Market Data Services LLC
END USER SOFTWARE LICENSE AGREEMENT FOR DataMaster® SOFTWARE
REDISTRIBUTION AND SHARING NOT PERMITTED
IMPORTANT — READ CAREFULLY BEFORE USING THIS SOFTWARE:
This End User Software License Agreement (the “Agreement”) is a legal agreement between You (either as an individual or an entity) and Market Data Services, LLC (“MDS”) for software known as DataMaster® (the “Software”).
By clicking on the “Accept” button at the end of the text of this Agreement, installing, copying or otherwise using the Software, You agree to be bound by this Agreement. If You do not agree to all of the terms and conditions of this Agreement, click the “Cancel” button and/or do not install the Software, and You will not be able to use the Software. You may install and use ONE copy of this version of the Software.
You agree that Your use of the software acknowledges that You have read this Agreement, understand it, and agree to be bound by its terms and conditions.
- 1. License and MLS Membership Requirements.
1.1. Software License. MDS hereby grants You, and You accept subject to the terms and conditions of this Agreement, a nonexclusive right to use the Software on a single computer located within the United States for purposes only of making appraisals of specific real estate located within the Territory (the “License”). The Software is intended for use by experienced real estate appraisers primarily for the purpose of making real estate appraisals, but may be useful to other real estate professionals for real estate valuation and/or analysis. Use of the Software for other purposes is not authorized without the prior express written permission of MDS, and may require payment of additional fees. Except for the purposes indicted, raw data accessible through the Software may not be used, copied, distributed or commercialized in whole or in part in aggregated, bulk or raw form. Rights not expressly granted are reserved by MDS.
1.2. Definition of Territory. In this Agreement, the “Territory” shall mean the area You selected while applying to subscribe to the Software (see this link for reference http://www.datamasterusa.com/partners/).
1.3 Your MLS Membership Requirement. Your authorization , and the authorization of any user of the Software under this Agreement through You, to use the multiple listing service data for the Territory through the Software, is derived not from the License in this Agreement, but from the user’s, personal, independent membership or license with the multiple listing service(s) in the Territory. Accordingly, You understand and agree that to enter into and be in good standing under this Agreement You must also enter into the agreement(s) with, and be a member or licensee in good standing of, the multiple listing service(s) within the Territory; and You also understand and agree that Your use, and any user’s use, of the Software under the License in this Agreement is expressly conditional on this requirement. Every user of the Software under the License in this Agreement must be a member or licensee of the multiple listing service(s) applicable to the Territory. In using the Software under the License and this Agreement You and any user of the Software through You, must also always comply with Your, and the user’s, agreement(s) or license(s) with the multiple listing service(s) applicable in the Territory. You agree to modify or terminate Your use of the Software, and if necessary terminate the License immediately, to the extent that Your rights to use multiple listing service data for the Territory is altered, suspended, or terminates, and to promptly notify MDS accordingly.
1.4. Copies of Software. You may make copies of the client Software provided that any such new copy: (i) is created as an essential step in the utilization of the Software and is used in no other manner, or (ii) is for archival purposes only to back up the Software. You may make a reasonable number of backup copies of the client Software. All trademark and copyright notices must be faithfully reproduced and included on such copies. Notwithstanding the foregoing, You may not distribute the Software documentation, and may only copy the Software documentation for purposes of the Software License and as an essential part of viewing an electronic version of the Software documentation.
- Data and Data Access.
2.1. You Are Responsible for Selection of Data Providers and Data. The Software may allow You to access various data sources including multiple listing services (MLS), public records, various real estate appraisers, lenders, title companies, and/or MDS. The Software may also allow You to make various selections between and among various data at each data source. For example, if there is conflicting data from two different sources on a particular fact, the system may allow You to select data from one source and reject data from the other source for that fact, feature, or case. Therefore, each or every appraisal or use You make through the Software, it is solely Your responsibility to select data sources and data, and to determine the completeness, accuracy, and appropriateness of data You select. MDS has no liability to You or to any third party for Your selection of data sources or data, or for Your selection among duplicate or similar data available from one or more data sources available through the Software.
2.2 Altering Data Field Headings and Data Descriptions. The Software may allow You to alter data field descriptions or headings to certain preferences. You represent, warrant, and agree not use this feature of the Software to create or change headings or data descriptions that result in misrepresentations of the underlying data, or false, deceptive, or misleading information, appraisals, or reports. You are responsible for verifying the final product or report the Software produces for You. Therefore, MDS cannot be liable to You or to any third party for any changes to data, headings, descriptions, or other information You make, or for any misrepresentation, error, false, deceptive, or misleading statement, appraisal, or report You create or make, or for information, appraisals, or reports You provide or generate, or for any conclusions, actions, or non-actions thereon.
2.3 CompTracker™ Feature. The Software may provide features that allow You to track and save property ratings (such as property condition, or quality ratings, etc.), data selections, physical characteristics, square footage, room count, basement size and room layout, photos, sketches, and certain other selected property elements, and it allows You to make and save comments regarding data selections or certain other property features on each property (collectively, “Property Physical Characteristics Data”). Within the CompTracker specifications the Software will provide tracking of the Property Physical Characteristics Data which You associate with a property for use only by You unless you otherwise approve. CompTracker is intended as an aid to You in Your compliance with laws and regulations requiring consistency verification over time in Your valuations, ratings, and other information used in Your appraisals, valuations, reports, or other real estate products relative to the same or similar properties. If You subscribe to this CompTracker feature of the Software, You authorize MDS to perpetually store (including through MDS’s third party providers), retrieve, analyze, and send back to You, and only for You and only through the Software, Property Physical Characteristics Data You associate with each property. For this feature to work its best and most accurately for You, the Property Physical Characteristics Data You submit must be error free, complete, and accurate. Therefore, for Property Physical Characteristics Data You submit to MDS through or using the Software, You represent and warrant to MDS that the Property Physical Characteristics Data will be (i) error free, complete, accurate, and appropriate to the best of Your knowledge and belief, and (ii) information and data which You are authorized to submit to MDS through the Software, including because You have, or someone working for You has, independently obtained or verified it. In submitting Property Physical Characteristics Data through the Software to MDS, You appreciate that “garbage in” means “garbage out” or in other words, garbage quality data coming back to You as You use this feature. Therefore, MDS cannot be liable to You or to any third party for any errors in, incomplete, inaccurate, or inappropriate data You submit to or through the Software, and MDS is not responsible for enabling or assuring Your compliance with laws applicable to You or for any information, inspection, or analysis You make, or report or work product You produce with the Software, or any conclusion drawn thereon by anyone. You will not use the Software to intentionally produce any false, deceptive, or misleading information, appraisal, report, analysis, or information. If You cease to subscribe to the Software, or to this CompTracker feature of the Software, then the Property Physical Characteristics Data in MDS’s system that You submitted will thereafter be available for at least 6 months for download or access by You at MDS’s then current fee and format for such download or access, but thereafter may not be accessed by You, or used thereafter by MDS for You or any of Your Peers; and that data will in due course be written over and thus destroyed from MDS’s servers.
2.4 Peer Sharing with CompTracker.
(a) You May Elect to Share with Peers. If You elect to subscribe to the CompTracker™ feature of the Software, You may also elect to share all or certain parts of the Property Physical Characteristics Data You associate with properties, with other users of the Software and CompTracker feature whom You select and authorize, and who likewise select and authorize You to share such data (hereinafter each referred to as a “Peer” of the other person). (This Peer sharing feature may facilitate, for example, reciprocal, mutual sharing Property Physical Characteristics Data among appraisers in Your group or office.) You do not need to designate any person as a Peer for the CompTracker feature to be enabled for You.
(b) Peer Sharing Must be Mutual. If You designate another Software and CompTracker feature subscriber as Your Peer for this sharing purpose, then that Peer must likewise designate You as a Peer, and then You and that Peer will share access to each other’s Property Physical Characteristics Data either You or Your Peer associate with any property. A person ceases to be Your Peer when (i) You or that Peer revoke the Peer designation, or (ii) You or the Peer cease to be a subscriber of the Software and of its CompTracker feature.
(c) What is Shared. Sharing between You and Peers includes only designated Property Physical Characteristics Data associated with individual properties but does not include appraisal reports on specific properties. If the future You may also be able to elect share non-confidential general studies and non-confidential market summaries.
(d) Initial and Ongoing Designation of Peers. You have complete discretion whether or not to designate anyone as a Peer, and to maintain or change the status of someone as Your Peer. However, all sharing of data between You and any Peer must always be mutual, or bi-lateral, between You and each designated Peer. So, if You revoke a person’s Peer designation, You won’t thereafter be able to share data from them. You are wholly responsible to determine and monitor the professional and other expertise and competency of the persons designated as Your Peers. MDS has no liability to You or anyone else relative to Your initial or ongoing Peer designations, or any use You make of any data, information, material, photograph or anything else from any Peer. MDS cannot compel You to designate anyone a Peer, nor can MDS compel anyone to become Your Peer and share with You. You may designate Your Peers but You and Your Peers must, of course, both remain subscribers of the Software and of its CompTracker™ feature for the sharing to operate.
(e) No Royalties or Other Fees Between Peers. Under this Section 2.4, neither You nor any Peer of Yours, has any right to receive, nor any obligation to pay, any royalty or other payment for any shared Property Physical Characteristics Data between or among You and Your Peers.
(f) Termination of Peer Designation or of Subscription to Software or its CompTracker Feature. If You cease to subscribe to the Software, or to its CompTracker feature, then the Property Physical Characteristics Data You submitted through the Software (i) may not thereafter be accessed by You; (ii) cannot thereafter be accessed by Your Peers; and (iii) will in due course be written over and thus destroyed from MDS’s servers. However, to the extent Property Physical Characteristics Data You submitted was accessed and used by Your Peers, and is thus included in any of Your Peer’s Property Physical Characteristics Data for any properties, then that Peer’s Property Physical Characteristics Data may continue to be associated with, accessed by, and used by Your Peers. So, once You share Property Physical Characteristics Data with Your Peers, that Property Physical Characteristics Data may become associated with Property Physical Characteristics associated with Your Peers, and usable by them as and with their own data. Likewise, if any of Your Peers cease to designate You as their Peer, or cease to subscribe to the Software and its CompTracker feature, then thereafter that Peer’s Property Physical Characteristics Data (i) may not thereafter be accessed or used by You; (ii) cannot thereafter be accessed by You; and (iii) will in due course be written over and thus destroyed from MDS’s servers. And likewise, You can, of course, continue to access and use the Physical Characteristics Data You already received from Your Peer while they were Your Peer.
(g) Disclaimer. You understand and agree that MDS is not responsible for, or liable to You or to any third party for, the quality, completeness, accuracy, and appropriateness of any of Property Physical Characteristics Data from You or from any of Your Peers.
2.5 Your Representations – No Password or Access Sharing of Software. You represent, warrant, and promise to MDS, and to its data providers and data sources, that You will not rent, loan, or otherwise share the Software, either intentionally or negligently, including any access to the Software or to Your login credentials, including passwords, to use the Software or the MLS and other data providers and sources accessed through the Software. Failure to comply with this obligation could result in immediate termination of Your right to use the Software or certain features of the Software, and in addition subject You to liability to MDS and to its MLS and other providers and sources of data accessed through the Software. You appreciate that any sharing of or access to the Software could jeopardize the validity, quality, completeness, accuracy, and appropriateness of the Property Physical Characteristics Data from You or others, and the validity, consistency, and accuracy of the CompTracker™ feature and of any tracking or compliance verification aid the Software provides You.
2.6 MDS Tracks Your Software Use; Cookies. You understand that the Software allows MDS to track and review Your use of the Software, its features, data bases, and other elements, including to test Your compliance with this Agreement. MDS may have obligations to report aggregated usage information to certain licensors or data providers or sources licensing data bases to MDS. MDS or the Software and its use may also place cookies on Your computer system which may be necessary to operate the Software or its features.
- Subscription Fee.
3.1. Payment. In addition to any initial fee charged by MDS, for use of the Software, You shall pay to MDS the subscription fee You select, as describe at this link http://www.datamasterusa.com/product/pricing/ (the “Subscription Fee”). The Subscription Fee shall be payable for the period for Your Subscription plan for use of the Software under the License. With thirty (30) days prior notice to You, MDS may change or increase the Subscription Fees and other fees and provisions. Such notice may be posted in the Software, on MDS’s website, or sent to You via email. Any payment by wire transfer shall be subject to a $25 wire receipt fee, and any cancelled, stopped or returned check shall be subject to a $50 fee.
3.2 Credit and Card Processing. MDS is not obligated to extend or continue to extend any credit to You for Subscription Fees, or offer You payment options other than paying monthly in advanced. If You provide credit card information for payment purposes, then You thereby authorize MDS to charge that credit card for monthly and other Subscription Fees until You (a) notify MDS of different credit card information, (b) make other arrangements for payment, or (c) terminate this Agreement.
3.3 Volume Subscriptions. MDS may, in its discretion, in a signed writing agree to volume subscription pricing terms for You.
3.4. Audit. During normal business hours and with reasonable notice to You and not more frequently than once annually, MDS may, through an independent third party designated by MDS, review and audit Your computer and software, and accounting and other books, records, and data (electronic and otherwise), to determine Your compliance with this Agreement. MDS shall keep confidential any other nonpublic information regarding You obtained through the audit. If any such audit reveals that You have, in any twelve (12) month period, underpaid any Subscription Fee by more than five percent (5%) then You shall be responsible for the costs of the audit and payment of any underpaid Subscription Fee. If the audit indicates that You have overpaid any Subscription Fee, MDS shall provide You a credit against future Subscription Fee payments.
- Term and Termination.
4.1. Termination For Breach. The License shall automatically terminate upon any of the following events: (i) if You use the Software with any data that is not real estate data from the Territory, (ii) if You fail to provide payment to MDS of any amount when due, including any accrued interest, fees and/or charges, or credit card authorization for MDS to charge the Subscription Fee when do, (iii) if You breach this Agreement, or (iv) if You breach Your agreement(s) with Your applicable multiple listing service for the Territory, or Your right to use such data is suspended or terminated. If MDS reinstates You as a licensee of the Software after any termination of the License, a reinstatement fee may apply in addition to the Subscription Fees.
4.2. Discretionary Termination by MDS. MDS may terminate Your License on thirty (30) days’ notice to You and without any refund, payment, or further liability to You.
4.3 Discretionary Termination by You. You may terminate the License on thirty (30) days prior notice to MDS, or by failing to pay Your Subscription Fee when due. Partial payment of multi-user Subscription Fees may result in termination of this Agreement or suspension, termination, or limitation of some user’s rights to use the Software.
4.4. Term. This Agreement may only be terminated as provided in this Agreement. Unless this Agreement is terminated, it shall remain in full force and effect from month to month (as long as You are current with payment of the Subscription Fees and any other fees payable to MDS).
4.5. Procedure on Termination. Upon termination of this License, You shall permanently delete all copies of the client Software and shall, if requested by MDS, in writing certify that You (and any and all users of Software authorized through You) have complied with the provisions of this Agreement.
- No Source Code. Your License is limited to the Software in machine executable code form and object code form only, and does not include any rights to source code, inventions, patents, or other intellectual property or rights of MDS.
6.1 Training. MDS provides limited training available through its website at this link http://www.datamasterusa.com/tutorials/. You may make reasonable use of such training and may repeat the training. MDS cannot guarantee that access to the training will be continuous, uninterrupted, or perpetual.
6.2 Updates. MDS is under no obligation to develop revisions, updates or new versions of the Software. However, it is anticipated that revisions, updates and/or new versions of the Software may be developed, and as they are, MDS may offer them to You as part of Your Subscription Fee, or for an additional cost. MDS shall provide You at least thirty (30) days prior notice of any required update which You would be required to purchase from MDS, or pay an increased Subscription Fee. If You do not pay for such an update, Your License to use the Software immediately terminates. All revisions, updates and newer versions of the code in the Software shall be deemed part of the Software, and shall be governed by this Agreement. MDS welcomes and encourages feedback and input from You regarding the Software, and suggestions and considerations regarding updates and improvements.
- Protection of Software. Except as expressly authorized in this Agreement, You may not: (i) disassemble, decompile or otherwise reverse engineer the Software, or (ii) modify or create derivative works based upon the Software, or (iii) rent, lease, sublicense, distribute, transfer, copy, reproduce, modify, or timeshare the Software, or (iv) allow any third party to access or use the Software, or (v) modify the Software (including any deletion of code from, or addition of code to, the Software), or (vi) use or copy the Software or data accessible for it for any unauthorized use or purpose.
- Ownership. Ownership of, and title to, the Software (including any adaptations) and all copies thereof (including copies provided with this Agreement and copies under Section 2.2) shall belong to MDS. Copies of the Software are loaned to You to allow You to exercise rights under the License. Only the License is purchased by You.
- Nontransferable of License. You may not assign or otherwise transfer or encumber the License, this Agreement, or any right or obligation under this Agreement, for any reason.
- No Warranty. The Software and any data provided by or accessible through it are provided “AS IS” without warranty or representation of any kind, either express or implied.
11.1. Disclaimer. MDS MAKES NO WARRANTY, REPRESENTATION OR PROMISE NOT EXPRESSLY SET FORTH IN THIS AGREEMENT. MDS DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND COMPATIBILITY. MDS DOES NOT WARRANT THAT THE SOFTWARE WILL SATISFY YOUR REQUIREMENTS OR THAT IT OR THE DATA IN OR ACCESSIBLE THROUGH THE SOFTWARE IS COMPLETE OR WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR TROUBLE FREE. THE SOFTWARE MAY IDENTIFY DISCREPANCIES AND CONFLICTING INFORMATION IN CERTAIN DATA FIELDS. WHETHER IDENTIFIED OR NOT BY THE SOFTWARE, THE DATA MAY CONTAIN DISCREPANCIES, INACCURACIES, AND ERRORS, KNOWN OR UNKNOWN TO MDS, AND MAY PROVIDE CONFLICTING INFORMATION NONE OF WHICH MAY BE COMPLETE OR ACCURATE. NEITHER MDS NOR THE SOFTWARE UNDERTAKES TO COMPLETELY OR ACCURATE IDENTIFY PROBLEMS WITH ANY DATA ACCESSIBLE OR COMPARABLE THROUGH THE SOFTWARE.
11.2. Limitation on Liability. THE AGGREGATE LIABILITY OF MDS ARISING FROM OR RELATING TO THIS AGREEMENT, THE SOFTWARE OR ANY DATA ACCESSIBLE THROUGH THE SOFTWARE (REGARDLESS OF THE FORM OF ACTION OR CLAIM – E.G. CONTRACT, WARRANTY, TORT, COMPUTER MALPRACTICE, FRAUD AND/OR OTHERWISE) IS LIMITED TO THE LESSER OF: (i) $100 OR (ii) THE TOTAL OF ALL PAYMENTS YOU MADE BY OR FOR THE License FOR THE PAST TWELVE (12) MONTHS. MDS SHALL NOT IN ANY CASE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES EVEN IF MDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER MDS NOR ANY PERSON PROVIDING DATA TO MDS IS RESPONSIBLE TO YOU, OR RESPONSIBLE TO ANY PERSON CLAIMING THROUGH YOU, FOR LOST PROFITS OR REVENUE, LOSS OF USE OF THE SOFTWARE, LOSS OF DATA, COSTS OF RE-CREATING LOST DATA, THE COST OF ANY SUBSTITUTE EQUIPMENT OR PROGRAM, OR FOR ANY SUCH CLAIMS BY ANY THIRD PARTY . THE MANAGERS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS, MEMBERS, AND REPRESENTATIVES OF MDS ARE NOT PARTIES TO THIS AGREEMENT AND SHALL HAVE NO OBLIGATION OR LIABILITY RELATING TO THIS AGREEMENT, THE SOFTWARE, OR ANY DATA ACCESSIBLE THROUGH THE SOFTWARE. NO THIRD PARTY PROVIDING DATA TO MDS, WHICH IS ACCESSIBLE THROUGH THE SOFTWARE, SHALL HAVE ANY LIABILITY TO YOU, OR TO ANY PERSON CLAIMING THROUGH YOU, FOR THE COMPLETENESS OR ACCURACY OF SUCH DATA. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY YOU, OR ANYONE CLAIMING THROUGH YOU, MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION AROSE.
11.3. Responsibility for Decisions. YOU ARE RESPONSIBLE FOR DECISIONS MADE AND ACTIONS TAKEN BASED ON THE SOFTWARE AND DATA ACCESSIBLE THROUGH THE SOFTWARE. THE SOFTWARE IS DESIGNED AND INTENDED FOR USE BY INDIVIDUALS EXPERIENCED IN THE USES AND LIMITATIONS OF COMPUTER SOFTWARE AND IN THE REAL ESTATE APPRAISAL BUSINESS. IT IS YOUR RESPONSIBILITY TO ASCERTAIN THE SUITABILITY OF THE SOFTWARE FOR YOUR INTENDED USES. IT IS YOUR RESPONSIBILITY TO DETERMINE IF DATA ERRORS, INACCURACIES OR DISCREPANCIES EXIST, AND TO DETERMINE WHAT IF ANY CHANGES SHOULD BE MADE TO ANY DATA BEFORE OR AFTER IT IS EXPORTED TO REAL ESTATE APPRAISAL FORMS OR USED IN A REAL ESTATE APPRAISAL, VALUATION OR ANALYSIS.
11.4 Certain States. Some states do not allow the exclusion of incidental or consequential damages, so the disclaimers or limitations of Sections 11.1, 11.2, or 11.3 may be limited or not apply to You.
11.5 Indemnification. You agree to indemnify defend and hold harmless MDS and its officers, owners, agents, affiliates, contractors, attorneys, and employees from any and all claims, demands, liabilities, costs, or expenses, including reasonable attorneys’ fees, resulting from (a) any material breach of this Agreement by You involving any data accessed through the Software which MDS licenses from any third party, or (b) any real estate appraisal, valuation or analysis issued by You using the Software, or (c) any use of the Software or the data accessible through the Software outside the scope of the License. MDS may in its discretion control the defense and settlement of any such claim, demand, liability, cost, or expense.
11.6 Confidentiality. MDS may be seeking patent protection for aspects of the inventions regarding the Software. Accordingly, You agree to the following: (1) only You will be the user of the Software under this License; (2) You will take reasonable precautions to use the Software in a secure environment, and not permit others to observe Your use of the Software, or the screens it generates; (3) except to MDS, You will not directly or indirectly disclose or transfer any information or image regarding the screens generated by the Software, its functionality, any bugs in the Software, or to any thing regarding the software, to any other person or entity, and You will not use such information except for purposes of preparing appraisals and for testing of the Software; and (4) You will not disclose information regarding the Software disclosed to You by MDS. Your obligations under this Section 11.6 shall cease if and to the extent specific information protected becomes public, otherwise Your obligation shall persist for 5 years for specific information that does not become public.
- Sole Remedy and Allocation of Risk. YOUR SOLE AND EXCLUSIVE REMEDY (AND CORRESPONDINGLY, THE SOLE AND EXCLUSIVE REMEDY OF ANYONE CLAIMING THROUGH YOU), IS SET FORTH IN THIS AGREEMENT. THIS AGREEMENT DEFINES A MUTUALLY AGREED-UPON ALLOCATION OF RISK AND THE License PRICES AND SUBSCRIPTION FEES REFLECT SUCH ALLOCATION OF RISK.
13.1. Governing Law. This Agreement shall be governed by the laws of the state of Utah and the United States of America without regard to any conflict of law provisions thereof.
13.2. Entire Agreement. This Agreement represents the entire agreement and understanding between the parties relating to the subject matter of this Agreement, supersedes all prior agreements, understandings, representations and warranties, and may only be amended, canceled or rescinded by a writing signed by authorized officers of both parties. NO SALESPERSON, SUPPORT PERSON, OR ANY OTHER EMPLOYEE OF MDS IS AUTHORIZED TO MODIFY THIS AGREEMENT OR TO MAKE ANY WARRANTY, REPRESENTATION, OR PROMISE WITH RESPECT TO THE SOFTWARE WHICH IS DIFFERENT THAN, OR IN ADDITION TO, THE REPRESENTATIONS, PROMISES, AND THE LIMITED WARRANTY THAT ARE EXPRESSLY SET FORTH IN THIS AGREEMENT. ONLY A DULY AUTHORIZED OFFICER OF MDS HAS AUTHORITY TO MODIFY THIS AGREEMENT AND ONLY IN A PAPER WRITING SIGNED (AND NOT MERELY IN ANY EMAIL). ANY MODIFICATION MUST REFER TO THIS AGREEMENT AND THE SPECIFICALLY PROVISION TO BE MODIFIED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING PROVISION, ANY STATEMENTS MADE IN FORUM POSTS OR IN SUPPORT EMAILS, BY WHOMEVER MADE, SHALL NOT MODIFY OR WAIVE ANY PROVISION OF HIS AGREEMENT.
13.3. Binding Effect. This Agreement binds and inures to the benefit of the parties to this Agreement and their respective permitted successors and assigns.
13.4. Injunctive Relief. You acknowledge that any breach by You of this Agreement will give rise to irreparable injury to MDS inadequately compensable in damages alone. Accordingly, MDS may seek and obtain preliminary and permanent injunctive relief against the breach or threatened breach of this Agreement. Such relief shall be in addition to any other legal or equitable remedies, relief and damages which may be available to MDS.
13.5. Interpretation. Whenever the context reasonably permits, the singular shall include the plural, the plural shall include the singular, and the whole shall include any part thereof. Any reference in this Agreement to “Software” shall include any portion thereof, and any update or revision, or versions thereof. The section and other headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
13.6. Notices. All notices and other communications required or permitted under this Agreement must be in writing and shall be: (a) delivered personally, (b) sent by confirmed fax, (c) sent by commercial overnight courier with written verification of receipt, (d) sent by registered or certified mail, return receipt requested, postage paid, or (e) by e-mail to an address provided by You. All communications must be sent to the receiving party’s initial address set forth at the beginning of this Agreement, e-mail address, or to such other address that the receiving party may provide for purpose of notice.
13.7. Severability. If any provision of this Agreement is invalid under applicable law as it shall then be applied, such provision shall be limited, narrowed, construed and altered as necessary to render it valid, but only to the extent necessary to achieve such validity. If necessary, the invalid provision shall be eliminated from this Agreement. The remaining provisions shall remain in full force and effect.
13.8. Waiver. The failure of either party to exercise any right or the waiver by either party of any breach shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other provision of the Agreement.
13.9 Restricted Rights of Government Use. This Software and its documentation and training materials is commercial computer software developed exclusively at private expense. Use, duplication, and disclosure by civilian agencies of the U.S. Government shall be in accordance with FAR 52.227-19(c) or other agency data rights provisions, as may be applicable. Use, duplication and disclosure by DOD agencies is subject solely to the terms of standard software License agreement as stated in DFARS 227.7202. “Unpublished-All rights reserved under the Copyright Laws of the United States”. Contractor/Licensor: Market Data Service LLC, Layton, Utah.
DataMaster® EULA – 13Jan2018 Copyright © 2018 Market Data Service LLC