Subscriber Agreement              Last Updated:  March 28, 2017

 

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.

Congratulations on your purchase of Top Producer® CRM, the industry’s most powerful Real Estate sales and marketing system. Here are some important contact details and links that will help you get started and make the most of your Top Producer® CRM experience.

Technical Support: Our friendly, knowledgeable technical support agents are happy to assist you with any questions you may have. Our technical support department is available between the hours of 6AM to 5PM Pacific time, Monday to Friday.
Call toll free North America: 1-800-830-8300
Email: support@topproducer.com
 

Top Producer Campus: In addition to our Technical Support department, we encourage you to visit the Top Producer Campus, our online community and support center. Here you’ll find a variety of informative articles and video tutorials that will help you get started with your Top Producer products. In addition to our Product Help section, check out our Training section if you’re interested in online instructor-led training. Additionally, Top Producer Campus provides you with sales strategies, industry news, company updates, our user Forum and more. Just think of the Campus as a one-stop shop for all your Top Producer training and education needs!

Customer Service: Our Customer Service department is happy to assist you with any account and billing inquiries. Our Customer Service department is available between the hours of 6AM to 5PM Pacific time, Monday to Friday.
Call toll free North America: 1-866-230-4789
Email: service@topproducer.com


PARTS OF THIS SUBSCRIBER AGREEMENT DOCUMENT

This document consists of four (4) 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 Top Marketer service – this part begins immediately after the main Subscriber Agreement terms, it ends where indicated below, and it applies only to Subscriptions for the Top Marketer service/Application.  Also, the terms contained in this part are specific to the Top Marketer 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);

Supplemental Terms for the Top Producer Websites service – this part begins immediately after the Supplemental Terms for the Top Marketer 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); and.

Supplemental Terms for the Top Producer Blogs service – this part begins immediately after the Supplemental Terms for the Top Producer Websites service, it ends where indicated below, and it applies only to Subscriptions for the Top Producer Blogs service/Application.  Also, the terms contained in this part are specific to the Top Producer Blogs 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 Systems Company ULC.  In that case, “Company,” when used in this Agreement, means Top Producer Systems Company.  Top Producer is a ULC corporation organized under the laws of the Province of British Columbia and having a principal place of business at 10271 Shellbridge Way, Suite 300, Richmond, BC V6X 2W8, 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 Move Sales, Inc.  In that case, “Company,” when used in this Agreement, means Move Sales, Inc.  Move Sales, Inc. is a corporation organized under the laws of the State of Delaware and having a principal place of business at 30700 Russell Ranch Road, Westlake Village, California  91362, 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 Company’s 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.  The “Customer Service Line” is 866-230-4789 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. 

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 http://www.move.com/company/privacy.aspx?poe=move (the “Privacy Statement”) governs Company’s 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, www.topproduceronline.com or www.move.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 Company’s 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 Company’s 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 Company’s 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 Company’s 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. Company’s 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 as being subject to Auto-Renewal, this Agreement shall renew automatically for additional, consecutive terms (each a “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 (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. Such automatic renewal shall occur and continue unless and until you elect to terminate this Agreement by timely calling a Company customer service representative, by dialing the customer Service Line, and communicating such decision to terminate. The “Customer Service Line” is 866-230-4739 or such other number as specified by Company from time to time. To be timely and effective, such termination notification must occur not later than the last day of the Initial Term or the then current Renewal Term, as confirmed to you by a subsequent email or other written communication from Company. 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. If 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 (an “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 http://www.move.com/company/privacy.aspx?poe=move (the “Privacy Statement”) governs Company’s 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 Company’s 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 Company’s 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 Company’s 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 Company’s 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, www.topproduceronline.com or www.move.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.  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 Company’s 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 assistant’s 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.

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, another’s 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 Company’s 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 Company’s 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 Company’s 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 Company’s 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. You may opt out of sharing your information with one or more of such third parties by going to the following website(s):https://optout.context.io/.

7.       TECHNICAL SUPPORT.  Company will, to the extent commercially reasonable, attempt to assist you with accessing and using the Application (“Technical Support”).  Company will provide you with Technical Support via telephone, facsimile, or email.  Technical Support staff is available between the hours of 6:00 AM and 5:00 PM, Pacific Time, Monday through Friday excluding Company 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 Company’s 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 Company’s sole discretion and without any prior notice to you. 

                  Specially-Arranged Subscriptions.   Without limiting Company’s 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 Company’s 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, THESUBJECT MATTERMEANS 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, COMPANY’S 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 Company’s 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 party’s 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 Supplier’s 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  No 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; 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 British Columbia, Canada, as applied to agreements entered into and wholly performed within British Columbia between British Columbia residents, and 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 British Columbia, 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 California, USA, as applied to agreements entered into and wholly performed within California between California residents, and 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 Los Angeles County, California, 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 présente convention ainsi que tous les documents qui s'y rattachent directement ou indirectenent soient rédigés 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 Company’s 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 Company’s discretion, be shared with, assigned to or otherwise permitted to inure to the benefit of one or more of Company’s 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. 

 

 

*  *  * END OF MAIN SUBSCRIBER AGREEMENT TERMS *  *  *

 

Next Part:  Supplemental Terms for the Top Marketer Service

 


 

 

SUPPLEMENT “A”

 

SUPPLEMENTAL TERMS FOR THE TOP MARKETER SERVICE

 

 

The terms contained in this part (“Supplement”) – Supplemental Terms for the Top Marketer service/Application -- are specific to the Top Marketer service/Application and your receipt of, access to and use of the Top Marketer 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 Marketer 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 Top Marketer service/application (beginning as of January 18, 2007, or approximately that date) is a technology-based service that equips the real estate professional with tools for providing relevant real estate information to clients and prospects and that can assist with responding to and obtaining new clients.  Currently it includes (a) the “Market Snapshot” tool (which can provide, among other things, numerous market data to clients and prospects that allow them to better understand key market factors relevant to the value and pricing of their home) and (b) 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; in turn, the “Market Snapshot” tool can be used to respond to these leads on an automated and periodic basis.  Top Marketer might also include Your receipt of Company-generated leads (based on interest shown by persons visiting one or more Company Websites); however, the Application does not include any guarantee that You will receive Company-generated leads or other leads as a result of subscribing to the Application.  Other features or services of the Application will be made available to you as part of the Application from time to time in Company’s discretion.  “Company Website(s)” means one or more websites operated by Company or its Affiliates (but excluding websites Company or its Affiliates host for You or other customers as part of a website hosting business).

 

 

PRELIMINARY UNDERSTANDINGS

 

 

REQUIRED COMPANY TECHNOLOGY:  Unless notified otherwise, use of the Top Marketer™ Application requires that You also subscribe to the Company’s “Top Connector™ solution for the Server” application. 

 

 

FURTHER AGREEMENT

 

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.  AUTHORIZATION; APPLICATION “AS IS”; YOUR DUTY TO RESPOND TO INQUIRIES; PROFESSIONAL CONDUCT. 

2.1  The Application includes the possibility that “Leads” (i.e., persons interested in information regarding the sale, purchase or attributes of a home, property or market area) will be referred to you for follow-up from one or more Company Websites (the “Lead Program”).  Although there is no promise or guarantee that You will receive Leads, You authorize Company to include You as a Participant in the Lead Program.  “Participant” means a real estate agent, professional or other person who has entered into a Lead Program Agent-Agreement (such as this Agreement) with Company or one of its authorized affiliates or designees.  You understand and agree that Company shall be free to operate, administer, change, reduce, minimize, cancel or duplicate the Lead Program in its sole discretion.  THE APPLICATION, INCLUDING THE LEAD PROGRAM, INCLUDING AS WELL, WITHOUT LIMITATION, ANY AND ALL INQUIRIES, AS DEFINED BELOW), IS PROVIDED TO YOU AND ACCEPTED BY YOU STRICTLY ON AN “AS IS” BASIS.

 

2.2  In each case that an Inquiry is relayed or transmitted to You, You agree to appropriately respond to such Inquiry and adhere to this Agreement.  An “Inquiry” means an indication by a Lead Program User (normally via a Company Website) that the user wishes to receive a home market report or, if offered as part of the Lead Program, other assistance from or information about a real estate professional.  “Lead Program User” means any home seller, homeowner, consumer, business or other Person, excluding Company, You and other Participants, who takes any action to make use of, or otherwise indicates a willingness to benefit from, the Lead Program (e.g., in the capacity of seeking information or assistance regarding a home or property or otherwise in the capacity of being a Lead).  “Lead Program Websites” refers to those Company Websites (or that Company Website) on or through which Company (or an authorized affiliate or designee) offers the Lead Program.  “Participant Website” means a website (other than a Company Website) on which You place or arrange to have placed the Lead Widget.  (Section 4.2 of this Supplement, below, addresses Your use of the Lead Widget.)  If an Inquiry from a Lead Program Website is in Your determination flawed, unreliable or in any way unsatisfactory, You agree to notify Company immediately.

 

2.3  You agree to at all times conduct Yourself (and cause those working for or with You to conduct themselves) in a manner (i) that is courteous, responsive, diligent, professional, lawful and respectful of Lead Program Users, (ii) that, in connection with any contact information for any Lead Program User and any other information provided by, personal to or identifying the Lead Program User, is in accordance with the privacy policy and terms of use posted on the applicable Lead Program Website(s) and (iii) that is in accordance with such specific Lead Program standards Company may issue from time to time and deem, in its good faith discretion, to be necessary to compliance with this paragraph or sound operation of the Lead Program.  In recognition of the importance to Company, its business and reputation of prompt and professional responsiveness by You regarding the Leads You might receive from a Lead Program Website, and in recognition that Lead Program Users might tend to associate slow or unsatisfactory responsiveness with Company or its Affiliates, You agree that Company (and/or its designated Affiliates or contractors) shall at all times be free to monitor, review and address the various aspects of Your involvement in the Lead Program, which will include, without limitation, Company’s right (i) to review lead/Inquiry history, Responses and Response records, and other statistics and information (past, current and pending), associated with Your participation in the Lead Program and (ii) to follow up with and otherwise contact Lead Program Users. 

 

3.  LICENSING;  GOOD STANDING;  RESPONSIVENESS.

3.1  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.  You further, and in particular, represent and promise that You are and will at all relevant times remain duly licensed and in good standing to act as a real estate agent and represent real estate sellers in the marketing, offering, listing and sale of real estate in all jurisdictions or areas relevant to Your participation in the Lead Program.

 

3.2  You agree to accept and duly respond to all Inquiries transmitted by Company to You pursuant to the Lead Program; however, if You have timely and duly limited Inquiries (via the Application Control Page or other means made available by Company) to only those pertaining to certain market areas, then You are required to accept only those Inquiries.  Either through the automated capability of the “Market Snapshot” component of the Application or otherwise, You agree to provide the response(s) required by this Agreement (“Response(s)”) to each such Inquiry immediately (within 48 hours), professionally and as otherwise required by this Agreement.  In addition, You also agree to answer any follow-up questions and requests from, and otherwise further respond to and deal with, any Lead Program User associated with an Inquiry at any time relayed to You in connection with this Agreement. 

 

4.  CERTAIN MATTERS REGARDING APPLICATION COMPONENTS. 

 

4.1  MARKET SNAPSHOT.   With respect to the Market Snapshot component of 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 Company’s 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 Market Snapshot component of 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 MLS’s 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. 

 

4.2  LEAD WIDGET.   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.  Upon request, Company shall provide You with information on how to cause the Lead Widget to be installed on websites.  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. 

 

4.3 MARKET BUILDER.  If you have purchased Market Builder in conjunction with this Application, Company will use reasonable efforts to ensure the accuracy of the mailing lists, but makes no representation or warranty as to the accuracy and deliverability of the addresses, and such lists are provided “as is” with all faults accepted.  Mailing lists are not exclusive, and may be purchased by more than one agent for each geographic area.  When an addressee responds to a postcard by accessing the website URL on the postcard and submitting the requested information, they will become a Lead and will not receive a future mailing by you with respect to that Market Builder subscription.

 

4.4  JUST LISTED/JUST SOLD PRODUCT.  If you have purchased Just Listed/Just Sold in conjunction with this Application, Company will use reasonable efforts to ensure the timeliness and accuracy of mailing the associated postcards, but makes no representation or warranty as to the accuracy, timing or deliverability of the postcards.  This product is provided “as is” with all faults accepted.  Company does not make any representation, warranty or guarantee of any kind that every new listing or newly sold listing will meet the requirements for this product.  To meet the requirement such listing must have sufficient information as determined in Company’s sole discretion, including at least 100 associated addresses to which the postcards may be mailed. 

 

 

5.  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:  tmsupport@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; 10271 Shellbridge Way, Suite 300, Richmond, BC V6X 2W8; Canada; ATTN:  Application Executive – Top Marketer.

 

Notwithstanding the other provisions of this Section 5, 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 5 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:  1.800.821.3603.  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 United States 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 Company’s 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. 

 

6.  SURVIVAL OF TERMS.

The provisions of Sections 2.3, 3, 4.2 (last two sentences), 5, 6, 7 and 8 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. 

 

7.  TERM & TERMINATION; EARLY TERMINATION.

7.1   Term & Termination.   This Agreement shall continue until terminated in accordance with the provisions of this Agreement expressly providing for termination; however, for the avoidance of doubt, Company also reserves the right to suspend or terminate this Agreement with respect to the Lead Program immediately (with notice to You promptly thereafter) if it determines in its sole discretion that such termination is necessary, prudent or otherwise desirable or appropriate in the event of or in light of (i) enactments of, changes in or Company’s (or other’s) interpretation of applicable law, (ii) a decision to cancel, suspend or make a significant change to the Lead Program, (iii) actual or foreseeable loss of or harm to Company’s business, reputation or property, (iv) any communication received from a Lead Program User, including, without limitation, one indicating actual or likely dissatisfaction on the part of a Lead Program User, or (v) Company’s determination, in its sole discretion, of what is in the best interests of the Lead Program or any of its stakeholders. 

 

7.2  Duties Regarding Termination.  In the event of any termination of this Agreement for any reason insofar as same relates to the Lead Program, You agree, as requested by Company, to cooperate with and assist Company’s efforts to assure a smooth, prompt and professional transition of service and/or attention to any Lead Program User that Company deems affected by such termination, including, without limitation, cooperation with and assistance to any real estate agent, professional or other person Company might identify to You as a replacement for Your participation.  You acknowledge and agree that Company will be free to itself and/or through the involvement of others to send or cause to be sent to any such Lead Program User one or more communications (i) that indicates Your participation in the Lead Program, and/or Your associated role regarding the Lead Program User, is terminated, (ii) that indicates that Your participation has been replaced by that of another real estate agent, professional or other person, and/or (iii) that any further contact from You is independent of and not related to the Lead Program, Company and any previous contacts. 

 

8.  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 Company’s 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.  You agree that the Lead Program, the Lead Program Websites, and all technology, systems, data and processes related to the Lead Program or the Lead Program Websites are proprietary and confidential to Company and You promise to take no action nor engage in any omission to act that would appropriate, interfere with, impair or in any way threaten any such property or Company’s rights and interests in respect of any such property.  “Sensitive Company Information” means any information disclosed or otherwise provided to You by Company or by way of the performance of this Agreement (including, without limitation, any name, contact information, personal information or other information concerning any Lead Program User or any person related to or associated with such Person) shall be deemed proprietary to Company (and only to Company).  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.

 

9.   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 TOP MARKETER 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 Company’s 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 company’s 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 Company’s 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; Powered by realtor.com, Powered by Move, etc.) 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 party’s 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 Company’s 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 *  *  *

 

 

 

*  *  *  *  *  *  *  *  *  *  *  *  *  *  *  *  *  *  *  *  *  *  *  *

 

 

 

 


 

SUPPLEMENT “C”

 

SUPPLEMENTAL TERMS FOR THE TOP PRODUCER BLOGS SERVICE

 

The terms contained in this part (“Supplement”) – Supplemental Terms for the Top Producer Blogs service/Application -- are specific to the Top Producer Blogs service/Application and your receipt of, access to and use of the Top Producer Blogs 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 Blogs 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 Blogs service/application is a service enabling you, upon purchasing a Subscription, to publish and maintain a single blog 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 Company’s discretion. 

 

B.   FEES.   Unless waived by the Company, a fee shall apply for each 12-month period (or portion thereof) for which you subscribe to the Application (the “Blog Fee”).  WAIVER:  The Company hereby waives the Blog Fee, for the duration of your subscription to the Application, if at the time you subscribe to the Application you are then a subscriber in good standing to any other Top Producer® application for which a fee is normally charged by the Company (for example, the Top Producer® CRM solution (formerly 8i™ or 7i™) or the Websites or Top Marketer™ applications).  Unless waived, the Blog Fee will be due at the beginning of each 12-month period (as referenced above) while your subscription to the Application is in effect, and you promise to pay such fee timely and upon demand.  Currently the Blog Fee is five dollars ($5.00) per year but Company reserves the right to change this at any time and with or without notice.

 

C.   COMMENTS/POSTINGS.   Insofar as the Application allows third party users of or visitors to any blog resulting from your deployment of the Application (i.e., visitors to your blog) to submit or post Blog Visitor Submissions, you agree to remove from your deployment of the Application (a “Blog”) 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 Blog, 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 Blog.  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 Blog 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 Blog (including, without limitation, postings by you), you agree that Company (including its Affiliates, contractors and service providers, and other designated third parties), may in whole or in part, 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 such Content 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 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 Blog following the date that is ten (10) business days after such opt out; also, any such attribution addressed below may be ceased (in Company’s 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 Blog, Company shall use reasonable efforts to attribute your Blog 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 Blog; naming you or your Blog or the URL of your Blog; 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. 

 

D.   IDENTIFICATION AND CONTACT.   You agree to at all times maintain, conspicuously, on your Blog (at least on the first or home page thereof, and without need of scrolling down to view same) your name, company (if related to the Blog) and contact information, and to at all times leave it clear to visitors to the Blog that you and no other are the operator of the Blog and responsible for its content. 

 

E.   RELIANCE ON SUPPLEMENT “B.”   Subject to the specific exceptions cited below,* the terms of Supplement “B” of this Agreement (i.e., Supplemental Terms for the Top Producer Websites service) shall apply to the BLOG Application in the same manner and to the same extent as such terms apply (under Supplement “B”) to the WEBSITE Application.  Such terms of Supplement “B” shall be construed accordingly, shall be deemed incorporated into and made a part of this Supplement “C,” and shall be deemed set forth in full in the body of this Supplement “C” as if expressly repeated here.

 

       * Specific Exceptions:

 

For purposes of this Supplement, each instance in Supplement “B” of any form of the word “website” (whether capitalized or not, plural or singular, or otherwise) will be read and construed as “blog” (and in each such case “blog” shall be deemed to take the same format (i.e., capitalized, lower-case, plural, singular, italicized, etc.) as the applicable instance.  In the same manner, each instance in Supplement “B” of any form of the term “web content” will be read and construed as “blog content.”  Nevertheless, the foregoing exception will not apply if context clearly requires otherwise (e.g., the way “websites” is used in the sixth bulleted provision of Section I of Supplement “B”);

 

For purposes of this Supplement, neither Section A nor Section F of Supplement “B” shall apply; and

 

For purposes of this Supplement, the reference to Section “F” in Section O of Supplement “B” shall be disregarded.

 

 

 

* * *  END OF SUPPLEMENTAL TERMS FOR THE TOP PRODUCER BLOGS 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