Subscriber
Agreement Last Updated: [March 1, 2021]
|
NEW SUBSCRIBERS: For Subscriptions commenced on or after March 4, 2018, click here to access the Terms & Conditions applicable to your Subscription. The Subscriber Agreement below applies only to Subscriptions commenced on or before March 3, 2018.
Important
Note: All services are for the term as specified in your official invoice and
order confirmation. Please ensure you review and accept this information.
Customer
Support. You can contact
our Customer Care team for answers to product questions, technical assistance,
and account or billing inquiries during the hours of operation posted at www.topproducer.com/support (excluding U.S. holidays and reasonable periods of
downtime).
Call 1-800-830-8300 (North America toll free)
Email support@topproducer.com
Live Chat on www.topproducer.com/support
PARTS
OF THIS SUBSCRIBER AGREEMENT DOCUMENT
This document consists of three (3) parts:
The
Main Subscriber Agreement Terms this part
begins immediately below, it ends after Section 17 (Miscellaneous Terms), and it applies to every Subscription and
Application;
Supplemental
Terms for the Market Snapshot service this part begins immediately after the main Subscriber Agreement
terms, it ends where indicated below, and it applies only to Subscriptions for
the Market Snapshot service/Application.
Also, the terms contained in this part are specific to the Market Snapshot service/Application
and might conflict with (and thus supersede) some of the provisions in the
first part of this document (i.e., the main Subscriber Agreement terms); and
Supplemental
Terms for the Top Producer Websites service this part begins immediately after the Supplemental Terms for
the Market Snapshot service,
it ends where indicated below, and it applies only to Subscriptions for
the Top Producer Websites service/Application.
Also, the terms contained in this part are specific to the Top Producer Websites service/Application
and might conflict with (and thus supersede) some of the provisions in the
first part of this document (i.e., the main Subscriber Agreement terms).
Note also that, for convenience, there is
included at the end of this document (after the several sets of Supplemental
Terms) an index to defined terms used in this document.
THE
PARTIES TO THIS AGREEMENT
If you are a customer residing in Canada (a Canada
Customer), then this Agreement is between you and Top Producer
Software Corp. In that case, Company, when used in this Agreement, means Top Producer Software
Corp. Top Producer is organized under the laws of the Province of Ontario
and having a principal place of business at 8133 Warden Ave. 7th Floor Markham,
ON l6G 1B3, Canada.
If you are a customer residing in the U.S.A. or
anywhere other than Canada (a USA Customer), then this Agreement is
between you and Top Producer Software, Inc. In that case, Company, when used in this Agreement means
Top Producer Software, Inc. Top Producer Software, Inc. is a corporation
organized under the laws of the State of Delaware and having a principal place
of business at 11350 McCormick RD EP3 Ste 200 Hunt
Valley, MD 21031, USA.
SUBSCRIPTION
TO ONE OR MORE APPLICATIONS
Thank you for purchasing a subscription (a Subscription) to have access to and use of
one or more products or services offered by the Company (each, an Application). This Subscriber
Agreement (this Agreement)
governs your Subscription(s) and your receipt of, access to and use of the
relevant Application.
BINDING
AGREEMENT
You are entering into, and agree to be bound by
the terms of, this Agreement (i) by clicking the I Agree button
below (or similar button), or (ii) by downloading, installing, accessing, or using the
Application or any part of it, or, where the Application consists of services,
by accepting any performance or results of such services or (iii)
for those Applications as to which it is stated that this Agreement applies to,
governs or is a requirement of access to or receipt or use of the Application
or any of its features or benefits, by your
submitting, agreeing to, or making or authorizing a payment for, an order for
the Application or any of its features or benefits. Unless context requires
otherwise, references in the terms of this Subscriber Agreement document to this Agreement will be construed to mean
and include the terms of this Subscriber Agreement document (including any
policies, rules and other requirements that are expressly incorporated into or
otherwise made binding by such terms, and any relevant Supplemental Terms), all
applicable Supplier Rules, and all Amendments. Please understand that this
Agreement is a legally binding agreement between you (either an individual or
legal entity) and Company, and it contains important rights, duties and
restrictions. If you do not agree to all of the terms in this Agreement and all
of the terms incorporated by reference herein via referenced documents, website
terms, URL links or otherwise, you should not click the I Agree button (or
similar button) below, you should not download, install, access, or use the
Application or any part of it, or accept any performance or results of
services, and you should promptly contact Company for instructions with respect
to receiving a refund of any amounts that you have paid to purchase the
Subscription. In such case, you will be provided with a refund only if you
contact Company within three (3) business days after the date of your order for
the Application. Company may transmit or otherwise send to you, or post for
your review or reference, an invoice or other statement to confirm your order ("Invoice").
If an Application is offered or provided subject
to additional rules, conditions, agreements, policies, guidelines or
requirements specific to the Application or otherwise required as a condition
to your Subscription to that Application (Supplemental
Terms), then you agree that your access to, use of or receipt of
benefits from the Application is subject to, and you hereby agree to comply
with, (i) any such Supplemental Terms (which terms,
if not included via a hypertext link in, or as an addendum to or part of, this
Agreement, typically will be notified to you at the time you submit, accept, or
make or authorize a payment for, your order), and (ii) consistent with Section
16 below, any changes to or updating of such Supplemental Terms. In the event
of any conflicts or inconsistencies between any applicable Supplemental Terms
and the other terms of this Subscriber Agreement document, the Supplemental
Terms will control.
1. SUBSCRIPTIONS - FOR SUBSCRIPTIONS ENTERED INTO BEFORE
APRIL 1, 2017
Term. The Application is available only through the purchase of a
Subscription. (If no fee is charged for the Application at the time of your
subscription, then such purchase is
your consenting to this Agreement insofar as it is offered by Company for your
acceptance regarding such Application.) Your Subscription shall commence
immediately upon Companys acceptance of your order to purchase that
Subscription, which may precede the date on which you begin using the
Application. The initial term of your Subscription (the Initial Term) shall be as agreed upon by
you and Company during registration and reflected in the Invoice, but in the
event that no term is listed in the Invoice, then the Initial Term shall be one
(1) year in length.
Automatic
Renewal. Upon completion of the Initial Term, your
Subscription will renew automatically on a month-to-month basis (each, a Renewal Month) unless you provide Company
with notice of termination at least thirty (30) days prior to the end of the
Initial Term. Any such notice must be provided to Company by speaking with a
Company customer service representative, by dialing the Customer Service Line
during the business hours posted at www.topproducer.com/support. The Customer Service Line
is 1-800-830-8300 or
such other number as specified by Company from time to time. If you provide
Company with the appropriate termination notice prior to the end of the Initial
Term, your Subscription shall continue only until the end of the Initial Term,
and you shall be liable only for those fees, taxes and other charges assessed
by Company under, or otherwise due under, this Agreement in connection with
your Subscription (collectively, Subscription
Fees) that accrue prior to such date. After the Initial Term, you
may terminate your Subscription as of the end of any Renewal Month by speaking
with a Company customer service representative by dialing the Customer Service
Line during the business hours posted at www.topproducer.com/support.
Billing
Information. For purposes of billing, identification, and
future communications, you must provide Company with all information requested
by Company at the time you submit your Subscription order. Without limitation,
you must provide your full legal name, address, telephone number(s), email
address, and applicable payment data (e.g., a credit card number and expiration
date). Further, you must promptly provide Company with all updates necessary to
keep such information accurate, current, and complete. The privacy
policy/statement at https://www.topproducer.com/privacy
(the Privacy
Statement) governs Companys collection and use of your personal
information.
Subscription
Fees. You agree to pay all Subscription Fees. Subscription Fees will be as
published by Company from time to time or otherwise quoted to you in writing
(electronically or otherwise). Subscription Fees will be reflected in the
Invoice provided to you or will otherwise be quoted or documented to you by
Company. Subscription Fees are subject to change by Company from time to time
in its sole discretion. Company may establish or change Subscription Fees for
Renewal Months by specifying such fees via one or more of the Subscriber
Notification Methods in advance of the applicable Renewal Month. The Subscriber Notification Methods include (i) a posting to any of the
websites (or their successor site(s)) located at www.topproducer.com or www.topproduceronline.com (or on a sub-page of any of those websites), (ii) the
posting of a notice on or in the relevant Application itself or any of its
reports or output, (iii) the sending of an email message to you (at the
last known email address we have on file for you), or (iv) any other reasonable
method of notifying you, either orally or in writing (electronic or otherwise).
All Subscription Fees will be billed to the credit card that you designate
during registration (or such other credit card as you may designate from time
to time). All monthly, annual, or other periodic Subscription Fees are due and
will be billed automatically to your credit card at the start of each such period
(or in accordance with such other billing cycles as Company may adopt). For
Renewal Months, the monthly Subscription Fees are due and will be billed to
your credit card each month on the date that corresponds with the anniversary
date of your Subscription (or in accordance with such other billing cycles as
Company may adopt). Subscription Fees regarding an Application are
nonrefundable unless otherwise expressly provided in this Agreement. At
Companys discretion, past due Subscription Fees are subject to a late-payment
service charge at the rate of 1.5% per month, or the maximum permitted by law,
whichever is less. You shall be responsible for all expenses (including,
without limitation, reasonable attorneys fees) incurred by Company in
connection with the collection of any past due Subscription Fees. You are
responsible for, and agree to reimburse Company for any payment by it of, any and all taxes of any kind or nature (including,
without limitation, value-added, sales, use, excise, license, services and like
taxes), and all penalties, interest or other assessments relating thereto,
arising from this Agreement (excepting taxes based on Companys income).
You hereby
authorize Company to debit your credit card for any and all amounts owed by you
hereunder, and you will keep such credit card as you register with Company for
this purpose in effect and in good standing and with available open credit
sufficient to cover any such amounts arising under this Agreement. If for any
reason the credit card that Company has on file for you becomes, in Companys
understanding or judgment, cancelled, invalid, insufficient, non-authorized,
frozen, unavailable, unreliable or for any reason unusable or ineffective for
prompt payment to Company, then you will immediately provide Company with a
replacement credit card and related information; all authorizations hereunder
will apply to any such replacement credit card(s). In addition, if Company
requests that you provide a back-up credit card, then you will immediately
provide Company with a back-up credit card and related information; all
authorizations hereunder will apply to any such back-up credit card(s) and
Company may debit the primary or any back-up credit card in its discretion, to
the extent necessary to satisfy such amounts as are then due from you under
this Agreement. You authorize Company, its Affiliates, contractors and service
providers to have access to, use, store and communicate your credit card
information, contact information and all other data identifying or pertaining
to you but only insofar as is reasonably related to the performance,
enforcement or administration of this Agreement or your account or provision or
administration of any Application; Company will comply (and require its
relevant Affiliates, contractors and service providers to comply) with the
applicable terms of the Privacy Statement regarding such information/data.
Company reserves the right to invoice, bill or otherwise request or demand
payment from you in any other lawful method, in which case you will make
payment of such invoice, bill or other demand or request as soon as possible
but in no event later than within ten (10) business days after your
receipt of same. You are responsible for
and shall immediately reimburse us for (if
we have paid same) all chargebacks, penalties and other
related charges, assessments and costs asserted by any credit card company,
bank, payment processor or other organization involved in the payment process
(CC Assessments) unless the sole cause of
the CC Assessment was Companys breach of this Agreement or violation of
applicable law.
SUBSCRIPTIONS
- FOR SUBSCRIPTIONS ENTERED INTO ON OR AFTER APRIL 1, 2017
Initial
Term. The initial term of your Subscription (the Initial Term) shall be as set forth in the
Order Terms. If the Order Terms are silent as to the duration of the Initial
Term, then the Initial Term of this Agreement shall be twelve months (or such
other duration as might be indicated by the pricing or invoicing applicable to
the Order or the relevant Application).
Renewal. This Agreement may be renewed either by mutual agreement or by way of
Auto Renewal as provided for below. The duration/term of any renewal (the Renewal Term) shall be: for renewals by
mutual agreement, the duration then agreed upon; and for Auto Renewals, the
Auto-Renewal Term as provided for below. Companys fees and charges in effect
for the applicable Application at the time of any renewal shall apply to such
renewal. Such charges may be changed by Company at any time and without notice,
but such changes, unless otherwise provided in your Order Terms, will not apply
except for new Orders, renewals and Orders that are on a month to month basis
or without any fixed term.
Auto
Renewal. Except as otherwise provided herein, for any
Application indicated in the Order Terms or an Auto-Renewal Notice (as defined
below) as being subject to Auto-Renewal, this Agreement shall renew
automatically at the end of the Initial Term or any then
current Renewal Term for an additional term (an Auto-Renewal Term), of either the duration
set forth in the Auto-Renewal Notice (as defined below) or, if no duration is
set forth in the Auto- Renewal Notice, thirty (30) days (each such renewal, an
Auto Renewal), either at the rate set
forth in the Order or at the standard rate in effect at the time of such Auto
Renewal, as set forth in the Auto-Renewal Notice. Notwithstanding the
foregoing, the Order Terms or any Auto-Renewal Notice for an Application may
indicate that the term for the Application will automatically renew on a
month-to-month basis at the end of the then-current term, in which case such
monthly automatic renewal will control and will continue (without further
Auto-Renewal Notices) until such time as (a) Company provides you with an
Auto-Renewal Notice for such Application specifying a different Auto-Renewal
Term for such Application, (b) Company notifies you that such Application is no
longer subject to Auto Renewal or (c) you cancel the automatic renewal as set
forth below. The automatic renewal described in this paragraph shall occur
and continue unless and until you elect to terminate this Agreement by timely
calling the Customer Service Line during the business hours posted at
www.topproducer.com/support, excluding U.S. holidays, and communicating
such decision to terminate. The Customer
Service Line is 1-800-830-8300 or
such other number as specified by Company from time to time. To be timely and effective, you must call
the Customer Service Line during the business hours posted at www.topproducer.com/support, excluding U.S. holidays, and communicate such decision to
terminate no later than the last business day of the
Initial Term or the then-current Renewal Term. If you provide Company with the
appropriate termination notice prior to the end of the Initial Term or any
Renewal Term, your Subscription shall continue only until the end of such term,
and you shall be liable only for those fees, taxes and other charges assessed
by Company under, or otherwise due under, the Order Terms and this Agreement in
connection with your Subscription (collectively, Subscription Fees) that accrue prior to
such date. You may receive a notice from Company by email or otherwise no less
than thirty (30) days prior to the end of the Initial Term or any then current Renewal Term informing you that your
order is subject to Auto-Renewal, or if your Order Terms state that your Order
is subject to Auto-Renewal, you will receive a notice from Company by
email or otherwise no less than thirty (30) days prior to the end of the
Initial Term or any then current Renewal Term
reminding you that this Agreement is coming up for renewal (each, an Auto-Renewal Notice). Note that any
terms, conditions, or information provided via link within the Auto-Renewal
Notice shall be considered to be part of the Auto-Renewal Notice.
Notwithstanding the foregoing, in the event that the Auto-Renewal Notice or any
other notice or communication provided to you by Company states that one or
more Applications is not subject to Auto Renewal, then such Application(s) will
not automatically renew as provided for in this paragraph, regardless of
whether such Application(s) had been identified in the Order Terms as being
subject to Auto-Renewal.
Definitions. The following definitions apply to this Section 1, Subscriptions -
Subscriptions Entered Into On Or After April
1, 2017:
Order means an
order or purchase by you from Company of an Application, whether by way of a
Purchase Agreement, a telephone order, an online order (when and if available)
or any other means available from Company. If you order or purchase multiple
Applications by way of a single telephone call, online session, Purchase
Agreement, transaction or set of Order Terms, then, for purposes of this
Agreement, separate and distinct Order, Order Terms and Agreement shall be
deemed to exist as to each Application thus purchased and this Agreement shall
be construed accordingly.
Order Terms means the terms and conditions (other than this Agreement) associated
with a particular Order (or a renewal thereof) as contained in a Purchase
Agreement, as included as part of the Order process and confirmed to you by
Company via a confirming email message, or as otherwise agreed between you and
Company and documented by Company by way of an Order confirmation or otherwise.
Purchase Agreement means Order Terms as documented in a Company-issued document styled as
an Invoice, Purchase Agreement or Order Form.
Billing
Information. For purposes of billing, identification, and
future communications, you must provide Company with all information requested
by Company at the time you submit your Subscription order. Without limitation,
you must provide your full legal name, address, telephone number(s), email
address, and applicable payment data (e.g., a credit card number and expiration
date). Further, you must promptly provide Company with all updates necessary to
keep such information accurate, current, and complete. The privacy
policy/statement at https://www.TopProducer.com/privacy
(the Privacy
Statement) governs Companys collection and use of your personal
information.
Subscription
Fees. You agree to pay all Subscription Fees. Subscription Fees will be as
published by Company from time to time or otherwise quoted to you in writing
(electronically or otherwise). Subscription Fees will be reflected in the
Invoice provided to you or will otherwise be quoted or documented to you by
Company. Subscription Fees are subject to change by Company from time to time
in its sole discretion. All Subscription Fees will be billed to the credit card
that you designate during registration (or such other credit card as you may
designate from time to time). All monthly, annual, or other periodic
Subscription Fees are due and will be billed automatically to your credit card
at the start of each such period (or in accordance with such other billing
cycles as Company may adopt). For Renewal Months, the monthly Subscription Fees
are due and will be billed to your credit card each month on the date that
corresponds with the anniversary date of your Subscription (or in accordance
with such other billing cycles as Company may adopt). Subscription Fees
regarding an Application are nonrefundable unless otherwise expressly provided
in this Agreement. At Companys discretion, past due Subscription Fees are
subject to a late-payment service charge at the rate of 1.5% per month, or the
maximum permitted by law, whichever is less. You shall be responsible for all
expenses (including, without limitation, reasonable attorneys fees) incurred
by Company in connection with the collection of any past due Subscription Fees.
You are responsible for, and agree to reimburse Company for any payment by
it of, any and all taxes of any kind or nature
(including, without limitation, value-added, sales, use, excise, license,
services and like taxes), and all penalties, interest or other assessments
relating thereto, arising from this Agreement (excepting taxes based on
Companys income).
You hereby
authorize Company to debit your credit card for any and all amounts owed by you
hereunder, and you will keep such credit card as you register with Company for
this purpose in effect and in good standing and with available open credit
sufficient to cover any such amounts arising under this Agreement. If for any
reason the credit card that Company has on file for you becomes, in Companys
understanding or judgment, cancelled, invalid, insufficient, non-authorized,
frozen, unavailable, unreliable or for any reason unusable or ineffective for
prompt payment to Company, then you will immediately provide Company with a
replacement credit card and related information; all authorizations hereunder
will apply to any such replacement credit card(s). In addition, if Company
requests that you provide a back-up credit card, then you will immediately
provide Company with a back-up credit card and related information; all
authorizations hereunder will apply to any such back-up credit card(s) and
Company may debit the primary or any back-up credit card in its discretion, to
the extent necessary to satisfy such amounts as are then due from you under
this Agreement. You authorize Company, its Affiliates, contractors and service
providers to have access to, use, store and communicate your credit card
information, contact information and all other data identifying or pertaining
to you but only insofar as is reasonably related to the performance,
enforcement or administration of this Agreement or your account or provision or
administration of any Application; Company will comply (and require its
relevant Affiliates, contractors and service providers to comply) with the
applicable terms of the Privacy Statement regarding such information/data.
Company reserves the right to invoice, bill or otherwise request or demand
payment from you in any other lawful method, in which case you will make
payment of such invoice, bill or other demand or request as soon as possible
but in no event later than within ten (10) business days after your receipt of
same. You are responsible for and shall immediately reimburse us for (if we
have paid same) all chargebacks, penalties and other related charges,
assessments and costs asserted by any credit card company, bank, payment
processor or other organization involved in the payment process (CC Assessments) unless the sole cause of
the CC Assessment was Companys breach of this Agreement or violation of
applicable law.
Subscriber
Notification Methods. Company may provide you with certain notifications
described in this Agreement via the Subscriber
Notification Methods, which include (i) a
posting to any of the websites (or their successor site(s))
located at www.topproducer.com or www.topproduceronline.com (or on a sub-page of any of those websites), (ii) the
posting of a notice on or in the relevant Application itself or any of its
reports or output, (iii) the sending of an email message to you (at the
last known email address we have on file for you), or (iv) any other reasonable
method of notifying you, either orally or in writing (electronic or otherwise).
2. USER NAMES AND PASSWORDS; AUTHORIZATIONS. To the extent access to and use of an Application is by way of Internet,
Web, online or similar connection (as contrasted with access/use You obtain by
download or other delivery of software for installation on Your computer), You
will be required to choose (or, at Companys discretion, you will be assigned)
a user name and password for the Application. You are solely responsible for
maintaining the confidentiality and security of your user name and password,
and for all activities that occur under your user name and password. You must
notify Company immediately if you become aware of any unauthorized use of your
user name or password, or if you become aware of any other breach of security
regarding the Application. Company will not be liable for any loss or damage
that you may incur as a result of someone else using your user name or
password, either with or without your knowledge, and you agree to indemnify and
hold harmless Company from and against any and all losses it may suffer as a
result of such unauthorized use. Company is entitled to assume that anyone who
provides your user name and password is you or is acting as your agent or
otherwise on your behalf and with your full consent. You authorize Company to
deal openly and fully with any person who provides your user name and password,
and to do so as to all your Subscriptions. In the event an assistants license,
team license or other arrangement involving multiple user name-password sets,
and/or multiple persons having access to Applications you have Subscribed for,
is granted, agreed to or acquiesced in by Company, you will be responsible for
the security, safekeeping, management and control of such account(s), all such
user name-password sets, the relevant Application and other Company Items and
all receipt of, access to and use of same; and the above terms of this Section
2 shall be construed to apply in full in such circumstances to any and all such
accounts, user name-password sets and multiple- person use. FOR USE OF THE
MOBILE CRM INTERFACE: You may not allow the mobile version of the Top Producer
CRM interface to be accessed simultaneously on more than one (1) mobile device
by more than one (1) user under your user name and password. The Company may
monitor all mobile activity and any violation or suspected violation thereof
shall be considered a breach of this Agreement and Company may take any and all
action as a result thereof in accordance with this Agreement, including
terminating your Subscription(s) without a refund or abatement of any
Subscription Fees. In order to keep you apprised of matters potentially
of interest to you, you authorize Company and its affiliates, solely to the
extent permitted by applicable law, while you are a customer and thereafter, to
send you (directly or by way of Companys contractors, and via email, telephone
and SMS/text messaging (using the phone no.(s) provided in connection with any
purchase under this agreement or at the request of Company or any of its
affiliates), instant messaging, the Web, pager, PDA, fax (using the fax no.(s)
provided in connection with any purchase under this agreement or at the request
of Company or any of its affiliates), mail, courier, computer or otherwise, and
in such form and content, and with such frequency, as Company elects from time
to time) renewal, informational, advertising and promotional communications
regarding your account, your customer status, or products, services, data,
offerings, initiatives, events or other matters developed, offered, followed,
sponsored or promoted by Company or its affiliates or otherwise potentially of
interest to you.
3. INTERNET ACCESS; SYSTEM REQUIREMENTS. Use of the Application, or certain parts thereof, may require access to
the Internet. Additionally, use of the Application, or certain parts thereof,
may require particular equipment, software, data access and/or
telecommunications services, and Company may change those requirements from
time to time in its sole discretion and without prior notice. You are solely
responsible for obtaining, configuring, maintaining, and paying all fees,
taxes, expenses and other charges related to, any equipment, software, data
access and/or telecommunications services necessary for you to access the
Internet and/or make use of the Application.
4. APPLICATION LICENSE.
License
Grant. During the term of your Subscription, and subject to all terms and
conditions of this Agreement (including, without limitation, any applicable
Supplemental Terms), Company hereby grants you a personal, limited, revocable,
nonexclusive, non-sublicensable, nontransferable
license to do the following, but only for your own internal purposes (for
example, not for re-sale, shared use, distributed use, service bureau use,
framing or posting to, or using on or in, anothers website or other media,
etc.) and only in a manner consistent with (i) the
User Documentation provided by Company and relating to the Application (User Documentation), (ii) options clearly
permitted by Companys provision of templates or other presentation of the
Application, (iii) any applicable Supplier Rules and (iv) other express
authorizations, limitations and instructions by Company: (a) download, install,
and use on your personal computing device (or on multiple computing devices
insofar as use on multiple computing devices is possible without breaching this
Agreement and is not otherwise prohibited) any and all software components of
the Application that Company makes available to you for downloading over the
Internet; (b) install and use on your personal computing device (or on multiple
computing devices insofar as use on multiple computing devices is possible
without breaching this Agreement and is not otherwise prohibited) any and all
software components of the Application that Company provides to you on physical
media; (c) access and use any and all components of the Application that
Company makes available to you directly through the Internet using your
authorized username and password; (d) make use of any and all services
components of the Application; and (e) make use of any and all data, software,
tools, diagrams, materials, pictures, text, products, services, features,
Special Content and other information or Content representing components of, or
made available by Company through or in connection with, the Application (Included Content) that are made accessible
for your use. All rights not expressly granted are reserved.
Limitations. Except as expressly permitted above in this Section 4, you may not
receive, access, use or reproduce the whole or any part of the Application, any
Included Content, the User Documentation, any Modifications or any Copies (the
Company Items). You may not: (a) sell,
sublicense, rent, lend, lease, timeshare, publicly display or perform,
commercialize, or transfer any of the Company Items in whole or in part, or
otherwise make any of the Company Items in whole or in part available to any
third party; (b) use, on a re-seller, service bureau, shared-use or
distributed-use basis, any of the Company Items in whole or in part for the
benefit of any third party; (c) modify, translate, or create derivative works
of any of the Company Items in whole or in part; (d) reverse assemble, reverse
compile, or reverse engineer any of the Company Items in whole or in part; (e)
alter or modify any disabling, monitoring, tracking or data-capture mechanism
that may be resident in any of the any of the Company Items; (f) remove, alter,
or obscure any copyright notice or other proprietary notice or legend that is
on or in any of the Company Items; (g) use any part of any of the Company Items
to transmit or facilitate the creation or transmission of email messages in
violation of applicable laws or otherwise in excess of one thousand (1,000)
bulk or marketing email messages per day; or (h) receive, access or use any
part of any of the Company Items for fraudulent purposes, in violation of any
laws, regulations or rights of others, in any way that undermines, interferes
with or otherwise harms or threatens others, others activities or any of the
Company Items or their integrity, security, operability or stability, to harass
others, or in violation of this Agreement or the User Documentation (as any of
them may be modified from time to time). You agree to comply with all
applicable laws and regulations pertaining to your receipt of, access to or use
of any of the Company Items. Export of any of the Company Items, or of any
access to or use of any of them, is not permitted.
5. OWNERSHIP; CONFIDENTIALITY. The Application and other Company Items are being licensed to you, not
sold. Except for the limited license granted in Section 4 above (or elsewhere
expressly in this Agreement), the Company and its licensors own and
retain all right, title, and interest in and to
the Application in whole and in part, all Included
Content, all Modifications, the User Documentation, all copies of any of the
foregoing (Copies)
and all intellectual, industrial, and proprietary rights in or relating to any
of the foregoing (including, without limitation, all copyrights, patent rights,
trademark rights, and trade secret rights). You will keep confidential, take
reasonable steps to safeguard, not sell, transfer or distribute, not disclose
to or share with others, not make or permit any unauthorized use of, and at all
times act reasonably to preserve the security of, the Application and all other
Company Items. You acknowledge that a breach of this Agreement would cause
irreparable harm for which monetary damages would be an inadequate remedy. In
addition to any other remedies which may be available under this Agreement or
at law or in equity, you agree that Company will be entitled to preliminary and
permanent injunctive relief to enjoin and otherwise address any actual,
threatened or contemplated breach of this Agreement, without having to prove irreparable
harm or post any bond, and shall also have the right to have all obligations,
covenants and other provisions of this Agreement specifically performed. To the
extent deemed by Company necessary, useful or desirable to comply with or
respond to laws, regulations, subpoenas, lawsuits, claims, governmental
investigations or any related proceedings, to address actual or suspected
violations of laws or regulations, or to legally or informally defend,
prosecute or enforce any lawsuit, arbitration, legal or quasi-legal proceeding,
right or interest, Company shall be free in its discretion and without notice
to use and disclose any information or Content in its possession or control.
6. RESPONSIBILITY FOR USE; USER CONTENT.
Responsibilities. You are solely responsible for your use of the Application, any Included
Content, any Modifications, the User Documentation and any Copies, including,
without limitation, any such use by way of your user name and password
(collectively, Productive Use),
and for all consequences or results of such use. You are also solely
responsible for your use of any Content that is input, stored, transmitted or
otherwise introduced by way of such Productive Use, including, without
limitation, any such use by way of your user name and password, and all
consequences and results of such use. As used in this Agreement, Content means documents, files, images,
sound samples, files or media, video samples, files or media, data, software,
utilities, features, tools, diagrams, pictures, text, links, information, and
other content or materials. As used in this Agreement, User Content means any Content created by
or belonging to you, or obtained by you from or provided to you (directly, via
the Application or otherwise) by a third party, and that you publish,
distribute, allow, post, upload, link to, frame, display, transmit or make use
of in connection with Productive Use of the Application. You hereby
promise, represent and warrant to Company that any User Content, and also your
use of the same, will not: (a) infringe upon or otherwise violate any laws or
regulations, nor any intellectual or industrial property rights (including,
without limitation, copyrights, patent rights, trademark rights, and trade
secret rights), contract rights or any other rights (such as the rights of
privacy and publicity) of any third party; (b) contain or constitute any
software viruses, trojan horses, worms,
time bombs, other similar harmful or deleterious programming routines, or other
computer code, files, or programs designed to interrupt, destroy, or limit the
functionality of any equipment, software, or telecommunications services; (c)
contain or constitute any unlawful, harassing, abusive, harmful, threatening,
profane, defamatory, obscene or otherwise objectionable or offensive content,
characteristics or materials; or (d) violate any applicable laws.
Storage. You may store User Content on Companys servers for use with the
Application, and Company will use commercially reasonable efforts to backup such
User Content periodically. However, you acknowledge and agree that Company has
no responsibility or liability for any deletion, destruction, corruption, or
other loss of User Content. Company may, from time to time, set limits on the
amount of disk or storage space allotted to you for the Application on
Companys servers, including the storage of User Content. Further, Company may
charge storage fees for storing and/or backing-up User Content or for otherwise
exceeding your storage limits. You will be notified of any exceeding of such
limits and of any storage fees that apply (or any changes to either) via one or
more of the Subscriber Notification Methods.
License. You agree that Company (including its Affiliates, contractors and
service providers), subject to any specific restrictions expressly provided for
herein, shall have the right to make any and all use of (or to refrain from
using) any User Content, or other Content you or your suppliers provide in
connection with the Application or this Agreement, insofar as is necessary,
incidental or useful to Companys performing or administering this Agreement,
exercising its rights hereunder or providing, maintaining, supporting,
promoting or otherwise managing the Application (the Content License). The Content License,
without limiting the foregoing, shall be construed to permit Company to copy,
store, display, distribute, make derivatives of, adapt, abridge, add to, modify
and otherwise use all such Content as long as undertaken in exercise of the
rights granted in the foregoing sentence, and to do so by way of any and all
media, means and technology (whether or not now known or invented) as it
wishes. The Content License is worldwide, perpetual, irrevocable and
royalty-free. The Application uses features enabled by one or more third
parties. By using the Application, you agree to share your information with
third parties who provide such services to the Company. By purchasing a
Subscription or using the Application, you acknowledge and agree that such
third parties may access your personally identifiable information. Your
personally identifiable information includes, but is not limited to, your name,
email address, and authentication credentials. Such third parties may use your
personally identifiable information in accordance with their privacy policies.
7. TECHNICAL SUPPORT. Company will, to the extent commercially
reasonable, attempt to assist you with accessing and using the Application (Technical Support). Companys Customer
Service department will provide you with Technical
Support via telephone, live chat, or email. Customer service staff is
available during the hours posted at www.topproducer.com/support, excluding U.S. holidays and reasonable periods of
downtime. However, Technical Support response times may vary depending upon the
nature of the support requested and the quantity of other support requests.
Company may modify its Technical Support policies and procedures (including,
without limitation, availability dates and times and communication methods)
from time to time in its sole discretion and without notice. For further
information regarding Technical Support, please visit the www.topproducer.com website. You shall not be entitled to any abatement in
Subscription Fees for any failures of or delays in Technical Support
service or response times nor for any modifications of Technical Support
policies or procedures.
8. MAINTENANCE. Company will use commercially reasonable efforts
to promptly repair faults in the Application that materially degrade its
functionality or performance, or that cause it to be inaccessible to
subscribers for unreasonable periods of time; provided, however, that such obligations are conditioned on Company
being able to reproduce and confirm such faults and Your notifying Company, in
writing and through one or more of the Subscriber Notification Methods, of any
such fault within thirty (30) days after You discover or otherwise learn of it.
Company may also perform other maintenance on the Application from time to time
in its sole discretion. You shall not be entitled to any abatement in
Subscription Fees for any Application faults or downtime.
9. MODIFICATIONS. Company may upgrade, enhance, change, suspend,
discontinue, or otherwise modify any functions, features, aspects or components
of the Application, its presentation, the manner in which it is delivered,
accessed or made available, how it is used or operated, any Included Content
and the User Documentation (collectively, Modifications)
at any time in its sole discretion and without notice. Any Modifications made
available to you will be subject to the terms of this Agreement relating to the
Application. If required by the Company, You must promptly
replace the version of any Application or
component thereof You have installed on Your computer (and delete from your
computer and otherwise destroy all copies of same) with any such Modification
that the Company issues as a replacement version and specifies is required to
be used in place of one or more such prior versions. You shall not be entitled
to any abatement in Subscription Fees for reasons relating to Modifications,
any lack thereof or any failure or delay in providing same. Company reserves
the right in its sole discretion to separately price and charge for
Modifications.
10. SUSPENSION;
TERMINATION. If Company believes, in its sole discretion,
that you have breached, violated or otherwise failed to comply with any term or
condition in this Agreement, Company may (a) suspend your receipt of, access to
and use of the Application or any other Company Item, until such time as
Company believes, in its sole discretion, that you have cured such violation or
that a violation did not occur, or (b) terminate your Subscription(s) immediately
and without notice, or do so after a period of suspension if the problem has
not been satisfactorily cured or otherwise satisfactorily addressed during that
period. During any such period of suspension, and also in the event of any such
termination, you shall not be entitled to a refund or abatement of any
Subscription Fees. Company may also terminate your Subscription(s) for any
reason or for no reason upon thirty (30) days prior notice via one or more of
the Subscriber Notification Methods, in which event you shall receive a
prorated refund of any prepaid, periodic Subscription Fees (such proration to
be calculated using the date on which the Subscription terminated). Company
also reserves the right to terminate, suspend or otherwise limit your receipt of,
access to or use of the Application or any other Company Item, with or without
notice, if in its sole discretion it determines doing so is or could be
necessary, useful, prudent or helpful in connection to responding to,
investigating, redressing, dealing with or otherwise addressing any actual,
alleged, suspected or reasonably possible violation of law, harassment or
incitement of others, mischief, breach of this Agreement, infringement of
rights (of Company or others), breach of obligations to others or like
circumstances. In the event of any such suspension or termination, except
insofar as the Company has exempted You in writing, You must immediately delete
from your computer, and otherwise destroy all copies of, any Application or
component thereof You have installed on Your computer, and, in the case of a
termination, otherwise comply with the Effects Upon Termination section of
this Agreement, below.
Co-Branded
Products. Without limiting Companys rights pursuant to
the foregoing paragraph of this Section 10, if your Subscription includes
co-branded products (as defined in the applicable co-branding agreement between
Company and a firm for whom you work or by whom you have been retained as an
agent, broker, contractor or franchisee) or any other Company products or
services incorporating trademarks or other intellectual property of a brokerage
or other third party (collectively Co-Branded
Products), Company may, and you hereby agree that Company shall be
entitled to, suspend or terminate your receipt of, access to and use of such
Co-Branded Products (or the co-branded portions or areas thereof) and/or
transition you to generic versions of those Co-Branded Products at Companys
sole discretion and without any prior notice to you.
Specially-Arranged
Subscriptions. Without limiting Companys rights pursuant to
the foregoing paragraphs of this Section 10, if your Subscription for Company
products or services was offered pursuant to a separate promotional agreement
or other arrangement between Company and a firm for whom you work or by whom
you have been retained as an agent, broker, contractor or franchisee (a Specially-Arranged Subscription), and if
your association with such firm subsequently ceases or materially changes, then
(a) such Subscription may be terminated by Company in its discretion or,
alternatively, and also in Companys discretion, (b) Company may transition you
to its then standard Subscription terms. In this latter case, however (i.e.,
alternative b), you will be entitled to terminate your Subscription if you
notify Company of your decision to do so within thirty (30) days after such
transition occurs (such termination to be effective at the end of such 30-day
period). In either case of termination provided for in this paragraph
(either by Company or by you), you will be entitled to receive a prorated
refund of any prepaid Subscription Fees pertaining to the then un-used balance
of your Specially-Arranged Subscription.
Your Right
to Terminate for Company Breach. You may terminate your Subscription by written
notice to Company if Company materially breaches this Agreement and fails to
cure such breach within thirty (30) days following receipt of written notice
from you describing the breach in reasonable detail and specifying what steps
you believe would sufficiently cure such breach. Any such notice not complying
in full with the preceding sentence may be treated by Company as invalid and of
no effect. Company will not be bound by or required to perform all or any of
the steps you so specify as sufficient cure, your specification of such steps
being acknowledged as only your suggestions only; however, cure will be deemed
effected should Company substantially perform such steps. If you terminate your
Subscription due to a material breach by Company, you shall be entitled to a
prorated refund of any prepaid, periodic Subscription Fees (such proration to
be calculated using the date on which the Subscription terminated).
Effects Upon Termination. Upon any expiration or termination of a Subscription,
(a) this Agreement shall automatically and immediately terminate regarding that
Subscription, (b) you will no longer be allowed to receive, access and use the
relevant Application or other Company Items, (c) you must remove all copies of
the Application and other Company Items, and any components thereof, from your
personal computing device(s) and other relevant devices and destroy any and all
related media and documentation, (d) you shall remain liable for all
Subscription Fees that have accrued but remain unpaid as of the date of such
expiration or termination, and (e) Sections 1 (the Subscription Fees part), 5, 10, 11, 12, 13, 14, 15 and 17 of
this Agreement, including, without limitation, any express indemnification
provision hereof, shall survive and remain in full force and effect in
perpetuity, as shall any other terms hereof which, by their nature, should
survive termination. Ninety (90) days following any expiration or termination
of your Subscription, Company may, without notice, delete any or all User
Content that may remain stored on any Company servers or other storage media.
Application
Disabling Mechanism. YOU ACKNOWLEDGE AND AGREE THAT THE APPLICATION AND OTHER COMPANY
ITEMS MAY HAVE A MECHANISM WHEREBY COMPANY CAN LIMIT OR DISABLE YOUR
RECEIPT OF, ACCESS TO OR USE OF SAME. YOU AGREE THAT COMPANY MAY USE SUCH MECHANISM UPON, OR TO AID IN OR EFFECT,
ANY EXPIRATION, SUSPENSION OR TERMINATION OF YOUR SUBSCRIPTION, OR IF COMPANY SUSPENDS, TERMINATES OR
LIMITS YOUR RECEIPT OF, ACCESS TO OR USE OF ANY APPLICATION OR OTHER COMPANY
ITEM (INCLUDING, WITHOUT LIMITATION, A CO-BRANDED PRODUCT, OR ANY CO-BRANDED PORTIONS OR AREAS OF YOUR
SUBSCRIPTION OR ANY COMPANY ITEM
PROVIDED UNDER A SPECIALLY-ARRANGED
SUBSCRIPTION) AS PERMITTED IN THIS AGREEMENT.
11. NO
REPRESENTATIONS OR WARRANTIES. AS USED IN THIS AGREEMENT,
THE SUBJECT MATTER MEANS
THE APPLICATION, ANY INCLUDED CONTENT, THE SUBSCRIPTION, ANY ASSOCIATED USER DOCUMENTATION, ALL MODIFICATIONS, ALL SERVICES PROVIDED OR
OFFERED (OR NOT PROVIDED OR OFFERED) UNDER OR IN CONNECTION WITH THIS AGREEMENT, ALL ACTS AND OMISSIONS
UNDERTAKEN (OR NOT UNDERTAKEN) UNDER OR IN CONNECTION WITH ANY OF THE
FOREGOING, AND ANY PART OF OR ITEM RELATING TO ANY OF THE FOREGOING. THE
SUBJECT MATTER, IS PROVIDED STRICTLY ON AN AS AVAILABLE, AS IS BASIS.
EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, THE COMPANY DISCLAIMS ALL
REPRESENTATIONS, WARRANTIES AND COMMITMENTS OF
ANY KIND WITH RESPECT TO THE SUBJECT MATTER,
INCLUDING, BUT NOT LIMITED
TO, ANY AND ALL
IMPLIED WARRANTIES OF OR OTHER
COMMITMENTS AS TO NON-INFRINGEMENT, TITLE,
MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF
INFORMATION, AND FITNESS FOR A PARTICULAR PURPOSE.
12. LIMITATIONS ON AND EXCLUSIONS OF LIABILITY. IN NO EVENT SHALL COMPANY BE
LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES
(INCLUDING, WITHOUT LIMITATION, LOST PROFITS, REVENUE OR SAVINGS, LOST DATA OR
CONTENT, LOSS OF OR DAMAGE TO BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION OR
THE LIKE), ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OF THE SUBJECT
MATTER, ANY BREACH OF THIS AGREEMENT OR
ANY ACTS OR OMISSIONS RELATING TO THIS AGREEMENT OR ITS PERFORMANCE (INCLUDING,
WITHOUT LIMITATION, THE USE OR INABILITY TO USE OR BENEFIT FROM THE APPLICATION OR ANY OTHER SUBJECT MATTER). IN ANY CASE, COMPANYS ENTIRE LIABILITY UNDER
THIS AGREEMENT OR IN ANY
WAY RELATING TO ANY OF THE SUBJECT
MATTER SHALL BE LIMITED, IN THE AGGREGATE AND REGARDLESS OF THE NUMBER
OR TIMING OF CLAIMS ASSERTED, TO THE GREATER OF $2,000 OR THE TOTAL FEES
RECEIVED BY COMPANY HEREUNDER
FOR THE TWELVE (12) CALENDAR MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH A
CLAIM IS FIRST FILED OR ASSERTED AGAINST COMPANY. IN THE EVENT A CLAIM IS FIRST FILED OR ASSERTED BEFORE
TWELVE CALENDAR MONTHS HAVE ELAPSED UNDER THIS AGREEMENT, THEN SUCH MAXIMUM LIABILITY AMOUNT SHALL BE THE GREATER
OF $2,000 OR THE TOTAL FEES RECEIVED BY COMPANY HEREUNDER FOR THE PERIOD ENDING WITH THE DATE OF SUCH
FILING OR ASSERTION. THE TERMS OF THIS SECTION 12 SHALL APPLY WHETHER OR
NOT COMPANY HAS BEEN
ADVISED OF THE POSSIBILITY OR LIKLIHOOD OF THE LOSS, INJURY, DAMAGE OR
LIABILITY SUFFERED OR EXCLUDED, AND REGARDLESS OF THE THEORY OF RELIEF ASSERTED
(E.G., WHETHER IN CONTRACT, TORT, NEGLIGENCE, BREACH OF WARRANTY, STRICT
LIABILITY IN TORT OR BY STATUTE, OR OTHERWISE) AND WHETHER OR NOT ANY REMEDY
OFFERED OR PERFORMED BY COMPANY IS
ALLEGED OR HELD TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. ANY ACTION
AGAINST COMPANY FOR RELIEF
OF ANY KIND MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION
AROSE. THE TERMS OF THIS SECTION 12 REPRESENT IMPORTANT AGREED AND
BARGAINED-FOR UNDERSTANDINGS OF THE PARTIES AND COMPANY'S COMPENSATION HEREUNDER REFLECTS SUCH TERMS.
13. INDEMNIFICATION. You agree to indemnify, defend, and hold harmless Company from and
against any and all allegations, demands, claims, actions, lawsuits,
liabilities, losses, damages, fines, penalties, judgments, settlements, awards,
costs, and other expenses of any kind (including, without limitation,
reasonable attorneys fees and litigation costs) arising out of, resulting
from, or in connection with any of the Subject Matter, your breach of this
Agreement, or your use (or misuse) of the Application or any other Subject
Matter. It shall at all times remain Companys right to itself defend and
settle any claims, actions or proceedings that are subject to indemnification
hereunder (although it will not settle any such claim or action without your
consent, which in no event shall be unreasonably withheld, delayed or
conditioned) and receive reimbursement for the costs thereof pursuant to this
Section 13.
14. THIRD
PARTIES.
14.1 Extension of Certain Provisions to the Benefit of
Suppliers, Others. The disclaimers and protections of Section 11,
the limitations on liability, exclusions of liability and protections of
Section 12 and the indemnification rights and protections of Section 13 are
hereby specifically deemed made by (in the case of disclaimers), and extended
to and for the benefit and protection of, each Designated Third Party with
respect to any Content (including, without limitation, Special Content or other
Included Content), software, technology, facility, service or other item
referenced further below in this paragraph, and each has the right to enforce
such provisions directly against you, although Company reserves the right in
its sole discretion to enforce, or decline to enforce, such provisions on
behalf of such third parties with or without the third partys consent. Designated Third Party means: (I) any
direct or indirect supplier, licensor, vendor, contractor, service provider,
parent organization, subsidiary or Affiliate of Company (including their
respective successors and assigns) that directly or indirectly provides any
Content (including, without limitation, Special Content or other Included
Content), software, technology, facility, service or other item that is in any
way (a) received in connection with or as a part of, accessed through or used
in connection with or by way of the Application or any other Company Item or
(b) used as a part of, or in connection with providing, maintaining or
supporting, the Application or any other Company Item or any access to same,
but excepting any such third parties Company might specifically exclude as a
Designated Third Parties; and (II) all Affiliates of Company and all directors,
officers, employees, agents and representatives of Company or of any such
Affiliate (including their respective successors and assigns). An Affiliate of Company or of any other
person shall mean a person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
the Company or other person specified. The term person shall be read broadly and may
include a corporation, partnership, limited liability
company, trust, consortium, association, company or organization, or a
human individual. You also agree that your sole recourse (unless expressly
waived by Company in a signed writing dedicated to that purpose) as to any
allegation regarding the Application or other Subject Matter, regarding the
quality, features, functionality or performance of same, regarding any
negligence or violation of law relating to any of the foregoing, regarding the
marketing, distribution, maintenance, support or providing of any of the
foregoing or regarding this Agreement is exclusively a claim against Company
and no other person, and any other person named in any claim by you that runs
contrary to this provision shall have the right to enforce such provision
directly against you, as shall Company itself.
14.2 Understandings As To
Certain Third-Party Content. You acknowledge and agree that certain Content
(e.g., data from MLS associations or boards of which you are a member) may be
accessible through or in connection with the Application or another Company
Item by way of a pre-arrangement by Company and a third party (Special Content), and with respect to any
such Special Content you acknowledge and agree: (i)
that your access to, processing of or other use of any Special Content by way
of the Application or another Company Item is subject to (and you hereby agree
to comply with) such rules, conditions, agreements, policies, guidelines and
requirements as the supplier thereof (Supplier)
issues or requires (Supplier
Rules); (ii) that Supplier Rules may be changed by the Supplier and
that you will comply with any such changed Supplier Rules; (iii) that if
Company is informed by a Supplier that you are not a subscriber to its Special
Content who is in good standing, or are otherwise restricted by the Supplier
from accessing, processing or otherwise using same, then Company may
immediately suspend and/or terminate this Agreement and/or your receipt of,
access to and/or use of the Application, any other Company Item or the Special
Content; (iv) that you will not disclose or make available to any third party
any data, content, technology, materials or services of a Supplier if the
Supplier requires its consent for such disclosure or availability and such
consent has not been given and is not in effect; (v) that Company is not an
agent for any supplier, and cannot bind the Supplier contractually, waive
rights of the Supplier or otherwise act on behalf of the Supplier, and that
Supplier in no way endorses or has any responsibility to you hereunder
regarding the Application, any other Company Item or any Content (including,
without limitation, the Special Content) as may be made available to you
through the Application or any other Company Item; (vi) that Supplier and not
you or Company owns the Special Content procured from Supplier, and all rights
therein, and that you and Company obtain no proprietary rights therein; (vii)
that you will use the Special Content only as you are permitted to under this
Agreement and under any other relevant agreements or obligations to which you are
subject; (viii) that if your use of Special Content requires you to be a member
or subscriber to Suppliers organization (or an associated organization) you
represent that you are and at all relevant times will remain a member or
subscriber in good standing; (ix) that the Special Content is valuable property
of Supplier and will be treated by you as subject to the terms of Section 5 of
this Agreement (in the same manner as if the Special Content was the
Application, per the terms of Section 5); and (x) that your right to continued
use of the Application and any other Company Item will automatically terminate,
without notice, if you breach the terms of this Section in respect of the
Special Content; and (xi) that Company makes no guarantee or commitment that
any Content provided through third-party arrangements will be continuously
provided or remain available, will be available when desired, or will meet your
particular needs or purposes.
14.3 Certain Information Services. In the event the Application now or hereafter includes features or
functionality whereby access to, use of or benefits of governmentally owned,
operated, overseen, managed or administered information databases, products or
services are made available through such features or functionality (e.g., a
feature that would permit certain benefits of the U.S. Do Not Call list,
relating to certain telemarketing practices), you agree that Company may act on
your behalf (including as your agent) in connection with making such features
and functionality available and administering them and, as required or
appropriately requested, list you with, and/or provide your name and
other identifying information to, any owner, operator, overseer, manager or
administrator of such information databases, products or services as a user,
beneficiary, enrollee or the like. You may cancel this authorization on ten
(10) days notice by speaking with a Company
customer service representative by dialing the Customer Service Line.
14.4 Third Party Beneficiaries. Except as expressly specified in this Agreement, there are no third
party beneficiaries of this Agreement.
15. U.S.
GOVERNMENT RESTRICTED RIGHTS. The Application and any related User
Documentation are provided with RESTRICTED RIGHTS. Use, duplication, or
disclosure by the United States Government is subject to restrictions as set
forth in subparagraph (c)(1)(ii) of the Rights in
Technical Data and Computer Software clause at DFARS 252.227-7013 or
subparagraphs (a) through (d) of the Commercial Computer Software Restricted
Rights at 48 CFR 52.227-19, and in similar clauses in the NASA FAR Supplement,
as applicable. Manufacturer is the Company (whose address is as listed above in
this Agreement).
16. MODIFICATIONS
TO AGREEMENT. Company may modify this Agreement (Amendment) from time to time by notifying
you, via one or more of the Subscriber Notification Methods, of any such
modifications comprising the Amendment (each, a Modification Notice); it is your
obligation to timely check for such notifications. Unless accepted by you
sooner, each Amendment shall be effective thirty (30) days after you are
notified of it, but if the Amendment changes in any material and adverse way
your rights, duties or risks regarding your Subscription and you do not wish to
be subject to the Amendment, then you may terminate your Subscription
(effective at the end of the 30-Day Review Period, defined below) and receive a
prorated refund of any prepaid, periodic Subscription Fees relating to your Subscription
(such proration to be calculated using the date on which the Subscription
terminates). However, you must notify the Company within thirty (30) days after
the Modification Notice was posted, sent or otherwise issued by Company (the 30-Day Review Period) and you must so
notify the Company by speaking with a Company customer service representative,
by dialing the Customer Service Line during the business hours posted at
www.topproducer.com/support; otherwise, you will be deemed to have agreed to the
Amendment. If the Amendment itself specifies other methods of agreeing to the
terms of the Amendment, then you will also be deemed to have agreed to the
Amendment if you avail yourself of one or more such other methods. If you
otherwise agree to the Amendment by words or other affirmative conduct
indicating your assent, then in that case too you will be deemed to have
accepted the Amendment. To the extent an Amendment changes only notification
details or steps, administrative matters, the Privacy Statement, agreement
modification processes, other procedural matters or steps, or other like
matters then the Amendment shall not be considered as introducing modifications
that change in any material and adverse way your rights, duties or risks
regarding your Subscription. A notification that does not expressly state (or
bear a caption indicating) that the Agreement is being modified or amended will
not be construed as a modification or Amendment of this Agreement. No alleged
addition to or modification of this Agreement that is not effected in
accordance with the express terms of this Agreement, or is not set forth in a
writing expressly purporting to amend this Agreement and formally signed by an
officer of the Company, will be binding on or effective against Company in any
manner or degree whatsoever, including, without limitation, any such additions
or modifications asserted based on grounds such as course of dealing, usage of
trade, or otherwise, and this applies notwithstanding any specific
correspondence or other communications that may occur hereafter.
17. MISCELLANEOUS
TERMS. As used in this Agreement, the phrase in writing shall be construed broadly and shall include, without
limitation, email communications, web site postings and other forms of
electronic communication whereby words and letters are visibly perceptible and
amenable to print-out, storage or other forms of digital, electronic or
hard-copy storage, retention or capture. This Agreement constitutes the entire
understanding and agreement between Company and you with respect to the subject
matter hereof, and supersedes all prior or contemporaneous oral or written agreements,
promises, inducements, offers, representations and other communications with
respect to the subject matter hereof, all of which are merged herein. If you are a Canada Customer, then this
Agreement and each of the parties rights and duties hereunder shall be
governed by and construed in accordance with the laws of the Province of
Ontario, Canada, as applied to agreements entered into and wholly performed
within Ontario between Ontario residents, and if a claim or dispute is not
subject to arbitration pursuant to Section 18 below, then any action or
proceeding arising from or relating to this Agreement or its subject matter
that is brought by either party hereto may be brought or maintained only in
courts located in the Province of Ontario, Canada, and their applicable courts
of appeal, and the parties hereby submit to the personal jurisdiction of such
courts for purposes of any such action or proceeding. If you are a USA Customer, then this Agreement and each of the
parties rights and duties hereunder shall be governed by and construed in
accordance with the laws of the State of Maryland, USA, as applied to
agreements entered into and wholly performed within Maryland between Maryland
residents, and if a claim or dispute is not subject to arbitration pursuant to
Section 18 below, then any action or proceeding arising from or relating to
this Agreement or its subject matter that is brought by either party hereto may
be brought or maintained only in courts located in Baltimore County, Maryland,
and their applicable courts of appeal, and the parties hereby submit to the
personal jurisdiction of such courts for purposes of any such action or
proceeding. THIS
AGREEMENT SHALL NOT BE GOVERNED BY THE 1980 U.N. CONVENTION ON CONTRACTS FOR
THE INTERNATIONAL SALE OF GOODS. If you are a Canada Customer, then monetary amounts stated or
referred to in this Agreement are expressed in Canadian Currency, and otherwise
they are expressed in U.S. currency. You confirm your request that this
Agreement and all documents related directly or indirectly thereto be drafted
in the English language. Vous reconnaissez avoir requis que la prsente convention ainsi que tous les
documents
qui s'y rattachent directement ou indirectenent soient rdigs en langue anglaise.
If any term or provision of this Agreement shall be found by a court of
competent jurisdiction to be invalid, illegal or otherwise unenforceable, the
same shall not affect the other terms or provisions of this Agreement or the
whole of this Agreement, but such term or provision shall be deemed modified to
the extent necessary in the court's opinion to render such term or provision
cured of any such invalidity, illegality or enforceability, and the rights and
obligations of the parties shall be construed and enforced accordingly,
preserving to the fullest permissible extent the intent and agreements of the
parties as herein set forth. Any failure by Company to strictly enforce
any provision of this Agreement will not operate as a waiver of that provision
or any subsequent breach of that provision. Company shall not be
responsible for any delays, errors, failures to perform, interruptions, or
disruptions in the Application or any other Company Item caused by any acts of
God, strikes, unavailability of labor, parts or resources, lockouts, riots,
acts of war, changes in law or regulations, fire, flood, earthquake, storm,
power failure, or failures of the Internet or any other cause outside of
Companys reasonable control. Any notices from Company under this Agreement
that are sent via one or more of the Subscriber Notification Methods shall be
deemed given, received and effective five (5) days after the date such notice
is sent, posted or otherwise issued. In any action to enforce this
Agreement, to the extent Company prevails in
such action, you agree to reimburse Company for its costs, fees (including,
without limitation, reasonable attorneys' and experts fees and costs) and
expenses incurred in preparing, prosecuting and recovering on such
action. You agree that all of the protections and rights of Company
provided for in this Agreement may, in Companys discretion, be shared with,
assigned to or otherwise permitted to inure to the benefit of one or more of
Companys Affiliates. This Agreement is binding
on each party hereto and on each
of its permitted successors, assigns and
legal representatives. Neither this Agreement nor any rights, duties,
claims or causes of action provided for in, or arising under or from the
performance (or non-performance) of, this Agreement may be assigned or
otherwise transferred by you without the prior written consent of Company; any
action or transaction to the contrary is void. Nothing in this Agreement
or relating to its performance (or non-performance) or any rights or duties
provided for herein shall be deemed or construed to create a joint venture,
partnership, agency (unless clearly and expressly provided in this Agreement to
the contrary), fiduciary or trustee relationship between the parties for any
purpose. You shall not use in any third-party communications, on
any website or in any publicity of any kind the actual or similar name and/or
trademarks of Company or its Affiliates except with, and subject to the terms
of, the express written permission of Company in each case.
18. AGREEMENT
TO ARBITRATE. YOU AND COMPANY AGREE THAT ANY AND ALL DISPUTES
OR CLAIMS THAT MAY ARISE BETWEEN YOU AND COMPANY SHALL BE RESOLVED EXCLUSIVELY
THROUGH FINAL AND BINDING ARBITRATION, RATHER THAN IN COURT, EXCEPT THAT YOU
MAY ASSERT CLAIMS IN SMALL CLAIMS COURT IF YOUR CLAIMS
QUALIFY. THE U.S. FEDERAL ARBITRATION ACT SHALL GOVERN THE INTERPRETATION AND
ENFORCEMENT OF THIS SECTION 18. THE ARBITRABILITY OF ANY CLAIM OR DISPUTE IS TO
BE DECIDED SOLELY BY AN ARBITRATOR. YOU AGREE THAT YOU AND COMPANY MAY BRING
CLAIMS AGAINST EACH OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY
PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND
COMPANY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE
OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE
OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. FURTHER,
THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND
DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND
ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S
INDIVIDUAL CLAIM(S). THE ARBITRATION WILL BE CONDUCTED BY THE AMERICAN
ARBITRATION ASSOCIATION ("AAA") UNDER ITS RULES AND PROCEDURES, AS
MODIFIED BY THIS SECTION 18. THE AAA'S RULES ARE AVAILABLE AT WWW.ADR.ORG. A FORM FOR INITIATING ARBITRATION PROCEEDINGS IS
AVAILABLE ON THE AAA'S WEBSITE AT HTTP://WWW.ADR.ORG. THE ARBITRATION SHALL BE HELD IN THE COUNTY IN WHICH
YOU RESIDE OR AT ANOTHER MUTUALLY AGREED LOCATION. IF THE VALUE OF THE RELIEF
SOUGHT IS $10,000 OR LESS, YOU OR COMPANY MAY ELECT TO HAVE THE ARBITRATION
CONDUCTED BY TELEPHONE OR BASED SOLELY ON WRITTEN SUBMISSIONS, WHICH
ELECTION SHALL BE BINDING ON YOU AND COMPANY SUBJECT TO THE ARBITRATOR'S
DISCRETION TO REQUIRE AN IN-PERSON HEARING, IF THE CIRCUMSTANCES WARRANT.
ATTENDANCE AT AN IN-PERSON HEARING MAY BE MADE BY TELEPHONE BY YOU AND/OR
COMPANY, UNLESS THE ARBITRATOR REQUIRES OTHERWISE. THE ARBITRATOR'S AWARD SHALL
BE FINAL AND BINDING AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY
BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. PAYMENT OF ALL FILING,
ADMINISTRATION AND ARBITRATOR FEES WILL BE GOVERNED BY THE AAA'S RULES, UNLESS
OTHERWISE STATED IN THIS SECTION 18. IF A COURT DECIDES THAT ANY PART OF THIS
SECTION 18 IS INVALID OR UNENFORCEABLE, THE OTHER PARTS OF THIS SECTION 18
SHALL STILL APPLY.
* * *
END OF MAIN SUBSCRIBER AGREEMENT TERMS * * *
Next Part: Supplemental Terms for the Market Snapshot Service
SUPPLEMENT
A
SUPPLEMENTAL
TERMS FOR THE MARKET SNAPSHOT SERVICE
The terms contained in this
part (Supplement)
Supplemental Terms for the Market Snapshot service/Application -- are
specific to the Market
Snapshot service/Application and your receipt of, access to and use of
the Market Snapshot service/Application
are subject to and governed by this Supplement and the Main Agreement Terms. As
used in this Supplement, the Main
Agreement Terms means the provisions in the first part of this
document, above (i.e., the main Subscriber Agreement terms). In the event of
any conflicts or inconsistencies between the terms of this Supplement and the
Main Agreement Terms, the terms of this Supplement will control. When
hereafter used in this Supplement, the term Application will mean the Market Snapshot service/application.
Company may change the above-indicated name for the Application in its sole
discretion and without notice, in which case this Supplement and Agreement
shall be construed accordingly; no such change of name shall be construed to
have any effect whatsoever on the substantive terms of this Supplement and
Agreement nor to reduce the binding effect of this Supplement and Agreement on
you.
The Market Snapshot service/application enables
real estate professionals to automate follow-up with market reports and listing
alerts featuring data from their MLS. Other features or services of the
Application will be made available to you as part of the Application from time
to time in Companys discretion.
1. APPLICATION
CONTROL PAGE A PART OF THIS AGREEMENT. You understand and agree that certain choices
offered to You and that You decide upon when
communicating with the Company (e.g., during an initial sign-up step - by
telephone or otherwise) and that the Company accepts may, offered with or as a
part of the Application, be recorded by Company in the Application Control
Page. The Application
Control Page means an area accessible to You through
control panel functionality of the Application or, if thus made available by
Company, within the Application itself. You agree that the records and/or terms
therefore reflected by Company in the Application Control Page constitute a
part of this Agreement, and shall govern in the event of any conflict between
them and the other terms of this Agreement.
2. LICENSING. You represent and promise to Company that You are able to enter into and
perform this Agreement without violating any law or any obligation You have to
any third party, and that You have and will at all relevant times maintain in
force such licenses as may be required in connection with Your duties or other
activities undertaken in connection with this Agreement.
3. CERTAIN
MATTERS REGARDING THE APPLICATION.
3.1 MARKET SNAPSHOT. With respect to the Application, You acknowledge
that the number of Market Snapshot report set-ups that You may have active at
any given point in time (for Your prospects, clients or others) might be
limited, with additional active set-ups being subject to payment of additional
fees. Details of such limits, fees and related matters might be reflected in
the Application Control Page but in any case shall be subject to the Companys
policies in effect from time to time and subject to change with or without notice.
You also acknowledge that certain aspects of the Market Snapshot tool will
require or make possible various settings by You, that certain aspects of the
Market Snapshot tool will be set to a given default setting (e.g., default-set
so that a Market Snapshot report automatically is issued on Your behalf in
response to a Lead), and that certain MLS user I.D. and/or password information
might need to be supplied by You for the Market Snapshot tool to be activated.
You further acknowledge that the Application relies heavily on data from
multiple listing services and that the usefulness of the Application to You
will therefore depend significantly on whether the Market Snapshot tool is
supported by the MLS(s) relevant or important to You. You understand that the
Market Snapshot tool is not supported by all MLSs and agree to take
responsibility to confirm with the Company whether the MLS(s) relevant or
important to You are supported by the Market
Snapshot tool.
3.2 LEAD WIDGET. Company may have previously provided you with a website-installable, consumer-facing widget (the Lead Widget) that can facilitate
prospects ability to communicate to You their
interest in receiving information from You about homes or properties they might
wish to sell, purchase or learn more about. While this Supplement and
Agreement is in force You are authorized to cause the Lead Widget to be
installed on one or more websites, but all such use of the Lead Widget
(including any deployment and un-deployment thereof) must be in accord with
this Agreement and only upon Your obtaining all needed permissions from the
owners and/or operators of such websites. Company acknowledges that this grant
of the right to deploy the Lead Widget on websites exceeds the scope of certain
rights granted in Section 4 of the Main Agreement Terms regarding use of an
Application, and Company hereby confirms such additional scope is intended
regarding the Lead Widget so long as You otherwise comply with the Main
Agreement Terms (including, without limitation, the second paragraph of Section
4 (captioned, Limitations) of such Main Agreement Terms) and the terms of
this Supplement regarding the Lead Widget. You also understand that Company
assumes no responsibility or risks regarding any deployment or use of the Lead
Widget nor any consequences thereof, and You agree
to assume all such responsibility and related risks. You understand that all
Leads resulting directly from the Lead Widget will be directed to the
Application for further response/follow-up. You understand that any Lead Widget
You deploy will require, therefore, that Your subscription and access to the
Application be active, and that if this is not the case then the Application
will not process any Lead information that might be generated by a deployed
Lead Widget. You also agree that if You wish to change a Lead Widget as
deployed on a website, or wish to thereafter implement Lead Widget changes that
the Company may have released, that, unless otherwise instructed or permitted
by Company, You will do so by un-deploying the existing Lead Widget from the
website and then re-deploying it (or an updated version of it) with the desired
changes. You also acknowledge that Company assumes no responsibility or risk
for keeping track of, nor for deleting, removing, un-installing or otherwise
un- deploying Lead Widgets that You cause to
be deployed, nor for any consequences of any of the foregoing. In the event of
any termination of this Supplement or the Agreement, or upon any instructions
from the Company, You agree to immediately delete, remove, un-install or
otherwise un-deploy, in accordance with this Supplement and Agreement, any and
all Lead Widgets that You had previously caused to be deployed and to otherwise
comply with all terms of this Agreement applicable in light of such
termination.
4. NOTICE:
You may give notice to
Company regarding any matter relating to this Agreement by sending an email to
Company at the following email address: support@topproducer.com. This is the preferred method of notice.
Alternatively, You may give such notice by
sending written correspondence to Company and sending it to Company by regular
mail or a recognized and reliable commercial courier service addressed as
follows: c/o Top Producer; 11350 McCormick RD EP3 Ste
200 Hunt Valley, MD 21031, USA; ATTN: Application Executive Top
Producer/Market Snapshot.
Notwithstanding the other provisions of this
Section 4, and subject to any waiver or other exception Company might make
(which it may do in its sole discretion), a notice purported to have been given
by You in connection with this Agreement will not be considered received by or
binding on the Company (i) if such notice is not in
compliance with the requirements of this Section 4 and properly addressed, nor
(ii) sooner than when it is actually received by Company.
You may also contact the Company by calling us,
toll-free, at: 1.800.830-8300. Contacting
the Company by telephone (whether by use of this number or otherwise) does not
relieve You of any duty You have under this
Agreement to provide us written notice (by email or otherwise) and is not to be
considered effective notice or otherwise binding on the Company.
Any notice required to be given pursuant to this
Supplement shall be in writing and shall be effective the sooner of: (i) when delivered personally to the party for whom
intended; or (ii) five (5) days following deposit of the same into the mail
(certified mail, return receipt requested, or first class postage prepaid),
addressed to such party at the address set forth in this Agreement; or (iii)
upon acknowledgment by the receiving party that that party has received the
notification by way of email (in which case any in writing requirement under this
Agreement will be deemed satisfied by such email). Either party may designate a
different address by notice to the other given in accordance herewith.
Notwithstanding the foregoing (or any other
terms hereof) and without limiting the means by which we may notify You, when
the Company is the party providing a notification to You then sending an email
message to the email address we have on file for You, or transmitting or
posting any such notification to You via the Application, the Application
Control Page or, if You subscribe to it, the Companys customer relationship
management (CRM) application (often referred to Top Producer CRM), shall be
deemed effective notification to You, and shall be deemed effective as of the
date that is three (3) business days after the date of such emailing,
transmission or posting by Company.
5. SURVIVAL
OF TERMS.
The provisions of Sections 2,
3.2 (last two sentences), 4, 5, and 6 of this Supplement shall each survive any
termination of this Supplement or Agreement and remain in full force and effect
in perpetuity, as shall any other terms hereof which, by their nature, should
survive termination.
6. CONFIDENTIAL
AND PROPRIETARY INFORMATION. You agree that
any Sensitive Company Information shall be deemed proprietary to Company (and,
as between the parties, only to Company) and confidential information of
Company. You promise to hold all Sensitive Company Information in strict
confidence, not to disclose any of it to any third party without Companys
express written consent, not to use any of it for any purpose except to fulfill
Your express duties under this Agreement, to return or destroy all of it upon
any termination of this Agreement (except insofar as needed to fulfill duties
hereunder that continue after termination of this Agreement) and to confirm to
Company, in writing, Your compliance with this paragraph as may be requested by
Company from time to time. Sensitive
Company Information means any information disclosed or otherwise
provided to You by Company or by way of the
performance of this Agreement. For the avoidance of doubt, the
confidentiality and limited use provisions of the Main Agreement Terms (e.g.,
Section 5 thereof) remain applicable and binding notwithstanding, and in
addition to, this paragraph of this Supplement.
7. REPRESENTATION. You represent and warrant that You, as the
person indicating assent to this Agreement, are of the age of legal majority
and are fully competent and authorized to enter into this agreement and that
every authorization and consent that You may need in order to validly enter
into this agreement has already been obtained by You.
* * *
END OF SUPPLEMENTAL TERMS FOR THE MARKET
SNAPSHOT SERVICE * * *
Next Part: Supplemental Terms for the Top Producer Websites Service
SUPPLEMENT
B
SUPPLEMENTAL
TERMS FOR THE TOP PRODUCER
WEBSITES SERVICE
The terms contained in this
part (Supplement)
Supplemental Terms for the Top Producer Websites service/Application -- are
specific to the Top Producer
Websites service/Application and your receipt of, access to and use of
the Top Producer Websites service/Application
are subject to and governed by this Supplement and the Main Agreement Terms. As
used in this Supplement, the Main
Agreement Terms means the provisions in the first part of this document,
above (i.e., the main Subscriber Agreement terms). In the event of any
conflicts or inconsistencies between the terms of this Supplement and the Main
Agreement Terms, the terms of this Supplement will control. When hereafter used
in this Supplement, the term Application
will mean the Top Producer
Websites service/application. Company may change the above-indicated
name for the Application in its sole discretion and without notice, in which
case this Supplement and Agreement shall be construed accordingly; no such
change of name shall be construed to have any effect whatsoever on the
substantive terms of this Supplement and Agreement nor to reduce the binding
effect of this Supplement and Agreement on you.
A. THE APPLICATION. The Top Producer
Websites service/application is a service enabling you, upon
purchasing a Subscription, to design and establish a single website hosted by
Company on its server(s) or other computer equipment. Other features or
services will be made available to you as part of the Application from time to
time in Companys discretion.
B. YOUR
RESPONSIBILITY FOR LEGAL REQUIREMENTS AND POTENTIAL LIABILITY RELATING TO THE
WEBSITE. You understand and agree that you, and not
Company, are responsible for the operation and control of the website and you
understand that legal liability can arise from, and legal duties can apply to,
publishing or allowing the posting of any Content on websites or otherwise
operating or controlling websites, and from being the party legally responsible
for a website. You further understand that you, and not Company, will be
solely responsible (with the help of professional advisors you might decide to
retain) (i) for determining, understanding and
assessing such potential liability and duties, and (ii) as you deem
appropriate, for seeking to limit, allocate, exclude, comply with or otherwise
manage such potential liability and/or duties, and (iii) for assuring the
enforceability, validity, legality, necessity and appropriateness of any means
you select for limiting, allocating, excluding, managing, complying with or
otherwise dealing with such potential liability and/or duties. Without
limiting the generality of the foregoing, you acknowledge and agree that you
are exclusively responsible for, and Company will have no duty or
responsibility whatsoever for providing to you or for the website, any
warnings, notices, terms of website use, legal terms, disclaimers, terms
purporting to limit, exclude or shift liability, responsibility or risk,
proprietary rights notices, acceptable use policy, privacy policy or other
legends, agreements or terms of any nature, whether legal, exculpatory,
protective or otherwise. You agree to take full responsibility to consult
with (and for declining or failing to so consult) legal, tax, accounting, real
estate, financial, regulatory and other professional advisors regarding the
website and any other matter concerning the Application or your Subscription to
it.
C. COMPLIANCE WITH USAGE POLICIES; ANCILLARY COSTS. You agree that Company may from time to time establish, and later
withdraw, add to or change from time to time, and that you will at all times
comply with, policies, procedures, practices and limits concerning receipt of,
access to and/or use of the Application, which may include, without limitation:
(a) limits on the amount of time that Content posted on the website will be
retained by Company on its computer(s) or otherwise, (b) limits on bandwidth
usage that will be allotted to you, (c) limits on storage space, (d) limits on
the number of websites or subscriptions per distinct customer account, (e)
limits on the kind of Content that may be posted to, perceptible on or through,
linked to or otherwise available on the website, and (f) limits on the number
of pages within each website. You agree that Company has no responsibility or
liability for the deletion or failure to post, host or store any Content
supplied, maintained or transmitted in connection with the Application or your
use of it. Company reserves the right to charge you for in which case you
agree to pay -- third party fees and charges assessed against, incurred by or
paid by Company in connection with the registration, renewal, creation or
maintenance of the website (including, but not limited to, domain registration
fees), all of which are non-refundable, not pro-rated and may be charged to you
annually in companys discretion.
D. COMPANY-PROVIDED
WEB CONTENT. As part of the Application,
certain articles, information and other Content might be made available on the
website or for your posting to the website (Company-Provided Web Content). You
are hereby permitted, subject to and in accordance with this Agreement and in
particular this Supplement, to include and display on the website any such
Company-Provided Web Content as the Application enables you to so use in
connection with the website. You acknowledge and agree that all
Company-Provided Web Content constitutes Included Content (as defined in the Main Agreement Terms of
this Agreement). You agree to assume full responsibility for any
Company-Provided Web Content on the website and for causing any such
Company-Provided Web Content that is in any way inappropriate to be removed
from the website or made inaccessible. You further acknowledge and
agree that Companys making the Company-Provided Web Content available does not
constitute legal, tax, accounting, real estate, financial, regulatory and other
professional advice, and should not be relied upon by you as appropriate for
your website unless you specifically deem it appropriate based on your own
judgment and any advice you obtain from advisors you retain. The
Company-Provided Web Content is provided solely and exclusively as a
convenience for general, non-specific educational and informational purposes.
E. THIRD-PARTY
REFERENCES. You must at all times make it
clear on your website that you or your business entity is the party responsible
for the website and the Content posted to or available through it and that any
comments, complaints, claims or questions regarding the website or the Content
posted to or available through it are to be directed solely to you, your
business entity or any service provider you have retained to assist with
managing such comments, complaints, claims or questions. You may not in
any way identify Company as the party responsible for the website or the
Content posted to or available through it. Nor may you
identify Company as being a source of or involved (e.g., under this Agreement)
in making the website or the Content posted to or available through it possible
unless expressly authorized by Company in a signed writing. In
particular, you shall not use in any third-party communications, on the website
or in any publicity of any kind the actual or similar name and/or trademarks of
Company or its Affiliates except with, and subject to the terms of, the express
written permission of Company in each case. Notwithstanding the
foregoing, the Company reserves the right to include on the website reasonable
branding and other notice of the fact that it is involved in making the website
available (e.g., Powered by Top Producer) and such disclaimers, legends and
copyright, trademark and rights notices as it may in good faith deem
appropriate or desirable.
F. DOMAIN
NAMES.
F-1. An appropriately retained and registered domain
name is a required condition to this Application. Company has chosen third
party domain name vendors ("TPDNVs") who are ICANN accredited
registrars, to provide domain name registration services in connection with the
Application. You hereby authorize Company to transfer in or acquire a domain
name from a TPDNV and renew or permit the renewal of the domain name annually.
You agree, and will remain agreeable throughout the duration of the use of the
domain name, to the TPDNVs' terms of service (excluding any such terms Company
may specifically except from your duty of compliance), which you acknowledge
the TPDNVs may change at any time in their sole discretion and without notice.
You understand that you will become a party to a separate contractual
relationship between yourself and the TPDNVs, and that you, and not Company,
will be fully and solely responsible for all liability and obligations in
connection with that relationship (excluding any such terms Company
may specifically except from your duty of compliance). However, you also
agree that Company may act on your behalf (including as your agent) in
connection with such relationship, the TPDNVs and your account(s) with them.
F-2. If, after registering one or more domain names
in connection with the website or Application (for example, because of your
incorrect registration of a domain name or otherwise),
you choose to delete a previously registered
domain name and subsequently register one or more additional
different domain names, you will be charged the resulting domain name
registration fees.
F-3. Company may
list you as the registrant and/or administrative contact in connection with the
domain name; however, in such cases Company may temporarily list itself as the
registrant and/or administrative contact for administrative purposes (e.g., in
the event that it changes to a different TPDNV, until the TPDNV change is
completed). You hereby authorize Company to list itself as the billing
contact and technical contact, and list its name servers, in connection with
the domain name and to take any actions Company deems appropriate in those
capacities. However, upon any termination of your Subscription for the
Application, Company may immediately cease acting in those capacities including
in connection with switching registrars. Although Company will, if requested by
you at the time of termination of your Subscription, endeavor to cooperate
reasonably in the transfer to you of the domain name after such termination,
Company reserves the right to cancel or allow the lapse of the domain name(s) associated
with the website. Company will not be responsible to forward any
notices, emails or other correspondence to you or
to take any other actions in
connection with the domain name after
any such termination. Additionally, in the event that your
Subscription or your receipt of, access to or use of your Subscription, the
website or the Application is suspended by Company under this Agreement,
Company shall not be required to renew any domain names that may become due for
renewal during such suspension. You will be solely responsible for all
ongoing fees, as well as removing Company as the billing and technical contact,
and its listed name servers, in connection with the domain name.
G. COMPLAINTS,
INQUIRIES. If Company is contacted with a complaint,
comment or inquiry about, or otherwise becomes aware of or concerned regarding,
any use of, activity, trend or problem relating to, or Content that may be
posted to, perceptible on or through, linked to or otherwise available on or
through use of, the website or Application then (i)
Company will be free (without notice) to take or refrain from taking any action
it deems, in its sole discretion, to be appropriate, advisable, useful,
preferable, prudent, protective or mitigating, (ii) Company shall have
absolutely no responsibility or liability to you or others as a consequence of
any such action or inaction, and (iii) you will indemnify, defend and hold
Company and its Affiliates and their respective directors, officers, employees,
agents and representatives (Company
Persons) harmless from and against all lawsuits, claims, actions,
damages, loss, injury, costs (including, without limitation, attorneys fees,
experts fees and other defense costs), expenses, penalties, interest and
liability (collectively, Claims
Or Losses) incurred by, owed by or adjudicated or awarded against
any such Company Person, or otherwise asserted by or owed to any third party,
as a result of, in the course of defending or addressing, or in connection with
any such lawsuit, claim or action, any such action or inaction or any such use,
activity, trend, problem or Content.
H. DISCLAIMER, UNDERSTANDINGS REGARDING WEBSITE CONTENT
OR WRONGS. Company shall be under no obligation, but does
reserve the right (without notice), to monitor, pre-screen, block, remove,
render inaccessible and otherwise regulate and address any website or Content.
In no event will Company be responsible for any libel, slander, defamation,
rights-infringement or legal wrong that might be committed in connection with
the website or Application, nor for the appropriateness, accuracy, sufficiency,
correctness, legality, veracity, completeness, or timeliness of any use of,
activity, trend or problem relating to, or Content that may be posted to, perceptible
on or through, linked to or otherwise available on or through use of, the
website or Application. You promise to always use caution when collecting,
storing, using, transferring, sharing, posting, publishing, disclosing or
otherwise dealing with any personally identifying information about you or any
other person or organization.
I. CERTAIN SPECIFIC RESTRICTIONS. With respect to the website or any Content, you agree not to:
● post, upload, link to, frame, display or otherwise transmit any Content
which is false or misleading or impersonate any person or entity or falsely
state or otherwise misrepresent your affiliation with a person or entity;
● post, upload, link to, frame, display or otherwise transmit any Content
that is threatening, abusive, harassing, tortious, defamatory, obscene,
indecent, pornographic, libelous, invasive of another's privacy, hateful,
racially and ethnically objectionable, otherwise objectionable or offensive, or
inapplicable to or irrelevant to a professional business website;
● post, upload, link to, frame, display or otherwise transmit any Content
as to which you do not have all necessary rights and freedom to post or
transmit (including, without limitation, personally identifying information,
and information learned or disclosed as part of employment relationships or
under nondisclosure agreements);
● post, upload, link to, frame, display or otherwise transmit any Content,
such that such posting, uploading, or transmission constitutes the infringement
of any patent, trademark, trade secret, copyright or other proprietary rights
of any party, or the violation of any right of publicity or privacy right;
● post, upload, link to, frame, display or otherwise transmit any Content
that constitutes, contains or has not been appropriately checked for viruses or
any other like computer code, files or programs designed or known to (i) interrupt, impair, disable, interfere with, destroy or
limit the functionality of any computer, software, system, hardware, network or
telecommunications systems;
● attempt to improperly access any accounts, websites, blogs, information
or Content of others, or attempt to penetrate security measures of Company or
others or of their systems ("hacking"), whether or not the intrusion
results in corruption or loss of data;post,
upload, link to, frame, display or otherwise transmit any Content that impose
an unreasonable or disproportionately large load on Company's infrastructure,
systems or resources or that exceed any limits established by Company in
connection with the Application;
● post, upload, link to, frame, display or otherwise transmit any
unsolicited or unauthorized advertising, promotional materials,
"spam," "chain letters," "pyramid schemes," or
any other form of solicitation, unless permitted by applicable law;
● interfere with or disrupt the Application or any software, computers,
systems, devices or networks supporting or connected to the website or
Application, or refuse or fail to comply with any requirements, procedures,
policies or regulations, practices and limits of networks supporting or
connected to the website or Application;
● intentionally or unintentionally violate any applicable local, state,
national or international law, including, but not limited to, regulations
promulgated by the U.S. Securities Exchange Commission, any rules of national
or other securities exchange, including without limitation, the New York Stock
Exchange, the American Stock Exchange or the NASDAQ, and any regulations having
the force of law;
● forge any headers or other manipulation of identifiers in order to
disguise or falsify the origin of any Content transmitted through the website;
● promote or provide instructional information about illegal activities,
promote physical harm or injury against any group or individual, or promote any
act of cruelty to animals; or
● sell, distribute, disseminate, frame or link to any sites for marketing,
sales or distribution of firearms, explosives, ammunition, liquor, tobacco
products and any products or services that (i) you
cannot legally sell, (ii) are misrepresented, and/or (iii) if sold via the
website could cause Company to violate any law or regulation.
● disclose, post, upload, link to, frame, display or otherwise transmit
any personal or private information, images or other Content about children or
any third party without their consent (or a parent's consent in the case of a
minor).
J. THIRD-PARTY
DISPUTES, TRANSACTIONS. Company is not
and will not be responsible for (i) any transaction
between you and any third party nor the terms and conditions of any such
transaction, (ii) any insufficiency of or problems with any such third party's
background, insurance, credit or licensing, or (iii) the quality of services or
products provided by or to any such third party or any legal liability arising
out of or related to such services or products. In the event you have a dispute
with any such third party, you will indemnify, defend and hold all Company
Persons harmless from and against all Claims Or Losses
relating to such dispute incurred by, owed by or adjudicated or awarded against
any such Company Person.
K. NO
RESPONSE TIME, UP TIME OR OTHER GUARANTEES. No guarantee, warranty, representation or promise of availability,
uptime, response-times, performance or quality of the website or some or all of
its features on or through the World Wide Web or Internet is made by Company,
and you understand that there will be times that persons seeking to visit or go
to the website might not be able to access, visit or use it or some or all of
its features and that availability, uptime, response-times, performance and
quality might not be satisfactory.
L. DEPENDENCE
ON THIRD-PARTY TECHNOLOGY, MATERIALS. You understand that the Application makes use
of, or is based in part on, information, software, technology, Content,
materials and/or services made available under an agreement(s) between Company
and the owner(s) or provider(s) of same; and you acknowledge and agree that
should such agreement(s), any partys performance obligations thereunder or any
of such third-party technology, content, materials or services for any reason
expire, be suspended, be cancelled, terminate or be become subject to an
injunction, legal challenge or material modification, then this could result in
the Application becoming in whole or in part changed, disabled, unavailable or
otherwise unusable.
M. NO
TRANSFER TO YOU OF PROPRIETARY RIGHTS. In purchasing a Subscription for the
Application: you obtain only the rights of a licensee; those rights continue no
longer than the time during which your Subscription is kept in effect; and you
obtain no ownership or proprietary rights in, nor, on the expiration,
suspension, cancellation or termination of that Subscription, any right to
continued availability of, receipt of, access to or other use of the website or
of any content whatsoever that might be on, in or otherwise associated with the
website.
N. POSSIBLE
NON-APPLICABILITY OF SOME PROVISIONS OF THE MAIN AGREEMENT TERMS. Because the Main Agreement Terms were developed for multiple kinds of
products and services, sometimes the Company will conclude that certain
provisions of the Main Agreement Terms might not fit appropriately with, and
should not apply to, one or more of such products or services. Accordingly, the
Company reserves the right, in its sole discretion, to exclude any one or more
of the provisions of the Main Agreement Terms from applicability to the
Application and your Subscription to it.
O. SURVIVAL. Sections B, F, G, J and M of this Supplement,
including, without limitation, any express indemnification provision hereof,
shall each survive any termination of this Supplement or Agreement and remain
in full force and effect in perpetuity, as shall any other terms hereof which,
by their nature, should survive termination.
P. COMMENTS/POSTINGS. Insofar as the Application allows third party users of or visitors to
any website resulting from your deployment of the Application (i.e., visitors
to your website) to submit or post Blog Visitor Submissions, you agree to
remove from your deployment of the Application, or otherwise render
inaccessible, any Blog Visitor Submission as soon as it comes to your attention
that such Blog Visitor Submission, or its presence or publication on your
website, violates or probably violates (i) this
Agreement or any relevant standards established by this Agreement or (ii) any
more restrictive standards you might establish for the website. As used in this
Supplement, Blog Visitor
Submission(s) means comments, questions, replies or other Content
of any kind that any user of or visitor to your website (or any blog
area/feature of the website) submits or posts. As used in this Supplement, the
term post
(including any other tense or form of such word so used) will be construed to
include post, publish, distribute, allow, upload, link to, frame, display,
transmit or make use of (or the appropriate tense or form thereof). Regarding
any Blog Visitor Submissions or other Content posted to your website
(including, without limitation, postings by you), or any blog area/feature of
the website, you agree that Company (including its Affiliates, contractors and
service providers, and other designated third parties), may in its sole
discretion, for any purpose (e.g., informational, promotional, educational,
instructional, etc.) and without owing you, your suppliers or others any
royalty, fee or other compensation, post any and all such Content or a
portion thereof, a link thereto, a framing thereof or an automated feed thereof
(e.g., via an RSS feed mechanism) -- on any other website(s), blog site(s) or
other syndication media and otherwise disseminate same unless and until you opt
out of such syndication or dissemination by indicating your opt out preference
in the Application (i.e., within the dashboard or other area designated for
such opt out). Such license (the Syndication
License), without limiting the foregoing, shall be construed to
permit Company to copy, store, display, distribute, make derivatives of, adapt,
abridge, add to, edit, modify and otherwise use all such Content (in whole or
in part) as long as undertaken in connection with the exercise of the rights
granted in the foregoing sentence, and to do so by way of any and all media,
means and technology (whether or not now known or invented) as it wishes. The
Syndication License is worldwide, perpetual, irrevocable and royalty-free.
However, if and when you opt out as provided for above then such Syndication
License shall not apply to any such Content newly posted to your website (or
any blog area/feature of the website) following the date that is ten (10)
business days after such opt out; also, any such attribution addressed below
may be ceased (in Companys sole discretion) on or at any time after such opt
out. To the extent Company exercises the Syndication License regarding Blog
Visitor Submissions or other Content posted to your website (or any blog
area/feature of the website), Company shall use reasonable efforts to attribute
your website (or any blog area/feature of the website) as the source; Company
may do this using such method or methods as it selects in its discretion (e.g.:
rendering a key word, caption, icon or other element as a hypertext link to
your website (or any blog area/feature of the website); naming you or your
website (or any blog area/feature of the website) or the URL of your website
(or any blog area/feature of the website); providing an index of contributors;
etc.). Where the site, media or other destination for such syndication or
dissemination is not owned and controlled by Company or its Affiliates,
however, Company makes no commitment regarding such attribution.
* * * END OF
SUPPLEMENTAL TERMS FOR THE TOP
PRODUCER WEBSITES SERVICE * * *
* * * * * * * * * * * * * * * * * * * * * * * *
INDEX TO DEFINED TERMS USED IN MAIN BODY OF THIS AGREEMENT
(Not including Terms Defined in any of the
immediately preceding Supplements)
Capitalized/Defined Term |
Place Where Term is Defined |
30-Day Review Period |
Section 16 |
Affiliate |
Section 14.1 |
Agreement |
Preamble terms to Subscriber Agreement (See both Subscription to One or More Applications and
Binding Agreement.) |
Amendment |
Section 16 |
Application |
Preamble terms to Subscriber
Agreement |
Auto Renewal |
Section 1 (for Subscriptions entered into on or after April 1, 2017) |
Auto-Renewal Notice |
Section 1 (for Subscriptions entered into on or after April 1, 2017) |
Auto-Renewal Term |
Section 1 (for Subscriptions entered into on or after April 1, 2017) |
Canada Customer |
Preamble terms to Subscriber
Agreement |
CC Assessments |
Section 1 |
Co-Branded Product(s) |
Section 10 |
Company |
Preamble terms to Subscriber
Agreement |
Company Items |
Section 4 |
Content |
Section 6 |
Copy(ies) |
Section 5 |
Customer Service Line |
Section 1 |
Designated Third Party |
Section 14.1 |
Included Content |
Section 4 |
Initial Term |
Section 1 |
Invoice |
Section 1 |
Modification(s) |
Section 9 |
Modification Notice |
Section 16 |
Order |
Section 1 (for Subscriptions entered into on or after April 1, 2017) |
Order Terms |
Section 1 (for Subscriptions entered into on or after April 1, 2017) |
person |
Section 14.1 |
Privacy Statement |
Section 1 |
Productive Use |
Section 6 |
Purchase Agreement |
Section 1 (for Subscriptions entered into on or after April 1, 2017) |
Renewal Month |
Section 1 (for Subscriptions entered into before April 1, 2017) |
Renewal Term |
Section 1 (for Subscriptions entered into before April 1, 2017) |
Special Content |
Section 14.2 |
Specially-Arranged Subscription |
Section 10 |
Subject Matter |
Section 11 |
Subscriber Notification Method(s) |
Section 1 |
Subscription |
Preamble terms to Subscriber
Agreement |
Subscription Fees |
Section 1 |
Supplemental Terms |
Preamble terms to Subscriber
Agreement |
Supplier |
Section 14.2 |
Supplier Rules |
Section 14.2 |
Technical Support |
Section 7 |
USA Customer |
Preamble terms to Subscriber
Agreement |
User Content |
Section 6 |
User Documentation |
Section 4 |