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Welcome to
Listing Suite and the Listing Suite Subscribing Member Agreement. Listing
Suite offers to subscribers real estate based software services as more fully
described herein and at www.listingsuite.com
(the "Site"), as such descriptions may be changed by Listing Suite
from time to time (the "Listing Suite Services"). In order
for you, on behalf of your company (individually or collectively,
"You" or "Your"), to obtain or continue using those
certain Listing Suite services, You must agree to and accept the terms and
conditions of this agreement (the "Agreement"). The
Agreement sets out the terms and conditions under which you may utilize the
Listing Suite Services. Please read this Agreement carefully. It is important
that You understand that upon Your acceptance of this Agreement, by
continuing to use any of the Listing Suite Services and/or by clicking on the
"I AGREE" button at the end of this Agreement, it becomes a legally
binding contract.
By
continuing to use any of the Listing Suite Services and/or by clicking on the
"I AGREE" button You represent that You have reviewed and
understand the Agreement and agree to be legally bound by all its terms and
conditions (including the terms and conditions stated on web pages
incorporated by reference herein). If You do not agree or are not willing to
be bound by the terms and conditions of this Agreement, please do not click
on the "I AGREE" button and do not seek to obtain or continue using
the Listing Suite Services.
NOW THEREFORE,
You agree as follows:
1.
Your Capacity and Related Matters. By accepting the terms
and conditions of this Agreement, You represent and warrant that (a) You are
18 years of age or older, (b) all information You have provided to Listing Suite is true and correct in all
respects, and (c) You will update Listing Suite by e-mail with any changes to
information You have previously supplied. You further represent and warrant
that You have the legal authority to accept the
terms and conditions of this Agreement on behalf of Your company and that
such acceptance will be binding on Your company. Listing Suite reserves its
right, in its sole discretion, to refuse to provide You
with any Listing Suite Service and terminate this Agreement, with or without
notice. Words and phrases with initial letters capitalized and not otherwise
defined herein shall have the meaning set forth in Section 13.13.
2.
Undertakings of Listing Suite.
2.1 Listing Suite Grant. Listing Suite
hereby grants You a non-exclusive, royalty-free, fully-paid up right, during
the Term, to use the Listing Suite Services, subject to the restrictions
herein and any other restrictions communicated by Listing Suite to You, only as
necessary to perform hereunder and for no other purpose.
2.2 Listing Suite Services. Listing Suite
shall provide the Listing Suite Services to You in all material respects in
accordance with the terms and conditions of this Agreement and consistent
with all applicable laws and regulations.
2.3 Limitations. Your use of the
Listing Suite Services shall be restricted to a single member. Any attempt by
You to use the Listing Suite Services for more than
user or on behalf of another entity or individual may result in an obligation
to pay to Listing Suite additional fees and charges and/or Listing Suite's
revocation of Your right to use the Listing Suite Services and termination of
this Agreement.
2.4 Customer Service. During the Term,
if You are current in payment of all fees owing to
Listing Suite and are otherwise not in default under this Agreement, Listing
Suite shall provide customer service to You at the URL. http://www.listingsuite.com.
3.
Undertakings of You.
3.1 ID and Password. In connection with
Your rights described in Section 2.1, Listing Suite
will issue to You, or permit You to continue using the ID and password given
to You by Listing Suite to enable You and/or Your employees and agents to
access Your account and use the Listing Suite Services. You will restrict
access to such ID, password, and account to Your employees and agents as may
be reasonably necessary consistent with the purposes of this Agreement and
will ensure that each such employee and agent accessing and using the account
is aware of and otherwise complies with all applicable provisions of this
Agreement regarding such use and access. You are solely responsible for
maintaining adequate security and control of any and all IDs, passwords, or
any other codes that are issued to You by Listing
Suite for purposes of giving You access to the Listing Suite Services. Listing Suite shall be entitled to rely on
information it receives from You and may assume that
all such information was transmitted by or on behalf of You. You shall comply
with all Listing Suite recommendations and notices regarding the security of
your ID and password.
3.2 Compliance with Law and Listing Suite Guidelines. In connection with the exercise of Your rights
and obligations under this Agreement (including, without limitation, any
related to individual privacy), You will comply, at Your own expense, with
all laws, policies, guidelines, regulations, ordinances, rules applicable to
You, Your business or the Transmissions and/or orders of any governmental
authority or regulatory body having jurisdiction over the subject matter
hereof, including, without limitation, the rules promulgated by the Real
Estate Associations, the electronic communication rules of the CAN-SPAM Act,
and the privacy requirements of the Gramm Leach Bliley Act and regulations
thereof. In addition, You shall comply with all the current policies,
procedures and guidelines of Listing Suite governing the Listing Suite
Services, including, without limitation, Listing Suite's Acceptable Use
Guidelines and Privacy Policy, both incorporated herein by reference. The
Listing Suite Acceptable Use Guidelines and Privacy Policy are available at http://www Listing
Suite.com/company/use.php and http://www.listingsuite.com/company/privacy.php,
respectively. Listing Suite reserves the right to amend, modify or change
such policies, procedures, and guidelines at any time. You shall not use the Listing
Suite Services in any manner, or in furtherance of any activity that may
cause Listing Suite to be subject to investigation, prosecution, or legal
action.
3.3 Value-Added Solutions and Services.
In the event that You enroll in and/or utilize any
of Listing Suite's value-added services, You hereby acknowledge and agree to
the terms and conditions contained in the appendix applicable to such
service.
4.
Data Privacy and Security.
4.1 Member Obligations. You are solely
responsible for the security of data residing on server(s) owned or operated
by You, or a third party designated by You (e.g., a web hosting company,
processor, or other service provider). You shall comply with all applicable
laws and regulations governing the security, collection, retention and use by
You of financial information, including credit cards, and all other
personally identifiable customer information. Nothing in this Agreement shall
prevent or restrict You from using any information
You collect or receive independent of Your performance under this Agreement.
4.2 Listing Suite Obligations. Listing Suite will collect, retain, and
disclose information and data collected from You and your clients (including
data associated with the Listing Suite Services) in accordance with Listing
Suite's Privacy Policy. You hereby consent, as a condition of Your enrollment in and use of the Listing Suite Services,
to the collection, use, processing and transfer of personal data as described
in this paragraph and Listing Suite's Privacy Policy. You understand that
Listing Suite will collect and hold personal or non-public information about
You and Your clients, including but not limited to: Your name, address,
telephone number, e-mail address for the purpose of considering eligibility
for the Listing Suite Services as well as Your clients' names, mailing &
shipping addresses, email addresses, phone number, dollar amount of
purchases, types of purchases and descriptions of purchases for the purpose
of providing You with the Listing Suite Services ("Data").
You also understand and agree that Listing Suite may obtain various consumer
reports regarding You from third parties, run a
credit check, report unpaid collection issues to credit bureaus, and/or
obtain other personal or credit information about You. You further understand
and agree that Listing Suite, its subsidiaries, suppliers and/or their
agents/contractors may transfer Data among themselves as necessary for the
purpose of the provision and management of the Listing Suite Services, and
that Listing Suite may further transfer Data to third parties assisting
Listing Suite in evaluating Your eligibility for, provision of,
administration and management of the Listing Suite Services, as well as under
circumstances described in Listing Suite's Privacy Policy, as may be modified
from time to time by Listing Suite.
4.3 Data Security. While Listing Suite
uses commercially reasonable efforts to safeguard Data and Transmission data
transmitted while using the Service, Listing Suite does not warrant that Data
and Transmission data will be transported without unauthorized interception
or modification or that your account and Your Data will not be accessed or
compromised by unauthorized third parties (e.g., hackers). You agree that you
will comply with all Listing Suite security protocols and security advisories
in effect during the term of this Agreement. You are solely responsible for
verifying the accuracy and completeness of all Transmissions submitted and
processed by Listing Suite associated with Your
account. You acknowledge that Listing Suite shall not be liable for any
improperly processed or unauthorized Transmissions or illegal or fraudulent
access to Your account or Your Data. Listing Suite's
liability for improperly processed or unauthorized Transmissions solely
attributable to the negligence of Listing Suite is limited pursuant to
Section 12. You will (i) comply with all then current legal obligations and
guidelines, including without limitation those issued by Real Estate
Associations associated with the collection, security and dissemination of
Data.
4.4 Data Retention. You are solely
responsible for compiling and retaining permanent records of all
Transmissions and Data for Your reference. Except as otherwise provided
herein, at no time shall Listing Suite have an obligation to store, retain,
report or otherwise provide any copies of or access to any records of
Transmissions or Data collected or processed by Listing Suite.
5.
Fees. You shall pay to Listing Suite the fees set forth in the
Fee Schedule located in the Member Interface, which is hereby incorporated
into the terms of this Agreement by reference.
6.
Payment Terms.
6.1 Listing Suite Bills You.
6.1.1 Billing Terms. Billing shall begin on
the Effective Date. You will remit any and all amounts payable to Listing
Suite on an annual basis, and the first payment shall be due on the first day
of the year immediately following the Effective Date. Unless otherwise
specified herein, fees and payments for any subsequent time periods shall be
due on the first day of the year. You hereby authorize Listing Suite to
initiate transmission entries to Your depository account or, if Listing Suite
is unable to collect owing amounts from Your depository account, to charge
Your credit card, the numbers of which are to be provided to Listing Suite by
You (directly or through a Member Service Provider) on or before the
Effective Date, for any and all amounts owing to Listing Suite under this
Agreement. Entries initiated to or from Your depository account will be in
accordance with the rules of the National Automated Clearing House
Association and/or any other regulatory body or agency having jurisdiction
over the subject matter hereof. This authorization is to remain in full force
and effect until Listing Suite has received written notification from You of
Your termination in such time and manner as to afford Listing Suite and Your
depository institution a reasonable opportunity to act on it. If Your depository account number or credit card number
changes, You shall promptly provide Listing Suite with written notice of the
change and the new number(s). If You fail to provide
Listing Suite with accurate current depository account or credit card
numbers, Listing Suite may discontinue its performance of the Listing Suite
Services for You, without liability, until such information is provided to
Listing Suite or terminate this Agreement. You acknowledge that any change in
account information may not be effective until the billing year following the
second year in which Listing Suite receives such notice.
6.1.2 Non-Sufficient Fund Fee, Late Payment Fee,
and Service Reactivation Fee. You shall pay to Listing Suite a
"Non-Sufficient Fund Fee," in the amount set forth in the Fee
Schedule, each time Listing Suite attempts to debit Your
depository account for any amounts owing under this Agreement and receives a
non-sufficient fund message from Your bank. Any amounts due to Listing Suite
under this Agreement and not paid when due will be subject to a finance
charge equal to one and one-half percent (1.5%) or the highest rate allowable
by law, determined and compounded daily from the date due until the date
paid. Payment of such finance charges will not excuse or cure any breach or
default for late payment. Listing Suite may accept any check or payment from You without prejudice to its rights to recover the balance
due or to pursue any other right or remedy. No endorsement or statement on
any check or payment or any correspondence accompanying any check or payment
or elsewhere will be construed as an accord or satisfaction. If You do not pay owing amounts on or before the first
business day following the tenth (10th) day of the year, You will be subject
to a late payment fee, in the amount set forth in the Fee Schedule. If You
have not paid all owing amounts on or before the last business day of the
month in which they were due, Listing Suite may, in its sole discretion,
discontinue its performance of the Listing Suite Services for You and/or
immediately terminate this Agreement. Unless Listing Suite has already
terminated this Agreement, if You subsequently pay in full all owing fees and
charges, including a "Service Reactivation Fee" in the amount set
forth in the Fee Schedule, within six (6) months of the date Listing Suite
deactivated your account, Listing Suite agrees to restore Your access to the
Listing Suite Services upon Listing Suite's receipt of such payment. You
agree to pay all costs and expenses of whatever nature, including attorneys'
fees, incurred by or on behalf of Listing Suite in connection with the
collection of any unpaid charges and fees. As security for Member's payment
and indemnity obligations under this Agreement, Member hereby warrants to
Listing Suite a security interest on all of Member's inventory, accounts,
contract rights, receivables, goods and assets of any and every kind,
including but not limited to all items of intangible property, wherever
located, now and hereafter.
7.
Term. This Agreement shall commence on the date You accept this Agreement and remain in full force and
effect until terminated pursuant to Section 8. The date this Agreement is
accepted by You by clicking the "I AGREE"
button below is referred to as the "Effective Date."
8.
Termination and Suspension.
8.1 Termination by Member. You may
immediately terminate this Agreement, at any time and for any reason, with
our without cause, upon written notice to Listing Suite.
8.2 Termination by Listing Suite.
Listing Suite may immediately terminate this Agreement and/or Your access to
the Listing Suite Services, at any time and for any reason, with or without
cause, including, without limitation, violation of the Acceptable Use
Guidelines. Termination shall be accompanied by a written or electronic
notice to You.
9.
Intellectual Property and Confidentiality.
9.1 Listing Suite. The parties agree
that Listing Suite owns and retains all right, title and interest in and to
the Listing Suite Marks, Listing Suite Services and any related technology
utilized under or in connection with this Agreement, including but not
limited to all intellectual property rights associated therewith. No title to
or ownership of any of the foregoing is granted or otherwise transferred to You or any other entity or person under this Agreement.
You will not reverse engineer, disassemble, decompile or otherwise attempt to
discover the source code or trade secrets for any of the Listing Suite
Services or related technology.
9.2 Listing Suite Marks License.
Subject to the terms and conditions contained herein, Listing Suite hereby
grants to You the right to use, reproduce, publish, perform and display the
Listing Suite Marks (as defined on Exhibit A attached hereto): (a) on Your
web site in connection with Your offering of services to Your clients; and
(b) in promotional and marketing materials and electronic and printed
advertising, publicity, press releases, newsletters and mailings about or
related to any of the Listing Suite Services.
9.3 Your Marks License. Subject to the
terms and conditions contained herein, You hereby grant to Listing Suite and
its affiliates the right to use, reproduce, publish, perform and display Your
Marks (as defined on Exhibit A attached hereto): (a) in connection with the
development, use, reproduction, modification, adaptation, publication,
display and performance of the Listing Suite Services offered and/or
accessible through Your web site; and (b) in promotional and marketing
materials and electronic and printed advertising, publicity, press releases,
newsletters and mailings about or related to any of the Listing Suite
Services.
9.4 Use of Trademarks. Each party shall
strictly comply with all standards with respect to the other party's
Trademarks contained herein or which may be furnished by such party from time
to time. Further, neither party shall create a combination mark consisting of
one or more Trademarks of each party. All uses of the other party's
Trademarks shall inure to the benefit of the party owning such Trademark.
Each party hereby acknowledges and agrees that, as between the parties, the
other party is the owner of the Trademarks identified as its Trademarks in
any written notice provided to the other party pursuant to this Agreement.
Either party may update or change the list of Trademarks usable by the other
party hereunder at any time by written notice to the other party.
9.5 Use the Appropriate ® or TM Symbol. You must reproduce any
Listing Suite Marks exactly as shown on Appendix A, including the exact
reproduction of any proprietary markings or legends and including the
appropriate ® or TM symbol at the first and most prominent reference, or as soon as
practicable thereafter.
9.6 Provide Appropriate Trademark
Attribution. You must include a statement of ownership when displaying or
reproducing any Listing Suite Marks. The statement should read: "LISTING
SUITE and the Listing Suite logo [or any other applicable mark]
are trademarks or registered trademarks of Listing Suite Software or
its parent company, Professional Real Estate Products, LLC." If it is
not feasible to include the attribution statement, it is acceptable to use a
general-purpose attribution statement in a form such the following: "All
other trademarks are the property of their respective owners."
9.7 Trademarks and Domain Registration.
You shall not use, register or attempt to register any: (a) Listing Suite
Marks; or (b) trademarks or domain names that are confusingly similar to any
of the Listing Suite Marks or the Domain.
9.8 Trademark Restrictions. You shall
not (i) use the Listing Suite Marks except as expressly authorized in this
Agreement; (ii) take any actions inconsistent with Listing Suite's ownership
of the Listing Suite Marks and any associated registrations, or attack the
validity of the Listing Suite Marks, its ownership thereof, or any of the
terms of this Agreement; (iii) use the Listing Suite Marks in any manner that
would indicate You are using such Listing Suite Marks other than as a
licensee of Listing Suite; nor (iv) assist any third party do any of the
same.
9.9 Further Assurances. Each party
shall take, at the other party's expense, such action (including, without
limitation, execution of affidavits or other documents) as the other party
may reasonably request to effect, perfect or confirm such other party's
ownership interests and other rights as set forth in this Section 9.
9.10 Confidential Information. You
agree to hold all information communicated by Listing Suite to You, whether
written or oral or in any media whatsoever (the "Confidential
Information"), in strict confidence, not to disclose, distribute or
disseminate the Confidential Information or information derived therefrom in
any way to any third party and not to use the Confidential Information for
Your own benefit or the benefit of others, or for any purpose except in
connection with the purposes of this Agreement. You agree to use Your best efforts to protect all Confidential Information
and in any event, to take precautions at least as great as those taken to
protect Your own information of a similar nature. You agree that the terms
and conditions of this Agreement will be Confidential Information. Upon
Listing Suite's request, You will return all
materials, in any medium, that contain, embody, reflect or reference all or
any part of any Confidential Information. You acknowledge that breach of this
provision may result in irreparable harm to Listing Suite, for which money
damages may be an insufficient remedy, and therefore Listing Suite will be
entitled to seek injunctive relief to enforce the provisions of this section.
10.
Representations and Warranties.
10.1 Mutual Warranties. Each party
represents and warrants to the other that (a) it has all necessary right,
power and ability to execute this Agreement and to perform its obligations
therein; (b) no authorization or approval from any third party is required in
connection with such party's execution, delivery or performance of this
Agreement, (c) this Agreement constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms, (d) the
party's obligations under this Agreement do not violate any law or breach any
other agreement to which such party is bound; and (e) it has all right, title
or interest, or valid license to use, its respective Marks, and that its
grant of rights associated therewith do not violate any intellectual property
or other proprietary rights of any third party.
10.2 Listing Suite Warranty.
10.2.1 WARRANTY. DURING THE EFFECTIVE TERM OF
THIS AGREEMENT, LISTING SUITE REPRESENTS AND WARRANTS THAT THE LISTING SUITE
SERVICES WILL CONFORM IN ALL MATERIAL RESPECTS TO THE APPLICABLE
DOCUMENTATION MADE AVAILABLE TO YOU BY LISTING SUITE. YOU MAY NOT RELY UPON
ANY REPRESENTATION OR WARRANTY REGARDING THE LISTING SUITE SERVICES BY ANY
THIRD PARTY IN CONTRAVENTION OF THE FOREGOING STATEMENTS, INCLUDING
REPRESENTATIONS OR WARRANTIES OF ANY MEMBER SERVICE PROVIDER. THE SERVICES
ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS. LISTING
SUITE DOES NOT REPRESENT OR WARRANT THAT THE LISTING SUITE SERVICES WILL BE
AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR
ENTIRELY ERROR-FREE. YOU EXPRESSLY ACKNOWLEDGE THAT THE LISTING SUITE
SERVICES ARE COMPUTER NETWORK-BASED SERVICES, WHICH MAY BE SUBJECT TO OUTAGES,
INTERRUPTIONS, ATTACKS BY THIRD PARTIES AND DELAY OCCURRENCES. IN SUCH AN
EVENT AND SUBJECT TO THE TERMS HEREOF, LISTING SUITE SHALL USE COMMERCIALLY
REASONABLE EFFORTS TO REMEDY MATERIAL INTERRUPTIONS AND WILL PROVIDE
ADJUSTMENTS, REPAIRS AND REPLACEMENTS, WITHIN ITS CAPACITY, THAT ARE
NECESSARY TO ENABLE THE LISTING SUITE SERVICES TO PERFORM THEIR INTENDED
FUNCTIONS IN A REASONABLE MANNER. YOU ACKNOWLEDGE THAT LISTING SUITE DOES NOT
WARRANT THAT SUCH EFFORTS WILL BE SUCCESSFUL. IF LISTING SUITE'S EFFORTS ARE
NOT SUCCESSFUL, YOU MAY TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION
8.1. THE FOREGOING SHALL CONSTITUTE YOUR SOLE REMEDY, AND LISTING SUITE'S
SOLE LIABILITY, IN THE EVENT OF INTERRUPTION, OUTAGE OR OTHER DELAY
OCCURRENCES IN THE LISTING SUITE SERVICES. LISTING SUITE DOES NOT WARRANT THE
SERVICES OF ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, ANY HOSTING
PROVIDER OR ANY THIRD PARTY.
10.2.2 DISCLAIMER. EXCEPT AS EXPRESSLY SET
FORTH IN SECTION 10.2.1, LISTING SUITE SPECIFICALLY DISCLAIMS ALL
REPRESENTATIONS, WARRANTIES, AND CONDITIONS WHETHER EXPRESS OR IMPLIED,
ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING, OR
OTHERWISE, INCLUDING BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE
WITH RESPECT TO THE LISTING SUITE SERVICES, OR OTHER SERVICES OR GOODS
PROVIDED UNDER THIS AGREEMENT. FOR THE AVOIDANCE OF DOUBT, YOU AGREE THAT
LISTING SUITE DOES NOT REPRESENT OR WARRANT THAT THE LISTING SUITE SERVICES
WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE,
COMPLETE, OR ENTIRELY ERROR-FREE.
10.3 Your Warranties. You represent and
warrant to Listing Suite that:
10.3.1 All representations and statements made
by You in this Agreement, or in any other document relating hereto by You or
on Your behalf, are true, accurate and complete in all material respects. You
hereby authorize Listing Suite to investigate and confirm the information
submitted by You herein. For this purpose, Listing
Suite may utilize credit bureau reporting agencies and/or its own agents.
10.3.2 You are engaged in a lawful business
that includes the sale of real estate and/or services, and are duly licensed
to conduct such business under the laws of all jurisdictions in which You
conduct business; and
10.3.3 You will comply with all laws,
policies, guidelines, regulations, ordinances or rules applicable to You,
Your business or the Transmissions, including, without limitation: (i) the
Real Estate Association rules and regulations; (ii) the Gramm Leach Bliley
Act; (iii) any regulatory body or agency having jurisdiction over the subject
matter hereof; (iv) Listing Suite's Acceptable Use Guidelines and Privacy
Policy; (v) the CAN-SPAM Act; and (vi) the then current policies, procedures,
and guidelines of Listing Suite governing the Listing Suite Services.
10.4 Third Party Programs. You
acknowledge that the Listing Suite Services are designed for use with certain
third-party programs, including, without limitation, certain Internet
browser, software programs, and/or hardware programs developed and owned by
third parties. You will look solely to the developers and manufacturers of
such programs with regard to warranty, maintenance or other support regarding
the same. Listing Suite makes no warranty, express or implied, with regard to
any such third-party software or hardware.
11.
LIMITATIONS OF LIABILITY AND DISCLAIMERS.
11.1 DISCLAIMER. LISTING SUITE
EXPRESSLY DISCLAIMS ANY LIABILITY FOR LOSS ARISING FROM OR RELATED TO THE
LISTING SUITE SERVICES OR THIRD PARTY PROCESSORS, OR THIS AGREEMENT (HOWEVER
ARISING, INCLUDING NEGLIGENCE), INCLUDING WITHOUT LIMITATION, LIABILITY OR
LOSS ASSOCIATED WITH: YOUR FAILURE TO PROPERLY ACTIVATE OR INTEGRATE YOUR
MEMBER ACCOUNT; OR UNAUTHORIZED ACCESS TO YOUR DATA OR YOUR CUSTOMER DATA
(INCLUDING REAL ESTATE INFORMATION AND OTHER PERSONALLY IDENTIFIABLE
INFORMATION), A MEMBER INTERFACE, YOUR WEBSITE, A SERVER, OR A FACILITY, DUE
TO ACCIDENT, ILLEGAL OR FRAUDULENT MEANS INCLUDING HACKING, OR DEVICES USED
BY ANY THIRD PARTY, OR OTHER CAUSES BEYOND LISTING SUITE'S REASONABLE
CONTROL. YOU EXPRESSLY AGREE THAT LISTING SUITE SHALL NOT BE LIABLE FOR ANY
LOSS ARISING FROM: (I) A THIRD PARTY'S INFILTRATION OF LISTING SUITE
SERVICES, SYSTEMS OR WEBSITE BY ANY MEANS, INCLUDING WITHOUT LIMITATION, VIA
DDOS ATTACKS, SOFTWARE VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, OR ANY
OTHER SOFTWARE PROGRAMS, OR TECHNOLOGY; (II) DISRUPTION, DAMAGE,
INTERCEPTION, UNAUTHORIZED ACCESS TO OR EXPROPRIATION OF THE LISTING SUITE
SERVICES, OR ANY SYSTEM, PROGRAM, DATA, TRANSMISSION OR PERSONAL INFORMATION
BELONGING TO LISTING SUITE, YOU OR ANY THIRD PARTY; (III) THE LIMITATION OF
THE FUNCTIONING OF ANY SOFTWARE, HARDWARE, EQUIPMENT OR SERVICE; OR (IV)
ACTIONS OR INACTIONS BY ANY THIRD PARTY. LISTING SUITE EXPRESSLY DISCLAIMS
ANY LIABILITY FOR THE INDIVIDUAL MERIT AND LEGITIMACY OF ORDERS FORWARDED
FROM YOU AND FOR ANY AND ALL CLAIMS OF LOSS AND/OR FRAUD INCURRED RESULTING
FROM THE USE OF OR CONCLUSIONS DRAWN FROM THE DATA PROVIDED BY YOU.
11.2 EXCLUSION. IN NO EVENT WILL
LISTING SUITE OR ANY OF ITS PARENTS, AFFILIATES OR VENDORS (OR ANY OFFICERS,
DIRECTORS, EMPLOYEES OR AGENTS OF THE PARTIES, OR ITS PARENTS, AFFILIATES OR
VENDORS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES (HOWEVER ARISING), INCLUDING, WITHOUT LIMITATION, DAMAGES
FOR LOST REVENUE, LOST PROFITS, ANTICIPATED PROFITS, LOST BUSINESS OR INJURY
TO BUSINESS REPUTATION, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, UNDER ANY
THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT, CONTRACT OR
OTHERWISE, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
11.3 LIMITATION. EXCEPT AS OTHERWISE
LIMITED, THE TOTAL LIABILITY OF LISTING SUITE TO YOU (WHETHER ARISING IN
TORT, CONTRACT OR OTHERWISE) UNDER THIS AGREEMENT OR WITH REGARD TO THE
LISTING SUITE SERVICES OR ANY OTHER ITEMS PROVIDED BY LISTING SUITE UNDER
THIS AGREEMENT, WILL IN NO EVENT EXCEED THE AGGREGATE PRORATED COMPENSATION
LISTING SUITE RECEIVED FOR PROVIDING THE LISTING SUITE SERVICES TO YOU DURING
THE THIRTY DAYS PRECEDING THE DATE ON WHICH THE CLAIM AROSE OR $1,000,
WHICHEVER IS LESS.
12.
Indemnification.
12.1 Indemnification by Listing Suite.
11.1.1 General. Listing Suite shall defend,
indemnify and hold You and any of your officers, directors, agents and
employees harmless from and against any and all third-party claims, actions,
proceedings, and suits and all related liabilities, damages, settlements,
penalties, fines, costs or expenses (including reasonable attorneys' fees and
other litigation expenses) incurred by You, arising out of or relating to any
alleged infringement of a U.S. patent or copyright of any other entity or
person by the Listing Suite Services.
12.1.2 Limitation; Prevention of Infringement.
Listing Suite's obligations in Section 12.1.1 do not apply if the Listing
Suite Services or portions or components thereof (a) are modified by persons
or entities other than Listing Suite if the alleged infringement relates to
such modification; (b) are combined with other products, processes or
materials not supplied or recommended by Listing Suite where the alleged
infringement relates to such combination, or (c) continue to be used after
Listing Suite has made a non-infringing version available to You
(collectively, "Member Faults"). If the Listing Suite Services or
any component thereof becomes, or in Listing Suite's opinion is likely to
become, the subject of a claim of infringement, then You shall permit Listing
Suite, at Listing Suite's sole option and expense, either to (i) procure for
You the right to continue using the Listing Suite Services as permitted in
this Agreement, or (ii) replace or modify the affected Listing Suite Services
or infringing component so that it becomes non-infringing. If, after using
commercially reasonable efforts, Listing Suite is unable to cure the
infringement, either party may terminate this Agreement upon notice to the
other, as provided in Section 8.1. THIS SECTION 12.1.2 STATES THE ENTIRE LIABILITY
OF LISTING SUITE TO YOU WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL
PROPERTY RIGHTS BY THE LISTING SUITE SERVICES.
12.2 Indemnification by You. You shall
defend, indemnify, and hold harmless Listing Suite and its affiliates,
parents, and/or subsidiaries, and any of their officers, directors, agents
and employees, from and against any and all third-party claims, actions,
proceedings, and suits and all related liabilities, damages, settlements,
penalties, fines, costs or expenses (including reasonable attorneys' fees and
other litigation expenses) incurred by Listing Suite, arising out of or
relating to: (a) any breach or alleged breach by You of any representation,
warranty, or obligation of You set forth in this Agreement; (b) any damage or
loss caused by negligence, fraud, dishonesty or willful misconduct by You or
any of your employees, agents or clients; (c) the reliability, accuracy, or
legitimacy of payment data or purchase orders submitted by You to Listing
Suite; (d) payment card transmissions submitted by You to Listing Suite and
rejected by Listing Suite or an issuing bank; (e) any alleged infringement of
a patent, copyright, trademark or other intellectual property right resulting
from a Member Fault; (f) any alleged or actual violation by You of any
applicable laws, regulations or rules of (i) the Real Estate Associations;
(ii) the Gramm Leach Bliley Act; (iii) or any regulatory body or agency
having jurisdiction over the subject matter hereof; or (g) any violation of
Listing Suite's Acceptable Use Guidelines or Privacy Policy. In the event You cause fines and/or penalties to be charged to Listing
Suite by the Real Estate Associations or any other entity, you agree to
immediately reimburse Listing Suite for said fines or penalties.
12.3 Indemnification Procedure. The
obligations of each party ("Indemnitor") under this Section
12 to defend, indemnify and hold harmless the other party ("Indemnitee")
shall be subject to the following: (a) Indemnitee shall provide Indemnitor
with prompt notice of the claim giving rise to such obligation; provided,
however, that any failure or delay in giving such notice shall only relieve
Indemnitor of its obligations under this Section 11 to the extent it
reasonably demonstrates that its defense or settlement of the claim or suit
was adversely affected thereby; (b) Indemnitor shall have control of the
defense and of all negotiations for settlement of such claim or suit; and (c)
Indemnitee shall cooperate with Indemnitor in the defense or settlement of any
such claim or suit, provided that Indemnitee shall be reimbursed for all
reasonable out-of-pocket expenses incurred in providing any cooperation
requested by Indemnitor. Subject to clause (b) above, Indemnitee may
participate in the defense of any such claim or suit at its own expense.
Indemnitor shall not, without the consent of the Indemnitee, enter into any
settlement that reasonably can be expected to require a material affirmative
obligation of, result in any ongoing material liability to or materially
prejudice Indemnitee in any way.
12.4 Exceptions. If You
are an agency or instrumentality of a state of the United States and are precluded
by the law of Your state from entering into indemnification obligations, then
the obligations under Sections 12.2 and 12.3 shall apply only to the extent
permitted by such state law.
13.
General Provisions.
13.1 Publicity. The parties may work
together to issue publicity and general marketing communications concerning
their relationship and other mutually agreed-upon matters, provided, however,
that neither party will have any obligation to do so. In addition, neither
party will issue such publicity and general marketing communications
concerning this relationship or the Listing Suite Services without the prior
written consent of the other party (not to be unreasonably withheld or
delayed).
13.2 Non-exclusivity. Each party
acknowledges and agrees that the rights granted to the other party in this
Agreement are non-exclusive, and that, without limiting the generality of the
foregoing, nothing in this Agreement shall be deemed or construed to prohibit
either party from participating in similar business arrangements as those
described herein.
13.3 Relationship of the Parties. The
parties are independent contractors and nothing in this Agreement shall make
them joint venturers, partners, employees, agents or other representatives of
the other party. Neither party shall make any representation that suggests
otherwise. You further recognize that if you contracted for the Listing Suite
Services with a Member Service Provider, such provider is an authorized
reseller of the Listing Suite Services only and is not a joint venturer,
partner, or agent of Listing Suite.
13.4 Notices. All notices to You shall be given electronically, sent to the electronic
mail address provided by or for You during registration for the Listing Suite
Services and/or posted in the Announcement section of your gateway account.
Service termination notices to Listing Suite shall be given electronically
from within your Listing Suite member menu and sent to support@Listing Suite.com. All other
notices to Listing Suite must be in writing and sent to Professional Real
Estate Products, LLC., Mill Valley, California
94941 or to (415)
389-8580 (fax), Attention: General Counsel. Such written notice will be
deemed given upon personal delivery, upon confirmation of receipt if sent by
fax, or three (3) days after the date of mailing if sent by certified or
registered mail, postage prepaid. Electronic mail notices shall be deemed
given the next business day following the date delivered.
13.5 Amendment; Modifications. No
amendment, modification, or change to any provision of this Agreement, nor
consent to any departure by either party therefrom, will in any event be
effective unless the same will be in writing and signed by the other party,
and then such consent will be effective only in the specific instance and for
the specific purpose for which given. Notwithstanding the foregoing, Listing
Suite may amend this Agreement at any time upon written or electronic notice
to You of not less than ten (10) days prior to the effective date of such
amendment; provided that the addition or change of service fees, will become
effective upon at least thirty (30) days' notice. If You
do not agree to such amendments, your sole remedy is to immediately terminate
this Agreement upon written notice to Listing Suite.
13.6 Severability; Headings. 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. The parties agree to replace any invalid
provision with a valid provision, which most closely approximates the intent
and economic effect of the invalid provision. Headings are used for
convenience of reference only and in no way define, limit, construe or
describe the scope or extent of any section, or in any way affect this
Agreement.
13.7 Governing Law; Jurisdiction. This
Agreement and performance under it will be interpreted, construed and
enforced in all respects in accordance with the laws of the State of California, without
reference or giving effect to any conflicts of law principles. You hereby
irrevocably consent to the personal jurisdiction of and venue in the state
and federal courts located in Marin County, California with respect to any
action, claim or proceeding arising out of or related to this Agreement and
agree not to commence or prosecute any such action, claim or proceeding other
than in such courts, except as otherwise provided in Section 13.11 below.
13.8 Waiver. The failure of any party
to insist on or enforce strict performance of any provision of this Agreement
or to exercise any right or remedy under this Agreement or applicable law
will not be construed as a waiver or relinquishment to any extent of the
right to assert or rely upon any such provision, right or remedy in that or
any other instance; rather, the same will be and remain in full force and
effect. Waiver by either party of a breach of any provision contained herein
must be in writing, and no such waiver will be construed as a waiver of any
other and/or succeeding breach of such provision or a waiver of the provision
itself.
13.9 Assignment. You will not have the
right or the power to assign any of Your rights or
delegate the performance of any of Your obligations under this Agreement
without the prior written consent of Listing Suite, including in the case of
a merger. Listing Suite will have the right to assign this Agreement to its
subsidiaries, affiliates and/or suppliers.
13.10 Force Majeure. Neither party will
be liable for any losses arising out of the delay or interruption of its
performance of obligations under the Agreement due to any acts of God, acts
of civil or military authorities, civil disturbances, wars, strikes or other
labor disputes, fires, transportation contingencies, interruptions in
telecommunications, utility, Internet services or network provider services,
acts or omissions of a third party, infiltration or disruption of the Listing
Suite Services by a third party by any means, including without limitation,
DDoS attacks, software viruses, Trojan horses, worms, time bombs or any other
software program or technology designed to disrupt or delay the Listing Suite
Services, or other catastrophes or any other occurrences which are beyond
such parties' reasonable control (each a "Force Majeure Event"),
provided that the party delayed will provide the other party notice of any
such delay or interruption as soon as reasonably practicable, will use
commercially reasonable efforts to minimize any delays or interruptions
resulting from the Force Majeure Event and in no event will any failure to
pay any monetary sum due under this Agreement be excused for any Force
Majeure Event.
13.11 Dispute Resolution. Any dispute
or claim arising out of or relating to this Agreement, except claims
involving intellectual property and claims for indemnification, may be
resolved by binding arbitration. The arbitration of any dispute or claim
shall be conducted in accordance with the American Arbitration Association
("AAA") rules, as modified by this Agreement, and will take place
in Mill Valley, California, unless the Parties mutually agree to hold the
proceedings elsewhere. This Agreement evidences a transmission in interstate
commerce and this arbitration provision will be interpreted and enforced in
accordance with the Federal Arbitration Act and federal arbitration law. An
arbitrator may not award relief in excess of or contrary to what this
Agreement provides or order consolidation or arbitration on a class wide or
representative basis, except that the arbitrator may award on an individual
basis damages required by statute and may order injunctive or declaratory
relief pursuant to an applicable consumer protection statute. Any arbitration
shall be confidential, and neither Party may disclose the existence, content
or results of any arbitration, except as may be required by law or for purposes
of enforcement of the arbitration award. Judgment on any arbitration award
may be entered in any court having proper jurisdiction. All administrative
fees and expenses will be divided equally between the Parties, but each Party
will bear the expense of its own counsel, experts, witnesses and preparation
and presentation of evidence at the arbitration. IF FOR ANY REASON THIS
ARBITRATION CLAUSE IS DEEMED INAPPLICABLE OR INVALID, THE PARTIES WAIVE, TO
THE FULLEST EXTENT ALLOWED BY LAW, ANY RIGHT TO PURSUE ANY CLAIMS ON A CLASS
OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY. No action, regardless
of form, arising out of or in conjunction with the subject matter of this
Agreement, except for claims involving intellectual property, claims to
recover outstanding amounts due Listing Suite and claims for indemnification,
may be brought by either Party more than one (1) year after the cause of
action arose.
13.12 Entire Agreement. This Agreement
together with all of Listing Suite's policies referenced herein sets forth
the entire understanding and agreement of the parties, and supersedes any and
all prior or contemporaneous oral or written agreements or understandings
between the parties, as to the subject matter of this Agreement. You
acknowledge that this Agreement reflects an informed, voluntary allocation
between Listing Suite and You of all risks (both
known and unknown) associated with the Listing Suite Services. In the event
of a conflict between the Acceptable Use Guidelines and this Agreement, the
latter shall govern.
13.13 Definitions.
"Domain" - for the purposes of this Agreement, means the web
site operated by or for Listing Suite under the URL http://www.Listing
Suite.com.
"Fee Schedule" - a list of fees and charges to be paid by You to Listing Suite. The Fee Schedule is located below.
"Trademark(s)" - means all common law or registered
trademark, service mark, trade name and trade dress rights and similar or
related rights arising under any of the laws of the United States or any
other country or jurisdiction, whether now existing or hereafter adopted or
acquired.
"Transmissions" - for purposes of this Agreement,
Transmission means any transmission, by electronic or hard copy, of real
estate related information or other related transmission, completed or
submitted under Your account to or through the use
of Listing Suite Services.
Appendix A - Listing
Suite Marks
I. Listing
Suite Marks.
For purposes of this Agreement, "Listing Suite Marks" means those
trademarks listed below and such other trademarks that appear on Listing
Suite’s website or as Listing Suite may from time to time notify You in
writing to be "Listing Suite Marks" within the meaning of this
Agreement.
Listing
Suite Software®
II. Your
Marks.
For purposes of this Agreement, "Your Marks" means Your customary
name and logo, including Your broker(s), and such
other trademarks as You may from time to time notify Listing Suite in writing
to be "Your Marks" within the meaning of this Agreement.
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