TERMS AND CONDITIONS

These Terms and Conditions (“Agreement”) supplement the Quote and set forth the terms and conditions under which Likely Analytics, Inc. (“Likely.ai”) will provide access to certain proprietary data products (“Leads”) to Customer.  The Agreement sets forth the terms and conditions under which Customer may Use (as defined herein) the Likely.ai products indicated on the Quote (“Software”).  

  1. LICENSE GRANT AND RIGHT OF USE

  1. License Grant.  Subject to all limitations and restrictions contained herein and the Quote, Likely.ai grants Customer a nonexclusive and nontransferable license to use the Leads  described in the Quote (“Use”).

  2. Use.  Customer shall not use the Leads for any purpose other than as permitted herein.

  3. Additional Restrictions.  In no event shall Customer use the Leads: (i) as a factor in establishing an individual’s eligibility for credit or insurance; (ii) in evaluating an individual for employment purposes; (iii) in connection with a determination of an individual’s eligibility for a license or other benefit granted by a governmental authority; or (iv) in any other manner that would cause such use of the Leads to be construed as a “consumer report” under the Fair Credit Reporting Act, 15 U.S.C. Sec. 1681 et seq. or similar statute, or under any other authority having jurisdiction over such matters. Customer shall not broadcast or otherwise make public the name, address or other information regarding a consumer, unless such consumer provides written authorization to do so; and Customer shall limit access to consumer information to those individuals who have a “need to know” in connection with Customer’s business. Customer agrees to use Leads only for internal business and marketing purposes and shall not resell, relicense, or repurpose the Leads to any third parties. Customer may use Likely.ai’s Confidential Information solely in connection with the Leads and pursuant to the terms of this Agreement.

  4. Customer shall obtain any necessary licenses, certificates, permits, approvals, or other authorizations required by any and all applicable laws, statutes, ordinances and regulations related to its use of the Leads pursuant to this Agreement.

  1. PRODUCTS

  1. Likely.ai currently offers the following Leads products:

Each category of Lead is produced by separate, proprietary, analytical processes and is sold separately as an independent product. The Lead product purchased by Customer will be indicated on the Quote. Customer acknowledges that if it has purchased more than one category of Lead pursuant to a Quote, a property address may be contained in more than one category of Leads. If a category of Leads is sold as an exclusive the exclusivity does not extend to the other lead categories.

  1. PAYMENT

  1. Fees.  Customer shall pay Likely.ai the fees indicated on the Quote.  The initial payment for the Leads must be made on the Quote Effective Date and prior to the delivery of any Leads. Unless otherwise set forth on the Quote, all fees shall be paid to Likely.ai within fifteen (15) days of the date of the invoice.  Any late payment shall be subject to any costs of collection (including reasonable legal fees) and shall bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less.

  2. Recurring Payments. If Customer has enrolled in automatic recurring payments the following terms and conditions located here http://likely.ai/recurring-payments-terms-and-conditions/ shall apply. Customer will be billed at the billing interval indicated on the Quote, e.g., monthly.

  3. Referral Fees. If provided for on the Quote, Customer agrees to pay Likely.ai a fee equal to ten percent (10%) of the Customer’s gross commission when a Lead (Seller or Buyer), results in a sale of the property (“Referral Fee”), during the term of this Agreement and for one (1) year after termination hereof. Gross commission is calculated as the amount received by the Customer’s broker prior to any split of commission with the Customer or any other brokers on the Customer’s side of the transaction.  If Customer represents both a buyer and seller on the same transaction and one party is Likely.ai Lead, the Referral Fee will be 10% of ½ of the total gross commission of the transaction. If Customer represents both a buyer and seller on the same transaction where both parties are Likely.ai Referrals, the Referral Fee will be 10% of the total gross commission. Customer will instruct the escrow officer on the transaction to pay the resulting Referral Fee directly from escrow to Likely.ai’s broker of record. An example calculation of a Referral Fee is as follows: If a Seller Lead results in the sale of a property equal for $1,000,000.00 and Customer’s gross sell side commission is 3% ($30,000.00), then the Referral Fee owed by Customer and payable to Likely.ai’s broker of record would be $3,000.00.

  1. Exclusions. Customer will not be required to pay a Referral Fee on the sale of any properties for which Customer provides Likely.ai evidentiary proof it was actively working with such property prior to the receipt of Leads from Likely.ai which included the property in question. Customer will advise Likely.ai of any properties that it believes should be excluded from the Referral Fee within five (5) days of its receipt of Leads from Likely.ai.

  1. Taxes.  The amounts required to be paid hereunder do not include any amount for taxes or levy (including interest and penalties). Customer shall reimburse Likely.ai and hold Likely.ai harmless for all sales, use, VAT, excise, property or other taxes or levies which Likely.ai is required to collect or remit to applicable tax authorities.  This provision does not apply to Likely.ai’s income or franchise taxes, or any taxes for which Customer is exempt, provided Customer has furnished Likely.ai with a valid tax exemption certificate.

  2. Refunds. No refunds will be provided for any Leads after delivery of such Leads to Customer.

  3. Reporting. During the Term, for one (1) year after termination of this Agreement for any reason, Customer agrees to send Likely.ai a weekly Lead status report (“Status Report”), on the first business day of each week. The Status Report will include a list of all Leads that have been delivered to Customer by Likely.ai. Each Lead in the Status Report must have the current status of the Lead indicated, and data or status change when applicable. By way of example: New Lead, Responded, Listings Appointment Scheduled, Listing Appointment Cancelled, Listed (date), Pending, Closed Sold (date), Closed Dead (date).  Additionally, Customer will email a report to Likely.ai on the last business day of each calendar month itemizing each property that was sold (“Sold Report”), during such calendar month from all Leads delivered from Likely.ai.  Customer further agrees to provide Likely.ai with a list of all Brokers, Brokers Associates, Sales Agents, and/or any other real estate professionals, including their corresponding State Real Estate Licence Number and type, who will have access to the Leads purchased by Customer pursuant to this Agreement.

  1. SERVICES

  1. Third Parties.  Likely.ai shall have the right to use third parties (“Subcontractors”) in performance of its obligations and services hereunder and, for purposes of this Section, all references to Likely.ai or its employees shall be deemed to include such Subcontractors.

  1. OWNERSHIP

  1. Reservation of Rights.  By signing the Quote, Customer irrevocably acknowledges that, subject to the licenses granted herein, Customer has no ownership interest in the Leads or any Likely.ai materials provided to Customer.  Likely.ai shall own all right, title, and interest in the Leads and Likely.ai materials, subject to any limitations associated with the rights of third parties. Likely.ai reserves all rights not specifically granted herein.

  1. CONFIDENTIALITY

  1. Definition.  “Confidential Information” includes all information marked pursuant to this Section and disclosed by either party, before or after the Effective Date, and generally not publicly known, whether tangible or intangible and in whatever form or medium provided, as well as any information generated by a party that contains, reflects, or is derived from such information.

  2. Exceptions.  Without granting any right or license, the obligations of the parties hereunder shall not apply to any material or information that: (i) is or becomes a part of the public domain through no act or omission by the receiving party; (ii) is independently developed by the other party without use of the disclosing party’s Confidential Information; (iii) is rightfully obtained from a third party without any obligation of confidentiality; or (iv) is already known by the receiving party without any obligation of confidentiality prior to obtaining the Confidential Information from the disclosing party.  In addition, neither party shall be liable for disclosure of Confidential Information if made in response to a valid order of a court or authorized agency of government, order that notice is promptly given to the disclosing party so that the disclosing party may seek a protective order and engage in other efforts to minimize the required disclosure.  The parties shall cooperate fully in seeking such protective order and in engaging in such other efforts.

  3. Ownership of Confidential Information.  Nothing in this Agreement shall be construed to convey any title or ownership rights to the Leads or other Confidential Information to Customer or to any patent, copyright, trademark, or trade secret embodied therein, or to grant any other right, title, or ownership interest to the Likely.ai Confidential Information.  Neither party shall, in whole or in part, sell, lease, license, assign, transfer, or disclose the Confidential Information to any third party and shall not copy, reproduce or distribute the Confidential Information except as expressly permitted in this Agreement.  Each party shall take every reasonable precaution, but no less than those precautions used to protect its own Confidential Information, to prevent the theft, disclosure, and the unauthorized copying, reproduction or distribution of the Confidential Information.

  4. Non-Disclosure. Each party agrees at all times to keep strictly confidential all Confidential Information belonging to the other party.  Each party agrees to restrict access to the other party’s Confidential Information only to those employees or Subcontractors who (i) require access in the course of their assigned duties and responsibilities; and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth in this Section.

  5. Injunctive Relief.  Each party acknowledges that any unauthorized disclosure or use of the Confidential Information would cause the other party imminent irreparable injury and that such party shall be entitled to, in addition to any other remedies available at law or in equity, temporary, preliminary, and permanent injunctive relief in the event the other party does not fulfill its obligations under this Section.

  1. WARRANTY

  1. Authorized Representative.  Customer and Likely.ai warrant that each has the right to enter into this Agreement and that the Agreement shall be executed by an authorized representative of each entity.
  2. Disclaimer of Warranties.  Customer acknowledges and agrees that it is not relying on any statement or warranty not expressly provided herein with respect to the Leads or other services provided hereunder.  THE LEADS AND OTHER SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. LIKELY.AI SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR THE CONTENT OF THE LEADS AND LIKELY.AI MAKES NO REPRESENTATION THAT ANY CONTENT OR LEAD IS ACCURATE, ERROR-FREE OR COMPLETE.  LIKELY.AI MAKES NO GUARANTEE AS TO THE EFFECTIVENESS OR USEFULNESS OF ANY GIVEN LEAD OR BATCH OF LEADS TO CUSTOMER. LIKELY.AI MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.

  1. CUSTOMER REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION

  1. Warranty.  Customer represents and warrants that it will use the Leads in accordance with all applicable federal, state, and local laws, rules, and regulations, including without limitation, “Do Not Call” and “Do Not Mail” regulations and that Customer shall not publish, distribute, re-convey, disclose, modify, convey, market, sell, license, give, transfer, assign, alter or use the Leads in any manner or form other than a lawful manner.
  2. Indemnity.  Customer shall indemnify, defend and hold harmless Likely.ai from and against any and all losses, damages and liabilities, including reasonable attorneys’ fees, resulting from any third party claim, action or proceeding brought against Likely.ai alleging Customer’s use of the Leads violated any applicable law, rule or regulation.  Likely.ai shall (y) promptly notify Customer in writing of any such claim, and (z) cooperate with Customer, at Customer’s expense, in defending or settling such claim.

  1. LIMITATION OF LIABILITY

  1. Liability Cap.  IN NO EVENT SHALL LIKELY.AI BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER FOR THE SOFTWARE WHICH GAVE RISE TO SUCH DAMAGES IN THE SIX (6) MONTHS PRIOR TO THE CLAIM AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
  2. Disclaimer of Damages.  IN NO EVENT SHALL LIKELY.AI BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

  1. TERM AND TERMINATION

  1. Term. The term of each subscription purchased by Customer will commence on the date that both parties have executed the applicable Quote (unless a later commencement date is expressly set forth on such Quote) and will continue for the period set forth on such Quote and include any renewal, as described in this Section 10.1 (collectively, the “Subscription Term”). Each subscription will automatically renew for a period of one (1) year  unless either party notifies the other at least thirty (30)  days prior to the commencement of the renewal term that it does not intend to renew the Subscription Term. CUSTOMER UNDERSTANDS THAT THE SUBSCRIPTION TERM SHALL AUTOMATICALLY RENEW UNLESS TERMINATED PURSUANT TO THE TERMS OF THIS AGREEMENT

  2. Termination for Convenience.

  1. By Likely.ai.  Likely.ai may terminate this Agreement with immediate effect at any time upon notice to Customer. If Likely.ai terminates this Agreement pursuant to this Section 10.2.1, Customer shall be refunded any amounts paid for any Leads prior to the date of termination that were not delivered to Customer.

  2. By Customer.  This Agreement may be terminated by Customer for Customer’s convenience on thirty (30) days written notice to Likely.ai, provided however that if Customer so terminates, Customer agrees to pay an early termination fee too Likely.ai equal to fifty percent (50%) of the fees that would otherwise be due through the end of the then current Term. The early termination fee is the parties’ reasonable pre-estimate of Likely.ai’s probable loss from such early termination and represents a reasonable endeavor by Likely.ai to estimate foreseeable losses that might result from such early termination and provides for the payment of such amounts as liquidated damages in the event of such early termination and not as a penalty.

  3. Effects of Termination for Convenience. If this Agreement is terminated for convenience by either party, Customer may continue to use any Leads provided prior to the date of termination. Customer will pay any Referral Fee’s due pursuant to this Agreement for a period of one (1) year from the date of termination.

  1. Termination for Cause.

  1. By Likely.ai. This Agreement and any license created hereunder may be terminated by Likely.ai (i) if Customer fails to make any payments due hereunder within fifteen (15) days of the due date; (ii) on thirty (30) days written notice to Customer if Customer fails to perform any other material obligation required of it hereunder, and such failure is not cured within such thirty (30) day period; or (iii) Customer files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern.

  2. Termination by Customer.  This Agreement may be terminated by Customer on thirty (30) days written notice to Likely.ai if Likely.ai fails to perform any material obligation required of it hereunder, and such failure is not cured within thirty (30) days from Likely.ai’s receipt of Customer’s notice or a longer period if Likely.ai is working diligently towards a cure.

  3. Effects of Termination for Cause.  Upon termination of this Agreement for cause by Likely.ai, Customer shall immediately discontinue all use of the Leads. Any and all Fees due to Likely.ai prior to the date of termination shall become immediately due and payable.

  1. Other Remedies.  Termination of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under this Agreement.

  1. MISCELLANEOUS

  1. Compliance With Laws.  Customer agrees to comply with all applicable laws, regulations, and ordinances relating to its performance under this Agreement and its use of the Leads.  

  2. Independent Contractors.  The relationship between the parties to this Agreement is and shall be that of independent contractors.  It is expressly agreed that nothing in this Agreement shall be construed to create or imply a partnership, joint venture, agency relationship or contract of employment.

  3. Assignment.  Customer may not assign this Agreement or otherwise transfer any license created hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of Likely.ai.  Any assignment or transfer in violation of this Section shall be null and void.

  4. Survival.  The provisions set forth in Sections 1.2, 1.3., 1.4, 3.3, 3.6, 5, 6, 7.2, 8, 9. 10.4, and 11 of this Agreement shall survive termination or expiration of this Agreement and any applicable license hereunder.

  5. Notices.  Any notice required under this Agreement shall be given in writing and shall be deemed effective upon delivery to the party to whom addressed.  All notices shall be sent to the applicable address specified on the Quote or to such other address as the parties may designate in writing.  Unless otherwise specified, all notices to Likely.ai shall be sent to the attention of the CEO.  Any notice of material breach shall clearly define the breach including the specific contractual obligation that has been breached.

  6. Force Majeure.  Likely.ai shall not be liable to Customer for any delay or failure of Likely.ai to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of Likely.ai.  Such causes shall include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delays by Customer in providing required resources or support or performing any other requirements hereunder.

  7. Entire Agreement.  This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all proposals and prior discussions and writings between the parties with respect thereto.  Any signed copy of this Agreement made by reliable means (e.g., photocopy or facsimile) shall be considered an original.  

  8. Modifications.  The parties agree that this Agreement cannot be altered, amended or modified, except by a writing signed by an authorized representative of each party.

  9. Attorney’s Fees. In the event a dispute arises between the parties to this Agreement, the prevailing party shall be entitled to its reasonable attorney’s fees and expenses incurred, including without limitation fees and expenses of expert consultants and witnesses, in addition to any other relief to which it is entitled.

  10. Nonsolicitation.  During the term of this Agreement and for a period of two (2) years thereafter, Customer agrees not to hire, solicit, nor attempt to solicit, the services of any employee or Subcontractor of Likely.ai without the prior written consent of Likely.ai.  Customer further agrees not to hire, solicit, nor attempt to solicit, the services of any former employee or Subcontractor of Likely.ai for a period of one (1) year from such former employee’s or Subcontractor’s last date of service with Likely.ai.  Violation of this provision shall entitle Likely.ai to liquidated damages against Customer equal to two hundred percent (200%) of the solicited person’s gross annual compensation.

  11. Publicity.  Customer agrees to cooperate with Likely.ai (i) in preparation of at least one (1) press release, where the aforementioned materials can be used in/on Likely.ai’s Web site, marketing materials, trade shows, public advertisements, and other associated marketing uses (“Likely.ai Marketing Materials”); and (ii) in preparation of a Likely.ai-sponsored testimonial advertisement to be run in newspapers, magazines, and other publications and for use in Likely.ai Marketing Materials.  The parties further agree that Likely.ai may include Customer’s logo on publicly displayed customer lists (including Likely.ai’s Internet Web site and public advertisements).

  12. No Waiver.  No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.

  13. Severability and Reformation.  Each provision of this Agreement is a separately enforceable provision.  If any provision of this Agreement is determined to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in Quote for this Agreement to remain in effect in accordance with its terms as modified by such reformation.

  14. Choice of Law.  THIS AGREEMENT SHALL BE GOVERNED AND INTERPRETED BY THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS OF ANY STATE OR JURISDICTION.  ANY ACTION RELATED TO THIS AGREEMENT SHALL BE BROUGHT IN THE STATE OR FEDERAL COURTS LOCATED IN AUSTIN, TEXAS AND CUSTOMER HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS.