READ THESE TERMS AND CONDITIONS CAREFULLY. THIS IS A BINDING LEGAL CONTRACT.
CLICK “I AGREE.” IF YOU AGREE TO THESE TERMS AND CONDITIONS.
THESE TERMS AND CONDITIONS CONTAINS DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITIES, CHOICE OF LAW AND VENUE AND WAIVER OF JURY TRIAL PROVISIONS IN SECTIONS 6, 8, 15 AND 18 BELOW.
YOU MUST CLICK “I DECLINE” IF ANY OF THE DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITIES, CHOICE OF LAW AND VENUE, OR WAIVER OF JURY TRIAL PROVISIONS ARE NOT ENFORCEABLE IN YOUR JURISDICTION.
THESE TERMS AND CONDITIONS (the “Terms and Conditions”) are binding on the person completing the information on the previous web page (the “Member”) and Second Generation Space, LLC, a Florida limited liability company (“Company”), whose address is 8924 Jonathan Manor Drive, Orlando, FL 32819, as of the date Member clicks “I Agree” below (the “Effective Date”). Certain capitalized terms used herein are defined in Exhibit A hereto.
Services. In exchange for Member’s obligations under these Terms and Conditions, Company will provide the Services described in Exhibit A hereto to Member, from time to time during the Term (as defined in Section 5). In order to view Published Listing of third parties, the Company grants Member a revocable license to view the Published Listing on one computer for Member’s Business Use (as defined below) during the Term. Member shall not redistribute any third party Content, in whole or in part, for consideration, or use, or help third parties to use, third party Content for any other media, including, but not limited to, Internet websites, advertising media, or other business purposes. The method and process of rendering the Services shall, at all times, be at Company’s sole and absolute discretion, and on and in accordance with the provisions of these Terms and Conditions; provided, that, in no event shall Company be deemed to be a fiduciary of Member or have any fiduciary or trustee duties to Member. Without limiting the foregoing, the Services will not be available at all times and may not be available at any particular time or times. The Services shall not, in any event, be deemed to include anything in excess of the express items set forth above, such as, for example, archiving or backing up Content. Company will not, and is not obligated to, backup any Content or other information or data provided by Member. The Services shall be deemed to have been rendered from Company’s then current principal business location. Company may use its members, employees, agents and independent contractors, as it deems appropriate to render the Services. Company may, at its option and without notice to Member, from time to time, terminate Member’s ability to use the Services or remove all or any part of Member’s Content or Listing(s); provided that, if Company does any of the foregoing solely without cause, Company will refund the pro rata balance of Member’s paid fees as the sole and exclusive remedy available to Member. Cause for the Company to remove Content shall include, without limitation, receipt of any allegation, whatsoever, that the Member is not entitled, for whatever reason, to display the Content via the Website or post any Listing or Published Listing or that the rendition of the Services as concerns such Content would violate any rights of any third party, including, without limitation, intellectual property, privacy or publicity rights. Member is responsible for providing all of the hardware and software necessary to utilize the Services and for recording and editing the digital photo portions of the Content, placing the Content in the format required by the Company and providing any copy and descriptions relating to the Content.
Member’s Representations and Warranties. Member represents and warrants to Company that: (A) Member is a licensed real estate salesperson or broker in the state in which Member is rendering real estate services and has been engaged to render such services concerning each Listing; (B) no portion of the Content or any Published Listing contains any materially incorrect, or improper, scandalous, pornographic or indecent material; (C) Member owns, in all respects, the Content and no portion of the Content, nor the uploading of any part of the Content violates or infringes the intellectual property rights or any third party; (D) Member has all rights necessary to enable Company to provide the Services, including, without limitation, the right to advertise each Published Listing; (E) Member has secured releases from all persons in the Content and all of the owners and holders of any interests in each property that is the subject of a Listing; (F) Member has all rights necessary to grant the license set forth herein and that the exercise of the Licensed Rights (as defined in section 3) will not infringe the intellectual property or moral rights of any third party; and (G) Member shall only access and view third party Content to determine the availability and suitability of commercial real property for Member’s clients and personal real estate related business activities (the “Business Purpose”) which shall not include the solicitation of the owner or management company concerning any Listing or Published Listing of another member.
Member’s Grant of License to Content. Member grants Company, its successors, assigns, parents and affiliated entities, a fully paid perpetual irrevocable license to use, copy, edit, reproduce, perform, exhibit, display, project, resell, sublicense, create derivative works of, and do all other things that any owner of the Content is, or would be, permitted to do with the Content and all intellectual property rights contained therein (the “Licensed Rights”).
Monthly Fees and Payment Terms. The monthly fee for each of the Membership Level Parameters is set forth on Exhibit A hereto (each being the “Fee”). The Fee is payable first at the time Member agrees to these Terms and Conditions and, thereafter, monthly on the first day of each calendar month. If Member becomes a member after the first day of a calendar month, or upgrades his/her Membership Level Parameters on any day other than the first day of a calendar month, Company will prorate the Fee for such month. Once paid, the Fee is non-refundable, except as may be expressly set forth in this Agreement. The Fee shall be payable at the Company’s address or such other location as may be determined by Company. Fees do not include any taxes or other charges or fees payable to any governmental entity, except for taxes on Company’s net income, and Member shall pay such amounts with the Fee. Fees shall be payable via the credit or debit card(s) provided by Member (each being the “Credit Card”) to Company. Member warrants and represents that he/she is an authorized user of each Credit Card account and agrees Company may automatically charge the Fee and other amounts due Company to such Credit Card when such amounts become due and payable to the Company. If any check is returned or a Credit Card transaction is rejected or refused for any reason Company will charge Member a fee of $25.00 per returned, rejected or declined transaction. Company is responsible for incorrect charges to any Credit Card or debits to any bank account only if they are reported to Company in writing within 60 days of the date a disputed charge first appears on cardholder’s bill. Company is not responsible for bank or other fees charged to the cardholder in connection with the billing hereunder. Payments received by Company more than ten (10) days after the due date shall be subject to an administrative fee of five percent (5.0%) of the amount due or $25.00, whichever is greater, and reflect the parties estimate of the costs that will be incurred by Company as a result of such late payment, and all amounts due and unpaid shall bear interest from the date due until paid at 1.5% per month or the highest rate permitted by applicable law, whichever is less.
Term and Termination. The term of these Terms and Conditions (the “Term”) shall commence on the Effective Date and continue until terminated earlier in accordance herewith. Either party may terminate Member’s membership on written notice to the other, with the termination happening on the last day of the calendar month immediately after the effective date (in accordance with Section 12) of such notice. Company may terminate rendering the Services for any particular Listing as described in Section 1. No termination shall effect the rights of the parties arising prior thereto, including, without limitation, for amounts due Company at, as of and after the termination.
LIMITATION OF WARRANTIES. COMPANY DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS WHATSOEVER CONCERNING THE SERVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, NO WARRANTIES OR REPRESENTATIONS CONCERNING ANY OF: THE ABILITY OF THIRD PARTIES TO ACCESS THE CONTENT AT OR FOR ANY TIME; “UPTIME” OF THE WEBSITE; THE NUMBER OF THIRD PARTIES ACCESSING THE CONTENT; OR THE RESULTS OF THE SERVICES. FURTHERMORE, WITH RESPECT TO THIRD PARTY CONTENT THAT IS MADE AVAILABLE TO MEMBER VIA THE WEBSITE, SUCH CONTENT IS PROVIDED “AS-IS, WHERE-IS” AND COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND CONCERNING THE CONTENT OR ITS ACCURACY. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, FOR THE SERVICES, THE RESULTS OF THE SERVICES OR CONCERNING ANY INTELLECTUAL PROPERTY INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTIBILITY OR ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
Indemnification. Member shall hold Company, its officers, directors, employees, contractors and agents, collectively and individually, harmless from any claims, obligations, losses, damages, liabilities, fines, costs and expenses (including, without limitation, reasonable attorney’s fees pretrial, trial and appellate) arising out of or incurred or suffered as a result of or in connection with Member’s breach of any representation, warranty or covenant contained in these Terms and Conditions, negligence or commission of fraudulent or illegal acts and Member’s rendition of services.
LIMITATION OF LIABILITIES. EXCEPT IN THE CASE OF MEMBER’S INDEMNIFICATION OF THE COMPANY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF BUSINESS OR OTHER ECONOMIC DAMAGE, OR INJURY TO PROPERTY. FURTHERMORE, COMPANY SHALL NOT, IN ANY EVENT, BE LIABLE TO COMPANY FOR ANY AMOUNT OF DAMAGES IN EXCESS OF THE ACTUAL FEES PAID BY MEMBER TO COMPANY OVER THE PAST THREE CALENDAR MONTHS. MEMBER AND COMPANY ACKNOWLEDGE THAT THIS SECTION REFLECTS AN INFORMED, VOLUNTARY ALLOCATION BETWEEN THEM OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THESE TERMS AND CONDITIONS, THAT SUCH VOLUNTARY RISK ALLOCATION WAS A MATERIAL PART OF THE BARGAIN BETWEEN THE PARTIES, AND THAT THE ECONOMIC AND OTHER TERMS OF THESE TERMS AND CONDITIONS WERE NEGOTIATED AND AGREED TO BY THE PARTIES IN RELIANCE ON SUCH VOLUNTARY RISK ALLOCATION. MEMBER IS OBLIGATED TO TAKE SUCH PERSONAL SAFETY PRECAUTIONS AND HE/SHE MAY DEEM APPROPRIATE BEFORE MEETING ANY PERSON AT ANY PROPERTY THAT IS THE SUBJECT OF A LISTING AND, WITHOUT LIMITING THE FOREGOING, COMPANY SHALL NOT BE LIABILITY IN ANY MANNER FOR ANY DAMAGES ARISING THEREFROM.
Data and Privacy. Company may utilize any of the data and information that Member provides or that any Visitor provides for Company’s business purposes. Company does not have any obligation to maintain or to hold secret or confidential any data or information that any Member or any Visitor provides to the Company, including, without limitation, any Content or search criteria.
Entire Terms and Conditions, Waiver and Modification. These Terms and Conditions set forth the entire understanding of the parties concerning subject matter of these Terms and Conditions and incorporates all of prior negotiations and understandings. There are no covenants, promises, agreements, conditions or understandings, either oral or written, between the parties relating to the subject matter of these Terms and Conditions other than those set forth herein. Company may modify, amend, supplement or replace the terms and conditions of these Terms and Conditions on at least ten (10) days notice to Member (which Company may provided via Section 12(C)); provided that, if Company does so and Member does not agree to such changes, Member may terminate these his/her membership in accordance with Section 5 (without cause). If Member does not so terminate his/her membership, the modification, amendment, supplement or replacement will be binding. Except for the foregoing, no alteration, amendment, change or addition to these Terms and Conditions shall be binding upon either party unless in writing and signed by an authorized representative of such party. No purported waiver by either party of any default by the other of any term or provision contained herein shall be deemed to be a waiver of such term or provision unless the waiver is in writing and signed by the waiving party. No such waiver shall in any event be deemed a waiver of any subsequent default under the same or any other term or provision contained herein.
Successors and Assignment. Each and all of the provisions of these Terms and Conditions shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. Member may not assign or transfer Member’s membership or delegate his/her rights or the performance of his/her duties hereunder without the express prior written approval of Company. Company (and its successors and assigns) may, at any time and from time to time, assign its rights under these Terms and Conditions.
Notices. Any consent, waiver, notice, demand, request or other instrument required or permitted to be given under these Terms and Conditions shall be in writing and deemed to have been properly given upon: (A) actual delivery if delivered by hand; (B) the next business day after transmission by national overnight express courier service (e.g., Federal Express), freight prepaid, receipt signature required, to the address for such party set forth herein; (C) the next business day after transmission by e-mail to Member to the e-mail address provided by Member to Company via Member’s account information; or (D) three (3) business days after being sent by certified United States mail, return receipt requested, postage prepaid, to the address for such party set forth herein. Either party may change its address for notices in the manner set forth herein.
Captions. The captions and paragraph letters appearing in these Terms and Conditions are inserted only as a matter of convenience. They do not define, limit, construe or describe the scope or intent of the provisions of these Terms and Conditions.
Partial Invalidity. If any term or provisions of these Terms and Conditions, or the application thereof to any person or circumstance, shall be invalid or unenforceable, the remainder of these Terms and Conditions, or the application of such term or provision to persons or circumstances, other than those as to which it is held invalid, shall both be unaffected thereby and each term or provision of these Terms and Conditions shall be valid and be enforced to the fullest extent permitted by law.
Applicable Law and Venue. These Terms and Conditions shall be construed and governed under and by the laws of the State of Florida for contracts executed and to be performed in Florida. Except for third party actions, exclusive venue for action, claim or controversy arising out of these Terms and Conditions shall be Orange County, Florida. Member waives all defenses based on venue, the inconvenience of the forum, and lack of personal jurisdiction in any dispute brought in Orange County, Florida.
Attorney’s Fees. In the event any litigation, mediation, arbitration, or controversy between the parties hereto arises out of or relates to the Fees or other amounts due Company or the obligation of Member under Section 7, or the provisions Sections 3, 6 or 8, the prevailing party shall be entitled to recover from the other all collection costs, reasonable attorneys' fees, expenses and suit costs, including those associated with appellate and post-judgment collection proceedings.
Third Party Beneficiaries. There are no intended, express or implied third party beneficiaries to these Terms and Conditions.
WAIVER OF JURY TRIAL. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE ALL OF THEIR RIGHTS TO A TRIAL BY JURY ON ANY AND ALL ISSUES PERTAINING TO OR ARISING OUT OF THESE TERMS AND CONDITIONS AND THE MATTERS SET FORTH HEREIN.
Survival. Sections 2, 3, 4, 6, 7, 8, 10, 11, 15 and 16 shall survive and continue to be applicable after the expiration, cancellation or termination of Member’s membership for any reason and the end of the Term (including all extensions of the Term).
Exhibit A
Services Description Addendum
The Services to be provided to Member are as follows:
upload data and information, including, without limitation, text information and digital pictures, in the formats required, sizes permitted and containing the fields required by Company, from time to time (collectively the “Content”), concerning one unit within a property that is available for lease and for which the Member is the listing agent or owner (being a “Listing”) for up to that number of Listings permitted by Member’s Membership Level Parameters (as defined below), to the website owned and operated by the Company (the “Website”) solely for the purpose(s) of the Website;
view, modify and delete Content via the Website; designate up to that number of Listings permitted by Member’s Membership Level Parameters as “Published Listings”;
make certain components of the Content of each Published Listing accessible, from time to time, to: (1) third parties who agree to Company’s terms and conditions via the Website and who are not Members (“Visitors”); and (2) other Members; such accessible components of the Published Listing Content being determined based on the status as Visitor or the Content View parameter of the Member’s Membership Level Parameter, as the case may be;
permit Member to search third party Published Listings in accordance with the Search Capability for Member’s Membership Level Parameter;
permit Member to view certain of the Content for Published Listings in accordance with the Content View for Member’s Membership Level Parameter.
input, update and edit Member’s account and billing information and Membership Level.
(the items in this Section 1(A) through (G) being the “Services”).
Membership Level Parameters
Membership Level Fees:
Membership Level Monthly Fee
Free $0.00
Search Account $25.00
Premium Account $40.00
“Search Capability” means the ability to search third party Published Listings using data and information fields for such Published Listing (based solely on the Content provided by the member posting such Published Listing), with the fields being: (A) all text fields for “Full” Search Capability; and (B) size, type of space and name of center fields for “Basic” Search Capability.
“Content View” means the ability to view certain of the Content that was posted by the member posting a Published Listing, such Content being: (A) all Content for “Full” Content View; and (B) size, type of space, name of center fields and one picture for “Basic” Content View.
