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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 fees 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.
IA
offers its Users packaged Services as well
as certain add-on Services either included
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”). All users must be licensed
real estate professionals. The License
shall be granted to one User only and cannot
be shared by multiple people.
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 as described in section
Recitals A., above (“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. Even if
You are not required to pay a Fee for the
use of the Services, You agree to and shall
still be bound by the terms of this
Agreement; a non-paying User is called a
Free User (“Free User”). Free Users shall
include, but not be limited to, any
non-paying advertisers, non-paying sponsors,
non-paying transaction coordinators, free
website users, and users registering under
certain promotions. If a user is both a
Paying User for some Services and a Free
User for other Services, then IA shall treat
the User as a Paying User for the paid
Services and as a Free User for the unpaid
Services.
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 User”).
2.2 Notice of Change of Fees.
IA
shall provide Paying and Free Users at least
15 calendar days written notice of any Fee
change prior to the automatic renewal date
of the Paying User’s or Free User’s Service.
Any change in a Fee shall not affect a
Paying User’s License until the Automatic
Renewal, but a Fee change may affect a Free
Users right to continue with the free
service immediately.
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
SERVICE
3.1 Term.
3.1.1 Free User Term.
If
You are a Free User, Your License shall
begin when You first log into the Services.
You 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 Term.
If
You are a Paying User, Your License shall
begin upon IA’s receipt of Your payment for
the Services. A Paying User's License shall
automatically terminate if payment for
Services is outstanding. A Paying User's
Fees shall renew automatically for a new
Term unless the Paying User cancels the
Service 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 billing cycle
(“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 billing
cycle. 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; 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; No Sharing
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. The
License shall be granted to individual,
licensed real estate professionals only;
Users shall not share the Services,
including without limitation with other
members of a team, a spouse, a family
member, a colleague.
4.4 Unlimited Promotion Fax and Voice Services
Limitations
Accounts are for one (1) active licensed
real estate agent only. Accounts cannot be
shared. Incoming calls into the call capture
system are unlimited. Outbound forwarding
calls longer than 2 minutes are subject to 5
cents a minute rate. The fax service cannot
be used as a scanner.
4.5. Account Review
IA
reserves the unconditional right to access
and review each User’s account to determine
whether the License has been breached.
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.
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