LICENSING AGREEMENT for IDXblue 'Standard'

This Agreement is made this Day, Sep 27, 2020, by and between Clandestine Productions, Inc., d/b/a QBlue.com ("QBlue"), a Florida corporation with its principal place of business at 2530 Meridian Parkway, Durham NC 27713 and Licensee.

WHEREAS, QBlue desires to allow Licensee to use and Licensee desires to use a certain Application owned or leased by QBlue described below for the purposes of providing real estate services by Licensee;

WHEREAS, QBlue has agreed to grant such use and Licensee has agreed to accept such a grant based upon the terms and conditions set forth herein.

NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, and in consideration of the foregoing recitals, each of which is incorporated in and made a part of this Agreement, the parties hereto, intending to be legally bound, agree as follows:

1.             DEFINITIONS

  1. Commencement Date: The date on which Licensee signs this Agreement.
  2. The Application: The software and/or service(s) which is/are owned or leased by QBlue.
  3. The Premises: QBlue's place(s) of business, including but not limited to the address listed above and the location of the Application server.
  4. Licensing Territory: The US state in which the Licensee operates its principal place of business.

2.             LICENSE AND CONDITIONS OF USE

  1. QBlue hereby grants to Licensee the right to use the Application on the terms and conditions set forth herein. The Application shall have the following functionality: to give visitors to the Licensee's authorized web site(s) the ability to search IDX data and for the Licensee to view and interact with data collected from and about visitors during search sessions. This License to Licensee shall in no way limit QBlue's right to conduct its normal business operations or to offer its products and services to competing or non-competing companies or individuals unless otherwise noted in attached exhibits.
  2. Licensee grants QBlue the right of first refusal to provide access services to Licensee for services utilizing the Application. These services shall be offered on competitive terms.
  3. Licensee grants QBlue the right to modify the Application at any time as it sees fit, without prior notice to Licensee, including the addition of advertising or other revenue-generating content or functionality.
  4. At no time and for no reason shall Licensee be permitted to physically access the Premises or the Software/Application. All configuration and maintenance by Licensee shall be done via a Web-based Graphical User Interface ("GUI" or "backend").
  5. All images, collected data and code are the sole and exclusive property of QBlue.com unless supplied by the licensee or otherwise provided under this Agreement.
  6. This License shall be binding upon Licensee, its Authorized Representatives, its employees, agents, representatives and assigns.

3.             FEES AND CHARGES

  1. Licensee shall pay QBlue a monthly recurring fee for the use of the Application as set forth the exhibits hereto. If Licensee requests that QBlue provide services not specifically set forth herein and QBlue agrees to provide such services, Licensee agrees to pay QBlue's standard support charge for such service at the time such service is rendered or such charge as the parties may mutually agree upon prior to the delivery of the service.
  2. The monthly charges for all services used shall be payable in U.S. dollars by the date specified in the invoice. Payment shall be remitted to QBlue at the address set forth in the invoice and will not be deemed to have been made until the funds are actually received by QBlue. Any payment (including monthly charges due pursuant to this Paragraph or any other amount due hereunder) not made when due will be subject to a late charge or one and one-half percent (1.5%) per month. Licensee acknowledges and agrees that non-payment of fees due pursuant to this Agreement may result in the suspension or cancellation of services provided hereunder. Delinquent accounts may be canceled for non-payment. To re-instate a canceled account, a new setup fee will be incurred at current rates, subject to approval of credit.
  3. All fees are exclusive of any and all federal, state, and local sales, use, value-added, excise, duty and any other taxes assessed with respect to the services provided under this Agreement.
  4. Licensee agrees to pay all fees within 30 days of the due date on invoices sent by QBlue whether the invoice is sent by electronic mail, facsimile, or by US Postal mail.

4.             TERM

a.             The Term of this Agreement shall be 1 month(s) commencing on the Commencement Date and shall automatically renew for subsequent one-month Terms at the regular rate unless cancelled by either party for any reason in writing at least thirty days before the expiration of the Term.

5.             SERVICES AND SUPPORT

a.             Upon the execution of this Agreement by QBlue and payment of all setup fees and first month's recurring fees, QBlue shall provision the Application. Provisioning of Application is subject to availability not to exceed 30 days from the receipt of all pertinent and material information from licensee.

b.             Upon the execution of this Agreement by QBlue and payment of all setup fees and first month's recurring fees and upon receipt of the Application by QBlue, QBlue will provision the Application. QBlue will notify Licensee upon completion of such process. Any further configuration shall be the responsibility of Licensee unless otherwise stated in this Agreement.

c.             Upon the execution of this Agreement by QBlue and payment of all setup fees and first month's recurring fees, QBlue shall provide, at no cost to Licensee, one copy of the Application.

d.             QBlue shall provide, at no cost to Licensee, the following types of Licensee support:

1.             Basic maintenance of the Software.

2.             QBlue shall monitor only the Application's connectivity to the Internet. All other monitoring shall be the responsibility of Licensee.

3.             Repairs to or patches for the Software.

4.             Periodic backups of appropriate data.

e.             All support services other than those set forth in paragraph (f) above shall be performed by QBlue upon payment by Licensee of the support fee set forth herein and on terms and conditions agreed upon by the parties at the time such support services are provided.

f.                 In no case shall QBlue be responsible for hardware or software diagnostics, application support, server maintenance, data backup or any issue arising from hardware, software or networks installed in, running on or connected to the Application unless stated in this Agreement.

g.             Licensee shall be solely responsible for all telephone, computer, and services necessary to access and utilize the backend.

6.             EMERGENCIES AND INTERRUPTIONS

a.             QBlue shall have the right at any time to take any action it determines to be necessary to protect the safety of its employees, its offices and the Premises and shall be entitled to exercise this right without advance notice to Licensee.

b.             QBlue shall have the right to constrain or restrict Licensee's bandwidth for any reason without advance notice to Licensee, including, but not limited to, abnormal spikes in bandwidth demand, usage exceeding that for which Licensee was approved, service concerns or non-payment of charges due under this Agreement.

c.             During scheduled and emergency maintenance periods, the Application may be unable to transmit and receive data and Licensee may be unable to access the Web-based GUI. Licensee agrees to cooperate with QBlue during such scheduled and emergency maintenance periods.

d.             In case of an interruption or failure of any of the services furnished hereunder, including but not limited to power, back-up power, hvac, transmission and utility and Internet services, QBlue shall use commercially reasonable efforts to restore service as soon as possible. If QBlue elects, it may substitute a reasonably equivalent service.

7.             LIMITATION OF LIABILITY

a.             In addition to the specific limitations of liability set forth in other paragraphs herein, QBlue shall not in any case be liable for any of the following: (1) the content of the information it did not create passing over its network; (2) unauthorized access or damage to, alteration, theft, destruction or loss of, Licensee's records, information, files or data; (3) economic consequential damages (including lost profits or savings) or incidental damages, even if QBlue is informed of their possibility; (4) claims for damages caused by Licensee; (6) claims against Licensee by any other party; (7) any damage resulting from the use of the Application by Licensee; (8) any decisions, activities or judgements made by domain registrars, including but not limited to denial for transfer of domains, denials for new domains and terminations and holds placed on domains by the domain registrar; or (9) any act or omission of any other party furnishing services and/or products, or the installation and/or removal of any and all Application or supplies.

b.             NEITHER PARTY SHALL BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMANCE TO THE EXTENT CAUSED BY CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, LABOR DISPUTES, FIRES OR OTHER CASUALTIES, WEATHER OR NATURAL DISASTERS, DAMAGE TO FACILITIES, OR THE CONDUCT OF THIRD PARTIES ("FORCE MAJEURE").

c.             QBLUE SHALL NOT BE HELD LIABLE FOR ANY DAMAGES, INCLUDING THE LOSS OF PROSPECTIVE PROFITS OR ANTICIPATED SALES OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS, OR COMMITMENTS INCURRED IN CONNECTION WITH LICENSEE'S BUSINESS, WHICH RESULT FROM QUALIFIED SERVICE OUTAGES OR ANY OTHER FAILURE OF CONNECTIVITY, EXCEPT THAT LICENSEE'S SOLE REMEDY FOR QUALIFIED SERVICE OUTAGES SHALL BE THE REFUND PROVIDED PURSUANT TO SECTION 8(A) BELOW. QBLUE SHALL NOT BE LIABLE FOR ANY OTHER TYPE OF DOWNTIME OR CONNECTIVITY FAILURE OR SERVICE INTERRUPTION. IN NO CASE SHALL QBLUE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES WITH RESPECT TO ANY CLAIMS REGARDING THE SERVICES TO BE PROVIDED HEREUNDER, EVEN IF IT HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.

d.             LICENSEE AND ITS EMPLOYEES, AGENTS AND REPRESENTATIVES ASSUME ALL RISK OF USE OF THE APPLICATION AND RELEASES QBLUE AND ITS AGENTS, EMPLOYEES AND REPRESENTATIVES FROM ANY LIABILITY WHATSOEVER ARISING OUT OF ANY DAMAGE, LOSS OR INJURY TO PERSON AND/OR PROPERTY AS A RESULT OF THE USE OR NON-USE OF THE APPLICATION BY LICENSEE.

8.             DISCLAIMER OF WARRANTIES

a.             Limited Warranty of Connectivity: QBlue will refund the monthly recurring license fee, as defined in Exhibit B, section II(1) below, in the event of a "Qualified Service Outage." For purposes of this Agreement, a Qualified Service Outage shall be defined as a connectivity failure of more than 43 minutes total within a calendar month which failure results from the failure of only the QBlue-owned or leased Application. When calculating the total minutes of connectivity failure resulting only from the failure of the QBlue-owned or -leased and operated Application in one month for purposes of determining whether a Qualified Service Outage has occurred, no single minute shall count towards the 43-minute period unless it is part of a connectivity failure caused by a failure of the QBlue-owned and operated Application which connectivity failure lasted at least 10 consecutive minutes. Under no circumstances shall downtime resulting from the following constitute any or all of a Qualified Service Outage, nor shall QBlue be responsible for interruptions in service caused by the following: 1) non-QBlue operated Application including, but not limited to, Internet NAP failures or congestion (MAE East, MAE West, etc.); 2) non-QBlue backbone failures; 3) Licensee-owned or operated Application, hardware or software; 4) unusual traffic spikes; 5) "denial of service" attacks on Licensee's web sites; 6) acts of God; 7) planned maintenance; or 8) outside security breaches. Refunds pursuant to this section will be issued only upon request by Licensee and upon a determination that a qualified Service Outage, as defined by this section, has occurred. Refund requests must be made within thirty (30) days of the issuance of the invoice that represents the time period during which the Qualified Service Outage took place. Regardless of the number or duration of Qualified Service Outages occurring in one month, refunds are limited to one month's recurring licensee fee, as defined in Exhibit B, section II(1) below, and shall not include bandwidth fees, excess bandwidth fees, setup fees, support charges or other recurring charges.

b.              Except as set forth in paragraph 8(a) above, QBLUE DOES NOT WARRANT UNINTERRUPTED OPERATION OF ITS SERVICES OR THE APPLICATION AND DOES NOT WARRANT ANY OF THE SERVICES PROVIDED HEREUNDER AND SPECIFICALLY DISCLAIMS ANY OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSEE ACCEPTS THE APPLICATION "AS IS" AND THE SERVICE PROVIDED BY QBLUE "AS IS / AS AVAILABLE."

9.             INDEMNIFICATION

Licensee shall defend, hold harmless and indemnify QBlue from all claims, demands, actions, damages, judgments, expenses and costs (including attorneys' fees) arising out of Licensee's use of the Application.

10.     GENERAL PROVISIONS

  1. Relationship of the Parties. The parties agree that their relationship hereunder is in the nature of independent contractors. Neither party shall be deemed to be the agent, partner, joint venture or employee of the other, and neither shall have any authority to make any agreements or representations on the other's behalf. Each party shall be solely responsible for the payment of compensation, insurance and taxes of its own personnel, and such personnel are not entitled to the provisions of any employee benefits from the other party. Neither party shall have any authority to make any agreements or representations on the other's behalf without the other's written consent. Additionally, QBlue shall not be responsible for any costs and expenses arising from Licensee's performance of its duties and obligations pursuant to this Agreement.
  2. No Assignment. This Agreement may not be assigned by either party voluntarily or by operation of law, to any other person, entities, firm, or corporation, in whole or in part, without the prior written approval of the other party (which shall not be unreasonably withheld or delayed). Notwithstanding the foregoing, no prior written consent will be required for an assignment of this Agreement made in connection with a sale or other transfer to a third party of all or substantially all of the assets of either party's primary business unit that performs or receives services hereunder. This Agreement shall apply to, inure to the benefit of, and be binding upon, the parties' permitted successors and assigns.
  3. Notices. All notices and demands hereunder shall be in writing and shall be served by personal service or by mail at the address of the receiving party set forth above (or at such different address as may be designated by such party by written notice to the other party). All notices or demands by mail shall be by certified or registered mail, return receipt requested, or by nationally-recognized private express courier, and shall be deemed complete upon receipt.
  4. Governing Law. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of North Carolina without regard to principles of conflict of laws. The parties each agree that sole and exclusive jurisdiction and venue for any action or litigation arising from or relating to this Agreement shall be an appropriate court located in the state of the party originating the legal cause of action.
  5. Representations. Both parties represent and warrant to the other: (1) that it is a duly organized and existing legal entity under the laws of its domicile, if Licensee is a corporation or partnership; (2) that it is has full authority to enter into this Agreement; (3) that the execution and/or performance of this Agreement does not and will not violate or interfere with any other agreement by which such warranting party is bound; and (4) that the warranting party will not enter into any agreement whose execution/performance would violate or interfere with this Agreement.
  6. Headings. The titles and headings of the various sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever or to explain, modify, or place any construction on any of the provisions of this Agreement.
  7. All Amendments in Writing. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement, except where indicated otherwise.
  8. Severability; Waiver. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way, provided the parties realize the material benefits of this agreement. The parties agree that any such invalid provision shall be replaced with a valid provision, which most closely approximates the intent and economic effect of the invalid provision. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
  9. Entire Agreement; No Third Party Beneficiaries. The parties have read this Agreement and agree to be bound by its terms, and further agree that it, together with all Schedules, Exhibits, and attachments hereto (the terms of which are incorporated herein by this reference), constitutes the complete and entire agreement of the parties and supersedes all and merges all previous communications, oral or written, and all other communications between them relating to the subject matter hereof. No representations or statements of any kind made by either party that are not expressly stated herein shall be binding on such party. The parties agree that there are no third party beneficiaries to this Agreement.
  10. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but which together shall constitute one and the same document.
  11. Limitation of Actions. No action, regardless of form, arising out of or relating to this Agreement may be brought more than twenty-four (24) months from the date on which the cause of action accrues.

QBLUE LICENSING AGREEMENT

EXHIBITS FOR IDXblue

EXHIBIT A: THE APPLICATION

Licensee shall have the right to the sole use pursuant to this Agreement of the following Application:

1.  Access to the IDXblue application from a single web site.

EXHIBIT B: FEES

Licensee shall pay to QBlue in accordance with the provisions of this Agreement the following amounts:

I.INITIAL SET UP FEES

A. Provisioning of Application Fee: $0.00

B  Fees for additional customization of Application that is not available through backend: $125/hr. Licensee must pay all set up fees prior to the ordering of the Application for use.

II. MONTHLY RECURRING FEES

1)    License Fees per Month

TOTAL INITIAL MONTHLY LICENSE: $19.99. All Monthly License Fees shall be paid by the date specified in the invoice. REGULAR MONTHLY RATE: $19.99.

2) Bandwidth Fees

Bandwidth fees shall be based on Licensee's total monthly throughput. Licensee shall be entitled to an allotment per month of 10 GB of data transfer ("the monthly allotment"). For data transfer in excess of the monthly allotment, Licensee shall pay $ 6.00 for each GB over Licensee's monthly allotment. If Licensee does not utilize all of the monthly allotment, Licensee shall not receive a refund or prorated billing. Bandwidth Overage Charges are payable in arrears by the date specified in the invoice. QBlue shall have no obligation to provide any type of notice to Licensee when Licensee exceeds the monthly allotment.

III. SUPPORT FEES

Chargeable support activities shall be billed to Licensee at a rate of $125.00 per hour. This charge shall be billed in 1 hour increments with a minimum charge of 1 hour on all chargeable support activities.

IV. ADDITIONAL OPTIONS

Chargeable support activities shall be billed to Licensee at a rate of $125.00 per hour. This charge shall be billed in 1 hour increments with a minimum charge of 1 hour on all chargeable support activities.

IDXblue Prohibited Activities

You may not use IDXblue for activities that:

  1. violate any law, statute, ordinance or regulation

  2. relate to sales of (a) narcotics, steroids, certain controlled substances or other products that present a risk to consumer safety, (b) drug paraphernalia, (c) items that encourage, promote, facilitate or instruct others to engage in illegal activity, (d) items that promote hate, violence, racial intolerance, or the financial exploitation of a crime, (e) items that are considered obscene, (f) items that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the laws of any jurisdiction, (g) certain sexually oriented materials or services, or (h) ammunition, firearms, or certain firearm parts or accessories, or (i) ,certain weapons or knives regulated under applicable law

  3. relate to transactions that (a) show the personal information of third parties in violation of applicable law, (b) support pyramid or ponzi schemes, matrix programs, other “get rich quick” schemes or certain multi-level marketing programs, (c) are associated with purchases of real property, annuities or lottery contracts, lay-away systems, off-shore banking or transactions to finance or refinance debts funded by a credit card, (d) are for the sale of certain items before the seller has control or possession of the item, (e) are by payment processors to collect payments on behalf of merchants, (f), are associated with the following Money Service Business activities: the sale of traveler’s checks or money orders, currency exchanges or check cashing,or (g) provide certain credit repair or debt settlement services

  4. involve the sales of products or services identified by government agencies to have a high likelihood of being fraudulent
  5. violate applicable laws or industry regulations regarding the sale of (a) tobacco products, or (b) prescription drugs and devices
  6. involve gambling, gaming and/or any other activity with an entry fee and a prize, including, but not limited to casino games, sports betting, horse or greyhound racing, lottery tickets, other ventures that facilitate gambling, games of skill (whether or not it is legally defined as a lottery) and sweepstakes unless the operator has obtained prior approval from PayPal and the operator and customers are located exclusively in jurisdictions where such activities are permitted by law.
More Information

To learn more about the Acceptable Use Policy, please contact us at information@qblue.com.

Violations of the Acceptable Use Policy

We encourage you to report violations of this Acceptable Use Policy immediately. If you have a question about whether a type of transaction may violate the Acceptable Use Policy, you can email the compliance department at: information@qblue.com.