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DEVELOPER AGREEMENT

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. 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. 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, including the provisions in Section 5 (License to MLS Content and Platform; Limitations) below;
      2. 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;
      3. For browser applications, inclusion of the App Bar (http://sparkplatform.com/docs/supporting_documentation/spark_bar_integration);
      4. 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;
      5. 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.
      6. 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.
      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. For applications using the Spark API, compliance with the API Documentation (http://sparkplatform.com/docs/api_services/read_first) and API Terms of Use (http://sparkplatform.com/docs/terms_of_use/api), which are incorporated into this Agreement by this reference;
      11. You shall not remove, modify, impair, reverse-engineer or otherwise access or alter any security or analytics component provided or used by FBS; and
      12. Any other requirements outlined in this Agreement.
    3. 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.
    4. 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.
    5. 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.
    6. 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.
  3. 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.
  4. 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.
  5. 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 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; 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 End User scraping, harvesting or other collection of MLS Content;
      3. You may not retain any copies of MLS Content. Your license to MLS Content is limited to making direct server calls to the Platform for MLS Content and to distributing MLS Content to End Users of your Application immediately upon receipt by your servers;
      4. 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;
      5. You may not present the MLS Content (or permit MLS Content to be presented) so that it appears to be available from a third party web site; and,
      6. 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.
      7. 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.
      8. 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. 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.
    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.
  7. 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.
  8. 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, Store, or Spark Bar, 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.
  9. 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.
  10. 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.
  11. 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.
  12. 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.
  13. 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

  • "Application(s)" are software applications or other digital products created by Developers for license through the Platform, including any content, services, technology, data and other materials included in or made available through such products, together with their enhancements, upgrades, updates, bug fixes, new versions and other modifications and amendments.
  • "Application Information" consists of all information provided to FBS by a Developer with an Application, including any information and content related to Applications and to Developer, such as all metadata, graphics, artwork, images, trademarks, trade names, logos and other descriptive or identifying information and materials associated with the Developer or Application.
  • The "Application Store" or "Spark Store" is a virtual storefront within the Platform that will allow MLS Members to discover, purchase, and review Applications provided by Developers for sale in the Store. The Application Store refers to the store in its entirety and is to be distinguished from an MLS Store, which only offers the Applications approved by a particular MLS.
  • "Brand Features" means trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of a Party, as owned or licensed by such Party from time to time.
  • "Confidential Information" shall mean any information in written, electronic, oral or tangible form that is, by its nature, confidential to the Disclosing Party or its business including, without limitation: (i) strategies and business models, methods, procedures, devices, data processing programs, computer models, research projects, and other means used by Disclosing Party in the conduct of its business; (ii) any information that deals with or relates to the Disclosing Party’s past, present or future business processes or plans; (iii) ideas, know-how, specifications, customer lists, marketing plans, procedures and software programs; and (iv) financial or other trade secret or proprietary information that is not generally known or available to the general public, but has been learned, developed, acquired or compiled by the Disclosing Party at great effort and expense. Confidential Information specifically includes MLS Content, Member Content, Consumer Content, materials and information related to the Platform provided to MLS, and this Agreement.
  • "Consumers" are persons or entities granted permission by a Member through Consumer Terms of Use to access and view MLS Content through Applications either anonymously through an IDX application or as a Registrant through a VOW application.
  • "Consumer Content" consists of information saved by Consumers on the Platform, including without limitation contact information, saved searches, listing carts, favorites, email links, messages, and notes.
  • "Consumer Terms of Use" are the terms of use applicable to use of Platform services and Applications by Consumers, available at http://sparkplatform.com/docs/terms_of_use/consumer and subject to change from time to time.
  • A "Developer" is a person or entity in the business of developing and marketing software applications for sale through the Platform.
  • A "Developer Account" is an account issued to a Developer by FBS and accessible through the Platform or at the website at http://sparkplatform.com.
  • "Developer Agreement" is an agreement between FBS and Developers under which Developers develop, market and distribute Applications for the Platform, available at http://sparkplatform.com/docs/terms_of_use/developer and subject to change from time to time.
  • "Developer Content" consists of Applications, Application Information, associated documentation, and any other materials, notices, advertising or information provided by Developer to FBS.
  • An "End User" is a Member or Consumer that Purchases an Application, and is bound by the MLS Member Terms of Use or Consumer Terms of Use, respectively.
  • A "EULA" is an End User License Agreement provided by a Developer, at its option, to End Users.
  • "IDX" or "Internet Data Exchange" is an MLS Rule that allows one Member to display on their web site to Consumers certain MLS Content of other Members if they comply with the MLS Rules and License Terms for IDX.
  • "Members" of an MLS consist of persons or entities, including without limitation real estate agents, brokers, brokerage companies, appraisers, and others, identified by MLS as subscribing to the MLS service and agreeing to MLS Rules and License Terms.
  • "Member Content" consists of information saved by Members on the Platform, including without limitation information regarding the member’s contacts (e.g., contact name, email address, phone, address, and other information), saved searches, listing carts, emails, messages, user preferences, and notes (both private and shared). Member Content shall not include Member changes to MLS Content.
  • "MLS Content" is any information provided by MLS to FBS via the MLS RETS servers, MLS system, or other methods, along with any changes to such information made through the Platform, including without limitation listings, listing history, images, documents, multi-media links or embed codes (e.g., virtual tours, videos, floor plans), open house and agent tour information, member rosters, user preferences, saved searches, or other information. MLS Content shall include MLS Content in its standardized form under Section 5.f.
  • "MLS Member Terms of Use" are the terms of use applicable to MLS Members’ use of Platform services, which terms are available at http://sparkplatform.com/docs/terms_of_use/mls_member and subject to change from time to time.
  • "MLS Rules and License Terms" are specified by MLS in the API Manager and available to Developers and Applications through the API (http://sparkplatform.com/docs/api_services/system_info, including without limitation, for each user Role (e.g., MLS Member, IDX, VOW, etc.), the terms and agreements required, display requirements (e.g., what fields and disclaimers must and may be required to be displayed when displaying the MLS Content), and other rules for use or display of MLS Content.
  • The "MLS Store" is the portion of the Platform Store that is integrated or linked to the MLS system or website(s) and which only contains Applications not rejected by MLS.
  • A "Payment Processor" is an entity contracted by FBS to provide payment processing services for Store Purchases.
  • "Purchase(s)" are initial sales of Applications, purchases of upgrades or keys that unlock services, in-app purchase sales, subscription fees or renewals and any sales or exchanges that arise from an Application. Obtaining an Application, service or a subscription for a price of $0.00 shall be deemed a Purchase of or through an Application.
  • "Registrant" is a person or entity who has established a lawful consumer-broker relationship, including completion of all actions required by state law, with a Member and has registered with Member for authenticated access to MLS Content by providing their name and email address to Member through their web site or by other means.
  • "Spark API" is the application programming interface documented at http://sparkplatform.com/docs/overview/api.
  • "Spark API Manager" is a part of the Platform that includes the Role Manager, Field Manager, and Field Mapper.
  • The "Role Manager" allows MLS to define the MLS Rules and License Terms for access permissions for each user role ("Role") allowed to access the MLS Content through the Platform;
  • The "Field Manager" allows MLS to specify what fields are available for each Role; and
  • The "Field Mapper" allows MLS to view how FBS has mapped the MLS Content to the RESO data dictionary.
  • "Spark Bar" or "App Bar" is software installed in or linked to the MLS system to provide Members access to the Spark Store, the applications purchased through the Store, notifications, user profile, logout, and other functionality that may change from time to time.
  • "Spark Platform" or "Platform" is the software owned and provided by FBS, which includes without limitation the Spark API, Store, App Bar, Role Manager, Data Mapper, and any other associated software, help documentation, and other materials. The Platform excludes MLS Content, Member Content, and Consumer Content.
  • "Term" is the term of this Agreement defined in Section 8a.
  • "VOW" or "Virtual Office Web Site" is a web site operated by a Member that provides Registrants access to certain MLS Content in compliance with the MLS Rules and License Terms for VOWs.