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ALL PARTIES USE AGREEMENT (rev 03-01-16)
***HomeScenes® is a registered trademark and is not to be used in conjunction with any other business entity with out the written consent of HomeScenes®, Inc. Further, HomeScenes®, Inc. reserves the right to refuse service to anyone with or without cause.***
THIS is an agreement between HomeScenes, Inc. (Referred to in this agreement as “HSI”), and any party (Referred to in this agreement as “Agent”) seeking to use the services of “HSI”.
HSI operates an Internet Web Site known as “HomeScenes.com”. If the party is a licensed Real Estate person, real estate broker, real estate builder/developer or other real estate professional in their resident state in the USA and wishes to use HSI services to advertise real estate properties for sale or lease via the Internet, HSI assumes that the Agent will comply with their local real estate commission rules and regulations for internet advertising. HSI and Agent agree as follows:
- Services. HSI may provide services for the "capturing, storing and publishing" of digital media and descriptions of real estate properties over the Internet through the efforts of HomeScenes’ staff and sub-contractors. Agent and property description Content is presented on the HomeScenes.com web site as described by the agent placing the sales orders directly, by phone or faxed. HSI may review orders placed by Agents and reserves the right to accept or not accept any order with or withour cause. If an order is not accepted, any monies paid will be fully refunded to the agent in a timely manor. “Agent and property description Content” means but is not limited to all archived materials and uploaded materials, including digital photographs, digital video, text information, digital audio and digital graphics that promote Agent, Agent’s Office and Agent’s properties on the HomeScenes.com web site. HSI reserves the right to modify these Services at any time, and reserves the right to modify the prices for these Services as provided in the next section.
- Fees and Payment. Agent agrees to: (a) pre-pay HSI the posted service fees at time of placing the order via on-line credit card or (b)( at the option only of HSI) allow HSI to charge to the Agent's credit card via on-line the posted service fees after the services have been completed or pay by check. HSI reserves the right to change the posted products/service pricing with or without notice. (However, any price changes will not effect any previously placed orders). Agent must provide notice of billing discrepancies within 30 days after receipt of invoice, Agent shall be deemed to have accepted the amounts due and releases HSI from any liability and claims of loss resulting from any error or discrepancy.
- Trademark License. HSI grants Agent a non-exclusive, non-transferable, royalty-free, worldwide license to use and display HSI’s Marks for the purpose of advertising and promotion of Agent’s Content. Agent grants HSI a non-exclusive, non-transferable, royalty free, worldwide license, to use Agent’s Marks in HSI’s directory listings of Agent, Agent’s Office, and Agent’s property listings as directed by Agent in sales orders to HSI or in connection with the HomeScenes.com web site, or in connection with advertising and promotion of HSI. Neither Party shall take any action that would impair, denigrate, convey ownership in or damage the other Party’s rights in their respective Trade Marks or other proprietary products or services.
- Content Media Protection and Control regarding web sites hosted and/or developed by HSI. Agent will be solely and completely responsible for maintaining master copies of Agent’s content media for Agent web sites developed, published and hosted by HSI . Copies of content media provided by Agent to HSI for placement on HomeScenes.com will be provided and delivered to HSI at Agent’s expense and at Agent’s sole risk. Agent agrees that HSI acts only as a non-editing carrier when accepting media provided by Agent. Media prepared for Agent by HSI staff or HSI’s subcontractors is agreed to be under the ultimate control of Agent as Agent agrees to monitor and take responsibility for the media’s placement and presentation on HomeScenes.com.
- Compliance. Agent shall at all times comply with all applicable laws, rules and regulations in their resident state regarding Internet advertising.
- Agent’s Undertakings. Agent undertakes to comply with the administrative and other requirements made by HSI for the performance of the Services; and to inform HSI immediately upon receipt of notice from any third party alleging that the Agent’s Content or any part of it: (i) infringes any third party copyright, trademark, trade secret or any publicity, privacy or patent right or other similar personal or proprietary rights.
- Agent’s Warranties. Agent represents and warrants that: (a) HSI’s receipt, storage, use, transmission or retransmission of the Agent’s Content or any part of it (“Handling”) shall not violate or infringe any third party intellectual property rights or any publicity or privacy right; (b) HSI’s use of Agent’s Marks, and any updates and modifications of them, shall not violate or infringe any intellectual property rights or any publicity or privacy right; (c) HSI’s Handling of the Agent’s Content or any part of it from the HomeScenes.com or any other part of the service shall not breach any content standards requirements or codes promulgated by any relevant authority including all authorities to whom Agent and HSI may be subject; (d) the Agent’s Content will not contain or disclose processes or instructions which if implemented, might cause damage or injury to any person or property; (e) Agent’s Content is suitable for minors; (f) Agent has authority or has obtained any and all necessary approvals or licenses (compulsory or otherwise) for the storage, use, transmission and retransmission of the Agent’s Content or any part of it over the Internet and that such authority, approval or license, if any, is current and in full force and effect; (g) the content of the Agent’s Content or any part of it that is to be transmitted through HomeScenes.com or otherwise made available to the public or any part thereof does not contain material that is defamatory, libelous, obscene or otherwise unlawful. For the avoidance of doubt, HSI has no responsibility for the content of the Agent’s Content and no obligation to review, edit or monitor the content; (h) no litigation is pending or threatened with respect to the Agent’s Content or any part of it; (i) all service or product claims made by Agent pursuant to or in connection with This Agreement shall be true and correct and fully substantiated in accordance with applicable government laws and regulations, and Agent shall not perform any act (or fail to perform any act) in violation of any government law, statute, or regulation; (j) by its duly authorized representative, and Agent has read and understood the content of This Agent Agreement.
- Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, HSI PROVIDES THE SERVICES “AS IS,” WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND. HSI EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL HSI BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION LOSS OF REVENUE OR ANTICIPATED PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE, EVEN IF HSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT HSI’S LIABILITY FOR ACTS OF FRAUD OR FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE.
- Disclaimer. THIS SECTION CONTAINS THE ONLY WARRANTIES, EXPRESS OR IMPLIED, MADE BY HSI. ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE EXPRESSLY EXCLUDED AND DECLINED. HSI DISCLAIMS ANY IMPLIED WARRANTIES, PROMISES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND / OR NON-INFRINGEMENT, WHETHER AS TO ANY SERVICES OR TOOLS RENDERED BY HSI AND / OR THE TECHNOLOGY DEPLOYED IN CONNECTION THEREWITH. HSI MAKES NO REPRESENTATION THAT THE OPERATION OF THE HOMESCENES.COM SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, AND HSI WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
- Indemnity. Agent hereby indemnifies and holds harmless, and agrees to defend against any third-party claim or action brought against HSI or any of its parent, subsidiary or affiliated companies, its or their directors, officers, employees, licensees, Agents, attorneys, assigns or independent contractors, from and against any and all claims, actions, losses, liabilities, damages, costs and expenses (including legal fees and costs) arising out of or in connection with any claim(s) that would constitute a breach of any warranty, representation, covenant or agreement made by the Agent herein (Indemnified Claims). HSI shall (at Agent’s expense) be entitled to participate in the defense of any claim with its own counsel.
- Discontinuance. HSI reserves the right to cease, discontinue, suspend or delete any Agent’s Content if, in HSI’s sole opinion, the Agent’s Content is in breach of any part of this Agreement. If HSI ceases, discontinues, suspends or deletes any Agent’s Content, HSI shall provide Agent with reasonable notice.
- Term; Termination. THIS Agreement commences on the date on which HSI has received a duly executed copy of this Agreement and, subject to Parties’ rights of termination below, shall continue initially for a period of one year, provided, however, that (a) thereafter, the Term shall continue for successive one year periods unless either Party terminates, and (b) either Party may terminate This Agreement at any time by written notice to the other Party (which shall be deemed effective upon receipt) if the other Party materially breaches any of the terms, covenants, warranties, representations, indemnities or obligations under This Agreement. On termination or expiry of this Agreement for any reason, HSI may cease transmission of the Agent’s Content and shall have the right to delete any and all of the Agent’s Content, data and other materials on its servers. HSI shall have no obligation whatsoever to repay any amounts (including payments in advance) received from Agent in respect of Services provided hereunder.
- Notices. Any communication in connection with This Agreement shall be in writing and sent by fax or prepaid post (unless the address is changed by a notice), To HSI: firstname.lastname@example.org. To Agent: at the e-mail address provided by Agent in the e-mail text box located below this agreement.
- General. THIS Agreement constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous communications. The Agreement may not be modified except by a written agreement signed by authorized representatives of HSI and Agent. If a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the remainder of the Agreement shall continue in full force and effect. Agent may not assign This Agreement without HSI’s prior written approval. No waiver of any breach shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provision, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party. No employer-employee relationship, partnership or joint venture is created hereunder. The Parties each agree to take all actions and execute all documents as may be necessary or desirable to carry out or implement and give full effect to the provisions and intent hereof. THIS Agreement and all matters arising under it shall be governed by the applicable laws of the USA, including U.S. intellectual property laws, and the laws of Georgia applicable to contracts entered into and wholly to be performed therein, without regard to choice of law rules. The Parties consent to the exclusive jurisdiction of the federal, state, and county courts of USA, State of Georgia, County of Fulton.
- Electronic Signatures. IN WITNESS WHEREOF, the Parties have duly executed this Agreement as a business-to-business agreement. Agent ‘electronically’ signs this Agreement by entering his or her e-mail address in the field provided in the text area below this Agreement. HomeScenes, Inc. ‘electronically’ signs this agreement as HomeScenes, Inc. by sending to Agent a UserName and a Password to provide the Agent with access information for entry into the HomeScenes' Agent Access programs.
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