(the "Site"). ListingWare will post a notice of such changes or modifications to this Agreement or the Addendum on the Site for thirty (30) days. ListingWare may post changes or modifications to referenced policies and guidelines without Member approval. Member's continued use of the Services following ListingWare's posting of any changes or modifications will constitute Member's acceptance of such changes or modifications.
IF MEMBER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT (OR THE ADDENDA IF THEY APPLY TO MEMBER), DO NOT CLICK THE "PROCESS" BUTTON. IF MEMBER DOES NOT AGREE TO THE TERMS OF ANY MODIFICATION, DO NOT CONTINUE TO USE THE SERVICES AND IMMEDIATELY NOTIFY LISTINGWARE OF MEMBER'S TERMINATION OF THIS AGREEMENT IN THE MANNER DESCRIBED IN SECTION 5 BELOW.
1. Services. ListingWare agrees to provide to Member those Start-Up Services listed on Exhibit A and more particularly described on Exhibit B ("Start Up Services"). ListingWare also agrees to place the "Home Page" created by ListingWare for Member in accordance with this Agreement on the computer server owned or operated by ListingWare and to allow storage of information received by Member or from the general public on such server on a monthly basis, subject to the limits and as more particularly described on Exhibit B (collectively, the "Hosting Services"). Member may also request and ListingWare may provide, subject to ListingWare's agreement and the availability of ListingWare personnel and equipment, additional services (the "Additional Services"). (Start Up Services, Hosting Services and Additional Service will hereafter be referred to as "Services".) All Services under this Agreement shall be performed in accordance with ListingWare's standard procedures, so long as such procedures do not conflict with the express terms of this Agreement.
2. Payment. Member agrees to pay to ListingWare the amounts specified on Exhibit A for Start-Up Services ("Start-Up Fees"), and Hosting Services ("Hosting Fees"). Additional Services shall also be charged to Member at the prices listed on Exhibit A ("Additional Service Fees"). Start-Up Fees and one month's advance Hosting Fees and one month's advance of any Additional Service Fees are due upon execution of this Agreement. Hosting Fees and Additional Service Fees, are due monthly in advance on or before the Member's billing date of each month during the term of this Agreement. All fees described in this Section are collectively referred to as "Fees".
3. Material and Product Requirements. Member must ensure that all material and data placed on ListingWare's equipment is in a condition that is "server-ready", which is in a form requiring no additional manipulation by ListingWare. ListingWare will make no effort to validate any of this information for content, correctness or usability. In the event that Member's material is not "server-ready", ListingWare has the option at any time to reject this material. ListingWare will notify Member of its refusal of the material and afford Member the opportunity to amend or modify the material to satisfy the needs and/or requirements of ListingWare.
4. Taxes, Overdue Accounts. All Fees due hereunder are net amounts to be received by ListingWare, exclusive of all duties, sales taxes, value added taxes, assessments, and similar taxes and duties, and are not subject to offset or reduction because of any costs, expenses, taxes, duties, assessments, or liabilities incurred by Member or imposed on ListingWare in the performance of this Agreement or otherwise due as a result of this Agreement. Member shall be responsible for the payment of all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Services, other than taxes based on ListingWare's net income. Interest may be charged by ListingWare on overdue accounts and any other Fees not paid to ListingWare as provided hereunder at the rate of one and one-half percent (1-1/2%) per month or the maximum amount allowed by law, whichever is less, commencing with the date payment was due.
5. Term and Termination.
(a) Term. Unless earlier terminated as provided in this Section, this Agreement shall be for an initial term of three months at which point it shall automatically renew and continue on a month-to-month basis until terminated by either party on thirty days advance termination notice. For Annual Subscriptions, the initial term shall be for twelve months, at which point it shall automatically renew and continue on a month-to-month basis until additional annual payment(s) are submitted or until terminated by either party on thirty days advance termination notice.
(b) Termination. Member must provide ListingWare with Member's notice of termination by email or written correspondence. Member must provide ListingWare with sufficient Member identification information so that ListingWare may properly identify Member and Member's account. Any notice of termination will be effective thirty (30) days after receipt thereof. Either party may terminate this Agreement without notice upon the other party's breach of any term, condition or obligation hereunder if such breach is not remedied (if remediable) (i) within 10 days from the date of written notice with respect to any monetary obligation, and (ii) within 15 days from the date of written notice with regard to any other breach.
(c) Termination Policy. If Member terminates its receipt of the Services prior to the end of the Initial Term or any Renewal Term, whichever is then applicable, (a) ListingWare shall not refund to Member any fees paid in advance of such termination and (b) Member shall be required to pay 100% of ListingWare's standard monthly charge for each month remaining in the term, unless otherwise expressly provided herein. Member's termination request must be submitted to ListingWare in the manner described in Section 5(b). ListingWare may terminate this Agreement at any time and for any reason by providing to Member thirty (30) days prior written notice of termination. If ListingWare terminates this Agreement, ListingWare shall refund to Member the pro-rata portion of pre-paid fees attributable to Services not yet rendered as of the termination date unless otherwise expressly provided herein.
(d) Liability and Obligations on Termination. Should the Agreement expire or be terminated for any reason, ListingWare will not be liable to Member because of such expiration or termination for compensation, reimbursement or damages on account of the loss of prospective profiles, anticipated sales, goodwill or on account of expenditures, investments, leases or commitments in connection with Member's business, or for any other reason whatsoever flowing from such termination or expiration. Any termination of this Agreement shall not relieve Member of any obligations to pay fees and costs accrued prior to the termination date and any other amounts owed by Member to ListingWare as provided in this Agreement.
6. Member Responsibilities. In addition to the obligations of Member as otherwise specified in this Agreement, Member shall be solely responsible for the following:
(a) Selection of Services, including Additional Services, to achieve Member's intended results;
(b) The accuracy and content of any information provided by Member to ListingWare or to any additional Multiple Listing Service;
(c) Any information, programs and other data that Member receives as a result of the use of the Services, including, without limitation, the entire responsibility for any losses of data, programs, breaches of security, viruses, or disabling or harmful devices that Member may download or otherwise experience as a result of Member 's use of the Services; and
(d) Use of the Services in a manner consistent with any and all applicable laws and regulations.
7. Ownership. All materials, documentation, computer programs, inventions (whether or not patentable), pictures, audio, video, artistic works, and all works of authorship, including all worldwide rights therein under patent, copyright, trade secret, or other property right, created or developed by ListingWare while providing Services (collectively, "Work Product") is owned by ListingWare. Work Product shall not include the Information (defined below) of Member. If ownership of all right, title, and interest of the intellectual property rights in the Work Product shall not otherwise vest exclusively in ListingWare, Member hereby assigns to ListingWare, and upon the future creation thereof automatically assigns to ListingWare, without further consideration, the ownership of all Work Product.
8. Member's License Grant to ListingWare. Member hereby grants to ListingWare a non-exclusive, worldwide, and royalty-free license for the Initial Term and any renewal term, if applicable, to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, and otherwise use Member's content as necessary for the purposes of rendering and operating the Services to Member under this Agreement. Member expressly (a) grants ListingWare a license to cache materials distributed or made available for distribution via the Services, including content supplied by third parties, and (b) agrees that such caching is not an infringement of any of Member's intellectual property rights or any third party's intellectual property rights.
9. Limited ListingWare Warranty. ListingWare warrants that, for a period of 90 days from the date of first installation of Member 's completed Home Page on ListingWare's server described above, the coding of such Home Page shall be reasonably HTML-compliant. Notwithstanding the foregoing, the sole and exclusive remedy for a breach of the warranties contained in this Section 9 shall be that ListingWare shall replace the nonconforming coding to make such Home Page reasonably HTML-compliant. Member acknowledges that HTML is an industry standard that contains some ambiguous provisions and that does not completely address all issues associated with the coding of Home Pages accessible via the World Wide Web. Member also acknowledges that HTML is a standard that will be amended from time to time and that not all "browsers" used by third parties to access the World Wide Web implement HTML in the same way. Variations in HTML coding associated with ambiguities or revisions to the HTML standard or variations among World Wide Web browsers shall not be the basis for a claim of breach of ListingWare's warranties under this Agreement. The warranties described in this Section 9 are subject to the limitations of liability described below. EXCEPT AS PROVIDED IN THIS SECTION 9, LISTINGWARE DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THAT ABOVE EXCLUSION MAY NOT APPLY TO MEMBER. MEMBER MAY ALSO HAVE OTHER RIGHTS THAT MAY VARY FROM STATE TO STATE.
10. LIMITATION OF LISTINGWARE LIABILITY. IN NO EVENT WILL LISTINGWARE BE LIABLE TO MEMBER FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE SERVICES OR ANY PRODUCTS PROVIDED UNDER THIS AGREEMENT, EVEN IF LISTINGWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO MEMBER. LISTINGWARE'S LIABILITY TO MEMBER FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF THE ACTION, WILL BE STRICTLY LIMITED TO A MAXIMUM OF THE TOTAL FEES PAID BY MEMBER DURING THE PRIOR 12 MONTHS.
11. Limitations of Service. Unfortunately, computers need routine maintenance and sometimes break down; also, ListingWare cannot control the timing or volume of attempts to access ListingWare's server. As a result, ListingWare does not guarantee that Member or any third parties will be able to access Member's Home Page created by ListingWare at any particular time. ListingWare's Hosting Services are provided on an "as-is, as-available" basis, and ListingWare will use its reasonable best efforts to provide seven day a week, twenty-four hour per day access to Member's Home Page.
12. Member Warranties and Representations to ListingWare. Member warrants, represents, and covenants to ListingWare that (a) Member possesses the legal right and ability to enter into this Agreement; (b) Member will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (c) Member will be financially responsible for the use of Member's account; (d) Member has acquired or will acquire all authorization(s) necessary for hypertext links to third-party Web sites or other content; (e) Member has verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including, without limitation, Member's content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (f) Member's content does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable laws, regulatory or ordinance.
13. Indemnification Member hereby releases and agrees to hold harmless, and agrees to indemnify and defend, ListingWare (and its respective employees, directors and representatives) and its affiliates and suppliers (and their respective employees, directors and representatives) against any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by ListingWare or its suppliers, arising out of or relating to (a) Member's violation or breach of any term, condition, representation or warranty of this Agreement, any Addendum or any applicable policy or guideline; (b) Member's improper or illegal use the Services; or (c) Member's violation, alleged violation, or misappropriation of any intellectual property right (including, without limitation, trademark, copyright, patent, trade secrets) or non-proprietary right of a third party (including, without limitation, defamation, libel, violation of privacy or publicity).
14. Confidential Information.
(a) Each party hereto shall prevent disclosure, publication, or dissemination of the other party's Confidential Information (defined below); and (b) shall not use, reproduce, distribute, disclose, or otherwise disseminate the Confidential Information except in connection with the performance of its obligations under this Agreement.
(b) As used herein the term "Confidential Information" means any and all data and information relating to the business of the disclosing party (i) of which the receiving party becomes aware as a consequence of, or through, this Agreement; (ii) which has value to the disclosing party and is not generally known by its competitors; (iii) which is treated by the disclosing party as confidential; and (iv) which has been reduced to tangible form and marked clearly and conspicuously with a legend identifying its confidential or proprietary nature; provided, however, that Confidential Information does not include any data or information which is already known to the receiving party, or which (1) has become generally known to the public through no wrongful act of the receiving party; (2) has been rightfully received by the receiving party from a third party without restriction on disclosure (3) is required to be disclosed by operation of law; (4) is independently developed by the receiving party without use, directly or indirectly, of the Confidential Information received from the other party hereto; or (5) is furnished to a third party by the disclosing party hereunder without restrictions on the third party's right to disclosed the information.
15. Actions. ListingWare reserves the right and has absolute discretion to restrict or remove from its servers any content that violates this Agreement, any Addenda or related policies or guidelines, or is otherwise objectionable or potentially infringing on any third party's rights or in potentially violation of any laws. In the event of becoming aware of any possible violation by Member of this Agreement, any Addenda, the Exhibits, any related policies or guidelines, third party rights or laws, ListingWare may immediately take corrective action, including, but not limited to, (a) issuing warnings, (b) suspending or terminating the Service, (c) restricting or prohibiting any and all uses of content hosted on ListingWare's systems, and/or (d) disabling or removing any hypertext links to third-party Web sites, any of Member's content distributed or made available for distribution via the Services, or other content not supplied by ListingWare which, in ListingWare's sole discretion, may violate or infringe any law or third-party rights or which otherwise exposes or potentially exposes ListingWare to civil or criminal liability or public ridicule. It is ListingWare's policy to terminate repeat infringers. The above stated rights of action, however, do not obligate ListingWare to monitor or exert editorial control over the information made available for distribution via the Services. In the event ListingWare takes corrective action due to such possible violation, ListingWare shall not be obligated to refund to any fees paid in advance of such corrective action.
16. General
(a) Complete Agreement; Amendment. Each party acknowledges that it has read this Agreement and any Addenda and/or Exhibits, understands them, and agrees to be bound by their terms, and further agrees that they are the complete and exclusive statement of the agreement between the parties which supersedes and merges all prior proposals, understandings, and all other agreements, oral and written, between the parties relating to this Agreement. This Agreement may not be modified or altered except by written instrument duly executed by both parties.
(b) Notice. Any notice or other communication required or permitted in this Agreement, except as otherwise expressly provided herein, shall be in writing and shall be deemed to have been duly given on the day of service if served personally or three (3) days after mailing if mailed by first class mail, registered or certified, postage prepaid, and addressed to the address for the party listed in the preamble to this Agreement.
(c) This Agreement Controls. In the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of any purchase order or other document, the terms and conditions of this Agreement shall control.
(d) Governing Laws; This Agreement and performance under this Agreement shall be governed by the laws of the State of Georgia.
(e) Limitation of Action. No action, regardless of form, arising out of this Agreement may be brought by Member more than two (2) years after the cause of action has arisen.
(f) Severability. If any provision of this Agreement is invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted. The remainder of the Agreement shall be valid and enforceable to the maximum extent possible.
(g) Assigns. Member may not assign or sublicense, without the prior written consent of ListingWare, its rights, duties, or obligations under this Agreement to any person or entity, in whole or in part. This Agreement shall be binding upon and inure to the benefit of each party and their respective heirs, successors and authorized assigns.
(h) Waiver. The waiver or failure of either party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement.
17. Miscellaneous. Should any part of this Agreement, for any reason, be declared invalid by a court of competent jurisdiction, such determination shall not affect the validity of any remaining portion, and such remaining portion shall remain in full force and effect. This Agreement is governed by and construed in accordance with the laws of the State of Georgia without regard to its rules governing conflicts of law.
IN WITNESS WHEREOF, ListingWare and Member have caused this Agreement to be executed by their respective, duly authorized officers or representatives, effective as of the day of acceptance by Member.
By clicking on "PROCESS" button, Member thereby acknowledges that Member has read this Agreement and agrees to be bound by the terms and conditions of this Agreement as well as all policies and guidelines incorporated herein by reference.
