Subscription Agreement and EULA

Maakr LLC Terms of Service: Subscription and End User License Agreement

THIS SUBSCRIPTION AND END USER LICENSE AGREEMENT (“Agreement”) is made and entered into between Maakr LLC, a Minnesota limited liability company (“Licensor”), and the subscriber and end user (“Licensee”) (collectively, the “Parties”) as of the date of acceptance by Licensee (the “Effective Date”).

RECITALS:

WHEREAS, Licensor and its Affiliates operate systems or platforms which allows Licensees to access valuable content (the “Content”), including materials owned, trademarked, or patented by Licensor (including all content on the Maakr website, Maakr print or electronic communications or publications, any Maakr mobile applications or successor applications, if applicable, Maakr micro-sites, and all content therein is referred to herein as the “Licensed Content”); and,

WHEREAS, Licensor desires to provide Licensee with the right to download and use the Licensed Content and the Content therein and Licensee desires to purchase access to such Content;

NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants hereinafter set forth, and for other good and valuable consideration, which includes but is not limited to the exchange of access to the Licensed Content on the one hand, for payment of the Annual Subscription Fee or Monthly Subscription Fee (defined below) by the Licensee to the Licensor, on the other hand, the receipt, sufficiency and adequacy of which are hereby acknowledged, the Parties hereby agree as follows:

SECTION 1: GRANT OF RIGHTS

1. Grant of Rights.

Subject to the terms and conditions of this Agreement, Licensor’s website privacy policy and terms of use located at https://maakr.com, the terms of which are hereby incorporated by reference, Licensor will grant Licensee the right to access the Licensed Content during the term of the Agreement. Licensor grants Licensee a revocable, non-exclusive right and license to utilize the Licensed Content pursuant to the terms and conditions of this Agreement.

2. Rights Retained by Licensor

Licensor retains all rights with respect to the Licensed Content, including, and without limitation, the right to operate or grant other parties, including any person or entity related in any manner whatsoever to Licensor, the right to utilize the Content. Licensee acknowledges that Licensee’s access to the Licensed Content and Content are not exclusive to Licensee.

SECTION 2: TERM, FEES, AND DATA STORAGE RESTRICTIONS

1. Term.

(a) The term of this Agreement shall be either be annual or monthly, pursuant to the following subscription terms: (i) a twelve (12) months from the Effective Date for an annual subscription fee (the “Annual Subscription Fee”) of $9,995.00/year, or (ii) a monthly subscription fee (the “Monthly Subscription Fee”) of $995.00/month. Licensee will be prompted to make a selection between the Annual Subscription Fee or the Monthly Subscription Fee when subscribing for Maakr’s services on the Maakr website or mobile applications, if applicable. Maakr will deliver at least some of the Licensed Content via email, and Licensee agrees to provide Licensor with a valid email address, and by executing this agreement, consents to Maakr sending it email messages. Payment of the Monthly or Annual Subscription Fee entitles one individual subscriber (Licensee) to access the Licensed Content. License or subscription “sharing” is strictly prohibited and will be considered a breach of this Agreement.

(b) Licensee may terminate a monthly subscription at any time but will not be entitled to a refund for Licensed Content already delivered. Annual subscriptions are non-refundable. A licensee choosing the discounted annual option commits to a full year of delivery and access.

(c) The Term will start on the first day of the next month after payment of the Subscription Fee. Licensee may request the current month’s Licensed Content as a one-time purchase during checkout.

(d) This Agreement automatically terminates at the end of the Term, unless renewed or extended by the Parties. Licensee will be prompted within the Licensed Content to choose whether to renew the Term upon the expiration of the original Term (whether such Term be annual or monthly). In the event a Licensee chooses not to renew the Term, upon termination Licensee must immediately cease using the Licensed Content for any purpose; destroy or delete all copies and archives of the Licensed Content or accompanying materials; and, if requested, confirm to Licensor in writing that it has complied with these requirements within ten (10) business days of Licensor’s written request.

(e) Licensor reserves the right to elect at a later date to replace the Licensed Content with a commercially reasonable alternative from time to time and for any reason. Upon Licensee’s receipt of notice of such replacement sent to the address or contact information provided to Licensor by Licensee, the license for the replaced Licensed Content immediately terminates, and this license automatically applies to the replacement Licensed Content. Upon notice from Licensor, Licensee agrees to immediately terminate use of any Licensed Content replaced pursuant to this provision.

(f) Upon notice from Licensor, or Licensee’s actual or constructive knowledge that any Licensed Content is subject to a threatened, potential or actual claim of infringement of another’s right for which Licensor may be liable, Licensee must immediately and at its own expense: (i) stop using the Licensed Content; (ii) delete or remove the Licensed Content from its premises, computer systems and storage (electronic or physical); and (iii) ensure that its clients, printers or ISPs do likewise. Once Licensee has verified in writing that it has completed (i) through (iii) above, Licensor will provide Licensee with replacement Licensed Content as detailed in subsection (c) above.

2. Licensor Collection of Licensee Data & Purpose of Licensed Content.

(a) Licensor does not collect Licensee biometric or health information data or any other Licensee personal health information (“PHI”). Licensor may receive limited Licensee payment information from payment processor Stripe (stripe.com) or another reputable payment processor. More information on the Licensee data Licensor collects and its use of such data is available on Licensor’s website, https://Maakr.com, under the link to the Privacy Policy.

(b) Purpose of the Licensed Content. The Licensed Content is a tool that may be used in maximizing the potential of advertising, marketing and PR exposure for individuals or entities in the luxury real estate industry. The Licensed Content is published in good faith and for general information and educational purposes only. You should not regard or rely on this information as a substitute or replacement for professional business or sales generation advice. Licensor does not make any warranties about the completeness, reliability, or accuracy of this information. Any action you take upon the information you find on the Licensed Content is strictly at your own risk.

SECTION 3: RESTRICTIONS ON USE

1. Prohibited Uses.

(a) Licensee shall not:

use the Licensed Content in printed, electronic, or digital form intended for resale or other distribution;
use or display the Licensed Content on websites or other venues designed to induce or involving the sale, license or other distribution of any product or publication;
use the Licensed Content in connection with any goods, services or other items for resale, license or other distribution for profit;
use any of the Licensed Content as part of a trademark, design-mark, tradename, business name, service mark, or logo;
use or incorporate the Licensed Content in any product that results in a re-distribution or re-use of the Content or is otherwise made available in a manner such that a person can extract or access or reproduce the Licensed Content as an electronic file;
use the Licensed Content in a fashion that is considered by Licensor as or under applicable law is considered pornographic, obscene, immoral, infringing, defamatory or libelous in nature, or that would be reasonably likely to bring any person or property reflected in the Licensed Content into disrepute;
reverse engineer, decompile, or disassemble any part of the source code of the Licensed Content or any part of Licensor’s sites;
remove or modify any notice of copyright, trademark or other proprietary right, or any other copyright management information or metadata, from any place where it is on or embedded in the Licensed Content;
sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute the Licensed Content or the rights granted under this Agreement outside of Licensee’s organization;
post a copy or copies of the Licensed Content on a network server or web server for use by other users outside Licensee’s organization;
use or display the Licensed Content in an electronic format that enables it to be downloaded or shared publicly or with third parties in any peer-to-peer or similar file sharing arrangement;
use the Licensed Content for external editorial purposes, including, but not limited to commentary in blogs or social media;
either individually or in combination with others, reproduce the Licensed Content, or an element or part of the Content for purposes other than internal use within Licensee’s organization;
use or reproduce the Licensed Content on a social media platform or any other third-party website; or,
share, publish, distribute, assign, circulate, disseminate, or in any way give out Licensee’s Maakr username, password, or any other login or account credentials or information.

(b) Any instance of a Licensee’s prohibited use of the Licensed Content shall be considered a breach of this Agreement entitling Licensor to immediately discontinue Licensee’s access to the Licensed Content and/or subscription.

2. Representation of Legal Use

Licensee represents and warrants that (i) he/she/it is not located in or based in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) he/she/it is not listed on any U.S. Government list of prohibited or restricted parties.

3. Access only to Real Estate Professionals

To protect the integrity of the Licensed Content, subscriptions are only granted to verified real estate professionals. In order to ensure compliance, Licensee is requested to use a business email address when subscribing. Maakr reserves the right to deny or cancel access if eligibility criteria are not met.

SECTION 4: LICENSOR REPRESENTATIONS AND WARRANTIES

1. Limited Warranty

(a) Licensor warrants the following, with the express acknowledgement of Licensor and Licensee that in the event of any third-party claim that the Licensed Content or the Licensee’s possession and use of that Licensed Content infringes that third party’s intellectual property rights, Licensor will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim:

Licensee’s use of the Licensed Content in accordance with this Agreement and in the form delivered by Licensor will not infringe on any copyright, moral right, trademark or other intellectual property right, and will not violate any right of privacy or right of publicity; and,
all necessary releases for use of the Licensed Content in the manner authorized under this Agreement, if applicable, have been obtained. Licensor does not grant any right nor make any warranty with regard to the use of names, people, trademarks, registered logos, designs or works depicted therein.

(b) While Licensor has made reasonable efforts regarding the accuracy of the Licensed Content, Licensor cannot and does not warrant the accuracy of such information. Further, Licensor cannot warrant any Licensed Content modified to suit a particular Licensee’s purpose. Additionally, Licensor does not warrant the accuracy of any metadata that may be provided with the Licensed Content, if applicable.

(c) OTHER THAN AS EXPRESSLY PROVIDED IN THIS SECTION, THE LICENSED CONTENT IS PROVIDED “AS IS” WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT REPRESENT OR WARRANT THAT THE LICENSED CONTENT WILL MEET LICENSEE’S REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE. BOTH LICENSOR AND LICENSEE ACKNOWLEDGE THAT GOOGLE HAS NO OBLIGATION WHATSOEVER TO FURNISH ANY MAINTENANCE AND SUPPORT SERVICES WITH RESPECT TO THE LICENSED CONTENT.

(d) Certain jurisdictions disallow the exclusion of implied warranties, so the above exclusions in this section may not apply to Licensee. In the event the warranty above or limitations on liability herein are found unenforceable by a court of law, the remainder of this Agreement shall remain severable and in full effect.

SECTION 5: INDEMNIFICATION AND LIMITATIONS ON LIABILITY

1. Indemnification

(a) Licensee agrees to indemnify, defend and hold Licensor and its respective directors, officers, employees, shareholders, partners and agents harmless from and against any and all claims, liability, losses, damages, costs and expenses (including reasonable legal fees) incurred by Licensor or its affiliates as a result of or in connection with any breach or alleged breach by Licensee, or anyone acting on Licensee’s behalf with regard to any of the terms of this Agreement.

(b) Licensor agrees to indemnify, defend and hold Licensee harmless from and against any and all claims, liability, losses, damages, costs and expenses (including reasonable legal fees) actually incurred by Licensee as a result of or in connection with any breach by Licensor or anyone acting on Licensor’s behalf provided that the Licensed Content is only used in accordance with this Agreement and the claim does not arise directly or indirectly from Licensee’s breach of this Agreement.

(c) The indemnification set out in this Section is conditioned on a requirement that the party seeking indemnification (the “Indemnified Party”) must give prompt notification (within five (5) business days from receipt of notice of the claim) in writing to the party against whom indemnification is sought (the “Indemnifying Party”) of such claim and the Indemnifying Party’s right to assume the handling, settlement or defense of any claim or litigation, provided that no settlement or compromise that would admit fault or require payment by the Indemnifying Party may be approved without the written consent of the Indemnified Party. The Indemnified Party agrees to cooperate with the Indemnifying Party in the defense of any such claim or litigation at the Indemnifying Party’s expense. The Indemnified Party shall have the right to participate in such litigation at the Indemnified Party’s sole expense. The Indemnifying Party shall not be liable for legal fees and other costs incurred prior to the notice of the claim.

2. Limitations on Liability

(a) In no event shall either party or any of its affiliates or their respective directors, officers, employees, shareholders, partners or agents be liable for any incidental, indirect, punitive, exemplary, or consequential damages whatsoever (including damages for loss of profits, interruption, loss of business information, or any other pecuniary loss) in connection with any claim, loss, damage, action, suit or other proceeding arising under or out of this Agreement, including without limitation use of, reliance upon, access to, or exploitation of the Licensed Content, or any part thereof. The limitation of damages in this subsection shall not apply to those damages incident to a party’s indemnification obligations or in the event of the gross negligence, willful misconduct, or fraud on the part of the Indemnifying Par

(b) Notwithstanding any other term herein, Licensor shall not be liable for any damages, costs or losses arising as a result of modifications made to the Licensed Content by Licensee or the context in which the Licensed Content is used by Licensee.

(c) Notwithstanding anything else in this Agreement, the total maximum aggregate liability of Licensor under this Agreement and any other Agreement under which Licensee has licensed the same Licensed Content, regardless of the file size, or the use or exploitation of any or all of the Licensed Content in any manner whatsoever, the obligation of Licensor under this section shall be strictly limited to the subscription fee Licensee paid. Limitation of liability shall not apply to a party’s indemnification obligations or in the event of the gross negligence, willful misconduct, or fraud on the part of the Licensor.

(d) In the event any of this Section 5 is found unenforceable by a court of law, the remainder of this Agreement shall remain severable and in full effect.

SECTION 6: CONFIDENTIAL INFORMATION

1. Confidentiality Obligation

(a) Licensor possesses and will further develop and acquire certain confidential and proprietary information and trade secrets, including, but not limited to, the following categories of information, methods, techniques, procedures and knowledge developed or to be developed by Licensor or its Affiliates or their consultants, contractors or designees, (the “Confidential Information”):

Methods, techniques, equipment, and specifications (including design specifications, source code, standards, policies, procedures, information, algorithms, formulae, concepts, and systems relating to and knowledge of and experience in the development, operation of the Licensed Content);
marketing and promotional materials for the Licensed Content; and,
information concerning product sales, operating results, financial performance and other financial data.

2. Use of Confidential Information

(a) Licensee acknowledges and agrees that the Confidential Information is confidential to and a valuable asset of Licensor, is proprietary, includes trade secrets of Licensor and is disclosed to Licensee solely on the condition that Licensee and its employees, independent contractors or affiliates who have access to the Confidential Information agree, and Licensee does hereby agree that, during and after the Term of this Agreement, Licensee, and such employees, independent contractors and affiliates:

will not use the Confidential Information in any other business or personal capacity;
will maintain the absolute confidentiality of the Confidential Information;
will not make unauthorized copies of any portion of the Confidential Information disclosed in written or other tangible form; and,
will adopt and implement all reasonable procedures prescribed from time to time by Licensor to prevent unauthorized use or disclosure of the Confidential Information.

3. Disclosure

(a) Notwithstanding anything to the contrary contained in this Agreement and provided Licensee shall have obtained Licensor’s prior written consent, the restrictions on Licensee’s disclosure and use of the Confidential Information shall not apply to the following:

information, methods, procedures, techniques and knowledge which are or become generally known other than through disclosure (whether deliberate or inadvertent) by Licensee or any other party having an obligation of confidentiality to Licensor; and,
the disclosure of the Confidential Information in judicial or administrative proceedings to the extent that Licensee is legally compelled to disclose such information, provided Licensee has notified Licensor in writing prior to disclosure when permitted by applicable law, so that Licensor may elect to pursue an appropriate protective order or other assurance satisfactory to Licensor of confidential treatment for the information required to be so disclosed.

SECTION 7: INDEPENDENT CONTRACTORS

Relationship of Parties. It is understood and agreed by the Parties that this Agreement does not create a fiduciary relationship between them, that Licensor and Licensee are and shall be independent contractors, and that nothing in this Agreement is intended to make either party a general or special agent, joint venturer, partner, or employee of the other for any purpose. Licensee shall conspicuously identify itself, where appropriate, in all dealings with customers, suppliers, vendors, public officials, Licensee personnel (if applicable), and others as a licensee of Licensor.

SECTION 8: REMEDIES

1.Injunctive Relief

Nothing in this Agreement shall bar Licensor’s right to seek specific performance of the provisions of this Agreement and injunctive relief against threatened conduct that will cause it loss or damages, including applicable rules for obtaining restraining orders and preliminary injunctions. Licensee agrees that Licensor may seek such injunctive relief in addition to such further or other relief as may be available at law or in equity.

2.Costs and Legal Fees.

In the event of a breach of this Agreement by Licensee, Licensor shall be entitled to collect all of its reasonable costs of litigation or arbitration, including but not limited to reasonable attorney’s fees.

3. Applicable Law and Dispute Resolution.

(a) This Agreement shall be governed by and construed in accordance with the internal laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule (whether of the State of Minnesota or any other jurisdiction). This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the Content of which is expressly excluded. Hennepin County, Minnesota shall be the appropriate venue and jurisdiction for the resolution of any disputes hereunder. Both parties hereby consent to such personal and exclusive jurisdiction.
(b) The Parties hereto shall aim to settle any disputes between them first through friendly negotiation, then, if unsuccessful in negotiation, binding arbitration in Minneapolis, Minnesota under the rules of the American Arbitration Association (“AAA”).

SECTION 9: GENERAL PROVISIONS

1. Other Agreements

Licensee agrees and acknowledges that it has, in addition to reviewing the terms of this Agreement, reviewed any other agreements which may be incorporated by reference herein, and to the extent of their incorporation in this Agreement, Licensee agrees to be bound by them. In the event of any inconsistency, the terms of this Agreement shall govern.

2. Waiver

Licensor’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.

3. Assignment

This Agreement is personal to Licensee and is not assignable without Licensor’s prior written consent. Licensor may assign this Agreement without Licensee’s consent to any other party so long as such party agrees to be bound by its terms.

4. Amendments

Except for as provided herein, no terms or conditions may be added to or deleted from this Agreement unless made in writing and either accepted in writing by an authorized representative of both Parties or issued electronically by Licensor and accepted by action (including clicking an “I Agree” or “I Acknowledge” acknowledgement button in a click-through agreement) of Licensee or its authorized representative.

5. Severability

If all or part of any provision of this Agreement is wholly or partially unenforceable, the Parties or, in the event the Parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision.

6. Notices

Licensee questions, complaints or claims with respect to the Licensed Content should be directed to Maakr LLC via e-mail at sarah@Maakr.com.

7. Export Regulations

Licensee understands that Licensor is subject to regulation by agencies of the U.S. Government, including the U.S. Departments of Commerce and State, which prohibit export or diversion of certain technical products to certain countries. Licensee warrants that it will comply in all respect with the export and re-export restrictions set forth in the export license for the Content and all other applicable export regulations. Licensee agrees to indemnify and hold Licensor harmless from any loss, damages, liability or expenses incurred by Licensor, including all costs, damages, or reasonable attorney’s fees awarded as a result of Licensee’s failure to comply with any export regulations or restrictions.

8. Survival

Sections 3, 4, 5, 6 7, 8, and 9 hereof shall survive the termination of this Agreement.

9. Third-Party Sites, Terms of Use, and Third-Party Beneficiary

Licensor does not control and is not responsible for performance or availability of third-party websites and/or hosting sites (collectively, “Third-Party Sites”). Licensor cannot endorse or make any representations about Third-Party Sites, or any material found there, or any results that may be obtained from using them. Consequently, (i) if Licensee accesses any of the Third-Party Sites linked to the Licensed Content, Licensee does so entirely at its own risk, and (ii) if Licensee accesses the Licensed Content, it must comply with applicable third-party terms when using the Licensed Content – for example, the Licensee must not be in violation of their wireless data service agreement when using the Licensed Content.

ACKNOWLEDGEMENT

LICENSEE ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF LICENSOR AGREEING TO PROVIDE ACCESS TO THE LICENSED CONTENT, LICENSEE AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. LICENSEE FURTHER AGREES THAT THIS AGREEMENT SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN. LICENSOR AND LICENSEE ACKNOLEDGE: (i) THAT THIS AGREEMENT IS CONCLUDED BETWEEN LICENSEE AND LICENSOR ONLY, AND NOT WITH ANY THIRD PARTY OR THIRD PARTY BENEFICIARY; AND (ii) LICENSOR IS SOLELY RESPONSIBLE FOR THE LICENSED CONTENT AND THE CONTENT THEREOF.