ZIPLOGIX TERMS OF USE FOR RELAY® SERVICES

Revised January 14, 2010
Last revised November 24, 2009
Access to this website and/or services that zipLogix (“zipLogix”) provides to you (the “End User”) are subject to the following terms of use (“TOU”).  BY VISITING OR USING ANY PART OF THE WEBSITE AND/OR SERVICES, YOU ARE AGREEING TO THESE TOU AND THAT THIS IS A BINDING CONTRACT BETWEEN ZIPLOGIX AND YOU.  IF YOU DO NOT WISH TO BE BOUND BY THESE TOU, PLEASE DO NOT VISIT OR USE ANY PART OF THIS WEBSITE OR THE ZIPLOGIX SERVICE. zipLogix reserves the right to update these TOU at any time without notice to End User, and by continued use of the zipLogix’s website and/or service you agree to be bound by the most current TOU. The TOU can be reviewed at any time by clicking on the “TOU” hypertext link located at the bottom of zipLogix’s webpages.
1. General Rights, Responsibilities & Limitations
1.1 License. In exchange for your payment of Fees under Section 5, zipLogix hereby grants to End User a limited, non-exclusive subscription (the “Subscription”) to access and use zipLogix's proprietary software systems, products and services (herein referred to as “relay®”). End User will only be permitted to use relay® as designated for your own internal business purposes subject to these TOU. In addition, End User will be bound by the following rules:
1.1.1 End User will not, and will not attempt to, download, copy, alter or modify relay® or any portion thereof for any purpose whatsoever;
1.1.2 End User will not attempt, by de-compilation, reverse-engineering, disassembly, or any other method, to create or derive all or any portion of the source code of relay®;
1.1.3 End User will not alter or remove any copyright or proprietary rights notice on or within relay®; and
1.1.4 End User will not distribute, disclose, manufacture, sell, market, rent, lease or transfer use of relay® or access to zipLogix proprietary systems unless expressly authorized by zipLogix under the TOU.
All rights of zipLogix not expressly licensed to End User hereunder are forever reserved in their entirety to zipLogix and its successors and assigns.
1.2 Access to relay®. relay® will be hosted at a data center either owned or licensed by zipLogix and will be accessible by End User over the Internet. In order to access relay®, End User will be required to register with zipLogix and will be provided with a temporary user name and password, which End User will be permitted to change to a unique, personal user name and password. zipLogix reserves the right to actively monitor access to relay® and will deny access to any person who violates these TOU.
1.3. relay® Transaction Document Storage/Deletion.  End Users who are paid relay® subscribers or who otherwise have authority to delete transaction documents may delete transaction documents in relay® at any time; however, once a transaction document is deleted it will not be recoverable.  End Users who are not paid relay® subscribers or who do not otherwise have authority to delete transaction documents (e.g. “guest” relay® users) may not delete transaction documents in relay®.  If two or more End Users are in a “cross-site” transaction (two or more paid relay® subscribers participating in the same transaction from independent relay® websites), each End User with authorization to delete transaction documents may delete the End User’s own transaction documents, but the consent of all paid relay® subscribers in the “cross-site” transaction must be obtained before the entire transaction (transaction history, notes and all transaction documents, etc.) can be deleted.  End User understands and agrees that relay® transaction documents will be maintained by zipLogix for fourteen (14) months after the date the transaction was last saved or until the expiration of End User’s relay® subscription, whichever occurs first.  After that time, the transaction documents will be deleted from relay® and will not be recoverable.  For “cross-site” transactions, the entire transaction will be deleted after the date the last active paid relay® subscriber’s account expires.  zipLogix has no obligation to provide End User or third parties with any transaction documents once a transaction document has been deleted from relay®.  zipLogix shall not be responsible or liable to End User or any third parties in any way for transaction documents deleted in accordance with this policy.  If End User is not a paid relay® subscriber (e.g. a “guest” relay® user), End User’s access to transaction documents will be subject to the limitations applicable to the paid relay® subscriber’s account that End User is accessing.  If End User desires to save relay® transaction documents prior to the expiration of the fourteen (14) month period or prior to the expiration of End User’s relay® subscription, End User should export the documents to another location, such as saving the documents on End User’s computer, on a CD-ROM or some other external storage medium.  zipLogix reserves the right to limit the amount of storage/retention space available to End User, to charge a fee for additional storage/retention space and to otherwise change the terms of relay® transactions and transaction document storage/deletion at any time.
1.4 Proprietary Rights.
1.4.1 zipLogix’s Proprietary Rights. All right, title and interest in and to relay® and any of its documentation (the “Documentation''), including without limitation all Intellectual Property Rights embodied therein, are and will remain owned solely and exclusively by zipLogix, its successors, assigns, permissible delegates and/or licensors. The TOU affects no transfer of title or ownership of relay® or any Intellectual Property Rights therein to End User. The term “Intellectual Property Rights'' will mean all forms of intellectual property rights, irrespective of whether such rights are based upon common law, statute, regulation, ordinance, agreement, contract, treaty, convention or otherwise, and to the full extent such rights will arise or be recognized under any law, rule or regulation, whether federal, state, local or foreign, and will include, without limitation, any and all patents, copyrights, rights in mask works, trade-secrets, trademarks, trade names, service marks, trade dress and any and all other forms of protection applicable to inventions, conceptions, ornamental designs, works of authorship, algorithms, trade secrets, utility models or other forms of intellectual property.
1.4.2 End User’s Proprietary Rights & Materials to zipLogix or Posted on Any zipLogix Web Site.
a. zipLogix does not claim ownership of any materials End User provides to zipLogix or posts, uploads, inputs or submits to relay® or its associated services for review by members of any public or private community, (each a "Submission" and collectively "Submissions"). However, by posting, uploading, inputting, providing or submitting ("Posting") your Submission you are granting zipLogix, its affiliated companies and necessary sublicensees permission to use your Submission in connection with the operation of their Internet businesses, including, without limitation, sublicensees rights to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Submission; to publish your name in connection with your Submission; and the right to sublicense such rights to any supplier.
b. No compensation will be paid with respect to the use of your Submission, as provided herein. zipLogix is under no obligation to post or use any Submission End User may provide and zipLogix may remove any Submission at any time in its sole discretion.
c. By Posting a Submission End User warrants and represents that End User owns or otherwise controls all of the rights to the Submission as described in these TOU including, without limitation, all the rights necessary for End User to provide, post, upload, input or submit the Submissions.
d. In addition to the warranty and representation set forth above, by Posting a Submission that contains images, photographs, pictures or that are otherwise graphical in whole or in part ("Images"), End User warrants and represents that:
i. End User is the copyright owner of such Images, or that the copyright owner of such Images has granted End User permission to use such Images or any content and/or images contained in such Images consistent with the manner and purpose of your use and as otherwise permitted by these TOU,
ii. End User has the rights necessary to grant the rights and sublicenses described in these TOU, and
iii. Each person depicted in such Images, if any, has provided consent to the use of the Images as set forth in these TOU, including, by way of example, and not as a limitation, the distribution, public display and reproduction of such Images. By Posting Images, End User is granting (a) to all members of your private community (for each such Image available to members of such private community), and/or (b) to the general public (for each such Images available anywhere on the relay® systems, other than a private community), permission to use such Images in connection with the use, as permitted by these TOU or anticipated by the use of the relay® system, including without limitation, a non-exclusive, world-wide, royalty-free license to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Images without having your name attached to such Images, and the right to sublicense such rights to any relay® supplier.
Licenses granted in this paragraph 1.4.2.d will terminate at the time End User completely removes such Images from relay®, provided that such termination will not affect any licenses granted in connection with such Images prior to the time End User completely remove such Images. No compensation will be paid with respect to the use of such Images.
1.5 Connectivity Equipment. End User will be responsible, at End User’s expense, for the acquisition, installation, operation and maintenance of the minimum system requirements required to access and use relay®. zipLogix will furnish End User with such requirements on its website and may otherwise advise End User in selecting appropriate hardware and software to facilitate connectivity to relay®.
1.6 Translations Limitations & Disclaimers. The relay® website may be translated for your convenience through the use of "machine translation," which means that it is translated dynamically (on-the-fly) through a third-party service. zipLogix and its partners strive to achieve accuracy, however no automated translation is perfect nor is it intended to replace human translators. Any translation of materials into languages other than English is intended solely as a convenience to the non-English-reading public. Translation accuracy is not guaranteed nor implied. Discrepancies or differences created in the translation are not binding and have no legal effect for compliance or enforcement purposes. If any questions arise related to the accuracy of the information contained in the translation, please refer to the English version of the web page, which is the official version of all web pages on this site.
You assume all risk, liability, and responsibility for any translation. While reasonable efforts are made to provide a translation, no liability and no responsibility are assumed by either zipLogix or its partners for any errors, omissions, or ambiguities in the translations. In no event are zipLogix, its owners, advertisers, affiliates, and associated parties, liable for any damages whatsoever arising out of your use of translations for the website or the content thereof, including direct, indirect, incidental, consequential or punitive damages. Without limiting any of the foregoing, any translations are provided "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
1.7 Special Terms of Use for Certain Categories of Users:
1.7.1 Individual Real Estate Professional End Users (“Individual End Users”) & Multi-Subscription Service End Users.
a. Individual End User is defined as a real estate professional who has purchased a Subscription to access the relay® system for the exclusive personal use of one (1) End User.
b. A Multi-Subscription Service End User is defined as a real estate professional, whether a corporate entity or an individual, who has purchased Subscription access to the relay® system for multiple End-Users whom the real estate professional employs or supervises via an independent contractor relationship.
c. Individual End Users who are and/or become the part-time/full-time employee or independent contractor of a Multi-Subscription Service End User but are not an End User under your employer or professional supervisor’s Multi-Subscription Service Agreement acknowledge and agree that should your employer or professional supervisor subscribe to relay® independently of you, zipLogix may grant read-only access to your Submissions to such employer or professional supervisor.
d. Individual and Multi-Subscription Service End Users are granted the limited right to sub-license access to relay® on a transaction-by-transaction basis free of additional Fees to consumers to whom End User is providing professional services in connection with a real estate transaction (“Consumer End Users”).
e. Individual and Multi-Subscription Service End Users are granted the limited right to sub-license access to relay®, free of additional Fees, to a licensed real estate professional with a contractual relationship to a consumer on the opposite side of a real estate transaction in which the Individual/Multi-Subscription Service End User is representing a Consumer End User (the “Guest Agent Users”). The sub-license and right to sublicense in the paragraph 1.6.1(e) will be limited to the individual real estate transaction in which the Guest Agent User is participating with the End User.
f. Individual and Multi-Subscription Service End Users are granted the limited right to sub-license access to relay®, free of additional Fees, to a vendor of professional real estate services necessary to complete a real estate transaction in which the Individual/Multi-Subscription Service End User is representing a Consumer End User (the “Guest Vendor Users”). The sub-license and right to sublicense in the paragraph 1.6.1(f) will be limited to the individual real estate transaction in which the Guest Vendor User is providing services to the Individual/Multi-Subscription End User.
g. In addition to the rights granted under paragraphs 1.6.1.d through 1.6.1.f and subject to the terms of a Multi-Subscription Service Agreement, Multi-Subscription Service End Users are also granted the limited right to sub-license to any real estate professional that is a part-time or full-time employee or an independent contractor (herein defined as “Agents”) of such Multi-Subscription Service End-Users.
h. Individual End Users and Multi-Subscription Service End Users are responsible for ensuring that their sub-licensees follow the TOU and remain jointly and severally liable for the conduct of their sub-licensees. In the event a sub-licensee terminates its relationship with you, you are responsible for notifying zipLogix to terminate that sub-licensee’s access to relay®.
1.7.2 Consumer End Users: Consumer End Users are subject to all the terms and conditions outlined in the TOU. In the event that a Consumer End User terminates its relationship with its Individual End User or Multi-Subscription Service End User, their sublicense to use or access relay® shall also terminate.
1.8 Fax Document Feature. End Users may use the fax document feature for the limited purpose of faxing transaction documents into and out of relay® in connection with the consummation of a real estate transaction in relay®.  The fax document feature may not be used for any other purpose whatsoever.  For example, End Users may not use the fax document feature for marketing or promotional activities; to directly or indirectly send unsolicited commercial faxes or e-mails; or for the End User’s personal use.  Violation of these terms may result in the termination of the End User’s relay® subscription, and no refund will be issued.  Unless the number of fax pages and related fees are set forth in an agreement between zipLogix and a third party, such as an association of REALTORS®, a real estate brokerage or a multiple listing service, (a) an End User purchasing an individual relay® subscription license may fax up to one thousand (1,000) pages (the aggregate of both inbound and outbound pages) during the End User’s subscription license term at no additional cost, and (b) for real estate brokerages and other third parties purchasing multiple relay® subscription licenses, the End User under each individual subscription license may fax up to one thousand (1,000) pages (the aggregate of both inbound and outbound pages) during the End User’s subscription license term at no additional cost.  The total number of fax pages may not be aggregated across multiple license purchases.  For example, if a real estate brokerage purchases 10 relay® licenses, the total number of fax pages at no cost will not be aggregated to equal 10,000.  The end user under each individual license purchased may fax up to 1,000 pages (the aggregate of both inbound and outbound pages for that end user) at no cost.  After the page limits above have been met, a per-page fee shall be charged for each page exceeding the page limits above, which shall be due and payable on a monthly or quarterly basis, at zipLogix’s option, and within 30 days of zipLogix’s invoice for such fees.  The current per-page fee is fifteen cents (.15), which is subject to increase by zipLogix without notice. 
2. Description of Service Standards
2.1 relay® and Service Levels. zipLogix will operate and maintain relay® in accordance with each of the following service standards (each a “Service Level'').
2.2 Availability of relay®. zipLogix shall use its best efforts to make relay® available to End Users a minimum of 99% of the time during any 24-hour period and to minimize periods of interruption and accessibility.
2.3 Maintenance Service Downtime. The parties acknowledge that certain maintenance and upgrade activities will necessitate service interruption. Where maintenance, technology upgrades or other events will require a material amount of downtime, when reasonably applicable, zipLogix will uses it best efforts to provide notice via the relay® Website in advance of such event.
2.4 Unauthorized Access. zipLogix will make commercially reasonable efforts to prevent unauthorized access to relay® and will promptly notify End User of any known security breaches and, in the event any unauthorized access occurs, zipLogix will use its best efforts to detect, identify and eliminate such unauthorized access as soon as possible and to prevent the reoccurrence thereof.
2.5 Updating Standards. zipLogix will periodically review its current Service Levels to ensure that they meet or exceed industry standards. If, after any such review, zipLogix determines that any Service Level should be modified or altered or that a new Service Level will be incorporated or a current Service Level deleted, zipLogix may modify the TOU.
2.6 Backup/Redundancy. zipLogix shall use its best efforts to provide backup, redundancy, and recovery services as follows: (i) servers utilizing a commercially appropriate storage system which provides data redundancy and uninterrupted service in the event of a single disk failure; (ii) tape back-ups of all data are performed at least weekly and are stored for six months; and (iii) all data and functionality is backed-up weekly on an alternate server so that in the event of a primary server failure, the data center can be re-directed to the alternate server within a reasonable time frame. In the event that services cannot be provided at the primary relay® servers, End Users may be directed to a backup until operations are restored.
2.7 Virus Scanning. zipLogix shall use its best efforts to make to scan for and detect computer viruses at relay®.
2.8 Technical Support and Training. zipLogix may provide relay® support to End User’s designated support representatives. zipLogix will not provide technical and/or relay® support with respect to PC hardware and/or software configuration, network/Internet connectivity, or other technical issues not directly related to relay®.
3. Use Of relay®; Single Sign On Service; relay® Certified Trainers™; relay® Demonstration Software
3.1 No Unlawful or Prohibited Use. As a condition of your use of relay®, End User will not use relay® for any purpose that is unlawful or prohibited by the TOU. End User will not use relay® in any manner that could damage, disable, overburden, or impair any zipLogix server, or the network(s) connected to any zipLogix server, or interfere with any other party's use and enjoyment of relay®. End User will not attempt to gain unauthorized access to relay®, other accounts, computer systems or networks connected to any zipLogix server or to any of relay®, through hacking, password mining or any other means. End User will not obtain or attempt to obtain any materials or information through any means not intentionally made available through relay®.
3.2 Communication Services. relay® may contain e-mail services, bulletin board services, personal web pages, calendars, photo albums, file cabinets and/or other message or communication services designed to enable End User to communicate with others (each a "Communication Service" and collectively "Communication Services"). End User agrees to use the Communication Services only to post, send and receive messages and material that are proper and, when applicable, related to the particular Communication Service. By way of example, and not as a limitation, End User agrees that when using the Communication Services, End User will not:
3.2.1 Use the Communication Services in connection with surveys, contests, pyramid schemes, chain letters, junk email, spamming or any duplicative or unsolicited messages (commercial or otherwise).
3.2.2 Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
3.2.3 Publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, obscene, indecent or unlawful topic, name, material or information.
3.2.4 Upload, or otherwise make available, files that contain images, photographs, software or other material protected by intellectual property laws, including, by way of example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity) unless End User own or control the rights thereto or have received all necessary consent to do the same.
3.2.5 Use any material or information, including images or photographs, which are made available through relay® in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any party.
3.2.6 Upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar malware, software or programs that will damage the operation of another's computer or property of another.
3.2.7 Download any file posted by another user of a Communication Service that End User know, or reasonably should know, cannot be legally reproduced, displayed, performed, and/or distributed in such manner.
3.2.8 Falsify or delete any copyright management information, such as author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded.
3.2.9 Violate any applicable laws or regulations.
3.2.10 Create a false identity for the purpose of misleading others.
3.3 Monitoring. zipLogix has no obligation to monitor the Communication Services. However, zipLogix reserves the right to review materials posted to the Communication Services and to remove any materials in its sole discretion. zipLogix reserves the right to terminate your access to any or all of the Communication Services at any time, without notice, for any reason whatsoever.
3.4 Disclosure. zipLogix reserves the right at all times to disclose any information as zipLogix deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in zipLogix's sole discretion.
3.5 Personally Identifiable Information. Always use caution when giving out any personally identifiable information about yourself or your sub-licensees in any Communication Services. zipLogix does not control or endorse the content, messages or information found in any Communication Services and, therefore, zipLogix specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Services.
3.6 Uploads; Limitations. Materials uploaded to the Communication Services will be subject to posted limitations on usage, reproduction and/or dissemination; End Users are responsible for adhering to such limitations if End Users download the materials.
3.7 Single Sign On. If you purchased a license to use the Single Sign On Service or if a license was purchased on your behalf by a third party, zipLogix hereby grants you a license to use the Single Sign On Service.  The license period is for one (1) year from the date of purchase or, if the Single Sign On Service is being provided to you under the terms of an agreement between zipLogix and a third party, one (1) year from the date zipLogix creates your account.  If the Single Sign On Service is being provided to you by a third party, such as your real estate brokerage, a state or local association/board of REALTORS® or by a multiple listing service, your license may terminate earlier, in accordance with the terms of the agreement between zipLogix and the third party.  Your use of the Single Sign On service shall at all times be subject to and in compliance with Sections 3.1 and 3.2 of this Agreement.  The Single Sign On Service requires that zipLogix maintain agreements with providers of each product and service to be accessed by the Single Sign On Service.  Should zipLogix’s agreement with a provider terminate, your access to and use of the provider’s product or service using the Single Sign On Service shall also terminate.  All products and services accessed under the Single Sign On Service will be linked to, and capable of being accessed using, a single password or set of credentials.  You should therefore exercise caution, prudence and care in using the password and/or set of credentials to protect them from unauthorized access, disclosure and use. 
3.8 relay® Certified Trainer Program. If you are current relay® Certified Trainer, zipLogix hereby grants you a limited license to use relay® solely in connection with your training activities as a relay® Certified Trainer.  You may not use relay® in connection with actual real estate transactions or for any other purpose whatsoever unless otherwise expressly licensed by zipLogix.  Your license to use relay® will terminate immediately upon your termination from the relay® Certified Trainers Program.  Upon termination from the relay® Certified Trainers Program you may not use relay® after termination unless otherwise expressly licensed by zipLogix.
3.9 Demonstration License.  If you have requested and zipLogix has granted you a relay® demonstration license, zipLogix hereby grants you a limited license to use relay® for demonstration purposes only.  The license term is for one (1) year from the date relay® creates your account.  You may not use relay® in connection with actual transactions or for any other purpose whatsoever unless otherwise expressly licensed by relay®.  Upon termination of the demonstration license, you may not use relay® after termination unless otherwise expressly licensed by zipLogix.
4. Termination
4.1 Termination. zipLogix may terminate your use of or access to relay® effective immediately upon written notice in the event of your failure to comply with any term or condition of these TOU or any other Agreement with zipLogix. Upon such termination, End User will not be entitled to a refund of any portion of the Fees.
5. Payment
5.1 Fees. End User agrees to pay zipLogix any service fees zipLogix sets forth for use of relay® (collectively, the “Fees”'). All Fees will be due and payable as outlined in zipLogix’s then current fee schedule. For any payments not received by the due date, zipLogix reserves the right to charge and End User agrees to pay interest at the rate of one and a half percent (1½%) per month or the maximum rate permitted by law if such maximum legal rate is less, provided however if the maximum legal rate is greater than one and a half percent (1½%) per month then zipLogix may charge the maximum legal rate. End User hereby authorizes zipLogix to charge any unpaid Fees to End User’s credit card.
5.2 Taxes. All taxes and duties attributable to the TOU (other than taxes based on the gross income of zipLogix), including without limitation, sales, use and any other tax assessed by local, state or federal authorities, will be the responsibility of and borne by End User.
5.3 New Versions. End User will not be entitled to new versions of relay® free of charge. zipLogix in its sole discretion will determine the applicable Fees, if any, for such new versions; provided however, within ten (10) business days of receiving notice of any change in Fees, End User will have the right to terminate use of relay® upon thirty (30) days written notice to zipLogix if zipLogix ceases to offer the version of relay® to which End User has subscribed and End User does not wish to pay increased charges for a new version.
5.4 No Offset. Fees and expenses due from End User under the TOU will not be withheld or offset by End User against other amounts owed by zipLogix for any reason.
5.5 Auto Billing. End User hereby gives zipLogix and/or its agents permission to charge the relay® subscription fee(s) for End User’s account(s) to End User’s credit card automatically on an annual basis (“auto billing”). Auto billing shall remain in effect until End User notifies zipLogix via e-mail at support@rebt.com that End User wishes to cancel auto billing; please allow at least 30 days for zipLogix to process the request. The subscription period begins immediately after End User’s account is established and End User’s credit card payment information is accepted by zipLogix. If End User cancels the relay® subscription(s) within the first thirty (30) days of the subscription period by sending an e-mail to support@rebt.com and requesting cancellation of the relay® account(s), the subscription fee(s) will be credited to End User’s credit card account. If End User does not cancel the subscription(s) within that time frame, End User will not receive a refund or credit for the subscription(s).
If an auto billing payment is declined, zipLogix may permanently restrict End User’s ability to use auto billing and End User’s access to and use of the relay® account(s) may be suspended or terminated. Declined auto billing payments may be subject to a $15.00 processing fee per declined payment, which may be charged to End User’s credit card or to End User directly, in addition to any fees End User’s bank or credit card issuer may charge.
Should End User inform zipLogix that End User wishes to cancel auto billing, zipLogix will send End User a payment reminder for the next subscription(s) period. Payment must be made in the manner and within the time frame set forth in the payment reminder. If zipLogix does not receive the payment for the next subscription(s) period prior to its commencement, access to and use of End User’s relay® account(s) may be suspended or terminated.
These terms and conditions may be amended or modified by zipLogix at any time with or without notice; however, zipLogix will endeavor to provide reasonable notice of any amendments or modifications.
6. Confidentiality and Privacy
6.1 Confidentiality.
6.1.1 Confidential Information. Each party agrees to use the highest degree of care to safeguard the other party's Confidential Information, as defined below. Neither party will sell, transfer, publish, disclose, display, use or distribute the other party's Confidential Information or knowingly permit any unauthorized third party from accessing, in any manner, the other party's Confidential Information. Each party agrees that its employees, agents and independent contractors will be prohibited from taking any action otherwise prohibited to such party under the TOU, and to notify the other party promptly and in writing of any circumstances surrounding any possession, use or knowledge of the Confidential Information or any part thereof which is prohibited hereunder.
6.1.2 Breach. The parties agree that breaches of the provisions in this Section 6 or of Sections 1, 3.1 or 3.2 will cause zipLogix to suffer irreparable harm and be without an adequate remedy at law, and that zipLogix will be entitled to injunctive or equitable relief (without being required to post any bond or other security) from a court of competent jurisdiction in order to prevent, prohibit or restrain any such breach or violation. Neither injunctive or other equitable relief will be deemed a waiver of zipLogix’s other rights or remedies under the TOU or otherwise.
6.1.3 “Confidential Information'' means any information which is designated by the disclosing party to be, or should reasonably be understood by the receiving party to be, of a proprietary or confidential nature, including without limitation each party's administrative, financial, technical or operational arrangements, or such arrangements of a party's affiliated entities. The term will expressly include relay®, Documentation. The term will not include information which is or becomes public knowledge through no fault of the receiving party or information that is rightfully obtained from a third party whom is not bound by obligations of confidentiality to the disclosing party.
6.2 Privacy. See the Privacy Statement disclosures relating to the collection and use of your information.
6.3 Member Account, Password and Security. End User must open an account and complete the registration process by providing zipLogix with current, complete and accurate information as prompted by the applicable registration form. End User also will also be prompted to choose a password and a user name. End User is entirely responsible for maintaining the confidentiality of your user name, password and account. Furthermore, End User is entirely responsible for any and all activities that occur under your account. End User understands and acknowledges that zipLogix will maintain records regarding your access to relay®. End User agrees to notify zipLogix immediately of any unauthorized use of your account or any other breach of security. zipLogix will not be liable for any loss that End User will incur as a result of someone else using your user name, password or account, either with or without your knowledge. However, End User could be held liable for losses incurred by zipLogix or another party due to someone else using your user name, account or password. End User will not use anyone else's account at any time, such use will be considered a material breach of this TOU for which zipLogix may immediately terminate any rights and licenses granted under these TOU.
7. Warranties
7.1 End User warrants the performance of it obligations hereunder, including but not limited to a warranty that the Submissions will not: (i) infringe or violate any third parties Intellectual Property Rights, privacy rights or contractual rights of any third party; or (ii) otherwise violate any legal rights or obligations.
7.2 End User further warrants that it will advise zipLogix of any misuse or alleged misuse of relay® by any of its sub-licensees and will join in and cooperate with zipLogix in any action by zipLogix to pursue its rights against such sub-licensees.
7.3 Limited Warranties by zipLogix.
7.3.1 zipLogix warrants that (i) it will use commercially reasonable efforts to provide End User with access to and use of relay® in accordance with the service standards in the TOU; (ii) it is the owner of relay® or has the right to provide relay® to End User; and (iii) to the best of its knowledge, relay® does not contain any computer code intentionally designed to disrupt, disable, or harm in any manner the operation of relay® (sometimes referred to as “viruses'' or “worms''). Notwithstanding the foregoing, zipLogix does not warrant that relay® will meet all or any of your or any End User's requirements in any specific real estate transaction, or that relay® will be free of errors, interruption, faults or delays. Except as provided in Section 7.3, zipLogix's sole liability, and your sole and exclusive remedy, under the limited warranties set forth above, will be limited to having zipLogix supply, as soon as practicable and at zipLogix's cost and expense, product maintenance services that zipLogix determines to be necessary to cause relay® to perform in accordance with the applicable warranty; provided, however, that written notice of an asserted breach of warranty must be received by zipLogix promptly after such asserted breach arises, and in any event, no later than ten (10) days after such asserted breach arises.
7.3.2 The foregoing limited warranty will not apply (i) if relay® is used for any purpose other than that set forth in the TOU regardless of whether zipLogix has terminated your access to relay® because of such misuse, (ii) if there is a malfunction in the your hardware or communications network or (iii) if failure of the warranty is due to any other cause within your control.
7.3.3 THE FOREGOING LIMITED WARRANTIES CONSTITUTE ZIPLOGIX'S ONLY WARRANTIES WITH RESPECT TO ALL OR ANY SITUATIONS INVOLVING THE PERFORMANCE OR NONPERFORMANCE OF RELAY® OR ANY PARTS THEREOF AND ARE IN LIEU OF ALL OTHER EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
7.4 Service Level Compliance. If zipLogix materially fails to meet any Service Level set forth in the TOU, then zipLogix will use commercially reasonable efforts to identify the cause of the Failure and take the remedial efforts necessary to correct the failure.
8. Limitation of Liability
IN NO EVENT WILL ZIPLOGIX BE LIABLE TO END USER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES BASED UPON ANY LEGAL THEORY WHATSOEVER, INCLUDING BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT TORT, OR ANY OTHER LEGAL THEORY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THE TOU, IN NO EVENT WILL ZIPLOGIX’S OR ITS AFFILIATES, EMPLOYEES OR AGENTS’ AGGREGATE LIABILITY TO END USER, ITS AFFILIATES, SUBLICENSEES AND/OR ANY OTHER PARTY (INCLUDING LIABILITY FOR ANY BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHERWISE, REGARDLESS OF FORM OF ACTION), EXCEED TWO TIMES THE AVERAGE MONTHLY CHARGES ACTUALLY PAID BY END USER TO ZIPLOGIX, FOR THE RELEVANT SERVICES OUT OF WHICH ANY ASSERTED CLAIM WITH RESPECT TO RELAY® ARISES.
NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER THE TOU WILL BE BROUGHT BY THE END USER MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION FIRST AROSE.
9. Indemnification
9.1 Indemnification. End User agrees to defend, indemnify and hold harmless zipLogix, its parent companies, officers, directors, agents and/or employees from and against any and all losses, claims, demands, liabilities, obligations, costs and expenses of any nature whatsoever (including, without limitation, reasonable attorneys' fees) (“Losses'') arising out of or based upon End User’s access to or use of relay®, its breach of any of its obligations under the TOU or a claim that End User’s Submissions or Images infringe the legal rights of any third party.
9.2 Indemnification by zipLogix. zipLogix hereby agrees to defend, indemnify and hold End User harmless from and against any Losses arising out of or based upon a claim that relay® or the Documentation infringe the legal rights of any third party. In such event, the TOU will continue in effect and End User will not have the right to terminate your use of the service if zipLogix is able to either modify relay® or Documentation so that it no longer infringes but remains functionally equivalent, or obtains at zipLogix's sole expense, the End User’s right to continue to access and use relay® in substantially the same manner as that contemplated hereunder.
9.3 Indemnification Procedures. Each party will give prompt written notice, in the case of zipLogix such notice shall be made to End User by e-mail, to the other party of any claims in which indemnification is sought hereunder, including a complete summary of all available information, and will cooperate with the indemnifying party in the defense and settlement of such claim, at the sole expense of the indemnifying party. The indemnifying party will have the right to assume and retain control of the defense of any such claim, with legal counsel of its choice, provided that it assumes and prosecutes the defense of such claim in a timely and commercially reasonable manner. The indemnified party will have the right to participate in the defense of such claim through legal counsel of its choosing, at the sole expense of the indemnified party.
10. Trademark License; Publicity. End User hereby grants to zipLogix a non-exclusive license to display your trademarks, trade names and logos (collectively “Trademarks'') on zipLogix's website and to use such Trademarks in zipLogix's marketing literature and press releases.
11. Notices And Procedure For Making Claims Of Copyright Infringement. Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be sent to the General Counsel of zipLogix at the notice address listed in section 12.4.
12. General Provisions
12.1 Compliance with Laws. It is the intent of the parties to comply in all respects with all applicable state and federal laws, rules and regulations in connection with their performance under the TOU. Anything in the TOU to the contrary notwithstanding, if End User reasonably believes, based upon the documentary evidence and expert legal advice of an independent legal advisor that the TOU pose a significant risk of causing the End User to be in violation of any of the foregoing laws, rules and regulations, then End User shall notify zipLogix and provided any supporting evidence and advisories upon with such belief is based. zipLogix may modify the TOU as it believes reasonably necessary to ensure compliance with such law, rule or regulation. Within ten (10) business days of any modification or decision not to modify the TOU, End User may terminate use of relay® effective upon written notice to zipLogix.
12.2 Waivers and Limitation of Actions. No delay or omission in the exercise of any power or remedy available hereunder will impair or affect either party's right to the exercise thereof.
12.3 Force Majeure. If zipLogix will be delayed in its performance of any obligation hereunder or be prevented entirely from performing any such obligation due to causes or events beyond its control including, without limitation, any act of God, Fire, strike or other labor problem, legal action, present or future law, government order, rule or regulation, such delay or non-performance will be excused and the time for performance will be extended to include the period of such delay or non-performance for a period not to exceed 90 days. In no event will the financial condition of zipLogix be deemed to be an event within the provisions of this Section 12.3.
12.4 Notices. Any notices that End User is required to give under the TOU will be made in writing and will be deemed given or made:
(a) on the date delivered if delivered in person,
(b) on the date initially transmitted if delivered by telecopy transmission (with machine generated transmittal confirmation) and followed by certified mail or reputable overnight courier,
(c) on the date delivered by an overnight courier service; or
(d) on the third (3rd) business day after it is mailed if mailed by certified mail (return receipt requested, with postage and other fees prepaid)
zipLogix:
zipLogix
a Delaware limited liability company
525 South Virgil Avenue
Los Angeles, CA 90020
Attention: President
Phone: (213) 739-8200
Facsimile: (213) 480-7724
With Copy To:
Attn: General Counsel
zipLogix
525 South Virgil Avenue
Los Angeles, CA 90020
Phone: (213) 739-8291
Facsimile: (213) 739-7291
To the parties at the addresses indicated in the Agreement (or at such other addresses as will be given in writing by either of the parties to the other, if given in accordance with the terms of this Subsection 12.4).
12.5 Severability. If any provision or portion of any provision of the TOU is declared void or unenforceable or against public policy, such provision or portion thereof will be deemed stricken from the TOU and the remainder of the TOU will remain in full force and effect. In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree, the remainder of the TOU will remain valid and enforceable according to its terms.
12.6 Governing Law, Jurisdiction and Venue. The TOU and use of relay® will be governed by, and construed in accordance with, the substantive and procedural laws of the State of California, excluding conflict of law principles. Any action or proceeding brought in connection with the TOU, whether in law or equity, will be filed exclusively in a court of competent jurisdiction located within the County of Los Angeles, State of California.
12.7 Assignment. The TOU will be binding upon the parties hereto and their respective successors and permitted assignees. The rights granted to End User by the TOU or any duty or obligation of performance hereunder will not be assigned, delegated, sublicensed, or otherwise transferred by End User, either voluntarily or by operation of law, except as specifically provided for herein with respect to End Users. Any attempt by End User to assign, delegate, sublicense, or transfer any of the rights, duties, or obligations hereunder except as expressly provided by the TOU will be null and void. zipLogix may assign its obligations under these TOU or any other agreement with End User without the written consent of End User.
12.8 Independent Contractors. The relationship created by the TOU is solely that of independent contractors and the parties hereby acknowledge and agree that nothing in the TOU will be deemed to constitute either party as an agent or a franchisee of the other party. Neither party will have any power or express or implied authorization to bind the other party or to assume or to create any obligation or responsibility, express or implied, on behalf of the other party or in the other party's name. The TOU will not be construed as constituting the parties' partners or to create any other form of joint venture or other relationship which could impose liability upon one party for any act or omission of the other.
12.9 Headings. The Section and Subsection headings used herein are for reference and convenience only and will not enter into the interpretation hereof.
12.10 Survival. Sections 1.4, 5, 6 through 12 will survive any termination of the TOU.
12.11 Attorneys' Fees. In the event that any legal action is brought, the prevailing party in such legal action will be entitled to recover reasonable attorneys' fees (including the value of services for in-house counsel), as well as costs of the arbitration or legal action, in addition to any other relief it will receive or be awarded.
Copyright © 2005-2009 zipLogix, 525 South Virgil Avenue, Los Angeles, CA 90020. U.S.A. All Right Reserved.