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Terms of Use
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DEVELOPER AGREEMENT AND SPARK API TERMS OF USE

This is an agreement ("Agreement") between Financial Business Systems, Inc. (together with its affiliates, "FBS," "we" or "us") and you, if registering as an individual, or the entity you represent if registering as a business ("Developer" or "you") (FBS and Developer shall each be known as a "Party," or collectively, as the "Parties").

Please carefully read this agreement and all terms, rules, policies, documentation and other Developer Guidelines (as defined below) provided by FBS. You accept and agree to the terms of this Agreement on your own behalf or on behalf of your company or organization, by using the Platform in any way.

 
  1. Definitions. Definitions of certain terms (typically indicated as capitalized terms in the Agreement) are set forth in the Defined Terms at the end of the Agreement. These definitions are an integral part of the Agreement and should be reviewed carefully as you read the Agreement.
  2. License to MLS Content and Platform; Limitations.
    1. MLS Content. Except as provided otherwise under this Agreement, you may access and use MLS Content provided through the Platform only for: (i) display in your Application to authorized MLS Members according to the permission granted to that Member by the MLS (e.g., Private Role) and according to the MLS Rules and License Terms; (ii) display in your Application to Consumers by MLS Members who have licensed your Application, provided that the display is only for that Consumer’s bona fide personal use in making a real estate purchase or sale decision and otherwise follows the MLS Rules and License Terms for the roles available to Consumers (e.g., IDX and VOW); and (iii) purposes of internal development and testing of your Applications that does not in any way disclose, display or make available any MLS Content to any other person. MLSs retain all rights (including copyright, patent, trademark and trade secret rights), title and interest in and to the MLS Content. You agree to cooperate with each MLS to maintain that MLS’s ownership of their respective MLS Content. Any MLS may at any time suspend or withhold your access to their MLS Content or otherwise terminate your license to their MLS Content.
    2. MLS Content Usage Requirements, Limitations. Your use of MLS Content shall be subject to the following limitations:
      1. Use of MLS Content is permitted only according to limitations and requirements set by the MLSs as specified in MLS Rules and License Terms provided through the API. You shall abide by all such MLS Rules and License Terms in regard to the use of MLS Content.
      2. You shall implement and use commercially standard practices to prevent scraping, harvesting or other collection of MLS Content.
      3. You may only retain a copy of the MLS Content on your servers if the account for your API key specifies that replication is permitted. Otherwise, your license to MLS Content is limited to making direct server calls to the API for MLS Content and to distributing MLS Content to End Users of your Application immediately upon receipt by your servers. You may present MLS Content only on a transactional basis and you shall not store MLS Content except for temporary caching purposes necessary for performance enhancement, provided such temporary storage does not exceed 24 hours.
      4. You may only permit the Members or Consumers who are subject to MLS Members Terms of Use or Consumers Terms of Use to have access to MLS Content through your Application. If you become aware that any End User using your Application is in material breach of their applicable terms of use, then you agree to notify FBS promptly of such breach by e-mail to api-support@sparkplatform.com, and to take prompt commercially reasonable corrective action at your expense to remedy such breach. You shall provide any assistance reasonably requested by FBS or an MLS in remedying such breach. Your obligations to report and enforce the Applicable Terms shall survive termination of this Agreement or your use of the Platform.
      5. All applications, hardware hosting facilities, and server software must be secured using industry standard best practices (might need more details here) to prevent unauthorized access to content provided by the Spark API. Content provided by the Spark API must not be redistributed to third parties or used outside of the scope of the application that accessed the Spark API on behalf of the person who provided authorization for the application.
      6. You grant FBS and each MLS whose content you access the right to audit your data center and other facilities to ensure that the terms of this Agreement are being enforced, and you agree to cooperate with FBS and each MLS to enforce this audit right.
    3. Developer Guidelines and Terms. Your Application must be developed in accordance with this Agreement, including:
      1. Compliance with MLS Rules and License Terms regarding MLS Content;
      2. For applications using the Spark API, compliance with the API Documentation (http://sparkplatform.com/docs/api_services/read_first), which are incorporated into this Agreement by this reference.
      3. Each API request from an Application must include the true user-agent in the header of the request as specified at http://sparkplatform.com/docs/api_services/read_first; Developer represents that every request made to the API will accurately include the user-agent making the request;
      4. OAuth access tokens, the Spark API key, and the Spark API secret must never be sent to a web browser. Web applications must not make direct API calls from the web browser and instead must proxy their requests through a server application to ensure the OAuth access is never transmitted to the browser under any circumstances. More generally, OAuth access tokens, the Spark API key, and the Spark API secret must never directly or indirectly be made accessible or transmitted to an end user.
      5. OAuth access tokens, the Spark API key, and the Spark API secret must only be sent to the Spark Platform's servers and transmission of these items must be done using HTTPS.
      6. For live transactions (as opposed to replication or other transactions using a bearer-token), Single Sign-On authentication of users through the Platform (http://sparkplatform.com/docs/authentication/authentication), which will require End User assent to MLS Member Terms of Use and Consumer Terms of Use as appropriate;
      7. Desktop and native mobile applications may store or save the OAuth access token, Spark API key, and Spark API secret only if they are encrypted using a strong encryption method before storage.
      8. Desktop and native mobile applications must not store Spark end user usernames and passwords, but instead must use Spark resources to authenticate the user.
      9. If your Application creates, modifies, or otherwise saves the type of content defined in Member Content or Consumer Content, your Application will save that Member Content or Consumer Content to the Platform through the API so it is available to that Member or Consumer without duplicate entry in any other Applications they may license or use through the Platform.
      10. You shall not remove, modify, impair, reverse-engineer or otherwise access or alter any security or analytics component provided or used by FBS.
      11. Any other requirements outlined in this Agreement.
    4. Other Prohibited Actions. The following list describes conduct that is prohibited in relation to the Platform or MLS Content:
      1. You may not use the API in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of this Agreement, as determined by FBS in its sole discretion. FBS may rate limit your API usage at any time and in its sole discretion;
      2. You may not use the API or MLS Content for any purposes not expressly permitted by this Agreement, or in any manner inconsistent with MLS Rules and License Terms, policies, requirements or other agreements, other FBS API Terms of Use or licenses you have from FBS;
      3. You may not use the API in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of personality, or otherwise harms the MLS, FBS, its service providers, its suppliers, your End Users, or any other person;
      4. You may not rent, lease, lend, upload to or host on any website or server, sell, redistribute or sublicense any portion of the Platform or MLS Content, or enable others to do so;
      5. You may not reproduce, modify, reverse engineer, disassemble, or decompile any binary code, API or other materials and components used in connection with the Platform or MLS Content;
      6. You may not remove any FBS-provided components from your Application, including security and analytics mechanisms;
      7. You may not take any action related to the Platform that interferes with, damages, or accesses or uses in any unauthorized manner the hardware, software, networks, technologies or other properties or services of FBS or of any End User or any third party; and,
      8. You may not develop or market Applications that contain, or use any Platform materials or MLS Content with, any software or other materials that are subject to licenses or restrictions (e.g. open source software licenses) that would require any part of the Platform or MLS Content be disclosed, licensed, distributed or otherwise made available to third parties.
  3. Platform Operations and Usage Terms.
    1. Platform Operations. FBS shall use commercially reasonable efforts to make the Platform available and responsive at all times, including by providing redundant data centers. Developer understands and acknowledges that the Platform may be unavailable at times due to failures in the ordinary course, updates and maintenance, and failure of MLSs to provide MLS Content. You understand and agree that the Platform relies on various MLSs to provide MLS Content, for which FBS does not guarantee the quality of content or continued availability. MLS further may choose to withhold MLS Content from you or FBS at any time. FBS shall in no case be responsible for outages, downtime or other errors in the Platform attributable to MLSs failure to, or decision not to, provide MLS Content.
    2. Platform Updates. You acknowledge and agree that FBS shall have sole discretion to determine all features and operations of the Platform, whether or not to offer or continue to offer any types of functionality, or whether to support or market any particular Application on the Platform. You agree that FBS has no obligation to promote, distribute, or offer for sale any Application, or to continue to do so. FBS may release subsequent versions of the Platform and require you to use the most recent version. If such new versions are not compatible with previous Platform implementations, FBS shall use commercially reasonable efforts to notify you and maintain the prior version for a reasonable time for you to adopt the newer version. However, you understand and agree there may be breaking changes FBS is required to make to the Platform and such mitigating steps shall not be required of FBS in such cases. If you provide suggestions, ideas, or other feedback to us about the Platform, FBS shall own and be free to exercise all rights in such suggestions, ideas or feedback without restriction and without compensating you.
    3. Platform Maintenance Downtime. FBS shall use commercially reasonable efforts to provide Developer with notice of upcoming system maintenance, updates, or other changes to the Platform at least two (2) weeks prior to the change. FBS shall use commercially reasonable efforts to perform such changes during periods of low Platform usage, and shall limit related Platform downtime to reasonable periods of time.
    4. FBS Privacy Policy. You acknowledge that FBS may collect personally identifiable information and information in the aggregate regarding your and your End Users’ use of your Application and the Platform, including without limitation information regarding listings and other MLS Content viewed by Members and Consumers. FBS may collect, use and share such information in accordance with FBS’s Privacy Policy available at http://sparkplatform.com/docs/terms_of_use/privacy (subject to change from time to time), for purposes that include improving FBS products or services and verifying compliance with this Agreement.
    5. EULA. You shall provide a EULA to End Users that governs Members’ and Consumers’ use of your Applications, and which at a minimum shall contain (i) the terms under which your Application is licensed to users; (ii) a term stating that FBS and MLS shall not be responsible for providing support for your Application; and (iii) contact information through which your users can make support requests. Your EULA must otherwise be consistent with the terms of this Agreement and the MLS Member Terms of Use and Consumer Terms of Use. You acknowledge and agree that in the event of conflict between the EULA Agreement and the MLS Member Terms of Use and Consumer Terms of Use, the terms of the Agreement and the MLS Members Terms of Use and Consumer Terms of Use shall control.
    6. End-User Privacy; Credentials. If your Application authenticates Members or Consumers for access to MLS Content, you must use the Platform authentication functionality or other method as provided in the API documentation and you shall not copy, store or retain Member or Consumer credentialing information. If your Applications will have access or request to any other name, password, other login information, or other personally identifying information of any End User, you shall: (i) provide legally-adequate privacy notices to the End User, (ii) provide clear and conspicuous notice within your Applications to the End User before requesting or collecting such End User information; (iii) use and authorize others to access and use such End User information only for the purposes permitted by the End User, and, (iv) treat, store and use the End User information in accordance with the applicable privacy notice and applicable laws, rules, regulations, orders, and other requirements of governmental agencies.
  4. Term and Termination; Suspension.
    1. Term. The Term of this Agreement shall begin on the date you first use the Platform or any part of it, including the API, Datamart, or Store, and shall continue until you or we terminate it.
    2. Termination, Suspension by FBS. FBS shall be entitled to terminate this Agreement or suspend your participation in the Application Store at FBS’s sole discretion with or without advance notice to you. In the event you have, or if FBS has reason to believe you have, breached the confidentiality obligation or a warranty under this Agreement, FBS may (in addition to the above remedies in this Section 8.b) further terminate usage of your Application by all End Users. In the case of such a termination for breach of confidentiality or warranty, FBS may withhold funds as permitted under Section 6.g and reimburse End Users. FBS shall have no obligation to compensate End Users of your Application in the event of any termination or suspension.
    3. Termination by Developer. You are entitled to terminate this Agreement at any time by giving FBS at least ten (10) days advance written notice. FBS shall stop selling the Applications as of the date your termination takes effect.
    4. Effects of Termination. Following any termination or suspension, we may fulfill any End User orders for the Applications pending as of the date the termination or suspension takes effect. Unless FBS otherwise determines in its discretion, any termination or suspension will not affect further access, downloads or re-downloads of Applications by End Users who have purchased the Application before the date the termination or suspension takes effect, nor their rights in previously-downloaded Applications. Termination of this Agreement shall not release you from your obligations under your EULA, including without limitation any continuing obligations to provide services on a subscription basis. FBS shall otherwise cease usage of Developer Content. FBS shall not be obligated to return copies of any Developer Content or other materials that you provide.
    5. Survival. The following provisions of this Agreement will survive termination of this Agreement: Sections 2.e, 3.i, 4.e, 4.i, 7.a, 7.d, 7.f, and 8 through 13, including all Developer representations and warranties in this Agreement, and any other provisions that, by their nature, are intended to survive. Unless expressly stated otherwise, all rights to Applications acquired by End Users will survive termination.
  5. Representations and Warranties. You represent, warrant and covenant that:
    1. You are of majority age and have the full right, power, and authority to enter into and fully perform this Agreement. If Developer is a business or other legal entity, then the individual entering into this Agreement on Developer’s behalf represents and warrants that he or she has the legal authority to bind Developer to this Agreement;
    2. All the information you provide to FBS in connection with this Agreement will be current, true, accurate, supportable and complete;
    3. Before providing FBS with Developer Content, you have obtained the rights (including any Third Party Rights) necessary for the exercise of all rights granted under this Agreement, and that you are solely responsible for and will pay any licensors or co-owners any royalties or other amounts due related to the Developer Content;
    4. You will comply with all attribution, source availability or other obligations of third party open source software or other third party intellectual property in any Application. If any App is subject in whole or part to third party source availability obligations, you will promptly make the corresponding source code available to FBS, End Users and any eligible third party recipients;
    5. You warrant that the following will not violate any applicable law, contain any defamatory material, or violate or infringe any Third Party Rights or equivalent rights of FBS: (i) your exercise of any rights granted under this Agreement; (ii) any portion of the Developer Content, including any third party advertising; (iii) the sale or distribution of the Developer Content; or (iv) any actions, notices, instructions or advertising given or performed by you in connection with the Developer Content;
    6. Your Content will not contain any viruses, spyware, "Trojan horses," or other "malware" or harmful code, will not cause injury to any person or damage to any property, and will not otherwise have an adverse impact on the Platform or MLS Content;
    7. Your Application is and will remain in compliance with the requirements and limitations of this Agreement, including without limitation, implementing the MLS Rules and License Terms specified through the API; and,
    8. Your Application will comply with MLS Rules and License Terms in the use of MLS Content.
  6. Indemnity. You shall indemnify, defend and hold FBS (including any respective officers, directors, employees, contractors and assigns) harmless from and against any loss, claim, liability, damage, action or cause of action (including reasonable attorneys’ fees) that arises from any claim relating to (i) FBS’s or your use or distribution of Developer Content, (ii) a breach of this Agreement (including without limitation a breach of your representations, warranties or obligations), (iii) your breach of a EULA you provide to End Users, (iv) your exercise of your rights under this Agreement (individually, a "Claim," and collectively, the "Claims"). You shall not consent to the entry of a judgment or settle a Claim without our prior written consent, which may not be unreasonably withheld. You shall use counsel reasonably satisfactory to FBS to defend each Claim. FBS shall retain the right to hire its own defense counsel at FBS’s expense. Your obligations under this Section 9 are independent of your other obligations under the Agreement.
  7. Confidentiality.
    1. Protection of Confidential Information. Each Party hereto acknowledges that any and all Confidential Information (as defined below) supplied by the one Party ("Disclosing Party") and received by another Party ("Receiving Party") hereunder is the proprietary and confidential property of Licensor and any unauthorized disclosure of such Confidential Information by the Receiving Party will cause irreparable harm to the Disclosing Party. Each Party agrees not to disclose any Confidential Information or any portion thereof to any third party or to use Confidential Information or any portion thereof for any purpose, other than as expressly permitted in this Agreement. Each Party further agrees that the Receiving Party shall not reproduce Confidential Information except as necessary to perform its duties or exercise its rights under this Agreement or as otherwise specifically authorized in writing. Each Party acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and that the Disclosing Party will be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
    2. Exclusions. The foregoing paragraph notwithstanding, "Confidential Information" shall not include information: (i) already lawfully known to or independently developed by the Receiving Party prior to disclosure under this Agreement; (ii) disclosed in published materials authorized by this Agreement and consistent with its terms; (iii) that is or subsequently becomes available to the general public other than through a breach by the Receiving Party; (iv) lawfully obtained from any third party having the right to disclose it; or (v) required to be disclosed by law, provided that the Disclosing Party has been provided reasonable notice and opportunity to contest the need for such disclosure, or to seek a protective order therefore.
  8. Disclaimers and Limitations of Liability. FBS PROVIDES THE FBS SERVICES, ANY ASSOCIATED MATERIALS, NOTICES AND DOCUMENTATION AND THE VARIOUS MLSS PROVIDE MLS CONTENT ON AN "AS IS" BASIS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FBS AND ITS SUPPLIERS AND THE MLSS MAKE NO OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED. FBS AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY AND IMPLIED, INCLUDING WITHOUT LIMITATION (A) WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, ACCURACY, TITLE, QUIET ENJOYMENT, NO ENCUMBRANCES, NO LIENS AND NON-INFRINGEMENT, (B) WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE, AND (C) WARRANTIES OR CONDITIONS OF UNINTERRUPTED OR ERROR-FREE ACCESS OR USE. YOU ACKNOWLEDGE AND AGREE THAT FBS AND THE MLSS CANNOT GUARANTEE THAT CONTENT SUBMITTED BY OR ON BEHALF OF YOU WILL BE PROTECTED FROM THEFT OR MISUSE, AND WE WILL HAVE NO LIABILITY ARISING FROM A FAILURE OF ANY SECURITY TECHNOLOGY OR PROCEDURE OR OF ANY END USER TO COMPLY WITH ANY TERMS OF USE REGARDING THIS PROGRAM OR OTHERWISE.

    IN NO EVENT SHALL FBS OR ANY SUPPLIER OR THE MLSS BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF, BASED ON, OR RESULTING FROM THESE API TERMS OF USE OR YOUR USE OF THE PLATFORM OR MLS CONTENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION OF DAMAGES UNDER THIS PARAGRAPH IS INDEPENDENT OF YOUR EXCLUSIVE REMEDY AND SURVIVES IN THE EVENT SUCH REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED UNENFORCEABLE. THESE LIMITATIONS AND EXCLUSIONS APPLY WITHOUT REGARD TO WHETHER THE DAMAGES ARISE FROM (A) BREACH OF CONTRACT, (B) BREACH OF WARRANTY, (C) NEGLIGENCE, OR (D) ANY OTHER CAUSE OF ACTION, TO THE EXTENT SUCH EXCLUSION AND LIMITATIONS ARE NOT PROHIBITED BY APPLICABLE LAW. IF YOU DO NOT AGREE WITH ANY PART OF THIS AGREEMENT USE, OR YOU HAVE ANY DISPUTE OR CLAIM AGAINST FBS OR ITS SUPPLIERS OR THE MLSS WITH RESPECT TO THESE TERMS OF USE OR THE SERVICES, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE PLATFORM AND MLS CONTENT. IN NO EVENT SHALL OUR LIABILITY HEREUNDER EXCEED THE AMOUNT OF FEES DUE AND PAYABLE TO DEVELOPER UNDER THIS AGREEMENT FOR THE TWELVE-MONTH PERIOD PRECEDING SUCH CLAIM.
  9. General Terms.
    1. Modifications to the Agreement. FBS may make changes to this Agreement at any time by providing written notice to the Developer by email describing the modifications made or through such a notification in the Developer Account. Your continued participation under this Agreement after changes to this Agreement take effect shall constitute your acceptance of the changes. If you do not agree to any such change, you must terminate this Agreement.
    2. Third Party Beneficiaries. You acknowledge and agree that the MLSs shall be third party beneficiaries to this Agreement and shall be entitled to directly enforce, and rely upon, any provision of this Agreement that confers a benefit on (or rights in favor of) them or other right of FBS enforceable against Developer. Other than as expressly stated above, no other person or entity shall be third party beneficiaries to this Agreement.
    3. Severability. If any part of this Agreement is determined to be invalid or unenforceable, then the invalid or unenforceable provision shall be replaced with a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in effect.
    4. Independent Contractors. You, FBS and the MLSs are independent contractors, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, or a joint venture. Each Party shall bear its own costs and expenses in performing this Agreement.
    5. Use of Subcontractors. FBS may use one or more subcontractors to exercise its rights and perform its obligations hereunder.
    6. No Waiver. You agree that FBS’s decision not to exercise or enforce any provision of this Agreement shall not constitute a waiver of FBS’s rights and that the rights or remedies of the provision shall remain available.
    7. Assignment. FBS may assign this Agreement, in whole or in part, at any time with or without notice to you. You may not transfer, assign, or delegate this Agreement to any third party, whether by operation of law or otherwise, without our prior written consent. Subject to the foregoing limitation, this Agreement shall be binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
    8. Governing Law; Venue. This Agreement shall be governed by the laws of the State of North Dakota, without reference to its rules governing choice of law or venue or the U.N. Convention on Contracts for the International Sale of Goods. You hereby irrevocably consent to and waive any objection to the exclusive jurisdiction and venue of the federal and state courts located at Cass County, North Dakota for any and all disputes, claims and actions arising from or in connection with the Services or this Agreement. Notwithstanding the foregoing, you agree that FBS or the MLSs may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
    9. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to its subject matter, and supersedes any and all prior or contemporaneous agreements between the Parties with respect to its subject matter.
    10. Notices. Any notice or other communication to be given under this Agreement shall be in writing and given (i) by us via email or a posting in your Developer Account, or (ii) by you via email to administration@fbsdata.com or to such other email or physical addresses as we may specify from time to time. The date of receipt will, in the case of email, be deemed the date on which such notice is transmitted.
    11. Export Restrictions. PRODUCTS ON THE MARKET MAY BE SUBJECT TO UNITED STATES EXPORT LAWS AND REGULATIONS. YOU MUST COMPLY WITH ALL DOMESTIC AND INTERNATIONAL EXPORT LAWS AND REGULATIONS THAT APPLY TO YOUR DISTRIBUTION OR USE OF PRODUCTS. THESE LAWS INCLUDE RESTRICTIONS ON DESTINATIONS, USERS AND END USE.
    12. Government Rights. The Platform is a "Commercial Item", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other End Users pursuant to the terms and conditions herein. Unpublished-rights are hereby reserved under the copyright laws of the United States.
 

DEFINED TERMS