Please familiarize yourself with the terms of this Agreement. By accessing or using the Services, or signing a copy of this Agreement, you agree to be bound by the terms of this Agreement, which govern your use (and if applicable, if you are contracting on behalf of a business, that business’s use) of the Services. If you do not agree with any part of this Agreement, please notify us and suspend use of the Services right away.
Our Services are not for minors. By accessing the Services and/or creating an account with us or subscribing for specific Services, you represent and warrant to us you are at least 18 years of age (or older if 18 is not the age of majority where you reside). If you are using Services on behalf of a business, you represent and warrant to us, as a condition to accessing the Services, that you have full and complete authority to bind the business to comply with all of the terms of this Agreement.
We may modify, suspend or terminate Services, in whole or in part, change the terms of this Agreement from time to time, at any time, without prior notice. Any modifications to this Agreement shall be effective upon posting the updated version by us to our website(s), notifying you through the Services, or otherwise communicating the change to you. Your continued use of Services following any such changes signifies your consent to remain bound by the terms of this Agreement, as modified.
4. ACCOUNT REGISTRATION.
We may offer different types of accounts depending on how you use the Services or which specific Services you subscribe for (for example, based on your role as a real estate agent/broker, team member of such individual, or service provider or customer thereof, and reserve the right to limit which kind of account you qualify for based on how you would use and access the Services).
5. PROTECT YOUR ACCOUNT.
YOU ARE RESPONSIBLE FOR ALL ACTIVITY THROUGH YOUR ACCOUNT OR USING YOUR LOG- IN CREDENTIALS TO THE SERVICES, WHETHER OR NOT AUTHORIZED BY YOU. Secure your password and user name from unauthorized access. Notify us right away if you suspect any unauthorized access. You are legally responsible for all transactions initiated through your account. If you suspect that someone may have obtained access to your password, who is not intended to have authority to act on your behalf, please contact us. You understand and agree that we may require you to change your account password periodically for security purposes or require additional security measures for you to access your account.
6. USE OF SERVICES.
A. Lawful Purposes. You represent, warrant and covenant that you will not use the Services for any purpose that is unlawful under applicable laws that apply to you (including without limitation, advertising, marketing, privacy and consumer protection laws), or prohibited by this Agreement. You are also responsible to comply with all applicable license or industry standards that apply to you in your jurisdiction.
B. Limited Access Rights. We hereby grant you the limited right to access and use the Services only for the purposes of accessing, viewing, downloading, posting, and printing information from and to the Services for your personal and non-commercial use. You shall not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, broadcast, create derivative works from, transfer, or sell any information, software, products or services obtained from us via the Services, including, without limitation, any Multiple Listing Service (“MLS”) data, text, artwork, graphics, logos, button icons, images, audio clips, digital downloads, product and service descriptions, advertisements, directory information, and data compilations (collectively, “Content”). We reserve the right to suspend or deny, in our sole discretion, your access to all or any portion of the Services as described in Section 15 below. Any rights not expressly granted to you herein are reserved to us and our licensors.
C. No Reliance. The Services may include information, tips, facts, views, and opinions. ALL SUCH INFORMATION IS FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSIDERED AS PROFESSIONAL, LEGAL, TAX OR ACCOUNTING ADVICE. SUCH INFORMATION SHOULD NOT BE RELIED UPON FOR PERSONAL, MEDICAL, LEGAL, BUSINESS, FINANCIAL, OR OTHER DECISIONS WITHOUT INDEPENDENT VERIFICATION AND ANALYSIS. WE ARE NOT IN THE BUSINESS OF PROVIDING ANY SUCH ADVICE. WE DISCLAIM ANY AND ALL WARRANTIES RELATING TO SUCH INFORMATION, TIPS, FACTS, VIEWS OR OPINIONS. YOU RELY ON THEM AT YOUR OWN RISK.
D. Accuracy of Your Content. If you are a real estate agent or broker, in keeping with the trust characteristics of your profession, we depend on you to accurately identify and represent yourself when using the Services and use best efforts not to input inaccurate, false, incomplete or misleading information to the Services. You agree to update and correct any errors as soon as you become aware of them.
E. Hold Harmless. You will defend, indemnify and hold us and our members, managers, subsidiaries, affiliates, officers, employees, agents, and other partners harmless against any and all claims, damages, judgments, and expenses, including attorney’s fees, and litigation costs and expenses arising from your use of the Services other than as required or permitted under this Agreement.
F. Services Data. We reserve the right to collect usage statistics across users of our Services, regarding how the Services are used, to maintain, secure, improve and troubleshoot our offerings and for any other of our business purposes.
7. OUR COMMUNICATIONS WITH YOU
(TCPA Consent for United States Residents)
A. Your Express Consent to Us. By using the Services and submitting your contact information, you are providing your express written consent to receive Communications from Provider, from or through our Services or from users of our Services at the email address and telephone numbers you entered into your account registration or contact form, or that you later provide to us via your account or the Services. Such “Communications” may take the form of via live calls, automated or prerecorded emails, texts, or calls.
B. Emails, Texts and Calls. Communications may include Services updates, information about other products and services, and telemarketing messages, through the use of email, landline phone, cellular phone, and text messages (including sms and mms).
C. Automation. We, the Services or Real Estate Professional Users may contact you via live, automated or prerecorded email, text, or call. Your carrier’s standard rates and charges may apply.
D. Revoking Consent and Opting Out. Consent to receive texts is not a condition to access or purchase Services and you may revoke this consent by contacting us at [[email protected]] or responding STOP to texts. Texting STOP back to us is the quickest way to stop text Communications. You consent to receive a final text message confirming your opt-out. You may unsubscribe from marketing or commercial emails within the email itself. Please allow up to 10 days for the email unsubscribe to take effect. Unsubscribing from marketing emails does not limit our ability to communicate with you by email regarding our present or past business relationship with you, as a user of Services.
8. ADVERTISEMENTS AND LINKS TO OTHER SITES.
9. AGENT AND BROKER DIRECTORY.
As a feature of the Services, for users’ convenience, we may optionally provide a directory of real estate agents and brokers from among our users based on the last contact information we have for them in our records. We do not represent or warrant that all directory information is accurate or complete, that all errors therein will be corrected, or updated in a timely manner. By using the Services, a user authorizes us to include their contact and profile information (as current in their account with us) in the directory unless the user notifies us in writing of their desire to opt out, which would be given effect as feasible by us. The directory is not an endorsement of a specific agent or broker, their reputation, experience or expertise. Anyone seeking to work with a specific broker or agent is solely responsible for conducting their own due diligence on the broker or agent. We shall not be liable for any use or misuse of the directory.
10. INTELLECTUAL PROPERTY PROTECTION.
As between you and us, we and our licensors own our websites, intellectual property rights, and content and information displayed via the Services, including, without limitation, third-party owned or supplied data like MLS data, text, artwork, graphics, logos, button icons, images, audio clips, digital downloads, prices, product and service descriptions, advertisements, directory information, and data compilations (collectively, “Content”). Content is protected by U.S. and international trademark, copyright, and other intellectual property laws. You do not gain any ownership in Content merely by accessing or using Content. You shall not copy, distribute, alter, display, perform, publish, or create derivative works from such Content. Systematic retrieval of data or other Content from the Services to prepare any collection, compilation, database, or directory is strictly prohibited.
Listingbook, Listingbook.com, ELEVATE, RLS2000, AgentJet, eMerge, VoicePad, IDX Broker, OutboundEngine, Aiva/AivaChat are among trademarks, service marks and tradenames (“Marks”) we own. You do not receive a license to use our Marks under this Agreement. You may not use our Marks as part of your tradename, trademarks, service marks, logo, or as part of a domain name or social media handle. You may not seek a trademark registration for our Marks or any marks that are substantially similar. We reserve all rights to oppose any such attempt.
You acknowledge and agree that the MLS, which supplies certain data and images used in the Services, owns all copyrights in and to such data and images and in the MLS database, and that you will not contest the MLS copyright interests therein, nor assist others in doing so. You expressly authorize the MLS, which supplies certain data and images used in the Services, and its authorized agents and representatives, to access the Services , including your user account, for the purpose of verifying users’ compliance with the MLS rules and monitoring the display of agents’ listings on the Services.
EXCEPT FOR YOUR LIMITED RIGHT TO USE SERVICES AS SET FORTH HEREIN, YOU DO NOT GAIN ANY INTEREST, BY IMPLICATION, ESTOPPEL, OR OTHERWISE, OWNERSHIP, LICENSE OR RIGHT UNDER OR IN ANY PATENT, TRADEMARK, COPYRIGHT, OR OTHER PROPRIETARY RIGHTS OF OURS IN THE SERVICES.
11. USER SUBMISSIONS.
Content you create yourself, as your original creation, that you post, upload, input or submit in connection with your use of the Services (your “Submissions”) is owned by you, but you hereby grant us a royalty-free, fully paid up, perpetual, irrevocable world-wide license to use (including, without limitation, the rights to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate, sublicense and reformat your Submissions, and to publish your name in connection with your Submissions) your Submissions in connection with the operation and promotion of the Services. You may not include any improper content in your Submissions that would infringe, misappropriate or violate any third party’s intellectual property, proprietary, privacy or publicity rights, and will indemnify, defend and hold us and our officers, directors, managers, members, employees, agents and partners harmless from any third party claims, damages, or judgments, including attorneys fees and litigation costs and expenses related to a breach of this sentence. Additionally, no Submissions may contain content that, in our sole discretion, is illegal, or promotes racism, bigotry, hatred, violence, illegal activity or physical harm, death or property damage, against any group or individual; harasses or advocate harassment of another person; exploits people in a sexual or violent manner; contains obscene, pornographic, or offensive subject; is false or misleading, defamatory or libelous; or otherwise fails to keep with the good image of us and our offerings. We reserve the right, but are not required to monitor Submissions for compliance with the terms of this Agreement. You rely on Submissions from other users at your own risk and subject to the need to do your own due diligence on any information or materials you review or use.
12. DISCLAIMER OF WARRANTIES.
Provider does not represent, guarantee or warrant that the information available on, in or through the Services (“Content”) is accurate, complete, timely, or free of technical or typographical errors whether provided by Provider or a third party. It is your responsibility to verify any information accessible to you through the Services. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF SUCH IS AT YOUR SOLE RISK. THE CONTENT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. PROVIDER, ANY MLS, AGENT AND BROKER EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT. NONE OF PROVIDER, ANY MLS, OR ANY AGENT OR BROKER MAKE ANY WARRANTY THAT THE CONTENT WILL MEET YOUR REQUIREMENTS, OR THAT ACCESS TO THE SERVICES AND THE CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE, ACCURATE, VIRUS- FREE OR ERROR FREE; OR THAT YOU WILL OBTAIN ANY SPECIFIC RESULTS FROM REVIEWING OR USING CONTENT. WE DO NOT ENDORSE, CERTIFY OR INDEPENDENTLY INVESTIGATE ANY AGENT OR BROKER; YOU ARE RESPONSIBLE FOR REVIEWING LICENSURE, CREDENTIALS, AND EXPERIENCE OF ANYONE YOU CHOOSE TO WORK WITH.
13. LIMITATION OF LIABILITY.
YOU AGREE THAT NONE OF PROVIDER, ANY MLS, AGENT, BROKER OR PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES SHALL BE RESPONSIBLE OR LIABLE FOR ANY DIRECT, INDIRECT, STATUTORY, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES WHATSOEVER ARISING OUT OF YOUR ACCESS, USE, MISUSE OR INABILITY TO USE THE SERVICES, LOSS OF DATA OR BUSINESS, DAMAGE TO A DEVICE USED TO ACCESS THE SERVICES, OR THE CONSEQUENCES OF ANY ACTION YOU OR ANY OTHER PERSON TAKE OR FAIL TO TAKE BASED ON CONTENT PROVIDED BY OR AS A RESULT OF THE USE OF THE SERVICES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE LIABILITY OF PROVIDER AND ITS SUPPLIERS AND LICENSORS TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO PROVIDER FOR THE ACCESS TO AND USE OF THE SERVICES IN THE 12 MONTHS PRECEDING THE CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
You agree that regardless of any statute or law to the contrary, you will file any claim or cause of action arising out of or related to your use of the Services or this Agreement within one (1) year after such claim or cause of action arose or be forever barred.
As a condition to being permitted to access the Services, you agree to defend, indemnify and hold harmless Provider, and its subsidiaries, affiliates, officers, managers, members, employees, agents, and other partners against any and all claims, damages, judgments, and expenses, including attorney’s fees and litigation costs and expenses, arising from your use of the Services, breach of this Agreement, or breach of any third party’s rights. This and any other duty of indemnification set forth herein shall survive any termination of your account or use of the Services.
15. TERMINATION OF WEBSITE ACCESS AND ACCOUNT.
Provider in its sole discretion, may terminate your account and any corresponding subscriptions, delete any content stored in your account, direct you to cease using the Services, and discontinue or restrict your access to the Services, all without notice to you and for any reason. If your access to the services is through your agent, employer or a principal, that party may also suspend or terminate your access to the Services and Provider has no control over their doing so. Provider has no liability for your in ability to use the Services, in whole or in part, for any period of time, or for any modification thereto, or discontinuation thereof.
In addition, provider will periodically from time to time delete old, expired, or unused content, data, or articles (images, videos, voice assets, websites, or other) in use or in storage from dormant, expired, unpaid, or former accounts. Provider may choose to provide reasonable notice, if possible, but also reserves the right to delete customer, account, profile, or other data without notice.
Provider has the right to monitor, throttle, take down, and/or delete content, websites, and data that constitute a potential security risk at any time.
16. PRICING, RENEWALS, AND REFUNDS; NO EARLY TERMINATION.
Subscription Terms. Services are offered on an annual subscription basis. Your initial subscription will automatically renew on your annual renewal date unless you provide us with your written notice to cancel at least thirty (30) days prior to your annual renewal date. Send written notice of cancellation to [email protected]. Your subscription will renew monthly on your annual renewal date at the then current, non-promotional subscription rate. All renewal pricing is based upon our then current price schedule, which we may change from time to time in our discretion. We reserve the right to raise our rates annually without notice to you, even if the increase applies mid-term. No early termination is permitted. No fees are refundable except to the extent otherwise provided.
Payments. Payments may be paid in a single annual payment at the time of sale or by equal monthly installments beginning at the time of sale, as offered by Provider. Annual prepayments may be eligible for discounted pricing. If, at renewal, Customer wishes to pay monthly, all discounts will be lost. Renewals will be billed on the same cadence as the initial sale. We invest heavily in the initial set-up, maintenance, and ongoing development of Services you purchase and cancellation is limited to electing not to renew (rather than terminating early) and subject to forfeiture of any prepaid fees.
Upgrades/Downgrades/Addons. Customers are eligible to downgrade and/or remove addon’s after a period of six months. Any addon’s elected by Customer must be elected for a minimum of six (6) months. Please note that changes to subscription could result in the loss of discounts and/or change pricing.
MLS Data. An MLS (Board of Realtors, or Association of Realtors) may require vendors like Provider to pay data access fees and/or pass-through additional setup or recurring data fees. To cover the cost, we charge "MLS Pass-Thru Fees" (eg. Data Management Fee, Data Connection Fee, MLS Setup Fee) that gets passed through to customers who use those feeds. If our fee to access the MLS increases in the middle of your subscription term, we reserve the right to pass on the increase to our users notwithstanding anything to the contrary in this Agreement, as a condition to the user’s ongoing access to the MLS content.
Termination for Non-Payment. If Customer defaults in the payment of any charges or other amounts due under this Agreement and fails to cure such default within ten days after receiving written notice specifying such default, then Company may terminate Service without notice.
For billing inquiries, contact [email protected].
17. CREDIT CARD CHARGES.
18. AGREEMENT TO ARBITRATE.
A. Arbitration. You and Provider each agree that any and all disputes or claims that relate to or arise from your use of or access to the Services, or any products or services sold, offered, or purchased through the Services shall be resolved exclusively through final and binding arbitration, rather than in court, except that Provider reserves the right to seek an injunction and any other available relief in a court of competent jurisdiction to protect its intellectual property rights. The Federal Arbitration Act governs the interpretation and enforcement of this Section 18, which is an agreement to arbitrate. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability or formation of this Section 18, any part of it, or of this Agreement including, but not limited to, any claim that all or any part of this Section 18 is void or voidable. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Supplementary Procedures for Consumer- Related Disputes (as applicable), as modified by this Agreement to Arbitrate. The AAA’s rules and a form for initiating arbitration proceedings is available on the AAA’s site at http://www.adr.org. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Provider may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and us subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. Attendance at an in- person hearing may be made by telephone or video conference by you and/or us, unless the arbitrator requires otherwise. The arbitrator will decide the substance of all claims in accordance with the laws of the State of North Carolina, USA, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving our other users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. This arbitration provision shall survive termination of this Agreement and the closing of your account or your use of or access to our Services, or any products or services sold, offered, or purchased through our Services. Each party will bear its own costs on connection with the arbitration proceeding.
B. No Class Action. You agree that any claims against us shall be on an individual only basis (for yourself) and not as a plaintiff or class member in any purported class or representative action or proceeding. You hereby waive the right to bring any claims against us in relation to this Agreement or the Services as part of a class action.
C. Confidentiality. The arbitration proceedings and arbitration award shall be maintained by the parties as strictly confidential, except as is otherwise required by court order or as is necessary to confirm, vacate or enforce the award and for disclosure in confidence to the parties’ respective attorneys, tax advisors and senior management and to family members of a party who is an individual.
D. Severability. With the exception of Section 18(B) (No Class Action), if an arbitrator or court decides that any part of this Section 18 is invalid or unenforceable, the other parts of this Section 18 shall still apply. If an arbitrator or court decides that Section 18(B) is invalid or unenforceable, then the entirety of this Section 18 shall be null and void. In any event, this Agreement shall be governed by the laws of the State of North Carolina, USA, without giving effect to its conflicts of laws principles even if the rest of Section 18 were determined null and void.
A. Assignment. This Agreement shall bind and inure to the benefit of Provider’s successors, assigns and licensees. Provider shall have the right to assign or otherwise transfer its rights or obligations under this Agreement whether by contract or operation of law without your consent. You do not have the right to assign, by contract, operation of law or otherwise, this Agreement or any of the rights, interests, or obligations hereunder.
B. Severability. Subject to Section 18(D) above, in the event that any provision of this Agreement is, becomes, or is declared by a court of competent jurisdiction to be illegal, unenforceable, or void, this Agreement shall continue in full force and effect without such provision.
C. Waiver. The failure of Provider at any time or times to require performance of any provision hereof shall in no manner affect the right of Provider at a later time to enforce the same.
D. Applicable Law. You acknowledge that the Content contained in this Services is controlled in and originates from the United States. Provider makes no representation that any of the Content is appropriate or available for use in other locations. Provider has no responsibility for any access to this Services from territories where the Content may be illegal or otherwise prohibited. If you choose to access this Services from other locations, you do so at your own risk and are responsible for compliance with applicable local laws. Any claim relating to the use of the Services and any Content shall be governed by the internal substantive laws of the State of Texas , without regard to its conflicts of laws rules. You expressly consent to the jurisdiction of the state and federal courts of North Carolina for any claim that is determined not to be subject to the agreement to arbitrate in Section 18, including interpretation of the applicability of Section 18.
E. Entire Agreement. This Agreement, together with Provider’s order(s), constitutes the entire agreement between you and Provider regarding Services and the subject matter of this Agreement. You may not supplement, vary or modify any order; all changes to an order must be made and approved by Provider. No terms in your acceptance or other documentation or correspondence with Provider shall modify the order and all such different or supplemental terms outside an order are null and void. In the event of a conflict between the terms of this Agreement and the order, the terms of this Agreement will prevail, provided the order shall be conclusive on pricing, length or subscription term and specific Services subscribed. Your use of the Services is subject to Provider’s user guidelines for use of the same, as updated from time to time, and nothing in this Agreement changes the requirement to abide by the same.
F. Amendments. Provider may amend or modify the terms of this Agreement across its user base, unilaterally, and any such changes, modifications or amendments to this Agreement shall apply to you by the next January 1 of the next calendar year unless the change states an earlier effective date. Notification of changes may be made by email to you (to your email address of record in your account) or by posting notice of the change to the Services. Any use of the Services following the effective date of the change shall be deemed to constitute your acceptance of such amendments, modifications, or new conditions. This Agreement cannot otherwise be amended except by a written amendment signed by Provider and by you.
G. Notices. Notices in connection with this Agreement to Provider shall be given to Provider by postal mail to: Elm Street Technology, LLC, 950 E State Highway 114, Suite 160, Southlake, TX 76092 USA, or as to a successor address that Provider makes available on the Services or through any other reasonable manner. If applicable law requires Provider to accept email notices (but not otherwise), then you may send Provider email notice to [email protected]. With respect to Provider notices to you, Provider may provide notice by posting in the Services or through any other reasonable manner. Instead or in addition, Provider may give notice by sending an email to the email address that you provide in your account. Notice shall be deemed given upon receipt when mailed, 24 hours after it is posted or an email is sent, unless (as to email) the sending party is notified that the email address is invalid or the message was not delivered.
H. Descriptive Headings. Section headings of this Agreement are intended for convenience of reference only and are not intended to be a part of or affect the meaning or interpretation of this Agreement.
20. THIRD PARTY SOCIAL MEDIA SERVICES.
I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.
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