First American Real Estate/Int Access 06$1 AMER,
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LICENSE AGREEMENT
This License Agreement is effective ("Effective Date") the date
accepted and executed by First American Real Estate Solutions,
L.P., a Delaware limited partnership ("FARES") and City of La
Quinta, California ("Customer").
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following meanings with such meanings to be equally
applicable to both the singular and plural forms of the terms defined:
"Agreement" means this License Agreement, all
exhibits attached hereto, any terms and conditions
included within a Service, and any agreements, schedules
or exhibits supplementing or amending this agreement.
If there is a conflict between this License Agreement and
the terms and conditions included within a Service, this
License Agreement shall control and prevail.
"End User" means an individual or entity determined by
Customer to have a legitimate business need to use
Customer's products, whom Customer has approved as a
qualified subscriber of Customer's products, and who
has permission to access Customer's system on a
restricted basis using an assigned password or other
security mechanism to order Customer's products.
"Fees" means the amount payable by Customer for
access to and use of the Service as described in Exhibit
A, Part D (Fees).
"Images" means certain FARES real property
documents as specified in Exhibit A, Part A, (FARES
Services) and as available to and updated by FARES in
the regular course of its business.
"Information" means certain FARES' real property
information obtained from public records and other
sources, as specified in Exhibit A, Part A (FARES
Services), and as available to and updated by FARES in
the regular course of its business.
"Interface" means the order management system to be
developed by Customer for End Users with Internet -
based access to the Hub to access the Valuation Service,
to order and receive Reports and data and to perform any
required translation of such Reports and data into data
representations suitable for delivery to End Users.
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"Permitted Applications" means the allowed use of the
Service described in Exhibit A. Part B (Permitted
Applications).
"Processor" means an entity independent of Customer
that processes data on behalf of Customer hereto.
"Proprietary Information" means the Service and all
other data, manuals, documentation, software programs,
algorithms, and other information that may be disclosed
or provided to Customer in the course of providing the
Service, and all intellectual property rights thereon.
"Service" means the Software Applications, Valuation
Models, Information, Images and any applicable user
manuals and any other Services provided by FARES to
Customer as specified in Exhibit A, Part A (FARES
Services). The Service includes any corrections, bug
fixes, enhancements, updates or other modifications,
including reasonable service replacements, to the
Service.
"Software Applications" means the computer program,
services, functions, in object code only, as specified in
Exhibit A, Part A (FARES Services) offered by FARES
to access the Information, Valuation Models or Images
and to automatically generate information for specific
real properties based on user -defined variables and
proprietary FARES computer programs.
"Sublicensee" means an individual or company as
authorized in the Permitted Applications that Customer
permits to redistribute a Service, in whole or in part,
alone or in combination with other products or services
Customer may offer.
"Valuation Models" means certain FARES' real
property valuation information for a specific residential
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property generated by the automated valuation models as outputted in FARES' standard data formats.
specified in Exhibit A. Part A (FARES Services) and
2. LICENSE
2.1 Grant. Subject to the terms and conditions of
this Agreement (including Customer's obligation to pay
for Service access), FARES grants to Customer a non-
exclusive, non -transferable license to the Service, under
FARES' intellectual property rights in the Service, to use
each Service solely for the Permitted Applications for
each such Service. Seed names have been included in
the Licensed Data to detect unauthorized use.
2.2 Restrictions on Use. Unless expressly
authorized otherwise in the Permitted Applications,
Customer agrees to, represents, and warrants to FARES,
both during and after the term of this Agreement, the
following provisions:
(a) The Service is for the sole use within
Customer's own organization and by Customer's own
employees or agents. The Service may not be shared
with affiliates or any third party, including joint
marketing arrangements. The Service may not be used
outside the United States without the prior written
consent of FARES.
(b) Customer agrees both during and after the term
of this Agreement that Customer shall not: (i) disclose,
use, disseminate, reproduce or publish any portion of the
Service in any manner other than as stated in this
Agreement, (ii) permit any parent, subsidiaries, affiliated
entities or other third parties to use the Service or any
portion thereof (iii) process or permit to be processed the
Service or any portion thereof, except in accordance with
the provisions of this Agreement, with other data or
software from any other source, (iv) allow access to the
Service through any terminals located outside of
Customer's operations, (v) use the Service to create,
enhance or structure any database in any form for resale
or distribution, except in accordance with the terms of
this Agreement, or (vi) use the Service to create
derivative products. Customer shall be solely
responsible for obtaining any and all necessary licenses,
certificates, permits, approvals or other authorizations
required by federal, state or local statute, law or
regulation applicable to Customer's use of the Service.
FARES makes no representations or warranties about the
legality or propriety of the use of the Service in any
jurisdiction, state or region.
(c) Customer will (i) not use for solicitation the
name, mailing address or telephone number of a
consumer that is designated within the Service as
requesting protection from solicitation, (ii) abide by all
prevailing federal, state, and local laws and regulations
governing fair information practices and consumers'
rights to privacy, and (iii) limit access to consumer
information to those individuals who have a "need to
know" in connection with Customer's business and will
obligate those individuals to acknowledge consumers'
rights to privacy and adhere to fair information practices;
(d) Customer will not use the Service (i) as a factor
in establishing an individual's eligibility for credit or
insurance, (ii) in connection with underwriting individual
insurance, (iii) in evaluating an individual for
employment purposes, (iv) in connection with a
determination of an individual's eligibility for a license
or other benefit granted by a governmental authority, (v)
in connection with any permissible purpose as defined by
the Fair Credit Reporting Act (15 U.S.C. Sections 1681
et seq.), or (vi) in any other manner that would cause
such use of the Service to be construed as a consumer
report by any authority having jurisdiction over any of
the parties;
(e) Customer will not use the Service for any
purpose that (i) infringes any third parry's copyright,
patent, trademark, trade secret or other proprietary rights
or rights of publicity or privacy, (ii) violates any law,
statute, ordinance or regulation (including without
limitation the laws and regulations governing unfair
competition, anti -discrimination or false advertising), or
(iii) is defamatory, trade libelous, unlawfully threatening
or unlawfully harassing;
(f) To the extent Customer is authorized under this
Agreement to publish or otherwise permit access to the
Service on a World Wide Web site or otherwise via the
Internet, Customer will adopt, publish, and comply with
privacy policies that comply with either the guidelines
established by TRUSTe.org as more fully set forth at
hqp://www.truste.org, the Better Business Bureau, such
other organization as the parties mutually agree to select;
or Customer's privacy policy if attached hereto Exhibit
P.
(g) Customer will comply with the published
guidelines of the Direct Marketing Association and
federal and state laws regarding the use and
dissemination of data such as the Service;
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(h) Customer will not remove, alter or obscure any
proprietary notices in the Service or other materials
provided by FARES hereunder and will reproduce all
such notices on all copies or portions thereof; and
Customer will not provide or cause to be provided the
Service to a Processor, unless such Processor enters into
an agreement attached hereto as Exhibit B (Third Party
Processor) acknowledging that Processor will not use the
Service except for fulfilling its processing obligation to
Customer.
3. DELIVERY OF DATA AND FORMAT
FARES will provide to Customer the Services and
updates in accordance with the provisions set forth in
Exhibit A, Part C (Delivery). Customer acknowledges
that the amount of Information available varies
substantially from area -to -area, and that circumstances
may exist or arise which may prevent FARES from
providing such data or achieving complete representation
of all data elements of the Services. The Information
shall not be construed as or constitute a representation as
to the condition of title to real property. The Information
may not include all recorded conveyances, instruments
or documents which impart constructive notice with
respect to any chain of title described in the Information.
Customer further acknowledges that the sale amount data
element of any deed transaction data included within the
Information is not available in some states and some
such sale amount data are estimates of value based on
available data and are calculated by FARES.
4. FEES
4.1 Fees. In consideration of the rights granted
Customer hereunder, Customer will pay FARES the Fees
monthly within thirty (30) days of FARES invoice unless
provided differently in Exhibit A.
4.2 Taxes. Fees are exclusive of sales, use, ad
valorem, personal property, and other taxes, which are
the responsibility of Customer. FARES shall charge
Customer applicable sales tax, Customer shall be
responsible for filing all other taxes.
If applicable, Customer must provide FARES with a
Reseller Identification Certificate in order to be exempt
from sales tax charges on royalty fees.
4.3 Billing; Payments; Late Fees. At the end of each
FARES monthly billing cycle, FARES will invoice
Customer for all Fees incurred by Customer during such
billing cycle. Customer will pay the invoice in full
within thirty (30) days of receipt. If full payment is not
made, a charge equal to one and one-half percent (1'/2%)
will be added to the balance due, not to exceed the
maximum legal limit permitted by law. If Customer
becomes thirty (30) or more days past due, Customer's
Notwithstanding anything herein to the contrary, FARES
may discontinue providing Services for any geographic
location which prohibits FARES' providing of such
Services in accordance with this Agreement, or for any
geographic location as to which FARES has discontinued
the collection of data for its own business.
FARES and Customer shall renegotiate the Fees in good
faith according to the prevailing pricing models if
FARES materially modifies the content or geographic
coverage of the Services provided to Customer.
FARES reserves the right to invoice (at FARES'
prevailing price models) additional file refreshes and
duplicates which the parties consider outside the scope of
the Agreement, should Customer make such a request of
FARES.
access or shipment will be automatically disabled until
all past due charges are paid, and Customer shall be in
default of this Agreement. Customer will continue to be
responsible for any monthly minimum charge during any
period that access or shipment is suspended. If it
becomes necessary for FARES to enforce this
Agreement through an attorney, collection agency, or
directly through small claims court, Customer shall pay
all attorney's fees, agency fees, court costs, and other
collections costs, including without limitation post -
judgment costs for legal services at trial and appellate
levels. Delinquency may affect Customer's credit rating.
4.4 Reporting and Audits.
(a) Report. Within thirty (30) days after the
end of each calendar month, Customer will provide
FARES' accounting department a detailed and accurate
statement of the calculation of all payments earned with
respect to such month, together with payment thereof. If
applicable, such report shall indicate which transactions
are subject to the Perpetual License Fees described in
Exhibit A, if applicable.
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(b) Audits. (i) Financial Audits:
Customer will maintain current, accurate, and complete
books and records relating to its usage of the FARES
Services and all payments due FARES hereunder.
FARES or its designee (which may be a certified public
accountant chosen by FARES) may, at any time while
this Agreement is in effect and for a period of six months
thereafter (but no more than once in a six-month period),
require Customer to provide a certified statement
prepared by a certified public accountant, at Customer's
expense, verifying the accuracy of records relating to
Customer's usage of the Service and all payments due
FARES. If such certified statement indicates any errors
in Customer's records, FARES, or its designee, may, on
reasonable advance notice to Customer and during
reasonable business hours, examine, inspect and audit
such books and records and any source documents
pertaining thereto for the limited purpose of verifying the
accuracy of Customer's reports and the amounts due
hereunder. FARES, or its designee, may, during the
course of such examination, review or audit and make
such copies and/or extracts of Customer's books and
records relating to Customer's usage of the Service.
FARES shall treat all such information reviewed during
an audit as confidential and will not disclose same to any
third party (excluding FARES' designee) without the
written consent of Customer. The parties each shall pay
for one-half the cost of such audit, unless FARES finds
that Customer underpaid the amount of fees due
hereunder in an amount greater than ten percent (10%) of
the amount actually remitted. If Customer's
underpayment of such fees exceeds ten percent (10%) of
the amount actually remitted, the Customer agrees to pay
the full cost of the audit. Customer agrees within thirty
(30) days of discovery of such underpayment to (i) make
such underpayment and (ii) pay for the full cost of the
audit, if applicable. (ii) Compliance Audits. FARES
reserves the right, at its own expense, to select an
independent auditor to audit Customer for the purpose of
ensuring Customer's compliance with the terms and
conditions of this Agreement, after providing Customer
with reasonable notice thereof. If such audit indicates
there has been a material breach in Customer's
compliance of the Agreement, FARES will provide
Customer with written notice of such material breach. If
Customer does not cure the breach within ten (10) days
of receipt of written notice from FARES, FARES may
terminate the Agreement and pursue its other legal
remedies. Should Customer not cooperate with FARES'
reasonable request to audit for compliance within thirty
(30) days of notice thereof, Customer shall be deemed to
have conclusively admitted to a material breach in
Customer's compliance for which FARES may
immediately terminate the contract and pursue its legal
remedies.
5. TERM; TERMINATION
5.1 Term. The initial term of this Agreement shall
be for a period of twelve (12) months, commencing on
the Effective Date.
5.2 Termination. This Agreement may not be
terminated without cause during the initial term. Either
party may forego automatic renewal by giving the other
party not less than sixty (60) calendar days written notice
of termination prior to the expiration of the then -current
term. Except for the termination provisions in Section
4.4(b) (Audits), if either party breaches any provision of
this Agreement, the non -breaching party shall, upon
providing written notice of such breach, be entitled to
immediately terminate this Agreement, provided such
breach is not cured within thirty (30) days following such
notice. If this Agreement is terminated as a result of a
breach, the non -breaching party shall, in addition to its
right of termination, be entitled to pursue legal remedies
against the breaching party. Notwithstanding the
foregoing, if Customer is in breach under Section 4
(Fees) of this Agreement, FARES may terminate this
Agreement effective ten (10) days after giving Customer
written notice of such default, unless Customer shall
have remedied the breach within such ten (10) day
period.
5.3 Payment upon Expiration or Earlier
Termination. Upon the expiration or termination of this
Agreement as set forth above in Subsections 5.1 (Term)
and 5.2 (Termination), Customer shall pay FARES in
full for all products actually delivered and services
actually performed by FARES under this Agreement
prior to the effective date of such expiration or
termination.
5.4 Return of Materials. Upon termination of this
Agreement by either party, Customer, at its own expense,
shall within fifteen (15) days of such termination, at
FARES' option as FARES shall notify Customer in
writing, (i) return all Service materials and Information
to FARES at the address set forth below on the signature
page of this Agreement or (ii) certify (by a certificate
signed by an officer of Customer) that such Service
materials and Information have been destroyed. If such
Service materials and Information have not been returned
or destroyed in accordance with the above, Customer
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shall provide FARES or FARES' agent access to
Customer's premises for the retrieval of all such
materials, and Customer shall pay the actual costs as
reasonably incurred by FARES to retrieve such
materials. Customer shall be obligated to continue
paying FARES fees ordinarily and reasonably charged
by FARES for data of a similar nature and use after the
termination of this Agreement, until such time as
Customer returns to FARES or destroys such materials.
In the alternative, Customer may pay FARES a Perpetual
License Fee annually, if specifically provided for in
Exhibit A, Part D, to retain the Information in
Customer's database. The parties agree that all
restrictions and grants of use shall continue to apply
should Customer be permitted to perpetually license the
Information.
6. USE AND TRAINING
Customer shall limit use of the Service to its employees
who have been appropriately trained. FARES shall
provide, at a mutually convenient time, initial training in
the use of the Service at no charge at mutually agreed
upon locations, including Customer's premises. FARES
will provide Customer with a telephone number for
Customer to request assistance in the use of the Service
Monday through Friday, 7 a.m. to 5 p.m. Pacific
Standard Time, at no charge, as reasonably required and
requested by Customer.
7. THIRD PARTY USE
If the Permitted Applications include providing a Service
to End Users or Sublicensees, Customer agrees to
contractually require all End Users to sign an agreement
with substantially similar terms to this Agreement.
Customer warrants that in no event shall End Users' or
Sublicensees' use of the data be unrestricted or expand
beyond the Permitted Applications of this Agreement.
This Section 7 is not intended to provide the Service to
End Users or Sublicensees unless specifically provided
for in Exhibit A (Permitted Applications) of the
Agreement. Customer shall be responsible for any
violation on behalf of the End Users or Sublicensees
arising out of End User's or Sublicensee's use of FARES
products or services as defined under this Agreement.
8. PROPRIETARY INFORMATION
The Proprietary Information is and shall remain the sole
and exclusive property of FARES. Customer shall have
only the limited rights with respect to the Proprietary
Information expressly granted in this Agreement, and all
rights not expressly granted by FARES are reserved.
Customer agrees that only FARES shall have the right to
alter, maintain, enhance or otherwise modify the
Proprietary Information. Customer shall not
disassemble, decompile, manipulate or reverse engineer
the Proprietary Information and shall take all necessary
steps to prevent such disassembly, decompiling,
manipulation or reverse engineering of the Proprietary
Information. Under no circumstances shall Customer
sell, license, publish, display, copy, distribute, or
otherwise make available the Proprietary Information in
any form or by any means, except as expressly permitted
by this Agreement, including without limitation the
transfer to a third party or, if not expressly prohibited by
this Agreement, as allowed under the fair use provision
of the Copyright Act, 17 U.S.C. § 107. Customer will
take all reasonable steps, in accordance with the best
industry practices, to protect the security of the
Proprietary Information and to prevent unauthorized use
or disclosure. Customer is responsible for all access to
and use of the Proprietary Information by Customer's
employees or agents or by means of Customer's
equipment or Customer's FARES usernames and
passwords, whether or not Customer has knowledge of or
authorizes such access or use. Customer shall be
responsible for maintaining the confidentiality of all
assigned usernames and passwords, and Customer shall
be responsible for all charges relating to the use of said
usernames and passwords whether or not authorized by
Customer.
9. CONSUMER PRIVACY
Customer acknowledges that the Service, while
comprised in part of public record data, describes
information that may be deemed to be sensitive
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information by some consumers. It is the policy of
FARES to respect the request of consumers to remove
their name, mailing address, e-mail address or telephone
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number from use in solicitation. Customer's agreement
to comply with this policy is an integral condition to
FARES entering into this Agreement. Customer agrees
(a) Customer will not utilize in any manner the name,
mailing address, e-mail address or telephone number of a
consumer that is designated in the Service as requesting
protection from solicitation; (b) Customer will not
broadcast or otherwise make public the name, address or
other information about an individual consumer, unless
FARES and the subject consumer provide written
10.1 Warranty.
authorization to do so; (c) Customer will abide by all
prevailing federal, state, and local guidelines governing
fair information practices and consumers' rights to
privacy; and (d) Customer will limit access to consumer
information to those individuals who have a "need to
know" in connection with Customer's business and will
obligate those individuals to acknowledge consumers'
rights to privacy and adhere to fair information practices.
Customer shall be responsible for any violations of this
Section 9 by Customer's End Users or Sublicensees.
10. FARES WARRANTIES, INDEMNIFICATION & DISCLAIMERS
(i) Intellectual Property Infringement &
Indemnification: FARES warrants to Customer that
the Service does not infringe, misappropriate or violate
the intellectual property rights of a third party. FARES
will indemnify, defend and hold Customer harmless from
and against any and all claims, losses, liabilities, costs
and expenses attributable to any allegation of intellectual
property infringement arising out of this Agreement
(unless such allegation arises from the combination or
use of the Service with any other software, data, or
materials not furnished by FARES or is used in violation
of any term or condition contained in this Agreement),
provided that: (i) Customer gives FARES prompt written
notice of any such allegation, (ii) FARES maintains full
and complete control over the defense of any such
allegation, and (iii) Customer cooperates fully with
FARES in the defense of any such allegation. If the
Service becomes or, in FARES' opinion, is likely to
become the subject of any claim or action that infringes,
misappropriates or violates the intellectual property
rights of another person, then FARES, at its expense and
option, may: (i) procure the right for Customer to
continue using the Service, (ii) modify the Service to
render it no longer subject to any such claim or action, or
(iii) replace the Service or any portion thereof with
equally suitable, functionally equivalent, non -infringing
data. If none of the foregoing is commercially
practicable, FARES may terminate this Agreement and
refund a pro-rata amount of the prepaid Fees actually
paid hereunder. THIS SECTION SETS FORTH THE
FULL EXTENT OF FARES' LIABILITY TO
CUSTOMER AND CUSTOMER'S SOLE REMEDIES
WITH RESPECT TO ANY THIRD PARTY CLAIMS
UNDER THIS AGREEMENT.
10.2 Limitations On Valuation Models. The
Valuation Models do not constitute an appraisal of the
subject property. They should not be relied upon in lieu
of an appraisal or underwriting process. The predicted
value reports are based upon data collected from public
record sources. THE ACCURACY OF THE
METHODOLOGY USED TO DEVELOP THE
REPORTS, THE EXISTENCE OF THE SUBJECT
PROPERTY, AND THE ACCURACY OF THE
PREDICTED VALUE, ARE ESTIMATIONS OF
VALUE BASED ON AVAILABLE DATA AND ARE
NOT GUARANTEED OR WARRANTED. The
condition of the subject property and current market
conditions can greatly affect the validity of the Valuation
Models. Any Valuation Model generated does not
include a physical inspection of the subject property or a
visual inspection or analysis of current market conditions
by a licensed or certified appraiser, which is typically
included in an appraisal.
10.3 Disclaimer. EXCEPT AS OTHERWISE
STATED IN THIS SECTION, THE SERVICE IS
PROVIDED "AS IS" WITHOUT WARRANTY OF
ANY KIND, EITHER EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION ANY
WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
BECAUSE SOME JURISDICTIONS DO NOT
PERMIT THE EXCLUSION OF IMPLIED
WARRANTIES, THIS DISCLAIMER MAY NOT
APPLY. FARES NEITHER ASSURES NOR
ASSUMES ANY LIABILITY TO ANY PERSON OR
ENTITY FOR THE PROPER PERFORMANCE OF
SERVICES NECESSARY TO THE CONDUCT OF A
REAL ESTATE CLOSING. FARES DOES NOT
REPRESENT OR WARRANT THAT THE SERVICE
IS COMPLETE OR FREE FROM ERROR, AND DOES
NOT ASSUME, AND EXPRESSLY DISCLAIMS,
ANY LIABILITY TO ANY PERSON OR ENTITY
FOR LOSS OR DAMAGE CAUSED BY ERRORS OR
OMISSIONS IN THE SERVICE, WHETHER SUCH
ERRORS OR OMISSIONS RESULT FROM
NEGLIGENCE, ACCIDENT, OR OTHER CAUSE.
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11. FARES' LIMITATION OF LIABILITY
FARES' TOTAL LIABILITY AND CUSTOMER'S
EXCLUSIVE REMEDY UNDER OR RELATED TO
THIS AGREEMENT SHALL BE LIMITED TO
DIRECT MONEY DAMAGES NOT EXCEEDING
THE AMOUNT PAID BY CUSTOMER TO FARES
DURING THE TWELVE (12) MONTHS PRECEDING
THE CLAIM. THIS LIMIT IS CUMULATIVE AND
ALL PAYMENTS UNDER THIS AGREEMENT WILL
BE AGGREGATED TO CALCULATE
SATISFACTION OF THE LIMIT. THE EXISTENCE
OF MULTIPLE CLAIMS WILL NOT ENLARGE THE
LIMIT. FARES SHALL HAVE NO LIABILITY
UNDER OR IN ANY WAY RELATED TO THIS
AGREEMENT FOR ANY LOSS OF PROFIT OR
REVENUE OR FOR ANY CONSEQUENTIAL,
INDIRECT, INCIDENTAL, SPECIAL OR
EXEMPLARY DAMAGES, EVEN IF FARES IS
AWARE OF THE POSSIBILITY OF SUCH LOSS OR
DAMAGES. SOME STATES DO NOT ALLOW THE
EXCLUSION OR LIMITATION OF INCIDENTAL OR
CONSEQUENTIAL DAMAGES, SO THE ABOVE
LIMITATION OR EXCLUSION MAY NOT APPLY.
12. CUSTOMER'S INDEMNIFICATION
Customer agrees to indemnify and hold FARES harmless
from and against all claims of third parties arising out of
or related to the use of the Service by the Customer, or
attributable to Customer's breach of this Agreement;
provided that FARES gives Customer prompt written
notice of any such claim. FARES shall control the
defense and any settlement of such claim, and Customer
shall cooperate with FARES in defending against such
claim.
13. GENERAL PROVISIONS
13.1 Advertising. Customer will not disclose
FARES as a data source to any third party, except as may
be authorized in writing by FARES or required by
federal, state or local government regulations or by valid
legal process issued from a court of competent
jurisdiction. In the latter instance, Customer shall
immediately provide FARES with advance written notice
of any such information requests and shall reasonably
cooperate with FARES during any such legal process to
help preserve and protect the confidentiality of FARES'
identity as the data source.
13.2 Proprietary Marks. Neither party will use, or
permit their respective employees, agents and
subcontractors to use the trademarks, service marks,
copyrighted material, logos, names, or any other
proprietary designations of the other party, or the other
parry's affiliates, whether registered or unregistered,
without such other parry's prior written consent.
13.3 Entire Agreement. This Agreement constitutes
the entire agreement between the parties, and supersedes
any prior understanding or agreement, oral or written,
relating to the Service.
13.4 Severability. If any of the provisions of this
Agreement becomes invalid, illegal or unenforceable in
any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not in
any way be affected or impaired.
13.5 Waiver; Modifications. No waiver by either
party of any breach by the other party of any of the
provisions of this Agreement shall be deemed a waiver
of any preceding or succeeding breach of the same or
any other provision hereof. No such waiver shall be
effective unless in writing and then only to the extent
expressly set forth in writing. No modifications of this
Agreement shall be effective unless in writing and signed
by both parties.
13.6 Survival. Any provision of this Agreement
which contemplates performance subsequent to the
expiration or earlier termination of this Agreement, or
which expressly states that it shall survive termination of
the Agreement, shall so survive such expiration or
termination and shall continue in full force and effect
until fully satisfied.
13.7 Execution. This Agreement may be executed
in any number of counterparts, each of which shall be
deemed an original, but all of which taken together shall
constitute one and the same instrument. A signature on a
copy of this Agreement received by either party by
facsimile is binding upon the other party as an original.
The parties shall treat a photocopy of such facsimile as a
duplicate original. If this Agreement is executed in
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counterparts, no signatory hereto shall be bound until all
parties hereto have duly executed or caused to be dully
executed a counterpart of this Agreement. The
individuals signing below represent that they are duly
authorized to do so by and on behalf of the party for
whom they are signing.
13.8 Governing Law and Forum; Attorneys' Fees.
The interpretation and construction of this Agreement,
and all matters relating hereto, shall be governed by the
laws of the State of California applicable to agreements
executed and to be performed solely within such State.
The parties hereby submit to the jurisdiction of, and
waive any venue objections against, the United States
District Court for the Central District of California,
Orange County Branch and the Superior and Municipal
Courts of the State of California, Orange County in any
litigation arising out of this Agreement. Each of the
parties agrees that it shall not seek a jury trial in any
proceeding based upon or arising out of or otherwise
related to this Agreement or any of the other documents
and instruments contemplated hereby and each of the
parties hereto waives any and all right to such jury trial.
This Agreement will not be governed by the United
Nations Convention on Contracts for the International
Sale of Goods, the application of which is expressly
excluded. The prevailing party shall be awarded its
reasonable attorney's fees and costs in any lawsuit
arising out of or related to this Agreement.
13.9 Relationship of Parties. Neither party is nor
shall be a partner, joint venturer, agent or representative
of the other party solely by virtue of this Agreement.
Neither party has the right, power or authority to enter
into any contract or incur any obligation, debt or liability
on behalf of the other party.
13.10 Uncontrollable Events. No party shall be
liable for any delay or failure in its performance of any
of the acts required by this Agreement when such delay
or failure arises for reasons beyond the reasonable
control of such party. The time for performance of any
act delayed by such causes shall be postponed for a
period equal to the delay; provided, however, that the
party so affected shall give prompt notice to the other
party of such delay. The party so affected, however,
shall use its best efforts to avoid or remove such causes
of nonperformance and to complete performance of the
act delayed, whenever such causes are removed.
13.11 Assignment. Customer may not assign or
transfer this Agreement or any rights or obligations
under this Agreement without the prior written consent
of FARES which shall not be unreasonably withheld. It
FF
Initials
Customer's
Initials
shall be considered reasonable to withhold assignment to
an individual or entity which poses an Adverse Business
Risk or Change of Ownership or Control. For purposes
of this Section, the following shall apply: (a) "Adverse
Business Risk" shall include: title companies; real estate,
mortgage and finance companies; or entities with: (x)
prior negative business dealings with FARES or (y)
commercially unfavorable consequences to FARES; and
(b) Change of Ownership or Control" shall mean any
transaction or series of transactions in which Customer
merges with another entity or in which more than fifty
percent (50%) of the voting stock or other voting
securities or ownership interests of Customer, or all or
substantially all of the assets of Customer, are acquired
by another entity (alone or in combination with its
affiliates). This Agreement will bind and inure to the
benefit of the parties and their respective permitted
successors and permitted assigns.
13.12 Notices. Any notice or other communication
required or permitted under this Agreement shall be
sufficiently given if delivered in person or sent by
facsimile, by registered or certified mail, postage
prepaid, or commercially recognized overnight service
(with tracking capabilities), addressed as shown on the
signature page of this Agreement, with a copy to
FARES' counsel, First American Real Estate Solutions,
4, First American Way, Santa Ana, California 92707,
facsimile: (714) 250-6917, attention: Legal Department,
or such other address or number as shall be furnished in
writing by any such party. Such notice or
communication shall be deemed properly delivered as of
the date so delivered, sent by facsimile or mailed.
13.13 Miscellaneous. Headings at the beginning of
each section and subsection are solely for convenience
and are not intended to be a part of this Agreement and
shall have no effect upon the construction or
interpretation of any part hereof. Whenever required by
the context of this Agreement, the singular shall include
the plural and the masculine shall include the feminine,
and vice versa. This Agreement shall not be construed as
if it had been prepared by either party, but rather as if it
were jointly prepared. In the event that any action
required by the parties hereto does not occur on a
business day, the action shall be taken on the next
succeeding business day thereafter. The parties hereto
do not intend to confer any benefit hereunder on any
person or entity other than the parties hereto and,
therefore, there are no third party beneficiaries to this
Agreement. The Exhibits and related Appendices to this
Agreement constitute integral parts of this Agreement
and are hereby incorporated into this Agreement by this
reference.
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This License Agreement has been duly executed by the parties as of the Effective Date.
CITY OF LA QUINTA, CALIFORNIA ("CUSTOMER")
< 1.
Authorized Signature
Name: Thomas P. Genovese
Title: City Manager
Date: "// 0 /
Address: 78-495 Calle Tampico
La Quinta, California 92253
@-Pl—
FARES'
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Customer's
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FIRST AMERICAN REAL ESTATE SOLUTIONS,
L.P. ("FARES")
By: RES LLC, its General Partner
By:
AAMortze igna e
Name: Shw ! mw
Title: V Y 4? C A Sum";
Date: qb' CA - Co
Address: 4 First American Way
Santa Ana, California 92707
Page 9 of 12
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EXHIBIT A
TO
LICENSE AGREEMENT BETWEEN
FIRST AMERICAN REAL ESTATE SOLUTIONS, L.P. ("FARES")
AND
CITY OF LA QUINTA, CALIFORNIA ("CUSTOMER")
A. FARES SERVICES:
1. Information: Detailed Subject Property Reports, Detailed Comparable Sales Reports, Detailed Custom Search
Reports
2. Images: Tax Assessor Maps, Street Maps
B. PERMITTED APPLICATIONS: Customer may use the above Services solely for the applications specified
below.
1. Customer's Use: In accordance with the terms and conditions of the Agreement, Customer may use the FARES
Services for verifying property ownership and ascertaining certain property detail information by the following
department of Customer's operations: the City Manager's Department; the City Attorney's Department; the City
Clerk's Department; the Finance Department; the Building and Safety Department; the Community Services
Department; the Community Development Department; and the Public Works Department. Customer's use shall
be solely for the purpose of carrying out the official business of the City of La Quinta and that of its
Redevelopment Agency. Customer shall not resell, re -license or otherwise redistribute the FARES Services in
whole or in part to any third party (by way of example and not limitation, prohibited activities shall include any
sort of commercial use or redistribution, as well as any public display of the FARES Services, such as via hard
copy publication, electronic format, the Internet or any other means of communication or delivery method, except
in response to Public Records Act requests, subpoenas, and/or for use as necessary in official proceedings, such as
code enforcement actions, city council meetings, court proceedings, etc). .
2. Additional Restrictions: Customer agrees and warrants that Customer shall not use any element or component of
the FARES Services to create, replace, supplement, or enhance any title, legal, vesting, ownership, or
encumbrance report. Customer further agrees and warrants that Customer shall not use the FARES Services
coupled with alternative insurance approaches or products without first obtaining written permission from FARES.
C. DELIVERY: FARES shall deliver the FARES Services for Riverside County, California to Customer via
FARES' secure, password -protected Internet site, www.realquest.com ("RealQuest"). Customer shall receive
thirty-four (34) usernames, including one (1) username with administrative control.
D. FEES: Customer shall pay FARES the following Fees, which shall become due and payable within sixty (60)
days from date of invoice:
1. Flat Fee: Customer shall pay FARES a flat fee of Thirteen Thousand Five Hundred and Sixty Dollars
($13,560.00) ("Flat Fee") for access to the FARES Services, subject to the Maximum Monthly Download
Limitations of Section 2 below.
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2. Maximum Monthly Download Limitations: Customer shall have access to the FARES Services pursuant to the
following limitations ("Maximum Monthly Download Limitations"). Download volumes shall reset to zero
monthly. Any surplus of downloads remaining in any single month shall not be carried over or credited to any
subsequent month.
(a) Information:
(i) Detailed Subject Property Reports: 45,000 reports per month
(ii) Detailed Comparable Sales Reports: 5,000 reports per month
(iii) Detailed Custom Search Reports: 20,000 reports per month
(b) Images:
(i) Tax Assessor Maps: 10,000 maps per month
(ii) Street Maps: 5,000 maps per month
E. CONFLICTS: To the extent of conflicts between the provisions of the Agreement and Exhibit A, the provisions
of Exhibit A shall govern.
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EXHIBIT B
TO
LICENSE AGREEMENT BETWEEN
FIRST AMERICAN REAL ESTATE SOLUTIONS, L.P. ("FARES")
AND
CITY OF LA QUINTA, CALIFORNIA ("CUSTOMER")
THIRD PARTY PROCESSOR UNDERTAKING
Name of Processor:
Address:
Name(s) of
License Agreement dated as of
("FARES") and
between FIRST AMERICAN REAL ESTATE SOLUTIONS L.P.
This Third Party Processor Undertaking ("Undertaking") is being provided by the above -named Processor ("Processor") to
FARES in connection with the Licensing Agreement entered into between FARES and Client(s) described above. From
time to time on written instructions from Client, FARES may prepare and provide Processor with data developed by
FARES pursuant to the License Agreement. This Undertaking applies to any such data or other media provided directly or
indirectly by FARES to Processor on behalf of Client(s) ("Media"). For good and valuable consideration and intending to
be legally bound, Processor agrees as follows:
1. Processor acknowledges that the Media is and shall remain the property of FARES and shall do nothing inconsistent
with the copyright or other proprietary rights of FARES in and to the Media.
2. Processor will not duplicate or compile any data contained in the Media or provide the same in any form to any third
party. Except as done at the request, and for the exclusive benefit, of Client, Processor shall not conduct any analyses of
the Media or otherwise use it to understand the nature, character or quality of the Media, nor shall Processor use any
information it obtains as a result of its handling, processing or possession of the Media in connection with the creation,
testing, promotion, marketing, selling and/or licensing of Processor's information, products or services.
3. Notwithstanding anything herein to the contrary, in no case will Processor attempt to learn the selection criteria
applied by FARES in the preparation of the Media.
IN WITNESS WHEREOF, Processor has signed this Undertaking by a duly authorized representative of Processor as of
.200
Name of Processor
ME
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