BY AGREEING TO THESE TERMS (INCLUDING BY A CLICK-THROUGH OR OTHER AGREEMENT), CUSTOMER EXPRESSLY ACKNOWLEDGES THAT CUSTOMER HAS READ THESE TERMS AND AGREES TO ALL OF THEIR RESPECTIVE TERMS AND CONDITIONS. Also, by agreeing to these Terms (including by a click-through or other agreement), Customer is waiving, to the extent permitted under applicable law, any rights or legal requirements that require an original (non-electronic) signature or the delivery or retention of non-electronic records in order for a contract to be legally binding. If Customer uses the OBI Products, Customer will be deemed to have accepted these Terms. If an individual is using the OBI Products on behalf of such individual’s employer or another entity that is the Customer under these Terms, such individual represents and warrants that they have full legal authority to bind the Customer to these Terms. If an individual does not have such authority, then such individual may not use the OBI Products on behalf of Customer and they must discontinue all use of the OBI Products immediately.
The Customer and OBI, each of whom may hereinafter be referred to as a “Party”, and collectively as the “Parties” hereby agree as follows:
WHEREAS, OBI develops and markets local data and property information and obtains additional information and resources from independent suppliers who have authorized OBI to re-license portions of their data and software applications (“Suppliers”), which OBI incorporates with its data (collectively the “OBI Content”) to create a variety of proprietary information products, which shall be made available via a real-time query application programming interface (“OBI API”) as more fully set forth herein (the OBI Content and OBI API shall collectively be referred to as the “OBI Products”);
WHEREAS, Customer wishes to license certain OBI Products subject to the terms agreed to by the parties in the website order form, written purchase order, or other written or electronic document setting forth the OBI Products licensed by Customer and any other applicable terms and conditions (e.g. price, length of term) agreed between OBI and Customer (“Order Form”);
WHEREAS, in this regard, Customer wishes to license certain OBI Content from OBI in accordance with the terms and conditions set forth herein.
1. OBI OBLIGATIONS
1.1. License for OBI Products. In consideration for the fees defined herein, all to be paid by Customer to OBI in compliance with the terms and conditions hereof, OBI grants Customer a non-exclusive, limited term, revocable, nontransferable, non-sublicensable worldwide license (the “License”) to access and use the OBI Products, solely for the purposes explicitly identified herein and subject to the terms and conditions herein.
1.2. Permitted Uses. Customer may utilize the OBI Products in conjunction with Customer’s own products, services, and software and other third-party data acquired by Customer (collectively the “Customer Works”) solely for the purposes explicitly stated below (collectively the “Permitted Uses”) and provided that Customer shall not use the OBI Products to compete with OBI or the OBI Products or exploit the same commercially vis-à-vis any third party:
1.2.1. Customer may incorporate the OBI Products within the Customer’s organization for Customer’s own internal research and analysis for purposes of, including but not limited to, facilitating a real estate purchase, sale or lending transaction;
1.2.2. Customer may utilize the OBI Products within Customer’s website, mobile application, reports or other methods of displaying OBI Content to consumer end users.
1.3. Specific Restrictions. Except for the License and Permitted Uses expressly granted by OBI to Customer in the OBI Products as set forth in herein, any other use whatsoever of the OBI Products by Customer is strictly prohibited (a “Prohibited Use”) and any such Prohibited Use shall be deemed a breach of these Terms entitling OBI to seek any and all appropriate legal relief including, but not limited to, injunctive relief as provided for herein. Such Prohibited Uses shall include, but not be limited to, Customer’s (i) use of the OBI Products in any knowing violation of any applicable laws, regulations or governmental orders; (ii) conversion of the OBI Products to, or putting same into, a file format designed to permit end users to download material portions of the OBI Products in a manner that is inconsistent with the terms hereof; (iii) using the OBI Products to create, enhance or structure any database in any form; (iv) disclosure, use, dissemination, reproduction or publishing of any portion of the OBI Products in any manner other than as expressly stated in these Terms, including, but not limited to, creating any product or service for sale or distribution to any third party and/or sub-licensing any portion of the OBI Products to any third party; (v) permitting any of Customer’s parent(s), subsidiaries, affiliated entities or other third parties to use the OBI Products or any portion thereof for any purpose whatsoever; (vi) caching or otherwise storing the OBI Content provided through the OBI API for a period of greater than twenty-four (24) hours; (vii) using any element or component of the OBI Content to create, replace, supplement or enhance any title, legal, vesting, ownership or encumbrance report; and/or (viii) committing any other act or omission which is not expressly authorized by the terms hereof.
2. INTELLECTUAL PROPERTY RIGHTS
2.1. OBI Ownership Rights. Customer acknowledges and agrees that OBI (and its Suppliers where appropriate) shall retain all ownership, rights and title in and to: (i) the OBI Content; (ii) the OBI Products; (iii) all OBI brand features and trademarks; (iv) all underlying data, compilations and preparation of the OBI Products; (v) all other compilations and publications created, prepared or authored by OBI not consisting of the OBI Products; (vi) any and all enhancements to the OBI Products; (vii) all derivative works; and (viii) all intellectual property rights and other proprietary rights in any of the foregoing, including without limitation all rights in any patents, trademarks, copyrights, derivative works, inventions, and trade secrets of OBI, and any related proprietary rights under U.S. or foreign law (collectively, the “OBI Proprietary Rights”). Customer agrees to assist OBI, at OBI’s expense, to obtain, secure, perfect, maintain, defend and enforce, for OBI’s benefit, all OBI Proprietary Rights with respect to such properties. Customer shall neither register nor use any OBI Proprietary Rights and similar rights of any type under the law of any governmental body, including all applications and registrations relating to any of the foregoing, except as specifically provided herein. Customer acknowledges that it does not have any rights or any title whatsoever in or to OBI’s Proprietary Rights, except as specifically provided herein.
2.2. Licensee Ownership Rights. OBI acknowledges and agrees that Licensee owns and shall retain all ownership, rights and title in and to: (i) the Licensee Works; (ii) all Licensee brand features, the Licensee name and all Licensee trademarks, tradenames and service marks; (iii) any and all enhancements, modifications and/or improvements to the Licensee Sites not consisting of the OBI Products; (vii) all derivative works that are based upon, incorporate, rely upon, or contain the Licensee Sites but do not consist of the OBI Products; and (viii) all intellectual property rights and other proprietary rights in any of the foregoing, including without limitation, all rights in any patents, trademarks, copyrights, derivative works, inventions, and trade secrets of Licensee, and any related proprietary rights under U.S. or foreign law (collectively, the “Licensee Proprietary Rights”). OBI agrees to reasonably assist Licensee, at Licensee’s expense, to obtain, secure, perfect, maintain, defend and enforce, for Licensee’s benefit, all Licensee Proprietary Rights with respect to such properties, provided that OBI shall not take any action in that regard without seeking Licensee’s prior written consent. OBI shall neither register nor use any Licensee Proprietary Rights and similar rights of any type under the law of any governmental body, including all applications and registrations relating to any of the foregoing, except as specifically provided herein. OBI acknowledges that it does not have any rights or any title whatsoever in or to Licensee’s Proprietary Rights.
2.3. Marking. OBI will be identified as the source of the OBI Content wherever any such OBI Content is displayed to end users. The text “Local Information provided by Onboard Informatics”, “Information Powered by Onboard Informatics” or any other substantially similar language along with “Copyright © 2017 Onboard Informatics. Information is deemed reliable but not guaranteed.” shall be used by Customer for such purpose.
3.1. Monthly Billing. The amount due OBI will be calculated in accordance with the terms set forth in the Order Form and based on the measurement of Customer’s usage of the OBI Products determined solely by OBI’s tracking systems. Charges shall be billed to Customer’s credit or debit card within the first ten (10) days of each month for Customer’s usage of the OBI Products in the immediately preceding month inclusive of any required taxes or other fees. Customer shall be required to register a valid credit or debit card to process payments of the associated fees. Customer is solely responsible for any and all fees charged to Customer’s credit or debit card by the issuer, bank, or financial institution, including fees for membership, any overdraft or other insufficient funds, or for exceeding any applicable credit limit. The credit or debit card that Customer registered will be charged for each transaction without having to reenter Customer’s credit or debit card information. Customer agrees that the issuer of any credit or debit card registered by Customer’s will accept these Terms as Customer’s authorization and pay all amounts billed in connection with Customer’s use of the OBI Products without OBI submitting a signed receipt. Failure to receive a bill, including a paper bill does not release Customer from Customer’s payment obligations under these Terms. Customer agrees to provide OBI with updated credit or debit card information upon request and any time the information Customer previously provided is no longer valid. Customer is solely responsible for maintaining and updating the credit or debit card information. OBI reserves the right to change the timing of its billing from time to time at its sole discretion.
3.2. No Returns, Credits or Refunds. CUSTOMER UNDERSTANDS AND AGREES THAT PAYMENTS ARE NONREFUNDABLE. OBI IS NOT OBLIGATED, AND CUSTOMER IS NOT ENTITLED AND HEREBY WAIVES ANY RIGHT, TO ANY CREDIT, REFUND, PRICE ADJUSTMENT OR ANY OTHER DISCOUNT, COMPENSATION OR RECOMPENSE FOR ANY PARTIALLY USED PRODUCTS (E.G., SUBSCRIPTIONS NOT USED OR TRANSACTIONAL PRODUCTS NOT DOWNLOADED OR FULLY VIEWED).
3.3. Late Payment. Any payments not received when due will be subject to a late payment charge of the lesser of one and one half percent (1.5%) per month on the outstanding balance or the highest interest rate allowed by applicable law. Customer’s obligation to pay the fees as described herein shall be absolute notwithstanding any claim(s) which Customer may assert against OBI. Customer shall not have the right to set-off, compensate or make any deduction from such fee or other payments for any reason. OBI shall be entitled to recover from the Customer, in addition to any other remedies in the event of default, reasonable attorney's fees, costs and expenses, including collection agency fees incurred by OBI in the enforcement of the provisions hereof.
3.4. Billing Error. If Customer believes that Customer has been billed in error, Customer must contact OBI’s customer service immediately, and in no event more than fifteen (15) days following the date Customer is billed. Failure to timely notify OBI of any dispute will constitute Customer’s acceptance of the corresponding billed amounts. Customer must pay undisputed portions of any billing statement when due, or, without limitation to any other rights or remedies available to OBI at law, in equity, under contract (including these Terms), or otherwise, all of which are hereby expressly reserved, OBI may elect to suspend or terminate Customer’s access to the Products, permanently or temporarily, in whole or in part. All payments for the Products must be made directly by Customer to OBI, unless OBI authorizes otherwise; OBI shall have no obligation to provide Products for which payment is made by Customer to a third party or for which payment is made by a third party on Customer’s behalf.
3.5. Suspension/Termination by OBI. Customer’s access to the OBI Products may be suspended or terminated if Customer’s payment is past due. OBI may also suspend or terminate Customer’s access to the OBI Products if it is determined that there is previously unpaid, undisputed, and outstanding amounts due with respect to the OBI Products. Such suspension or termination may continue until satisfactory arrangements have been made for the payment of all past unpaid charges. While Customer’s access to the OBI Products is suspended any applicable promotional offers may be discontinued and revoked as determined solely by OBI. Customer may be charged a fee to restore Customer’s access to the OBI Products. In addition, OBI may immediately terminate all or a portion of Customer’s access to the OBI Products or suspend Customer’s access to the OBI Products, without notice, for conduct that OBI believes (a) is illegal, fraudulent, harassing, abusive, or intended to intimidate or threaten; (b) constitutes a violation of any law, regulation, or tariff (including, without limitation, copyright and intellectual property laws); or (c) is a violation of these Terms, or any applicable policies or guidelines, and OBI may refer such use to law enforcement authorities without notice to Customer. For clarity, termination or suspension by OBI of the OBI Products also constitutes termination or suspension (as applicable) of Customer’s license to use any associated software, if applicable.
3.6. Free Trial. Notwithstanding the foregoing, in some cases, Customer may be provided a free trial or evaluation period to use the OBI Products for a limited period of time free of charge, as may be set forth on the OBI website or in a given Order Form. In the case of any free trial, Customer will not be charged during the free trial period or will not be charged for a specified number of API search requests during the free trial, as will be set forth in a given Order Form. Free trials may be subject to various limitations, including, without limitation, a limited quantity and/or scope of OBI Content, a limited number of calls to the OBI Products, a limited territory and/or a limited time period for the free trial. When Customer agrees to a free trial for the OBI Products, Customer may be asked to authorize, and by accepting these Terms, Customer hereby expressly authorizes OBI to charge the applicable fees for such OBI Products to Customer's designated billing payment method upon the expiration of the free trial, in each case, as set forth on the OBI website or in a given Order Form. Unless otherwise set forth on the OBI website or a given Order Form, upon the expiration of a free trial, Customer will only be able to access the OBI Products in connection with a paid license, on a pay-per-transaction basis or as otherwise described on the OBI website or a given Order Form.
4. TERM AND TERMINATION
4.1. Term. The initial term of these Terms shall commence on the date Customer accepts these Terms (the “Effective Date”) and will remain effective for an initial term as indicated on the Order Form (the "Initial Term") and may be renewed as set forth in such Order Form. As used herein, the "Term" means the Initial Term and any Extension Term(s).
4.2. Termination by Customer. Unless otherwise stated in an Order Form, Customer may terminate its access to the OBI Products at any time. Customer must pay all fees incurred through the end of the subscription term, including any early termination fees that may apply.
4.3. Termination. OBI may terminate these Terms immediately upon notice to Customer if Customer: (a) materially breaches any term of these Terms and such breach remains uncured for three (3) Business Days after written notification thereof; (b) ceases to conduct business in the normal course, becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, or avails itself of or becomes subject to any proceeding, under any Bankruptcy Act or any other federal or state statute relating to insolvency or the protection of rights of creditors, or (c) in the event that Customer consistently fails to make payments to OBI in a timely manner.
Upon the termination of these Terms all licenses granted under these Terms shall terminate immediately and Customer shall immediately cease all access to and use of the OBI Products.
5. REPRESENTATIONS AND WARRANTIES. Each party hereto represents, warrants and covenants that (a) it has the full right, power and authority to enter into these Terms; and (b) neither the execution and delivery of these Terms nor the consummation and performance of the transactions contemplated hereby, will (i) conflict with or result in the breach of any provision of its organizational documents; (ii) conflict with, result in a breach, violation or default under or the termination of, or require the consent of any party to, or create in any party the right to accelerate, terminate, modify or cancel, any agreement, license, note, mortgage, indenture or other instrument or obligation to which Customer is a party or by which Customer or its properties is bound; or (iii) violate any law or order of any governmental body by which such party is bound; except, in case of clauses (ii) and (iii) for such violations, breach or defaults as would not, individually or in the aggregate, have a material adverse effect.
6. LIMITATION OF LIABILITY; WARRANTY DISCLAIMERS; INDEMNIFICATION
6.1. Limitation on Liability. NEITHER OBI NOR ITS DATA SUPPLIERS SHALL BE LIABLE TO CUSTOMER, END USERS, AND OR TO ANY OTHER PERSON OR ENTITY CLAIMING BY, THROUGH OR ON BEHALF OF THEM, WHETHER INDIRECTLY OR DIRECTLY, FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES RELATING TO OR ARISING OUT THESE TERMS, ANY BREACH HEREOF, THE PERFORMANCE HEREOF OR ANY OF THE SUBJECT MATTER HEREOF INCLUDING, BUT NOT LIMITED TO, THE OBI PRODUCTS, WHETHER IN CONTRACT (INCLUDING BREACH OF WARRANTY), TORT (INCLUDING STRICT LIABILITY), OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF REPUTATION, OR LOSS OF OPPORTUNITY, EVEN IF THE PARTY HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF OBI AND ITS DATA SUPPLIERS RELATING TO OR ARISING OUT THESE TERMS, ANY BREACH HEREOF, THE PERFORMANCE HEREOF OR ANY OF THE SUBJECT MATTER HEREOF INCLUDING, BUT NOT LIMITED TO, THE OBI PRODUCTS, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE AND REGARDLESS OF THE NUMBER OR TIMING OF CLAIMS, THE AMOUNT OF ALL CHARGES PAID BY CUSTOMER HEREUNDER, AND CUSTOMER HEREBY RELEASES OBI WITH PREJUDICE FROM ANY AND ALL DAMAGES, OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS LIMITATION.
6.2. Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, OBI AND ITS DATA SUPPLIERS MAKE NO WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE OBI PRODUCTS OR THE USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE ACCURACY OF THE UNDERLYING CONTENT AND IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE OBI PRODUCTS ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS.
6.3. OBI Content Inaccuracies. Customer acknowledges and agrees that the OBI Products may include inaccuracies or typographical errors and that OBI shall not have any liability in connection herewith. Changes are periodically made to the OBI Products. OBI may make improvements and/or changes to the OBI Products described herein at any time.
6.4. Third Party Sources. Customer acknowledges and agrees that the sources from which OBI gathers data for incorporation into the OBI Products may have the right to unilaterally terminate provision of such data, or portions thereof, to OBI with or without notice and that neither OBI nor any such source shall have any liability in connection herewith.
6.6. Limitations on AVM Values. The OBI Content may include Automated Valuation Model property valuation estimates (“AVM Values”). Any such AVM Values do not constitute an appraisal of the subject property. They should not be relied upon in lieu of an appraisal or underwriting process. The value reports are based upon data collected from public record sources. THE ACCURACY OF THE METHODOLOGY USED TO DEVELOP THE REPORTS, THE EXISTENCE OF THE SUBJECT PROPERTY, AND THE ACCURACY OF THE ESTIMATED VALUE AND ALL RULE SETS PROVIDED ARE ESTIMATES BASED ON AVAILABLE DATA AND ARE NOT GUARANTEED OR WARRANTED. The condition of the subject property and current market conditions can greatly affect the validity of the AVM Values. Any AVM Value generated does not include a physical inspection of the subject property or a visual inspection or analysis of current market conditions by a licensed or certified appraiser, which is typically included in an appraisal.
7.1. Entire Agreement. These Terms (including the Order Form(s), all of which are a part hereof), contain the entire understanding of the parties hereto with respect to the subject matter contained herein, supersede and cancel all prior agreements, negotiations, correspondence, undertakings and communications of the parties, oral or written, respecting such subject. There are no restrictions, promises, representations, warranties, agreements or undertakings of any party hereto with respect to the transactions under these Terms other than those set forth or made hereunder in the Order Form referenced above.
7.2. Assignment. Customer may not assign any of its rights or obligations under these Terms without the prior written consent OBI and any attempted assignment in contravention of this provision shall be void and of no further force and effect. OBI may assign these Terms or any given Order Form without limitation, including to an acquirer of all or a substantial portion of its business or assets.
7.3. No Third Party Beneficiaries. These Terms shall inure solely to the benefit of and be binding upon OBI and Customer and their respective successors and permitted assigns and no other person shall have any right, remedy or claim under or by reason of these Terms.
7.4. Governing Law; Consent to Jurisdiction and Service of Process. These Terms shall be governed by and interpreted in accordance with the internal laws of the State of New York, without regard to the conflicts of law provisions thereof. (a) The parties hereto agree that any action, suit or proceeding (a “Proceeding”) arising out of the transactions contemplated by these Terms (including in respect of or under any other agreement or instrument executed and delivered in connection with such transactions) shall be commenced and litigated exclusively in the courts of the United States of America sitting in the Borough of Manhattan in the City of New York; and (b) the further agrees that service of process or notice in any such action, suit or proceeding shall be effective if in writing and delivered in the manner required by Section 7.6 herein.
7.5. Severability. Any term or provision of these Terms that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
7.6. Notices. All notices, demands and other communications to be given or delivered under or by reason of the provisions of these Terms will be in writing and will be deemed to have been given (i) immediately when personally delivered; (ii) after one (1) day if sent by overnight courier; or (iii) after five (5) days if sent by registered or certified mail, postage prepaid. Notices, requests, demands and other communications to OBI and Customer will, unless another address is specified in writing, be sent to the addresses set forth on the Order Form. Any party hereto may change its address for receiving notices, requests and other documents by giving written notice of such change to the other party hereto.
7.7. Force Majeure. None of the parties hereto will bear any responsibility or liability arising out of any delay or interruption of their performance of obligations under these Terms due to any act of God, act of governmental authority, act of the public enemy, or due to war, riot, terrorism, flood, civil commotion, insurrection, labor difficulty, severe or adverse weather conditions, lack or shortage of electrical power, malfunctions of equipment or software programs or any other cause beyond the reasonable control of the party delayed.
7.8. Injunctive Relief. Customer acknowledges that a breach, actual or threatened, of any term or condition of these Terms by Customer and/or the Customer Customers will cause immediate and irreparable harm to OBI, and that OBI, its agents and representatives shall be entitled to immediate injunctive relief and/or specific performance from a court of competent jurisdiction, without having to prove irreparable harm and Customer shall stipulate to such court that such irreparable harm exists. Such remedy shall not be deemed to be the exclusive remedy for any such breach of these Terms but shall be in addition to all other remedies available at law or in equity.
7.9. Section Headings. The section headings contained in these Terms are for reference purposes only and shall not affect in any way the meaning or interpretation of these Terms.
If you have questions, suggestions, or wish to make a complaint, please contact us at:
85 Broad Street, Floor 27
New York, NY 10004
Last Updated: September 29, 2017
Onboard is always here for you. Complete the form below to reach our customer support team.