KAI DATA: Terms of Service and Use Agreement
RECITALS
KAI DATA, LLC. (KAI DATA) is a provider of real estate lead systems of For-Sale-By-Owner (FSBO) leads, Expired leads, and other real estate related technology solutions. Subscriber is a real estate agent or other professionals that desire to utilize KAI DATA products and services.
 
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and benefits expressed herein, the parties agree as follows:
 
Definitions
The following definitions as used in this Agreement shall have the following meanings:
 
“Software” shall mean any and all software products produced by KAI DATA for licensing. This shall include, but not be limited to, the KAI DATA expired system and any third party software bundled with the KAI DATA expired system. “KAI DATA Leads” shall mean any and all leads sold by KAI DATA to Subscriber, and may include, but is not limited to: FSBO Leads, Expired Leads, Foreclosure Leads, and Prospecting Leads.
 
“Subscriber” shall mean a real estate agent or other professionals that desire to purchase KAI DATA products and services, or a real estate agent who assists KAI DATA with initial testing of KAI DATA products and services free of charge or for a reduced fee.
 
“Subscriptions” shall represent the products and services purchased by the Subscriber upon signing up. Examples may include: a subscription to FSBO Leads, Expired leads, Foreclosure Leads, etc.
 
“Billing Cycle” shall mean the period between billings for products and services, either monthly, quarterly (3 months), semi-annual (6 months) or annual (12 months).
 
"Pricing Schedules" shall mean Schedule A of this Agreement when applicable. Schedule A is applicable to a Subscriber who elects a quarterly, semi-annual or annual Subscription, but Subscriber prefers to make monthly payments instead of paying the entire quarterly, semi-annual or annual fees at the beginning of each Billing Cycle.
 
Limited Software License
KAI DATA hereby grants a limited, non-exclusive, non-transferable, revocable license to use the Software subject to the terms and conditions set forth in this Agreement. This license permits the Subscriber to utilize this software only for its intended use, and Subscriber agrees not to utilize it for anything other than its intended use, and not to reverse assemble, reverse compile, otherwise translate or redistribute the Software. Subscriber agrees not to share, copy, or otherwise re-distribute the Software without the express written consent of KAI DATA, LLC. The license granted hereunder provides that a copy of the Software may only be used by the Subscriber. Concurrent or simultaneous use on two or more computers is prohibited, unless multiple licenses are granted. Subscriber further agrees not to disseminate or disclose their accounts username or password, nor to allow anyone else to utilize their account for access to the KAI DATA systems.
 
KAI DATA Leads
License: KAI DATA hereby grants a limited, non-exclusive, non-transferable, revocable limited license to KAI DATA Leads for which the Subscriber has received as part of his or her Subscriptions. This limited license permits the Subscriber to utilize KAI DATA Leads for their individual purposes. Subscriber acknowledges that KAI DATA Leads are KAI DATA's trade secret, proprietary information, and agrees not to share, copy, reproduce, or redistribute KAI DATA Leads without the express written permission of KAI DATA. Subscriber acknowledges that Kai Data may limit the amount of leads provided. Subscriber further agrees not to disseminate or disclose their accounts username or password, nor to allow anyone else to utilize their account for access to the KAI DATA systems.
 
Disclaimer: KAI DATA has made reasonable best efforts to ensure accurate information in all KAI DATA Leads and data append services, and to provide it in a timely, accurate manner, including, if applicable, reliable acknowledgment of individuals listed on the National Do Not Call Registry. However, KAI DATA assumes no responsibility for the accuracy of KAI DATA Leads or any errors, misrepresentations, or inaccurate information contained therein. Further, KAI DATA assumes no responsibility for researching or warning Subscriber of home and cell telephone numbers that are listed in the Do Not Call Registry and Do Not Call Compliance (DNC) is the responsibility of the Subscriber. KAI DATA provides its content “as is” and without warranties of any kind, either expressed or implied. Neither does KAI DATA warrant uninterrupted, error free functionality for its products and services.
 
KAI DATA Dialer
Subscriber agrees to become familiar with and all legalities of any calls performed by the KAI DATA Dialer, by understanding the laws and regulations found on the following websites:
  1. www.ftc.gov - Federal Trade Commission
  2. www.fcc.gov - Federal Communications Commission
  3. www.donotcall.gov - National Do Not Call
Subscriber agrees to comply with all laws, ordinances, regulations, and requirements of local, provincial, and federal governmental authorities governing dialing, autodialing, and automatic, power, or predictive dialers. Subscriber agrees to immediately mark any and all individuals requesting to not be called as Do Not Call status within the lead manager on Subscribers individual Do Not Call list. Subscriber agrees to provide legal contact information in any outbound campaign within the initial greeting message. Subscriber agrees to responsibly dial each campaign with courtesy to the recipients for which it is meant. Subscriber agrees not to send any calls to life-line services, such as hospitals, fire, police, 911, or utility related telephone numbers. Subscriber also agrees to not send any sales outbound broadcasts to recipients that have not consented to receiving such a broadcast. Subscriber agrees to use Do Not Call and opt-out features made available to you within the lead manager. Subscriber agrees to consult with an attorney before dialing any data for which customer is unfamiliar, or if legalities of dialing remain.
 
Copyright and Intellectual Property Rights
Subscriber acknowledges and agrees that Software and KAI DATA Leads are KAI DATA trade secrets, and proprietary products and information protected under U.S. copyright and intellectual property laws. Subscriber further acknowledges and agrees that all rights, title and interest in and to the Software and KAI DATA Leads, including any associated intellectual property rights, are and shall remain with KAI DATA. This Agreement does not convey an interest in or to the Subscriber, but only a limited license revocable in accordance with terms of this Agreement.
 
Terms of Subscriptions
Subscriber authorizes KAI DATA to invoice Subscriber and process the Subscriber's credit card for payment according to
Subscriber's Billing Cycle. At the end of each Billing Cycle, the agreement shall automatically renew for an additional term equal to the original service plan until Subscriber cancels the service by providing written notice to KAI DATA in accordance with the cancellation policies of KAI DATA. In the event that KAI DATA is not able to process payment from the Subscriber at the beginning of a renewal term, either because the credit card has expired or for any other reason, KAI DATA reserves the right to change Annual and Quarterly Billing Cycle to a Monthly Billing Cycle at the then current subscription rate. KAI DATA will attempt to provide notice to Subscriber and Subscriber may determine to update the payment information, and may also elect to change the service plan to a different Plan type.
 
Payment Information and Charges
Charges: KAI DATA will charge subscriber for the following items:
 
Subscription Charge: Recurring fee to receive services and limited use licenses for the Software and KAI DATA Leads. This charge is determined by the Subscribers billing choices decided upon signup or as modified at their request. This charge is automatically billed at the beginning of each Billing Cycle.
 
Subscription charge amounts will be provided at time of sign up. All recurring charges are subject to change. Any change made to recurring charges will be made known to subscriber before changes are made.
 
Data Restrictions: The KAI DATA Expired Leads service is a data append service which appends missing owner contact information for Expired MLS listings. Due to the costs associated with the research of such contact information to KAI DATA, Subscriber agrees that KAI DATA may restrict the Subscriber's search criteria (areas, type or price range) within the MLS in the event it becomes cost-prohibitive for KAI DATA to continue the initial agreed upon search criteria. On certain dates with excessive numbers of listings (i.e. January 1), KAI DATA may also restrict the number of searches per Subscriber.
 
Termination
KAIDATA reserves the right to terminate service for any Subscriber at any time at its sole discretion.
 
Subscriber may terminate their Subscriptions at any time by emailing a cancellation request to support@KAIDATASYSTEMS.com, or mailing in a written cancellation request to the KAI DATA Corporate Office: 3814 West Street, Ste. 208, Cincinnati, Ohio 45227. Subscriber will receive a prompt 100% refund if this is done within the first seven (7) days of use. In order to avoid a renewal of the Subscription term, the email must be received at least five (5) business days prior to the beginning of the Subscriber's next Billing Cycle. There will be no refunds under any other circumstances, including partial use of service or termination of service prior to end date. In the event of early termination of a Quarterly or Annual contract, in which Subscriber makes monthly payments, the remaining Quarterly or Annual balance will be due in 30 days.
 
Subscriber understands and agrees that in the event that KAI DATA is unable to resolve computer related technical issues that Subscriber may terminate service at any time with no expectation of a refund of fees.
 
Personal Assistant
As applicable to Subscribers of KAI DATA Expired leads, and for markets in which KAI DATA provides the expired listing assistant program: Subscriber is a licensed Real Estate Agent and wishes to engage KAI DATA to be Subscriber's personal assistant to create an export file and/or automation from Subscriber's MLS account for personal use within Subscriber's KAI DATA system or email. Subscriber is responsible for ensuring that any actions taken or any services or software requested from KAI DATA under this Agreement are in compliance with all applicable laws and MLS regulations in all jurisdictions in and to which the services are provided by KAI DATA. Subscriber is also responsible for ensuring that both KAI DATA and Subscriber are authorized under all applicable MLS and state and federal laws and regulations to allow KAI DATA to act as Subscriber's personal assistant and obtain necessary authentication information for the exportation of MLS data. In consideration of the above KAI DATA agrees to act as the personal assistant for Subscriber, and to assist them in the process of exporting the MLS data for which they are authorized to utilize within their business.
 
Confidentiality and Non-Compete
Subscriber acknowledges that confidential information may be obtained during the course of doing business and over the term of this Agreement. This information may include operations and affairs of KAI DATA, including particular methods and procedures used by it to conduct business, and agree that all records, data, materials, and all other information and equipment provided by KAI DATA are the sole property of KAI DATA and remain so after termination of this Agreement. Subscriber agrees to surrender all such information or material to KAI DATA on demand or upon termination of this Agreement by either party.
 
Subscriber agrees that by subscribing to KAI DATA services they will have received confidential information about KAI DATA, and that for a period of 60 months, irrespective of cause of termination of said agreement, Subscriber will not engage either directly or indirectly, personally or by any agent, use, disclose, copy, reproduce, disseminate, or otherwise produce in oral, written or electronic fashion, to any person, firm, or corporation, the name, or by means of any corporate or other device, in an Expired Listing or For-Sale-by-Owner (FSBO) lead service. Nor will Subscriber use knowledge of the business for the benefit of themselves or other persons, or divulge information or data concerning KAI DATA, including, customer names, prices, terms or particulars of KAI DATA, whether by sale, gift, or any device, subterfuge or evasion. Subscriber will in good faith protect the goodwill of KAI DATA.
 
Limitation of Liability
KAI DATA shall not be liable for any claims relating to the Software and this Agreement, including any cause of action sounding in contract, tort, or strict liability. In any event, the liability of KAI DATA shall not exceed the license fee paid to KAI DATA for use of the Software. In no event shall KAI DATA be liable for any loss of profits; any incidental, special, exemplary, or consequential damages; or any claims or demands brought against me, even if KAI DATA has been advised of the possibility of such claims or demands.
 
Indemnification
Subscriber shall indemnify, hold harmless and defend the KAI DATA and its respective employees, officers and directors from and against any and all damages, losses, liabilities, actions, proceedings (whether legal or administrative), demands and expenses (including but not limited to reasonable attorney fees) threatened, asserted or filed by a third party against the KAI DATA, relating to Subscriber's account and/or relations with the KAI DATA. By subscribing to KAI DATA, Subscriber agrees not to disclose any assigned codes, including passwords and usernames to others. Subscriber also agrees not distribute the information contained in the product, service to any person or organization, by any means, printed electronic or other.
 
Force Majeure
Subscriber acknowledges that in certain circumstances matters outside of KAI DATA's, reasonable control may happen that will cause a disruption of service; including, without limitation, labor disturbances, Force Majeure, failure of a communications carrier to provide lines or service, governmental regulations or interference, accidents, fires, explosions, terrorism or from any other similar or dissimilar cause. KAI DATA will not be held responsible for interruptions to its Software or services.
 
Survivorship
All warranties, representations, indemnities, covenants and other agreements of the parties hereto shall survive the execution, delivery and termination of this Agreement. This Agreement shall insure to and bind the successors and assigns of the respective parties hereto.
 
Governing Law
This Agreement shall be deemed to have been executed in the State of Utah and shall be interpreted and construed according to the laws of the State of Utah, without giving effect to any conflict of laws provisions. The parties hereby consent to the jurisdiction of the federal and state courts located in the State of Utah.
 
Term of Service and Use Agreement Acknowledgement
To acknowledge and agree to the KAI DATA Term of Service and Use Agreement (“Use Agreement”), the Subscriber shall fill out this Use Agreement (Vulcan 7 Registration form) completely, read and initial each section of this Use Agreement and sign the last page. Then print ALL pages and fax back to the fax number provided on page one (1) of this Vulcan 7 Registration form.
 
Payment Authorization and Activation of Subscription
Upon acceptance by KAI DATA of the Subscriber's Vulcan 7 Registration form, which is to include the initialization of each section of this Use Agreement and a signature on the last page of this Use Agreement, KAI DATA shall contact Subscriber and Subscriber shall authorize KAI DATA to invoice Subscriber and process the Subscriber's credit card for payment according to Subscriber's Billing Cycle and the Terms of this Agreement. When such payment is received by KAI DATA, it shall activate the Subscriber's Subscription.
 
In the event Subscriber elects a quarterly, semi-annual or annual Subscription and prefers to make monthly payments instead of paying the entire quarterly, semi-annual or annual fees at the beginning of each Billing Cycle, KAI DATA shall provide Subscriber with Schedule A. Subscriber shall elect the appropriate Subscription (quarterly, semi-annual or annual), sign Schedule A, print ALL pages and fax back to the fax number provided on Schedule A. By signing Schedule A and faxing it to KAI DATA, Subscriber authorizes KAI DATA to invoice Subscriber and process the Subscriber's credit card for payment according to Schedule A and the Terms of this Agreement. When such payment is received by KAI DATA, it shall activate the Subscriber's Subscription.