REI DealMaster, LLC
SOFTWARE LICENSE AGREEMENT
TERMS OF SERVICE
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT ("LICENSE") CAREFULLY BEFORE USING THE SOFTWARE. BY USING THE SOFTWARE, YOU, THE CUSTOMER (“YOU” OR “CUSTOMER”), ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE THE SOFTWARE.
WHEREAS, REI DealMaster LLC licenses access to REI DealMaster, a web-based sales and marketing business management tool and information provider tool that allows real estate investors, real estate agents and other business owners to generate and manage numerous types of real estate transactions more effectively and efficiently (the “Website” or “Services”); and
WHEREAS, Customer wishes to use REI DealMaster and obtain such related services, and REI DealMaster LLC desires to provide such services to Customer; and
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I. DEFINITIONS
1.1 Definitions. For purposes of this Agreement, the definitions set forth below shall be applicable:
“Use” means access to the website, in any manner, whether automated or otherwise.
“Authorized User” means an individual who is a principle, employee or contractor of a Customer who is acting within the scope of a formal employment or agency relationship and who agrees to be bound by the terms of this Agreement.
“Front End Code” means the user interface display and usability platform. This includes but is not limited to the layout, color scheme, HTML pages and source code etc.
“Back End Code” means the REI DealMaster application specific source code. This includes but is not limited to the database schema, field definitions, table relationships, marketing automation, work flow management, application methodology, linking and interface coding etc.
ARTICLE II. OWNERSHIP AND USE
2.1 Grant of Limited License. Subject to the terms and conditions of this Agreement, REI DealMaster LLC hereby grants to Customer and Customer hereby accepts a limited nonexclusive, nontransferable license to establish online access to the REI DealMaster Software to perform project management and marketing, lead and deal tracking, document preparation and other related business functions as the Software is designed to perform. This Website and all the materials available on the Website are the property of REI DealMaster LLC and/or its affiliates or licensors, and are protected by copyright, trademark, and other intellectual property laws. The Website is provided solely for the Customer’s personal non-commercial use. Customer may not use the Website or the materials available on the Website in a manner that constitutes an infringement REI DealMaster LLC and/or its affiliates or licensor’s rights or that has not been authorized by REI DealMaster LLC.
2.2 Title. REI DealMaster LLC and/or its affiliates or licensors shall retain all right, title, and interest in and to REI DealMaster, including any and all updates, enhancements, customizations, revisions, modifications, future releases, and any other changes thereto, and all related information, material and documentation, etc. Except for the license granted pursuant to this Agreement, Customer shall not acquire any interest in the REI DealMaster Software or any other services or materials, or any copies or portions thereof, provided by REI DealMaster LLC or any of its related entities and/or affiliates pursuant to this Agreement.
2.3 Customer Ownership of prospect, customer and employee Data. Any Customer’s Company- specific Data provided to REI DealMaster LLC hereunder, either in hard copy or electronic format is and shall remain Customer’s property, subject to the terms set forth herein.
2.4 REI DealMaster LLC intellectual property ownership and restrictions to product use. REI DealMaster LLC and/or its affiliates or licensors shall retain all rights to proprietary application development, business and technical methodologies, implementation, business processes and all other aspects of REI DealMaster business, application(s) and services. Under no circumstances, will the Customer be permitted to use any Front or Back End Code to their advantage (or) the advantage of their partner company’s (or) potential partner company’s outside of the intended design and implementation for which the original service subscription agreement was executed. The technology and business methodologies are proprietary and the sole property of REI DealMaster LLC and/or its affiliates or licensors. Any technology or business replication of any aspect of the application or services provided used for the gain of the Customer or above-mentioned business partners or for the use of any level of a competitive nature regarding these proprietary elements is strictly prohibited.
2.5 Terms and Conditions. The Customer knowingly and specifically agrees to comply with all requirements set forth by REI DealMaster LLC as to how REI DealMaster will be used, including but not limited to the number of users and the method and manner in which REI DealMaster is accessed. It is expressly understood that REI DealMaster is the intellectual property of REI DealMaster LLC and/or its affiliates or licensors and any attempts to copy, duplicate, imitate, share or modify REI DealMaster will be treated as a patent copyright or trademark infringement.
In each such instance of an infringement upon any patent, copyright, or trademark on REI DealMaster and/or its affiliates or licensors shall bear liquidated damages in the amount of $25,000 per instance to be paid by the Customer to REI DealMaster LLC as well as all reasonable attorney’s fees and costs.
It is further understood, acknowledged, and consented to that Customer alone bears all responsibility for verifying the accuracy and legal validity of all documents generated by REI DealMaster. Furthermore, Customer agrees to release REI DealMaster LLC and its affiliates and licensors from any and all liability, cost, or expenses that the Customer may incur as a result of using any of the documents, procedures, worksheets, formulas, marketing strategies, project estimation, selling system, appraisals and brokers price opinions. It is understood that Customer is using REI DealMaster at their own risk and bears all responsibility for any lost, incomplete, or missing data or unsuccessful real estate deals or transactions.
The Customer acknowledges that any and all information obtained via REI DealMaster relative to evaluations, appraisals and brokers price opinion is the confidential trade secret information of REI DealMaster LLC and/or its affiliates or licensors and further understands that the “Deal Filter” and “Power Matching” features of REI DealMaster are the confidential trade secret of REI DealMaster LLC and/or its affiliates or licensors. Any attempts to alter, copy, modify or otherwise infringe upon intellectual property by the Customer shall be subject to paying the aforementioned liquidated damages.
Furthermore, in an effort to prevent the unauthorized or inadvertent release of any of the concepts, ideas or information contained in REI DealMaster to an unintended recipient, the parties agree that the Customer limit access to and usage of REI DealMaster to the person(s) who are the owners of or are employees of Customer, each of whom will be assigned their own separate password and username.
Upon initial usage and operation of REI DealMaster, if Customer believes that existing software owned by or developed by Customer is similar in operation, appearance, function, method of use to REI DealMaster in any way Customer shall immediately (within 48 hours) notify REI DealMaster LLC of all such similarities. Failure to so notify REI DealMaster LLC will be seen as conclusive proof in favor of REI DealMaster LLC and/or its affiliates or licensors in any potential question as to the source of any idea, concept or function in any intellectual property, copyright, trademark or patent dispute.
ARTICLE III. FEES & BILLING
3.1 Access Charges. If there is a charge associated with the license granted pursuant to Section 2.1, and for the Services described herein, Customer agrees to pay that charge. The price stated for the license and services excludes all applicable taxes and currency exchange settlements, unless stated otherwise. Customer is solely responsible for paying such taxes or other charges. REI DealMaster LLC may suspend or cancel the license or services if it does not receive an on-time, full payment from Customer. Suspension or cancelation of the Services for nonpayment could result in a loss of access to and use of your account.
3.2 Customer Billing Account. To pay the charges for the license and services, you will be asked to provide a payment method at the time you sign up for that service. You can access and change your billing account information and payment method in your Account Settings within the product. Additionally, you agree to permit REI DealMaster LLC and REI DealMaster to use any updated account information regarding your payment method provided by your issuing bank or the applicable payment network. You agree to keep your billing account information current at all times. Changes made to your billing account will not affect charges we submit to your billing account before we could reasonably act on your changes to your billing account.
3.3 Authorization. By providing REI DealMaster LLC with a payment method, you (i) represent that you are authorized to use the payment method that you provided and that any payment information you provide is true and accurate; (ii) authorize REI DealMaster LLC to charge you for the licenses and services using your payment method; and (iii) authorize REI DealMaster LLC , through REI DealMaster, to charge you for any paid add-ons (e.g. Direct Mail, Moby Minutes, Comparable Reports, etc.) that you choose to purchase while this Agreement is in force. We may bill you (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) on a recurring basis for subscription services. Also, REI DealMaster LLC may charge you up to the amount you've approved and will notify you in advance of any change in the amount to be charged for recurring subscription services. REI DealMaster LLC may bill you at the same time for more than one of your prior billing periods for amounts that have not previously been processed.
3.4 Automatic Renewal. Provided that automatic renewals are allowed in your country, province, or state, REI DealMaster LLC may or may not inform you by email before automatically renewing your Services. REI DealMaster LLC may automatically renew your license and services and charge you the then current price for the renewal term. You must cancel the Services before the renewal date to avoid being billed for the renewal.
3.5 Trial-period offers. If you are taking part in any trial period offer, you must cancel the license and services by the end of the trial period to avoid incurring new charges, unless REI DealMaster LLC notifies you otherwise. If you do not cancel your license and services at the end of the trial period, REI DealMaster LLC may charge you for the license and services.
3.6 Billing Policy. REI DealMaster LLC has adopted the following billing policy all customers must comply with: All accounts are set up on a prepay basis. Payment must be received by REI DealMaster LLC before any product or services are activated by credit card or through Automated Clearing House (ACH) payment. Customers are responsible for keeping all credit card and/or ACH payment information current. All changes must be communicated to REI DealMaster LLC through REI DealMaster including changes to credit card type and expiration date, as well as a current mailing and e-mail address. All recurring charges are automatically generated, invoiced, and charged to the credit card or the bank account on file according to contractual agreement. This includes monthly charges. Charges are based on availability of products and services, not usage. Invoice and payment receipts are available to customers upon request.
3.7 Billing Period. Billing periods begin upon invoicing. Each customer is committed to the remaining term of the billing period and no refunds will be given. Customers are not required to use services during the period.
3.8 Billing Disputes. As a current or prior customer of REI DealMaster LLC, each customer agrees to provide REI DealMaster LLC thirty days to attempt settlement of any billing dispute before disputing with any third party, credit card company or bank. REI DealMaster LLC must be the first option in billing disputes. Should REI DealMaster LLC receive a chargeback or other reversed charge from a third party, Credit Card Company or bank on the customer’s behalf before REI DealMaster LLC has been given a chance to resolve the issue, REI DealMaster LLC has the right to collect on the rendered services and any fees associated with those disputes. REI DealMaster LLC charges a $50.00 Chargeback Fee per chargeback should a credit card company and/or bank be used as a first resort in a billing dispute.
Not all billing disputes may be settled to a customer’s satisfaction. Once REI DealMaster LLC has been given first right to settle a billing dispute, a customer may then use any third party, Credit Card Company or bank in an attempt to settle the dispute. However, REI DealMaster LLC still retains the right to collect on any rendered services or fees that are due. Should REI DealMaster LLC be unable to reverse any disputed amounts with a third party, credit-card company, or bank, REI DealMaster LLC will submit the full delinquent amount to a third-party collection service.
3.9 Payment Methods. REI DealMaster LLC accepts payments via credit or debit card. REI DealMaster LLC currently accepts Visa, MasterCard, American Express, Discover, JCB and Diners Club credit cards as well as ACH withdrawals.
3.10 Billing Cycle. All credit cards are automatically charged on the customer’s specific billing cycle
date. If the credit card is declined, REI DealMaster LLC will attempt to charge the card on file for thirty (30) days. If paying by ACH withdraw, withdrawals are likewise made from the customer’s bank account on customer’s specific billing cycle. If the withdrawal does no go through, REI DealMaster will attempt to withdraw from the account for thirty (30) days.
3.11 Late Fee. All accounts more than thirty (30) days past due will be assessed a late fee of 5%. Three attempts to contact the customer will be made before any late fee is assessed.
3.12 Disabling of Accounts. All accounts forty-five (45) days past due will be disabled until balances are paid in full including any associated late fees. When disabled, all access will be suspended and data will be unavailable.
3.13 Collections. After an account is delinquent sixty (60) days, it will be deactivated. Once deactivated, the customer will not be able to recover any files. The account record and delinquent balance may be passed on to a third-party collection service.
ARTICLE IV. CANCELLATION POLICY
4.1 Cancellation Policy. As a REI DealMaster customer, you have the ability to cancel your account at any time without any termination charges or fees. You will not receive a refund for the one-time set up fee and/or for billing that has already occurred, except in the specific instances described below. REI DealMaster will not pro-rate any return for unused service and all outstanding invoices must be paid in full. By using REI DealMaster, each customer understands and agrees to this cancellation policy and understands that while no refund will be issued, customers are always free to keep accounts open for access for the full amount of time billed.
4.2 Monthly subscriptions. Once cancelled, your subscription will terminate at the end of the latest monthly billing period for which you have previously been charged. No further charges will be applied, and no refunds for unused time will be made.
4.3 Refunds. REI DealMaster will honor all refund requests for specific marketing promotions that state or that imply that a specific refund request will be honored within the first thirty (30) days. All refund requests related to specific marketing programs must occur within the first thirty (30) days of service and be tied to the specific marketing promotion. All other refund requests will be denied.
ARTICLE V. CONFIDENTIALITY
5.1 Confidentiality. Each party agrees that the Customer’s company associated Data (referred to herein as the “Customer Confidential Information”) and any and all documentation and information pertaining to REI DealMaster LLC and/or REI DealMaster (referred to herein collectively as the “RREI DealMaster Confidential Information”) is the confidential property of Customer and REI DealMaster LLC, respectively (Customer Confidential Information and REI DealMaster Confidential Information referred to hereinafter collectively as the “Confidential Information”). The party receiving the Confidential Information, including such party’s employees, officers, directors and agents (collectively, the “Receiving Party”) shall hold in confidence all Confidential Information and shall not disclose or distribute Confidential Information, or any portion thereof, in any form or format to any person except on a strict “need to know” basis for the purpose of performance of this Agreement, or as required by valid legal process.
Customer agrees it shall not copy, alter, decompile, disassemble, reverse engineer, or otherwise modify (except with REI DealMaster LLC’s prior written consent) or directly or indirectly disclose any REI DealMaster Confidential Information. Confidential Information under this Section 5 shall not include information that: (i) is or has become publicly available without restriction through no fault of the Receiving Party; or (ii) has been received without restriction from a third party lawfully in possession of such information.
ARTICLE VI. TERM & TERMINATION
6.1 Term. The term of this Agreement begins on the Date the Customer first accessed the REI DealMaster service and shall continue as long as the Customer has access to the REI DealMaster product(s), until terminated as provided for in this Section.
6.2 Termination without cause. Subject to the preceding sections, either party may terminate this
Agreement by providing thirty (30) days’ notice to the other party. Customer Cancellations can only be done by providing written notice to REI DealMaster LLC by sending an email to Sales@reidealmaster.com.
6.3 Fees, Return of Data. In the event of termination or expiration of this Agreement, all Fees due and payable to REI DealMaster LLC must be paid in full. At REI DealMaster LLC’s election, upon its receipt of all such Fees, or after notice of intent to terminate has been received by from the Customer by REI DealMaster LLC, REI DealMaster will make all company Data available for a period of thirty (30) days and then remove Customer from the platform.
ARTICLE VII. STANDARD MARKETING
7.1 Standard Marketing. REI DealMaster LLC reserves the right to use Customer name and credentials in a reasonable manner for standard marketing promotions including e-mail promotions. Reasonable marketing promotions include but are not limited to: Client listings, press releases, surveys, interviews, reputable business publications, television, radio and web site presentation and promotion etc. Please provide written instructions to sales@REI DealMaster.COM if you would like to be removed from any marketing or promotions from REI DealMaster LLC.
ARTICLE VIII. WARRANTIES/LIMITATION OF LIABILITY/INDEMNITY
8.1 Disclaimer of warranties. This agreement is an agreement for services. Notwithstanding the foregoing, REI DealMaster LLC specifically disclaims all warranties with regard to the REI DealMaster services, express or implied, including the warranties of merchantability, non-infringement, uninterrupted service and/or fitness for a particular purpose.
8.2 Limitation of Liability. REI DealMaster LLC shall not be liable to any other party for any special, incidental, punitive, or consequential damages, including, but not limited to loss or theft of data, confidential customer information, loss of business or other loss arising out of or resulting from this agreement, even if the other party has been advised of the possibility of such damages. The foregoing shall apply regardless of the negligence or other fault of the party and regardless of whether such liability sounds in contract, negligence, tort, strict liability or any other theory of legal liability. Notwithstanding the forgoing, in no event shall REI DealMaster LLC’s cumulative liability under this Agreement exceed the amount actually paid by Customer to REI DealMaster LLC in the immediately preceding three (3) month period.
8.3 Customer Warranty. Customer represents and warrants that it shall, at all times, comply with, and shall remain solely responsible for compliance with, all applicable Federal, State and Local laws and regulations. Customer shall indemnify and hold REI DealMaster LLC harmless from and against any and all damages, costs, losses, claims, causes of action and lawsuits and expenses, including reasonable
attorneys’ fees, relating to breach of the aforementioned representation and warranty. Customer represents and warrants that it shall fully comply with the REI DealMaster Acceptable Use Policy, which is incorporated herein as Article X.
8.4 Legal Documents and Forms. Customer understands and acknowledges that each real estate form and legal document created by using REI DealMaster must be reviewed by customer’s own attorney to verify its accuracy and validity. Customer understands and acknowledges that REI DealMaster LLC is not authorized to practice law and each jurisdiction has different legal and procedural requirements.
8.5 Smart Internet Marketing Systems. Customer understands and acknowledges that in the event that the customer chooses to implement the Smart Internet Marketing Systems (S.I.M.S.) in conjunction with REI DealMaster usage that each real estate form and each legal document created or inspired by using either REI DealMaster or Smart Internet Marketing Systems must be reviewed by Customer’s own attorney to verify its accuracy, applicability, and validity. Customer further acknowledges that REI DealMaster LLC is not authorized to practice law and that each jurisdiction in which Customer may be engaging in business activities may have differing and various legal and procedural requirements for real estate investing and/or private lending.
Furthermore, the Customer understands and acknowledges that local, state and Federal regulations apply to private lending activities; therefore, the Customer agrees to abide by and not remove, tamper with or alter the disclosures provided by REI DealMaster as part of the Smart Internet Marketing Systems.
8.6 Usage of Private Lending Materials. Customer agrees to make sure that all communications with any potential private lender will be in compliance with both federal and state regulations governing securities. The Customer acknowledges that it is against federal and state Securities and Exchange Commission laws to solicit funding or loans in an improper manner. Prior to using REI DealMaster to download various potential and private investor leads, the Customer agrees that they are solely and fully responsible for knowing the laws of their state as well as the federal securities laws. The customer acknowledges that it will hold REI DealMaster LLC as well as all of its officers, directors, members, employees, affiliates, resellers, consultants and legal counsel harmless of any potential liability or litigation that may result from the usage of Private Lending materials or in inappropriate private lending transactions.
8.7 Earnings & Income Disclaimers. ANY EARNINGS OR INCOME STATEMENTS, OR EARNINGS OR INCOME EXAMPLES, ARE ONLY ESTIMATES OF WHAT REI DEALMASTER LLC AND ITS AFFILIATES AND/OR LICENSORS THINK YOU COULD EARN. THERE IS NO ASSURANCE YOU'LL DO AS WELL. IF YOU RELY UPON REI DEALMASTER FIGURES, YOU MUST ACCEPT THE RISK OF NOT DOING AS WELL.
WHERE SPECIFIC INCOME FIGURES ARE USED, AND ATTRIBUTED TO AN INDIVIDUAL OR BUSINESS, THOSE PERSONS OR BUSINESSES HAVE EARNED THAT AMOUNT. THERE IS NO ASSURANCE YOU'LL DO AS WELL. IF YOU RELY UPON REI DEALMASTER FIGURES, YOU MUST ACCEPT THE RISK OF NOT DOING AS WELL.
ANY AND ALL CLAIMS OR REPRESENTATIONS, AS TO INCOME EARNINGS ON THE WEB SITE, ARE NOT TO BE CONSIDERED AS AVERAGE EARNINGS. TESTIMONIALS ARE NOT REPRESENTATIVE.
THERE CAN BE NO ASSURANCE THAT ANY PRIOR SUCCESSES, OR PAST RESULTS, AS TO INCOME EARNINGS, CAN BE USED AS AN INDICATION OF ANY CUSTOMER’S FUTURE SUCCESS OR RESULTS.
MONETARY AND INCOME RESULTS ARE BASED ON MANY FACTORS. REI DEALMASTER LLC ITS AFFILIATES AND/OR LICENSORS HAVE NO WAY OF KNOWING HOW WELL ANY CUSTOMER WILL DO, AS REI DEALMASTER LLC ITS AFFILIATES AND/OR LICENSORS DO NOT KNOW ANY INDIVIDUAL CUSTOMER, HIS/HER/ITS BACKGROUND, WORK ETHIC, OR BUSINESS SKILLS OR PRACTICES. THEREFORE, REI DEALMASTER LLC ITS AFFILIATES AND/OR LICENSORS DO NOT GUARANTEE OR IMPLY THAT ANY CUSTOMER WILL WIN ANY INCENTIVES OR PRIZES THAT MAY BE OFFERED, GET RICH, WILL DO AS WELL, OR MAKE ANY MONEY AT ALL. THERE IS NO ASSURANCE ANY CUSTOMER WILL DO AS WELL. IF THE CUSTOMER RELIES UPON REI DEALMASTER LLC ITS AFFILIATES AND/OR LICENSORS FIGURES, THE CUSTOMER MUST ACCEPT THE RISK OF NOT DOING AS WELL.
INTERNET BUSINESSES AND EARNINGS DERIVED THEREFROM HAVE UNKNOWN RISKS INVOLVED, AND ARE NOT SUITABLE FOR EVERYONE.
MAKING DECISIONS BASED ON ANY INFORMATION PRESENTED IN REI DEALMASTER PRODUCTS, SERVICES, OR WEB SITE, SHOULD BE DONE ONLY WITH THE KNOWLEDGE THAT THE CUSTOMER COULD EXPERIENCE SIGNIFICANT LOSSES, OR MAKE NO MONEY AT ALL. ONLY RISK CAPITAL SHOULD BE USED.
ALL PRODUCTS AND SERVICES BY REI DEALMASTER LLC ITS AFFILIATES AND/OR LICENSORS ARE FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY. USE CAUTION AND SEEK THE ADVICE OF QUALIFIED PROFESSIONALS. CHECK WITH YOUR ACCOUNTANT, LAWYER OR PROFESSIONAL ADVISOR, BEFORE ACTING ON THIS OR ANY INFORMATION.
USERS OF OUR PRODUCTS, SERVICES AND WEB SITE ARE ADVISED TO DO THEIR OWN DUE DILIGENCE WHEN IT COMES TO MAKING BUSINESS DECISIONS AND ALL INFORMATION, PRODUCTS, AND SERVICES THAT HAVE BEEN PROVIDED SHOULD BE INDEPENDENTLY VERIFIED BY YOUR OWN QUALIFIED PROFESSIONALS. REI DEALMASTER LLC ITS AFFILIATES AND/OR LICENSORS INFORMATION, PRODUCTS, AND SERVICES ON THE WEB SITE SHOULD BE CAREFULLY CONSIDERED AND EVALUATED, BEFORE REACHING A BUSINESS DECISION, ON WHETHER TO RELY ON THEM. ALL DISCLOSURES AND DISCLAIMERS MADE HEREIN OR ON THE REI DEALMASTER SITE, APPLY EQUALLY TO ANY OFFERS, PRIZES, OR INCENTIVES, THAT MAY BE MADE BY REI DEALMASTER LLC.
CUSTOMER AGREES THAT REI DEALMASTER LLC ITS AFFILIATES AND/OR LICENSORS IS/ARE NOT RESPONSIBLE FOR THE SUCCESS OR FAILURE OF CUSTOMER’S BUSINESS DECISIONS RELATING TO ANY INFORMATION PRESENTED BY REI DEALMASTER LLC AND/OR THE REI DEALMASTER PRODUCTS OR SERVICES.
ARTICLE IX. GENERAL PROVISIONS
9.1 Assignment of Agreement. Customer shall not assign its Rights or duties under this Agreement without the prior written consent of REI DealMaster LLC. This Agreement shall inure to the benefit of the authorized successors and assigns of the parties.
9.2 Independent Contractor. Customer is an independent contractor, and this Agreement does not in any way create the relationship of principal and agent, franchisee, joint venture, or partnership between the parties. Neither party shall be liable for any debts or obligations of the other.
9.3 Entire Agreement; Precedence. This Agreement contains the entire understanding between the parties and supersede any prior verbal or written agreement between the parties with respect to the subject matter hereof. No amendment or modification of the Agreement shall be valid, unless made in writing and signed (electronically or actually) by both parties hereto. In the event of any inconsistency or conflict between the terms and conditions of this Agreement and any term or condition of any Exhibit hereto, the terms and conditions of this Agreement shall, in all instances, govern and control.
9.4 Governing Law. This Agreement shall be governed by the laws of the State of Connecticut without giving effect to conflict of laws principles.
9.5 Arbitration. Any and all disputes, controversies and claims arising out of or relating to this Agreement or concerning the respective rights or obligations of the parties hereto shall be settled and determined by arbitration before a panel of one (1) arbitrator pursuant to the Commercial Rules of the American Arbitration Association then in effect. The foregoing notwithstanding, each party shall have no more than three (3) days to present its case to the arbitrator. Judgment upon the award rendered may be entered in any court having jurisdiction or application may be made to such court for a judicial acceptance of the award and an order of enforcement. The parties agree that the arbitrators shall have the power to award damages, injunctive relief and reasonable attorneys’ fees and expenses to any prevailing party in such arbitration.
9.6 Force Majeure. Neither party hereto shall be in default hereunder by reason of its delay or failure to perform any of its obligations hereunder for any event, circumstance, or cause beyond its control such as, but not limited to, acts of God, strikes, lock-outs, general governmental orders or restrictions, war, threat of war, hostilities, revolution, acts of terrorism, riots, epidemics, fire, earthquake, or flood. The performance of this Agreement shall then be suspended for as long as any such event shall prevent the affected party from performing its obligations under this Agreement.
9.7 Invalidity; Waivers. If any provision or portion of this Agreement is held invalid, illegal, void or unenforceable as it appears in this Agreement by reason of any rule of law, administrative or judicial provision or public policy, then such provision shall be construed as being enforceable to the extent such rule of law, administrative or judicial provision or public policy allows. All other provisions of this Agreement shall nevertheless remain in full force and effect. Neither of the parties shall be deemed to have waived any of its rights, powers or remedies hereunder unless the waiving party expresses such a waiver in writing. The parties to this Agreement hereby waive the application of the doctrine that this document will be construed against the drafter in the event of any dispute or allegation that more than one reasonable meaning exists.
9.8 Survival of Terms. Notwithstanding the expiration or earlier termination of this Agreement for any reason, the provisions of Articles 5, 8, 9 and Sections 2.2 and 2.3 of this Agreement shall remain in full force and effect.
9.9 Headings. Paragraph headings used herein are for convenience purposes only and are not intended to be, nor shall they be, used as an aid in interpretation.
ARTICLE X. ACCEPTABLE USE POLICY
10.1 Usage. All features and services provided by REI DealMaster Software may be used for lawful purposes only. Transmission or storage of any information, data or material in violation of any United States Federal, State or local law is strictly prohibited. Customer agrees to indemnify and hold harmless REI DealMaster LLC from any claims resulting from Customer’s prohibited or otherwise unacceptable use of the service which damages Customer or any other parties, including attorney’s fees.
REI DealMaster will not be liable for any interruptions in service or other monetary loss related to a violation of this Acceptable Use Policy.
10.2 Services Provided. REI DealMaster provides Customer with Web-based marketing automation, document preparation, real estate deal evaluator, customer contact and business management software. All services provided must be used by Customer in compliance with this Acceptable Use Policy.
10.3 Customer Obligations. Customer agrees to use the REI DealMaster services and particularly the marketing component in a manner that is legal, ethical and in conformity with community standards and to respect the privacy of others. More specifically, Customer agrees to abide by the REI DealMaster requirements governing the use of the various components of the REI DealMaster services, as described below.
10.3.1 E-Mail. REI DealMaster LLC strictly prohibits any involvement in Unsolicited Commercial E-mail campaigns (UCE, more commonly called “spam”). REI DealMaster LLC maintains a Zero Tolerance policy against spam, be it direct, indirect, or through any affiliate or agent acting on the Customer’s behalf. REI DealMaster LLC expects Customer to have proof that all individuals in the Customer’s database have opted in or otherwise agreed to receive communications from Customer. All lists used in conjunction with the services provided by REI DealMaster LLC are required to be 100% opt-in lists. This means that the individuals on the list have agreed to receive information from YOUR COMPANY.
10.3.2 Email Spamming. Spamming, or the sending of unsolicited email, using an email address, URL that is maintained on a REI DealMaster machine, or directing traffic to a webpage that contains any reference to REI DealMaster is STRICTLY prohibited. REI DealMaster will be the sole arbiter as to what constitutes a violation of this provision. This action may result in immediate termination of your account without a refund. Customer will also be in violation of the REI DealMaster End User License Agreement and may be subject to legal action.
10.3.3 CAN-SPAM Act. Customers must follow the rules of the federal CAN-SPAM act and REI DealMaster's Anti-Spam policy when sending e-mail through the service. Accordingly, REI DealMaster LLC requires the following of e-mail messages sent through the REI DealMaster system:
1. All e-mails must contain a one-click unsubscribe link.
2. All e-mails must contain non-Internet contact information of the sender, such as your company's address, or your company's phone number.
3. All e-mails must state the reason the recipient is receiving the message.
These 3 guidelines will help ensure that you maintain the REI DealMaster reputation and programs. If at any time your mail is flagged as SPAM by a recipient, REI DealMaster LLC reserves the right to cancel your account without notice.
10.3.4 Spoofing. It is unlawful for any person to initiate the transmission to a protected computer of a commercial electronic mail message that does not contain a functioning return electronic mail address or other Internet-based mechanism, clearly and conspicuously displayed, that (i) a recipient may use to submit, in a manner specified in the message, a reply electronic mail message or other form of Internet-based communication requesting not to receive future commercial electronic mail messages from that sender at the electronic mail address where the message was received; and (ii) remains capable of receiving such messages or communications for no less than 30 days after the transmission of the original message.
10.3.5 Purchasing email lists. The practice of purchasing or renting lists of names and sending emails to those people is strictly prohibited.
10.3.6 Email unsubscribe requests. You are responsible for monitoring, correcting and processing unsubscribe requests within ten (10) business days and updating the email addresses to which messages are sent through any REI DealMaster account.
10.3.7 Email Abuse. Emails that you send through the Services may generate abuse complaints from recipients. You are responsible for ensuring that your (Customer's) email campaigns do not generate a number of abuse complaints in excess of industry norms. REI DealMaster LLC, in its sole discretion, shall determine whether your level of abuse complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement.
10.3.8 Number of email messages. The number of permitted email messages per month is dependent upon your subscription plan. For information about your permitted email messages under your plan please contact Customer Service by phone at 888-851-4047 or through email at sales@REI DealMaster.com. Emails in excess of your subscription plan will result in extra charges to the Customer per REI DealMaster’s usage agreements. REI DealMaster, LLC reserves the right to reasonably limit the number of emails any user may send, and REI DealMaster, LLC reserves the right to change or cancel any of these features or conditions upon reasonable notice to the Customer.
10.4 Affiliates. Any and all of Customer’s affiliates are bound by the terms of this Acceptable Use Policy. Customer is responsible for ensuring that his or her affiliates are refraining from unsolicited communications involving the REI DealMaster services. Customer’s failure to ensure his or her affiliates’ compliance with this Acceptable Use Policy will be found in violation of the Policy and will be subject to the penalties stated in this Policy.
10.5 Privacy Policy. Customer must publish, enforce and abide by a privacy policy which protects its customers' personal information in its possession or under its control.
10.6 Selling information. Customer agrees that it will not sell, loan or in any way pledge or hypothecate the personal information of its customers to any other person or entity by way of joint venture or any other agreement.
10.7 Phone Calls, SMS or Text Messages, Voice Mail, Faxes. Customer will not use these services in connection with any unsolicited or harassing messages (commercial or otherwise) including but not limited to unsolicited or unwanted phone calls, SMS or text messages, voice mail, or faxes. Customer will not improperly engage in activity for which the United States Federal Communications Commission has restricted or regulated. Customer is responsible for all messages originated and sent via the application. Actions taken using Customer’s credentials shall be deemed to be actions taken by the Customer, with all consequences including service termination, civil and criminal penalties being borne by Customer.
10.8 Images and Videos. The Customer will only utilize licensed images/videos on the Customer’s Websites, Squeeze Pages and any other marketing collateral where the Customer has the ability to insert or substitute their own images/videos. The Customer is fully responsible for any potential Copyright infringement notices, fees, or penalties associated with utilizing unlicensed or under-licensed images/videos that the Customer supplies and indemnifies and holds harmless REI DealMaster LLC regarding the same.
10.9 Violations and Penalties. Customers who fail to comply with the terms of this Acceptable Use Policy will be subject to the following penalties, including, but not limited to, termination of service.
10.10 Complaints. A $50 administration fee will be immediately charged to Customer’s account for each complaint of spam or unauthorized communication that REI DealMaster LLC receives involving Customer’s account. This non-refundable administration fee goes toward disputing the complaint with the complainant, the reporting service or “blacklist” service, and resolving the complaint.
10.11 Notice of Complaints. Upon receiving a complaint, REI DealMaster LLC will notify Customer of said complaint and investigate the validity of the complaint. If Customer does not take immediate remedial action to rectify the situation, REI DealMaster LLC may temporarily suspend Customer’s service until Customer has resolved the situation to REI DealMaster LLC’s satisfaction.
10.12 Disputing Complaints. After REI DealMaster LLC notifies Customer of a complaint involving his or her account, Customer will have the burden of proof to demonstrate to REI DealMaster LLC that the complaining individual did, in fact, agree to receive communications from Customer. If Customer cannot demonstrate to REI DealMaster LLC that the complaining individual agreed to receive communications from Customer, the complaint will be deemed a “Confirmed Violation” of this Acceptable Use Policy.
10.13 Confirmed Violations. A $250 administration fee will apply and termination of service may apply in the event that REI DealMaster LLC conclusively determines that Customer unsolicited communications to a recipient who did not agree to receive communications from Customer.
10.14 Blatant, Widespread and/or Repeated Violations. In accordance with its Zero Tolerance Spam Policy, REI DealMaster LLC will immediately terminate the account of any Customer found to be involved in a spam campaign and/or other widespread or repeated violation of this Acceptable Use Policy. Furthermore, such Customer will incur a $500 penalty and all information contained in Customer’s account will be forfeited, with no consideration of retrieval. Customer will be held accountable for any monetary damages suffered by REI DealMaster LLC, sustained through contravention of this Policy. Such monetary damages may include, but are not limited to, loss of REI DealMaster access, any costs incurred securing further REI DealMaster access and punitive damages related to lost clients and revenues due to said violation. The determination of what constitutes a “blatant, widespread and/or repeated violation” of this policy will be determined by REI DealMaster LLC in a reasonable manner.
ARTICLE XI. RESERVATION OF RIGHTS
11.1 Reservation of Rights. REI DealMaster LLC reserves the right to terminate the Customer’s account for any violation of the Acceptable Use Policy (Section 10).
11.2 Questionable Practices. REI DealMaster LLC may terminate Customer’s account if Customer engages in any practice that is, in REI DealMaster LLC’s sole discretion, unlawful, obscene, threatening, abusive, libelous or hateful, or that encourages conduct which would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law.
11.3 Change of Terms and Conditions. REI DealMaster LLC reserves the right to change the terms and conditions of this Policy, as needed. Use of REI DealMaster LLC’s services by Customer after said changes constitutes Customer’s acceptance of the new Policy.
REI DealMaster LLC reserves the right to change these Terms of Service or to impose new conditions on the use of the Site, from time to time, in which case it will post the revised Terms of Service on this website. By continuing to use the Site after REI DealMaster LLC posts any such changes, you accept the Terms of Service, as modified.
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