Industry Access Incorporated End User License Agreement

Industry Access Incorporated
End User License Agreement

The Industry Access Incorporated End User License Agreement (“Agreement” or “EULA”) is entered into by and between Industry Access Incorporated (“IA”) and each user of its services (“You” or “User”) effective as of the moment You indicate You agree to its terms by submitting the Agreement electronically to IA through IA’s web site.

Recitals

A.   IA provides a variety of tools and services for real estate and real estate finance professionals as well as for their clients (“Services”). Your use of the Services shall be subject to this Agreement, which may be modified by IA from time to time in accordance with the Agreement. In addition, when using the Services, You shall be subject to any guidelines, rules, policies, and pricing that may be sent via email to Users or that are posted from time to time in various sections of IA’s web sites, including without limitation the homepages, the billing forms, the frequently asked questions sections, the technical support sections, and the customer support sections (“Posted Rules”). The Posted Rules are hereby agreed to by the parties and incorporated into the Agreement by reference

B. You wish to use the Services, and IA is willing to provide such Services on the terms and conditions set forth below.

NOW, THEREFORE, in consideration of the foregoing, the mutual promises, covenants, representations, and warranties set forth below, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, IA and You agree to the terms of this Agreement.

1. DESCRIPTION OF SERVICE AND LICENSE
1.1 Description of Services.

1.1.1 Front-End Websites: IA offers its Users front-end websites with features and pricing as described in the Posted Rules.

1.1.2 Back-End Transaction Management Systems: IA offers its Users back-end transaction management systems with features and pricing as described in the Posted Rules.

1.1.3 Fax and Phone Systems: IA offers its Users fax and phone systems with features and pricing as described in the Posted Rules.

1.1.4 Virtual Tour Websites:  IA offers its Users virtual tour websites with features and pricing as described in the Posted Rules.

1.1.5 Domain Name Management Services:  IA offers its Users domain name management services with features and pricing as described in the Posted Rules.

1.1.6 Virtual Office Builder and Other Services:  IA offers its Users packaged Services as well as certain add-on Services either including as part of its Virtual Office Builder, or as some other Service that may be added to a package or as an independent Service from time to time.

1.2 Modifications to Services. IA reserves the right to modify any part of the Services from time to time; however, if a change to the Services has a material adverse effect on the functionality of the Services, You may terminate the Agreement without penalty only if IA fails to correct the adverse effect within fifteen (15) business days after Your written notice to IA of such adverse effect (“Correction Period”) and only if You terminate the Agreement during the thirty (30) days following the end of the Correction Period.

1.3 Grant of License. Subject to the Agreement, IA grants to You a limited, non-exclusive, non-transferable, personal license during the term of the Agreement to access the Services as described herein and in the Posted Rules (“License”).

2. PAYMENT FOR USE OF SERVICES
2.1 Fees.
 

2.1.1 Posted Rules and Fees. IA shall prominently display all user fees in the Posted Rules (“Fees”), which may be modified from time to time at IA’s sole discretion. IA reserves the right in its sole discretion to immediately suspend or terminate a License for non-payment of any Fees.

2.1.2 Free Users. Not all Users shall be required to pay a Fee as determined in the Posted Rules. If You are not required to pay a Fee for the use of the Services, You agree to and shall be bound by the terms of this Agreement; a non-paying User is called a Free User.

2.1.3 Paying Users.  Any User who pays IA a Fee for any part or for all Services is called a Paying User. Paying Users include without limitation a User who pays for only for fax or voice Services, a User who pays for a periodic subscription (“Periodic Subscription”),  or a User who pays for any other Services offering made by IA.

2.2 Notice of Change of Fees. IA shall provide Paying Users of a Periodic Subscription at least thirty (30) days written notice of any Fee change prior to the automatic renewal date of the Periodic Subscription. Any change in a Periodic Subscription Fee shall not affect Your License until the Automatic Renewal and only if IA gives You proper Notice of Change of Fees as set forth in Section 2.2, above.

2.3 Taxes. All Fees and all other amounts payable to IA hereunder are net amounts to be received by IA, exclusive of all taxes, duties, and assessments, and are not subject to offset or reduction because of any costs, expenses, taxes, duties, withholdings, assessments or liabilities incurred by You or imposed on IA in the performance of this Agreement or otherwise due as a result of this Agreement. You shall be responsible for and shall pay directly, all taxes, duties and charges of whatever kind incurred, including without limitation all sales and use taxes, in the performance of this Agreement.
 

3. TERM, TERMINATION, AND CANCELLATION OF SUBSCRIPTION

3.1 Term.

3.1.1 Free User.  If You are a Free User, Your License shall begin when You first log into the Services and agree to and acknowledge acceptance of the terms of this Agreement.   IA may terminate a Free User’s License at anytime without prior written notice.

3.1.2 Paying User.   If You are a Paying User,, Your License shall begin upon IA’s receipt of Your payment for the Services, agree to, and acknowledge acceptance of the terms of this Agreement.  A Paying User's License shall terminate if payment for Services is outstanding.   

3.1.3  Periodic Subscription Fee Users.  A Paying User's Periodic Subscription shall renew automatically for a new Term unless the Paying User cancels the Periodic Subscription by  providing IA a written cancellation notice  at least two (2) calendar days before 5:00pm Pacific Standard Time of the last day of the month (“Automatic Renewal”).  If there is an  Automatic Renewal, IA will automatically charge he Paying User's credit card on or around the first day of the next Subscription Period.  To ensure that proper cancellation notice is received, the Paying User should use the Contact Us form found on the IA homepage.

3.2 Termination for Breach. IA shall have the right to terminate this Agreement immediately without any refund of payments of Fees if You breach any material term or condition of this Agreement. You shall have the right to terminate this Agreement if IA breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after Your written notice of the breach to IA.
 

3.3 Effect of Termination. Notwithstanding any expiration or termination of this Agreement, the provisions which by their terms are intended to survive expiration or termination shall continue in full force and effect. Neither party shall be liable to the other for any termination or expiration of this Agreement in accordance with its terms; provided, however, that You will remain liable for all applicable Fees and other charges accrued hereunder prior to such expiration or termination.

4. USER REPRESENTATIONS AND WARRANTIES
4.1 User Name, Password, and Security. You shall be responsible for maintaining the confidentiality of Your user name and password, and account information, and You shall be responsible for all activities that occur under Your user name and password, or account. You agree to notify IA immediately of any unauthorized use of Your user name and password or account or any other breach of security.

4.2 User Conduct and Compliance with Law. You understand that all information, data, text, information, graphics, news, software, or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that You, and not IA, is entirely responsible for all Content that You upload, post, email or otherwise transmit via the Services. IA does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will IA be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed or otherwise transmitted via the Services.  The following sets forth without limitation a list of prohibited conduct.

You agree not to use the Service to:

a. upload, post, email or otherwise transmit any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;

b. impersonate any person or entity, including, but not limited to an IA official, or falsely state or otherwise misrepresent Your affiliation with a person or entity;

c. forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services;

d. upload, post, email or otherwise transmit any Content that You do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of
employment relationships or under nondisclosure agreements);

e. upload, post, email or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;

f. upload, post, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

g. interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;

h. intentionally or unintentionally violate any applicable local, state, national or international law, and any regulations having the force of law;

4.3 No Reselling of Service. You shall not reproduce, rebroadcast, duplicate, copy, sell, resell, or exploit, any portion of, use of, or access to the Services for any commercial purposes.

5. PROPRIETARY RIGHTS

5.1 Ownership and Use of Trademarks. IA’s trademarks, trade names, service marks, trade dress, logos, other names and marks, and related product and service names, design marks and slogans (collectively, the “IA”s Marks”) are the sole and exclusive property of IA. You shall not to display or use any of the IA’s Marks in any manner without IA’s express prior written consent.

5.2 Ownership of IA Services, Copyrights, and Patents.

(a) The content, organization, graphics, design, compilation, magnetic translation, digital conversion and all other aspects of the Services, and all documentation relating thereto, are the property of IA and/or its licensors and all right, title and interest in and to such property shall remain with IA and/or its licensors, both during the term of and after any expiration or termination of this Agreement. You agree and acknowledge that IA and/or its licensors have or will have copyright, patent, trade secret and other intellectual property rights in the Services and the documentation relating thereto, and that all such copyright, patent, trade secret and other intellectual property rights shall remain the exclusive property of IA and/or its licensors at all times.

(b) YOU AGREE THAT YOU SHALL NOT, IN WHOLE OR IN PART, AT ANY TIME DURING THE TERM OF OR AFTER ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT: (i) SELL, ASSIGN, SUBLICENSE, LEASE, RENT, TIMESHARE, GRANT A SECURITY INTEREST IN, DISTRIBUTE OR OTHERWISE TRANSFER YOUR LICENSE IN THE SERVICES, OR ANY DOCUMENTATION RELATING THERETO; (ii) COPY, REPRODUCE, RETRANSMIT, DISSEMINATE, SELL, DISTRIBUTE, PUBLISH, BROADCAST, CIRCULATE, COMMERCIALLY EXPLOIT OR CREATE DERIVATIVE WORKS BASED ON THE SERVICE OR ANY SUCH DOCUMENTATION; OR (iii) ALLOW ANY PERSON OR ENTITY TO DO ANY OF THE ACTS DESCRIBED IN (i) THROUGH (ii) ABOVE.

6. DISCLAIMER OF IA WARRANTIES

6.1 Limited Warranty. IA represents and warrants to You that the Services to be provided by IA hereunder will be performed in a manner consistent with industry standards reasonably applicable to the performance thereof.
 

6.2 Disclaimer of Warranties. YOU EXPRESSLY UNDERSTAND AND AGREE AS FOLLOWS:

(a) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 6.1 ABOVE, IA EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY SERVICE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, EVEN IF IA HAS BEEN INFORMED OF SUCH PURPOSE. YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NO AGENT OF IA IS AUTHORIZED TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS OF IA AS EXPRESSLY SET FORTH HEREIN.
 

(b) IA MAKES NO WARRANTY THAT (i) THE SERVICES WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, OR (iv) ANY ERRORS IN THE SERVICE WILL BE CORRECTED.
 

(c) NO ACCOUNTING, FINANCIAL, LEGAL OR TAX ADVICE OR COUNSEL IS GIVEN, OR SHALL BE DEEMED TO HAVE BEEN GIVEN, BY THE SERVICES.

7. LIMITATION OF LIABILITY

7.1 Exclusion of Consequential Damages. IN NO EVENT SHALL IA OR ITS LICENSORS OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, REVENUE, GOODWILL, DATA, OR USE, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION), OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES INCURRED BY YOU OR ANY THIRD PARTY, IN ANY WAY RELATING TO THE AGREEMENT OR RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICES, OR THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES, INCLUDING THE FAILURE OF ESSENTIAL PURPOSE, EVEN IF IA HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.

7.2 Limitation of Liability and Force Majeure. IN NO EVENT SHALL IA’S AGGREGATE LIABILITY FOR ALL DAMAGES TO YOU AND ANY THIRD PARTIES EXCEED THE AMOUNT OF SERVICE FEES PAID HEREUNDER BY YOU TO IA DURING THE PRECEDING TWELVE (12) MONTHS. IN ADDITION, IA SHALL NOT BE LIABLE FOR ANY LOSS RESULTING FROM A CAUSE OVER WHICH IA DOES NOT HAVE DIRECT CONTROL, INCLUDING WITHOUT LIMITATION FAILURE OF ELECTRONIC OR MECHANICAL EQUIPMENT OR COMMUNICATION LINES; TELEPHONE, CABLE, OR OTHER INTERCONNECT PROBLEMS; BUGS, ERRORS, CONFIGURATION PROBLEMS OR INCOMPATIBILITY OF COMPUTER HARDWARE OR SOFTWARE; FAILURE OR UNAVAILABILITY OF INTERNET ACCESS; PROBLEMS WITH INTERNET SERVICE PROVIDERS OR OTHER EQUIPMENT OR SERVICES RELATING TO YOUR OR IA COMPUTERS; PROBLEMS WITH INTERMEDIATE COMPUTER OR COMMUNICATIONS NETWORKS OR FACILITIES; PROBLEMS WITH DATA TRANSMISSION FACILITIES OR YOUR OR IA TELEPHONES OR TELEPHONE SERVICE; OR UNAUTHORIZED ACCESS, THEFT, OPERATOR ERRORS, SEVERE WEATHER, EARTHQUAKES, REGULATORY BODY CHANGES, CHANGES IN LAWS, LABOR DISPUTES, ACTS OF TERRORISM, OR ACTS OF GOD. IA IS NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTERS, SOFTWARE, MODEMS, TELEPHONES OR OTHER PROPERTY RESULTING FROM USE OF THE SERVICES.

7.3 Applicability of Limitations. The limitations contained in this Section 7 shall apply to all causes of action in the aggregate, whether based in contract, warranty, tort or any other legal theory (including strict liability).

8. INDEMNIFICATION

You shall defend, indemnify and hold harmless IA, its officers, directors, employees, shareholders, agents and representatives, from and against all claims, losses, causes of action, liability, damages, costs and expenses (including without limitation reasonable attorneys’ fees, costs and expenses) relating to, arising from, or in connection with Your breach or violation of this Agreement (“Claims”), state or federal banking, lending or securities laws and regulations, state or federal real estate laws and regulations, or any third party’s rights, including without limitation infringement of any copyright, violation of any proprietary right or invasion of any privacy rights. Your obligations set forth in this Section 8 shall survive any expiration or termination of the Agreement.

9. ELECTRONIC COMMUNICATIONS REQUIREMENT AND NOTICES

You shall be responsible for all electronic communications, including account registration and other account holder information, e-mail and financial, accounting and other data ("Electronic Communications"), if any, entered through or under Your access numbers, user name and passwords or account numbers (“Identifications”). IA will act as though any Electronic Communications it receives under Your Identifications will have been sent by You. You agree to notify IA immediately if You become aware of any loss, theft, or unauthorized use of any of Your Identifications. IA may allow You to send Electronic Communications directly to IA and interact within applicable areas of the Services. You acknowledge and agree to the following with respect to use of Electronic Communications through the Services:
 

9.1 Review and Retention. IA shall be entitled, but is not obligated, to review or retain Your Electronic Communications for Your compliance with this Agreement and the security of the Services. IA may also review or retain Electronic Communications for other reasons, which IA believes in good faith will improve the quality of the Services.
 

9.2 Disclosure. IA may disclose Electronic Communications if required to by law or in the good faith belief that such disclosure is reasonably necessary to: (i) comply with legal processes; (ii) enforce this Agreement; (iii) respond to claims that any Electronic Communications violate the rights of third parties; or (iv) protect the rights, property, or personal safety of IA, its users, or others.
 

9.3 E-Mail Address. You agree to provide IA with Your accurate e-mail address, promptly provide IA with any changes to Your e-mail address and accept Electronic Communications from IA at the e-mail address specified by You.
 

9.4 Electronic Notices. You agree that IA may provide notices, statements and other communications to you solely through e-mail or posting through the Services.
 

9.5 Technical Requirements. You understand that the technical processing and transmission of the Services, including your Electronic Communications, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
 

9.6 Public Nature of Electronic Communications. You agree that all Electronic Communications through the Services are public and not private communications, and IA reserves the right to remove such communications for any reason.

10. GENERAL MATTERS

10.1 Entire Agreement. This Agreement sets forth the entire understanding of the parties, supersedes all prior and contemporaneous Agreements between the parties relating to the subject matter contained herein, and merges all prior and contemporaneous discussions, Agreements and understandings, both oral and written, between them regarding such subject matter. Except as otherwise provided herein, such changes to the Posted Rules, no modifications, additions, or amendments to this Agreement shall be effective unless set forth in a writing referencing this Agreement and signed by a duly authorized representative of the party to be bound thereby. All provisions of this Agreement shall take precedence over any conflicting terms and conditions of any purchase orders, invoices or other instruments that may be issued by either party, unless otherwise agreed by both parties in writing.

10.2 Publicity. You hereby consent to IA’s reference to You by name in any promotional or marketing material and in any IA customer list, including on IA’s web sites and including any of Your trademark(s) or trade name(s), without the prior disclosure to or approval by You, but provided that such use is subject to IA’s compliance with Your reasonable guidelines for trademark usage.

10.3 Notices. Every notice or other communication required or contemplated by this Agreement shall be in writing as set forth in Section 9, above.
 

10.4 Governing Law and Venue. The validity, construction and enforceability of this Agreement shall be governed in all respects by the laws of California without regard to its conflicts of laws rules, regardless of whether one or more of the parties shall now be or hereafter becomes a resident of another state or country. Each party agrees that any proceeding arising out of or relating to this Agreement or the breach or threatened breach of this Agreement shall be commenced and prosecuted exclusively in  or federal court located in the City of Los Angeles, State of California. Each party hereby waives trial by jury in any such proceeding.

10.5 No Waiver of Rights. All waivers hereunder must be made in writing, and failure at any time to require the other party’s performance of any obligation under this Agreement shall not affect the right subsequently to require performance of that obligation. Any waiver of any breach of any provision of this Agreement shall not be construed as a waiver of any continuing or succeeding breach of such provision or a waiver or modification of the provision.
 

10.6 Attorneys’ Fees. If any action or proceeding shall be commenced to enforce or interpret this Agreement or any right arising in connection with this Agreement the prevailing party in such action or proceeding shall not be entitled to recover from the other party, any attorneys’ fees, costs and expenses incurred by such prevailing party in connection with such action or proceeding and any negotiations to avoid such action or proceeding. Each party shall be responsible for its own attorneys’ fees, costs, and expenses, except for expenses, costs and attorneys’ fees due IA under Section 8 if IA must act to protect itself against any Claim.
 

10.7 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law; but if any provision of this Agreement is determined by a court of applicable jurisdiction to be prohibited or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, so that the remainder of that provision and all remaining provisions of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law.
 

10.8 Assignment. Except as otherwise expressly provided hereunder, neither this Agreement nor any rights or obligations hereunder may be assigned in whole or in part by either party without the prior written consent of the other party, except that the rights and obligations of IA may be transferred or assigned to another entity in connection with a reorganization, merger, consolidation, acquisition or other restructuring involving all or substantially all of its voting securities and/or assets. Subject to the limitations of the preceding sentence, this Agreement shall be binding on, and shall inure to the benefit of, the parties to it and their respective successors and assigns.
 

10.9  Headings. The subject headings of the each Section of the Agreement and other subdivisions of this Agreement are included for the purposes of convenience only, and shall not affect the construction or interpretation of any of its provisions.
 

10.10 Electronic Execution of Agreement. This Agreement shall be deemed agreed to and executed by the parties upon Your electronic submission of the Agreement through IA’s web site.