Marshall & Swift License Agreement

Marshall & Swift License Agreement

This License Agreement (this “Agreement”) is a legal agreement between you individually (“You” or “Your”) or, if You are authorized to license or acquire the Software or Publication (defined below) on behalf of a company, legal entity or organization, between the entity for whose benefit You act, together with its employees and agents, (in which event “You” or “Your” shall also refer to such entity and its employees and agents), and Marshall & Swift/Boeckh, LLC, a service providing affiliate of CoreLogic Solutions, LLC, (“MSB”).

By any or all of the following means: (a) indicating Your acceptance by clicking on the appropriate button below; (b) opening the accompanying Software or Publication package, or (c) installing, activating or using the Software or Publication, You are agreeing to be bound by the terms of this Agreement. If, prior to opening, installing, activating or using the Software or Publication, You decide You are unwilling to agree to the terms of this Agreement, You have no right to use this Software or Publication and should immediately disable it and return it to MSB along with all packaging and documentation.

1.     Definitions

“MSB Data” means building characteristics data, construction costs, replacement costs, market information, property information or any other figures, data, costs or information compiled by MSB, its affiliates or licensors.

“MSB Proprietary Information” means any content, code, systems, methodologies, forms, algorithms, scripts, logic processes, methods of delivery and distribution, methods of gathering and managing data or any and all other related information delivered by MSB to You or used by MSB to provide the Software or Publication (including without limitation such information embedded in the Software or Publication).

“Publication” means an MSB manual, book, index, brochure, factor or other paper, or MSB Data product.

“Software” means MSB software and technology (including hosting services and linking technologies). The Software may be delivered on a memory card or CD ROM; via down- loading or access to an intranet or internet site; or in any other media or through any other delivery mechanism selected by MSB. The Software may be used on a personal computer, mainframe, or any other technology platform permitted by MSB.

2.     License grant

MSB hereby grants You a non-exclusive, non-transferable, revocable limited license specific to You to 1) use one copy of the object code version of the Software on a single, stand-alone computer, and 2) use the Publication or Software, both in the United States and Canada (unless another geographic location is permitted by MSB) for Your internal business purposes in connection with generating replacement costs for appraisal or assessment purposes only (the “Licensed Use”). Use or disclosure of MSB Data, Software, Publications, or MSB Proprietary information in any adjudicative proceeding is not an internal business purpose and such use or disclosure is acknowledged by You to be an immediate material breach of this Agreement under 2.1 (j). The Software or Publication may be used by only a single user. For the avoidance of doubt, ‘single user’ means one individual and does not include (a) separate individual users of the Software who use a single log-in credential either simultaneously or at different times, or (b) separate individual users who use the Publication when it is located or accessible in a common area where one or more individuals can use the Publication separately or simultaneously. A common area includes but is not limited to a library or cafeteria. If You wish to use the Software or Publication for more users, You must record such users with MSB and secure additional licenses. MSB shall have the right to audit Your use of the Software or Publication during term of this License Agreement and for a period of one (1) year after it expires. MSB shall pay for each audit unless the audit reveals a material breach of this Agreement by You, in which case the reasonable cost of the audit shall be paid by You. This Agreement must be retained as Your proof of license granted by MSB. This Agreement is for a license and not a sale.

2.1.   License restrictions

The following restrictions shall apply to Your use of the Software or Publication. You MAY NOT: (a) use the Software on a local area network environment without the express prior written consent of MSB and provided that the total number of users, at all times, are recorded with MSB; (b) use the Software or Publication for the purpose of creating building replacement cost estimates or valuations to be used for ad valorem/property tax computer assisted mass appraisal (“CAMA”) systems unless You first obtain MSB’s express prior written consent and payment of applicable fees; (c) use and/or integrate a third party computer program (whether or not such program was developed by MSB or licensed to MSB by a third party) with the Software or Publication, including, but not limited to, a program designed for the purposes of data collection, assimilation, arrangement, or to be used in conjunction with the Software, without the prior written consent of MSB and payment of applicable fees to MSB; (d) rent, sell, lease, sublicense, assign, trans- fer, lend, give, modify, translate, time-share, publish, electronically transmit or receive or otherwise convey or permit access to the Software or Publication or a copy to any third party, either in a tangible form or electronically, including, but not limited to, through a reseller relationship, multiple access arrangement (such as a service bureau network), time sharing arrangement, multiple CPUs, or otherwise without the prior written consent of MSB; (e) develop a database, data compilation, data set or other data grouping containing the Software, Publication or MSB Data or MSB Proprietary Information; (f) use the Software or Publication if You are an insurance company, company acting as a property casualty insurer, insurance agent, insurance adjuster or inspection vendor (or a person working on behalf of or in connection with those companies) without MSB’s prior written consent; (g) reproduce or copy the Software or Publication (or part or component thereof) in any form or by any means (graphic, electronic, mechanical or otherwise), including, but not limited to, photo- copying, recording, taping or storage on a database, retrieval system, or intranet or internet website without the prior written consent of MSB; (h) use the Software or Publication to calculate or support the calculation of replacement costs or otherwise in connection with the furnishing of building permits by local, state or federal government unless You receive prior written consent from MSB or (i) use the Software or Publication for cost segregation calculation, valuations or reports unless You receive prior written consent from MSB; (j) translate, modify, reverse engineer, decompile or disassemble or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats, programming or interoperability interfaces of the Software or Publication by any means whatsoever, or merge any part of the Software, Publication, MSB Data or MSB Proprietary Information into another program, copy or create derivative works based on the Software, Publication, MSB Data or MSB Proprietary Information (k) use the MSB Data, Software, Publication or MSB Proprietary Information as or produce as, evidence in any adjudicative proceeding within which MSB is not a named party other than as permitted in Section 11.

You shall not develop, reproduce or market any separate system or systems based on the Software or Publication (or any part or component thereof) or related user documentation, or any data or software system contained within the Software, or on the MSB system.

3.     Ownership

The Software, Publication, MSB Data and MSB Proprietary Information (as defined below), and all copies thereof, are subject to protection under copyright law, patent law, trade secret law and other intellectual property laws of the United States, Canada and other jurisdictions. MSB and its licensors exclusively own and retain all right, title and interest in and to the Software (including the media on which it is recorded, and all subsequent copies of the Software, regardless of the form or media in or on which the original and other copies may exist), Publication, MSB Data and MSB Proprietary Information, including without limitation, all copyright, patent, trademark and trade secret rights. Except as stated in Section 2, this Agreement does not grant You any intellectual property rights in the Software or Publication and MSB shall own all rights, title and interest in and to any modifications made by You to the MSB Data, including without limitation, all copyright, patent, trademark and trade secret rights.

4.     Not a sale

This license is not a sale. This Agreement only gives You some rights to use the Software or Publication. MSB reserves all other rights. Unless applicable law gives You more rights despite this limitation, You may use the Software or Publication only as expressly permitted in this Agreement. In doing so, You must comply with any technical limitations in the Software that only allow you to use it in certain ways. You, and not MSB, shall obtain, maintain and operate, or cause to be obtained, maintained and operated at Your own expense, all hardware, equipment and non-MSB software required to interface properly with the Software.

5.     Confidentiality

The Software, Publication, MSB Data and MSB Proprietary Information are MSB’s confidential and proprietary information and You will use at least the same care and precaution in protecting them as You use to protect Your own confidential information, and in no event less than reasonable care, and cause your employees to do the same. You will not duplicate (other than as provided in Section 2) or disclose any of MSB’s confidential and proprietary information to any third party. Your duty of confidentiality continues after termination of the license.

6.     Limitation on liability and remedies

MSB’s entire liability and Your exclusive remedy shall be the replacement of electronic media that has defects in materials and workmanship, when it is returned to MSB or an authorized MSB dealer with a copy of Your invoice. If there is an error or omission in the Software or Publication, MSB’s sole liability will be to attempt to remedy the error when MSB is notified or becomes aware of its existence. IN NO EVENT WILL MSB BE LIABLE TO YOU FOR ANY DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF YOUR USE OF THE SOFTWARE AND/OR PUBLICAITON, EVEN IF MSB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some states do not allow the exclusion or limitation or indirect, special or consequential damages, so the above limitation may not apply to You.

7.     Disclaimer of warranties

MSB DOES NOT GUARANTEE OR WARRANTY THE ACCURACY AND COMPLETENESS OF THE SOFTWARE OR PUBLICATION. MSB DOES NOT INDEPENDENTLY VERIFY THE COMPLETENESS, ACCURACY OR AUTHENTICITY OF THE MSB DATA, MSB PROPRIETARY INFORMATION, PUBLIC INFORMATION OR THIRD PARTY INFORMATION CONTAINED IN THE SOFTWARE OR PUBLICATION. THE INFORMATION REPORTED TO MSB AND THE MSB DATA MAY BE SUBJECT TO TRANSCRIPTION OR TRANSMISSION ERRORS. THE SOFTWARE AND/OR PUBLICATION IS SUPPLIED BY MSB TO YOU ON AN “AS IS” BASIS. MSB DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SOFTWARE OR PUBLICATION. If applicable law gives You implied warranties, guarantees or conditions despite these exclusions, those warranties will be limited to one year and Licensee’s remedies will be limited to the maximum extent allowed by Section 6. After initial release of the Software, MSB shall support only two (2) versions (current and the immediately preceding version) of the Software.

8.     Indemnification

You will indemnify, defend and hold MSB harmless from any and all losses, costs, damages, expenses, liabilities or claims, including, without limitation, reasonable attorney’s fees and discovery request expenses, arising out of Your use of the Software and/or Publication (including any insurance policy issued, insurance claims adjusted or process, transaction, business practice or policy by You beyond MSB’s control). You assume the liability for all damages, losses, costs or expenses which result from (a) the use of the Software or Publication by You for any purpose other than the Licensed Use; (b) disclosure of the Software or Publication (or any component parts thereof) by You to any third party; or (c) the use of the Software or Publication by any third party caused by the unauthorized disclosure or dissemination by You.

9.     Export compliance

The Software is subject to export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Software.

10.   U.S. Government restricted rights

The Software or Publication is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government is subject to restrictions as set forth in DFARS 227.7202 or in FAR 52.227-19, or their successors as applicable. Software is provided with restricted rights subject to subparagraphs (C) (1) and (2) of the Commercial Computer Software-Restricted Rights clause at 48 C.F.R. 52.227-19. Software is classified as “Commercial Computer Software” and “Commercial Computer Documentation” developed at private expense, contains confidential information and trade secrets of MSB and its licensors, and is subject to “Restricted Rights” as that term is defined in the Federal Acquisition Regulations (“FARs”). Contractor/Manufacturer is MSB.

11.   Legal process

You agree that You will not disclose the Software or Publication to any third party without MSB’s prior approval. If You are requested to disclose the Software or Publication to any third party, You will give MSB timely, prompt written notice of the request, and allow MSB the opportunity to object to the disclosure, or seek a protective order, confidential treatment and/or other legal remedy prior to complying with the request. Notwithstanding the foregoing, if ordered by a court of law or governing agency to disclose the Software or Publication or over MSB’s objection, You shall only disclose that portion of the Software or Publication required to comply with the order and only for the duration required.

12.   Breach

You acknowledge that a breach or threatened breach of the license may, as determined by a court of competent jurisdiction, result in irreparable and continuing damage to MSB for which monetary damages may not be sufficient, and agrees that MSB will be entitled to seek, in addition to its other rights and remedies under this Agreement or at law, injunctive or other equitable relief without the necessity of posting a bond or proving actual damages, and such further relief as may be proper from a court of competent jurisdiction. Nothing herein shall preclude MSB from pursuing any action or other remedy for any breach or threatened breach of this Agreement, all of which remedies shall be cumulative. In the event that MSB prevails in such action, MSB shall be entitled to recover from You reasonable attorney’s fees incurred in connection therewith.

13.   Term, termination and payment

You will pay MSB all applicable annual license fees and sales tax in accordance with the payment terms and conditions applicable to the Software or Publication. If You pay via credit card, MSB will charge Your credit card for all subsequent renewal fees. A breach of any restriction in Section 2.1 will be deemed a material breach under this Agreement and the license granted under Section 2 will terminate immediately at the time of such breach and be rendered void. Either party may also terminate this Agreement for breach of contract, other than breaches of Section 2.1, by the other party or if the other party is in default of any obligation under this Agreement which default is incapable of cure or which, being capable of cure, has not been cured within thirty (30) calendar days after receipt of notice of such default, by serving thirty (30) days’ prior written notice of termination. Upon termination of this Agreement for any reason, You shall immediately discontinue all use of the Software or Publication and shall immediately return the Software or Publication, and all copies within Your possession or control, to MSB.

14.   Force majeure

MSB shall not be responsible for any failure or delay in performance under this Agreement due to causes beyond its reasonable control, including without limitation, acts of God, fire, natural disaster, civil disturbances, mechanical or computer failure, legal restrictions, terrorist activity, strike, war, or any other similar catastrophe. In such cases, performance by MSB of this Agreement shall be suspended without liability for the period of delay reasonably attributable to such causes, including recovery time.

15.   Governing law

This Agreement shall be construed in accordance with and governed by the internal laws of the State of California (without regard to its conflicts of laws principles), except as to copyright, trademark and patent matters which shall be governed by the laws of the United States. The Agreement is not and will not be subject to the Uniform Computer Information Transactions Act (prepared by the National Conference of Commissioners on Uniform State Laws) as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction. If any provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired. The failure of either party to enforce a right available under this Agreement shall not be deemed a waiver of the right. This Agreement is personal to You and You may not assign this Agreement or delegate Your obligations under this Agreement without the prior written consent of MSB. Paragraph headings are for convenience only and are not a part of this Agreement. This is Agreement is dated March 1, 2020, and supersedes and replaces any prior license You have been granted for the Software or Publication in its entirety.

16  

In addition to any damages or remedies to which MSB is entitled for breach of this Agreement, for a breach of Section 2.1, the parties agree that MSB shall be entitled to the following specified payments and an injunction against any acts which would result in a continued breach of Section 2.1:

1. For each act prohibited under Section 2.1(a), an amount equal to the total number of all network users at Your business times 115% of the license fee MSB charges at the time of such breach for a single user license on the terms set out in Section 2.1 or $150,000, whichever is the greatest.

2. For each act prohibited under Section 2.1(b), an amount equal to 5% of the cumulative value of all properties for which cost estimates or valuations were created in breach of Section 2.1(b), an amount equal to 115% of the ”required fees” referenced in Section 2.1(b), or $150,000, whichever amount is the greatest.

3. For each act prohibited under Section 2.1(c), an amount equal to $150,000.

4. For each act prohibited under Section 2.1(d), an amount equal the total number of unlicensed parties having access to the Publication or Software as a result of the acts times 115% of the license fee MSB charged at the time of such breach for a single user license on the terms set out in Section 2.1 or $150,000, whichever is greater.

5. For each act prohibited under Section 2.1(e), the value of any developments or derivative works made as part of the breach of Section 2.1(e) or an amount equal to $150,000, whichever is greater.

6. For each act prohibited under Section 2.1(f), an amount equal to 5% of the cumulative value of all properties for which cost estimates or valuations were created as a result of the breach of Section 2.1(f) or $150,000, whichever amount is the greatest.

7. For each act prohibited under Section 2.1(g), an amount equal the total number of copies of the Publication or Software times 115% of the license fee MSB charged at the time of such breach for a single user license on the terms set out in Section 2.1 or $150,000, whichever is greater.

8. For each act prohibited under Section 2.1(h), an amount equal to 5% of the cumulative value of all properties for which cost estimates or valuations were created as part of the breach of Section 2.1(h) or $150,000, whichever is greater.

9. For each act prohibited under 2.1(i), an amount equal to 5% of the of the cumulative value of all properties for which cost estimates or valuations were created as part of the breach of section 2.1(i) or $150,000, whichever is greater;

10. For each act prohibited under Section 2.1(j), the value of any developments or derivative works made as part of the breach of Section 2.1(j) or an amount equal to $150,000, whichever is greater.

11. For each act prohibited under Section 2.1(k), the amount in dispute in such litigation, the total of all amounts awarded in such litigation, or an amount equal to $150,000, whichever is greater.

In addition to the payments set out in this Section 16, interest shall be due to MSB on these payments. In particular, the payments shall become due immediately upon breach of Section 2.1, and shall begin accruing interest, compounded monthly, at 2 percentage points over the Wall Street Journal Prime Rate for each respective month for which interest is to be paid. In addition, You shall pay MSB all i) reasonable attorney’s fees and all costs (internal or paid to third parties), and ii) all technical fees or costs (internal or paid to third parties) incurred by MSB to make a claim, or pursue damages or injunctive relieve as a result of a breach of this Agreement.

If You have any questions concerning this Agreement, contact Contract Management at: CoreLogic, Inc., 10700 W Research Drive, Suite 200, Wauwatosa, WI 53226. The customer support telephone number is (800) 544-2678.

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT THE TERMS AND CONDITIONS STATED HEREIN CONSTITUTE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND MSB AND SUPERSEDES ALL PROPOSALS, PRIOR OR CONTEMPORANEOUS AGREEMENTS OR OTHER COMMUNICATIONS (ORAL OR WRITTEN) BETWEEN YOU AND US RELAT- ING TO THE SUBJECT MATTER OR THIS AGREEMENT.