WHEREAS, HotPads provides or intends to provide various online resources, including a search engine to aid the public in the location of available housing, utilizing sophisticated mapping technology, as well as resources available to property owners/managers/agents (all or a portion of such resources as well as additional resources that may be added hereafter by HotPads shall be referred to herein as the "Service") via a website known as HotPads.com (the "Site"); and
WHEREAS, User desires to list its properties with HotPads and avail itself of the Service, and HotPads is willing to make the Service available to User at no charge, upon the terms and conditions hereinafter provided.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties, it is agreed as follows:
1. The Service.
In order for User to avail itself of the Service, User will be required to provide information concerning the property or properties it wishes to list with HotPads, such as community description, floor plans, pictures, etc. Such information will be stored by HotPads; however, User will have access to its listing, via a secure login, with the ability to change and modify its listing, from time to time, as availability with respect to the properties change. The general public will have the ability to search via the Site real estate properties meeting specifying criteria and view available properties within a specified area on a map. Such users will then be able to learn about the properties that interest them from the information provided by the users of the Service.
- Responsibility for Content of Listings. User understands and agrees that all postings, messages, text, files, images, photos, video, sounds, or other materials ("Content") posted on, transmitted through, or linked from the Service, are the sole responsibility of the person from whom such Content originated. More specifically, User is entirely responsible for all Content it posts, emails or otherwise makes available via the Service. User shall have the right to post a link to its own company website or websites of particular properties (and no others); however, doing so is at User's own risk. User acknowledges that while HotPads does not pre-screen or approve Content, it shall have the right (but not the obligation) in its sole discretion to refuse, delete or move any Content that is available via the Site, for violating the terms of this Agreement or for any other reason.
- Restrictions on Content. User shall not post, email, or otherwise make available Content:
- that is unlawful, harmful, threatening, abusive, harassing, defamatory, pornographic, libelous, invasive of another's privacy, or harms minors in any way;
- that harasses, degrades, intimidates or is hateful toward an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
- that impersonates any person or entity, including, but not limited to, a HotPads employee, or falsely states or otherwise misrepresents User's affiliation with a person or entity;
- that includes personal or identifying information about another person without that person's explicit consent;
- that is false, deceptive, misleading, deceitful, misinformative, or constitutes "bait and switch";
- that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, or Content that User does not have a right to make available under any law or under contractual or fiduciary relationships;
- that constitutes or contains "affiliate marketing," "link referral code," "junk mail," "spam," "chain letters," "pyramid schemes," or unsolicited commercial advertisement;
- that constitutes or contains any form of advertising or solicitation if (A) posted in areas of the Site which are not designated for such purposes; or (B) emailed to the Site's users;
- that includes links to commercial services or web sites, except as allowed in Section 2(a);
- that advertises any illegal services or the sale of any items the sale of which is prohibited or restricted by applicable law;
- that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- that disrupts the normal flow of dialogue with an excessive number of messages (flooding attack) to the Site, or that otherwise negatively affects other users' ability to use the Service or the Site; or
- that employs misleading email addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of Content transmitted through the Site.
- Restrictions on Conduct. Additionally, User shall not:
- contact anyone who has asked not to be contacted;
- "stalk" or otherwise harrass anyone;
- collect personal data about other users for commercial or unlawful purposes;
- use automated means, including spiders, robots, crawlers, data mining tools, or the like to download data from the Site - exception is made for internet search engines (e.g. Google) and non-commercial public archives (e.g. archive.org) that comply with our robots.txt file;
- post non-local or otherwise irrelevant Content, repeatedly post the same or similar Content or otherwise impose an unreasonable or disproportionately large load on HotPads' infrastructure; or
- attempt to gain unauthorized access to HotPads' computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Service or the Site.
- No Spam Policy. User acknowledges and agrees that any unauthorized use of HotPads' computer systems (e.g., unsolicited email advertisements) is a violation of this Agreement and certain federal and state laws, including without limitation the Computer Fraud and Abuse Act (18 U.S.C. § 1030 et seq.). Such violations may subject the User or its agents to civil and criminal penalties.
3. Limitations on Service.
User acknowledges that HotPads may establish limits concerning use of the Service, including the maximum number of days that Content will be retained by the Service, the maximum number and size of postings, email messages, or other Content that may be transmitted or stored by the Service, and the frequency with which you may access the Service. User agrees that HotPads has no responsibility or liability for the deletion or failure to store any Content maintained or transmitted by the Service. User acknowledges and agrees that HotPads reserves the right at any time to modify or discontinue the Service (or any part thereof), including the addition or alteration of particular functionalities, with or without notice, and that HotPads shall not be liable to User or to any third party for any modification, suspension or discontinuance of the Service.
4. HotPads Use of Content.
HotPads intends to maintain and store Content on its servers for future accessibility and use by User for future listings. HotPads agrees that it will not use or disclose User's Content or make it available to third parties other than in connection with the Service and the Site, as authorized by User hereunder, except as may be necessary to comply with legal process, to enforce this Agreement, or to respond to claims that any Content violates the rights of third parties.
5. Termination of Service.
- HotPads' Termination Rights. User agrees that HotPads, in its sole discretion, has the right to delete or deactivate User's account, block User's email or IP address, or otherwise terminate User's access to or use of the Service (or any part thereof), immediately and without notice, and remove and discard any Content within the Service, for any reason, including, without limitation, if HotPads believes that User has acted inconsistently with the letter or spirit of this Agreement or has violated or is violating any law. Further, User agrees that HotPads shall not be liable to User or any third-party for any termination of User's access to the Service. Further, User agrees not to attempt to use the Service after said termination.
- User's Termination Rights. User shall have the ability to discontinue the Service at any time by de-activating its listing.
- Survival. The provisions of Sections 7, 10, 11, and 12 hereof shall survive the termination of this Agreement and the Service.
6. User's Dealings with Organizations and Individuals
User's interactions with organizations and/or individuals identified through the Site, including payments, and any other terms, conditions, warranties or representations associated with such dealings, are solely between User and such organizations and/or individuals. User agrees that HotPads shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between participants on the Site, or between users and any third party, User understands and agrees that HotPads is under no obligation to become involved. In the event that you have a dispute with one or more other users, you hereby release HotPads, its officers, employees, agents and successors in rights from claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and /or the Service.
7. Proprietary Rights.
- Copyright Laws. The Service is protected to the maximum extent permitted by copyright laws and international treaties. Content displayed on or through the Service is protected by copyright as a collective work and/or compilation, pursuant to copyrights laws, and international conventions. Any reproduction, modification, creation of derivative works from or redistribution of the Site or the collective work is prohibited. Copying or reproducing the Site or any portion thereof to any other server or location for further reproduction or redistribution is prohibited. User agrees not to reproduce, duplicate or copy Content from the Site, and agrees to abide by any and all copyright notices displayed on the Site. User shall not decompile or disassemble, reverse engineer or otherwise attempt to discover any source code contained in the Site. Without limiting the foregoing, you agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any aspect of the Service. HotPads.com is a registered trademark in the U.S. Patent and Trademark Office.
- License Granted by User. Although HotPads does not claim ownership of Content that its users post, by posting Content to any public area of the Site, for the Term of this Agreement, User grants, and User represents and warrants that it has the right to grant, to HotPads an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, and distribute said Content and to prepare derivative works of, or incorporate into other works, said Content, and to grant and authorize sublicenses (through multiple tiers) of the foregoing.
- Notification of Claims of Infringement. If User believes that its Content has been copied in a way that constitutes copyright infringement, or its intellectual property rights have been otherwise violated, please notify a HotPads agent for notice of claims of copyright or other intellectual property infringement ("Agent"), at firstname.lastname@example.org.
- Douglas Pope
- 225 Bush Street
- Suite 1100
- San Francisco, CA 94104
- (563) Buy-Rent [289-7368]
Please provide the HotPads Agent with the following Notice:
- Identify the copyrighted work or other intellectual property that you claim has been infringed;
- Identify the material on the site that you claim is infringing, with enough detail so that we may locate it on the website;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- A statement by you declaring under penalty of perjury that (a) the above information in your Notice is accurate, and (b) that you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner;
- Your address, telephone number, and email address; and
- Your physical or electronic signature.
8. Representations of User.
User hereby represents to HotPads that it complies with, and has policies to ensure compliance with, all civil rights and anti-discrimination laws, including, without limitation, the Fair Housing Act, Americans with Disabilities Act, and the Equal Credit Opportunity Act, to the extent such laws are applicable to User, and accordingly does not discriminate in the sale, rental and financing of its properties on the basis of race, color, religion, sex, handicap, familial status, or national origin.
9. Right to Charge for Services.
HotPads retains the right to charge for any and all services and features given proper advanced notification
10. Disclaimer of Warranties.
USER AGREES THAT USE OF THE SITE AND THE SERVICE IS ENTIRELY AT USER'S OWN RISK. THE SITE AND THE SERVICE ARE PROVIDED ON AN "AS IS" OR "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND. ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE FULLEST EXTENT PERMITTED BY LAW, HOTPADS DISCLAIMS ANY WARRANTIES FOR THE SECURITY, RELIABILITY, TIMELINESS, ACCURACY, AND PERFORMANCE OF THE SITE AND FOR THE RESULTS OF THE SERVICE. TO THE FULLEST EXTENT PERMITTED BY LAW, HOTPADS DISCLAIMS ANY WARRANTIES FOR OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SITE OR SERVICE, OR ACCESSED THROUGH ANY LINKS ON THE SITE. TO THE FULLEST EXTENT PERMITTED BY LAW, HOTPADS DISCLAIMS ANY WARRANTIES FOR VIRUSES OR OTHER HARMFUL COMPONENTS IN CONNECTION WITH THE SITE OR THE SERVICE.
11. Limitations of Liability.
UNDER NO CIRCUMSTANCES SHALL HOTPADS BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF HOTPADS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM ANY ASPECT OF YOUR USE OF THE SITE OR THE SERVICE, WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF THE SITE OR THE SERVICE, FROM INABILITY TO ACCESS THE SITE OR THE SERVICE, OR THE INTERRUPTION, SUSPENSION, MODIFICATION, ALTERATION, OR TERMINATION OF THE SITE OR THE SERVICE. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR PRODUCTS RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE SITE OR THE SERVICE OR ANY LINKS ON THE SITE, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE SITE OR THE SERVICE OR ANY LINKS ON THE SITE. THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
User agrees to indemnify and hold HotPads, its officers, subsidiaries, affiliates, successors, assigns, directors, officers, agents, service providers, suppliers and employees, harmless from any claim or demand, including reasonable attorney fees and court costs, made by any third party due to or arising out of Content submitted, posted or made available through the Service by User, User's use of the Service, User's violation of the terms of this Agreement or of any laws, User's breach of any of the representations and warranties contained herein, or User's violation of any rights of another.
- Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original hereof, and all of which together shall constitute one and the same instrument.
- Assignment. This Agreement shall not be assignable, by agreement or operation of law, either party hereto without the prior written consent of the other party hereto. This Agreement shall be binding upon each party's permitted successors and assigns.
- Governing Law. This Agreement shall be construed under the laws of the State of Maryland, without regard to its principles of conflicts of laws. Notwithstanding the foregoing this Agreement shall not be subject to the Uniform Computer Information Transactions Act. In the event of any legal action required to enforce Licensor's rights hereunder, Licensee hereby consents to the jurisdiction of Maryland courts and waives the defense of lack of personal jurisdiction by such courts.
- Notice. Any notice required to be given hereunder shall be deemed to have been duly given if mailed registered or certified mail, delivered in person or by reputable overnight courier, telecopied or emailed with verification of receipt to the applicable party at the address noted below:
- If to HotPads, then to:
- 225 Bush Street
- Suite 1100
- San Francisco, CA 94104
- No Amendments. This Agreement may not be altered or amended without the written consent of both parties hereto.