1. ACCESS TO SERVICES
4. REGISTRATION AND SECURITY
As part of accessing the Services and/or the Site, and as a condition to use the Services and/or Site, you may be required to register with Company and to provide information, such as an email address, or User ID to create an account. Your account may also be secured with a password, pass code, or other unique identifier associated with your account as may be required by Company (collectively “Pass Code”). You agree to provide Company with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your account. You may not (i) select or use as an email address, account name, or User ID a name of another person with the intent to impersonate that person; (ii) use as an email address, account name, or User ID a name subject to any rights of a person other than you without appropriate authorization; (iii) register for the Services using more than one account name or User ID.
Company may use the Pass Code and/or other information associated with your account to authenticate your identity when you access and use the Site and/or Services. Company may store any information, photographs or other files you submit in its systems indefinitely and use them for the purpose of authentication. Company is under no obligation to confirm the actual identity or authority of any party accessing the Site or Services under your account or Pass Code. You will maintain the confidentiality of your Pass Code and may not share/allow others to have access to your Pass Code. You agree to immediately notify Company via email or via telephone if you become aware or learn of any unauthorized use of your Pass Code or any other breach of security. Unauthorized attempts to (i) defeat or circumvent Pass Codes or other security features, (ii) use the Site or the Services for other than intended purposes, or (iii) obtain, alter, damage or destroy information or otherwise to interfere with the system of its operation are not permitted and may result in a loss of access to the Site and/or Services. Evidence of such acts may also be disclosed to law enforcement authorities and result in criminal prosecution under the laws of the United States or such other jurisdictions as may apply.
5. SERVICES AND PERMITTED USES
6. PROHIBITED USES
Except as may be expressly set forth above under “Permitted Uses” you shall not (i) distribute, disclose, copy, reproduce, communicate to the public by telecommunication, make available, display, publish, transmit, assign, sublicense, transfer, provide access to, use, rent or sell, directly or indirectly (including in electronic form) any portion of the Site or Services, or (ii) modify, adapt or create derivative works of any portion of the Site or Services. For avoidance of doubt and notwithstanding anything to the contrary in these Terms of Service, you (whether an advertiser, buyer, seller, user, visitor or otherwise) agree that you shall not:
(a) Access any portion of the Site restricted to an authorized user (i.e. requiring an account and/or Pass Code), unless you are the authorized user for such Pass Code and are using the Pass Code assigned to/associated with your account;
(b) Access or use any portion of the Site or Services if you are a direct or indirect competitor of Company, nor shall you provide, disclose or transmit any portion of the Site, Information contained on the Site, or the Services to any direct or indirect competitor of Company (a “direct or indirect competitor” of Company includes, but is not limited to, Internet listing services or other real estate information services and employees, independent contractors and agents of such services);
(c) Provide your Pass Code or otherwise provide access to the Site or Services under your account to any individual other than yourself, including by providing the results of queries of or reports generated from your access to the Site or Services to a person who is not a client or prospective client;
(d) Store, copy, export, or distribute any Information contained on or in the Site, or obtained from the Site into any database, software, or website, or use such Information to directly or indirectly create or contribute to the development of any database, software, website, service, or product;
(e) Frame, mirror, or embed any page or portion of the Site;
(f) Modify, merge, decompile, disassemble, scrape, translate, decode or reverse engineer any portion of the Site, or use any data mining, gathering or extraction tool, or any robot, spider or other automatic device or manual process, to monitor or copy any portion of the Site or the data generated from it;
(g) Use, reproduce, publish or compile any portion of the Site or Services for the purpose of selling, licensing, or making any portion of the Site or Services publicly available elsewhere;
(h) Upload, post or otherwise publish any portion of the Site on, or provide access to any portion of the Site through, the Internet, any bulletin board system, any other electronic network, any data library, any listing service or any other data sharing arrangement, except as may be specifically permitted in section 5 (Services And Permitted Uses) above; and
(i) Impersonate any person or entity, including but limited to an account holder, or falsely state or otherwise misrepresent any registration or log-in information, or otherwise disguise the origin of any information, data, text, software, photographs, images, graphics, or other content posted on or transmitted through the Site.
7. ADDITIONAL RESTRICTIONS
You (whether an advertiser, buyer, seller, user, visitor or otherwise) warrant, represent and agree that you will not contribute, submit or make Content available through the Site or Services, and/or that you will not use the Site or Services in any manner that:
(a) is unlawful, threatening, abusive, harmful, libelous, tortious, defamatory, false, misleading, obscene, vulgar, racially or ethnically offensive, invasive of privacy or publicity rights, inclusive of hate speech, or would constitute or encourage a criminal offence, violate the rights of any party, give rise to liability or violate any local, provincial, federal or international law, intentionally or unintentionally, or is otherwise objectionable;
(b) infringes any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right of any party or that violates the privacy or publicity rights of any party;
(c) constitutes unlawful advertising or fraudulent, unfair or deceptive practices, or any other form of unlawful solicitation in the United States (or any State therein), or other country; or
(d) contains, Maillist, Listserv, any form of auto-responder, or “spam,” contains software viruses or any other computer code, files or programs that are designed to (i) violate the security of any computer network, (ii) crack passwords or security encryption codes, (iii) operate, run, or activate while you are not logged in to the Site, or (iv) have the capability to interrupt, modify, damage, improperly access, disable, destroy or limit the functionality of the Site or servers or networks connected thereto or the activities of other users of the Site or of any computer software or hardware or telecommunications equipment.
You are responsible for all of your activity on the Site or in connection with the Services. Any fraudulent, abusive, or illegal activity – including any of the Prohibited Uses or Additional Restrictions – is grounds for termination of your right to use the Services or to access the Site. Additionally, Company reserves the right to remove any Content from the Site at any time, or to terminate your right to use the Services or access the Site, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if Company is concerned that you may have breached the terms of this paragraph), or for no reason at all, subject to the provisions of paragraph 15 (Termination).
You acknowledge and agree that Company has no special relationship with or fiduciary duty to you and that Company has no control over, and no duty to take any action regarding: which users gains access to the Site or Services; what you access or receive via the Site or Services; what Content other account holders or subscribers may make available, publish or promote in connection with the Services; what effects any Content may have on you or other users of the Site or Services or customers; how you or your customers may interpret, view or use the Content; what actions you or your customers may take as a result of having been exposed to the Content, or whether Content is being displayed properly in connection with the Services.
You release Company from all liability in any way relating to your acquisition (or failure to acquire), provision, use or other activity with respect to Content in connection with the Site or Services. The Site may contain, or direct you to sites containing, information that some people may find offensive or inappropriate. Company makes no representations concerning any content contained in or accessed through the Site or Services, and Company will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Site or Services. Company makes no guarantee regarding the level of impressions of or clicks on any advertisement, the timing of delivery of such impressions and/or clicks, or the amount of any payment to be made to you in connection with the Services. Company is also not responsible for ensuring compliance with any local, regional, or national real estate laws and/or licensing laws or regulations applicable to any real estate (or other property) sale or lease.
THE SERVICES, INFORMATION, CONTENT AND SITE ARE PROVIDED ON AN “AS IS” BASIS “WITH ALL FAULTS” AND “AS AVAILABLE.” COMPANY AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND THIRD PARTY SUPPLIERS OR THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “COMPANY PARTIES”) CANNOT AND DO NOT REPRESENT, WARRANT OR COVENANT THAT (I) THE SERVICES OR SITE WILL ALWAYS BE ACCURATE, COMPLETE, CURRENT, OR TIMELY; (II) THE OPERATION OF, OR YOUR ACCESS TO, SERVICES THROUGH THE SITE WILL ALWAYS BE UNINTERRUPTED OR ERROR-FREE; AND/OR (III) DEFECTS OR ERRORS IN THE SITE OR THE SERVICES, BE THEY HUMAN OR COMPUTER ERRORS, WILL BE CORRECTED.
THE COMPANY PARTIES DISCLAIM ANY AND ALL REPRESENTATIONS, GUARANTEES, OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THE RESULTS OF USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE RESULTS OF ANY ADVERTISMENTS, AND YOU ASSUME ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
ELECTRONIC COMMUNICATIONS PRIVACY ACT NOTICE (18USC 2701-2711): COMPANY MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON OR THROUGH THE SITE, SERVICES OR ANY WEBSITE LINKED TO THE SITE.
We take care to keep your personal information confidential and secure. However, the Internet is not a totally secure medium of communication and we cannot guarantee the privacy of any information you input on this Site, send to us, or request be delivered to you on the Internet. Company will not be liable for the privacy of e-mail addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other Information or Content stored on Company’s equipment, transmitted over networks accessed by the Site, or otherwise connected with your use of the Services. Company will also not be responsible for any damages you or others may suffer as a result of the loss of confidentiality of any such information.
You will indemnify and hold Company, its parents, subsidiaries, affiliates, officers and employees, harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of or relating to Information or Content submitted through your account, your (or your account’s) access to the Site, your (or your account’s) use of the Services, your violation of this Agreement, or the infringement by you (or any third party using the your account) of any intellectual property or other right of any person or entity. You shall cooperate as fully as reasonably required in the defense of any such claim or demand. Company and any third party involved in creating, producing, or delivering the Site or Services reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, at your expense, and you shall not in any event settle any such matter without the written consent of Company and any such third party.
11. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, COMPANY WILL NOT BE LIABLE FOR ANY LOSS, COST OR DAMAGE SUFFERED OR INCURRED BY YOU OR ANY THIRD PARTY INCLUDING WITHOUT LIMITATION THOSE ARISING OUT OF OR RELATED TO ANY FAULTS, INTERRUPTIONS OR DELAYS IN THE SITE OR SERVICES, OUT OF ANY INACCURACIES, ERRORS OR OMISSIONS IN THE INFORMATION CONTAINED IN THE SITE OR SERVICES, REGARDLESS OF HOW SUCH FAULTS, INTERRUPTIONS, DELAYS, INACCURACIES, ERRORS OR OMISSIONS ARISE, OR FOR ANY UNAUTHORIZED USE OF THE SITE OR SERVICES.
THESE FOREGOING LIMITATIONS APPLY WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF COMPANY WAS NEGLIGENT OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. FEES AND PAYMENT
Some of the Services require payment of fees. You shall pay all applicable fees, as described on the Site in connection with such Services selected by you. Company reserves the right to change its price list and to institute new charges at any time. If you are past due on any payment to Company in connection with the Services, Company reserves the right to suspend your account until all outstanding payments have been made. YOU SHALL NOT RECEIVE A REFUND OR CREDIT FOR EARLY CANCELLATION, PARTIAL MONTHS OR FAILURE TO LIST PROPERTIES OR ADVERTISE AFTER PURCHASING. USERS OR SUBSCRIBERS WHO PURCHASE AN ANNUAL PLAN WILL AUTOMATICALLY CONVERT TO MONTHLY BILLING WHEN IT EXPIRES.
You agree not to disclose Company Confidential Information without Company’s prior written consent. “Company Confidential Information” includes without limitation: (i) all Company software, technology, programming, technical specifications, materials, guidelines and documentation that you learn, develop or obtain that relate to the Services or the Site; (ii) statistics relating to Site performance in the Services provided to you by Company or Company’s employees, agents, or affiliates; and (iii) any other information designated in writing by Company as “confidential” or any designation to the same effect. “Company Confidential Information” does not include information that has become publicly known through no breach by you or Company, or information that has been (a) independently developed without access to Company Confidential Information as evidenced in writing; (b) rightfully received by you from a third party not under a confidentiality obligation; or (c) required to be disclosed by law or by a governmental authority.
14. INFORMATION RIGHTS
Company may retain and use for its own purposes all information you provide, including but not limited to contact and billing information. You agree that Company may transfer and disclose to third parties personally identifiable information about you for the purpose of approving and enabling your participation in the Services, including to third parties that reside in jurisdictions with less restrictive data laws than your own jurisdiction. Company disclaims all responsibility, and will not be liable to you for any disclosure of that information by any such third party. Company may share aggregate (i.e., not personally identifiable) information about you with advertisers, business partners, sponsors, and other third parties. Additionally, you grant to Company a non-exclusive license to republish in any medium advertisements, web pages, banners, photos, images, interstitials or other content for purposes of marketing Company products and services.
Either party may terminate the Services at any time by notifying the other party by any means. Company may also terminate or suspend your account, any and all Services, and/or access to the Site immediately, without prior notice or liability, if you breach any of the terms or conditions of this Agreement. Any fees paid hereunder are non-refundable and non-cancelable. Upon termination of your account, your right to use the Services will immediately cease. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, warranty disclaimers, and limitations of liability.
16. REPRESENTATIONS AND WARRANTIES
You represent and warrant that (i) you are the owner of each advertisement you designate in connection with the use of Services or that you are legally authorized to act on behalf of the owner of such advertisement for the purposes of this Agreement, and (ii) you has all necessary right, power and authority to enter into this Agreement and to perform the acts required of you hereunder. You further represent and warrant that your actions in association with any advertisements and/or in association with the Services, as well as each of your advertisements, any material displayed therein, or any other Content or Information provided by you: (a) comply with all applicable laws, statutes, ordinances and regulations (including all applicable local, regional, or national real estate or licensing laws); (b) do not breach and have not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (c) are not hate-related in content.
The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Company shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Company’s reasonable control. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with Company’s prior written consent. This Agreement shall be governed by and construed in accordance with the laws of the state of Georgia without regard to the conflict of law provisions thereof. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Company in any respect whatsoever.