ADVERTISER CENTER TERMS AND CONDITIONS

 

1.  Definitions. "Agreement" means these Terms and Conditions and the Order Form (if any) collectively. "Authorized Subscriber" means any subscriber, broker, and/or agent authorized to participate in a MLS. "Content" means any content, advertising, and/or data, provided or made accessible by Content Provider to HF, including real estate listings, data, text, photos, logos, trade and service marks, video, and images. "Content Provider" means the Customer in its capacity of providing or authorizing the delivery of Content to HF. "Customer" means the advertiser(s) or other party or parties designated on the Order Form or to whom login credentials have been otherwise provided. "Display" means the public display of and the access to all or any portion of the Content as well as any download, hosting, storing, copying, reproducing, publishing, editing, enhancing, distributing, transmission, adaptation, modification, public performance, social network and/or other sharing, creation of derivative works, and other use of or from the same. "Effective Date" means the date of Customer's consent to the Terms and Conditions of this Agreement, whether by written document, online click-thru, or other assent. "HF" means HomeFinder.com, LLC, together with its members, subsidiaries, affiliates, successors, agents, and divisions. "HomeFinder.com Network" means all websites and web pages owned or operated by or on behalf of HF, including http://www.HomeFinder.com and any mobile, co-branded, and/or private labeled versions of such site(s) and page(s); any newspaper and/or print publications of HF affiliates; any mirror site(s), derivative site(s), or site(s) of any distribution partner(s); all related applications, widgets, or functionality; and any successor(s) or replacement(s) to any of the same. "MLS" means a multiple listing service. "Order Form" means the order/enrollment form entered into by and between Customer and HF and for the particular product(s) and/or service(s) being purchased/ordered by Customer, if any. "Product" means the particular HF advertising product(s) and/or package(s) identified in the Order Form and/or in a separate addendum (if any). "User Data" means any personally identifiable information (e.g., first name, last name, address, phone number, email address) provided or made available by HF to Customer as part of a Product.

 

2.  Fees. HF's performance may be conditioned upon credit approval of Customer and Customer authorizes HF to obtain a credit report regarding Customer. If invoiced, Customer agrees to pay all fees specified in the Order Form within 30 days of date of invoice. If any fees are not paid by Customer within such time period, HF may charge and Customer shall pay interest on unpaid amounts at the rate of 1.5% per month or if less, the highest rate permitted by law. Customer further agrees to pay all of HF's costs, including attorneys' fees, incurred in collecting any overdue amounts. Customer shall be solely responsible for payment of any taxes applicable to Customer's purchase of the Products, other than taxes on HF's income. HF reserves the right to increase the fees at any time upon 30 days notice to Customer, provided Customer shall have the right to terminate the Agreement by providing HF with written termination notice prior to the end of such 30 day period. If payment is made by credit card, Customer expressly authorizes HF to automatically charge the applicable card on a monthly basis during the term of this Agreement (unless otherwise agreed by the parties) and agrees that any fee increase made in accordance with this Section 2 may also be charged to the same card in the same manner.

 

3.  Term/Termination. Unless a specific initial term for this Agreement is specified in the Order Form, the initial term of the Agreement is 1 month. Following the initial term this Agreement shall auto-renew on a monthly basis until otherwise terminated. Either party may terminate this Agreement as to one, all, or any number of the Products referred to in the attached Order Form as follows: (a) for Single Enhanced Listings, following 3 business days written notice, termination will be effective immediately or at such later date as reasonably possible; or (b) for all other products, following written notice, termination will be effective on the then next invoicing date. Either party may terminate this Agreement in the event the other party commits a material breach of this Agreement and such breach is not cured by the breaching party within 15 business days of its receipt of written notice of such breach from the non-breaching party. HF reserves the right to immediately suspend performance or terminate this Agreement without notice and without liability in the event: (a) Customer fails to meet HF's credit standards, (b) Customer fails to pay any invoice within 30 days of due date, and/or (c) any Content feed that is necessary for HF to perform its obligations is suspended or terminated. HF may discontinue any Product at any time.

 

4.  Content. In consideration of the potential publicity associated with HF's use of the Content and other good and valuable consideration, Content Provider grants HF a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, fully paid-up license for the Display of the Content on the HomeFinder.com Network and to sublicense such rights through multiple tiers. Content Provider acknowledges and agrees that HF may sell advertising products and services, including enhanced advertising packages, to brokers, agents, Authorized Subscribers, builders, and others. Content may be provided to HF directly by Customer and/or on Customer's behalf via a MLS, data aggregator/syndicator, and/or other data provider on Content Provider's behalf and Content Provider hereby consents to the same and authorizes release to HF of the Content. Content Provider shall deliver or cause delivery of Content in a mutually agreeable format and shall update Content daily. HF reserves the right to modify the HomeFinder.com Network at any time and HF will have the right to obtain and use similar or identical data and content from any other source, and may cause the Display of any portion of the Content or may reject and/or remove any portion of the Content from the HomeFinder.com Network in its sole discretion. Additionally, in the event Content Provider requests that HF copy and/or otherwise obtain Content via manual process, automatic device, or third party service, then pursuant to its warranties and representations below, Content Provider hereby expressly authorizes, licenses, and consents to the same. HF may facilitate social network or other sharing of Content and Customer acknowledges and agrees that any such sharing is at Customer's direction and initiative. Featured Video Products may not be transferred between underlying properties until the Product term expires or the underlying property is either sold or no longer listed by the current listing entity. Single Property Website URLs shall be the property of HF and considered a part of the HomeFinder.com Network; HF shall have sole control over all ad positions and/or any other related additional content applicable to any such URL. Customer agrees to use User Data solely to fulfill user requests and to provide customer service. No other rights are granted by HF to Customer with respect to User Data and Customer agrees not to sell, lease, license, distribute or transfer User Data to third parties (other than to third parties as necessary for such parties to carry out the permitted uses on behalf of Customer) or use User Data in any other unauthorized manner, including spam, junk mail, or direct marketing campaigns.

 

5.  Representations. Customer represents, warrants, and agrees that: (a) it consents to receipt of advertising, marketing, and other information and materials from HF or the HomeFinder.com Network, or any part thereof, in any manner, including via facsimile and email; (b) it will comply with all applicable laws, rules, and regulations; (c) it has obtained all required licenses and authorizations to carry on its business; (d) to the extent Customer employs certain functionality, applications, and/or services offered by or through HF and/or the HomeFinder.com Network to edit, alter, or otherwise modify the Content or any portion thereof, or to share Content via social media or engage in other sharing, or to obtain Content via manual process, automatic device, or third party service, then with regard to all such actions: (i) Customer possesses all necessary rights, permissions, and authority to authorize and/or engage in the same, and (ii) Customer shall assume all responsibility for such actions and in no case shall the same be deemed to be the actions of HF, even in the event of customer service aid or other assistance; (e) the Content does not and will not contain or link to any information or material that: (i) is false, deceptive, misleading, libelous, defamatory, or inaccurate, (ii) contains any viruses, Trojan horses, or other malware, (iii) infringes on or violates any right of a third party, including any intellectual property rights, rights of privacy and publicity, and/or contractual rights, or (iv) violates any applicable law, rule, or regulation.

 

6.  Hold Harmless. Customer agrees to indemnify, hold harmless, and at HF's option, defend HF, its members, directors, officers, employees, attorneys, contractors, vendors, and agents, from and against any action brought against such parties, or any one of them, with respect to any claim, suit, proceeding, demand, cause of action, debt or liability, including reasonable attorneys' fees, arising out of or related to (a) any breach of Customer's representations, warranties, covenants or agreements hereunder or any use of the Content; (b) breach of any Customer payment obligations to HF; (c) any social network or other Content sharing directed and/or initiated by Customer; (d) any claims made by any MLS or other data provider providing Content to HF on Customer's behalf and where such claims are made against HF for violation of the U.S. Copyright Act and/or Lanham Act, misappropriation of proprietary information, unauthorized disclosure of confidential information, and/or any related claims whatsoever and related to or arising out of HF's use of the Content and/or performance under this Agreement.

 

7.  Disclaimers. HF DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT. IN NO EVENT SHALL HF BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT, INCLUDING LOST PROFITS, EVEN IF SUCH DAMAGES ARE FORESEEABLE. UNDER NO CIRCUMSTANCES WILL HF'S TOTAL AGGREGATE LIABILITY FOR ANY CLAIMS OR DAMAGES ARISING UNDER THIS AGREEMENT EXCEED THE GREATER OF ONE THOUSAND DOLLARS OR THE AMOUNT ACTUALLY PAID TO HF BY CUSTOMER IN THE THREE (3) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO THE CLAIM. In the event any MLS, data aggregator/syndicator, and/or other third party Content provider ceases provision of any Content necessary for any Product, HF shall be permitted to immediately suspend this Agreement in whole or in part and shall incur no liability to Customer whatsoever, whether for breach of Contract or otherwise; and in such event, Customer expressly waives all claims and/or causes of action against HF, whether arising in tort, contract, and/or equity.

 

8.  Confidentiality. Customer agrees to keep confidential and not to disclose to any party or use for any purpose any non-public business, technical, or other information about HF or provided by HF, including technical information about or related to HF's databases, processes, trade secrets, business practices, development plans, products, pricing, functionality, applications, software, and intellectual property, and also including the financial terms of this Agreement.

 

9.  General. Each party shall be and act as an independent contractor. This Agreement contains the entire agreement of the parties regarding the subject matter hereof and supersedes all prior representations, agreements, or understandings, whether or not written, regarding the subject matter hereof; to the extent of any conflict between these Advertiser Center Terms and Conditions and any Order Form, the Order Form shall govern only to the extent of such conflict and the remainder of these Terms and Conditions shall remain in full force and effect. These Terms and Conditions shall not be modified by any order/enrollment form entered into by and between Customer and any HF affiliate or any other third party. Except as otherwise provided in this Section 9, the terms of this Agreement shall not be waived, altered, modified, amended or supplemented except by a written instrument signed by a duly authorized representative of each party; notwithstanding the foregoing, HF may update, modify, amend, and/or revise these Advertiser Center Terms and Conditions at any time and Customer will be notified of any such changes by an updated posting of the new Advertiser Center Terms and Conditions on the relevant page of the HomeFinder.com website, and unless HF receives written notice of any Customer objections to such changes within twenty (20) business days of the positing of such changes, in which event either party may terminate this Agreement immediately, such changes shall be deemed accepted by Customer. Customer's unilateral changes made to Sections 1-9 of these Advertiser Center Terms and Conditions, whether handwritten or otherwise, shall have no effect nor shall they constitute a counter-offer; subsequent performance by HF and/or Customer shall evidence only assent to the unaltered terms of this Agreement. Except as may be modified by this Agreement, Customer's use of the HomeFinder.com website shall be governed by the then current Terms of Use located at http://www.homefinder.com/company/terms or any successor and/or replacement URL thereto. This Agreement shall not be enforced against any party as the principal draftsman. Headings are for convenience only and shall have no interpretive effect. As appropriate, the masculine shall include the feminine and the singular shall include the plural, and vice versa. If any term, condition, section, sentence, and/or provision of this Agreement shall be held by a court of competent jurisdiction to be unenforceable, the same shall be eliminated and the remaining Terms and Conditions shall remain in full force and effect. Customer shall not assign all or any part of this Agreement without HF's prior written consent and any attempted assignment in contravention of this provision shall be null and void; HF may assign this Agreement to a successor without consent in the event of a change in control, reorganization of its business, or sale of all or substantially all of its assets. Except for payment obligations, neither party shall be liable to the other party for failure to perform by reason of a force majeure or any other cause beyond such party's reasonable control. This Agreement is governed in all respects by the laws of the State of Illinois, without reference to its conflicts of laws principles. The parties hereby agree that all claims arising under this Agreement shall be brought exclusively in a federal or state court in Chicago, Illinois and hereby consent to the personal jurisdiction of such courts. Sections 1, 2, 4, 5, 6, 7, 8, and 9 shall survive any termination or expiration of this Agreement. The term "including" is a term of enlargement which, as used in these Terms and Conditions, shall mean "including without limitation."

 

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Last Updated April 5, 2013