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Terms of Service

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realWITS Terms of Service

By using realWITS (“realWITS”) products, Software, services or web sites (“realWITS services”), you agree to the following terms and conditions, and any policies, guidelines or amendments thereto that may be presented to you from time to time, including but not limited to Program Policies and Legal Notices (collectively, the “Terms”). We may update the Terms in the future, and you will be able to find the most current version of this agreement at http://realwits.com/terms-of-service.

USE OF SERVICES

realWITS, its subsidiaries and affiliated companies (“REALWITS”) offer services to you, provided that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. In order to access certain services, you may be required to provide current, accurate identification, contact, and other information as part of the registration process and/or continued use of REALWITS services. You are responsible for maintaining the confidentiality of your account password, and are responsible for all activities that occur under your account. You agree to immediately notify REALWITS of any unauthorized use of your password or account or any other breach of security. REALWITS cannot and will not be liable for any loss or damage arising from your failure to provide us with accurate information or to keep your password secure.

CUSTOMER SUPPORT

Customer support is provided by telephone and email, Monday through Friday, between 8AM and 5PM PST. Technical support requests relating to errors in, or the improper functioning of, the services is provided at no cost by REALWITS, Inc. All other requests for support, training, customization and/or other services will be billed in conjunction with providing the services, based on REALWITSs’ then current pricing at the time of such request.

APPROPRIATE CONDUCT

You understand that all information, data, text, email, listings, Software, photographs, graphics, video, messages or other materials (“Content”) are the sole responsibility of the person from which such Content originated. REALWITS reserves the right, but shall have no obligation, to pre-screen, flag, filter, refuse, modify or move any Content available via REALWITS services. You understand that by using REALWITS services you may be exposed to Content that is offensive, indecent or objectionable, and that you use REALWITS services at your own risk.

You agree that you are responsible for your own conduct and any Content that you create, transmit or display while using REALWITS services and for any consequences thereof. You agree to use REALWITS services only for purposes that are legal, proper and in accordance with the Terms and any applicable policies or guidelines. You agree that you will not engage in any activity that interferes with or disrupts REALWITS services or servers or networks connected to REALWITS services.

In addition to this agreement, your use of some specific REALWITS services is governed by the policies or guidelines specific to those services and which are specifically incorporated into this agreement.

REALWITS PRIVACY POLICY

By using REALWITS services, you acknowledge and agree that REALWITS may access, preserve, and disclose your account information and any Content associated with that account if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) satisfy any applicable law, regulation, legal process or enforceable governmental request, (b) enforce the Terms, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security or technical issues (including, without limitation, the filtering of spam), or (d) protect against imminent harm to the rights, property or safety of REALWITS, its users or the public as required or permitted by law.

You understand that the technical processing and transmission of REALWITS services, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks, devices or services.

PROPRIETARY RIGHTS

REALWITS’s Rights

You acknowledge and agree that REALWITS services and any necessary Software used in connection with REALWITS services (“Software”) contain proprietary and confidential information that is protected by applicable intellectual property and other laws and treaties.  Except as expressly authorized by REALWITS or other proper third party rights holders, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on Content, REALWITS services or Software, in whole or in part except as specifically authorized in a separate written agreement.

Subject to the Terms, REALWITS grants you a personal, non-transferable and non-exclusive right and license to use the object code of its Software; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software, unless such activity is expressly permitted or required by law or has been expressly authorized by REALWITS in writing. You agree not to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to REALWITS services. You agree not to access REALWITS services by any means other than through the interface that is provided by REALWITS for use in accessing REALWITS services except as specifically authorized in a separate written agreement. Except as expressly authorized by REALWITS you agree not to use, copy, imitate, or incorporate any trademark, service mark, trade dress, company name, or product name in a way that is likely to cause confusion among consumers. You also agree not to remove, obscure, or alter REALWITS’s or any third party’s copyright notice, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the REALWITS services or Software.

Your Rights REALWITS claims no ownership or control over any Content submitted, posted or displayed by you on or through REALWITS services. You or a third party licensor, as appropriate, retain all patent, trademark and copyright to any Content you submit, post or display on or through REALWITS services and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying Content on or through REALWITS services which are intended to be available to the members of the public, you grant REALWITS a worldwide, non-exclusive, royalty-free license to reproduce, adapt, modify, publish and distribute such Content on REALWITS services for the purpose of displaying, distributing and promoting REALWITS services. REALWITS reserves the right to syndicate Content submitted, posted or displayed by you on or through REALWITS services and use that Content in connection with any service offered by REALWITS. REALWITS furthermore reserves the right to refuse to accept, post, display or transmit any Content in its sole discretion.

You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any Content submitted.

GRANT OF LICENSE

This License Agreement (License) permits you to use a single login, on a single domain name (URL).  The Software is licensed as a single product, to an individual user, or group of users for Multiple User Licenses and Site Licenses. This Agreement requires that each user of the Software be Licensed, either individually, or as part of a group. A Multi-User License provides for a specified number of users to use this Software at any time. This does not provide for concurrent use across multiple domain names (URL’s) unless specifically agreed upon and ordered as such at an additional cost above the normal licensing fee. Each user of this Software must be covered either individually, or as part of a group Multi-User License. The Software is in use on a computer when it is accessed via web browser, a user logs in, or the software is hyperlinked from any source.  The software may only be contained (whether built in or framed) within one primary domain name (URL), unless specifically agreed upon in the service agreement.

Limitations on License. Except as expressly set forth in this Agreement, no rights are granted to do any of the following, and you shall not, and shall not cause or allow anyone else, to do any of the following: (a) use, display, access, distribute, transfer, alter, or modify the licensed content, or otherwise create any derivative works of the licensed content, (b) download, distribute, export, deliver, or transmit any of the licensed content, including to any computer or other electronic device, (c) sell, grant access to, or sublicense the licensed content, or any portion of the licensed content, to any third party. You agree to take all reasonable steps necessary to protect the licensed content from unauthorized access, distribution, copying or use. Additionally, you agree to never use crawlers, rogue bots, site scrapers or any automated script/software or method that attempts to mine the listing content on your own or any other accounts in the system. You acknowledge that we may block access to our servers and/or membership and if discovered your account will be immediately terminated without prior notice.

MLS DATA SERVICES

REALWITS, Inc. provides certain services that are provided in-part by third party Multiple Listing Services (MLS).  Your use of such services is subject to the terms and conditions set forth by each individual MLS supplier; in most cases, you must be an active member of the MLS in order to participate in MLS Data Services provided by the MLS and REALWITS, Inc..  You are also solely responsible for any fees charged by the MLS data supplier.  REALWITS and/or the MLS data supplier will provide you with all necessary documentation, contracts and fees required to participate in the MLS data services.  REALWITS is not responsible for the accuracy, completeness, functionality, usability, availability or merchantability of the MLS data services provided by third party MLS data suppliers.  The use of MLS data services is strictly at your own risk and there is no guarantee or implied warranties provided by REALWITS.

EMAIL SERVICES

You hereby agree as follows: (i) you shall not use the Services for “spamming,” as determined by REALWITS in its reasonable discretion; (ii) you shall keep secure any identification, password and other confidential information relating to your site and shall notify REALWITS immediately of any known or suspected unauthorized use of your site or breach of security, including loss, theft or unauthorized disclosure of passwords or other security information; (iii) you shall not use the services for any unlawful purpose; (iv) you shall not engage in any other conduct that restricts or inhibits any other person from using or enjoying the Services, or which, in the judgment of REALWITS, exposes REALWITS, or any of its customers or suppliers to any liability or detriment of any type; and (vi) you shall be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of the services, and you shall be responsible for all charges related thereto.

SOFTWARE AND AUTOMATIC UPDATES

Your use of any Software provided by REALWITS will be governed by the Terms and any additional terms and conditions of the end user license agreement accompanying such Software. REALWITS Software may automatically report version number or other diagnostic information and may automatically download upgrades to the Software to update, enhance and further develop REALWITS services, including providing bug fixes, patches, enhanced functions, missing plug-ins and new versions.

GENERAL PRACTICES REGARDING USE AND STORAGE

You agree that REALWITS has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted by REALWITS services. You acknowledge that REALWITS may have set no fixed upper limit on the number of transmissions you may send or receive through REALWITS services or the amount of storage space used; however, we retain the right, at our sole discretion, to create limits at any time with or without notice.

MODIFICATIONS TO SERVICE

REALWITS reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, REALWITS services (or any part thereof) with or without notice. You agree that REALWITS shall not be liable to you or to any third party for any modification, suspension or discontinuance of REALWITS services.

BILLING POLICIES

First monthly payment on services will be due prior to activation of your REALWITS account credentials or any design work shall begin. Please note you will also have MLS charges and you are responsible for these payments.  Credit cards via Paypal will be billed on or around the same day of the month in which your account credentials were originally established. (For example, if your account was activated on the 25th of the month, your credit card would be billed on or around the 25th of the next month and the months to follow). Services and charges will continue on a month-to-month basis, unless otherwise stated in this agreement.  Once payment has been collected, refunds are not available.

In the event that you may choose to cancel services with REALWITS, please provide notice prior to your monthly billing date, as detailed above. This payment is for active service for the entire monthly billing cycle, whether the user logs on or not. There will be no pro-rated refunds for accounts terminated before the end of the monthly billing cycle. Service cancellations must be received via email, fax or US postal mail.  This contact information can be found on our contact page at realWITS.com.  Cancelled accounts will automatically be terminated at the end of the billing cycle, as long the request is received prior to the monthly billing date, as explained above. Your account will remain active until automatically terminated by the billing program. There will be no cancellation fee for this, nor will there be a refund for any unused service until the end of the billing cycle, as your account will remain active until that time.  Non-usage of an account is not proof of cancellation of service. Subscribers are responsible for full payment on all accounts whether or not the account is ever utilized until such time as the account is cancelled by appropriate notice.

TERMINATION

You may discontinue your use of REALWITS services at any time. You agree that REALWITS may at any time and for any reason, including a period of account inactivity, terminate your access to REALWITS services, terminate the Terms, or suspend or terminate your account. In the event of termination, your account will be disabled and you may not be granted access to REALWITS services, your account or any files or other content contained in your account.  Termination, Indemnity, Disclaimer of Warranties, Limitations of Liability, Exclusions and Limitations and choice of law, severability and statute of limitations within these Terms, shall survive expiration or termination.

LINKS

REALWITS services may provide, or third parties may provide, links to other World Wide Web sites or resources. REALWITS may have no control over such sites and resources and you acknowledge and agree that REALWITS is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that REALWITS shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.

CLIENT ANNOUNCEMENTS

We reserve the right to publish new customer signups and positive feedback at our website and other public forums, such as news websites, blogs and other industry specific websites. If you do not want us to quote your positive experiences or announce your use of our service you must notify us in advance. If notice is received after initial publication date, we will remove any notices generated from these said announcements promptly on realWITS.com.  You shall indemnify and hold harmless REALWITS, its affiliated companies and third party vendors against any and all claims, losses, damages, liabilities, costs and expenses (including reasonable attorneys fees) arising out of or relating to these announcements.

INDEMNITY

You agree to hold harmless and indemnify REALWITS, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners, (collectively “REALWITS and Partners”) from and against any third party claim arising from or in any way related to your use of REALWITS services, violation of the Terms or any other actions connected with use of REALWITS services, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case, REALWITS will provide you with written notice of such claim, suit or action.

DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

  1. YOUR USE OF REALWITS SERVICES IS AT YOUR SOLE RISK. REALWITS SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, REALWITS AND PARTNERS EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
  2. REALWITS AND PARTNERS DO NOT WARRANT THAT (i) REALWITS SERVICES WILL MEET YOUR REQUIREMENTS, (ii) REALWITS SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF REALWITS SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH REALWITS SERVICES WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
  3. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF REALWITS SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
  4. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM REALWITS OR THROUGH OR FROM REALWITS SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.

LIMITATION OF LIABILITY

YOU EXPRESSLY UNDERSTAND AND AGREE THAT REALWITS AND PARTNERS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF REALWITS OR PARTNERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i) THE USE OR THE INABILITY TO USE REALWITS SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM REALWITS SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON REALWITS SERVICES; OR (v) ANY OTHER MATTER RELATING TO REALWITS SERVICES.

EXCLUSIONS AND LIMITATIONS

NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS IN SECTIONS 14 AND 15 WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

NO THIRD PARTY BENEFICIARIES

You agree that, except as otherwise expressly provided in the Terms, there shall be no third party beneficiaries to the Terms.

NOTICE

You agree that REALWITS may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on REALWITS services.

GENERAL INFORMATION

Entire Agreement. The Terms (including any policies, guidelines or amendments that may be presented to your form time to time such as Program Policies and Legal Notices) constitute the entire agreement between you and REALWITS and govern your use of REALWITS services, superseding any prior agreements between you and REALWITS for the use of REALWITS services. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other REALWITS services, partner services, third-party content or third-party Software.

Choice of Law and Forum. The Terms and the relationship between you and REALWITS shall be governed by the laws of the State of Oregon without regard to its conflict of law provisions. You and REALWITS agree to submit to the personal and exclusive jurisdiction of the courts located within Wabasha County, Minnesota.

Waiver and Severability of Terms. The failure of REALWITS to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.

The section headings in the Terms are for convenience only and have no legal or contractual effect.