1. DEFINITIONS
1.1 Authorized Users: Collectively, the Brokerage, Vendor, and the Sales Licensee.
1.2 Brokerage BBO: Brokerage's use and display of portions of Licensed Data under the "broker back office" provisions of MLS Policies that (a) exposes Licensed Data and derivatives of it only to Brokerage and to Sales Licensee and their bona fide clients as established under state law; or (b) exposes Licensed Data and derivatives of it in marketplace statistical analyses and reports to the extent permitted by MLS Policies. "Derivatives" of Licensed Data include any subset of data or aggregation of values derived from the Licensed Data. The MLS Policies determine whether Brokerage BBO includes and permits Brokerage and Subscriber advertising or making representations about specific properties that are listed with other participants or that were sold by other participants.
1.3 Brokerage Valuation: Brokerage and Sales Licensee use and display of portions of the Licensed Data, possibly including other data, for an automated valuation model (AVM), broker price opinion (BPO), comparative (or comparable) market analysis (CMA), or similar product or service, provided it can fairly be characterized as a valuation of real property and only to the extent permitted by the "valuation" provisions of MLS Policies. Brokerage Valuation need not include any human judgment or analysis.
1.4 Confidential Information: Information or material proprietary to a party or designated "confidential" by the party and not generally known to the public that the other parties may obtain knowledge of or access to as a result of activities relating to this Agreement. Confidential Information includes, but is not limited to, the following types of information (whether in oral, visual, audio, written or other form): (a) all MLS Data, except to the extent to which this Agreement and the MLS Policies permit its disclosure; (b) IP addresses, access codes and passwords; (c) any information that SDMLS obtains from any third party that SDMLS treats as proprietary or designates as Confidential Information, whether or not owned or developed by SDMLS; (d) any information designated as confidential or private by any applicable state, federal, local or other law, regulation or directive; and (e) any claims and evidence presented by any party in any arbitration under this Agreement. Confidential Information does not include information that is or becomes publicly available by other than unauthorized disclosure by the receiving party, independently developed by the receiving party, received from a third party who has obtained and disclosed it without breaching any confidentiality agreement, or already possessed by the receiving party at the time of its disclosure.
1.5 Data Interface: The data transport or access mechanism that SDMLS provides to Authorized Users to access Licensed Data.
1.6 IDX: Brokerage and Sales Licensee use and display of portions of the Licensed Data under the "internet data exchange" provisions of the MLS Policies.
1.7 Licensed Data: The subset of MLS Data that SDMLS licenses for the Permitted Use. Where the subset of MLS Data is not specified in the MLS Policies, the Licensed Data consists of the same subset for each use by Brokerage that it does for other Participants that license the data for the same use.
1.8 MLS Data: Data (including text, photographs, media, and all other data in formats now known or developed in the future) entered into SDMLS's databases by SDMLS Participants and SDMLS, or on their behalf, relating to (a) real estate for sale or previously sold or listed for sale or (b) identified or identifiable Participants or Subscribers.
1.9 MLS Marks: The trademarks, service marks, word marks, logos and distinctive marks of all other kinds, if any, that SDMLS uses to identify its business.
1.10 MLS Policies: SDMLS's rules and regulations and any operating policies promulgated by SDMLS.
1.11 Participant: This term has the meaning given to it in the MLS Policies. For purposes of this Agreement, "Participant" does not apply to participants of multiple listing organizations other than SDMLS. Where applied in this Agreement to Participants other than Brokerage, "Participant" also includes that Participant's affiliated Subscribers.
1.12 Participant Data Return: Brokerage's and Sales Licensee's use of those portions of the MLS Data that relate only to data and listings submitted, contributed, or input by Brokerage and its Subscribers.
1.13 Permitted Use: Any data use by Brokerage and Sales Licensee specified on the signature page and in Exhibit A for: Brokerage Valuation, Brokerage BBO, IDX, Participant Data Return, or VOW.
1.14 Subscriber: Any non-principal broker or sales licensee affiliated with a Participant who is a "subscriber" as established in MLS Policies and permitted access to MLS.
1.15 Use Location: Any website URL, mobile application, or audio device (a means of audio delivery of IDX data authorized by MLS Policies) specified in the signature block at which Brokerage, Sales Licensee, or Vendor makes Licensed Data available. Except as expressly provided in this Agreement, "Use Location" does not include mass-media display of any portion of MLS Data.
1.16 URL: The full website address where content is displayed. (For example, "WWW.JANESMITH.ABCREALTY.COM/XYZTEAM".)
1.17 VOW: Brokerage and Sales Licensee use and display of portions of the Licensed Data under the "virtual office website" provisions of the MLS Policies.
1.17 Vendor: "Vendor" means a party identified as Vendor in this Agreement. A Vendor provides services to Brokerage or Sales Licensee in support of their Permitted Use under this Agreement.
2. LICENSES
2.1 License to Brokerage, Sales Licensee. SDMLS grants to Brokerage and Sales Licensee a license to make copies of, display, perform, and make derivative works of the Licensed Data only for the Permitted Use.
2.2 License to Vendor. SDMLS grants to Vendor a license to copy, display, perform, and make derivative works of the Licensed Data solely to provide services to Brokerage or Sales Licensee in support of their Permitted Use.
2.3 Trademark License. SDMLS grants to Brokerage and Sales Licensee a license to make copies of and display MLS Marks only to comply with requirements in the MLS Policies, if any.
2.4 License Restrictions. The licenses granted under Sections 2.1, 2.2, and 2.3: (a) are terminable, non-transferable, non-exclusive, non-sublicensable, revocable, and world-wide licenses; (b) permit uses only to the extent expressly permitted by and subject at all times to the terms and restrictions of this Agreement and the MLS Policies; and (c) end upon the termination of this Agreement. The creation of any derivative, adaptation, recalculation, or transformation of the Licensed Data, including but not limited to analytical outputs, statistical models, machine-learning models, or projections, for the purpose of distribution or display to persons who are not Subscribers or Participants is strictly prohibited unless expressly authorized by SDMLS in writing.
3. SDMLS OBLIGATIONS
3.1 Data Delivery. SDMLS must provide to Authorized Users, during the term of this Agreement: (a) access to the Licensed Data via the Data Interface under the same terms and conditions SDMLS offers to other Participants, (b) seven days' advance notice of changes to the Data Interface, and (c) seven days' advance notice of changes to the MLS Policies to the extent they are applicable or related to the Permitted Use. SDMLS may in its sole discretion, but is not required to, provide technical support for the Data Interface or the Licensed Data. SDMLS makes no representations or warranties concerning the Data Interface except those expressly stated in this Agreement.
3.2 Changes to MLS Policies. SDMLS may modify at any time, in its sole discretion, the Data Interface and MLS Policies.
3.3 Unavailability of Data. The Data Interface or access to the Licensed Data may occasionally be unavailable, whether because of technical failures or interruptions, intentional downtime for service or changes to the Data Interface, or otherwise. Any interruption of access to the Data Interface or Licensed Data does not constitute a breach or default by SDMLS under this Agreement.
3.4 Third Party Contractors. SDMLS may use a third-party contractor, determined in SDMLS's sole discretion, to facilitate the Data Interface and any other responsibilities or rights of SDMLS under this Agreement. Such third-party contractors may have additional terms of use that Authorized Users must accept before using the Data Interface.
4. AUTHORIZED USERS' OBLIGATIONS
4.1 Compliance with MLS Policies. Each Authorized User must comply with the MLS Policies at all times. In the event of any perceived conflict between the MLS Policies and this Agreement, the MLS Policies govern.
4.2 Compliance with Law. Each Authorized User must comply with all laws applicable during the term of this Agreement in performance of their obligations under this Agreement, including the Fair Housing Act (42 U.S.C. §3601 et. seq.), the Americans with Disabilities Act (42 U.S.C. §12101 et. seq.), and data protection laws relating to personally identifiable information ("PII") and data privacy.
4.3 Use Locations. Brokerage and Sales Licensee may display or deliver the Licensed Data only to the extent permitted by the MLS Policies and only at the Use Location(s) expressly indicated in the signature block. Vendors providing services on behalf of a Brokerage must do so only in support of the Brokerage's Permitted Use.
4.4 Other Display Requirements. Each Authorized User must ensure that all permitted displays are compliant with the standards of conduct in the MLS Policies and the National Association of REALTORS® Code of Ethics (if it applies to Brokerage). Each Authorized User must prevent any use the Licensed Data in any way that would mislead consumers, including ways that would misrepresent who is the listing Participant or Subscriber.
4.5 No Access to Third Parties. No Authorized User may make the Licensed Data, the Confidential Information, or access to the Data Interface available to any third party, including affiliates, franchisors, and subsidiaries, unless expressly authorized to do so under this Agreement.
4.6 Licensed Data Ownership. Brokerage and Sales Licensee acknowledge that ownership and use rights relating to copyrights in the Licensed Data are defined in the MLS Policies or in the terms of separate contracts between SDMLS and Brokerage, or Sales Licensee, or both. Vendor acknowledges that (as among the parties to this Agreement) Brokerage and SDMLS possess all right, title, and interest in all copyrights in the Licensed Data. No Authorized User may challenge or take any action inconsistent with SDMLS's ownership of or rights in the Licensed Data.
4.7 Warranties and Other Restrictions. Each Authorized User warrants that (a) its use of the Licensed Data (but not the Licensed Data itself) will not constitute infringement of any intellectual property rights, including copyright, patent, trademark, and trade secret rights, of any third party; (b) other than formatting data to conform to RESO standards or in compliance with MLS Policies, it will not alter any text data fields, alter photos, or remove, conceal, or alter any copyright management information or other proprietary notices contained in the Licensed Data; (c) it will not extract, modify, reverse engineer, or decompile the Licensed Data, except to the extent permitted by this Agreement and the MLS Policies; (d) it will not display, copy, download, sell, resell, use, distribute, or otherwise exploit the Licensed Data, except to the extent permitted by this Agreement and the MLS Policies; and (e) it will not use Licensed Data for any phishing, trolling, or similar activities, or harvest or collect email addresses or other contact information from the Licensed Data to sell, disclose, or otherwise distribute to any third party.
4.8 Data Access Fees. Authorized Users must (a) pay the applicable fees, if any, that SDMLS (or its shareholder associations/MLSs) customarily charges for data access and (b) acknowledge receipt of SDMLS's current schedule of such fees, if any. SDMLS may in its sole discretion establish or modify its schedule of fees upon 30 days' written notice to the other parties. Authorized Users are liable for all costs, including reasonable attorney fees, associated with collecting amounts due under this Agreement.
5. BROKERAGE AND SALES LICENSEE OBLIGATIONS
5.1 Release of Vendor. If SDMLS notifies Brokerage or Sales Licensee of a breach of the MLS Policies or this Agreement and Brokerage or Sales Licensee does not immediately cure the breach, Brokerage and Sales Licensee must hold Vendor harmless from any liability arising from Vendor's cooperation with SDMLS under Section 6.1.
5.2 Sales Licensee Access. Sales Licensee's access to Licensed Data under this Agreement is subject to Brokerage's approval and authorization as described in the signature page.
5.3 Brokerage engagement with Vendor. Under this Agreement, Brokerage and Sales Licensee are permitted to work only with the Vendor named in this Agreement. If Brokerage or Sales Licensee chooses to engage a different vendor or additional vendors, Brokerage must enter into another contract with SDMLS and each such vendor.
5.4 Brokerage as Surety. Brokerage is surety for Sales Licensee's and Vendor's obligations under this Agreement.
6. VENDOR OBLIGATIONS
6.1 Remedy for Breach. Vendor must immediately correct any breach of this Agreement or violation of the MLS Policies within its control, whether committed by Brokerage, Sales Licensee, or Vendor, upon notice from SDMLS.
6.2 Customer Validation. Vendors providing services solely to a Brokerage may not use Licensed Data to provide services to any other Participant, Subscriber, or customer unless SDMLS expressly authorizes such additional use in writing.
6.3 Data Security and Privacy. Vendor must use industry best practices for firewalls and other network protocols to increase the security of its systems and must employ reasonable physical, technical, and administrative security measures to protect the Confidential Information and prevent unauthorized third-parties from accessing and using the Confidential Information. Vendor must monitor and test its security protocols from time to time. In the event of a security breach of Vendor's systems or use of the Confidential Information by unauthorized third parties ("Security Event"), Vendor must (i) immediately notify SDMLS of the Security Event by email or telephone call with receipt confirmed by SDMLS; (ii) cooperate with SDMLS at Vendor's expense to stop the Security Event and prevent its reoccurrence; and (iii) indemnify, hold harmless and defend SDMLS against any loss, damage, claims, liabilities, or expenses, including reasonable attorneys' fees, arising out of or relating to a third party claim or suit arising from the Security Event or any breach by Vendor of its obligations under this section.
6.4 Reporting. Vendor must deliver to SDMLS periodic reports (at intervals SDMLS indicates by notice to Vendor) or make available to SDMLS a real-time interface permitting SDMLS to determine which Participants and Subscribers are using Vendor's services that incorporate any of the Licensed Data or derivatives of it.
6.5 Vendor as Surety. Vendor is surety for Brokerage's and Sales Licensee's obligations to pay fees under Section 4.8.
6.6 Brokerage as Vendor. If Brokerage performs its own technical work and there is no Vendor party to this Agreement, then Brokerage is responsible for all Vendor obligations under this Agreement.
7. COMPLIANCE REVIEWS & AUDITS
7.1 Compliance Reviews. SDMLS may in its reasonable discretion conduct periodic compliance reviews of Brokerage's, Sales Licensee's, and Vendor's use of the Licensed Data under this Agreement. Any Authorized User that receives a compliance inquiry from SDMLS must respond within 72 hours.
7.2 Audits. SDMLS may, or at its option may engage an independent third party to, review, inspect, and test the books, records, equipment, and facilities of Authorized Users to the extent reasonably necessary to ascertain Brokerage's, Sales Licensee's, and Vendor's compliance with this Agreement ("Audit"). SDMLS may conduct an Audit upon any notice reasonable under the circumstances. SDMLS may require an Audit of the Permitted Use before the Authorized Users release it for access by any of their customers. Audit activities may include, without limitation, obtaining full access to Brokerage's, Sales Licensee's, and Vendor's Use Locations and systems to ensure that Licensed Data is displayed in accordance with the MLS Policies; using all features available to end-users of Brokerage's, Sales Licensee's, and Vendor's systems that employ the Licensed Data; and posing as end users to register and test services Authorized Users make available to consumers using the Licensed Data. SDMLS must pay the costs it incurs, and the out-of-pocket costs Authorized Users incur, as part of any Audit; provided, however, Brokerage or Sales Licensee are liable for all costs of any Audit that discloses that any Authorized User has breached this Agreement.
8. CONFIDENTIAL INFORMATION
8.1 Standard of Care. The parties must protect the Confidential Information with the same degree of care they take to protect their own sensitive business information of like kind, but in no event less than reasonable care. A party may disclose Confidential Information to the extent required by law or a court order; provided, however, that the disclosing party makes commercially reasonable efforts to notify the others in writing in advance of disclosure.
8.2 Return of Confidential Information. Within five days after termination of this Agreement, the receiving party must return to the disclosing party all Confidential Information of the disclosing party. The receiving party must also erase or destroy Confidential Information stored in digital, cloud, or other computer storage format. An officer of the receiving party must certify in writing that all materials have been returned or destroyed.
9. TERM AND TERMINATION
9.1 Term. The term of this Agreement begins on the date that SDMLS signs it and continues until terminated.
9.2 Termination. This Agreement terminates upon the occurrence of any of the following events: (a) immediately upon termination of Brokerage's privileges as a Participant in SDMLS; (b) 30 days after any party's notice to the others of its intent to terminate; (c) 10 days after any party's notice to another that the other has breached this Agreement, provided the breach remains uncured; (d) immediately upon any party's notice to another that the other has breached this Agreement, provided the breach is not susceptible to cure, is one of a pattern of repeated breaches, or has caused the party giving notice irreparable harm; (e) immediately upon Brokerage's notice to Vendor that Vendor is no longer designated to provide services to Brokerage; (f) with regard to any Sales Licensee, immediately upon any event that results in the Sales Licensee no longer being affiliated with Brokerage; and (g) as provided in Section 13.2.
9.3 Reinstatement. If Brokerage's privileges as a Participant (or Sales Licensee's privileges of affiliation with Brokerage or as a Subscriber) are suspended while this Agreement is in effect, and SDMLS subsequently reinstates those privileges, this Agreement will automatically be reinstated if SDMLS resumes its obligations under Section 3.1.
9.4 Suspension. If any Authorized User breaches this Agreement and entitles SDMLS to terminate under Section 9.2, SDMLS may in its sole discretion suspend its performance instead of terminating this Agreement. Additionally, SDMLS may suspend its performance under this Agreement if any Authorized User causes unreasonable demands on SDMLS servers or Data Interface, as determined in SDMLS's sole discretion. SDMLS may make this election by notice to the other parties within three days after the initiation of the suspension. Each Authorized User's obligations under this Agreement continue during any period of suspension.
9.5 Post-termination Obligations. In the event of any termination of this Agreement, each Authorized User must delete the Licensed Data and any derivative works based on it (except the portions of it relating to Brokerage's own listings). In the event of any suspension of this Agreement, no Authorized User may make any further use of the Licensed Data or any derivative works based on it (except the portions of it relating to Brokerage's own listings) until and unless Brokerage's or Sales Licensee's rights under this Agreement are restored.
10. DISCLAIMERS AND LIMITS ON LIABILITY
10.1 DISCLAIMERS. EACH AUTHORIZED USER ACKNOWLEDGES THAT SDMLS PROVIDES THE LICENSED DATA ON AN "AS-IS," "AS-AVAILABLE" BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTY OF TITLE, NON-INFRINGEMENT, AND ACCURACY.
10.2 LIMITATION OF LIABILITY. IN NO EVENT WILL SDMLS BE LIABLE TO ANY AUTHORIZED USER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES (EVEN IF SDMLS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES); OR LOST PROFITS ARISING FROM THIS AGREEMENT OR ANY BREACH OF IT. IN NO EVENT WILL SDMLS BE LIABLE TO ANY AUTHORIZED USER FOR ANY AMOUNT IN EXCESS OF THE GREATER OF (A) THE FEES THAT AUTHORIZED USER HAS PAID SDMLS, IF ANY, IN THE YEAR IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO ANY CLAIM FOR DAMAGES; OR (B) $100. SDMLS WILL NOT BE LIABLE TO ANY AUTHORIZED USER FOR ANY CLAIM ARISING FROM INACCURACIES IN THE LICENSED DATA, ANY FAILURE TO UPDATE THE LICENSED DATA PROMPTLY, OR THE LICENSED DATA'S INADEQUACY FOR ANY PARTICULAR USE, WHETHER PERSONAL OR COMMERCIAL. SDMLS MAKES NO WARRANTY, INCLUDING THOSE REGARDING TITLE, AVAILABILITY, OR NON-INFRINGEMENT, REGARDING TRADEMARKS LICENSED UNDER THIS AGREEMENT, IF ANY.
11. INDEMNIFICATION
11.1 General indemnification. Subject to Section 10.2, if a party breaches any provision of this Agreement, that party (the Indemnifying Party) must indemnify the other parties, their subsidiaries and affiliated companies, and all their respective employees, directors, agents, and authorized successors and assigns (the Indemnified Parties), against any losses, damages, and costs (including reasonable attorneys' fees) arising from each claim of any third party resulting from the breach.
11.2 Vendor indemnification. Vendor indemnifies SDMLS, Brokerage, Sales Licensee, and customers of SDMLS, Brokerage, or Sales Licensee, to whom Vendor provides a product or service using Licensed Data against any losses, damages, and costs (including reasonable attorneys' fees) arising from any third-party claim that Vendor's product or service infringes the third-party's intellectual property rights, including copyright, patent, trademark, and trade secret rights (but excluding any claims that are based on the Licensed Data itself causing the infringement).
11.3 Indemnification process. The Indemnified Parties must (a) promptly notify the Indemnifying Party of any claim and give the Indemnifying Party the opportunity to defend or negotiate a settlement of any such claim at the Indemnifying Party's expense, and (b) cooperate fully with the Indemnifying Party, at the Indemnifying Party's expense, in defending or settling any claim. The Indemnified Parties are entitled to engage their own local counsel at the Indemnifying Party's expense.
12. REMEDIES AND DISPUTES
12.1 Applicable law and venue. This Agreement is governed by and interpreted according to the laws of the State of California, without regard to its conflicts and choice of law provisions. Any proceeding arising under this Agreement, including motions for injunctive relief, arbitration, or litigation, shall take place in San Diego County, California.
12.2 Injunctive relief. Because of the unique nature of the Licensed Data and Confidential Information, each Authorized User acknowledges that SDMLS would suffer irreparable harm if any of them breaches or threatens to breach its obligations under this Agreement, and that monetary damages would be inadequate to compensate SDMLS for a breach. SDMLS is therefore entitled, in addition to all other forms of relief, to seek injunctive relief to restrain any threatened, continuing, or further breach by any Authorized User, without showing or proving any actual damages sustained by SDMLS and without posting any bond.
12.3 Liquidated damages. Each Authorized User acknowledges that damages suffered by SDMLS from an unauthorized third party's access to the Licensed Data as a result of disclosure of any passwords or an unauthorized disclosure of the Licensed Data to a third party would be speculative and difficult to quantify. Accordingly, if any Authorized User or its employees, agents, or contractors, disclose any password to access the Licensed Data or disclose the Licensed Data itself to any unauthorized third party, regardless of whether such disclosure is intentional or negligent, the Authorized Users are liable to SDMLS for liquidated damages in the amount of $30,000 for each such disclosure and for termination of this Agreement. Liability of Authorized Users under this section is joint and several. The provisions of this section are a material inducement to SDMLS to enter into this Agreement.
12.4 Dispute resolution. The provisions of this section do not prevent SDMLS from exercising any of its rights under Section 12.2. Non-binding mediation in good faith is a condition precedent to asserting any claim, whether in arbitration or the courts, under this Agreement. If SDMLS claims that any Authorized User has violated the MLS Policies, SDMLS may, at its option, resolve such a claim according to the disciplinary procedures set out in the MLS Policies, provided SDMLS does not also base an arbitration claim or lawsuit that any Authorized User has breached this Agreement on the same facts. Except as set forth in the preceding sentence, the parties must submit any controversy or claim arising out of or relating to this Agreement, or the breach thereof, to arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, including its Optional Rules for Emergency Measures of Protection. Any party may enter judgment on the award rendered by the arbitrator(s) in any court having jurisdiction.
12.5 Attorney's fees. If any party prevails in an action or proceeding to enforce or interpret this Agreement or any provision of it, it is entitled to reasonable attorney's fees and costs for the legal action.
13. GENERAL PROVISIONS
13.1 Notice. All notices given under this Agreement must be mailed or electronically mailed to the parties at their respective addresses provided in the signature block or another address of which any party may advise the others in writing during the term of this Agreement; and are effective the earlier of the date of receipt or three days after mailing or other transmission. Each Authorized User must notify SDMLS within five business days of any change to the information relating to it in this Agreement, including change of its corporate name or address.
13.2 Assignment. No Authorized User may assign or otherwise transfer any of its rights or obligations under this Agreement to any other party. Any purported assignment or delegation by any Authorized User in contravention of this section is null and void and immediately causes this Agreement to terminate.
13.3 Relationship of the Parties. The parties to this Agreement are independent contractors. No party may be deemed to be the agent, partner, joint venturer, franchisor or franchisee, or employee of SDMLS or have any authority to make any agreements or representations on the behalf of SDMLS. Each party is solely responsible for the payment of compensation, insurance, and taxes of its own employees.
13.4 Survival of Obligations. The following Sections will survive termination, expiration, or suspension of this Agreement in perpetuity: Section 1 Definitions, Section 4.6 License Data Ownership, 4.7 Warranties and Other Restrictions, 4.8 Data Access Fees, Section 5.1 Release of Vendor, Section 5.4 Brokerage as Surety, 6.2 Customer Validation, Section 6.4 Vendor as Surety, Section 8 Confidential Information, Section 9.5 Post-termination Obligations, Section 10 Disclaimers and Limits on Liability, Section 11 Indemnification, Section 12 Remedies and Disputes, and Section 13 General Provisions.
13.5 No Waiver. No waiver or modification of this Agreement or any of its terms is valid or enforceable unless reduced to writing and signed by the party who is alleged to have waived its rights or to have agreed to a modification.
13.6 Severability. Each provision of this Agreement is severable from the whole, and if one provision is declared invalid, the other provisions remain in full force and effect. If any provision of this Agreement is held invalid or unenforceable by a court having jurisdiction over the parties, this Agreement will be reformed so that the invalid or unenforceable provision is replaced, if possible, with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
13.7 Amendments. SDMLS may amend this Agreement by providing 30 days' advance notice of the amendment to Brokerage and Vendor. Brokerage's, Sales Licensee's, or Vendor's use of the Data Interface or the Licensed Data after the expiration of the 30-day notice period serves as the assent of all Authorized Users to the Agreement as amended. Each Authorized User makes each other Authorized User its agent for purposes of assenting to amendments under this section. Sales Licensee expressly consents to SDMLS making communications and notices under this Agreement to Brokerage only. Brokerage must provide its Sales Licensee notice of any amendments provided to Brokerage under this section.
13.8 Entire Agreement. Subject to MLS Policies, this Agreement contains the full and complete understanding of the parties regarding the subject matter of this Agreement and supersedes all prior representations and understandings, whether oral or written, relating to the same. In the event of any dispute regarding the interpretation of the terms of this Agreement, it will not be construed for or against any party on the grounds that the Agreement was prepared by any one of the parties.
13.8.1 Incorporation of Data Use Policy. The SDMLS Data Use Policy, as may be updated from time to time pursuant to Section 13.7 of this Agreement, is incorporated into and made part of this Agreement as though fully set forth herein. By signing this Agreement, the Brokerage, Vendor, and any Sales Licensee acknowledge and agree to comply with the Data Use Policy without requiring a separate signature.
13.9 Execution. This Agreement may be executed in two or more counterparts, each of which constitutes an original Agreement, but all of which together constitute one and the same executed agreement. This Agreement may be electronically signed, and any electronic signatures appearing on this Agreement are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.