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 ATTOM Products, Customer will be deemed to have accepted these Terms. If an individual is using the ATTOM 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 ATTOM Products on behalf of Customer and they must discontinue all use of the ATTOM Products immediately.
The Customer and ATTOM, each of whom may hereinafter be referred to as a “Party”, and collectively as the “Parties” hereby agree as follows:
WHEREAS, ATTOM develops and markets local data and property information and obtains additional information and resources from independent suppliers who have authorized ATTOM to re-license portions of their data and software applications (“Suppliers”), which ATTOM incorporates with its data (collectively the “ATTOM Content”) to create a variety of proprietary information products, which shall be made available via a real-time query application programming interface (“ATTOM API”) as more fully set forth herein (the ATTOM Content and ATTOM API shall collectively be referred to as the “ATTOM Products”);
WHEREAS, Customer wishes to internally test and license certain ATTOM Content from ATTOM in accordance with the terms and conditions set forth herein.
1. ATTOM OBLIGATIONS
1.1. License for ATTOM Products. In consideration for the fees defined herein, all to be paid by Customer to ATTOM in compliance with the terms and conditions hereof, ATTOM grants Customer a non-exclusive, limited term, revocable, nontransferable, non-sublicensable worldwide license (the “License”) to access and use the ATTOM Products, solely for the purposes explicitly identified herein and subject to the terms and conditions herein.
1.2. Permitted Uses. Customer may utilize the ATTOM Products solely to test and evaluate the ATTOM Products for the purpose of determining whether to enter into a subsequent data license agreement (the “Permitted Uses”). The scope of this license is limited to Customer’s internal evaluation only and does not include or permit any other use of the ATTOM Products, including but not limited to any form of commercial exploitation or revenue generation whatsoever.
1.3. Specific Restrictions. Except for the License and Permitted Uses expressly granted by ATTOM to Customer in the ATTOM Products as set forth in herein, any other use whatsoever of the ATTOM Products by Customer is strictly prohibited (a “Prohibited Use”) and any such Prohibited Use shall be deemed a breach of these Terms entitling ATTOM 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 ATTOM Products in any knowing violation of any applicable laws, regulations or governmental orders; (ii) conversion of the ATTOM Products to, or putting same into, a file format designed to permit end users to download material portions of the ATTOM Products; (iii) using the ATTOM Products to create, enhance or structure any database in any form; (iv) disclosure, use, dissemination, reproduction or publishing of any portion of the ATTOM Products, 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 ATTOM Products to any third party; (v) permitting any of Customer’s parent(s), subsidiaries, affiliated entities or other third parties to use the ATTOM Products or any portion thereof for any purpose whatsoever; (vi) caching or otherwise storing the ATTOM Content provided through the ATTOM API for a period of greater than twenty-four (24) hours; (vii) using any element or component of the ATTOM 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. ATTOM Ownership Rights. Customer acknowledges and agrees that ATTOM (and its Suppliers where appropriate) shall retain all ownership, rights and title in and to: (i) the ATTOM Content; (ii) the ATTOM Products; (iii) all ATTOM brand features and trademarks; (iv) all underlying data, compilations and preparation of the ATTOM Products; (v) all other compilations and publications created, prepared or authored by ATTOM not consisting of the ATTOM Products; (vi) any and all enhancements to the ATTOM 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 ATTOM, and any related proprietary rights under U.S. or foreign law (collectively, the “ATTOM Proprietary Rights”). Customer agrees to assist ATTOM, at ATTOM’s expense, to obtain, secure, perfect, maintain, defend and enforce, for ATTOM’s benefit, all ATTOM Proprietary Rights with respect to such properties. Customer shall neither register nor use any ATTOM 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 ATTOM’s Proprietary Rights, except as specifically provided herein.
3.1. Monthly Billing. The amount due ATTOM 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 ATTOM Products determined solely by ATTOM’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 ATTOM 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 ATTOM Products without ATTOM 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 ATTOM 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. ATTOM 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. ATTOM 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 ATTOM. Customer shall not have the right to set-off, compensate or make any deduction from such fee or other payments for any reason. ATTOM 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 ATTOM in the enforcement of the provisions hereof.
3.4. Billing Error. If Customer believes that Customer has been billed in error, Customer must contact ATTOM’s customer service immediately, and in no event more than fifteen (15) days following the date Customer is billed. Failure to timely notify ATTOM 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 ATTOM at law, in equity, under contract (including these Terms), or otherwise, all of which are hereby expressly reserved, ATTOM 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 ATTOM, unless ATTOM authorizes otherwise; ATTOM 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 ATTOM. Customer’s access to the ATTOM Products may be suspended or terminated if Customer’s payment is past due. ATTOM may also suspend or terminate Customer’s access to the ATTOM Products if it is determined that there is previously unpaid, undisputed, and outstanding amounts due with respect to the ATTOM 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 ATTOM Products is suspended any applicable promotional offers may be discontinued and revoked as determined solely by ATTOM. Customer may be charged a fee to restore Customer’s access to the ATTOM Products. In addition, ATTOM may immediately terminate all or a portion of Customer’s access to the ATTOM Products or suspend Customer’s access to the ATTOM Products, without notice, for conduct that ATTOM 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 ATTOM may refer such use to law enforcement authorities without notice to Customer. For clarity, termination or suspension by ATTOM of the ATTOM 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 ATTOM Products for a limited period of time free of charge, as may be set forth on the ATTOM 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 ATTOM Content, a limited number of calls to the ATTOM Products, a limited territory and/or a limited time period for the free trial. When Customer agrees to a free trial for the ATTOM Products, Customer may be asked to authorize, and by accepting these Terms, Customer hereby expressly authorizes ATTOM to charge the applicable fees for such ATTOM Products to Customer's designated billing payment method upon the expiration of the free trial, in each case, as set forth on the ATTOM website or in a given Order Form. Unless otherwise set forth on the ATTOM website or a given Order Form, upon the expiration of a free trial, Customer will only be able to access the ATTOM Products in connection with a paid license, on a pay-per-transaction basis or as otherwise described on the ATTOM website or a given Order Form.
4. TERM AND TERMINATION
4.1. Term. The Term shall commence on the date Customer accepts these Terms (the “Effective Date”) and will remain effective for ninety days (the "Initial Term"). These Terms may also be terminated by either party with five (5) calendar days’ notice. Upon termination or expiration of these Terms, Customer shall: (i) immediately cease using the ATTOM Content, (ii) purge and delete the ATTOM Content from its files, systems, and overall computing environment, and (iii) certify to ATTOM in an affidavit of destruction signed by Customer within ten (10) business days following the termination or natural expiration that cessation, purge, deletion and destruction of the ATTOM Content has occurred.
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 ATTOM 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 ATTOM 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 ATTOM 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 ATTOM 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 ATTOM PRODUCTS, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE AND REGARDLESS OF THE NUMBER OR TIMING OF CLAIMS, ONE HUNDRED DOLLARS, AND CUSTOMER HEREBY RELEASES ATTOM 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, ATTOM AND ITS DATA SUPPLIERS MAKE NO WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE ATTOM 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 ATTOM PRODUCTS ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS.
6.3. ATTOM Content Inaccuracies. Customer acknowledges and agrees that the ATTOM Products may include inaccuracies or typographical errors and that ATTOM shall not have any liability in connection herewith. Changes are periodically made to the ATTOM Products. ATTOM may make improvements and/or changes to the ATTOM Products described herein at any time.
6.4. Third Party Sources. Customer acknowledges and agrees that the sources from which ATTOM gathers data for incorporation into the ATTOM Products may have the right to unilaterally terminate provision of such data, or portions thereof, to ATTOM with or without notice and that neither ATTOM nor any such source shall have any liability in connection herewith.
6.5. Indemnification. Customer agrees to indemnify, defend and hold harmless ATTOM and its officers, directors, employees and agents from and against any and all losses, costs, expenses, liabilities or damages (including, without limitation, attorneys' fees, expenses and disbursements) relating to or arising out of any use by Customer of ATTOM Products.
6.6. Limitations on AVM Values. The ATTOM 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 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.
7.2. Assignment. Customer may not assign any of its rights or obligations under these Terms without the prior written consent ATTOM and any attempted assignment in contravention of this provision shall be void and of no further force and effect. ATTOM may assign these Terms 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 ATTOM 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 California, 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 Orange County, California; 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 ATTOM and Customer will, unless another address is specified in writing, be sent to the addresses set forth on the sign up form or below (for ATTOM). 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 will cause immediate and irreparable harm to ATTOM, and that ATTOM, 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:
ATTOM Data Solutions
1 Venture Plaza, Suite 300
Irvine, CA 92618
Last Updated: July 5, 2018