|One Path Technologies (known herein after as "The Company") |
Listings4U.comSM Terms of Service (As of 06/27/2012)
The following Terms of Service, together with the order/renewal form (the "Order/Renewal Form") constitutes the contract ("Agreement") between The Company ("One Path) who is located in Aptos, CA 95003 and the buyer (the "Client") of services through the Listings4U.com website (the "Site"). The Order/Renewal Form must either be one automatically generated from the Listings4U.com order/renewal process or a manual version signed/authorized by the current One Path Owner. The Client agrees to the terms and conditions outlined in this agreement with respect to the goods, services, and information provided by or through the Site. If you do not agree to these terms, you will not be able to purchase anything, so please review these terms carefully:
|This Agreement constitutes the entire and only agreement
between One Path and the Client, and supersedes any and all prior or
contemporaneous agreements, representations, warranties, and understandings
with respect to the goods, services and information provided by or through
the Site, and the subject matter of this Agreement. The Client agrees to
review these Terms of Service prior to purchasing anything and purchase of a
good or service shall be deemed acceptance of this agreement. This agreement
and service specified on Order/Renewal Form will begin on the date ALL of the following have taken place:
a) full payment as specified on the Order/Renewal Form is received by One Path
b) any other required documentation as specified on Order/Renewal Form is received by One Path
c) local MLS gives Authorization of Client to receive IDX-related services to One Path (if required)
The agreement will be affirmed by a receipt for services email (using Billing Email address on Order/Renewal Form) sent to the Client by One Path, officially declaring the agreement start date and end date.
(a) The Client will be provided, based on their selection on the order/renewal form, one of the following service packages (individually and collectively known as "the
Listings4U.com Agent Standard (Formerly known as Agent Standard)*
Listings4U.com Agent Professional**
Listings4U.com Office Standard(Formerly known as Office Express)*
Listings4U.com Office Professional**
* Unless specific features are specifically marked "Not Offered" on the order form, this service provides three specially designed URLs used to access the MLS property search, My/Our Listings, and My/Our Open Houses features. One Path will provide and maintain a direct link from the Client's website to the Listings4U.com website using these specially designed URLs. The Client may only use these URLs within the Client's existing website (as specified on the order/renewal form) to access these features.
** Provides the Client with a template based website hosted by One Path in connection with the Listings4U.com website. Offers the Client the ability to control the content on certain portions of the website template, including but not limited to selection of website template design and template color schemes. One Path also offers the Client MLS property search, My/Our Listings, and My/Our Open Houses, and special Visitor Login features. The Client may choose ONLY one domain name to be used with the package, and can change the domain name at anytime during the service by contacting One Path.
(b) From time to time, One Path may add additional tools and features that are not included in the service, for which an additional fee may apply (which shall hereinafter be referred to as "special options"). To be eligible for the offering of the special options, the Client must be a current service subscriber. Currently, the only special options being offered are the Custom IDX Listings feature and the Integrated IDX feature.
(c) One Path reserves the right to amend the terms of service at anytime by posting the amended terms on the Listings4U.com website or even terminate the entire service. If the terms of service are amended, they will become effective to existing users 30 days after they are posted on the Listings4U.com website, and effective immediately to users registering after amendments are posted.
(d) Once the contract period has expired, service will be discontinued until a new agreement is generated online by Client.
|3. Payment Terms|
(a) For the Client to access and use the service, the Client agrees to pay a one-time setup fee (if applicable) and a payment for the service equal to the amount referenced on the order/renewal form.|
(b) The Client agrees to pay all taxes including but not limited to applicable use and sales taxes, resulting from the Client's use of the service.
(c) If One Path does not receive payment of all amounts due for any service the Client purchases, the agreement may be terminated, at One Path's sole discretion. The Client agrees to pay all attorney and collection fees arising from One Path's efforts to collect any past due amounts from the Client to the extent allowed by law.
(d) Payments made by check that are returned to One Path by One Path's bank due to insufficient funds in Client's account will incur a $15 One Path penalty fee plus the fee assessed by One Path's bank (currently $7 per bounced check). All payments after such an occurrence must be made by certified bank check or money order.
|4. No Refund Policy|
|One Path does not offer any refunds for cancellation of services by Client. In the event One Path exercises the right to cancel the entire service, it is at the sole discrecion of One Path if the Client will be refunded a prorated amount based on the unused portion of the service.|
|5. Client's Rights|
(a) The Client may cancel this agreement at any time for any reason, but all fees are non-refundable including the one-time setup fee. To cancel this agreement, the
Client must send a written letter by mail to the mailing address of One Path stated at the beginning of this agreement.
(b) The Client has the right to use the service in accordance with this agreement.
|6. Client's Responsibilities|
The Client may not engage in the following items relating to One Path or the service: |
(a) Display material containing pornographic or offensive material of any kind, determined to be so by One Path, or materials that exploit children under 18 years of age.
(b) Sell or promote any products or services that are unlawful in the location at which the content is posted or received.
(c) Access illegally or without authorization any computers, accounts, or networks of One Path or any One Path Client, attempt to penetrate One Path's security measures, or upload any viruses to One Path or affiliate websites.
(d) Post any content or otherwise infringe in any way or violate any copyright, patent, trademark, service mark, trade name, trade secret, or other intellectual property right of any third party or One Path.
(e) Engage in any libelous, defamatory, scandalous, threatening, illegal, harmful, cruel or harassing activities
(f) Send unsolicited commercial email or spam, defined as bulk emails sending 150 or more emails in an hour or 900 emails in one day, to any third party or One Path.
(g) Reverse engineering, reverse compiling or otherwise deriving the underlying source code of any One Path Service.
(h) Upon the termination of this agreement, all licenses granted to the Client by One Path under this agreement are immediately terminated and the Client shall immediately cease use of, and remove from the Client site: all links to One Path's site, all One Path service marks, trade dress and logos (see Section 6 of this agreement); and all other materials provided by or on behalf of One Path to the Client pursuant to the agreement or in connection with the service.
(i) The Client grants One Path a non-exclusive right to use, copy, reproduce, modify, distribute, and integrate the Client's information provided on the order/renewal form or website into the One Path Service along with One Path supplied content.
(j) The Client agrees to keep his or her password confidential and to notify One Path within 24 hours of any breach of this Agreement or unauthorized use of the Client's password. One Path does not protect Client from unauthorized use of Client's password.
|7. One Path Rights and Responsibilities|
(a) One Path reserves the right to make changes to the Client's website upon written request by the
Client to One Path, such as through email, or upon breach of any of the provisions of this Agreement by providing the
Client notice of such breach and reasonable time, determined by One Path, to rectify the infringing content. If after such time has expired the
Client website does not conform to One Path's satisfaction, One Path may make changes to the content of
Client website to bring it to compliance. The Client agrees not to hold One Path liable for any foreseeable, unforeseeable, direct, or indirect consequences that may result from changes made by One Path to the
Client website in response to the Client request to do so or in response to a Client
website that breaches this Agreement. One Path's decisions are final and binding. Notwithstanding the above, One Path also reserves the right to discontinue the provision of any or all aspects of the service to any
Client for any breach of this Agreement.|
One Path will send correspondence and notices from time to time concerning service upgrades and other important notifications to the Client by the current email and/or street address in the Client's account profile.
(c) One Path reserves the right in its sole discretion to refuse service at any time. Sale of any goods or services is subject to availability.
The Client agrees to indemnify One Path and hold One Path harmless against any and all liabilities, cost, and expenses, including reasonable attorney's fees related to or arising from any or all of the following:|
(a) The Client's use of the service in a way that is prohibited or restricted under this agreement.
(b) Infringement of any copyright, trademark, intellectual property, or other right or patent by any material the Client posts on the Client website.
(c) Any breach by the Client of this Agreement and/or any indecent, obscene, or libelous material posted on the Client's website.
(c) Protection or privacy of electronic mail or other information transferred through the Internet or any other network provider that the Client may utilize.
(d) Any material, such as but not limited to graphics, text, or music, posted by the Client in any Client-managed area of the service.
|9. Trademarks, Service Marks, and Copyrights.|
(a) The Company (SM), The Path to Growing your Real Estate Business Online (SM), Listings4U.com (SM), and other trademarks and/or service marks, and other graphics, logos, and service names used by One Path on behalf of Listings4U.com are the service marks of The Company |
(b) The Client agrees not to use the The Company service marks in connection with the Clients products or services or any third-party products or services without the written consent from One Path. Domestic and international copyright law protect this service, so unauthorized reproduction or distribution of this service, or any portion of it, may result in several civil and criminal penalties, and will be prosecuted to the maximum extent possible under law.
|10. Proprietary Rights|
(a) The Client acknowledges and agrees that One Path and its licensors owns all right, title, and interest in the service in perpetuity throughout the Universe. This includes the Listings4U.com Service or any Listings4U.com Special options, the technology available on the Listings4U.com Service or Listings4U.com Special options, all content, including but not limited to text, software, music, sound, photographs, video, graphics, or other material supplied by One Path on the Listings4U.com Service or Listings4U.com Special options. |
(b) Upon One Path's receipt of payment from the Client set forth on the order/renewal form, the service is licensed (not sold) to the Client by One Path on behalf of itself and its affiliates. One Path does not transfer title to the service to the Client; this license shall not be considered a "sale" of the product. One Path retains full and complete title to the service and all intellectual and industrial property rights therein. This non-exclusive license gives the Client the right to use and display the units of the service that are licensed to the Client hereunder. The Client also understands and agrees that the compilation, collection, selection, arrangement, assembly, and coordination of all One Path services available on the Listings4U.com Service or Listings4U.com Special options is the exclusive property of One Path.
(c) The Client agrees that he or she may not re-sell, decompile, reverse engineer, disassemble, make, use, sell, copy, modify, network, rent, lease, sublicense, reproduce, distribute, transmit, or create derivative works from this One Path service without expressly being authorized to do so by One Path in writing.
(d) One Path reserves all rights related to the service not expressly granted to the Client in this agreement.
(e) One Path acknowledges that it claims no proprietary rights in Client's Information, which is any material the Client supplies to One Path on the order/renewal form or through the Client managed sections of the Listings4U.com service.
(a) One Path warrants that, if a Client is dissatisfied in any way with the One Path service, upon notice from the
Client One Path will terminate the Agreement. This is the Client's sole and exclusive remedy for any breach of the above warranty.|
(b) The opinions and view expressed in any Client website do not reflect those of One Path, and One Path does not review, verify, endorse, or otherwise vouch for the content of any Client websites. One Path is not responsible for the content of any Client page. Clients are solely responsible for everything contained in their own Client website. The Client may be held legally liable for the contents of their Client website and may be held legally accountable if their Client website includes, for example, any defamatory comments or material protected by copyright, trademark, patent, or trade secret or other laws without the express permission of the author or owner.
(c) All One Path services, content, and technology are provided "as is" without warranties of any kind, express or implied, including without limitation, warranties of fitness, merchantability, non-infringement or any implied warranties arising out of a course of performance, dealing or trade usage.
(d) One Path and its licensors disclaim any warranties of title of any other warranties for any third party's offerings or products.
(e) One Path does not guarantee that the Client's website will be error free, including but not limited to accurate MLS data.
(f) One Path does not guarantee that its security procedures will prevent the loss of, alteration of, or improper access to the Client's information. One Path and its licensors are not responsible for invalid destinations and transmission error in, corruption of, or the security of the Client's information carried over interexchange carriers, local exchange carriers, or other providers' facilities.
(g) The documents and graphics appearing on the One Path service may include technical inaccuracies, typographical errors, and out-of-date information; therefore the Client expressly assumes all risk for such use of the One Path service.
|12. Limitation on Liability|
(a) ONE PATH SHALL NOT BE RESPONSIBLE FOR ANY FAILURE TO PERFORM AND SHALL NOT BE LIABLE DUE TO UNFORESEEN CIRCUMSTANCES OR DUE TO A CAUSE BEYOND ONE PATH'S CONTROL, INCLUDING BUT NOT LIMITED TO: ACTS OF GOD, WAR, RIOT, EMBARGOES, ACTS OFF CIVIL OR MILITARY AUTHORITIES, FIRE, FLOODS, ACCIDENTS, STRIKES, OR SHORTAGES OF TRANSPORTATION FACILITIES, FUEL, ENERGY, LABOR OR MATERIALS.|
(b) ONE PATH MAY PROVIDE LINKS TO OTHER WEB SITES OR RESOURCES, AND THE CLIENT DEEMS ONE PATH NOT LIABLE FOR THE AVAILABILITY AND ACCURACY OF SUCH EXTERNAL SITES OR RESOURCES, AND DOES NOT ENDORSE AND IS NOT RESPONSIBLE OR LIABLE FOR ANY CONTENT, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE FROM SUCH SITES OR RESOURCES. THE CLIENT ALSO AGREES THAT ONE PATH SHALL NOT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH USE OF OR RELIANCE ON ANY SUCH CONTENT, GOODS, OR SERVICES AVAILABLE ON SUCH EXTERNAL SITES.
(c) IN NOT EVENT SHALL ONE PATH BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES, (INCLUDING ANY LOSS OF REVENUE, PROFITS, OR DATA) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; IN THOSE JURISDICTIONS ONE PATH'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
(d) ONE PATH'S AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL PAID UNDER THIS AGREEMENT.
(e) THE CLIENT IS SOLELY RESPONSIBLE FOR THE PROPER CONDUCT OF THE CLIENT'S BUSINESS AND ALL OTHER MATTERS UNDER THE CLIENT'S CONTROL, INCLUDING BUT NOT LIMITED TO ALL AREAS OF THE WEBSITE THAT ARE EDITABLE BY MEANS OF A PASSWORD PROTECTED AREA.
(f) REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, THE CLIENT AGREES THAT IN NO EVENT WILL ONE PATH, OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE LISTINGS4U.COM SERVICE, TECHNOLOGY, OR CONTENT, BE LIABLE TO THE CLIENT IN ANY MANNER WHATSOEVER:
FOR ANY DECISION MADE OR ACTION OR NONACTION TAKEN BY THE CLIENT IN RELIANCE UPON THE INFORMATION PROVIDED THROUGH THE LISTINGS4U.COM SERVICE.
FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY;
FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS, EVEN IF The Company HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(g) IN NO EVENT IS ONE PATH OR ANY ONE PATH AFFILIATE LIABLE FOR ANY DAMAGES ARISING FROM THE CLIENT'S FAILURE TO PERFORM THE CLIENT'S RESPONSIBILITIES IN CONNECTION WITH THIS AGREEMENT, OR ARISING FROM ANY CAUSE BEYOND ONE PATH'S CONTROL.
(h) THIS SECTION APPLIES TO ALL CLAIMS BY THE CLIENT IRRESPECTIVE OF THE CAUSE OF ACTION UNDERLYING THE CLIENT'S CLAIM, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT (EVEN IF IN THE NATURE OF A BREACH OF CONDITION OR A FUNDAMENTAL TERM OR A FUNDAMENTAL BREACH), OR TORT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, STRICT LIABILITY, FRAUD, MISREPRESENTATION, AND/OR OTHERWISE.
(a) This Agreement shall be governed by and construed in accordance with U.S. federal and Tennessee laws, excluding its conflict-of-law provisions. Any and all disputes between the
Client and One Path will be settled by arbitration in Aptos, CA, in accordance with the regulations of the American Arbitration Association then in force, and the
Client agrees that all negotiations, discussions, and settlements shall be subject to obligations of confidentiality and shall not be disclosed to any third party. |
(b) This agreement contains the understanding of the parties and may not be amended without the written consent of both parties.
(c) Except in the event that the Client purchases any Listings4U.com special options, this Agreement comprises the entire agreement between the Client and One Path and supersedes all prior agreements between the parties regarding the subject matter contained herein.
(d) The Client's membership in the Listings4U.com Service and any of the Client's rights hereunder may not be assigned or transferred to any third party without prior written consent from One Path. One Path reserves the right to assign this agreement to any third party that acquires all or substantially all of its relevant business or assets.
(e) The provisions of this agreement are separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any have not been enforced in part or whole. One Path's failure to enforce the Client's strict performance of any provision of this agreement will not constitute a waiver of One Path's right to subsequently enforce such provision or any other provision of this agreement.
(f) The Client understands that One Path may at any time, directly or indirectly, solicit customers on terms that may differ from those contained in this agreement or customers which may operate websites that are similar to or compete with the Client's website.
(g) The Client represents and warrants that the Client is over the age of 18 years and has read this Terms of service, and agree to be bound by its terms and conditions.