Terms Of Use For Consumers

Terms Of Use For Consumers

Last updated: May 16, 2018

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RealBird Inc. (“RealBird” or “Licensor”) provides online marketing tools and services to real estate businesses located in the U.S. and Canada (“RealBird Members” or “Members”). RealBird is a California corporation.

Realbird Members subscribe to RealBird’s services in order to create and use on their commercial real estate websites  links, widgets, online material or content (“Software and Services”) in order to provide their consumers/visitors real estate related information such as listings for sale, sold listings, property searches, virtual tours, and more.

This Agreement is between you, a consumer/visitor to our members’ website(s), (“Consumer” or “Licensee”) and RealBird. Each of RealBird and Consumer is sometimes referred to herein as a "Party" and sometimes are collectively referred to herein as the "Parties".

Whereas, the Parties desire that RealBird will grant, and Licensee will receive, a license to view and peruse the websites, Software and Services and/or hosted displays and content provided by RealBird to and on the websites of its Members, by your access and use of these you agree to the following terms:

1. License Grant. Subject to compliance with the terms and conditions provided in this Agreement, RealBird grants Licensee a limited, personal, non-exclusive, non-sublicensable, non-transferable right and license, during the Term of this Agreement and under RealBird’s Intellectual Property rights, to use the Software and Services solely for the purpose of your Home buying or Selling needs. This License shall be automatically revoked upon Licensee's failure to comply with the terms and conditions of this Agreement or Member’s termination of their Realbird account. This Agreement is subject to immediate termination at RealBird’s discretion.

2. Term. The License shall commence at the time you access our Member’s website and shall terminate at the time you stop accessing/using the site.

3. Ownership. RealBird is and shall remain the sole and exclusive owner of all right, title and interest in its Software and Services, Intellectual Property rights embodied herein, and Improvements thereto, including any Improvements made to meet Licensee’s needs.

4. Disclaimer of Warranties. Neither RealBird nor any of its employees, officers, directors, affiliates, or agents makes any representation or warranty of any kind, including, without limitation, that access to or use of any software, products, or services to be provided pursuant to this Agreement shall be uninterrupted or error free, that agreed-upon security measures shall prevent unauthorized access to the internet, or unauthorized interception of information on the Internet, any Intranet or any common carrier communications facility. RealBird does not control the source or quality of any data or data feeds it uses for providing its services and cannot and does not provide any quality guarantees for them. Licensee understands and expressly agrees that all use of RealBird's Software and Services is at the sole risk of Licensee. All software, content, and services are provided on an "as is" and "as available" basis. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE AND SERVICES IS DONE AT LICENSEE'S OWN DISCRETION AND LICENSEE WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO THEIR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. RealBird expressly disclaims all warranties of any kind, whether express or implied, statutory, or other warranties, including but not limited to warranties of merchantability, fitness for a particular purpose, title, quiet enjoyment, and non-infringement. RealBird MAKES NO WARRANTY THAT (i) THE SOFTWARE AND SERVICES WILL MEET LICENSEE'S REQUIREMENTS, (ii) THE SOFTWARE AND SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE AND SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY LICENSEE THROUGH THE SOFTWARE AND SERVICES WILL MEET LICENSEE'S EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE AND SERVICES WILL BE CORRECTED.

5. Limitation of Liability

5.1. General Limitation. Licensee understands and agrees that RealBird will not be liable for any indirect, incidental, consequential, punitive, or special damages, arising out of or related to this Agreement including, without limitation, damages for loss of business profits, business interruption, loss of business information, and the like, even if such party has been advised of the possibility of such damages. Neither party shall be liable for any delay or failure to perform which is caused by matters beyond its reasonable control, including without limitation failure or unavailability of, or impaired access to, real estate listing feeds, legal or regulatory restrictions, labor disputes, mechanical, electronic or equipment, breakdowns in facilities controlled by third parties, acts of terror, or Acts of God.

5.2. Exclusions. None of the limitations in Section 4 shall apply in the case of infringement of RealBird's Intellectual Property rights.

6. Indemnification. Licensee shall, by entering into this agreement, indemnify and hold RealBird, its affiliates, subsidiaries, directors, officers, employees, agents and licensors harmless from and against all claims, demands and actions of or by any third Party, including all liabilities, damages, obligations, costs and expenses (such as reasonable attorneys' and experts' fees) ("Claims"), which arise from or relate to actions including, but not limited to: (i) breach of warranty set forth in this Agreement, (ii) gross negligence or willful misconduct, or (iii) an allegation that the Licensee's use of products, services, content, or materials provided by RealBird under this Agreement, as set forth in this Agreement, violates the intellectual property, including but not limited to copyright, trademark, trade secret, patent, or right of personality, publicity, or privacy of any third party.

7. DMCA Compliance. RealBird strongly respects copyright protections. Use of RealBird services is subject to our Digital Millennium Copyright Act ("DMCA") Notice. Licensee must take adequate precautions to ensure that they, or other agents do not upload any copyright-infringing text, photos, or any other matter for which they do not hold the copyright or a copyright license, through the Software and Services. Licensee must indemnify and hold RealBird harmless from any damages resulting from copyright infringement arising from Licensee’s use of the Software and Services.

Please follow our Notice and Procedure for Making Claims of Copyright Infringement. http://www.realbird.com/?p=content.dmi

8. Miscellaneous

8.1. Licensee Account Information. RealBird will create, maintain and record Licensee information, which is to be provided by Licensee with full consent, including the identifying details of the Licensee, in accordance with our Consumer Privacy Policy. By entering into this Agreement, you are agreeing to our Privacy Policy.

6.2. Covenant Not to Sue. Licensee hereby agrees that and covenant that Licensee shall not sue or otherwise assert any claim against RealBird based on the Licensee's use of any RealBird Product. RealBird reserves the right to assert, protect and enforce all of its proprietary rights to the fullest extent permitted by applicable law.

8.3. Dispute Resolution. The Parties hereto agree to submit any unresolved disputes concerning the interpretation of this Agreement to a mediation process to occur within Santa Clara County, California with each Party to bear its own attorneys' fees and cost of the mediation to be borne equally by both Parties. If mediation is unsuccessful, the parties agree to resolve the dispute through arbitration to occur within Santa Clara County, California following the rules and practices of the American Arbitration Association.

8.4. Construction. In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (i) such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions of this Agreement will remain in full force and effect. This Agreement has been negotiated by the parties and their respective counsel and will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party. The section headings used in this Agreement are intended for convenience only and will not be deemed to affect in any manner the meaning or intent of this Agreement or any provision hereof.

8.5. Nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, or a joint venture between the Parties.

8.6. Attorney's Fees. If any legal action, including an action for declaratory relief, is brought to enforce or interpret the provisions of this agreement, the prevailing Party will be entitled to reasonable attorney’s fees and costs, as well as other out of pocket legal expenses.

8.7. Assignment. Neither this Agreement nor any duties or obligations under this Agreement may be assigned by either Party without the prior written consent of the other Party.

8.8. Agreement Governed By. This Agreement and performance hereunder and all suits and special proceedings hereunder shall be construed in accordance with the laws of the State of California.

8.9. Waivers. Waiver of one Party hereto of breach of any provision of this Agreement by the other shall not operate or be construed as a continuing waiver.

8.10. Entire Agreement. This Agreement constitutes the entire agreement between the Parties as to the subject matter hereof, and supersedes any prior or contemporaneous agreements or understandings relating to such subject matter.

9. CONTACT

You may contact us at:
RealBird Inc.
101 Cooper St, Santa Cruz, CA 95060

Toll free: (866) 551-2934
Web: http://www.realbird.com
Email: [email protected]

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