TERMS OF SERVICE – REAL ESTATE TECHNOLOGY PLATFORM
These Terms of Service - Real Estate Technology Platform (“Agreement”) are between you (“You” or “Agent”) and MoxiWorks, a Washington company (“MoxiWorks”) and govern Your use of the Real Estate Technology Platform (including the software and applications included therewith (which applications include the Comparative Market Analysis Application (“CMA Application”) and Agent Websites), content, hosting, and related services provided in connection therewith, all of which together constitute the “Real Estate Technology Platform”).
1. ACCEPTANCE OF AGREEMENT
By clicking the “I Agree” button below or by accessing and using the Real Estate Technology Platform You (a) agree to be bound by this Agreement; (b) represent and warrant that, if You are an individual, You are 18 years old or older or, if You are an entity, that You are a corporation, partnership, or other legal entity duly formed (and incorporated, if applicable) in good standing where required to do business with all legal authority and power to accept this Agreement; (c) agree to provide true, accurate, current, and complete information in any registration forms required in connection with the Real Estate Technology Platform; (d) represent and warrant that You have the power and authority to enter into and perform under this Agreement; and (e) represent and warrant that Your use of the Real Estate Technology Platform will comply with the terms of this Agreement and all applicable laws. If You are a third party accessing an account(s) on behalf of an account owner (e.g., as an administrator), You agree that this Agreement applies to Your activities on behalf of such account owner. If this Agreement or any future changes are not acceptable to You, Your sole remedy is to no longer use the Real Estate Technology Platform.
2. MODIFICATIONS
MoxiWorks may modify this Agreement at any time in its sole discretion and modifications are effective upon being posted on the Real Estate Technology Platform. You are responsible for reviewing the Terms of Service posted on the Real Estate Technology Platform periodically to ensure that you are aware of any changes. Your continued use of the Real Estate Technology Platform following MoxiWorks’s modification of this Agreement will constitute Your acceptance of the changes.
This Agreement was last modified on October 31, 2018
3. PLATFORM ACCESS AND USE
MoxiWorks grants You a personal, non-transferable and non-exclusive right and license to access and use the Real Estate Technology Platform only on servers controlled by MoxiWorks in accordance with the use instructions (including configuration options) included with the Real Estate Technology Platform and provided that You do not (and do not allow third parties to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, or attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Real Estate Technology Platform. You agree not to modify the Real Estate Technology Platform (except for the configuration options expressly authorized in the Real Estate Technology Platform), including for the purpose of obtaining unauthorized access to the Real Estate Technology Platform.
You agree not to access the Real Estate Technology Platform by any means other than through the designated interfaces that are provided or authorized by MoxiWorks for use in accessing the Real Estate Technology Platform. For example, the CMA Application will be deemed a part of the Real Estate Technology Platform though it may be presented and may run as a separate application (using a separate interface for access) or it may be presented and may run as an embedded application within the overall platform framework.
You may not use the features and functionality, web pages or parts of web pages, or application outputs (e.g., compiled presentation reports (“CMA Reports”)) that are generated by means of the Real Estate Technology Platform (other than Your Content contained therein), on any applications, devices or servers other than servers controlled by MoxiWorks without MoxiWorks’s express written authorization. Notwithstanding the foregoing, you may store CMA Reports in .pdf format on Your personal computing devices. You acknowledge and agree that the Real Estate Technology Platform is intended for access and use by means of web browsing software, and that MoxiWorks does not commit to support any particular web browsing platform. MoxiWorks reserves the right at any time to revise and modify the Real Estate Technology Platform, release subsequent versions and to alter features, specifications, capabilities, functions and other characteristics of the Real Estate Technology Platform, without notice to You. If any revision or modification to the Real Estate Technology Platform materially changes Your ability to conduct business, Your sole remedy is to cancel this Agreement and stop using the Real Estate Technology Platform.
4. PAYMENT AND TAXES
Your right to access and use the Real Estate Technology Platform is conditioned upon and subject to Your payment of the then-current use fees (“Usage Fees”), as established by MoxiWorks from time to time, and any applicable federal, state, or local sales, use, excise, value-added or similar taxes or dues due in connection with Your use of the Real Estate Technology Platform (“Taxes”). In the event You fail to pay the Usage Fees and/or Taxes in a timely manner, MoxiWorks may immediately suspend or terminate Your access to and use of the Real Estate Technology Platform without notice and without liability.
You will pay all Usage Fees, Taxes and any additional fees that are due in connection with Your use of the Real Estate Technology Platform. You will create a billing account for such payments. You will be presented with one or more billing options when You set up Your billing account (e.g., credit card payment, invoice issued via email or other delivery method). You will keep all information in Your billing account accurate. You may change the information in Your billing account and Your payment method at any time (provided there are alternate payment methods offered by MoxiWorks).
You authorize MoxiWorks to charge You for the Real Estate Technology Platform using the payment method You establish in Your billing account. MoxiWorks may bill You (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) on a recurring basis for subscription services. If You receive an invoice for Your access and use of the Real Estate Technology Platform, You will pay the invoice in accordance with the payment terms described in the invoice (i.e., via check or wire transfer within certain number of days).
You are responsible for Taxes and for all other charges You may incur in connection with using the Real Estate Technology Platform (e.g., Internet Service Provider fees).
MoxiWorks may change the price for the Real Estate Technology Platform at any time and the change will go into effect immediately.
All charges are earned when received and are non-refundable, except as otherwise provided in a MoxiWorks written refund policy or as required by law.
MoxiWorks may assess a late charge if You don’t pay on time. You must pay these late charges when MoxiWorks bills You for them. The late charge will be the lesser of 1% of the unpaid amount per month or the maximum rate allowed by applicable law. You will pay all costs that MoxiWorks may incur to collect any past due amounts, including reasonable attorneys’ fees and other legal fees and costs.
In certain situations MoxiWorks may accept payment from third parties on Your behalf (e.g., broker paying on behalf of agent), if the third party fails to make any payments then You will remain responsible for any payments due under this Section.
5. TERM AND TERMINATION
This Agreement commences on the date that You first access and use the Real Estate Technology Platform and continues until terminated by either party in accordance with this Section. Either party may terminate this Agreement at any time and for any reason upon written notice to the other party. In the event of termination, MoxiWorks may, at its option, permanently delete from its servers any and all information and content (including Your Content) that You have uploaded to the Real Estate Technology Platform, including but not limited to any web pages generated by You or the Real Estate Technology Platform and any CMA Reports generated by You or the CMA Application. MoxiWorks will not be responsible or liable for such deleted information and content.
6. SUSPENSION
MoxiWorks may, in addition to its right to terminate this Agreement, suspend all or part of the Real Estate Technology Platform and/or suspend or limit Your access to the Real Estate Technology Platform if MoxiWorks determines any such suspension to be necessary for any technical, security, or other reason.
7. USE GUIDELINES
You acknowledge and agree that MoxiWorks may, from time to time during the term of this Agreement, issue instructions, use guidelines, and policies regarding Your use of the Real Estate Technology Platform and that You will be bound by such guidelines upon their issuance.
8. ACCESS AND SECURITY
You may receive a password from MoxiWorks to access and use the Real Estate Technology Platform. You agree to keep Your password confidential. You are fully responsible for all activities that occur under Your password on the Real Estate Technology Platform. You agree to immediately notify MoxiWorks of any unauthorized uses of the Real Estate Technology Platform or any other breaches of security of which You become aware. You acknowledge and agree that MoxiWorks will not be liable for any acts or omissions of You or any user of the Real Estate Technology Platform to whom You gave access, including any damages of any kind incurred as a result of such acts or omissions.
9. YOUR CONTENT
You may be able to upload content on the Real Estate Technology Platform (including, but not limited to, Your personal information, data, text, links to content, software, music, sound, photographs, graphics, videos, messages or other materials (collectively, “Your Content”)). You are legally responsible for all of Your Content that You upload, post or store on or in connection with the Real Estate Technology Platform. You represent and warrant that (a) You have all necessary rights in and to all of Your Content; (b) Your Content does not infringe any proprietary or other rights of any third party; (c) Your Content is accurate and will not cause injury to any person; and (d) You will indemnify MoxiWorks and its employees, officers, directors, affiliates, contractors, suppliers, and agents, for all claims resulting from Your Content. You grant MoxiWorks a worldwide, royalty-free, non-exclusive license to host and use Your Content in connection with its operation of the Real Estate Technology Platform and otherwise in connection with MoxiWorks’s business operations (including rights to use, reproduce, modify, publish, create derivative works of, display, transmit, and broadcast).
10. WSLLC CONTENT; MLS CONTENT AND TERMS
MoxiWorks may make its own or third party content available to You for use on the Real Estate Technology Platform (“MoxiWorks Content”). Your use of the MoxiWorks Content will be limited to use on the Real Estate Technology Platform and You may only modify the MoxiWorks Content if modification is expressly permitted by use instructions on the Real Estate Technology Platform. You may not use any trademarks, product or service names of MoxiWorks without MoxiWorks’s prior written permission. Without limiting the foregoing, (a) information about and photographs of individual properties are provided by the listing agent and/or by the multiple listing service (MLS) for the area in which the subject property is located, and may not be copied or used in any manner without the express permission of the copyright owner; and (b) information about individual properties will be provided by one or more multiple listing services (MLS) and subject to terms and disclaimers provided by each MLS, including those attached hereto as Attachment 1 (“MLS Terms”).
MoxiWorks may update Attachment 1 to add or remove MLS content and the applicable terms or to reflect revised terms applicable to any MLS content that is made available in connection with the Real Estate Technology Platform. You agree to comply with the MLS Terms and to only access and use the MLS content for which You are authorized (e.g., certain MLS content may be restricted for use by agents in certain geographic regions and/or that are members of certain regional or national organizations). The MLS Terms will describe the requirements for access and use of the various MLS content.
11. PUBLIC COMMUNICATION
You may have the opportunity to communicate with others via chat, forums, bulletin boards, or other similar types of communication on or through the Real Estate Technology Platform. In connection with such public communications, You may not upload, post, reference or link to any content that (a) is illegal, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate, or objectionable; or (b) violates any acceptable use policies that MoxiWorks may issue in connection with the Real Estate Technology Platform. You agree that (i) these are public and not private communications; (ii) You have no expectation of privacy concerning Your use of or participation in any communication channels made available on or through the Real Estate Technology Platform; and (iii) personal information that You share publicly on or through the Real Estate Technology Platform may be seen and used by others and may result in unsolicited communications. MoxiWorks is not responsible or liable for any information that You choose to publicly communicate on or through the Real Estate Technology Platform, or for the actions of any other users accessing web pages or features made available on or through the Real Estate Technology Platform.
12. PROPRIETARY RIGHTS AND OWNERSHIP
You acknowledge and agree that the Real Estate Technology Platform and MoxiWorks Content contains proprietary and confidential information that is protected by copyright, patent, trademark, trade secret and other applicable intellectual property and other laws. Except for Your limited access and use license, (a) You may not use, copy, transmit, modify, distribute or create any derivative works of the Real Estate Technology Platform or the MoxiWorks Content; and (b) MoxiWorks and its third party suppliers retain all right, title and interest in and to the Real Estate Technology Platform and the MoxiWorks Content.
13. SUPPORT
MoxiWorks has no obligation to provide support to You in connection with Your use of the Real Estate Technology Platform.
14. INDEMNIFICATION
You agree to defend, indemnify and hold harmless MoxiWorks and its employees, officers, directors, affiliates, contractors, suppliers, and agents from and against any and all liabilities, claims and expenses (including attorneys’ fees) that arise from Your breach of this Agreement or Your breach of any MLS Terms or in connection with Your use of the Real Estate Technology Platform or any of Your Content that You upload to the Real Estate Technology Platform. Without limiting the foregoing indemnification obligations, MoxiWorks reserves the right to, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You. You agree to reasonably cooperate as requested by MoxiWorks in the defense of any claims.
15. DISCLAIMER OF WARRANTIES; LIMITATIONS ON LIABILITY
THE REAL ESTATE TECHNOLOGY PLATFORM AND THE INFORMATION, SOFTWARE, PRODUCTS AND SERVICES (INCLUDING ANY HOSTING SERVICES) ASSOCIATED WITH IT ARE PROVIDED "AS IS." MOXIWORKS AND/OR ITS AFFILIATIES, SUPPLIERS AND REAL ESTATE PROFESSIONALS DISCLAIM ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO THE REAL ESTATE TECHNOLOGY PLATFORM AND ANY INFORMATION, SOFTWARE, PRODUCTS AND SERVICES PROVIDED HEREIN, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. USE OF THE REAL ESTATE TECHNOLOGY PLATFORM IS AT YOUR OWN RISK. MoxiWorks, ITS AFFILIATES, ITS SUPPLIERS AND REAL ESTATE PROFESSIONALS ARE NOT LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR OTHER INJURY ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF REAL ESTATE TECHNOLOGY PLATFORM OR WITH THE DELAY OR INABILITY TO USE THE REAL ESTATE TECHNOLOGY PLATFORM, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS AND SERVICES OBTAINED THROUGH THE REAL ESTATE TECHNOLOGY PLATFORM, OR OTHERWISE ARISING OUT OF THE USE OF THE REAL ESTATE TECHNOLOGY PLATFORM, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF MoxiWorks OR ITS SUPPLIERS HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE AGGREGATE LIABILITY OF MoxiWorks, ITS AFFILIATES, SUPPLIERS, AND REAL ESTATE PROFESSIONALS UNDER OR IN CONNECTION WITH THIS AGREEMENT AND THE REAL ESTATE TECHNOLOGY PLATFORM SHALL NOT, FOR ANY REASON, EXCEED ONE THOUSAND DOLLARS (US$1,000).
16. DISPUTE RESOLUTION
You agree that any claim or controversy arising out of or relating to this Agreement and/or the use of the Real Estate Technology Platform will be governed by the laws of the State of Washington, and that venue for any action arising from or related to this Agreement and/or the use of the Real Estate Technology Platform will be solely in any court of competent jurisdiction in Seattle, King County, Washington, USA. If either party employs attorneys to enforce any rights in connection with any such dispute or lawsuit the prevailing party will be entitled to recover reasonable attorneys' fees.
17. ASSIGNMENT
You may not assign this Agreement, in whole or in part, without the prior written consent of MoxiWorks, and any attempted assignment will be void. MoxiWorks may assign this Agreement upon written notice to You. This Agreement will bind and inure to the benefit of permitted assigns.
18. RELATIONSHIP OF PARTIES
This Agreement will not establish a partnership, joint venture, employment, franchise, or agency between MoxiWorks and You. Neither party will have the authority to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. Except as otherwise expressly provided herein, there will be no third-party beneficiaries to this Agreement.
19. COPYRIGHT INFRINGEMENT NOTICE
MoxiWorks respects the intellectual property rights of others, and will respond promptly to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. If You believe that any content appearing on the Real Estate Technology Platform constitutes copyright infringement, please provide us with the following information: (a) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (b) identification of the copyrighted work claimed to have been infringed; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (d) Your contact information, including Your address, telephone number, and an email address; (e) a statement by You that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and, under penalty of perjury, that You are authorized to act on behalf of the copyright owner. Our designated copyright agent for notice of alleged copyright infringement appearing on the Real Estate Technology Platform is:
MoxiWorks
Attn: Chief Finance Officer
815 Western Avenue, Suite 400
Seattle, Washington 98104
copyright@moxiworks.com
20. FEEDBACK
You may from time to time provide feedback, suggestions, ideas, or other comments to MoxiWorks regarding the Real Estate Technology Platform or other MoxiWorks existing or potential services (“Feedback”). Feedback will be given entirely voluntarily. MoxiWorks will be the sole owner of Feedback, and will be free to use, disclose, reproduce, license or otherwise distribute and exploit Feedback as it sees fit, entirely without obligation or restriction of any kind.
21. THIRD PARTY SERVICES AND LINKS
The Real Estate Technology Platform may incorporate third party services (e.g., Google Analytics, Google Mapping) and Your use of such third party services will be at Your own risk and subject to any additional terms provided with the service. MoxiWorks will not be liable or responsible for the third party service, including as to delivery and accuracy. The Real Estate Technology Platform may include links to third party sites and content and Your use of such third party sites and content will be at Your own risk and subject to any additional terms applicable to the third party sites and content. MoxiWorks will not be liable or responsible in any way for such third party sites and content.
22. PRIVACY
You acknowledge and agree that MoxiWorks may use Your personal information submitted by You in accordance with the terms of the MoxiWorks Privacy Policy. You agree to the terms of the MoxiWorks Privacy Policy and those terms are incorporated herein by reference. You may access and review the MoxiWorks Privacy Policy at http://moxiworks.com/privacy-policy/.
You acknowledge and agree that if You permit third party end users to access and submit personal information on web pages or other features made available as part of the Real Estate Technology Platform that (a) You will maintain such information in confidence and in accordance with Your privacy policy that complies with applicable laws (including necessary consents and authorizations from end users) and that is posted on each web page or location where such information is collected; (b) You will inform each end user that MoxiWorks may retain and use such end user’s personal information in accordance with the MoxiWorks Privacy Policy.
23. CONFIDENTIALITY
You agree to that this Agreement and the non-public components of the Real Estate Technology Platform and all non-public information provided in connection with this Agreement and the Real Estate Technology Platform are the confidential and proprietary information of MoxiWorks and its third party suppliers (“MoxiWorks Confidential Information”). You agree not to disclose MoxiWorks Confidential Information to any third party without the prior written consent of MoxiWorks. If You are required by law to disclose any MoxiWorks Confidential Information You agree to provide MoxiWorks with as much advance notice and an opportunity to intervene to prevent or limit such disclosure before complying with any legally required disclosure. You agree to protect MoxiWorks Confidential Information in the same manner that You protect Your own confidential information but in no event to use less than industry standard efforts.
24. FORCE MAJEURE
Except for any obligations to make payments, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including but not limited to, acts of war, acts of terrorists, acts of God, earthquake, flood, embargo, riot, labor shortage or dispute, and/or failure of the internet.
25. YOUR END USER TERMS
You agree to include valid and enforceable terms of use applicable to end users that access and use any web pages or other public facing features resulting from Your use of the Real Estate Technology Platform. These terms of use will include terms and conditions as protective of MoxiWorks as those contained in this Agreement.
26. NOTICE
MoxiWorks may provide You notice under this Agreement to the email address that You provide when registering for access and use of the Real Estate Technology Platform. Notices emailed to You will be deemed given and received when the email is sent. You may provide notice under this Agreement to MoxiWorks to the following address:
MoxiWorks
Attn: Chief Financial Officer
815 Western Avenue, Suite 400
Seattle, Washington 98104
27. SURVIVAL
The following Sections will survive the expiration or termination of this Agreement: 1, 4 (to the extent any payments remain due), 5, 9, 12, 14, 15, 16 - 18, 20 - 23, and 26 - 28.
28. INTEGRATION AND SEVERABILITY
This Agreement constitutes the entire agreement between You and MoxiWorks and supersede any prior agreement(s) pertaining to the Real Estate Technology Platform (including prior versions of this Agreement). If any provision of this Agreement is found by a court of competent jurisdiction to be void or unenforceable the parties agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision and that the other provisions of this Agreement will remain in full force and effect.
These Terms of Service - Real Estate Technology Platform (“Agreement”) are between you (“You” or “Agent”) and MoxiWorks, a Washington company (“MoxiWorks”) and govern Your use of the Real Estate Technology Platform (including the software and applications included therewith (which applications include the Comparative Market Analysis Application (“CMA Application”) and Agent Websites), content, hosting, and related services provided in connection therewith, all of which together constitute the “Real Estate Technology Platform”).
1. ACCEPTANCE OF AGREEMENT
By clicking the “I Agree” button below or by accessing and using the Real Estate Technology Platform You (a) agree to be bound by this Agreement; (b) represent and warrant that, if You are an individual, You are 18 years old or older or, if You are an entity, that You are a corporation, partnership, or other legal entity duly formed (and incorporated, if applicable) in good standing where required to do business with all legal authority and power to accept this Agreement; (c) agree to provide true, accurate, current, and complete information in any registration forms required in connection with the Real Estate Technology Platform; (d) represent and warrant that You have the power and authority to enter into and perform under this Agreement; and (e) represent and warrant that Your use of the Real Estate Technology Platform will comply with the terms of this Agreement and all applicable laws. If You are a third party accessing an account(s) on behalf of an account owner (e.g., as an administrator), You agree that this Agreement applies to Your activities on behalf of such account owner. If this Agreement or any future changes are not acceptable to You, Your sole remedy is to no longer use the Real Estate Technology Platform.
2. MODIFICATIONS
MoxiWorks may modify this Agreement at any time in its sole discretion and modifications are effective upon being posted on the Real Estate Technology Platform. You are responsible for reviewing the Terms of Service posted on the Real Estate Technology Platform periodically to ensure that you are aware of any changes. Your continued use of the Real Estate Technology Platform following MoxiWorks’s modification of this Agreement will constitute Your acceptance of the changes.
This Agreement was last modified on October 31, 2018
3. PLATFORM ACCESS AND USE
MoxiWorks grants You a personal, non-transferable and non-exclusive right and license to access and use the Real Estate Technology Platform only on servers controlled by MoxiWorks in accordance with the use instructions (including configuration options) included with the Real Estate Technology Platform and provided that You do not (and do not allow third parties to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, or attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Real Estate Technology Platform. You agree not to modify the Real Estate Technology Platform (except for the configuration options expressly authorized in the Real Estate Technology Platform), including for the purpose of obtaining unauthorized access to the Real Estate Technology Platform.
You agree not to access the Real Estate Technology Platform by any means other than through the designated interfaces that are provided or authorized by MoxiWorks for use in accessing the Real Estate Technology Platform. For example, the CMA Application will be deemed a part of the Real Estate Technology Platform though it may be presented and may run as a separate application (using a separate interface for access) or it may be presented and may run as an embedded application within the overall platform framework.
You may not use the features and functionality, web pages or parts of web pages, or application outputs (e.g., compiled presentation reports (“CMA Reports”)) that are generated by means of the Real Estate Technology Platform (other than Your Content contained therein), on any applications, devices or servers other than servers controlled by MoxiWorks without MoxiWorks’s express written authorization. Notwithstanding the foregoing, you may store CMA Reports in .pdf format on Your personal computing devices. You acknowledge and agree that the Real Estate Technology Platform is intended for access and use by means of web browsing software, and that MoxiWorks does not commit to support any particular web browsing platform. MoxiWorks reserves the right at any time to revise and modify the Real Estate Technology Platform, release subsequent versions and to alter features, specifications, capabilities, functions and other characteristics of the Real Estate Technology Platform, without notice to You. If any revision or modification to the Real Estate Technology Platform materially changes Your ability to conduct business, Your sole remedy is to cancel this Agreement and stop using the Real Estate Technology Platform.
4. PAYMENT AND TAXES
Your right to access and use the Real Estate Technology Platform is conditioned upon and subject to Your payment of the then-current use fees (“Usage Fees”), as established by MoxiWorks from time to time, and any applicable federal, state, or local sales, use, excise, value-added or similar taxes or dues due in connection with Your use of the Real Estate Technology Platform (“Taxes”). In the event You fail to pay the Usage Fees and/or Taxes in a timely manner, MoxiWorks may immediately suspend or terminate Your access to and use of the Real Estate Technology Platform without notice and without liability.
You will pay all Usage Fees, Taxes and any additional fees that are due in connection with Your use of the Real Estate Technology Platform. You will create a billing account for such payments. You will be presented with one or more billing options when You set up Your billing account (e.g., credit card payment, invoice issued via email or other delivery method). You will keep all information in Your billing account accurate. You may change the information in Your billing account and Your payment method at any time (provided there are alternate payment methods offered by MoxiWorks).
You authorize MoxiWorks to charge You for the Real Estate Technology Platform using the payment method You establish in Your billing account. MoxiWorks may bill You (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) on a recurring basis for subscription services. If You receive an invoice for Your access and use of the Real Estate Technology Platform, You will pay the invoice in accordance with the payment terms described in the invoice (i.e., via check or wire transfer within certain number of days).
You are responsible for Taxes and for all other charges You may incur in connection with using the Real Estate Technology Platform (e.g., Internet Service Provider fees).
MoxiWorks may change the price for the Real Estate Technology Platform at any time and the change will go into effect immediately.
All charges are earned when received and are non-refundable, except as otherwise provided in a MoxiWorks written refund policy or as required by law.
MoxiWorks may assess a late charge if You don’t pay on time. You must pay these late charges when MoxiWorks bills You for them. The late charge will be the lesser of 1% of the unpaid amount per month or the maximum rate allowed by applicable law. You will pay all costs that MoxiWorks may incur to collect any past due amounts, including reasonable attorneys’ fees and other legal fees and costs.
In certain situations MoxiWorks may accept payment from third parties on Your behalf (e.g., broker paying on behalf of agent), if the third party fails to make any payments then You will remain responsible for any payments due under this Section.
5. TERM AND TERMINATION
This Agreement commences on the date that You first access and use the Real Estate Technology Platform and continues until terminated by either party in accordance with this Section. Either party may terminate this Agreement at any time and for any reason upon written notice to the other party. In the event of termination, MoxiWorks may, at its option, permanently delete from its servers any and all information and content (including Your Content) that You have uploaded to the Real Estate Technology Platform, including but not limited to any web pages generated by You or the Real Estate Technology Platform and any CMA Reports generated by You or the CMA Application. MoxiWorks will not be responsible or liable for such deleted information and content.
6. SUSPENSION
MoxiWorks may, in addition to its right to terminate this Agreement, suspend all or part of the Real Estate Technology Platform and/or suspend or limit Your access to the Real Estate Technology Platform if MoxiWorks determines any such suspension to be necessary for any technical, security, or other reason.
7. USE GUIDELINES
You acknowledge and agree that MoxiWorks may, from time to time during the term of this Agreement, issue instructions, use guidelines, and policies regarding Your use of the Real Estate Technology Platform and that You will be bound by such guidelines upon their issuance.
8. ACCESS AND SECURITY
You may receive a password from MoxiWorks to access and use the Real Estate Technology Platform. You agree to keep Your password confidential. You are fully responsible for all activities that occur under Your password on the Real Estate Technology Platform. You agree to immediately notify MoxiWorks of any unauthorized uses of the Real Estate Technology Platform or any other breaches of security of which You become aware. You acknowledge and agree that MoxiWorks will not be liable for any acts or omissions of You or any user of the Real Estate Technology Platform to whom You gave access, including any damages of any kind incurred as a result of such acts or omissions.
9. YOUR CONTENT
You may be able to upload content on the Real Estate Technology Platform (including, but not limited to, Your personal information, data, text, links to content, software, music, sound, photographs, graphics, videos, messages or other materials (collectively, “Your Content”)). You are legally responsible for all of Your Content that You upload, post or store on or in connection with the Real Estate Technology Platform. You represent and warrant that (a) You have all necessary rights in and to all of Your Content; (b) Your Content does not infringe any proprietary or other rights of any third party; (c) Your Content is accurate and will not cause injury to any person; and (d) You will indemnify MoxiWorks and its employees, officers, directors, affiliates, contractors, suppliers, and agents, for all claims resulting from Your Content. You grant MoxiWorks a worldwide, royalty-free, non-exclusive license to host and use Your Content in connection with its operation of the Real Estate Technology Platform and otherwise in connection with MoxiWorks’s business operations (including rights to use, reproduce, modify, publish, create derivative works of, display, transmit, and broadcast).
10. WSLLC CONTENT; MLS CONTENT AND TERMS
MoxiWorks may make its own or third party content available to You for use on the Real Estate Technology Platform (“MoxiWorks Content”). Your use of the MoxiWorks Content will be limited to use on the Real Estate Technology Platform and You may only modify the MoxiWorks Content if modification is expressly permitted by use instructions on the Real Estate Technology Platform. You may not use any trademarks, product or service names of MoxiWorks without MoxiWorks’s prior written permission. Without limiting the foregoing, (a) information about and photographs of individual properties are provided by the listing agent and/or by the multiple listing service (MLS) for the area in which the subject property is located, and may not be copied or used in any manner without the express permission of the copyright owner; and (b) information about individual properties will be provided by one or more multiple listing services (MLS) and subject to terms and disclaimers provided by each MLS, including those attached hereto as Attachment 1 (“MLS Terms”).
MoxiWorks may update Attachment 1 to add or remove MLS content and the applicable terms or to reflect revised terms applicable to any MLS content that is made available in connection with the Real Estate Technology Platform. You agree to comply with the MLS Terms and to only access and use the MLS content for which You are authorized (e.g., certain MLS content may be restricted for use by agents in certain geographic regions and/or that are members of certain regional or national organizations). The MLS Terms will describe the requirements for access and use of the various MLS content.
11. PUBLIC COMMUNICATION
You may have the opportunity to communicate with others via chat, forums, bulletin boards, or other similar types of communication on or through the Real Estate Technology Platform. In connection with such public communications, You may not upload, post, reference or link to any content that (a) is illegal, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate, or objectionable; or (b) violates any acceptable use policies that MoxiWorks may issue in connection with the Real Estate Technology Platform. You agree that (i) these are public and not private communications; (ii) You have no expectation of privacy concerning Your use of or participation in any communication channels made available on or through the Real Estate Technology Platform; and (iii) personal information that You share publicly on or through the Real Estate Technology Platform may be seen and used by others and may result in unsolicited communications. MoxiWorks is not responsible or liable for any information that You choose to publicly communicate on or through the Real Estate Technology Platform, or for the actions of any other users accessing web pages or features made available on or through the Real Estate Technology Platform.
12. PROPRIETARY RIGHTS AND OWNERSHIP
You acknowledge and agree that the Real Estate Technology Platform and MoxiWorks Content contains proprietary and confidential information that is protected by copyright, patent, trademark, trade secret and other applicable intellectual property and other laws. Except for Your limited access and use license, (a) You may not use, copy, transmit, modify, distribute or create any derivative works of the Real Estate Technology Platform or the MoxiWorks Content; and (b) MoxiWorks and its third party suppliers retain all right, title and interest in and to the Real Estate Technology Platform and the MoxiWorks Content.
13. SUPPORT
MoxiWorks has no obligation to provide support to You in connection with Your use of the Real Estate Technology Platform.
14. INDEMNIFICATION
You agree to defend, indemnify and hold harmless MoxiWorks and its employees, officers, directors, affiliates, contractors, suppliers, and agents from and against any and all liabilities, claims and expenses (including attorneys’ fees) that arise from Your breach of this Agreement or Your breach of any MLS Terms or in connection with Your use of the Real Estate Technology Platform or any of Your Content that You upload to the Real Estate Technology Platform. Without limiting the foregoing indemnification obligations, MoxiWorks reserves the right to, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You. You agree to reasonably cooperate as requested by MoxiWorks in the defense of any claims.
15. DISCLAIMER OF WARRANTIES; LIMITATIONS ON LIABILITY
THE REAL ESTATE TECHNOLOGY PLATFORM AND THE INFORMATION, SOFTWARE, PRODUCTS AND SERVICES (INCLUDING ANY HOSTING SERVICES) ASSOCIATED WITH IT ARE PROVIDED "AS IS." MOXIWORKS AND/OR ITS AFFILIATIES, SUPPLIERS AND REAL ESTATE PROFESSIONALS DISCLAIM ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO THE REAL ESTATE TECHNOLOGY PLATFORM AND ANY INFORMATION, SOFTWARE, PRODUCTS AND SERVICES PROVIDED HEREIN, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. USE OF THE REAL ESTATE TECHNOLOGY PLATFORM IS AT YOUR OWN RISK. MoxiWorks, ITS AFFILIATES, ITS SUPPLIERS AND REAL ESTATE PROFESSIONALS ARE NOT LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR OTHER INJURY ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF REAL ESTATE TECHNOLOGY PLATFORM OR WITH THE DELAY OR INABILITY TO USE THE REAL ESTATE TECHNOLOGY PLATFORM, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS AND SERVICES OBTAINED THROUGH THE REAL ESTATE TECHNOLOGY PLATFORM, OR OTHERWISE ARISING OUT OF THE USE OF THE REAL ESTATE TECHNOLOGY PLATFORM, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF MoxiWorks OR ITS SUPPLIERS HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE AGGREGATE LIABILITY OF MoxiWorks, ITS AFFILIATES, SUPPLIERS, AND REAL ESTATE PROFESSIONALS UNDER OR IN CONNECTION WITH THIS AGREEMENT AND THE REAL ESTATE TECHNOLOGY PLATFORM SHALL NOT, FOR ANY REASON, EXCEED ONE THOUSAND DOLLARS (US$1,000).
16. DISPUTE RESOLUTION
You agree that any claim or controversy arising out of or relating to this Agreement and/or the use of the Real Estate Technology Platform will be governed by the laws of the State of Washington, and that venue for any action arising from or related to this Agreement and/or the use of the Real Estate Technology Platform will be solely in any court of competent jurisdiction in Seattle, King County, Washington, USA. If either party employs attorneys to enforce any rights in connection with any such dispute or lawsuit the prevailing party will be entitled to recover reasonable attorneys' fees.
17. ASSIGNMENT
You may not assign this Agreement, in whole or in part, without the prior written consent of MoxiWorks, and any attempted assignment will be void. MoxiWorks may assign this Agreement upon written notice to You. This Agreement will bind and inure to the benefit of permitted assigns.
18. RELATIONSHIP OF PARTIES
This Agreement will not establish a partnership, joint venture, employment, franchise, or agency between MoxiWorks and You. Neither party will have the authority to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. Except as otherwise expressly provided herein, there will be no third-party beneficiaries to this Agreement.
19. COPYRIGHT INFRINGEMENT NOTICE
MoxiWorks respects the intellectual property rights of others, and will respond promptly to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. If You believe that any content appearing on the Real Estate Technology Platform constitutes copyright infringement, please provide us with the following information: (a) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (b) identification of the copyrighted work claimed to have been infringed; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (d) Your contact information, including Your address, telephone number, and an email address; (e) a statement by You that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and, under penalty of perjury, that You are authorized to act on behalf of the copyright owner. Our designated copyright agent for notice of alleged copyright infringement appearing on the Real Estate Technology Platform is:
MoxiWorks
Attn: Chief Finance Officer
815 Western Avenue, Suite 400
Seattle, Washington 98104
copyright@moxiworks.com
20. FEEDBACK
You may from time to time provide feedback, suggestions, ideas, or other comments to MoxiWorks regarding the Real Estate Technology Platform or other MoxiWorks existing or potential services (“Feedback”). Feedback will be given entirely voluntarily. MoxiWorks will be the sole owner of Feedback, and will be free to use, disclose, reproduce, license or otherwise distribute and exploit Feedback as it sees fit, entirely without obligation or restriction of any kind.
21. THIRD PARTY SERVICES AND LINKS
The Real Estate Technology Platform may incorporate third party services (e.g., Google Analytics, Google Mapping) and Your use of such third party services will be at Your own risk and subject to any additional terms provided with the service. MoxiWorks will not be liable or responsible for the third party service, including as to delivery and accuracy. The Real Estate Technology Platform may include links to third party sites and content and Your use of such third party sites and content will be at Your own risk and subject to any additional terms applicable to the third party sites and content. MoxiWorks will not be liable or responsible in any way for such third party sites and content.
22. PRIVACY
You acknowledge and agree that MoxiWorks may use Your personal information submitted by You in accordance with the terms of the MoxiWorks Privacy Policy. You agree to the terms of the MoxiWorks Privacy Policy and those terms are incorporated herein by reference. You may access and review the MoxiWorks Privacy Policy at http://moxiworks.com/privacy-policy/.
You acknowledge and agree that if You permit third party end users to access and submit personal information on web pages or other features made available as part of the Real Estate Technology Platform that (a) You will maintain such information in confidence and in accordance with Your privacy policy that complies with applicable laws (including necessary consents and authorizations from end users) and that is posted on each web page or location where such information is collected; (b) You will inform each end user that MoxiWorks may retain and use such end user’s personal information in accordance with the MoxiWorks Privacy Policy.
23. CONFIDENTIALITY
You agree to that this Agreement and the non-public components of the Real Estate Technology Platform and all non-public information provided in connection with this Agreement and the Real Estate Technology Platform are the confidential and proprietary information of MoxiWorks and its third party suppliers (“MoxiWorks Confidential Information”). You agree not to disclose MoxiWorks Confidential Information to any third party without the prior written consent of MoxiWorks. If You are required by law to disclose any MoxiWorks Confidential Information You agree to provide MoxiWorks with as much advance notice and an opportunity to intervene to prevent or limit such disclosure before complying with any legally required disclosure. You agree to protect MoxiWorks Confidential Information in the same manner that You protect Your own confidential information but in no event to use less than industry standard efforts.
24. FORCE MAJEURE
Except for any obligations to make payments, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including but not limited to, acts of war, acts of terrorists, acts of God, earthquake, flood, embargo, riot, labor shortage or dispute, and/or failure of the internet.
25. YOUR END USER TERMS
You agree to include valid and enforceable terms of use applicable to end users that access and use any web pages or other public facing features resulting from Your use of the Real Estate Technology Platform. These terms of use will include terms and conditions as protective of MoxiWorks as those contained in this Agreement.
26. NOTICE
MoxiWorks may provide You notice under this Agreement to the email address that You provide when registering for access and use of the Real Estate Technology Platform. Notices emailed to You will be deemed given and received when the email is sent. You may provide notice under this Agreement to MoxiWorks to the following address:
MoxiWorks
Attn: Chief Financial Officer
815 Western Avenue, Suite 400
Seattle, Washington 98104
27. SURVIVAL
The following Sections will survive the expiration or termination of this Agreement: 1, 4 (to the extent any payments remain due), 5, 9, 12, 14, 15, 16 - 18, 20 - 23, and 26 - 28.
28. INTEGRATION AND SEVERABILITY
This Agreement constitutes the entire agreement between You and MoxiWorks and supersede any prior agreement(s) pertaining to the Real Estate Technology Platform (including prior versions of this Agreement). If any provision of this Agreement is found by a court of competent jurisdiction to be void or unenforceable the parties agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision and that the other provisions of this Agreement will remain in full force and effect.