b) Sharing Deal Level Data. Customer has the option of sharing Deal Level Data and Physical Property Data it has uploaded to the Service with third parties and may receive such data from third parties who choose to share it with Customer. If Customer communicates with another user, that user may obtain certain Personal Information about Customer (e.g., Customer’s name and contact information). If Customer obtains Deal Level Data from a third party and adds that Deal to Customer’s redIQ account, the user who originally shared the Deal on the Service will be able to see certain Personal Information about Customer, such as Customer’s full name, job title, company, the number of times Customer viewed the Deal, the types of changes Customer made to the transaction assumptions (e.g., the fact that Customer changed some expense and occupancy assumptions, but not the specific changes Customer made to those assumptions unless Customer consents to sharing such information). If a colleague forwards to Customer a link to a Deal that is shared by a third party (including correct authentication information, if the link has been password protected), it is the original third party who initially shared the Deal (not your colleague) who would be able to see Customer’s Personal Information and activity described above. If Customer shares a Deal with a third party, Customer (and redIQ) lose control over the information contained in that Deal.
(c) Optional Participation in redIQ Data Pools: The Service contains a Property Specific Data Pool and an Anonymized Data Pool (collectively, the “redIQ Data Pools”) that contain a repository of data obtained from internal sources, third party data providers and from customers of the Service who agree to contribute Customer Data in exchange for access to premium features of the Service. Some features of the Service may only function, or function fully, if the Customer opts-in to the redIQ Data Pools. Customer may opt-out of participating in the redIQ Data Pools by having its Administrator so indicate in the Administrative Console. If Customer does participate, then redIQ may add Customer Data to the redIQ Data Pools and irrevocably use it on a non-exclusive, sub-licensable, worldwide, royalty-free basis as follows:
(i) Property Specific Data Pool. The Service may use Physical Property Data to provide redIQ Analytic Reports, redIQ Models, Derived Data and features of the Service to other customers and users, provided that Physical Property Data disclosed to other users will not contain any tenant names, occupancy status information or financial information pertaining to specific properties (the “Property Specific Data Pool”). For example, redIQ may help populate property details for a User by suggesting physical property attributes such as address or geolocation information, year built, unit count, street view images, etc.
(ii) Anonymized Data Pool. The Service may aggregate all Physical Property Data and Deal Level Data into a broader data pool and share it with redIQ’s users in redIQ Analytic Reports, redIQ Models, Derived Data and other features of the Service to other customers and users at a macro, non-property specific level on an anonymous basis (the “Anonymized Data Pool”). For example, redIQ may aggregate the year built of similar properties and report to a User the average difference in age between a subject property and nearby similar properties.
(iii) Prospective Opting-Out. If Customer participates in the redIQ Data Pools, it may later opt-out prospectively at any time by giving redIQ notice as specified in the User Guide. During any period of participation, Customer Data uploaded to the Service is irrevocably added to the redIQ Data Pools. Once Customer Data is contributed to the redIQ Data Pools, it is not feasible later to re-identify and remove it. Customer acknowledges that redIQ’s license to use Customer Data previously contributed to the redIQ Data Pools is irrevocable. For the avoidance of doubt, a decision by Customer to opt-out will only stop new contributions of such Customer Data into the Data Pools after redIQ has a reasonable opportunity to implement the request. Customer Data in the redIQ Data Pools may be used in other offerings in the redIQ Service and in digital offerings of its Affiliates in the form permitted by this Agreement.
5.3 Notification of Unauthorized Use. Customer will promptly notify redIQ in writing of any unauthorized use of any Account, Customer Data or the redIQ Service that comes to Customer’s attention and will provide prompt cooperation as reasonably requested by redIQ. RedIQ may rely on electronic instructions received through Customer’s Administrator Account until such time, if any, that redIQ’s support desk receives notice that Customer’s login credentials have been compromised.
6. Support and Maintenance.
Customer’s subscription to the Service includes at no additional charge access to the online Support features of our website, including the User Guide, FAQs, Knowledge Base and access to our Support desk. In addition, Customer’s subscription includes at no additional cost periodic updates that redIQ in its sole discretion makes to the subscribed features, such as changes to the user interface, navigation and minor improvements which will supersede existing features at the time they are generally commercially released. From time to time, redIQ may in its sole discretion remove, simplify or consolidate features or release substantial new or different features, capabilities or product offerings, some of which may be outside the scope of the then-current version of the redIQ Service and require an additional subscription and payment of fees. redIQ will give reasonable advance notice to Customer’s Administrative Contact through the Administrative Console or by email of Scheduled Downtime in which the redIQ Service may be unavailable. Downtime occasioned by Force Majeure Events or on an emergency basis shall be accompanied by notice that is reasonable under the circumstances.
7. Warranty and Disclaimer
7.1 Service Warranty; Exclusive Remedies. redIQ warrants solely to Customer that, during the Subscription Period, the redIQ Service will perform substantially in accordance with the User Guide under normal use by Customer in compliance with this Agreement. Customer’s sole and exclusive remedy and redIQ’s entire liability for a breach of this warranty shall be for redIQ to use commercially reasonable efforts to modify the redIQ Service or otherwise resolve the reported issue to conform to this warranty. redIQ may not be able to correct all errors in the Service and is not responsible for errors caused by Customer or deficiencies in Customer software or equipment. If redIQ is unable after reasonable attempts to correct material errors that substantially deprive Customer of the beneficial use of the Service, Customer may as its sole and exclusive remedy exercise its right to terminate the applicable Order and receive a pro-rated refund. There are no third-party beneficiaries of this Agreement and the warranties set forth herein are made for the benefit of the named Customer only.
7.2 Customer Warranties. Customer represents and warrants to redIQ that Customer owns or has all requisite rights to the Customer Data needed by redIQ and Customer to operate the Service and perform this Agreement (including any optional participation by Customer in the redIQ Data Pools and the granting of license rights to use Customer Data therein for the purposes described in this Agreement).
7.3 Disclaimer of Warranties. THE SERVICE (INCLUDING REDIQ ANALYTIC REPORTS, REDIQ MODELS AND APIs) MAY CONTAIN ERRORS AND OMISSIONS, SHOULD BE INDEPENDENTLY VERIFIED BY CUSTOMER AND CANNOT SUBSTITUTE FOR CUSTOMER’S EXERCISE OF DUE DILIGENCE AND INDEPENDENT PROFESSIONAL JUDGMENT. REDIQ AND ITS SUPPLIERS DO NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE ACCURACY, QUALITY, AVAILABILITY OR COMPLETENESS OF THE SERVICE, ANY REDIQ MODELS OR OUTPUT OBTAINED FROM IT. THE SERVICE WARRANTY PROVIDED IN SECTION 7.1 AND THE SERVICE LEVEL CREDITS ARE THE LIMITED AND EXCLUSIVE REMEDIES IN THE EVENT OF A MATERIAL BREACH. REDIQ WILL USE GOOD FAITH EFFORTS TO IMPLEMENT ITS DATA PROTECTION PLAN DESCRIBED IN THIS AGREEMENT BUT CANNOT GUARANTEE THAT ITS EFFORTS OR THE SERVICE ARE ENTIRELY EFFECTIVE IN SECURING THE SERVICE FROM ALL THREATS, WHICH ARE CONSTANTLY EVOLVING. CUSTOMER ACKNOWLEDGES THAT THE PRICE FOR THE SERVICE REFLECTS THIS ALLOCATION OF RISK AND SUCH RISK HAS BEEN FACTORED INTO THE AGREEMENT AS A WHOLE.
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, REDIQ DISCLAIMS ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION: (A) THOSE ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; (B) WARRANTIES OF: (I) SATISFACTORY QUALITY; (II) FITNESS FOR A PARTICULAR PURPOSE; (III) NON-INFRINGEMENT; OR (IV) INTEROPERABILITY WITH THIRD-PARTY PRODUCTS OR SERVICES; (C) THAT THE REDIQ SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS AND (D) THAT CUSTOMER DATA WILL BE SECURE, AVAILABLE OR NOT OTHERWISE LOST OR DAMAGED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. IN SUCH AN EVENT, THE ABOVE EXCLUSION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY LAW.
8. Proprietary Rights
8.1 Customer Data Ownership. As between Customer and redIQ, Customer or its licensors exclusively own all right, title and interest in and to all Customer Data. Customer hereby grants redIQ the right to transmit, process, use and disclose the Customer Data solely to provide the redIQ Service to Customer, to any User or to third parties as specified in this Agreement. If Customer participates in the redIQ Data Pools, the license granted by Customer to redIQ to use Customer Data submitted during the period of participation in those redIQ Data Pools is irrevocable and will survive Customer’s opting out of such participation or termination of this Agreement with respect to previously submitted Customer Data. Customer will use due diligence to make regular backups of all Customer Data and store them offline from the Service.
8.2 Ownership of redIQ Service. As between redIQ and Customer, redIQ or its licensors own and reserve all right, title and interest in and to, including any improvements or derivatives, the redIQ Service, redIQ Models, redIQ Data, redIQ Analytic Reports (except Customer Data contained therein), redIQ trademarks and other features of the redIQ Service. The Service is licensed and not “sold” to Customer. No title to or ownership of any proprietary rights related to the redIQ Service is transferred to Customer pursuant to this Agreement. All rights not expressly granted to Customer are reserved by redIQ. Any Feedback provided by Customer shall be deemed assigned to and become the exclusive property of redIQ and may be used without financial or other legal obligation to Customer.
9. Training or Consulting Services.
Training and consulting services are available to our enterprise level customers. Please contact redIQ if you would like to upgrade to an enterprise agreement.
10. Fees and Payment
10.1 Fees. Customer will pay all fees specified in Orders according to this Agreement. The Order will specify any licensing metrics applicable to Customer (and any authorized Affiliates). Unless otherwise specified in an Order, all fees are payable each Subscription Period in advance in U.S. Dollars and are non-cancelable and non-refundable. All fees are based on Service features ordered and not on actual usage.
10.2 Invoicing and Payment Terms.
(a) Payment for Invoiced Orders. Customer will pay all fees net thirty (30) days from receipt of redIQ’s electronic invoice unless otherwise specified in an Order. If Customer disputes any invoice, it will provide written notice of the reason for the dispute, will itemize the disputed amount and will timely pay any undisputed portion when due. The Parties will cooperate to resolve any disputed items within fifteen (15) days. All amounts due and payable by Customer under this Agreement will be made without set-off, deduction or withholding. Customer will promptly reimburse redIQ for its reasonable legal fees, court costs and expenses to collect any past due amount, which shall accrue interest at one (1) percent per month until paid.
(b) Payment for Orders with Linked Payment Method. For certain subscriptions, add-ons or products, Customer may be required to link an online payment method at the time of the Order, so that payments may be processed automatically when due. These offerings may be available to purchase and activate from within an online Customer portal.
10.3 Taxes. Prices do not include and Customer will pay any transaction taxes, such as local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including sales, use, value-added taxes (“VAT”), excise, goods and services taxes, consumption taxes, professional or occupational license fees measured by revenue or similar taxes, other than taxes based on redIQ’s net income or profits (collectively, “Taxes”). All fees are payable in full and without reduction for Taxes, which will be determined based on Customer’s address listed in the Order. If Customer claims an exemption from any Taxes, Customer will provide redIQ in a timely manner with a valid tax exemption certificate. If an audit subsequently assesses Taxes, Customer shall defend, indemnify and hold redIQ harmless from such Taxes, including interest and penalties imposed thereon.
10.3 Administrative Suspension for Non-payment. If any invoices are unpaid more than thirty (30) days beyond their due date, or redIQ is unable to charge a linked payment method, redIQ may upon ten (10) days’ written notice suspend Customer’s access to the redIQ Service, without liability to Customer. redIQ may condition any resumption of Service upon payment of past due amounts and Customer providing adequate assurance of future performance of its payment obligations.
11. Term and Termination
11.1 Term of Agreement. This Agreement will commence on the Effective Date and will remain in effect for three (3) years or such longer period for which there is an Order then in effect (“Term”), unless otherwise terminated as provided herein. Each Order will be in effect for a Subscription Period of one (1) year from the Service Start Date shown on the Order unless otherwise stated therein and shall thereupon terminate.
11.2 Automatic Renewal. Except as expressly stated in an Order executed by the Parties, Customer’s Subscription Term shall automatically renew for the same Subscription Term (but not less than one (1) year) at redIQ’s then-current undiscounted rates, unless Customer provides notice of non-renewal at least thirty (30) days prior to expiration of the Subscription Term.
11.3 Termination for Cause. Either Party may terminate this Agreement upon thirty (30) days’ written notice to the other Party for a material breach of this Agreement if such breach remains uncured after the expiration of such period. If the breach is not capable of being cured (e.g., breach of confidentiality) then this Agreement may be terminated on written notice.
11.4 Termination for Insolvency. Either Party may suspend or terminate this Agreement if the other Party becomes insolvent, makes an assignment for the benefit of creditors or becomes subject to a bankruptcy or insolvency proceeding (“Insolvency Proceeding”). Customer acknowledges that the redIQ Service is a service, not a good, provided on a pro rata daily basis over the Term. Any use of the redIQ Service by Customer after the commencement of an Insolvency Proceeding is an actual, necessary cost and expense of preserving Customer’s estate. Customer agrees that nothing herein shall limit redIQ’s rights of offset or recoupment and that redIQ is entitled to offset or recoup the value of redIQ Service provided after Customer becomes subject to an Insolvency Proceeding against any claim brought by or on behalf of Customer, including any state or federal preference, fraudulent transfer or other avoidance action.
11.5 Post-Termination Obligations. Upon termination or expiration of this Agreement for any reason, Customer will have no further rights to access or use the redIQ Service (including redIQ Models). Within thirty (30) days prior to termination or expiration of this Agreement (or as otherwise reasonably agreed by redIQ in writing), and regardless of whether a dispute may exist between the Parties, Customer may request a bulk download of its Customer Data in electronic format. After such termination or expiration date, any remaining Customer Data may be permanently deleted by redIQ. Notwithstanding the foregoing, redIQ may continue using Customer Data previously submitted by Customer to the redIQ Data Pools in perpetuity, since once such contributed data is anonymized, it is not possible to re-identify or remove it from the Pools.
11.6 Surviving Provisions. Upon any expiration or termination of this Agreement, the following sections will survive: Sections 1 (“Definitions”), 5.2 (“Customer Data”), 7.3 (“Disclaimer of Warranties”), 8 (“Proprietary Rights”), 10 (“Fees and Payments”), 11.5 (“Post Termination Obligations”), 11.6 (“Surviving Provisions”), 12 (“Indemnification”), 13 (“Limitation of Liability”), 14 (“Confidentiality”) and 15 (“Miscellaneous”) and any other provision which, by its nature, should survive
12.1 IP Indemnification by redIQ. redIQ will defend Customer against any third-party claim that the redIQ Service infringes a United States registered patent, trademark, or copyright of a third party, or misappropriates a trade secret and will indemnify Customer for the resulting costs and damages finally awarded against Customer to such third party by a court of competent jurisdiction or agreed to by redIQ in settlement. redIQ will have no liability to Customer under this Section for any claim that arises out of: (a) any unauthorized use, reproduction, or distribution of the redIQ Service by Customer; (b) use of the redIQ Service in combination with any other products, technology, process, software or equipment not supplied by redIQ if such claim would have been avoided without such combination; (c) any modification or alteration of the redIQ Service by anyone other than redIQ or redIQ’s authorized agents without the written approval of redIQ; (d) any Customer Data or (e) Customer’s bulk downloading of data from the Service in violation of this Agreement or use of the Service as a substitute for any pre-existing data license to which Customer is a party in order to obtain data elements. With respect to an indemnified claim governed by this Section, redIQ will (at redIQ’s option and expense): (i) obtain for Customer the right to continue using the redIQ Service; (ii) modify the redIQ Service to make it non-infringing; or (iii) if subsections (i) and (ii) are not commercially viable (as determined by redIQ in its sole discretion), terminate this Agreement, in which case Customer will be entitled to a pro-rated refund of any fees pre-paid by Customer for the corresponding unused period of the applicable Subscription Period.
12.2 Indemnification by Customer. Customer will defend redIQ against any third-party claim: (a) that any Customer Data or use of it as contemplated in this Agreement (including sharing of Deal Level Data or participation in the redIQ Data Pools) infringes a patent, trademark, or copyright, or misappropriates a trade secret or violates any privacy right or legal obligation; (b) arising from Customer’s use of the redIQ Service in violation of Section 2.2 (Acceptable Use of the redIQ Service); (c) any material breach by Customer of a EULA governing Third Party Product(s) used by Customer with the Service, and (d) any claim by a pre-existing third party data licensor that Customer has used the Service as a substitute for a data license with such vendor to obtain data elements. Customer will, with respect to any claim against redIQ that is subject to this Section, indemnify redIQ for the resulting costs and damages finally awarded against redIQ to such third party by a court of competent jurisdiction or agreed to in settlement.
12.3 Indemnification Process. As a condition of receiving an indemnification under this Agreement, the Party seeking indemnification (the “Indemnified Party”) will provide the other Party (the “Indemnifying Party”) with: (a) prompt written notice of the claim, provided, however, that the failure to give such notice shall not relieve the Indemnifying Party’s obligations hereunder except to the extent that the Indemnifying Party is prejudiced by such failure; (b) complete control over the defense and settlement of the claim (provided, that the Indemnifying Party will not settle any claim without the Indemnified Party’s prior written permission if the settlement fails to unconditionally release the Indemnified Party from all liability pertaining to such claim, such permission not to be unreasonably withheld, delayed or conditioned); and (c) such assistance in connection with the defense and settlement of the claim, at the Indemnifying Party’s expense, as the Indemnifying Party may reasonably request.
12.4 Exclusive Remedy. This Section 12 states the Indemnified Party’s sole and exclusive remedy against, and the Indemnifying Party’s sole liability to, the Indemnified Party for any claim referenced in this Section 12.
13. Limitation of Liability.
The following allocations of risk are factored into the price and the Agreement as a whole:
13.1 Limitation of Liability for Direct Damages. IN NO EVENT WILL REDIQ’S TOTAL AND CUMULATIVE LIABILITY, FOR ALL CLAIMS OF ANY NATURE ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR DIRECT DAMAGES EXCEED THE GREATER OF $25,000 OR THE TOTAL FEES PAID BY CUSTOMER FOR THE REDIQ SERVICE IN THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE FIRST EVENT WHICH GIVES RISE TO SUCH CLAIM. THE PRECEDING SENTENCE DOES NOT LIMIT LIABILITY FOR INDEMNIFIED CLAIMS UNDER SECTION 12 OR FOR DIRECT DAMAGES PROXIMATELY CAUSED BY REDIQ’S WILLFUL BREACH OF CONFIDENTIALITY.
13.2 Disclaimer of Liability for Consequential and Related Damages. NOTWITHSTANDING ANY OTHER PROVISION HEREOF, IN NO EVENT WILL REDIQ BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING COST OF COVER, OR LOSS OF SAVINGS, PROFITS, GOODWILL, DATA OR OTHERWISE, WHETHER BASED IN CONTRACT, TORT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, STATUTORY OR ANY OTHER THEORY OF LIABILITY, EVEN IF REDIQ HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. REDIQ’S OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS, EMPLOYEES AND AFFILIATES HAVE NO LIABILITY UNDER THIS AGREEMENT.
14.1 Definition. Either Party may disclose Confidential Information to the other Party during the Term of this Agreement. “Confidential Information” means all information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) which is in tangible form and labeled “confidential” or the like, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure. The following information will be considered Confidential Information whether or not marked or identified as such: (a) the redIQ Service (including redIQ Models and the API); (b) Customer Data and (c) the terms of this Agreement including all Orders and pricing thereto. Confidential Information will not include information that as shown by the Receiving Party’s contemporaneous records was: (i) already known to Receiving Party at the time of disclosure by the Disclosing Party; (ii) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (iii) is, or through no fault of the Receiving Party has become, generally available to the public; (iv) is authorized by Customer to be distributed to third parties (e.g, Deal Level Data) or (v) was independently developed by Receiving Party without use of the Disclosing Party’s Confidential Information.
14.2 Protection Period. The Receiving Party will use no less than a reasonable standard of care to safeguard the Confidential Information received from the Disclosing Party indefinitely, or until such time as an exception described in the final sentence of Section 14.1 (clauses (i)-(iv)) applies. The Receiving Party will only use the Confidential Information of the Disclosing Party to exercise its rights and perform its obligations pursuant to this Agreement.
14.3 Permitted Disclosure. Neither Party will disclose Confidential Information in violation of the terms and conditions of this Agreement to any third party without the prior written consent of the other Party. Notwithstanding the foregoing, each Party may disclose Confidential Information without the prior written consent of the other Party: (a) as compelled by law provided that, to the extent legally permissible, the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure and reasonable assistance, at the Disclosing Party’s expense, if the Disclosing Party seeks to contest such disclosure; (b) in confidence to its legal counsel; (c) in connection with the enforcement of rights or performance of obligations under this Agreement; or (d) or to respond to an emergency which redIQ believes in the good faith requires redIQ to disclose information to assist in preventing the death or serious bodily injury of any person. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information: (x) in confidence to its accountants, banks and financing sources, partners, providers and their advisors and (y) in confidence, in connection with an actual or proposed merger, acquisition, or similar transaction.
15.1 Insurance. Customer will maintain insurance of the kind and in the amounts reasonably needed to cover its risks under this Agreement. Customer will look to its insurance policies as primary coverage with respect to any risk covered by such policies and waives the collateral source rule and, if permitted by such policies, the right of subrogation.
15.2 Contractual Relationship. The Parties are independent contracting parties to one another. Neither Party will have, or hold itself out as having, any right or authority to incur any obligation on behalf of the other Party. This Agreement will not be construed to create an association, joint venture or partnership between the Parties or to impose any partnership liability upon any Party.
15.3 Anti-Corruption. Customer agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of redIQ’s employees, agents or subcontractors in connection with this Agreement. Customer will promptly notify redIQ’s General Counsel should Customer learn of any violation of this restriction.
15.4 References. During the Term of the Agreement, redIQ may reference Customer as a redIQ customer in sales and marketing materials and public statements, subject to Customer’s trademark and logo usage guidelines as provided to redIQ. Customer may send redIQ’s Administrative Contact an email if it does not wish to be used as a reference.
15.5 Notices. Any formal legal notice under this Agreement will be in writing and will be effective two (2) days after mailing by first class certified mail to a party’s General Counsel at the address first set forth above.
15.6 Nonwaiver. The failure of either Party to insist upon or enforce strict performance of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect.
15.7 Assignment; Subcontracting. Customer will not, directly, indirectly, by operation of law or otherwise, assign or transfer all or any part of this Agreement or its rights hereunder or delegate performance of any of its duties hereunder without the prior written consent of redIQ. Any attempted assignment or transfer by Customer without such consent shall be void and of no effect. redIQ may assign this Agreement without obtaining Customer’s consent: (a) to an Affiliate; or (b) to a successor in interest in a merger, reorganization, or a sale of all or substantially all of the assets of redIQ. redIQ may subcontract certain performance responsibilities to third parties (e.g., to AWS for cloud services and to its Indian Affiliate as stated in Section 4.2), but redIQ shall remain responsible for their performance to the same extent as if undertaken by redIQ hereunder. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective permitted successors and assigns.
15.9 Severability. If any word, phrase or provision of this Agreement is declared by a court of competent jurisdiction to be illegal or unenforceable, it shall be deemed severed and the remainder hereof will continue in full force and effect to the extent the original intent of the Parties can be advanced. A court shall (or may, in its discretion) deem this Agreement amended as necessary to carry out the Parties’ intent apparent from the document within the minimum requirements of law.
15.10 Applicable Law; Dispute Resolution. This Agreement will be construed and enforced in all respects in accordance with the laws of the State of Delaware, without reference to its choice of law rules. Any dispute, controversy or claim arising under, out of or relating to this Agreement will be initiated and maintained exclusively in a court of competent jurisdiction in Delaware and the Parties irrevocably consent to jurisdiction and venue therein. The foregoing does not limit a Party from seeking injunctive or equitable relief from any court of competent jurisdiction. The Parties irrevocably waive trial by jury.
15.11 No Third-Party Beneficiaries. There are no third-party beneficiaries of this Agreement. Any Affiliate of Customer named in an Order shall assert all rights hereunder solely through the named Customer. If an Affiliate authorized to use the Service is divested and is no longer an Affiliate, redIQ shall arrange transition services under an amendment hereto and/or negotiate in good faith a separate contract with such divested Affiliate on reasonable terms.
15.13 Force Majeure. In the event that either Party is prevented or delayed from performing this Agreement due to any cause beyond its reasonable control (including, without limitation, for causes due to war, terrorism (including cyber-terrorism), EMP attack, fire, earthquake, flood, hurricane, riots, acts of God, internet service failures or delays, denial of service attacks, Malware) (“Force Majeure Event”) the affected Party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform; provided that the affected Party gives the other Party prompt notice and uses commercially reasonable efforts to redress or work around the reported problem. If a Force Majeure Event continues or is likely to continue for more than thirty (30) days, either Party may terminate this Agreement.
15.14 Government Users. If Customer is a U.S. government entity or if this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Customer acknowledges that elements of the redIQ Service constitute software and documentation, they are provided as “Commercial Items” as defined at 48 C.F.R. 2.101, and are being licensed to U.S. government User as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.
15.15 Export Restrictions. redIQ controls and operates the Service from within the United States. If Customer accesses the Service from a computer located outside the United States, it is responsible for ensuring compliance with any local laws and regulations. No part of the Service or output generated by it may be exported or re-exported into (or to a national or resident of) any country to which the United States embargoes goods, or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders.
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