“Company Data” means any information or data owned or licensed by Company and made available to Customer through the Service, including without limitation, Financing Source Data.
“Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including all copies thereof. For the sake of clarity: (a) Confidential Information of Customer includes Customer Data; (b) Confidential Information of Company includes the Service (including its software and content, other than Customer Data) and Company Data; and (c) Confidential Information of each Party includes the terms of this Agreement. Notwithstanding anything herein to the contrary, Confidential Information will not include any information that: (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without use of or reliance on the Confidential Information of the Disclosing Party.
“Customer Data” means all data, content, and information submitted by Customer to the Service.
“Financing” means a mortgage debt financing, mezzanine financing, or equity placement for the Properties.
“Financing Source(s)” means financial institutions providing Financing proposals to Customer through the Service.
“Financing Source Data” means any products, services, or information that is made available to Customer or offered to Customer by Financing Sources via the Service, including without limitation any offers, terms, and/or other proposals or commitments obtained by Customer through the Service from Financing Sources in connection with the Financing of the Properties and contact information for Financing Sources.
“Property(ies)” means those properties for which Customer is using the Service to seek Financing, including without limitation “Properties” identified in an Order Form, if any.
“Referred Source” means any Financing Source Company introduced Customer to or presented to Customer via the Service
“Service” means Company’s platform known as “Lev Match” that connects Customers with Financing Sources and assists business entities in finding and evaluating Financing proposal Financing Sources (excluding Financing Source Data).
2.1. Provision of the Service. Subject to the terms and conditions of this Agreement and during the Term, Company will make the Service available to Customer solely to arrange, negotiate, evaluate, and obtain offers, terms, or other proposals or commitments from Financing Sources for the Financing of Properties.
2.2. Company Provides a Marketplace. Company provides a marketplace that allows customers to search for and interact with appropriate Financing Sources in connection with a Financing. Company does not provide any lending to Customer in connection with any Financing. Customer is contracting directly with the Financing Source in connection with each Financing and Company is not a party to such agreement. While Company may, in its discretion, help facilitate the resolution of disputes between Customer and Financing Sources, Company has no control over and does not guarantee (a) the terms and conditions and legality of any proposals made by Financing Sources, (b) the truth, accuracy or reliability of any Financing Source Data, (c) the ability of the Financing Source to close a Financing, or (d) that a Financing Source will complete and close a Financing at all, or upon the terms proposed to Customer. Customer is responsible for doing its own due diligence in regards to any Financing Source, Financing Source Data, and Financing.
2.3. Updates and Upgrades. The terms of this Agreement will also apply to updates and upgrades of the Service subsequently provided by Company to Customer. Company may update the functionality, user interfaces and usability from time to time in its sole discretion as part of its ongoing mission to improve the Service.
2.4. Protection of Customer Data. Company will maintain commercially reasonable administrative, physical, and technical safeguards designed to prevent unauthorized access to or use of Customer Data.
2.5. Compliance with Laws. Company will comply with all laws applicable to Company’s provisioning of the Service to its customers generally (i.e., without regard to the specific nature of the Customer Data or Customer’s particular use of the Service).
3.1. Account Creation. In order to access the Service, Customer is required to register an account on the Service (“Account”). Customer is responsible for maintaining the confidentiality of its logins, passwords, and accounts and for all activities that occur under its Account. Customer will: (a) be responsible for the accuracy, appropriateness, and legality of Customer Data; (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and promptly notify Company of any such unauthorized access or use; and (c) use the Services only in accordance with applicable laws and government regulations.
3.2. Usage Restrictions. Customer may not, and will not allow any other persons to: (a) make the Service or Company Data available to, or use the Service or Company Data for the benefit of, anyone other than Customer in connection with the Properties; (b) upload, post, transmit, or otherwise make available to the Service any content that (i) is unlawful or tortious, or (ii) Customer does not have a right to make available under any applicable law or under contractual or fiduciary relationships, or that infringes, misappropriates, or otherwise violates any intellectual property, privacy, publicity, or other proprietary rights of any person; (c) sublicense, resell, time share, or similarly exploit the Service or Company Data; (d) upload, post, transmit, or otherwise make available any content or information designed to interrupt, interfere with, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (e) reverse engineer, modify, adapt, or hack the Service, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks; (f) frame or utilize framing techniques to enclose any trademark, logo, or other portions of the Service (including images, text, page layout or form); (g) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Service; or (h) access the Service to build a competitive product or service.
3.3. Subverting the Platform. It is a material breach of this Agreement to arrange for and close on a Financing with a Referred Source outside the context of the Service for the purposes of circumventing the obligation to pay the Company’s fee in connection with such Financing.
4.1. Company Data. Subject to the terms and conditions herein, Company hereby grants to Customer a limited, revocable, worldwide, non-exclusive, non-sublicensable, non-transferable right and license to use the Company Data during the Term solely to arrange, negotiate, evaluate, and obtain offers, terms, or other proposals or commitments from Financing Sources for the Financing of Properties. Company will not, nor will they allow any other persons to, allow third parties to gain access to the Company Data (other than Customer’s authorized employees). Customer acknowledges and agrees that it is fully responsible and liable for any act or omission of its authorized employees.
4.2. Customer Data. Customer grants to Company and its affiliates a worldwide, non-exclusive, limited term license to access, use, copy, distribute, perform, and display Customer Data, and provide necessary access to third party service providers acting on Company’s behalf, such as Company’s hosting services provider and potential Financing Sources: (a) to fulfill its obligations and provide the services to Customer; (b) to provide, maintain, and update the Service; (b) to prevent or address service or technical problems or at Customer’s request in connection with support matters; (c) as compelled by law; and (d) as expressly permitted in writing by Customer. Customer warrants that it has obtained and will maintain all rights, consents, and permissions necessary for Customer to make available the Customer Data to Company for its use as contemplated herein. Company has no obligations to store any Customer Data or results from Customer’s use of the Service, including Financing Source Data. Company has no responsibility or liability for the deletion of any Customer Data or Financing Source Data; the failure to store, transmit or receive transmission of Customer Data or Financing Source Data; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Service. Customer agrees that Company retains the right to create reasonable limits on Customer’s use and storage of Customer Data, such as limits on file size, storage space, processing capacity, and similar limits as otherwise determined by Company in its sole discretion. Company will not be responsible for any use, disclosure, modification or deletion of such Customer Data by any Financing Source.
5.1. Fees, Invoicing, and Payment. Customer will pay all fees specified in the Order Form, including without limitation any platform license fee (“Platform License Fee”). Except as otherwise stated herein, payment obligations are non-cancelable and fees paid are non-refundable. Unless stated otherwise in the Order Form, all Platform License Fees shall be paid in advance. Customer agrees to pay all applicable taxes levied by any tax authority on the Service or Customer’s use thereof, or on any other services provided by Company, excluding taxes based on the net income of Company.
6.1. By Company. Subject to the limited rights expressly granted to Customer hereunder, Company reserves and retains, and as between Company and Customer, Company exclusively owns, all rights, title, and interest in and to the Company Data and Service, including all modifications, derivative works, upgrades, and updates thereto, and all related intellectual property rights therein. No rights are granted by Company hereunder other than as expressly set forth herein. If Customer provides Company any feedback or suggestions regarding the Service, then Customer grants Company an unlimited, irrevocable, perpetual, sublicensable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to Customer.
6.2. By Customer. Subject to the limited licenses granted herein, Company acquires no right, title or interest under this Agreement in or to any Customer Data.
6.3. Analyses. Customer acknowledges and agrees that Company may, during and after the Term, (i) compile statistical and other information related to the performance, operation, and use of the Service, and (ii) collect, use, and analyze information derived from Customer Data in aggregated and de-identified form (collectively “Analyses”), to create statistical analyses, to improve and enhance the Service, and for research and development purposes in connection with the Service or any other Company offerings. Company retains all right, title, and interest, including all intellectual property rights, in and to Analyses.
7.1. Protection. The Receiving Party will: (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (c) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of the Receiving Party’s and its affiliates’ employees, contractors, and agents who need such access for purposes consistent with this Agreement and who are subject to confidentiality obligations at least as restrictive as those herein. The Receiving Party will provide prompt written notice to the Disclosing Party of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information. Upon request of the Disclosing Party during the Term, the Receiving Party will promptly return, or at the Disclosing Party’s option destroy, any or all Confidential Information of the Disclosing Party in the Receiving Party’s possession or under its control.
7.2. Compelled Disclosure. The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s expense, if the Disclosing Party wishes to contest the access or disclosure.
8.1. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, THE SERVICE, COMPANY DATA, ANY PROFESSIONAL SERVICES, AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND COMPANY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. NEITHER COMPANY NOR ITS AFFILIATES IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY FINANCING SOURCE.
9.1. Company Indemnification. Company will defend Customer and its affiliates from and against any lawsuit or proceeding brought by a third party to the extent alleging that Customer’s use of the Service as permitted hereunder infringes or misappropriates such third party’s intellectual property rights, and Company will indemnify Customer and its affiliates for any damages and any reasonable attorneys’ fees finally awarded against them arising from such lawsuit or proceeding; provided, however, that Company will have no liability under this Section to the extent any such lawsuit or proceeding arises from: (a) Customer Data or Financing Source Data; (b) Customer’s or any of its affiliates’ negligence, misconduct, or breach of this Agreement; or (c) any modification or combination of the Service that is not performed or approved by Company. This Section 9.1 states Company’s sole liability, and Customer’s exclusive remedy, for any infringement claim related to the Service.
9.2. Customer Indemnification. Customer will indemnify, defend and hold harmless Company and its affiliates from any liabilities, losses, damages and expenses (including any reasonable attorneys’ fees) arising from any third-party claim (including claims by Financing Sources) related to (a) the Customer Data; or (b) violation by Customer of any applicable laws, rules or regulations; provided, however, that Customer will have no liability under this Section to the extent any such lawsuit or proceeding arises from Company’s or any of its affiliates’ negligence, misconduct, or breach of this Agreement.
9.3. Procedures. The indemnified party will provide the indemnifying party with: (a) prompt written notice of any matter that is subject to indemnification hereunder; (b) the right to assume the exclusive defense and control of any such matter (provided that the indemnified party may participate in the defense at its own expense); and (c) cooperation with any reasonable requests assisting the indemnifying party’s defense of such matter. The indemnifying party may not settle any such lawsuit or proceeding without the indemnified party’s prior written consent.
10.1. Exclusion of Certain Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10.2. Liability Cap. EXCEPT FOR COMPANY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 7, OR FOR ITS WILLFUL MISCONDUCT, IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY RELATING TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER TO COMPANY HEREUNDER IN THE 12 MONTHS PRECEDING THE DATE ON WHICH THE FIRST CLAIM GIVING RISE TO LIABILITY AROSE UNDER THE APPLICABLE ORDER FORM.
10.3. Scope. For the avoidance of doubt, the exclusions and limitations set forth in Section 10.1 and Section 10.2 will apply with respect to all legal theories of liability, whether in contract, tort, or otherwise. The Parties agree that the exclusions and limitations set forth in Section 10.1 and Section 10.2 allocate the risks between the Parties under this Agreement, and that they have relied on these exclusions and limitations in determining whether to enter into this Agreement.
11.1. Term of the Agreement. The term of this Agreement commences on the Effective Date and, unless earlier terminated in accordance with the terms of this Agreement, will continue for the term specified in the Order Form (the “Term”).
11.2. Termination; Suspension. Company may suspend or terminate Customer’s access to the Service at any time for any reason and terminate this Agreement, in whole in part, including without limitation if: (a) Customer is using the Service in violation of this Agreement or any applicable law; (b) Customer’s systems or accounts have been compromised or unlawfully accessed; (c) suspension of the Service is necessary, in Company’s reasonable discretion, to protect the security of the Service or the infrastructure of Company or its affiliates; (d) suspension is required by applicable law; or (e) any fees owed by Customer (excluding amounts disputed in reasonable and good faith) are overdue.
11.3. Termination for Cause. Either Party may terminate this Agreement for cause, in whole or part, effective after 5 days’ written notice if the other Party materially breaches this Agreement and such breach is not cured within such 5-day period (10 days if such breach is due to non-payment by Customer).
11.4. Effects of Termination. Upon any termination for cause by Customer, or any termination without cause by Company, Company shall refund to Customer any prepaid Platform License Fees covering the remainder of the term of the Order Form after the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Company for the period prior to the effective date of termination, including without limitation any Financing fees related to Referred Sources introduced prior to the effective date of termination. Upon any termination of this Agreement and the Disclosing Party’s request, the Receiving Party will promptly return, or at the Disclosing Party’s option destroy, any or all Confidential Information of the Disclosing Party in the Receiving Party’s possession or under its control. Any section which by its nature should survive termination or expiration of the Order Form or this Agreement shall survive, including Sections 2.2, 3.2, 3.3, 5-10, 11.3, and 12.
12.1. Force Majeure. Except for payment obligations, neither Party will be liable hereunder by reason of any failure or delay in the performance of its obligations due to events beyond the reasonable control of such Party, which may include natural disasters, fires, epidemics, pandemics, riots, war, terrorism, denial of service attacks, internet outages, labor shortages, and judicial or government action.
12.2. Assignment. Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Company. Notwithstanding the foregoing, Customer may assign or transfer this Agreement in its entirety, without the consent of Company, in connection with a merger or sale of all or substantially all of its assets. Any purported assignment in violation of this Section will be null and void. This Agreement will bind and inure to the benefit of the Parties, their respective successors, and permitted assigns.
12.3. Governing Law; Venue. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of New York, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The state and federal courts located in New York County, New York will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each Party hereby consents to the exclusive jurisdiction of such courts.
12.4. Notices. All notices under this Agreement will be in writing addressed to the Parties at the addresses set forth on the Order and will be deemed to have been duly given: (a) upon receipt if personally delivered or sent by certified or registered mail with return receipt requested; and (b) the first business day after sending by email or by next day delivery by a recognized overnight delivery service.
12.5. Relationship of the Parties; Third Party Beneficiaries. The Parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. There are no third-party beneficiaries to this Agreement.
12.6. Waiver. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right.
12.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in full force and effect.
12.8. Entire Agreement. This Agreement, including any addenda hereto and all Order Forms, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter herein. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by each of the Parties. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any addendum hereto or any Order Form, the terms of such addendum or Order Form will prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in any Customer purchase order or other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void. As used herein, the words “include” and “including” shall be deemed to be followed by the words “without limitation.”