1. Defined Terms. As used herein, “Source(s)” means, collectively, direct and indirect third party or affiliated licensors, vendors, service providers, subcontractors and sources of (i) any of the Services, or any part thereof, or (ii) any system, software, products, services, materials, content, data, applications or hardware accessible through or using the Services (the “Source Products”). “Services” means, collectively, any and all electronic systems, software, capabilities, content and services, including the Source Products, access to which or use of which were, are or will be provided or made available to you, whether provided directly to you or through Provider or any third party. “Provider” means Newmark & Company Real Estate, Inc., or any of its affiliate(s) designated by Provider from time to time; “affiliate” means any entity existing from time to time which directly or indirectly controls, is controlled by, or is under common control with Provider; “Representatives” means any and all of your partners, officers, directors, agents, employees, users and any other persons or entities which are authorized to act on your behalf; and “including” means “including without limitation.”
2. Use Restrictions. You may only use the Services in the United States (excluding its territories and possessions), the United Kingdom and such other countries as permitted by Provider in writing signed by Provider solely for the internal purposes and benefit of the entity agreeing to these Access Terms in connection with its management of its commercial real estate portfolio and in accordance with these Access Terms. You shall not, directly or indirectly: (i) sell, rent, sublicense, publish, display, loan, distribute or lease the Services or use the Services to provide a timeshare, service bureau, application service provider or similar services; (ii) transfer to any other person or entity any of your rights to use the Services except as expressly permitted hereunder; (iii) reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover the source code of the Services or create derivative works from any of the Services; (iv) use the Source Products in any way other than integrated with the Services; (v) use the Services in any manner not authorized by these Access Terms; or (vi) disclose or distribute the Services to any third party or to anyone who is not employed or retained by you and is not authorized by you to use the Services for the purposes described in these Access Terms. You have no other license or any other right to the Services other than as expressly provided herein. You shall notify Provider immediately in writing in the event that you learn about a possible or actual unauthorized access to or use of the Services. Provider, its affiliates and the Sources shall have the right, upon reasonable advance notice, to obtain access to your premises, systems, records and other information as may be necessary for the purpose of auditing the records and practices related to access to and/or use of the Services or access to and/or use of any system, software, content or data in connection with or accessible through the Services.
3. Intellectual Property Rights. Provider, its affiliates and their respective Sources own and retain all right, title and interest in and to the Services and the respective intellectual property and other proprietary rights embodied, contained or integrated into the Services. You shall not acquire any right, title or interest in or to the Services or any intellectual property rights contained therein. You acknowledge and agree that all aspects of the Services (as currently existing and as may be hereafter modified, regardless of whether you contributed to such modifications) are commercially valuable proprietary products and trade secrets of Provider, its affiliates and/or the Sources, as applicable, which, except to the extent expressly permitted in writing and signed by Provider on a case by case basis, may not be, directly or indirectly, used or accessed by or disclosed to: (i) anyone who is not employed or retained by you or (ii) any third party.
4. Data Rights. Provider shall have the right to use and disclose: (i) any content, information or data provided by you, collected by Provider or generated through the Services to the extent necessary for the provision, operation, development and/or improvement of Provider’s services and/or pursuant to applicable laws or requirements of the Sources and/or any government agency or instrumentality, regulator or self-regulatory organization; or (ii) any content, information and data provided by you, collected by Provider or generated through the Services, provided that such content, information and data is aggregated and/or anonymized.
5. Representations and Warranties. You represent, warrant and covenant that you have all necessary rights, approvals, licenses and authorizations to use the Services and to provide all data, information and content you make available, provide, display or transmit in connection with or using the Services or that is made available to you using your unique identifiers, access codes, user names and/or passwords (“Passwords”), and, to the best of your knowledge and belief, Provider and Source(s) may use such data, information and/or content as permitted herein without violating any intellectual property or proprietary rights of any third party, including any privacy rights of any third party . You are fully responsible for all data, information and content you introduce into the Services, including adequate protection and backup, and none of Provider, Source or their respective affiliates shall have any obligation or liability with respect thereto. You shall ensure that all of your Representatives comply with these Access Terms and you shall be fully responsible for your Representatives’ acts and omissions.
6. Compliance with Laws. You agree to comply with (i) all applicable local, state, national and foreign laws, rules and regulations in connection with your access to and/or use of the Services, including those related to data privacy, copyright, export control and the transmission of technical or personal data, and (ii) any additional requirements of Provider and any of the Sources as may be communicated from time to time. You acknowledge and agree that the Services, or a portion thereof, may be subject to United States export and re-export controls, including the Export Administration Act and Regulations, the Foreign Assets Control Regulations, and other controls administered by the United States Department of Commerce and the United States Department of State; and use or access, including export, re-export and/or making available contrary to U.S. laws, rules and/or regulations is prohibited. You agree not to directly or indirectly export, import or transmit the Services to any country, end user or for any access or use that is prohibited by any applicable U.S. law, rule or regulation (including those countries embargoed from time to time by the U.S. government or the United Nations). Additionally, you agree to not directly or indirectly export, import, transmit, access or use the applicable Services contrary to the laws, rules or regulations of any other U.S. or foreign governmental entity or agency that has jurisdiction over such export, import, transmission, access or use. You represent and warrant that neither the United States Bureau of Industry or Export Administration nor any other U.S. or foreign governmental entity or agency has (i) issued sanctions against you or any other person who accesses or uses any of the Services provided to you through your account or (ii) suspended, revoked or denied your or any such other person’s export privileges.
7. Provider’s Defense Obligations. Provider agrees to defend (at its expense) you and your affiliates against any claims by a third party directly and primarily arising from the Services that are proprietary to Provider as Provider makes them available to you and as you use in compliance with these Access Terms, to the extent any such claim alleges that such Services infringe or misappropriate any intellectual property rights of such third party and, in respect of such claims, Provider shall pay the costs and damages finally awarded by a court against you in a non-appealable judgment or included in a settlement approved by Provider in writing signed by Provider, provided that: (i) you promptly provide notice to Provider of any claim against you and/or your affiliates alleging such infringement or misappropriation, (ii) Provider controls the defense and settlement of such claim, (iii) neither you nor your affiliates weaken, impede or otherwise interfere with Provider’s defense or settlement, and you and they fully cooperate with Provider in connection with the defense and settlement, of such claim, (iv) you and your affiliates are in compliance with the terms and conditions of these Access Terms; and (v) once requested by Provider, you promptly cease all use of any infringing or allegedly-infringing part of the Services, and provide access to any of your computer systems that may require modification. Notwithstanding anything set forth in these Access Terms, Provider shall have no obligation of defending or indemnification, and no liability, if the infringement or alleged infringement arises out of (a) any alteration, changes or modifications to the Services not made by Provider, (b) use of the Services in combination with anything not provided by Provider, (c) use of the Services contrary to any terms of these Access Terms and/or any documentation of/for the Services provided by Provider from time to time, or (d) failure to use updated or modified versions of the Services provided by Provider.
8. DISCLAIMER OF WARRANTIES. PROVIDER, ITS AFFILIATES AND THE SOURCES HEREBY EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, GUARANTIES, CONDITIONS, COVENANTS AND REPRESENTATIONS RELATING TO THE SERVICES, ANY PROPRIETARY OR THIRD PARTY TECHNOLOGY, HARDWARE, SYSTEM, SOFTWARE (INCLUDING OPEN SOURCE SOFTWARE), DATA, CONTENT OR SERVICES PROVIDER, ITS AFFILIATES AND/OR SOURCE(S) MAY USE TO PROVIDE THE SERVICES OR OTHER SERVICES TO YOU, INCLUDING MERCHANTABILITY, QUALITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, TIMELINESS, CURRENCY, ABSENCE OF VIRUSES OR DAMAGING OR DISABLING CODE. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES THAT THE SERVICES OR ANY USE OF OR ACCESS TO ANY PORTION OF SUCH SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN SUCH SERVICES WILL BE CORRECTABLE OR CORRECTED. NEITHER THE SERVICES NOR ANY CONTENT DISPLAYED IN OR AVAILABILE THROUGH THE SERVICES IS GUARANTEES TO BE ACCURATE, COMPLETE, CORRECT OR UP TO DATE. UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW, PROVIDER ALSO HAS NO DUTY OR OBLIGATION TO VERIFY, CORRECT, COMPLETE OR UPDATE ANY CONTENT DISPLAYED IN OR AVAILABLE THROUGH THE SERVICES. THE SERVICES ARE BEING PROVIDED “AS IS” AND YOU ASSUME THE ENTIRE RISK IN CONNECTION WITH ACCESS TO OR USE THEREOF.
9. YOUR INDEMNIFICATION OBLIGATIONS. YOU SHALL INDEMNIFY AND HOLD HARMLESS PROVIDER, ITS AFFILIATES AND THE SOURCE(S) AGAINST ANY AND ALL COSTS, EXPENSES, LOSSES, LIABILITIES, OBLIGATIONS, SETTLEMENT AMOUNTS, DAMAGES AND PENALTIES (COLLECTIVELY, “EXPENSES”), TO WHICH PROVIDER, ITS AFFILIATES OR THE APPLICABLE SOURCE(S) MAY BECOME SUBJECT INCLUDING REASONABLE LEGAL AND OTHER PROFESSIONAL FEES INCURRED IN INVESTIGATING, DEFENDING OR APPEALING PENDING OR THREATENED CLAIMS, ACTIONS, SUITS, PROCEEDINGS, ARBITRATIONS OR CAUSES OF ACTION (COLLECTIVELY, “CLAIMS”) ARISING OUT OF OR RELATING TO: (i) USE OF OR ACCESS TO THE SERVICES; (ii) ANY BREACH OF THESE ACCESS TERMS OR FAILURE TO CARRY OUT ANY REPRESENTATIONS, WARRANTIES, OBLIGATIONS OR RESPONSIBILITIES HEREUNDER; OR (iii) ANY INTRODUCTION OF VIRUS, WORM, TROJAN HORSE, MALICIOUS CODE, DISABLING CODE OR OTHER EXECUTABLES INTO THE SERVICES, IN EACH CASE, EXCEPT TO THE EXTENT A COURT OF APPLICABLE JURISDICTION FINDS IN A NON-APPEALABLE JUDGMENT THAT SUCH EXPENSES RESULTED DIRECTLY AND PRIMARILY FROM PROVIDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
10. LIMITATION OF LIABILITY. PROVIDER’S AGGREGATE LIABILITY (WHETHER ARISING UNDER CONTRACT, NEGLIGENCE, TORT, BREACH OF STATUTORY DUTY OR OTHERWISE) TO YOU OR ANY THIRD PARTIES ARISING OUT OF OR OTHERWISE RELATING TO THE SERVICES SHALL NOT EXCEED THE FEES ACTUALLY PAID BY YOU TO PROVIDER IN THE TWELVE (12) MONTHS PRECEDING A CLAIM, PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATION SHALL NOT APPLY TO THE EXTENT THAT SUCH LIABILITY RESULTED DIRECTLY AND PRIMARILY FROM PROVIDER’S WILLFUL MISCONDUCT. IN ANY EVENT, PROVIDER, ITS AFFILIATES AND THE SOURCES SHALL NOT HAVE ANY LIABILITY (WHETHER ARISING UNDER CONTRACT, NEGLIGENCE, TORT, BREACH OF STATUTORY DUTY OR OTHERWISE) TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF PROFIT, BUSINESS, REVENUE OR OPPORTUNITY (IN EACH CASE, WHETHER DIRECT OR INDIRECT), OR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES.
11. Suspension and Termination. Provider, at the request of the Source(s) and/or the Sources(s), at any time with or without notice, may monitor, modify any aspect of, limit, suspend or terminate your use of or access to any or all of the Services or any capability accessible through any of the Services. Notwithstanding the foregoing, Provider will use reasonable efforts to provide notice of suspension and termination of your access to, or use of, the Services.
12. Applicable Law; Disputes. These Access Terms shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflicts of law principles thereof, and any action brought in relation to these Access Terms shall be brought in a Federal or State court in New York County, New York State. You and Provider hereby irrevocably consent to the jurisdiction of such courts, and both parties hereby waive any claim or defense that such forum is not convenient or proper and to any right to trial by jury with respect to any dispute, suit, action or proceeding arising out of or relating to these Access Terms. Notwithstanding anything set forth in these Access Terms and in addition thereto, Provider shall have the option of bringing any dispute, difference or controversy arising out of these Access Terms or the relationship between the parties before an arbitration panel in New York, New York in addition to state or federal courts sitting in New York County in the State of New York. Such arbitration shall be administered by the American Arbitration Association in accordance with its International Arbitration Rules, including the Optional Rules for Emergency Measures of Protection. The Arbitral Tribunal’s authority under Article 37 of the International Centre for Dispute Resolution (“ICDR”) Rules shall include the ability to order you to refrain from breaching provisions of these Access Terms. If Provider chooses to exercise such option to have a dispute, difference or controversy settled by arbitration, then (i) the language of the proceedings shall be the English language, (ii) the parties agree to be bound by the results of such arbitration, (iii) the seat of the arbitration shall be New York, NY, USA, (iv) judgment upon the award so rendered may be entered in any court of competent jurisdiction, or application may be made to such court for a judicial acceptance of the award and an order of enforcement, (v) Provider will provide you with written notice of such choice, (vi) all testimony shall be transcribed, (vii) the award of any arbitration panel shall be accompanied by findings of fact and a statement of reasons for the decision, and (viii) the arbitration panel hearing such dispute will be made up of three (3) arbitrators, each of whom will have a minimum of five (5) years’ experience in arbitrating disputes similar to the dispute between the parties. Each party shall select one person to act as arbitrator and the two so-selected shall select a third arbitrator. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the ICDR. Neither party shall be dispensed from performing hereunder because an arbitral proceeding has been initiated. You do not have the right to act as a class representative or participate as a member of a class of claimants with respect to any claim submitted to litigation. Notwithstanding the foregoing or anything set forth in these Access Terms: (1) nothing contained in this paragraph shall prohibit Provider from seeking equitable relief without resorting to the dispute resolution or arbitration process, in each case, including under such circumstances as Provider reasonably believes may compromise its interests hereunder or its property absent an immediate judicial determination; and (2) without limiting subsection (1) immediately above and in addition thereto, in the event of a breach or threatened breach by you of any of the provisions of these Access Terms, Provider shall be, in addition to any other remedies available to it under law, entitled to seek and obtain all equitable remedies including an injunction restraining you from the performance of acts which constitute a breach of these Access Terms, and you agree not to raise adequacy of legal remedies as a defense thereof.
13. Miscellaneous. These Access Terms may not be modified or altered by you and no provision of these Access Terms may be waived except by a written instrument executed by Provider. Provider may, in its sole discretion, modify or update these Access Terms from time to time, and so you should review this page periodically. When Provider changes these Access Terms in a material manner, Provider will update the “Last Modified” date at the bottom of this page and may notify you that material changes have been made to these Access Terms. Your continued use of the Services after any such change constitutes your acceptance of the new Access Terms. If you do not agree to any of the terms and conditions in these Access Terms or any future Access Terms, do not use or access (or continue to use or access) the Services. In the event of any conflict between these Access Terms and any other terms, conditions or agreement, these Access Terms shall govern and control with respect to the subject matter thereof. The terms of these Access Terms shall survive in perpetuity.
14. Electronic Documents. Provider may, in its sole discretion, seek your consent to these terms and conditions (the “Access Terms”) by means of an electronic signature by requesting you to affirmatively check the box indicating your acceptance to these Access Terms, or affirmatively “click” on boxes containing the words “I Accept,” “I Agree” or other similar phrases (collectively, “Acceptance Terms”). If you “click” on the Acceptance Terms, your “click” will be deemed a legally binding electronic signature. By electronically indicating your agreement to these Access Terms as described above and/or registering for and/or accessing, browsing, and/or using the Services (as defined below), you expressly acknowledge and agree that: (i) you intend to form a legally binding contract between you and Provider; (ii) you have read, understood and agree to comply with these Access Terms as well as such other restrictions or limitations as may be specified by the Sources from time to time with respect to the Source Products, and to the collection and use of your personal information as set forth in our Privacy Statement posted at https://www.nmrk.com/privacy-statement; (iii) these Access Terms are legal equivalents of signed, written contracts, and equally binding; (iv) you have received a copy of these Access Terms by your viewing a web page containing a hyperlink to a web page where these Access Terms are displayed or otherwise; (v) “you”, as used in these Access Terms, includes you and the entity on whose behalf you are accessing and/or using the Services; and (vi) you represent and warrant that you are an authorized representative of such entity with the authority to bind such entity to these Access Terms, and you agree to these Access Terms on such entity’s behalf.
Last Modified: November 11, 2024