SAN DIEGO MULTIPLE LISTING SERVICE END-USER LICENSE AGREEMENT
This End-User License Agreement ("EULA") is a binding agreement between you ("You" or "Subscriber" or "Participant" or "Assistant") and San Diego Multiple Listing Service, a California Corporation ("SDMLS"). You are permitted access to the SDMLS System only by virtue of your assent to the terms of this EULA. If you decline to assent to the terms of this EULA, your use of the SDMLS System will terminate immediately.
1. SDMLS's obligations.
In consideration of Your compliance with the rules, regulations, and procedures of SDMLS (the "SDMLS Rules"), SDMLS makes the contents of the SDMLS System available to You and licenses it for Your use, subject at all times to the terms and conditions of this EULA.
2. Intellectual property.
(a) License to SDMLS. You hereby grant to SDMLS a paid up, royalty free, permanent, irrevocable, worldwide license in and to all material including, without limitation, text, information, photographs, videos and images (Your "Contribution") that You submit to the SDMLS System, including any copyrights relating to such Contribution. The license permits SDMLS to copy, distribute, display, publicly perform, prepare derivative works from, incorporate into compilations and otherwise use, commercialize and exploit (collectively “Use”) items in Your Contribution and to sublicense the Use of items in Your Contribution to others. This license also gives SDMLS the right, in its sole discretion and at its own expense, to enforce any and all rights, including without limitation any copyrights and other intellectual property rights, that You may have in Your Contribution or any portion of it. SDMLS has the right to control the prosecution and settlement of any such enforcement actions in its sole discretion. You agree to provide all reasonable assistance to SDMLS in connection with such enforcement activity, including without limitation, consenting to be a party to any judicial, quasi-judicial or administrative proceeding or arbitration. Nothing in this EULA shall require SDMLS to undertake such enforcement activity. You warrant that you have the authority to grant this license and that Your Contribution does not infringe on any copyright or other intellectual property rights of any third party.
(b) License to You. SDMLS hereby grants to You during the term of this EULA a revocable, limited, nonexclusive license to view compilations, text, videos and photographs from the SDMLS System ("MLS Information"), subject to the limitations 1138629.1 set forth in this EULA and in the SDMLS Rules. You may use the MLS Information only in connection with your lawful business activities. You may not represent or suggest that any MLS Information not created by You or on Your behalf ("Other MLS Information") was created by you or on your behalf. As an example, and without limiting the general nature of the foregoing, absent the consent of the owner of the Other MLS Information, you may not use Other MLS Information to describe or illustrate, with photos or otherwise, Your listings. You may not display or post links to reports generated by the SDMLS System on any website or other publication available or distributed to the general public. You may not use unattended software programs, scripted software programs, or other automated electronic processes to access and or download data from the SDMLS MLS System. All rights not expressly granted in this EULA are reserved.
3. Your obligations and acknowledgements.
(a) Use limited. Subject to the foregoing, You may use the SDMLS System and the MLS Information on the SDMLS site solely for the purpose of listing, selling, buying and/or appraising real estate or assisting Your clients with the same. Your license to use the SDMLS System may be revoked immediately, without notice from SDMLS, if You (i) use the MLS Information for any purpose other than as set forth in the first sentence of this Section 3(a); (ii) violate any of the SDMLS Rules; (iii) disclose any of the MLS Information available on the SDMLS System to any third party except as permitted in this EULA; or (iv) grant access to the SDMLS System to any third party. You acknowledge and agree that SDMLS may use one or more tracking or monitoring technologies or methods to monitor whether or not You are complying with the SDMLS Rules, the terms of this EULA and any other applicable rules, regulations and laws. You acknowledge and agree that through such monitoring or tracking SDMLS may learn information about You that is not directly related to whether or not You are complying with the SDMLS Rules, the terms of this EULA and any other applicable rules, regulations and laws.
(b) Permitted disclosures. You may, during the term of this EULA, disclose the MLS Information to consumers for their non-commercial use to the extent permitted by the SDMLS Rules and the terms of this EULA. Sandicor may, at its option, refuse to allow information entered under “Contacts” and information related to “Saved Searches” to be transmitted outside the MLS System without the express written consent of the agent who entered or generated the information.
(c) SDMLS Rules subject to change. The current version of the SDMLS Rules is available at www.SDMLS.com and such Rules, as they are revised from time to time, are incorporated into this EULA by reference. SDMLS may in its sole discretion amend or revise the SDMLS Rules as provided in such Rules.
(d) SAFEMLS System. You understand and agree that Your access to the SDMLS System will be controlled by the Clareity Security SAFEMLS System. To use the Clareity Security SAFEMLS System and access the SDMLS System, a Personal Identification Number and password will be provided and tracked through the Clareity Security SAFEMLS System.
(e) Confidentiality. You shall maintain the confidentiality of Your SAFEMLS System Login ID and Password and any Clareity Security SAFEMLS System temporary password that may be given to You. You may not provide Your Clareity Security SAFEMLS System Password or any temporary password that may be given to You to any other person. In the event that a third person accesses the SDMLS System using your SAFEMLS System Password or temporary password, You shall be responsible for any violations of law, this EULA or the SDMLS Rules by any such person.
(f) Editorial control. SDMLS is not required to, and generally does not, review, edit, or exercise editorial control over the SDMLS System or the MLS Information; and use of either is subject to the exclusions of warranties and limitations of liabilities set
forth in this EULA. The foregoing notwithstanding, SDMLS may take any steps necessary in its judgment, including deleting MLS Information submitted by you, or portions of it, to avoid or remedy any violation of law, infringement of intellectual
property right, or remove any subject matter that SDMLS, in its sole discretion, determines to be inappropriate or ill advised.
This EULA is at all times conditioned upon the payment of the fees and any other amounts charged in exchange for access to the SDMLS System. Failure to pay all fees and other amounts may result in immediate termination of this EULA and of all accesses and licenses hereunder, without notice to You from SDMLS. There shall be no refund or proration of any fees upon the termination of this EULA or the termination of your right to use the SDMLS System.
5. Term and termination.
(a) Term and termination. This EULA shall continue until (i) You cease to be affiliated with SDMLS; (ii) You fail to pay fees or other amounts due to SDMLS in accordance with applicable payment policies; or (iii) SDMLS terminates this EULA by giving You notice.
(b) Modifications to EULA. You hereby agree that SDMLS may, in its sole discretion, condition future access to the SDMLS System on your acceptance of modified versions of this EULA. You hereby agree that Your assent via electronic means to any 1138629.1
EULA, including this one, shall function as Your signature on it and shall be fully binding on You.
(c) Events upon termination. Promptly upon any termination or expiration of this EULA,
(i) SDMLS shall deactivate Your user ID and password, and You shall have no further access to the SDMLS System; (ii) You shall purge all copies of the SDMLS software and the MLS Information from Your personal computers; and
(iii) all licenses granted hereunder shall immediately terminate.
6. Disputes and remedies.
(a) Injunctive relief. You acknowledge and agree that the compilation of MLS Information contained in the SDMLS System is confidential, proprietary and owned by SDMLS and that if, except as authorized in this EULA, You make an unauthorized disclosure of any part of such MLS Information, no remedy at law will be adequate. You therefore agree in the event of such unauthorized disclosure that SDMLS may obtain injunctive relief or other equitable remedies against You in addition to all available remedies at law. In the event of such injunctive relief or other equitable remedies, to the extent permitted by law, SDMLS shall have no obligation to post a security or other bond or undertaking.
(b) Legal fees. In the event of any legal action, arbitration, or informal dispute resolution proceeding (an "Action") between You and SDMLS on account of or with respect to this EULA, the prevailing party shall be entitled to recover reasonable attorney's fees, costs and expenses incurred in the Action.
(c) Liquidated damages. You acknowledge that damages suffered by SDMLS from access to the MLS Information by an unauthorized third party using Your ID and password or Your unauthorized disclosure of any MLS Information to a third party would be speculative and difficult to quantify. Accordingly, and as a material inducement to SDMLS to enter into this EULA, You agree that if any disclosure of Your ID and password results in access to the MLS Information by an unauthorized third party or if you make disclosure of MLS Information to an unauthorized third party, regardless of whether such access or disclosure is intentional, negligent or inadvertent, You shall be liable to SDMLS for liquidated damages in the amount of the greater of $5,000 or the amount established in the SDMLS Rules for each real estate listing accessed or disclosed; and in any such case, this EULA may be terminated.
7. Disclaimer, limitation of liability, and indemnification.
(a) DISCLAIMER OF WARRANTIES. SDMLS PROVIDES THE SDMLS SYSTEM, ALL COMPONENTS OF IT AND ALL MLS INFORMATION ON AN "AS IS," "AS AVAILABLE," BASIS. USE OF THE SDMLS SYSTEM AND THE MLS INFORMATION AVAILABLE THROUGH IT ARE AT YOUR SOLE RISK. SDMLS DISCLAIMS ANY WARRANTY THAT THE SDMLS SYSTEM WILL BE AVAILABLE ON AN UNINTERRUPTED BASIS. SDMLS AND ITS PARTICIPANTS AND OTHER SUBSCRIBERS DISCLAIM ANY WARRANTY TO YOU AS TO THE ACCURACY, COMPLETENESS, CURRENCY OR RELIABILITY OF ANY INFORMATION AVAILABLE THROUGH THE SDMLS SYSTEM. SDMLS EXPRESSLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SDMLS SYSTEM AND THE MLS INFORMATION AVAILABLE THROUGH IT, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT.
(b) LIMITATIONS AND EXCLUSIONS OF LIABILITY. SDMLS SHALL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM: THE USE OF, OR INABILITY TO USE, THE SDMLS SYSTEM OR ANY OF THE MLS INFORMATION AVAILABLE ON IT, OR RELIANCE BY YOU OR ANY CONSUMER ON ANY INFORMATION OBTAINED THROUGH USE OF THE SDMLS SYSTEM; MISTAKES, OMISSIONS, DELETIONS OR DELAYS IN TRANSMISSION OF SUCH INFORMATION; INTERRUPTIONS IN TELECOMMUNICATIONS CONNECTIONS TO THE SDMLS SYSTEM; OR VIRUSES OR FAILURES OF PERFORMANCE; WHETHER CAUSED IN WHOLE OR PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OF, DESTRUCTION OF, OR UNAUTHORIZED ACCESS TO THE SDMLS SYSTEM OR RELATED INFORMATION, RECORDS OR PROGRAMS.
(c) MAXIMUM AGGREGATE LIABILITY. IN NO EVENT SHALL THE LIABILITY OF SDMLS ARISING OUT OF ANY CLAIM RELATED TO THIS EULA OR YOUR USE OF OR INABILITY TO USE THE SDMLS SYSTEM
EXCEED THE AGGREGATE AMOUNT PAID BY YOU OR ON YOUR BEHALF TO SDMLS AS FEES DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
(d) Indemnification. You will indemnify and hold SDMLS harmless and, at SDMLS's request, defend SDMLS from and against any and all liability, damages, loss or expense (including reasonable fees of attorneys and other professionals) in connection with any claim, demand, action or proceeding initiated by any third-party against SDMLS arising from any of Your acts or omissions, including without limitation
putting inaccurate information into the SDMLS System; (ii) making, or allowing another person to make, unauthorized use of Your password and ID; (iii) making unauthorized use of the SDMLS System, or the MLS Information; (iv) infringing any proprietary, intellectual property or contract right of any third party; or (v) violating this EULA, any other agreement, any of the SDMLS Rules or any law.
(e) Acknowledgment. You acknowledge that SDMLS has set its fees and other charges in reliance on the disclaimers of warranty and limitations and exclusions of liability set forth in this EULA and that the same form an essential basis of the bargain between You and SDMLS.
(a) Assignment. You may not assign or delegate this EULA or any rights, obligations or duties hereunder. Any purported assignment or delegation in violation of this section shall be void from the time of such purported assignment or delegation.
(b) Integration. This EULA, the Application that You submitted to Your service center (the "Subscriber Agreement") and the SDMLS Rules referenced in the Subscriber Agreement contain the entire understanding of the parties and supersede all previous oral and written agreements on the subjects addressed in the same. This EULA and the Subscriber Agreement shall, if at all possible, be interpreted to be consistent with and supplemental to one another. If there is a direct conflict between this EULA and the Subscriber Agreement, the terms and provisions of this EULA shall prevail.
(c) Severability. Each provision of this EULA is severable from the whole, and if one provision is declared invalid, the other provisions shall remain in full force and effect.
(d) Governing law. This EULA shall be governed by, and construed in accordance with, the laws of the State of California applicable to contracts made and performed in California without reference to its choice of law provisions.
SDMLS welcomes your questions and comments about these terms or our website and services. Please feel free to contact us for any reason, by sending an e-mail to email@example.com, calling us at (858) 726-9657, or write us at SDMLS, 4849 Ronson Court
Suite 216 San Diego, CA 92111.