Last updated: Dec 1, 2015
1. These Terms
This is a legally binding agreement The terms "you" and "your" refer to an individual registering with or accessing the Service. You represent that you have the full right, power, and authority to enter into and perform these Terms without the consent of any third party.
We may, in our sole discretion, amend these Terms from time to time upon notice. Your continued use of the Service after any such change constitutes your acceptance of the amended Agreement. If you do not agree to any portion of these Terms at any time, you must cease your access and use of the Service.
2. Use of the Service
A. Accounts. You may register, maintain, and create an Account for the Service. You are responsible and liable for all activities conducted in connection with your Account, and the accuracy of all information relating thereto, including contact, technical and payment information, and your login credentials. You will promptly (i) update any Account information when it changes, and (ii) notify us of any unauthorized use of your Account, including any security or data breach. You may only connect to the Service through your Account and in accordance with our access procedures. You will not allow an Account to be shared or used by more than one individual. By providing us with your email address you consent to us sending you Service-related notices. You must be eighteen (18) years of age or older to use the Service.
(i) use the Service in violation of any third party license or agreement;
(ii) use the Service to collect, process, or store bank account information, credit or debit card information, personally identifiable information pertaining to children under 13, or health or medical information (including 'Protected Health Information' as defined in the Health Insurance Portability and Accountability Act of 1996);
(iii) sublicense, sell, transfer, assign, distribute, republish, rent, lease or transmit in any form or by any means any part of the Service;
(iv) use, modify, copy, or create derivative works from the Service or Marks without the applicable owner's written permission, including without limitation using automated or manual means to access copy content from the Service;
(v) frame, mirror, embed or otherwise incorporate any portion of the Service in any other service or product;
(vi) reverse engineer, decompile, or disassemble any part of the Service, or use or access any part of the Service in connection with any other product or service using features, functions or graphics similar to any part of the Service;
(vii) remove, obscure, or alter any Intellectual Property Rights notice related to any part of the Service or Marks;
(viii) send or store unsolicited, infringing, harassing, obscene, threatening, harmful, defamatory, or otherwise unlawful Content;
(ix) facilitate the transmission or use of any: (a) malicious code (including malware, viruses, worms, and Trojan horses); (b) traps, time bombs, or other code with a latent ability to disable or cripple software or services; or (c) code that would allow any party to interfere with or access any of portion of the Service;
(x) interfere with, disrupt, or overburdern the integrity or performance of the Service, or interfere with any other use of the Service;
(xi) attempt or assist others to attempt to gain unauthorized access to the Service or its related systems or networks; or
(xii) use the Service in any way not expressly authorized by these Terms.
C. Service Changes; Suspension. We may, without prior notice, change the Service, stop or suspend access to any or all of the Service, or create usage limits for the Service. Your continued use of the Service after any change or limitation constitutes your acceptance thereof.
D. Monitoring; Records. We have the right, but not the obligation, to review and monitor your use of the Service at any time, with or without notice, including Communications, to ensure compliance with these Terms.
E. User Content and Behavior. Because we do not control Content, you acknowledge and agree that we are not responsible for any Content and we make no guarantees regarding the accuracy, currency, suitability, or quality of any Content. Your interactions with Users are solely between you and such Users. You agree that we will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any User, we are under no obligation to become involved. We reserve the right to change, condense or delete any content, information, or other materials on the Service (including your Content).
F. Service Content. We may provide a variety of features on the Service, including User Ratings, Agent profiles, and comments on properties for sale. We, the Affiliate Entities, our service providers, and our other licensors are merely providing you, Users and Agents a forum to exchange information, and such parties no way endorse, guarantee, or are responsible, and will not be held liable, for the accuracy or reliability of any content posted on the Service by a Client, User, or any Agent. Content and opinions posted on the Service by a you, a User, or an Agent belong to those respective author(s) and not us or any Affiliated Entity. Any use or reliance on any content and opinions posted on the Service or obtained by you through the Service is at your own risk.
G. Your Representations. You represent and warrant that you:
(i) are entitled to grant the rights and licenses to your Content under these Terms and none of your Content will infringe any party's Intellectual Property Rights or violate Applicable Law;
(ii) will use the Service for internal purposes only and will not sell, license, or transfer to any party any information obtained through the Service or engage in any other commercial exploitation of the Service;
(iii) have the right and authority to enter into these Terms, and that by entering into or executing your obligations under these Terms, you will not be in breach or violation of the terms of any agreement with or obligation to any third party
(iv) are a prospective purchaser or seller of real property in the geographic areas where we are licensed and operating with a bona fide interest in the purchase or sale of such real property;
(v) have not signed any agreement with a real estate broker or agent that would prevent you from using us as your sole and exclusive broker or agent, and you do not have a contract or agreement with any third party that would interfere with our representation of you;
(vi) will limit your search on the Service to properties within your anticipated purchase ability or price range and to the properties that meet your other criteria;
(vii) will not (a) contact the owner or seller of any property from information gained through the Service or (b) attempt to enter the property or speak with an owner or seller without an appointment set by us;
(viii) will abide by all copyright restrictions placed on the content of the Website including, but not limited to, any material or data compilations where we or others may hold the copyright;
(ix) agree that we may also represent other prospective buyers seeking to purchase properties that may meet your criteria;
(x) authorize us to review and provide copies of various documents in any of your transactions relating to the Service, including without limitation home inspection reports and closing papers;
(xi) will immediately notify us if you enter into an agreement with another broker or agent;
(xii) agree to comply with the User Ratings Guidelines when utilizing the User Ratings;
(xiii) with respect to any User Rating, consent to us posting your first name and first initial of your last name and real-property information such as price of property, property type (e.g., single family, condo, townhouse), type of transaction (e.g., conventional, short sale, foreclosure), and/or the city in which the property is located pertaining to such User Rating; and
(xiv) acknowledge and agree that neither we nor any Affiliated Entity endorse any User Review or other Content hosted on or transmitted through the Service.
H. Agent Users. Any User that holds any type of real-estate license, including, but not limited to a brokers, associate brokers or salespersons license other than our Agents must immediately advise us by before that User may access any password protected material including, without limitation, house listing data or other data compilations. We reserve the right to deny or terminate access to any real-estate agent who is not one of our Agents, except for the real-estate agent's limited purpose of accessing the Website for verifying compliance with MLS rules.
I. Property Data Restrictions. In addition to other restrictions herein, for the avoidance of doubt, all property data provided on the Service is for your personal, sole and private, non-commercial use and not available for redistribution, retransmission or copying. You may not sell or use such data for any purpose, other than the purpose of attempting to evaluate properties or properties for sale or purchase. You acknowledge that the MLS data on the Service is owned by the respective MLS, and you acknowledge the validity of the MLS's copyright to such data.
A. License to You. Subject to these Terms, we grant you a non-exclusive, non-sublicenseable, nontransferable, limited right, solely during the term of the Agreement, to access and use the Service solely for your non-commercial purposes related to searching for real estate for personal use.
B. License to Us. You grant to the us a non-exclusive, sublicensable, transferable, perpetual, irrevocable, royalty-free, worldwide license to use, develop, transmit, distribute, modify, reproduce, publically display, and create derivative works of any of your Content to provide, develop, maintain, support, and improve the Service and the Affiliated Entities' services.
4. Ownership Rights.
A. Our Ownership Rights. As between you and us, (i) we solely and exclusively own and will continue to own all right, title and interest in and to the Service and Marks; (ii) you will do nothing inconsistent with such ownership, including by challenging title or registering or attempting to register Marks or any similar trademarks; (iii) no title to or ownership in the Service or Marks, or any associated Intellectual Property Rights embodied therein, is transferred by implication to you under these Terms; and (iv) any use of Marks by you that is permitted under these Terms will inure to the benefit of and be on behalf of the applicable owner. You will promptly notify us of any use of the Service or Marks by any party that is not authorized by these Terms. If you provide us or any affiliate with Feedback, you assign to such entity all right, title and interest in and to such Feedback, including all Intellectual Property Rights therein, waiving all claims thereto, including claims of payment and credit.
B. Your Ownership Rights. As between you and us, and subject to Sections 3(B) and 4(A) above, you own all right, title and interest in and to your Content.
6. Compliance. We do not provide compliance services. You agree that the Service is provided for your convenience only, and not for purposes of enabling you to meet your obligations under Applicable Law and third party agreements. You are solely responsible for ensuring compliance with such obligations.
7. Payment. You will pay us amounts due hereunder, if any, in accordance with statements issued by us. Pricing for any portion of the Service is subject to change upon our notice. Pricing excludes, and you will pay, all taxes, but neither party will pay income taxes of the other party. For any invoice you fail to pay by its due date, we may charge you a late penalty on the amount overdue each day it is overdue until it is paid, equal to the lesser of (a) the maximum legally permissible interest rate, and (b) an interest rate of five percent (5%).
8. NO WARRANTIES.
THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY. USE OF THE SERVICE HEREUNDER IS AT YOUR SOLE RISK. THE AFFILIATED ENTITIES DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AS WELL AS ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NO AFFILIATED ENTITY, INCLUDING US, AND EACH OF THEIR LICENSORS AND SUPPLIERS DO NOT WARRANT THAT ANY PORTION OF THE SERVICE, CONTENT THEREIN (INCLUDING WITHOUT LIMITATION ZAPSCORE AND SIMILAR FEATURES) OR MLS FEED IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR COMPLY WITH LAWS APPLICABLE TO YOU; THAT ANY PORTION OF THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, BACKED UP, SECURE, OR FREE FROM BREACH OR INTERCEPTION OF DATA OR YOUR CONFIDENTIAL INFORMATION; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SERVICE IS DOWNLOADED AT YOUR OWN RISK. NEITHER US NOR ANY AFFILIATED ENTITY WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT, SERVICE, LINK OR ADVERTISEMENT OFFERED BY ANY THIRD PARTY THROUGH THE SERVICE OR ANY LINKED WEBSITE OR SERVICE, AND NEITHER US NOR ANY AFFILIATED ENTITY WILL BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND ANY SUCH THIRD PARTY.
9. LIMITATION OF LIABILITY.
IN NO EVENT WILL ANY AFFILIATED ENTITY, INCLUDING US, OR ANY OF THEIR EMPLOYEES, LICENSORS, CONSULTANTS, CONTRACTORS, OR DIRECTORS, BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF REVENUES, LOSS OF PROFITS, LOSS OF DATA, ERRORS, OMISSIONS, MISCALCULATIONS, MISREPRESENTATIONS OF VALUE, OR FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR SIMILAR DAMAGES. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF ANY AFFILIATED ENTITY, INCLUDING US, HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
The parties agree that the limitations specified in this section will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose. Each party acknowledges that the foregoing limitations are an essential element of the Agreement and a reasonable allocation of risk between the parties and that in the absence of such limitations the pricing and other terms set forth in these Terms would be substantially different.
A. Indemnification by You. You will indemnify, defend and hold us, including any Affiliated Entity, including us, harmless from and against any and all Claims to the extent arising out of or in connection with your (i) breach of these Terms; (ii) fraud, negligence, omissions, and willful misconduct; and (iii) Content and any other use of the Service.
B. Indemnification Procedure. You will not, without the prior written consent of the indemnified party, agree to any settlement of any such claim that does not include a complete release of the indemnified party from all liability with respect thereto or that imposes any liability, obligation or restriction on the indemnified party. The indemnified party may participate in the defense of any claim through its own counsel, and at its own expense.
14. Third Party Beneficiary. You expressly acknowledge and agree that Brand has the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof, and that Brand will have the full benefits of these Terms. These Terms do not and is not intended to confer any rights or remedies upon any person other than the parties and as otherwise expressly stated herein.
15. Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior written consent, but may be assigned by us without restriction. Any attempted transfer or assignment in violation hereof will be null and void.
A. Nature of Relationship. The relationship of the parties under these Terms will be that of independent contractors. Neither these Terms as a whole or any part of these Terms will render either party the agent, representative, servant, or employee of the other party. Neither party has the power, express or implied, to bind the other party in any manner or to make representations on behalf of the other party regarding any matter. Except as stated in the Agreement, we will in no way be restricted from using or commercializing all or any portion of the Service or performing or receiving any services from any third party including services the same as or similar to Service provided or received in connection with these Terms.
B. Governing Law and Venue. These Terms will be governed by New Jersey law, without regard to the conflicts of law provisions of any jurisdiction. Any claims arising out of or in connection with these Terms will be subject to the exclusive jurisdiction only in the state courts in Morris County, New Jersey, or in the United States District Court for the District of New Jersey; each party irrevocably submits to the personal jurisdiction and venue of, and agrees to service of process issued or authorized by, any such court in any such action or proceeding. NEITHER THE UNITED NATIONS CONVENTION OF CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS NOR THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT WILL APPLY TO THIS AGREEMENT. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY AND CLASS ACTION STATUS IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
C. Remedies. Except as provided in Sections 8 ("No Warranties"), 9 ("Limitation on Liability") and 10 ("Indemnification"), the parties' rights and remedies hereunder are cumulative. You acknowledge that the Service contains our valuable trade secrets and proprietary information, that any breach of these Terms relating thereto or to the Marks will constitute harm to us or any Affiliated Entity for which monetary damages would be inadequate, and that injunctive relief is an appropriate remedy.
D. Notices. All notices and other communications to be given to any party hereunder will be sufficient for all purposes hereunder if in writing, properly addressed as set forth below in this section and delivered (a) by hand or courier (delivery of notice deemed to occur upon delivery), (b) if sent electronically on the date delivered to the authorized email address, (c) by overnight delivery service (delivery of notice deemed to occur upon delivery and written confirmation thereof by such service), (d) by certified or registered mail, return receipt requested, with appropriate postage prepaid (delivery of notice deemed to occur upon signature of the receipt by the recipient), or (e) if from us to you, posted to your Account on the date posted. If to us, notices may be sent to firstname.lastname@example.org. If to you, your email and mailing address as identified in our records.
E. Headings; Interpretation. Section headings used in these Terms are used for convenience only and are not to be considered in construing or interpreting these Terms. As used herein, "including" means "including without limitation."
F. Severability; Waiver. If any provision of these Terms is held by a court of competent jurisdiction to be unenforceable because it is invalid or in conflict with any law of any relevant jurisdiction, the validity of the remaining provisions will not be affected. A waiver of any provision of these Terms must be made in writing to be effective, and our waiver of a breach of any provision or right contained in these Terms will not constitute a continuing waiver or waive any subsequent breach or right.
G. Force Majeure. Except with respect to your payment obligations, neither party will be liable for failures or delays in the performance of its obligations hereunder due to causes beyond its reasonable control, including, in respect of the provision of the Service, failures or delays caused by our service providers, any act of God, terrorist attacks, inclement weather, accidental damage, vandalism, failure or shortage or power supplies, flood, drought, lightning or fire, strike, lock-out, trade dispute or labor disturbance, or any act or omission of government or other competent authorities.
H. Entire Agreement. These Terms, and documents incorporated herein, comprises the entire agreement between us and you and supersedes all prior or contemporaneous negotiations, discussions, or agreements, whether written or oral, between the parties regarding its subject matter.
L. Survival. Sections 1, 2(E), 2(F), 2(G), 2(I), 3(B), 4-17 will survive any termination or expiration of these Terms.
- "Account" means the account provided by us that you to manage and access the Service.
- "Affiliated Entities" means, collectively, us, Brand and our and Brand's parent, subsidiaries, affiliates, and, where applicable, our and their service providers and licensors.
- "Agent" means a real estate-broker, salesperson, agent, associate broker, or similar state licensed real-estate professional licensed with us.
- "App" means a mobile application that may be provided as part of the Service.
- "Applicable Law" means any statute, law, ordinance, rule, regulation, or requirement of a governmental entity that applies to a party or its business.
- "Claim" means, collectively, claims, costs, damages, losses, liabilities, Fines, and expenses (including reasonable attorneys' fees and costs).
- "Communications" means parts of the Service that includes electronic communications services, and document storage and management services, all as provided by us (or, at your selection, by a third party through a Third Party Product) for your use.
- "Confidential Information" means any information that (i) a party ("Disclosing Party") discloses to the other party ("Recipient"), either directly or indirectly, in writing or orally or by inspection of tangible objects, and (ii) identified as confidential at the time of its disclosure or that should reasonably be understood to be confidential in nature.
- "Content" means any content, data or information provided by a party for inclusion in the Service or uploaded to, transmitted or submitted by a party through the Service, including Communications.
- "Documentation" means the technical and operational documentation made available to you by us regarding any portion of the Service.
- "Feedback" means ideas, suggestions, or recommendations on the Service provided by you.
- "Fine" means any and all fines, penalties, refunds, charges, debits, deductions, legal fees and costs incurred by or other sums payable to any party.
- "Intellectual Property Rights" means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, rights of privacy, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory, or other jurisdiction.
- "Marks" means an Affiliated Entity's proprietary trademarks, trade names, and service marks, including registrations and applications for registrations thereof and all renewals, modifications and extensions thereof.
- "MLS Feed" means a local listing service ("MLS") feed(s) provided through the Service.
- "Service" means our hosted service (including Websites and Apps), software, Documentation, and any services made available to you by us hereunder, all as may be modified by us from time to time in our discretion.
- "Third Party Products" means the third party applications and/or services, if any, which may be offered, made available or integrated by us to you for use as part of, or in connection with the Service.
- "User" means other users of the Service.
- "User Ratings" means a feature on the Service where you can rate and review various matters, including our Agents.
- "User Ratings Guidelines" means the rules, together with these Terms, that governs the use of User Ratings.
- "We," "our," and "us" means us and Brand.
- "Website" means a website that may be provided by us as part of the Service.
- "You" and "your" means the individual entering into these Terms with us.