PLEASE READ THE FOLLOWING PARTICIPANT AGREEMENT ('AGREEMENT') CAREFULLY BEFORE USING THIS WEBSITE OR ENTERING INTO TRANSACTIONS OR OTHER RELATIONSHIPS WITH USERS OF THE WEBSITE. BY USING THE WEBSITE OR BEING INCLUDED IN THE Exceleras DATA, OR ANY OTHER Exceleras SERVICES, YOU AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. YOU CAN ONLY USE THE WEBSITE OR THE Exceleras DATA, OR OTHER Exceleras SERVICES AS LONG AS YOU CONTINUE TO AGREE TO BE BOUND BY THIS AGREEMENT. Exceleras CAN MODIFY, ALTER, OR UPDATE THIS AGREEMENT, AND YOU AGREE TO BE BOUND BY SUCH MODIFICATIONS, ALTERATIONS, OR UPDATES WHEN THEY ARE POSTED ON THE WEBSITE.
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1. Website. Exceleras provides a service to companies that manage real estate ('Users') through its Website, www.disposolutions.com that facilitates Users’ selection of brokers and agents and their sale of real estate. Participant would like to be included in the list of real estate agents on the Website, subject to these terms and conditions.
2. Use of the Website. To be listed as a real estate agent on the Website, Participant will accurately and timely submit all information requested by Exceleras or which is queried by the Website, and will update it to ensure its continued accuracy. Participant will use the Website only to submit information as requested, respond to requests from Users or in the course of listing and selling a property after contracting with a User, review information relating to Users’ properties where Participant is the listing real estate agent, and post broker price opinions. Participant will not act or fail to act in a way that will compromise the performance of the Website or the integrity of the information accessible through the Website or in the Exceleras Data. Participant will inform Exceleras if s/he becomes aware of any inaccuracies or omissions in the information that s/he has provided to Exceleras, or that is contained on the Website or the Exceleras Data. Participant will be responsible for obtaining and maintaining all equipment, hardware, software and services necessary for it to connect to and use the Website. Participant will not use any means to: (i) copy Exceleras Data or pages from the Website, except in using the Website as expressly provided in this Agreement, (ii) circumvent any access restrictions contained on or in the Website, (iii) exceed the scope of access and use authorized in this Agreement, or (iv) mine the Website or Exceleras Data. At all times that Participant is accessing or using the Website, Participant will run commercially accepted virus scanning software. If Participant believes that any virus has spread from its computer(s) to Exceleras’s computers or the computers of any User or other participant, Participant will immediately inform Exceleras and will not access the Website until Exceleras has confirmed that Participant can reestablish access. Exceleras may revise the specifications and/or functionality of the Website and may use any ideas or suggestions from Participant without payment or other consideration.
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3. Participant’s Responsibilities. To continue to be listed on the Website, Participant must be licensed by the state(s) in which Participant accepts listings for the sale of real estate and be a member of the multiple listing service in the geographic area where Participant accepts listings. Participant will comply with all applicable laws and regulations in the conduct of its business and in its use of the Website. Participant will notify Exceleras of any actual or threatened actions or suspensions by any governmental, regulatory or licensing authority in relation to Participant. Participant will not make any negative, defamatory, trade libelous or unlawfully harassing remarks, communications or disclosures to Users, other participants, or third parties regarding the Website, related services or documentation, other Participants, Users or their employees or agents. Participant will maintain duplicate copies of the information it posts to the Website in the event that data is lost.
4. Technology Fee. The Technology Fee is a per property charge for your use of Exceleras’s ('Exceleras') Website and related technology services that allow real estate agents and brokers to communicate with their clients in the course of listing, marketing and selling properties. The Technology Fee is due at the time of close of escrow of any property for which you are the listing agent or buyer's agent. In some cases, the servicing company will pay these fees so you will not be charged. If you accept a listing from a servicing company and you will have to pay the Technology Fee, you will be notified of that prior to accepting the listing. If you are a buyer's agent, you will be notified of any applicable Technology Fee before you submit an offer. The Technology Fee is a charge for Exceleras’s services which are not covered by other fees charged by Exceleras, including fees owed by the companies that use the Website to manage REO properties and fees owed by agents, brokers and other service providers for being listed in the directory of service providers accessible through the Website. You represent, warrant and agree that (1) the Technology Fee is a business expense of yours for services actually rendered by Exceleras and you will not seek reimbursement or payment of it directly or indirectly from any person or entity other than the broker that you work for, and (2) you will comply with all applicable laws and regulations in the course of using Exceleras’s Website, and will not use the Website or any material on the Website for any improper purpose. You agree to indemnify and hold Exceleras harmless from any and all liability arising in any way from (1) the listing or sale or attempted sale of a property, (2) any actual or alleged acts or omissions of any person or entity involved in the listing, sale or attempted sale of a property, and (3) any violation by you or any of your subagents of this agreement. If you do not agree to terms of this agreement, or if any fee owed by you is not received by Exceleras within 10 (ten) days after the close of escrow, Exceleras may terminate your access to the Website, in addition to pursuing any other remedies it may have.
5. Exceleras Data. The Website and the data used to develop the content of the Website are an aggregation of data collected by Exceleras from Users, participants and other third parties ('Exceleras Data') that can be used by Users to evaluate and rate real estate brokers and agents on, among other things, how proficient they are at accurately estimating the value of real property and how effective they are at selling properties. Participant acknowledges that Exceleras cannot verify the data and that errors and omissions in the data and the way it is compiled may occur, that Exceleras undertakes no obligation to verify the data, and that Exceleras assumes no responsibility for omissions as to Participant’s listing in Exceleras Data or on the Website. Participant will not use Exceleras Data or the Website to solicit business from existing or potential clients.
6. Transactions With Users. Participant has no obligation to accept any listing from a User or to enter into any other relationship with a User and is acting in its sole discretion in doing so. These terms and conditions do not require any specific terms of any relationship or agreement between a User and Participant. Users and participants are not endorsed by Exceleras and Exceleras does not warrant or guarantee any specific result or performance from use of the Website or by being a participant, being included or rated in Exceleras Data or on the Website, or from any other relationship between Participant and any User or Participant and Exceleras. Participant will look solely to Users for compensation owed or owing to Participant in relation to any relationship, agreement or transaction between Participant and a User and Exceleras will have no liability in relation thereto.
7. Intellectual Property. Exceleras (or its third-party providers) retains title to (i) all portions of the Website and all software and code underlying the Website, any documentation and any copies thereof, (ii) any modifications to the Website or Exceleras Data made by or on behalf of Participant, (iii) all information contained in or accessible through the Website, and (iv) all information concerning Participant that is received or maintained by Exceleras.
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8. Confidentiality. The terms, conditions, and pricing relating to the use of the Website, the rating system developed by Exceleras, the functionality of the Website, and Exceleras Data are confidential and shall not be disclosed, orally or in writing, by Participant to any third party without the prior written consent of Exceleras. Participant shall protect the Exceleras Data and other confidential information of Exceleras with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which Participant utilizes for Participant’s information that it does not wish disclosed to the public. Participant will not provide access to the Website or Exceleras Data to third parties.
9. Disclaimer of Warranty. Notwithstanding anything in this Agreement to the contrary, THE WEBSITE (AND ITS CONTENT AND FUNCTIONALITY) AND Exceleras DATA ARE PROVIDED ON AN AS-IS BASIS WITH NO WARRANTIES. Exceleras DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. Exceleras MAKES NO WARRANTIES THAT THE WEBSITE WILL BE ACCESSIBLE AT ALL TIMES, WILL FUNCTION ERROR FREE OR UNINTERRUPTED, OR BE FREE FROM VIRUSES, OR THAT DATA PARTICIPANT POSTS TO AND/OR TRANSMITS VIA THE WEBSITE WILL BE SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO PARTICIPANT.
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10. Disclaimer of Liability. Exceleras and its service providers and their respective agents, directors, officers, employees, information providers, service providers, suppliers, licensors and licensees, and all other related, associated, or connected persons and entities ('Other Entities') will have no responsibility or liability to Participant or any third party for any fees (including attorneys fees), costs, loss, damage, expense, injury, demands, claims, causes of action, proceedings, liabilities, settlements, judgments, and disbursements ('Liabilities') that may allegedly result from the occurrences listed below ('Occurrences'), even if they have been advised of the possibility of such damages. Participant releases Exceleras and the Other Entities from any and all Liabilities of any nature and kind whatsoever and howsoever arising, whether known or unknown, which now or hereafter exist, which allegedly arise from, relate to, or are connected with the Occurrences. Participant will indemnify, hold Exceleras and the Other Entities harmless, and be solely responsible for, all Liabilities owed or owing to Participant or a third party claiming by or through Participant that allegedly arise out of or are related in any way to the Occurrences. The Occurrences are: (i) use of the Website or Exceleras Data, (ii) lost or corrupted data, (iii) any errors, inaccuracies, or omissions on the Website, or generated through use of or reliance on information on the Website, or in Exceleras Data, or in any other information accessed by Participant or any User or provided to Participant or a User by Exceleras, (iv) any errors, inaccuracies, or omissions in the processing of the data, (iv) any unauthorized access to Participant’s information, (v) any relationship, agreement or transaction with Users, (vi) defects or deficiencies in the Website which cannot be corrected by Exceleras or that Exceleras decides not to correct, or (vii) Participant’s noncompliance with these terms and conditions. If California law is held to apply to this Agreement or this provision, Participant waives California Civil Code 1542, which says: 'A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor,' as well as any other statute or common law principle of similar effect.
11. Limitation of Liability and Damages. Exceleras WILL HAVE NO LIABILITY FOR DAMAGES (WHETHER IN CONTRACT OR TORT) ARISING OUT OF, RELATING TO OR IN ANY WAY CONNECTED WITH THE RELATIONSHIP OF THE PARTIES, THE NEGOTIATION OR TERMINATION OF THIS AGREEMENT, OR THE PROVISION OR NON-PROVISION OF THE SERVICES, THE INABILITY TO USE THE WEBSITE OR Exceleras DATA. Exceleras SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST DATA, LOST PROFITS, THE COST OF PROCURING SUBSTITUTE GOODS OR SERVICES, HOWEVER ARISING, AND DAMAGES RESULTING FROM INCONVENIENCE, DELAY OR LOSS OF USE OF ANY INFORMATION, DATA, SOFTWARE OR HARDWARE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO PARTICIPANT. THE PARTIES AGREE TO THE ALLOCATION OF LIABILITY SET FORTH IN THIS SECTION. PARTICIPANT ACKNOWLEDGES THAT WITHOUT ITS AGREEMENT TO THE LIMITATIONS CONTAINED HEREIN, THE FEES CHARGED FOR WEBSITE ACCESS, SERVICES AND Exceleras DATA WOULD BE HIGHER.
12. Termination. Exceleras has no obligation to continue to offer the Exceleras Data or Website access to Users or to Participant or to otherwise maintain any services that it offers. Exceleras may modify or terminate, temporarily or permanently, Participant’s listing on, and/or access to, the Website, with or without notice and without liability to Participant or any third party.
13. General. This Agreement shall be governed by the laws of the State of Illinois, without regard to its choice of law or conflicts of laws provisions, and the state courts in Cook County and the federal courts for the Northern District of Illinois will have exclusive jurisdiction and venue of such actions. The parties waive their right to a trial by jury. The section headings herein are provided for convenience only and have no substantive effect on the construction of this Agreement. No document that purports to modify or supplement this Agreement shall add to or vary the terms of this Agreement, except for changes to the Agreement posted on the Website by Exceleras. All proposed variations or additions by Participant are objected to and deemed material unless agreed to in writing and signed by an officer of both parties. Except for Participant’s obligation to pay Exceleras, neither party shall be liable for any failure to perform due to causes beyond its reasonable control. If any provision of this Agreement is held to be unenforceable, this Agreement shall be construed without such provision. The failure by a party to exercise any right hereunder shall not operate as a waiver of such party's right to exercise such right or any other right in the future. Neither Participant nor Exceleras has any right or authority to assume or create any obligations of any kind or to make any representation or warranty on behalf of the other party, whether express or implied, or to bind the other party in any respect whatsoever. Exceleras’s election of any remedies provided for in this Agreement shall not be exclusive of any other remedies available hereunder or otherwise at law or in equity, and all such remedies shall be deemed to be cumulative. Except for actions for nonpayment by Participant or breach of Exceleras's proprietary rights in the Exceleras Data or Website, no action, regardless of form, arising out of this Agreement may be brought by either party more than one year after the cause of action has accrued. Exceleras reserves the right to audit Participant's use of the Website and/or Exceleras Data. All audits shall be conducted during regular business hours at Participant's site and shall not unreasonably interfere with Participant's business activities. This Agreement constitutes the entire agreement between the parties concerning Participant's use of the Website and Exceleras Data accessed through the Website and replaces and supersedes any prior verbal or written understandings, communications, and representations between the parties in relation thereto. Participant acknowledges that Exceleras is not acting as a real estate agent in disseminating Exceleras Data or in providing access to the Website. This Agreement is not assignable by either party (by operation of law or otherwise) without the prior written consent of the other party, which will not be unreasonably withheld. Any attempted or purported assignment without such consent shall be null and void. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the parties and their respective successors and permitted assigns. The following provisions will survive the termination or expiration of this Agreement: 5., 6., 7., 8., 9., 10., 11., and 13. Notice to Exceleras under this Agreement will be given in writing to: Compliance Officer, Exceleras., 698 Vernon Avenue, Glencoe, IL 60022, and sent by mail or overnight courier. Notice will be effective on receipt. Notice to Participant will be given by email at the email address contained in Exceleras’s records. If Exceleras has more than one email address for Participant, notice may be given to any email address, and will be effective on transmission by Exceleras.