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Spark Store Terms of Use

This document sets forth the terms on which Financial Business Systems, Inc. (“FBS”), and any Multiple Listing Service offering MLS Content through the Spark Platform, makes the Spark API and MLS Content available for use by software developers creating products for sale to and use by MLS members and their customers through the Spark Store. These Spark Store Terms of Use are part of the Developer Agreement, which also is required for use of the API and Platform. By submitting an application through the Store, application developers (“you”) agree to be bound by the following terms of use (“Spark Store Terms of Use”).

  1. Application Submittal, Development, Review and Withdrawal.
    1. Application Submission; Representations. The Platform allows you to submit to FBS a request to sell one or more of your Applications through the Application Store. For each application you submit for review, you shall provide FBS and each MLS using the Platform with access (and continue to provide such access throughout the Term) to the Application for testing and review purposes. You shall also provide FBS with corresponding Application Information (including without limitation a EULA as specified in Section 7.e), and timely updates thereafter throughout the Term. By taking such steps, you represent and warrant that:
      1. The Application complies fully with this Agreement; and
      2. The Application Information is accurate. If any Application Information is inaccurate or otherwise needs to be updated or modified, you shall promptly provide FBS with corrections, updates, or modifications.
    2. Review of Applications. FBS may, at its option, review your Application for approval for Application Store distribution. You acknowledge and agree that FBS may, in its sole discretion, reject your Application for distribution in the Application Store for any reason. A decision by FBS to include your Application in the Platform shall not relieve you of responsibility to ensure the Application complies with this Agreement or the Developer Guidelines.
    3. Notice to MLSs; Opportunity to Reject. Upon approval of your Application by FBS, each MLS participating in the Platform will be provided at least two (2) weeks notice of your Application’s availability. You acknowledge and agree that each MLS may, in its sole discretion, reject your Application for distribution in the MLS’s Store for any reason.
    4. Revocation by FBS or MLSs. You understand and agree that FBS or MLS may revoke approval of your Application and withdraw it from the Application Store or MLS Stores, and from otherwise accessing or using the Platform, at any time and for any reason. In the event such revocation arises from a cause not attributable (in FBS’s sole determination) to a fault of Developer, FBS shall process payments to Members and Consumers for Purchases under the cancellation process of Section 4e. If revocation arises from a cause attributable (in FBS’s sole determination) to a fault of Developer, Developer shall be solely responsible for resolving End User support claims and refund requests. Reasons for revocation attributable to the fault of Developer may include without limitation the occurrence of the following events, or FBS’s reasonable determination or belief that the following events may occur:
      1. Your security certificates or keys have been compromised;
      2. Your Application contains malicious or harmful code, malware or viruses;
      3. Your Application is adversely affecting the performance of the Platform, or End User or third party systems, networks or infrastructure;
      4. You have breached any term of this Agreement or have failed to comply with Developer Guidelines (including without limitation failure to comply with confidentiality requirements, MLS Rules and License Terms or limitations stated in Section 5 below); or,
      5. Your Application violates, misappropriates or infringes the rights of any third party.
    5. Withdrawal by Developer. Subject to other terms of this Agreement, you may withdraw an Application or your services from the Platform or from users under the following terms:
      1. You may withdraw an Application from further sale on the Application Store at any time. Following the withdrawal of an Application from the Application Store, you must continue to provide services purchased under a subscription basis and otherwise continue to meet your obligations to users under your EULA.
      2. You may cancel future subscription renewals of Members and Consumers provided you (i) give thirty (30) days notice to each affected Member or Consumer, (ii) you have advised Members and Consumers of your right to cancel subscription renewals in your EULA, and (iii) you continue to provide services already purchased under a subscription basis and otherwise continue to meet your obligations to users under your EULA.
      3. You may terminate the distribution, operation or support of your Application (and any related access or use of the Platform) altogether by providing written notice to FBS, provided you have no further obligation to any Member or Consumer, including ongoing subscriptions held by Members or Consumers.
      4. In the event you lose necessary rights to distribute, operate or support your Application or become aware of a third party claim related to these rights, you shall notify FBS immediately. At your option, you may take any action under (1)-(3) above or otherwise obtain necessary rights to your Application or resolve any third party claim, provided that in any case you acknowledge and agree that you shall be solely responsible for resolving End User support claims and refund requests.
  2. Application Store Operations.
    1. Purchase of Application Licenses Through the Application Store. Subject to FBS’s and the MLSs’ rights to review and remove Applications, you may offer your Application for license through the Application Store for a fee or at no cost and according to other terms you present through an EULA you provide and which the Store will present to the purchaser and require assent before allowing purchase. The EULA cannot conflict with the terms of this Agreement and, to the extent it does, the terms of this Agreement control.
    2. Trial Periods. You may offer a trial period for your Application on the terms allowed in the Application Store.
    3. All Purchases Are Final; Accidental Purchases. Once a payment has been processed, the End User will have 24 hours to cancel the Purchase through the Store, in which case the Purchase will be considered accidental and the purchase price will be refunded by the Store. Once 24 hours have passed, the Purchase will be deemed final and the Developer will become responsible for responding to any requests for refunds of payments already made.
    4. Developer Refunds. Developer shall be responsible for handling all refund requests from Members and Consumers. Developer, at its option, may provide refunds to such Members and Consumers through a refund feature enabled in the Platform. If FBS determines in its sole discretion that Developer is unable to resolve a support claim, FBS may provide a refund to the End User or to otherwise settle the support claim. The total amount of any refund shall be payable in full by Developer, and Developer agrees to reimburse FBS for the full amount of any shortfall in the Developer Account following a refund. FBS shall have no obligation to refund any part of the Transaction Fee collected on a refunded Purchase.
    5. Discretionary Refunds by FBS. In its discretion, FBS may cancel a Purchase and issue a refund in the following circumstances: (i) if it determines that such a cancellation is needed or may be needed to comply with a court order, statute or regulation, or to otherwise avoid a claim, (ii) following an End User chargeback on a Purchase, (iii) by FBS in its discretion in the event an Application is disabled on End User devices or an End User’s subscription terminated due to the withdrawal of MLS Data, or (iv) as otherwise stated under this Agreement.
    6. Subscriptions. You may offer content or access to your Application on a subscription basis. You shall provide all purchased services of your Application through the entire period the subscription is in effect. You understand and agree that End Users may cancel future subscription renewals through the Application Store at any time. Following such a cancellation, you and the Store shall cease all future billing of the End User for that Application, and shall continue to provide content or access to your Application through the remainder of the already-paid subscription term.
    7. In-App Purchases. Your Application may not offer purchases or payment within the Application. All payments for features, content or information provided by your Application must be made through the Store. FBS shall collect payments for all Application Purchases and shall provide payments to Developer according to Section 4.
    8. Advertising. You may provide advertising in your application only through approved providers and according to Developer Guidelines. Your Application may not service third party advertising, whether embedded into your Application or through other means.
    9. Application Support. You are solely responsible for support and maintenance of your Applications and any complaints about your Applications. Your contact information shall be displayed in the Application and Application Store or otherwise made available to End Users for customer support purposes.
    10. End User Comments. You understand and agree that End Users may provide comments, ratings and other feedback through the Application Store regarding your Application, and that FBS and MLS have no responsibility, liability or other obligation regarding such End User Content. FBS and MLS shall each have the right to review and remove such End User comments, ratings or feedback in their sole discretion, and have no obligation to remove negative End User comments, ratings or feedback.
  3. Payments and Reports.
    1. Payment Processing. FBS has selected a Payment Processor to process payments and collect revenue from Purchases. Developer must process all Purchases through the Application Store. For example, an Application may not allow End Users to buy items, information, or services by linking to an external portal or website. FBS shall collect revenue from all Purchases through the Application Store, and shall make payments to Developer on a monthly basis according to the terms of this Section 4.
    2. Payment Calculation. For each month of the calendar year, FBS shall determine the total amount of all Purchases of Developer Applications through the Application Store, then deduct any cancellation fees under Section 4.e, refunds under Section 4.f, charge backs, sales taxes and the transaction processing fees (approximately 3%) charged by the payment gateway and related credit card processing entities. FBS shall retain a Transaction Fee of 30% of such remaining revenue and shall make a payment of 90% of such remaining revenue to Developer if the Application does not use the listings API (in which case any use of listing data in the Application will need to be independently procured direct from the MLS) and 70% of the revenue if the Application uses the listings API. No payment or credit shall be made to Developer for Applications with a list price of $0.00.
    3. Payment Frequency. FBS shall make payments to Developer for any given month within thirty (30) days of the end of that month. FBS shall be entitled to accrue and withhold payments, without interest, until the total amount due to Developer is at least $10.00(US).
    4. Taxes. FBS shall be responsible for determining if an Application is taxable and the applicable tax rate to collect for each taxing jurisdiction where Application is sold. FBS shall further be responsible for remitting taxes to the appropriate taxing authority.
    5. Right to Withhold, Offset. FBS shall have the right to offset any Transaction Fee amount previously paid or due by you, or require you to remit any such amount to FBS, if FBS issues a refund or credit to an End User or otherwise receives a chargeback.
    6. Other Payment Terms. FBS shall make payments under Section 4.b above to Developer by EFT to a Developer bank account, or otherwise according to payment terms agreed by the Parties. Developer shall be responsible for any income or other taxes due and payable resulting from FBS payments to Developer. Accordingly, unless otherwise stated, the amounts due to you hereunder are inclusive of any taxes that may apply to such payments. FBS maintains the right, however, to deduct or withhold any applicable taxes payable by you from amounts due from us, and the amounts due, as reduced by such deductions or withholdings, shall constitute full payment to you.
    7. Reports. FBS shall provide Developer with access to sales reports in the Platform that track each Purchase transaction.
    8. Audit Rights. FBS shall maintain detailed records of Application Store Purchase transactions and other events upon which monthly payments to Developer are calculated under Section 4.b above. Upon Developer’s request and no more than twice during any twelve (12) month period, FBS shall make such records available to Developer in any electronic format reasonably requested. FBS shall bear the costs of collecting and delivering (in electronic format) such records to Developer.
    9. Billing Issues. You must report any claims or issues related to billing, transaction fees or monthly reports within six (6) months after the date of the report, bill or payment, or any such claim or issue shall be considered waived by you.
  4. Platform License. You may access and use the Platform during the Term solely for the purpose of developing, marketing and deploying Applications as permitted under this Agreement. FBS retains all right (including copyright, patent, trademark and trade secret rights), title and interest in and to the Platform and to all technology, content, information, services, trademarks and other intellectual property used in connection with it. You agree to cooperate with FBS to maintain FBS’s ownership of the Platform and the associated content described above. Except as permitted under this Agreement, you shall not distribute any Platform-related materials or information that you obtain from FBS to third parties.
  5. FBS Brand Features. FBS grants to Developer a limited, non-exclusive, worldwide, royalty-free license to use FBS Brand Features for the term of this Agreement solely for marketing purposes and only in accordance with FBS Brand Guidelines. Any use of the FBS’s Brand Features in connection with this Agreement, and goodwill associated with such uses, will inure solely to FBS. If, according to FBS Brand Guidelines, you publicly refer to the fact that you use or participate with the API or any other part of the Platform, you agree not to make any other public statements that assert or imply any other relationship with FBS, unless you have FBS’s prior written approval. Neither the name of FBS nor the names of the MLSs may be used to endorse or promote products derived from this software without specific prior written permission of FBS or the MLS.
  6. License to Developer Content and User-Generated Content.
    1. License to FBS. You hereby grant FBS the nonexclusive, irrevocable (subject to Section 8), royalty-free right to: (a) sell and distribute Developer Content through the Store under the terms of this Agreement; (b) use, evaluate and test Developer Content; (c) for promotional purposes, use, reproduce, distribute, reformat, create excerpts from, promote, advertise, transmit, and publicly display and perform the Developer Content and Developer Brand Features in any format, including without limitation use within the Platform, FBS websites, in public announcements regarding the availability of the Platform and associated Applications, or in other FBS promotional materials; (d) modify your Applications for purposes of supporting the Platform and your Applications’ operation on the Platform, including without limitation providing digital rights management and allowing FBS to collect and analyze usage information relating to the Applications; (d) sublicense FBS’s rights under this Agreement to FBS’s affiliates, consultants or contractors that assist in the operation of the Platform, and to use such parties in connection with the performance of obligations and exercise of rights under this Agreement; (e) following termination of this Agreement, continue to exercise rights granted in this Section 6 only to the extent required to support existing End Users of your Application, and providing that such End Users’ rights to your Application do not also terminate with this Agreement; and (f) exercise ancillary rights that are reasonably necessary to effect the intent of the grants of rights to FBS under this Section 6, including but not limited to the rights to package, encode, store, transmit, create derivative works based on, and publicly perform and display Developer Content to effectuate such rights. Subject to the rights granted in this Agreement and our ownership of the Platform to which we provide you access, as between you and us, you retain all right, title and interest in and to the Developer Content.
    2. License to End Users. You agree that you provide a license to your Application to Members and Consumers that Purchase your Application under a EULA as stated in Section 7.e.
    3. Additions or Changes to MLS Data. Your Application may enable Members to provide new or modified MLS Content to the Platform, provided that: (i) your Application complies with any Developer Guidelines regarding the collection of MLS Content from Members; and (ii) your Application complies with authentication requirements and MLS Rules and License Terms contained in the Platform to ensure that only authorized Members are permitted to add to or modify any given portion of MLS Content. Any such MLS Content provided by Members shall be considered MLS Content as if provided by FBS and licensed from an MLS. You shall not claim any ownership of or license to (except for the license to MLS Content under this Agreement) such MLS Content provided by Members, whether in your EULA or otherwise.
    4. Member and Consumer Content. Your Application may collect Member Content and Consumer Content, provided (i) Member Content and Consumer Content shall remain the property of each Member and Consumer, respectively, that provided such content; (ii) you store Member Content and Consumer Content only on the Platform; (iii) you may not make or retain copies of Member Content or Consumer Content; and (iv) you may not share Member Content or Consumer Content with any party other than FBS without the consent of the respective Member or Consumer that provided such content. You may access and use Member Content and Consumer Content for purposes of providing services through your Application. You shall not claim any ownership of or license to (except as provided under this Section 6.d) such Member Content or Consumer Content, whether in your EULA or otherwise.