These Terms of Service (this “Agreement”) are entered into by and between Camphor Data Inc., a Delaware corporation (“Camphor”), and the entity or person accessing or using the Camphor Services (“Customer” or “you”). This Agreement consists of the terms and conditions set forth below and any Order Forms that reference this Agreement. If you are accessing or using the Camphor Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” reference your company.
Please note that Camphor may modify the terms and conditions of this Agreement in accordance with Section 9.4 (Amendment; Waivers).
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, EXECUTING AN ORDER FORM WITH CAMPHOR OR ACCESSING OR USING THE CAMPHOR SERVICE, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE CAMPHOR SERVICE. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
Definitions
1.1 The following terms, when used in this Agreement will have the following meanings:
“Affiliates” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition, “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity.
“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Customer Content” means content and other material supplied or made available to Camphor by Customer through the use of or access to the Camphor Services, and excluding the Camphor Services and related materials, templates and technology.
“Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Camphor for the Camphor Services.
“Camphor Services” means the website development, maintenance, hosting and other related services for the purpose of establishing and/or improving Customer’s online visibility and for showcasing Customer’s listings.
“Camphor Templates” means the template Terms of Service and Privacy Policy forms provided by Camphor to the Customer.
“Order Form” means an order form, quote or other similar document that sets forth the specific Camphor Services and pricing therefor, and that references this Agreement and is mutually executed by the parties.
Camphor Services
2.1 Provision of Services. Subject to the terms and conditions of this Agreement, Camphor will make the Camphor Services available to Customer pursuant to this Agreement and the applicable Order Form, and hereby grants Customer a non-exclusive right to access and use the Camphor Services to operate and display the website set forth in the Order Form (“Customer Website”). The Camphor Services require Customer’s reasonable cooperation and diligent efforts in working with Camphor to create and launch a website. To the extent Customer does not provide reasonable cooperation, there may be delays in connection with the launch of Customer’s website.
2.2 Customer Limitations. The rights granted herein are subject to the following restrictions (the “License Restrictions”):
(a) Customer will not reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Camphor Services;(b) Except for Customer Website that use the Camphor Services, Customer will not transfer, distribute, resell, lease, license, or assign Camphor Services or otherwise offer the Camphor Services on a standalone basis;
(c) Customer will not use the Camphor Services to violate any applicable local, state, national or international law, or any regulations having the force of law; impersonate any person or entity, or falsely state or otherwise misrepresent its affiliation with a person or entity; solicit personal information from anyone under the age of 18; or further or promote any criminal activity or enterprise or provide instructional information about illegal activities;
(d) Customer will not otherwise use the Camphor Services outside the scope expressly permitted hereunder and in the applicable Order Form; and
(e) Customer will ensure that its users do not use temporary email addresses or share user accounts among multiple individuals, and Customer will permit Camphor to terminate the accounts of any users that violate this Agreement.
2.3 Customer Responsibilities Regarding Account. Customer will (a) be responsible for all use of the Camphor Services and Documentation under its account (whether or not authorized), (b) be solely responsible for the accuracy, quality, integrity and legality of Customer Content and Customer Website(s), (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Camphor Services and Documentation and notify Camphor promptly of any such unauthorized access or use and (d) be responsible for obtaining and maintaining any
equipment, software and ancillary services needed to connect to, access or otherwise use the Camphor Services, including as set forth in the Documentation.
2.4 Camphor Templates are Not a Substitute for Legal Advice. Camphor provides an all-in-one platform for building and managing luxury real estate websites and brands and other related services. Camphor may provide the Customer with template Terms of Service and Privacy Policy forms for use in connection with its website and brands. The Terms of Service and Privacy Policy templates are provided for the Customer’s private use and do not constitute legal advice. Customer should consult with and work with Customer’s legal counsel to review the Terms of Service and Privacy Policy, and to ensure that the Terms of Service and Privacy Policy on the Customer’s website accurately reflects Customer’s content and practices.
2.5 Delays to Subscription Start Date. Customer shall be responsible for the recurring monthly fees after the Subscription Start Date (as set forth in the corresponding Order Form). The Subscription Start Date may only be postponed if there are website bugs that prevent the site from functioning materially as outlined in the Agreement. For clarity, the following are not valid reasons to delay the Subscription Start Date: (i) Customer is unable to produce or supply the proper content needed for the website (community copy, bio, images, videos, etc.), or voluntarily chooses to delay the launch of the website due to lacking the aforementioned content; (ii) Customer would like to have a new feature completed prior to website launch that is outside the original scope of contract; in such case, the new feature would be developed on a different timeline outside of the original delivery date and would not delay the Subscription Start Date; or (iii) Customer was not aware that subscriptions may start even without a website being fully launched.
2.6 Website Launch.
(a) Provision of Content by Customer. Customer shall provide all necessary website content using the mechanism designated by Camphor within fourteen (14) days from the effective date to allow appropriate time for the development of the website. In the event that Customer fails to provide the necessary content on a timely basis, the website launch date shall be pushed back by the amount of the delay.
(b) Revision Process. Following delivery of the necessary content by Customer, Camphor shall deliver a staging link with the initial draft of the website no later than fourteen (14) days from the day all necessary content is received by Camphor. After staging link is sent to Customer, Customer shall request any further revisions to the website within seven (7) days using the feedback form provided by Camphor. After the requests have been received, Camphor shall make the revisions within seven (7) days of receiving them. Camphor shall provide up to two (2) rounds of revisions subject to Customer’s reasonable approval of all revisions included in each round. Customer acknowledges that Camphor does not proceed with any additional revision work until all changes/requests for each round are confirmed by Customer. Customer further acknowledges that any additional revision requests, no matter how minimal, will only be worked on when submitted as part of an official revision round.
(c) Final Approval Process. Customer shall provide final approval within seven (7) days of receiving the revised staging website. Camphor shall undertake its best efforts to launch the fully-functioning website no later than four (4) weeks from the effective date of this Agreement provided the Customer supplies all necessary assets (including photos, videos and copy) within seven (7) days of contract signing.
(d) Scope of Revisions. For clarity, “revisions” shall only include changes that can be made within the structure of the applicable template such as HTML & CSS, but do not include any custom coding changes or non-standard template features, which shall be subject to Camphor’s approval and standard hourly rate (as set forth below). Further, Customer understands that requesting components from other design templates is outside the scope of the agreement except where approved in writing by Camphor. Finally, Customer acknowledges that web design and development is a creative and subjective endeavor that is heavily guided by Customer direction. Any final website deliverable is the responsibility of the Customer if the original design template was modified in any way.
Fees
3.1 Fees. Customer will pay Camphor the fees set forth in the Order Form, which will include a recurring subscription fee and potentially other fees depending on the Camphor Services set forth therein. Customer understands and agrees to be charged the monthly subscription fees outlined above starting on Subscription Start Date independently of whether or not the website has been launched at that time. Unless Camphor has a separate written agreement with Customer, Camphor reserves the right to change its prices and fees from time to time in its sole discretion. If it does so, Camphor will provide Customer with written notice of any such changes and such the new pricing and fees will take effect upon Customer’s next renewal.
3.2 Payment. Except as otherwise specified herein or in any applicable Order Form (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable, except as expressly set forth herein. Unpaid amounts are subject to a late fee of $50 if an invoice is unpaid for more than fourteen (14) days and $150 if the invoice is unpaid for more than thirty (30) days, plus all expenses of collection and may result in immediate termination of Camphor Services.
3.3 Payment Method. Except as otherwise specified in any applicable Order Form, Customer expressly authorizes Camphor to automatically charge its payment method on file (e.g. credit card, debit card or e-check) for each executed Order Form (including any future agreed upon charges or fees). Customer represents and warrants to Camphor that it is authorized to use the payment instrument. Customer will promptly update its account information with any changes (for example, a change in to billing address or credit card expiration date) that may occur.
3.4 Net of Taxes. All applicable use, sales and other similar taxes and government charges will be payable by Customer other than U.S. taxes based on Camphor’s net income. Customer will not withhold any taxes from any amounts due to Camphor.
Proprietary Rights and Confidentiality
4.1 Camphor’s Ownership Rights. As between the parties, Camphor exclusively owns all right, title and interest in and to the Camphor Services. Except for the express rights granted hereunder, Camphor reserves all rights, title and interests in and to the Camphor Services and Camphor’s Confidential Information.
4.2 Camphor Marks. Camphor hereby grants Customer a non-transferable, non-sublicensable, non-exclusive license during the term of this Agreement to display the trade names, trademarks, service marks, logos, domain names of Camphor (each, a “Camphor Mark”) for the purpose of promoting or advertising that Customer uses the Camphor Services. In using Camphor Marks, Customer may not: (a) display a Camphor Mark in any manner that implies a relationship or affiliation with, sponsorship, or endorsement by Camphor; (b) use Camphor Marks to disparage Camphor or its products or services; or (c) display a Camphor Mark on a site that violates any law or regulation. Furthermore, Camphor may modify any Camphor Marks at any time, and upon notice, Customer will use only the updated Camphor Marks. Other than as permitted in this Section, Customer may not use any Camphor Marks without prior written consent. All use of the Camphor Marks will be subject to any trademark usage guidelines that Camphor may provide from time to time, and Customer will conduct its business in a professional manner that reflects favorably on the goodwill and reputation of Camphor.
4.3 Feedback. Customer may from time to time provide Camphor suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Camphor Services. Camphor will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Camphor will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
4.4 Customer Content. As between the parties, the Customer Content. Customer hereby grants to Camphor a non-exclusive, worldwide license to copy, distribute and use Customer Content only in connection with providing the Camphor Services.
4.5 Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section or the License Restrictions, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
4.6 Aggregated Information. Notwithstanding anything to the contrary, Camphor shall have the right to aggregate, collect and analyze data and other information relating to the provision, use and performance of the Camphor Services and shall be free (during and after the term hereof) to (i) use such data and other information to develop and improve the Camphor Services and other Camphor offerings, and (ii) disclose such data and other information solely in an aggregated and anonymized format that does not identify Customer or any individual.
Warranties and Disclaimers
5.1 Warranties by Camphor. Camphor warrants that it will use commercially reasonable efforts to maintain the Camphor Services in a manner designed to minimize errors and interruptions in the Camphor Services and perform the Camphor Services in a professional and workmanlike manner.
5.2 Warranties by Customer. Customer warrants that it has the necessary rights, licenses, consents, permissions, waivers and releases to use, make available and distribute the Customer Content in connection with the Camphor Services as contemplated herein. In addition, Customer represents and warrants that Customer’s use of Camphor Services: (i) will comply with all applicable laws and regulations (including, without limitation, all applicable laws regarding online conduct and data privacy); (ii) will not be for any unlawful purposes, to publish illegal content, or in furtherance of illegal activities; and (iii) will not infringe or misappropriate the intellectual property rights of Camphor or any third party.
5.3 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, CAMPHOR DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR
A PARTICULAR PURPOSE.
Limitation of Liability
6.1 IN NO EVENT WILL CAMPHOR BE LIABLE TO CUSTOMER OR ANY THIRD PARTY UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, LOST DATA, LOST OPPORTUNITIES, COSTS OF COVER, EXEMPLARY, PUNITIVE, PERSONAL INJURY/WRONGFUL DEATH, SPECIAL, INCIDENTAL, INDIRECT OR OTHER CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES, REGARDLESS OF WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL CAMPHOR’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
Indemnification
7.1 Customer Indemnification. Customer will defend, indemnify and hold harmless Camphor, its Affiliates and their respective directors, officers, employees and agents from and against any and all third party claims, suits, actions, proceedings, damages, costs, liabilities, losses and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or relating to (a) Customer’s use of the Camphor Services in violation of this Agreement, (b) any breach of this Agreement or violation of applicable law by Customer or (c) Customer Content or Customer Website.
7.2 Procedure. The indemnified party will promptly notify the indemnifying party of any claim or demand to which the indemnity may apply and will reasonably cooperate with the indemnifying party, at the indemnifying party’s expense, in the defense and settlement of such claim or demand. The indemnifying party will have sole control over the defense and settlement of any claim or demand, provided that the indemnified party may participate in such defense or settlement at its own expense. The indemnified party will not, without the prior written consent of the indemnifying party, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened claim or demand, unless such settlement, compromise or consent includes a full and unconditional release of the indemnified party from all liability arising out of such claim or demand.
Term and Termination
8.1 Term. This Agreement will commence on the Effective Date and will continue in effect until the expiration or termination of all Order Forms.
8.2 Termination. Either party may terminate this Agreement, effective upon written notice to the other party, if the other party materially breaches this Agreement, and such breach remains uncured for thirty (30) days following written notice thereof.
8.3 Effect of Termination. Upon expiration or termination of this Agreement: (a) all rights and licenses granted hereunder will immediately terminate; (b) each party will return and make no further use of any Confidential Information of the other party; and (c) Camphor may delete any Customer Content, and any and all other information, data, and content stored in connection with Customer’s use of the Camphor Services.
8.4 Survival. The following Sections will survive any termination or expiration of this Agreement: 2.6, 3 (to the extent of any payment obligations incurred prior to termination or expiration), 4, 5.3, 6, 7, 8.3 and 9 through 13.
Miscellaneous
9.1 Governing Law. This Agreement and any dispute arising out of or in connection with this Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of laws principles.
9.2 Dispute Resolution. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity hereof, shall be settled by arbitration in accordance with the JAMS Comprehensive Arbitration Rules & Procedures then in effect. The arbitration shall take place in San Francisco, California. The decision of the arbitrator(s) shall be final and binding upon the parties and judgment upon such decision may be entered in any court of competent jurisdiction. The prevailing party in any such arbitration shall be entitled to recover its reasonable attorneys’ fees and costs.
9.3 Entire Agreement. This Agreement, together with any Order Forms and any attachments or exhibits hereto, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
9.4 Amendment; Waivers. No modification, amendment or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. No waiver of any provision of this Agreement will be deemed a further or continuing waiver of such provision or any other provision.
9.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
9.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any purported assignment in violation of this section is null and void.
9.7 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
9.8 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
9.9 Notices. All notices required or permitted under this Agreement will be in writing and will be deemed given when: (a) delivered personally; (b) sent by confirmed facsimile; (c) sent by commercial overnight courier with written verification of receipt; or (d) three (3) days after being sent by certified or registered mail, return receipt requested, postage prepaid. All communications will be sent to the addresses set forth in the applicable Order Form or such other address as may be designated by a party by giving written notice to the other party pursuant to this Section.
9.10 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
9.11 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A facsimile, electronic or .pdf copy of this Agreement, including the signature pages, will be deemed an original.