These Terms and Conditions of Service (“Terms”) apply to all engagements whereby Spruce Holdings Inc., a Delaware corporation having offices at 150 West 22nd Street, 12th Floor, New York, NY 10011, and/or its Subsidiaries (as defined below) (collectively, “Spruce”) agree to provide services to a client (“Client”, “You”, or “you”) pursuant to a an Order Form duly executed between Spruce and Client which makes reference hereto. These Terms shall apply to the Services (as defined below) effective as of the date of such Order Form (the “Effective Date”).
1. SERVICES. Client has requested that Spruce provide, and, subject to these Terms, Spruce agrees to provide and make available to Client those service(s) set forth on a duly executed Order Form, as may be further described herein (such services, the “Services”).
2. LICENSES TO USE SOFTWARE AND DATA
A. The Services provided by Spruce may include (i) one or more proprietary Spruce software or internet-based products delivered or made available to Client via the internet or other electronic media from time to time, including access to and use of the Spruce application programming interface and related tools and documentation (the “API”) and/or plug-in capabilities that allow the Services to interact with software or services not provided by Spruce (the API, such other software, and all upgrades, updates, revisions, bug fixes, new versions and replacements thereto, the “Software”), and/or (ii) certain proprietary data sets created, assembled, or maintained by Spruce and/or licensed by Spruce from third parties (collectively, the “Spruce Data”). Provision or access to the Software and/or Spruce Data is considered Services for all purposes hereunder and is subject to the additional terms and conditions set forth in any Order Form.
B. Subject to the terms and conditions of these Terms and any Order Form, Spruce hereby grants to Client a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use the Software and Spruce Data for its internal business purposes and such other purposes as may be expressly set forth in an Order Form hereto, and not for any other purpose. The license set forth in this Section 2(B) is limited to object code use only, however, in the event Spruce elects to share any Software source code with Client, such source code is considered Software for all purposes hereunder and Client agrees to use such source code solely for the purpose of integrating with or connecting to other Software provided by Spruce or as otherwise expressly agreed to by Spruce in writing in advance. All use of the API and other Software must be in accordance with Spruce’s applicable user documentation and any other written instructions provided by Spruce to Client from time to time.
C. Client is not permitted to (i) sell, rent, lease, license, sublicense, transfer, assign, or otherwise provide or disseminate the Software or Spruce Data to any third party (including any affiliate of Client) or permit a timesharing, service bureau or similar arrangement using the Software or Spruce Data, (ii) allow any person other than its Users (as defined below) to access or use the Software or Spruce Data, and Client agrees that it is fully responsible and liable for the acts or omissions of such individuals, (iii) decompile, reverse engineer, modify, or otherwise create any derivative work based on the Software, or (iv) attempt to create a substitute or similar service through use of, or access to, the Software or Spruce Data, except in the cases of (i)-(iv) as may be expressly set forth in an Order Form. “User” means an authorized employee of Client that is given access to the Software by Spruce on behalf of Client.
D. Client acknowledges that in the course of providing the Services or Software, Spruce may gather certain data pertaining to Client’s usage of the Software (“Usage Data”)and/or concerning Client’s customers, whether individuals or businesses (“Customer Data”). Client agrees that Spruce may use the Usage Data and Customer Data in an anonymous, aggregated fashion for Spruce’s internal business purposes, including product research and development and marketing. Spruce agrees that it will not use the Usage Data or Customer Data for any other purpose and will not share any personally identifiable information about Client’s individual customers (as applicable) with any third party except (i) as may be necessary to perform the Services, or (ii) in connection with any audit, investigation, order, or other proceeding by any governmental authority having jurisdiction over Spruce or the Services. In the event that during the course of the provision of Services Client provides any feedback relating to the Services or Software (including, without limitation, as may relate to usability, performance, new features or functionality, pricing, new products or services, interactivity, bug reports, and test results) (the “Feedback”), Client agrees that (x) Spruce owns all right, title and interest in such Feedback, and (y) Client will take such steps as may be reasonably necessary (at Spruce’s sole expense) to assign such rights to Spruce.
E. Client acknowledges that as between Spruce and Client, all intellectual property rights in or relating to the Services, Software, and Spruce Data are and shall remain the exclusive property of Spruce or its licensors, and that other than the limited right to use the Services, Software, and Spruce Data provided herein, no other intellectual property right of any kind or nature is being conveyed or granted to Client in connection with these Terms. These Terms does not include any right for Client to use any trademark, service mark, trade name or any other mark of Spruce or any other party or licensor.
3. FEES AND PAYMENT. Client agrees to pay (or in cases where Client’s customers are parties to the underlying real estate transactions, Client shall direct its customers to pay) the fees set forth in any Order Form pursuant to the payment instructions set forth therein. All fees are quoted in US Dollars and are exclusive of any applicable taxes. Client acknowledges that it shall be responsible for any and all applicable federal, state and local taxes (however designated or levied) based upon the amounts payable hereunder, provided that Client shall not be responsible for taxes based on Spruce’s income.
4. TERM AND TERMINATION A. These Terms will become effective as to a Client on the Effective Date and continue in force for so long as any Order Form remains in effect.
B. Either party may terminate the Terms or any Order Form hereunder upon written notice if the other party breaches these Terms and fails to correct the breach within thirty (30) days following receipt of written notice specifying the breach, provided that the cure period for any default by Client with respect to payment is five (5) business days. Subject to Title 11 of the United States Code or any equivalent applicable law, if Client becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver or similar officer for it, or makes an assignment for the benefit of any creditor, then Spruce may terminate these Terms upon thirty (30) days’ written notice.
C. Upon expiration or termination of these Terms, Client’s right to access the Services will immediately terminate, except as may be set forth in any Order Form. Notwithstanding the foregoing, Sections 2(C), 2(D), 2(E), 3 (solely with respect to any payments outstanding as of the effective date of any termination or expiration), 5, 6, 7, 8 and 9 will survive any termination or expiration of these Terms.
5. CONFIDENTIAL INFORMATION A. For purposes of these Terms, “Confidential Information” means any information or materials that are clearly labeled as proprietary, confidential, or with words of similar meaning, and all information that is orally or visually disclosed, if not so marked, if it is identified as proprietary or confidential at the time of its disclosure or in a writing provided within thirty (30) days after disclosure, or the receiving party reasonably should know or have known that such information was the confidential information of the disclosing party, including, without limitation: the terms of these Terms, all pricing information, information concerning Spruce’s customers and prospects, mailing lists, suppliers and sources of supply and/or materials, business practices, financial information of any kind whatsoever, databases, product information and plans, technical specifications, employee information, and trade secrets and other confidential knowledge used or developed by any of the disclosing party’s employees. As between Spruce and Client, (x) the Software, Spruce Data, Usage Data, and Feedback is the Confidential Information of Spruce or its licensors, and (y) the Customer Data is the Confidential Information of Client or its customers. Confidential Information does not include information that: (i) is or becomes publicly known through no act or omission of the receiving party; (ii) was in the receiving party’s lawful possession prior to the disclosure; (iii) is rightfully disclosed to the receiving party by a third party without restriction on disclosure, or (iv) is independently developed by the receiving party without reliance on or use of the Confidential Information of the other party.
B. Each party agrees not to disclose or use (other than as permitted by these Terms) the Confidential Information of the other party that it may receive or to which it may be exposed, except as required by law or the legal process, without the prior written consent of the other party, provided that each party may disclose such Confidential Information to its employees, attorneys, agents, auditors, directors, officers, affiliates and contractors (“Representatives”) as required to perform Services and obligations set forth in these Terms. Each party agrees to take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its Representatives in violation of the terms of these Terms, but in no event will either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like importance. Each party must ensure that any Representatives that are permitted to access any of the other’s Confidential Information are legally bound to comply with the obligations set forth herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental or regulatory agency, provided that before disclosing such information the disclosing party must, to the extent practicable and legally permitted, provide the non-disclosing party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.
6. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS A. Spruce hereby represents and warrants that (i) the Services will be provided in a professional and workmanlike manner in accordance with industry standards and all applicable laws, (ii) it has all rights, consents, and authorizations necessary to enter into these Terms and grant the licenses set forth herein, and (iii) it will comply with all applicable federal, state, and local laws, rules and regulations (“Applicable Law”) pertaining to the provision of the Services hereunder.
B. Client hereby represents and warrants that (i) it has all rights, consents, and authorizations necessary to enter into these Terms and grant the licenses set forth herein, and (ii) Client’s use of the Services, Software, and Spruce Data hereunder will comply with all Applicable Law. THE SERVICES, SOFTWARE AND SPRUCE DATA ARE PROVIDED TO CLIENT ON AN “AS IS” BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, SOFTWARE, OR SPRUCE DATA, AND SPRUCE EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT THERETO. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THERE IS NO GUARANTY THAT THE SERVICES, SOFTWARE OR SPRUCE DATA WILL MEET CLIENT’S REQUIREMENTS OR THAT THE SERVICES, SOFTWARE, OR SPRUCE DATA WILL BE ERROR FREE. CLIENT’S SOLE AND EXCLUSIVE REMEDY AND SPRUCE’S ONLY OBLIGATION UNDER THE WARRANTY SET FORTH ABOVE AND THIS AGREEMENT IS, AT CLIENT’S SOLE DISCRETION, EITHER FOR SPRUCE TO CORRECT THE DEFICIENCIES, RE-PERFORM (FOR NO CHARGE) ANY DEFICIENT SERVICES, OR FOR SPRUCE TO REIMBURSE CLIENT FOR THE PURCHASE PRICE FOR SUCH DEFICIENT SERVICES.
7. LIMITATIONS ON LIABILITY A. THE PARTIES AGREE THAT IN NO EVENT WILL SPRUCE BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES OR ANY LOST PROFITS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THEIR PERFORMANCE HEREUNDER, HOWEVER CAUSED OR ALLEGED, REGARDLESS OF WHETHER SPRUCE, OR SPRUCE’S AFFILIATES HAS BEEN ADVISED OF OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES
B. THE PARTIES FURTHER AGREE THAT IN NO EVENT WILL SPRUCE BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THEIR PERFORMANCE HEREUNDER, HOWEVER CAUSED OR ALLEGED, IN EXCESS OF THE FEES PAID OR PAYABLE TO SPRUCE PURSUANT TO THIS AGREEMENT DURING THE SIX (6) MONTHS PRECEDING THE DAMAGE INCURRED BY CLIENT.
8. INDEMNIFICATION A. Spruce agrees to indemnify, defend and hold harmless Client and its directors, officers, employees, and permitted successors and assigns from and against any and all liabilities, losses, settlement payments, damages, costs, and expenses whatsoever (including, without limitation, reasonable attorneys’ fees, other professionals’ fees, and court fees and costs) (“Damages”) arising out of or relating to any actions, demands, claims, proceedings, or suits brought by any third party (“Claims”) that: (i) the Services, Software, or Spruce Data infringe, misappropriate, or otherwise violate the intellectual property rights of a third party, or (ii) Spruce has breached a representation or warranty made under these Terms.
B. Client agrees to indemnify, defend and hold harmless Spruce and its affiliates, and their respective directors, officers, employees, and permitted successors and assigns from and against any and all Damages arising out of or relating to Claims brought by any third party that: (i) Client’s use of the Services, Software or Spruce Data has damaged or violated the rights of a third party or is contrary to Applicable Law, or (ii) Client has breached a representation or warranty made under these Terms.
C. Any claim for indemnification hereunder is expressly conditioned upon the indemnified party providing the indemnifying party with prompt written notice of the claim, sole control over the defense and settlement thereof, and reasonable cooperation related thereto.
9. MISCELLANEOUS A. Entire Terms; Amendment; Severability. These Terms (and any Order Form(s)) constitute the entire agreement between the parties relating to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, oral or written, between the parties. These Terms may not be amended or modified except by a written instrument executed on behalf of each party hereto, nor may any provision hereof be waived except by a written instrument executed on behalf of the party entitled to enforcement of such provision. Notwithstanding the foregoing, Spruce reserves the right to change these Terms by providing no less than thirty (30) days’ written notice to you thereof. Your continued use of the Services pursuant to a valid Order Form following such thirty (30) day period will constitute your consent to any such amended Terms. If any term or provision of these Terms is held invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term of provision of these Terms or invalidate or render unenforceable such term in any other jurisdiction.
B. Assignment; Change of Control. Client may not assign or transfer these Terms (whether by operation of law or otherwise), in whole or in part, without Spruce’s prior written consent. Spruce may terminate these Terms at any time following a Change of Control (as defined below). “Change of Control” means: (i) the direct or indirect transfer of the majority of voting stock, or membership or other ownership interests of Client, or the transfer of the right to direct Client’s business (by contract or otherwise), (ii) the merger or consolidation of Client with another entity (other than a merger or consolidation in which the stockholders of Client shall retain a majority of the voting stock of the surviving entity), or (iii) the sale or transfer, in a single transaction or a series of transactions, of all or substantially all of the assets of Client.
C. Non-solicitation. Client agrees that during the term of these Terms, it and its affiliates will not directly or indirectly solicit or hire for employment any employee of Spruce, provided that general advertisements and other similar broad forms of solicitation will not constitute direct or indirect solicitation hereunder.
D. Equitable Relief. Each party acknowledges that a breach by the other party of any use restriction, confidentiality or proprietary rights provision of these Terms may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
E. Publicity. Client acknowledges and agrees that Spruce may, for marketing purposes, use and reproduce Client’s logo and/or business name on its website and in printed marketing materials for distribution to clients and prospective clients indicating that Client is a current client of Spruce. Spruce agrees to take commercially reasonable steps to remove such logo and/or business name from such venues within thirty (30) days of any termination of these Terms. Client further agrees that, upon Spruce’s request and subject to its prior written approval, Client will provide a quotation and/or written statement for inclusion in a press release or other public announcement concerning Client’s engagement with Spruce pursuant to these Terms.
F. Binding Effect; No Third Party Beneficiaries. Subject to Section 9(B) above, these Terms will inure to the benefit of and be binding on the parties’ respective successors and permitted assigns. No person other than the parties to these Terms has or will have any legal or equitable right, remedy or claim under, or in respect of, these Terms.
G. Force Majeure. The performance of either party under these Terms may be suspended for the period of time that such party is prevented from fulfilling its obligations due to causes beyond its reasonable control (force majeure).
H. Notices. Any notices or other communications required or permitted to be given or delivered under these Terms must be in writing to the addresses set forth in the preamble to these Terms to the attention of the party’s General Counsel, with a copy of all notices sent to Spruce also sent via email to email@example.com.
I. Governing Law; Jurisdiction; Waiver of Jury Trial. These Terms are subject to, and must be construed in accordance with, the laws of the State of New York without giving effect to its principles of conflicts of laws. Any legal action or proceeding relating to these Terms must be brought exclusively in the state or federal courts located in the Borough of Manhattan, New York. Spruce and Client hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such action or proceeding. Each party knowingly, voluntarily, and intentionally waives its right to a trial by jury to the extent permitted by applicable law in any action or other proceeding, whether in contract, tort or otherwise, arising out of or relating to these Terms. Each party acknowledges that it has received the advice of competent counsel.
ADDITIONAL TERMS APPLICABLE TO TITLE AND SETTLEMENT SERVICES The following additional terms and conditions apply to all Services ordered pursuant to a Title and Settlement Services Order Form:
1.Title search and CC&Rs. Where Client receives title search services from Spruce in connection with the issuance of a title insurance policy, Client acknowledges that, unless expressly agreed to by Spruce in an Order Form, (i) such Services do not include the review of any homeowner association documents or covenants, conditions, and restrictions (CC&R) provisions; and (ii) it is the responsibility of Client or Client’s customers, and not Spruce, to determine whether CC&Rs have or will have a negative impact on the value of their property. 2. Property reports and title insurance policies. Where Client purchases an uninsured property report, Spruce’s liability for any and all issues arising out of such report or any reliance thereon shall be the limited to the fees paid or payable to Spruce for the creation of such report. In order to collect under a title insurance policy issued by Spruce, Client must be the named insured on such policy and Spruce must have been the issuing agent.
3. Title insurance underwriters. As of the Effective Date, Spruce works with the following national underwriting partners, which may be changed or updated by Spruce from time to time in its sole discretion:
● American Digital Title Insurance Company ● Fidelity National Title Insurance Company and its affiliates ● First American Title Insurance Company ● WFG National Title Insurance Company
4. Spruce affiliates. Spruce services offered in certain jurisdictions may be provided by a subsidiary of Spruce Holdings Inc., including, without limitation, the following subsidiaries, as such entities may be updated and modified from time to time in Spruce’s sole discretion: ● Spruce Land Services LLC (ME, NH, VT, MA, RI, NY, PA, NJ, DE, MD, Washington D.C., WV, VA, NC, SC, GA, FL, OH, KY, TN, MI, IN, MS, MO, IL, WI, MN, MO, OK, KS, NE, ND, CO, MT) ● Spruce Land Services West LLC (OR) ● Spruce Land Services Southwest LLC (TX, AZ, NV, WA) ● Spruce Title Company (CA) ● Spruce Land Services of Alabama LLC (AL) ● Spruce Land Services of Louisiana LLC (LA)
Where services are provided by such Spruce subsidiaries, Client acknowledges and agrees that the applicable subsidiary is the service provider and responsible party for all such services and not Spruce Holdings Inc. or any other affiliate of Spruce.
Disclaimer Title agency and escrow services are provided by licensed entities in the applicable jurisdiction. Those entities include Spruce Land Services, Spruce Land Services Southwest, Spruce Title Company, Spruce Land Services of Alabama, LLC, and Spruce Land Services West. For more information on applicable jurisdictions and license numbers select "Legal"above. The applicable Spruce entities are authorized agents to write title insurance underwritten by a licensed title insurance underwriter.
* The numbers/figures used in the product imagery are for illustrative purposes only.
Disclaimer Title agency and escrow services are provided by licensed entities in the applicable jurisdiction. Those entities include Spruce Land Services, Spruce Land Services Southwest, and Spruce Land Services West. For more information on applicable jurisdictions and license numbers select "Legal"above. The applicable Spruce entities are authorized agents to write title insurance underwritten by a licensed title insurance underwriter.
* The numbers/figures used in the product imagery are for illustrative purposes only.