This ASSOCIATE MEMBER AGREEMENT, including the Application for Membership previously completed by the Associate Member, (the “Agreement”) is made and entered into and is effective as of the date the Associate Member completes the click through agreement to this Agreement which is between Multiple Listing Service of Hilton Head Island, Inc., hereinafter referred to as “HHIMLS”, having its principal offices at P.O. Box, 5134, 18 Bow Circle, Hilton Head Island, South Carolina 29938, and the Associate Member clicking the “I Agree” button who is an individual associated licensee, as that term is defined in South Carolina Code § 40-57-30(1) (2005) or any recodification thereof, or an Appraiser who is associated with a Full Member, having its offices at the address as previously provided to HHIMLS, as may be changed from time to time, hereinafter referred to as “Associate Member”, and is made with reference to the following facts and circumstances:
1. RECITALS.
1.1 HHIMLS is a multiple listing service company as it is defined in its Rules and Regulations.
1.2 HHIMLS collects, primarily from real estate professionals, through its computer technology and systems certain information including, but not limited to all data, photographs, images, graphics, video recordings, virtual tours, drawings, written descriptions, remarks, narratives and pricing information about real properties in the counties of Beaufort, Jasper, Allendale, Bamberg, Barnwell, Colleton, Hampton and Orangeburg in the State of South Carolina and then aggregates and compiles the Listing Content and displays, maintains and distributes the HHIMLS Content, principally to and for the benefit of those same real estate professionals together with other products and services which facilitate the business of Associate Member. The HHIMLS Content as defined below includes data relating to boat slips, equities, shares, commercial, multi-family and residential properties listed for sale or rent, those that have been sold, those where the listing may have been withdrawn or may not have closed and includes unimproved and vacant properties.
1.3 Associate Member is a certified Appraiser with a Full Member or is a licensed real estate associate affiliated with a Broker-In Charge of a Full Member who has access to the HHIMLS System, HHIMLS Services and HHIMLS Content as a direct result of Full Member’s participation in HHIMLS pursuant to the HHIMLS Full Member Agreement.
1.4 The parties desire to enter this Agreement which, in addition to the HHIMLS Rules and HHIMLS Compliance Guidelines, will govern the use of the Listing Content, the HHIMLS Content, the HHIMLS System and the HHIMLS Services by the Associate Member.
NOW, THEREFORE, in consideration of the Recitals, and the mutual promises and covenants contained herein and intending to be legally bound, each of parties agrees as follows:
2. DEFINITIONS
Capitalized terms in this Agreement shall have the meanings set forth opposite each, respectively, as follows:
2.1 Affiliate Member(s)” means any member of HHIMLS that is engaged in banking, mortgage lending, mortgage brokering and similarly related fields.
2.2 “Application(s) for Membership” means the forms created by HHIMLS for Real Estate Brokerage and Appraisal Firm Full Member, real estate and Appraiser licensee Associate Members and those engaged in other fields who are designated Affiliate Members.
2.3 “Appraiser” means any person who is licensed under Title 40 Chapter 60 of the South Carolina Revised Statutes or any future recodification thereof and legally can perform real estate appraisal.
2.4 “Appraisal Firm” means an entity which pools resources in one or more facilities with Appraisers who work under that entity’s name for the purpose of appraising real property.
2.5 “Associate Member(s)” means a member of HHIMLS who is an associated licensee, as that term is defined in South Carolina Code §40-57-30(1) (2005) or any recodification thereof, and who is associated with a Full Member or a Broker-In-Charge of a Full Member or is a certified Appraiser who is licensed by the South Carolina Appraisers Board who is associated with an Appraisal Firm and who has executed an Associate Member Agreement.
2.6 “Board of Trustees” or “BOT” means the group of individuals elected by the Full Members in accordance with the HHIMLS By-Laws, which group sets policy, rules, general business procedures and has the fiduciary responsibility of the operation of HHIMLS.
2.7 “Broker-In-Charge” or “BIC” means the term as defined in South Carolina Code §40-57-30(4) (2005) or any recodification thereof as any licensed real estate broker who is designated as having responsibility over the actions of its associated licensees and is affiliated with a Full Member.
2.8 “Business Day” means Monday through Friday except for HHIMLS holidays as follows: New Years Day, Good Friday, Memorial Day, Independence Day, Labor Day, Thanksgiving and the day after Thanksgiving, Christmas Eve Day and Christmas Day.
2.9 “Compilation” means all data, photographs, images, graphics, video recordings, virtual tours, drawings, written descriptions, remarks, narratives and pricing information about real properties in the counties of Beaufort, Jasper, Allendale, Bamberg, Barnwell, Colleton, Hampton and Orangeburg in the State of South Carolina which are aggregated and compiled, displayed, maintained and disseminated and includes data relating to commercial, business opportunities, boat slips, equities, shares, and residential properties listed for sale, lease or rent, those that have been sold, and those with respect to which the sale has been cancelled or has not closed, and includes unimproved and vacant properties, in any format, including but not limited to, computer database or any other format whatsoever.
2.10 “Compliance Guidelines” means a document created by HHIMLS which specifically contains the guidelines for compliance with these Rules and Regulations and sets forth the processing and correction fees for violations of these Rules and Regulations.
2.11 “Designated Person” or “DP” means the person appointed by the Real Estate Brokerage or Appraisal Firm, in writing on file with HHIMLS, to attend all Full Member meetings in the absence of the Broker-In-Charge or Head Appraiser.
2.12 “Full Member(s)” means any Real Estate Brokerage Firm that is a member of HHIMLS, has separately issued South Carolina REB office code number, has a Broker-In-Charge and holds an Ownership Interest in HHIMLS or an Appraisal Firm that is a member of HHIMLS, has a separately issued South Carolina Appraisal Board Code, has a Head Appraiser and holds an Ownership Interest in HHIMLS..
2.12 “HHIMLS Compliance Guidelines” means the guidelines established and adopted by the Board of Trustees of HHIMLS, as may be amended from time to time, to guide HHIMLS members in their compliance with the HHIMLS Rules and Regulations.
2.13 “Head Appraiser(s)” means a licensed Appraiser who is designated as having responsibility over the actions of its associated Appraisers and is affiliated with a Full Member
2.14 “HHIMLS Content” means the aggregation and the Compilation of Listing Content.
2.15 “HHIMLS Services” means other products and services which facilitate the business of Members.
2.16 “HHIMLS System” means its computers technology and software and hardware system that support the technology, the HHIMLS Content and HHIMLS Services.
2.17 “Listing Content” means all data, photographs, images, graphics, video recordings, virtual tours, drawings, written descriptions, remarks, narratives and pricing information about real properties in the counties of Beaufort, Jasper, Allendale, Bamberg, Barnwell, Colleton, Hampton and Orangeburg in the State of South Carolina.
2.18 “Members” means, individually or collectively, Full Members and Associate Members who hold current valid real estate licenses in the State of South Carolina and are capable of offering and accepting compensation to and from other Members or have the ability to receive referral fees and those who are registered and licensed by the appropriate state regulatory agency in the State of South Carolina to engage in the appraisal of real property.
2.19 “Non-Licensed Sales Assistant” means a person employed by or under contract with and authorized by a Broker-In-Charge to access the HHIMLS System and enter properties for sale through the listing input screen for the Full Member, The Non-Licensed Sales Assistant is registered with HHIMLS, does not hold an active South Carolina real estate license and does not pay fees or charges to HHIMLS.
2.20 “Ownership Interest” means all the rights, benefits and privileges of HHIMLS as well as the obligations of HHIMLS in compliance with the HHIMLS By-Laws and the HHIMLS Rules for Full Members.
2.21 “Real Estate Brokerage” or “REB” means an entity with a separate South Carolina real estate license identification and REB office code for the purpose of brokering the sale of properties in the state of South Carolina and that has a Broker-In-Charge and is the financially responsible party to HHIMLS.
2.22 “Registered Person” means the person chosen by the BIC or Head Appraiser and identified on the application form for HHIMLS Services as the person who assumes all responsibilities of the Broker-In-Charge or Head Appraiser in the event the Broker-In-Charge or Head Appraiser has left a Full Member REB or Appraisal Firm or fails to fulfill its duties, including financial, as required by Full Membership in HHIMLS. If the Registered Person is licensed to sell real estate in the State of South Carolina or is licensed by the State of South Carolina to appraise real estate, the Registered Person is the person responsible if the BIC or Head Appraiser was not performing its responsibilities required by HHIMLS of a Full Member. If the Registered Person is not licensed in the State of South Carolina, the Registered Person is the person authorized by the Full Member REB or Appraisal Firm to appoint a new BIC or Head Appraiser for the Full Member REB or Appraisal Firm.
2.23 “Rules” means the Rules and Regulations of HHIMLS which may be amended by HHIMLS from time to time.
2.24 “Staff” means non-licensed employees of a Full Member.
3. GRANT OF ACCESS.
Subject to the provisions, terms and conditions of this Agreement and the HHIMLS Rules and HHIMLS Compliance Guidelines, HHIMLS hereby grants to Associate Member during the Term a limited, non-exclusive, non-transferable license to access the HHIMLS System, the HHIMLS Services and the HHIMLS Content for the purpose of adding, editing, reviewing, researching and retrieving the HHIMLS Content and using the HHIMLS System and the HHIMLS Services to conduct the Associate Member’s real estate or appraisal business.
4. METHOD OF ACCESS TO HHIMLS.
Associate Member shall access the HHIMLS System, HHIMLS Content, and the HHIMLS Services through various types of electronic communications furnished to Associate Member by HHIMLS and/or third-party vendors, upon the terms and conditions required by HHIMLS and the third party vendor. Associate Member understands and agrees that it must execute a separate agreement with HHIMLS and its website developer for authority to display HHIMLS Content on the Internet.
5. SUBMISSION OF FULL MEMBER’S LISTING CONTENT.
5.1 Grant of Rights to HHIMLS. Associate Member, as the acquirer and provider of Listing Content relating to real estate properties for sale, including Associate Member’s personal listing agent information, remarks, virtual tours, videos and photographs, hereby grants to its Broker-In-Charge of its Full Member and to HHIMLS, a perpetual, worldwide, royalty-free license to use, display and copyright all Listing Content entered by Associate Member into the HHIMLS System and to reproduce, use, distribute, display and grant access to the HHIMLS Content through the HHIMLS System and HHIMLS Services electronically and in such other form or in such other manner and to such third parties as HHIMLS deems appropriate.
5.2 Submitted Information. Associate Member hereby warrants, that it will have a valid listing agreement prior to submitting any Listing Content to HHIMLS and warrants that Associate Member, buyers, sellers, photographers and all applicable third parties have assigned to Full Member all right, title and interest including all copyright rights and other intellectual property rights in and to all Listing Content submitted to HHIMLS through the HHIMLS System. Associate Member agrees Listing Content shall be submitted in the form and format and according to the procedures set forth in the HHIMLS Rules and in accordance with the HHIMLS Compliance Guidelines and shall use reasonable care to ensure the accuracy and completeness of such submitted Listing Content and shall be responsible for correcting and updating all submitted information in accordance with the HHIMLS Rules and HHIMLS Compliance Guidelines.
5.3 Copyright. HHIMLS may edit, manipulate and/or compile the Listing Content and tangible or intangible property items provided by the Associate Member without Associate Member’s permission in accordance with the HHIMLS Rules and HHIMLS Compliance Guidelines. The Associate Member acknowledges that the manipulation or compilation being performed by HHIMLS will result in a database containing various Compilations of real estate data which are copyrightable material. By the act of submitting any Listing Content to HHIMLS, the Associate Member hereby assigns its right, title and interest to copyright the Listing Content in the Compilation to Full Member and HHIMLS and consents to the use of its contributions in such copyrighted material including the bringing of all actions and causes of action and warrants it will not challenge, interfere with or violate such copyright and warrants that it will not seek compensation therefor.
5.4 Internet Display And Other Third Party Use. HHIMLS may use, or may arrange for third parties to use, the HHIMLS Content in products and services including, but not limited to, reference materials, books, brochures, flyers, electronic transmissions, advertisements, Internet or other computer network displays, on-line data, computer programming, and software, regardless of the form, whether printed, electronic, digital, magnetic media, or otherwise. By the act of submitting any Listing Content to HHIMLS, the Associate Member hereby assigns its right, title and interest to allow Internet display and other third party use of the Listing Content in the Compilation of HHIMLS and consents to such uses and warrants that it will not challenge, interfere with or violate such uses and warrants that it will not seek compensation therefor.
6. CONDITIONS, PROHIBITIONS AND LIMITATIONS ON ACCESS.
6.1 Compliance with Rules and Notification of Changes. Associate Member understands and acknowledges that the Rules, Bylaws, Internet Display Rules and Compliance Guidelines are available online and certifies it has read a copy of the documents and agrees to comply with the HHIMLS Rules, Bylaws, Internet Data Display Rules and HHIMLS Compliance Guidelines as may be amended from time to time. Associate Member agrees to submit disputes, if Associate Member is a non-Realtor®, to HHIMLS and, if Associate Member is a Realtor®, to its appropriate Realtor® Association.
6.2 Use Prohibitions. Associate Member agrees that it will not reproduce, redistribute, publish, display, retransmit, broadcast, electronically manipulate, sell, license, rent, transmit, or in any manner commercially exploit or allow anyone else to reproduce, redistribute, publish, display, retransmit, broadcast, electronically manipulate, sell, license, rent, transmit or in any manner commercially exploit the HHIMLS Content or any portion thereof in any format to anyone for any purpose other than the selling, listing or appraising of real estate. Under no circumstances shall Associate Member receive any form of compensation for the HHIMLS Content or for unauthorized access to the HHIMLS Content from any third party for any reason. Associate Member acknowledges that the HHIMLS Content is confidential and its use is restricted to Associate Member.
6.3 Certain Data Subject To Consent Withdrawal. Associate Member acknowledges that certain of the HHIMLS Content available through the HHIMLS System are subject to the continued consent of supplying third parties. If at any time any supplying third party’s consent is withdrawn, all information supplied by such party shall be removed from the HHIMLS Content.
6.4 Consumer Privacy and Information Security. Associate Member agrees to comply with all applicable consumer privacy and information security laws. In the event of a breach of Associate Member’s computer network or computerized systems, containing HHIMLS Content, by unauthorized persons or in the event of a loss of Associate Member’s laptop which may contain personally identifiable information or HHIMLS Content, Associate Member agrees to notify HHIMLS within twenty-four (24) hours of discovery of such event. Associate Member agrees to use commercially reasonable security measures to protect the HHIMLS Content. 7. Set Up Costs.
Associate Member is responsible for obtaining and maintaining in proper working order all personal computers, Internet connections, and computer software that may be necessary or useful for accessing and using the HHIMLS Content, the HHIMLS System and the HHIMLS Services and for the proper use thereof. Associate Member shall not be entitled to refund of any fees under any circumstances for any hardware, software or Internet connection that is unable to access the HHIMLS System or the HHIMLS Services.
8. PROPRIETARY RIGHTS.
Associate Member acknowledges that the HHIMLS Content, the HHIMLS System and the HHIMLS Services are valuable commercial products, the development of which has involved the expenditure of substantial time and money, that the HHIMLS Content may include textual, statistical, financial, photographic, video and audio components which are proprietary information of HHIMLS under copyright, and have been furnished to Associate Member in trust. All rights, title and interest in the HHIMLS Content, the HHIMLS System and the HHIMLS Services, including the ownership of the copyright therein, shall at all times remain vested in HHIMLS. Except for the rights granted Associate Member herein, Associate Member agrees and understands that HHIMLS shall remain the exclusive owner of all rights, title, and interest in the HHIMLS Content, the HHIMLS System and the HHIMLS Services licensed hereunder and all copyrights and renewals thereof, heretofore and hereafter secured therein. All publication, dissemination and other rights in and to the HHIMLS Content, the HHIMLS System and the HHIMLS Services licensed hereunder are reserved for HHIMLS in all languages, formats and media throughout the world for the sole and exclusive use or any other disposition by HHIMLS, its respective assignees or grantees at any time and from time to time without obligation or liability to Associate Member.
9. IDENTIFICATION NUMBERS.
9.1 User ID and Password. HHIMLS shall provide Associate Member a user identification and password to participate in and access the HHIMLS Content, the HHIMLS System and the HHIMLS Services. Each token, user ID and password shall be personal to the individual and may not be used by any other person. The Associate Member shall be responsible for the security and safe keeping of its token, if applicable, and its password.
9.2 Secure Computing. HHIMLS reserves the right to establish additional security measures and establish practices and procedures to safeguard the HHIMLS Content, the HHIMLS System and the HHIMLS Services and Associate Member agrees to abide by such security measures and procedures to safeguard the HHIMLS Content, the HHIMLS System and the HHIMLS Services.
9.3 Confidentiality. Associate Member shall treat the access identification as private, confidential and personal and shall safeguard and maintain its confidentiality. Use by any other person or entity shall be considered as theft. Associate Member shall be liable for any consequences that may result from unauthorized disclosure of Associate Member’s access identification, whether intentional, negligent or inadvertent, including but not limited to immediate termination of this Agreement and liability for liquidated damages. Associate Member acknowledges that HHIMLS may seed the HHIMLS Content and watermark digital photographs, virtual tours, videos or other media and undertake monitoring on a regular random basis such that violations of the security of Associate Member’s access identification will be detected. This obligation to maintain confidentiality shall survive the termination of this Agreement.
10. HHIMLS USE OF ASSOCIATE MEMBER INFORMATION.
HHIMLS reserves the right to distribute to prospective Associate Members and other third parties certain non-confidential information concerning Associate Member. In addition, HHIMLS may collect and compile information regarding frequency of use of, or specific uses, of the HHIMLS Content, the HHIMLS System and the HHIMLS Services by all users, including Associate Member.
11. TERM AND TERMINATION.
11.1 Term. The term of this Agreement shall be one (1) year commencing upon the date Associate Member executes this Agreement on the signature page hereof and shall automatically extend for additional one (1) year terms unless sooner terminated in accordance with Section 11.1 or 11.2.1, or upon cancellation by either party upon twenty four (24) hours written notice to the other party.
11.2 Termination. This Agreement and the rights granted hereunder may be terminated by either party in the event that the other party has not performed any material obligation or has otherwise breached any material term of this Agreement. HHIMLS may immediately terminate this Agreement in the event Associate Member is no longer licensed to practice real estate in the State of South Carolina.
11.2.1 Promptly upon any termination of this Agreement, HHIMLS shall deactivate Associate Member’s access identification numbers, and Associate Member shall have no further access to the HHIMLS System, the HHIMLS Content or the HHIMLS Services. Associate Member acknowledges that HHIMLS shall have no obligation to refund any fees or charges or any portion thereof paid to HHIMLS prior to termination.
12. HHIMLS SERVICE MARKS AND LOGOS.
Associate Member shall have the right, during the term of this Agreement, to use the HHIMLS trade name and logo for the HHIMLS Services as available, in advertising, promotion and marketing materials solely for the purpose of announcing Associate Member’s use of the HHIMLS Services to prospective customers. Associate Member may re-publish any description of the HHIMLS Services which have been published by HHIMLS, provided the description is re-published on a verbatim basis, but shall not, under any circumstances, make any unauthorized representations or warranties regarding the HHIMLS Services or any HHIMLS Content.
13. WARRANTY DISCLAIMER.
ASSOCIATE MEMBER EXPRESSLY AGREES THAT THE HHIMLS SERVICES, THE HHIMLS SYSTEM AND THE HHIMLS CONTENT ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, AND THAT USE OF THE HHIMLS SYSTEM, HHIMLS SERVICES AND THE HHIMLS CONTENT ARE AT THE SOLE RISK OF ASSOCIATE MEMBER. HHIMLS DOES NOT WARRANT THAT THE HHIMLS SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, AND HHIMLS MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY HHIMLS CONTENT AVAILABLE THROUGH THE HHIMLS SYSTEM AND THE HHIMLS SERVICES. HHIMLS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. HHIMLS DOES NOT WARRANT THAT THE HHIMLS CONTENT IS ERROR-FREE, NOR THAT IT WILL MEET ASSOCIATE MEMBER’S REQUIREMENTS, NOR THAT ANY ELECTRONIC TRANSMISSION THEREOF WILL OPERATE IN AN ERROR-FREE MANNER. 14. LIMITATION OF LIABILITY.
14.1 Limitations and Exclusions. Neither HHIMLS nor any of its officers, directors, employees, shareholders, agents, or representatives shall be liable to Associate Member or anyone else for any direct, indirect, incidental, special, or consequential damages that result from the use of, or inability to use, The HHIMLS Content, the HHIMLS System and/or the HHIMLS Services, including but not limited to, reliance by any Associate Member or authorized user on the HHIMLS Content or other information obtained through use of the HHIMLS System or the HHIMLS Services or that result from mistakes, omissions, deletions or delays in transmission, interruptions in telecommunications or Internet connections to the HHIMLS System and the HHIMLS Services, viruses or failures of performance, whether caused in whole or in part by negligence, acts of god, telecommunications or Internet failure, theft or destruction of, or unauthorized access to the HHIMLS Content, the HHIMLS System and/or the HHIMLS Services or related information, records or programs.
14.2 Maximum Aggregate Liability. In no event shall any liability of HHIMLS, its officers, trustees, employees, those with an Ownership Interest, agents, or representatives arising out of any claim related to this Agreement exceed the aggregate amount paid by Associate Member hereunder in the twelve (12) months immediately preceding the event giving rise to such claim.
15. LIQUIDATED DAMAGES.
Associate Member acknowledges that damages suffered by HHIMLS from access to or use of the HHIMLS Content, the HHIMLS System or the HHIMLS Services by an unauthorized third party as a result of disclosure of Associate Member’s access identification information would be speculative and difficult to quantify. Accordingly, as a material inducement to HHIMLS to enter into this Agreement with Associate Member, Associate Member agrees that in the event that any disclosure of Associate Member’s access identification information, results in access to or use of the HHIMLS Content, the HHIMLS System or the HHIMLS Services by or for an unauthorized third party, regardless of whether such disclosure is intentional, negligent or inadvertent, Associate Member shall be liable to HHIMLS, at HHIMLS’s option, for liquidated damages in an amount not to exceed Five Hundred Thousand Dollars ($500,000.00).
16. ASSOCIATE MEMBER AUTHORIZATION TO ENTER THIS AGREEMENT.
Associate Member represents and warrants it is a duly licensed real estate professional in the state of South Carolina and a licensee of an HHIMLS Full Member as listed on the signature page of this Agreement, as may be changed from time to time upon notice to HHIMLS.
17. INDEMNIFICATION BY ASSOCIATE MEMBER.
Associate Member shall protect, defend, indemnify and hold harmless HHIMLS and its officers, trustees, employees, those with an Ownership Interest, agents, or representatives from any and all liability, damages, loss or expense, including reasonable fees of attorneys and other professionals, arising from any claim, demand, action or proceeding initiated by any third party against any of them based upon the negligent, intentional or illegal acts of Associate Member, including but not limited to: (a) inaccuracy of any Listing Content supplied to HHIMLS by Associate Member, (b) any unauthorized use of Associate Member’s access identification number, (c) any unauthorized use of the HHIMLS Content, or (d) infringement of any proprietary or contract right of any third party as a result of the availability of the HHIMLS Content through the HHIMLS System and the HHIMLS Services. Associate Member shall assist HHIMLS, at Associate Member’s expense, in the defense or settlement of any claim to which these indemnification obligations apply. These indemnification provisions shall survive the termination of the Associate Member's participation in HHIMLS and the termination of this Associate Member Agreement.
18. INJUNCTIVE REMEDIES.
Associate Member acknowledges and agrees that the HHIMLS System, the HHIMLS Services and HHIMLS Content are confidential and proprietary products and that in the event there is an unauthorized disclosure of such by Associate Member, no remedy at law may be adequate. Therefore, Associate Member agrees that in the event of such unauthorized disclosure or use of the HHIMLS System, the HHIMLS Services or HHIMLS Content, HHIMLS may seek injunctive relief or other equitable remedies against Associate Member in addition to all available remedies at law.
19. LEGAL FEES AND COSTS.
In the event legal action is taken against Associate Member or HHIMLS, and HHIMLS prevails in obtaining equitable relief or monetary damages, Associate Member will be obligated to reimburse HHIMLS for the reasonable attorneys’ fees, costs and expenses it incurred in pursuing such legal action. Associate Member will also be responsible for any legal fees and costs incurred by HHIMLS in enforcing any order or collecting a judgment.
20. MISCELLANEOUS.
Associate Member agrees and acknowledges that HHIMLS may change the terms of this Agreement as the result of any amendments to the HHIMLS Rules or HHIMLS Compliance Guidelines. This Agreement contains the entire understanding of the parties and supersedes all previous oral and written agreements on the subject hereof. This Agreement may not be assigned by Associate Member without the prior written consent of HHIMLS. This Agreement shall be governed by, and construed in accordance with, the laws of the State of South Carolina.
21. DIGITAL SIGNATURE PROVISION.
Associate Member represents and warrants that they have the legal right, power and authority to agree to the terms of this Agreement. You agree that your use of the HHIMLS Content, HHIMLS System and HHIMLS Services and clicking “I Agree” below constitutes an electronic signature of this Agreement as defined by the Electronic Signatures in Global and National Commerce Act ("E-Sign") and the Uniform Electronic Transactions Act ("UETA") and that you have formed, executed, entered into, accepted the terms of and otherwise authenticated this Agreement and acknowledged and agreed that this Agreement is an electronic record for purposes of E-Sign, UETA and the Uniform Computer Information Transactions Act and as such is completely valid, has legal effect, is enforceable, and is binding on, and non-refutable by you.
SAFEMLS ENROLLMENT AGREEMENT
This is a binding agreement (The "Agreement") between Hilton Head Multiple Listing Service, Inc. (“HHIMLS”) and You ("You" as a " Member" of HHIMLS). You may not use the HHIMLS System, HHIMLS Services or HHIMLS Compilation unless you read, understand, and agree to these Terms and Conditions of Use.
You are a Member, authorized to use this site. To the extent there is another agreement between You and HHIMLS, this is a supplemental agreement and should be construed so as not to conflict with the terms of other agreements or the Rules and Regulations between You and HHIMLS. If You are an Associate Member and are affiliated with HHIMLS Full Member, You are permitted access to these services and the HHIMLS Compilation only by virtue of your affiliation with an HHIMLS Full Member and your assent to the terms of this Agreement.
1. HHIMLS's obligations. In consideration of Your payment of fees (or payment of them on Your behalf by the MLS Full Member) and compliance with its Rules and Regulations and its Compliance Guidelines (the "HHIMLS Rules"), HHIMLS makes the HHIMLS System, HHIMLS Services and the HHIMLS Compilation available on or through its web site and any other delivery medium available to You and licenses it to You, subject at all times to the terms and conditions of this Agreement.
2. Your obligations and acknowledgements. Use limited. You may use the HHIMLS Compilation available on the HHIMLS site solely for the purpose of selling, listing, leasing, and appraising real estate. Your license to use the HHIMLS Compilation is immediately revoked, without notice from HHIMLS, in the event that You (i) use the HHIMLS Compilation for any purpose other than the one set forth in the first sentence of this Section 2(a); (ii) violate the HHIMLS Rules; (iii) disclose any of the HHIMLS Compilation available on the HHIMLS Service to any third party without the prior written authorization of HHIMLS; or (iv) disclose Your user ID or password to any third party for any purpose whatsoever.. Permitted disclosures. The foregoing section notwithstanding, You may, during the term of this Agreement (i) disclose the information obtained from the HHIMLS Compilation to consumers for their non-commercial use to the extent permitted by the HHIMLS Rules; and (ii) disclose your contributions to any party for any purpose approved by Your HHIMLS Full Member, if you are an Associate Member.. (e) Confidentiality. You shall maintain the confidentiality of your HHIMLS ID and password. The HHIMLS ID is provided exclusively for Your personal use and may not be shared with or used by any other person not authorized by the HHIMLS Rules and the MLS Policies and Procedures.
3. Lost ,Broken, or Stolen tokens Replacement cost of lost, broken, or stolen tokens is $35.00 Reactivation fee for a “lost Token”is $10.00 4. Term and termination. Term and termination. This Agreement shall continue until (i) As an HHIMLS Associate Member, You cease to be affiliated with HHIMLS Full Member; (ii) As an HHIMLS Full Member, You cease to have a valid and active membership agreement with HHIMLS. Events upon termination. Promptly upon any termination or expiration of this Agreement, (i)HHIMLS shall deactivate Your user ID and Password, and You shall have no further access to the HHIMLS Service.
Return all HHIMLS equipment including SafeMLS token. Tokens not immediately returned will be billed to the Full Member at the rate of $35.00 each.
This FULL MEMBER AGREEMENT, including the Application for Membership previously completed by the Full Member, (the “Agreement”) is made and entered into and is effective as of the date the Full Member clicks agreement to the terms and conditions of this Agreement by and between Multiple Listing Service of Hilton Head Island, Inc., hereinafter referred to as “HHIMLS”, having its principal offices at P.O. Box, 5134, 18 Bow Circle, Hilton Head Island, South Carolina 29938, and the Broker-In-Charge and Real Estate Brokerage Firm or Head Appraiser and the Appraisal Firm, Full Member of HHIMLS, who are jointly hereinafter referred to as “Full Member”, and is made with reference to the following facts and circumstances:
1. RECITALS.
1.1 HHIMLS is a multiple listing service company as it is defined in its Rules and Regulations.
1.2 HHIMLS collects, primarily from real estate professionals, through its computer technology and systems certain information including, but not limited to all data, photographs, images, graphics, video recordings, virtual tours, drawings, written descriptions, remarks, narratives and pricing information about real properties in the counties of Beaufort, Jasper, Allendale, Bamberg, Barnwell, Colleton, Hampton and Orangeburg in the State of South Carolina and then aggregates and compiles the Listing Content and displays, maintains and distributes the HHIMLS Content, principally to and for the benefit of those same real estate professionals together with other products and services which facilitate the business of Full Member. The HHIMLS Content as defined below includes data relating to boat slips, equities, shares, commercial, multi-family and residential properties listed for sale or rent, those that have been sold, those where the listing may have been withdrawn or may not have closed and includes unimproved and vacant properties.
1.3 The parties desire to enter this Agreement which, in addition to the HHIMLS Rules and HHIMLS Compliance Guidelines, will govern the use of the Listing Content, the HHIMLS Content, the HHIMLS System and the HHIMLS Services by the Full Member and its Associate Members and those in its employ.
NOW, THEREFORE, in consideration of the Recitals, and the mutual promises and covenants contained herein and intending to be legally bound, each of parties agrees as follows:
2. DEFINITIONS
Capitalized terms in this Agreement shall have the meanings set forth opposite each, respectively, as follows:
2.1 Affiliate Member(s)” means any member of HHIMLS that is engaged in banking, mortgage lending, mortgage brokering and similarly related fields.
2.2 “Application(s) for Membership” means the forms created by HHIMLS for Real Estate Brokerage Full Members, Associate Members and those engaged in other fields who are designated Affiliate Members.
2.3 “Appraiser” means any person who is licensed under Title 40 Chapter 60 of the South Carolina Revised Statutes or any future recodification thereof and legally can perform real estate appraisal.
2.4 “Appraisal Firm” means an entity which pools resources in one or more facilities with Appraisers who work under that entity’s name for the purpose of appraising real property.
2.5 “Associate Member(s)” means a member of HHIMLS who is an associated licensee, as that term is defined in South Carolina Code §40-57-30(1) (2005) or any recodification thereof, and who associated with a Full Member or a Broker-In-Charge of a Full Member or is a certified Appraiser who is licensed by the South Carolina Appraisers Board who is associated with an Appraisal Firm and who has executed an Associate Member Agreement.
2.6 “Board of Trustees” or “BOT” means the group of individuals elected by the Full Members in accordance with the HHIMLS By-Laws, which group sets policy, rules, general business procedures and has the fiduciary responsibility of the operation of HHIMLS.
2.7 “Broker-In-Charge” or “BIC” means the term as defined in South Carolina Code §40-57-30(4) (2005) or any recodification thereof as any licensed real estate broker who is designated as having responsibility over the actions of its associated licensees and is affiliated with a Full Member.
2.8 “Business Day” means Monday through Friday except for HHIMLS holidays as follows: New Years Day, Good Friday, Memorial Day, Independence Day, Labor Day, Thanksgiving and the day after Thanksgiving, Christmas Eve Day and Christmas Day.
2.9 “Compilation” means all data, photographs, images, graphics, video recordings, virtual tours, drawings, written descriptions, remarks, narratives and pricing information about real properties in the counties of Beaufort, Jasper, Allendale, Bamberg, Barnwell, Colleton, Hampton and Orangeburg in the State of South Carolina which are aggregated and compiled, displayed, maintained and disseminated and includes data relating to commercial, business opportunities, boat slips, equities, shares, and residential properties listed for sale, lease or rent, those that have been sold, and those with respect to which the sale has been cancelled or has not closed, and includes unimproved and vacant properties, in any format, including but not limited to, computer database or any other format whatsoever.
2.10 “Compliance Guidelines” means a document created by HHIMLS which specifically contains the guidelines for compliance with these Rules and Regulations and sets forth the processing and correction fees for violations of these Rules and Regulations.
2.11 “Designated Person” or “DP” means the person appointed by the Real Estate Brokerage or Appraisal Firm, in writing on file with HHIMLS, to attend all Full Member meetings in the absence of the Broker-In-Charge or Head Appraiser.
2.12 “Full Member(s)” means any Real Estate Brokerage Firm that is a member of HHIMLS, has separately issued South Carolina REB office code number, has a Broker-In-Charge and holds an Ownership Interest in HHIMLS or an Appraisal Firm that is a member of HHIMLS, has a separately issued South Carolina Appraisal Board Code, has a Head Appraiser and holds an Ownership Interest in HHIMLS..
2.13 “Head Appraiser(s)” means a licensed Appraiser who is designated as having responsibility over the actions of its associated Appraisers and is affiliated with a Full Member.
2.14 “HHIMLS Content” means the aggregation and the Compilation of Listing Content.
2.15 “HHIMLS Services” means other products and services which facilitate the business of Members.
2.16 “HHIMLS System” means its computers technology and software and hardware system that support the technology, the HHIMLS Content and HHIMLS Services.
2.17 “Listing Content” means all data, photographs, images, graphics, video recordings, virtual tours, drawings, written descriptions, remarks, narratives and pricing information about real properties in the counties of Beaufort, Jasper, Allendale, Bamberg, Barnwell, Colleton, Hampton and Orangeburg in the State of South Carolina and real properties in other geographic regions.
2.18 “Members” means, individually or collectively, Full Members and Associate Members who hold current valid real estate licenses in the State of South Carolina and are capable of offering and accepting compensation to and from other Members or have the ability to receive referral fees and those who are registered and licensed by the appropriate state regulatory agency in the State of South Carolina to engage in the appraisal of real property.
2.19 “Non-Licensed Sales Assistant” means a person employed by or under contract with and authorized by a Broker-In-Charge to access the HHIMLS Database and enter properties for sale through the listing input screen for the Real Estate Brokerage. The Non-Licensed Sales Assistant is registered with HHIMLS, does not hold an active South Carolina real estate license and does not pay fees or charges to HHIMLS.
2.20 “Ownership Interest” means all the rights, benefits and privileges of HHIMLS as well as the obligations of HHIMLS in compliance with the HHIMLS By-Laws and Rules for Full Members.
2.21 “Real Estate Brokerage” or “REB” means an entity with a separate South Carolina real estate license identification and REB Office Code Number for the purpose of brokering the sale of properties in the state of South Carolina and that has a Broker-In-Charge and is the financially responsible party to HHIMLS.
2.22 “Registered Person” means the person chosen by the BIC or Head Appraiser and identified on the application form for HHIMLS Services as the person who assumes all financial responsibilities of the Broker-In-Charge or Head Appraiser in the event the Broker-In-Charge or Head Appraiser has left a Full Member REB or Appraisal Firm. If the Registered Person is licensed to sell real estate in the State of South Carolina or is licensed by the State of South Carolina to appraise real estate, the Registered Person is the person responsible if the BIC or Head Appraiser was not performing its responsibilities required by HHIMLS of a Full Member. If the Registered Person is not licensed in the State of South Carolina, the Registered Person is the person authorized by the Full Member REB or Appraisal Firm to appoint a new BIC or Head Appraiser for the Full Member REB or Appraisal Firm.
2.23 “Rules” means the Rules and Regulations of HHIMLS which may be amended by HHIMLS from time to time.
2.24 “Staff” means non-licensed employees of a Full Member.
3. GRANT OF ACCESS.
Subject to the provisions, terms and conditions of this Agreement and the HHIMLS Rules and HHIMLS Compliance Guidelines, HHIMLS hereby grants to Full Member during the Term a limited, non-exclusive, non-transferable license to access the HHIMLS System, the HHIMLS Services and the HHIMLS Content for the purpose of adding, editing, reviewing, researching and retrieving the HHIMLS Content and using the HHIMLS System and the HHIMLS Services to conduct the Full Member’s real estate or appraisal business.
4. METHOD OF ACCESS TO HHIMLS.
Full Member shall access the HHIMLS System, HHIMLS Content, and the HHIMLS Services through various types of electronic communications furnished to Full Member by HHIMLS and/or third-party vendors, upon the terms and conditions required by HHIMLS and the third party vendor. Full Member understands and agrees that it must execute a separate agreement with HHIMLS and its website developer for authority to display HHIMLS Content on the Internet.
5. SUBMISSION OF FULL MEMBER’S LISTING CONTENT.
5.1 Grant of Rights to HHIMLS. Full Member, as the acquirer and provider of Listing Content relating to real estate properties for sale, including Full Member’s personal listing agent information, remarks, virtual tours, videos and photographs, hereby grants to HHIMLS a perpetual, worldwide, royalty-free license to use, display and copyright all Listing Content entered by Full Member into the HHIMLS System and to reproduce, use, distribute, display and grant access to the HHIMLS Content through the HHIMLS System and HHIMLS Services electronically and in such other form or in such other manner and to such third parties as HHIMLS deems appropriate.
5.2 Submitted Information. Full Member hereby warrants, that it will have a valid listing agreement prior to submitting any Listing Content to HHIMLS and warrants that buyers, sellers, Full Member’s agents, photographers and all applicable third parties have assigned to Full Member all right, title and interest including all copyright rights and other intellectual property rights in and to all Listing Content submitted to HHIMLS through the HHIMLS System. Full Member agrees Listing Content shall be submitted in the form and format and according to the procedures set forth in the HHIMLS Rules and in accordance with the HHIMLS Compliance Guidelines and shall use reasonable care to ensure the accuracy and completeness of such submitted Listing Content and shall be responsible for correcting and updating all submitted information in accordance with the HHIMLS Rules and HHIMLS Compliance Guidelines.
5.3 Copyright. HHIMLS may edit, manipulate and/or compile the Listing Content and tangible or intangible property items provided by the Full Member without Full Member’s permission in accordance with the HHIMLS Rules and HHIMLS Compliance Guidelines. The Full Member acknowledges that the manipulation or compilation being performed by HHIMLS will result in a database containing various Compilations of real estate data which are copyrightable material. By the act of submitting any Listing Content to HHIMLS, the Full Member hereby assigns its right, title and interest to copyright the Listing Content in the Compilation to HHIMLS and consents to the use of its contributions in such copyrighted material including the bringing of all actions and causes of action and warrants it will not challenge, interfere with or violate such copyright and warrants that it will not seek compensation therefor.
5.4 Internet Display And Other Third Party Use. HHIMLS may use, or may arrange for third parties to use, the HHIMLS Content in products and services including, but not limited to, reference materials, books, brochures, flyers, electronic transmissions, advertisements, Internet or other computer network displays, on-line data, computer programming, and software, regardless of the form, whether printed, electronic, digital, magnetic media, or otherwise. By the act of submitting any Listing Content to HHIMLS, the Full Member hereby assigns its right, title and interest to allow Internet display and other third party use of the Listing Content in the Compilation of HHIMLS and consents to such uses and warrants that it will not challenge, interfere with or violate such uses and warrants that it will not seek compensation therefor.
6. CONDITIONS, PROHIBITIONS AND LIMITATIONS ON ACCESS.
6.1 Access to HHIMLS System by Full Member’s Associates. Full Member shall be responsible for assuring that all of its Staff, Non-Licensed Sales Assistants, and all of its Associate Members, subscribe to HHIMLS individually by executing appropriate documentation as required by HHIMLS. If an Associate Member becomes delinquent in payment of any fees due to HHIMLS hereunder, Full Member shall pay said delinquent fees. Full Member shall ensure that all Associate Members, Non-Licensed Sales Assistants and Staff who use or access the HHIMLS System, the HHIMLS Content and/or the HHIMLS Service, in any manner, comply with the terms of this Agreement and the HHIMLS Rules and HHIMLS Compliance Guidelines. Full Member agrees to assume full responsibility for the acts of its Associate Members, Non-Licensed Sales Assistants and Staff who have access to the HHIMLS Content, the HHIMLS System and the HHIMLS Services in all of Full Member’s offices as well as for any financial obligations which may arise by virtue of said acts by any of them.
6.2 Compliance with Rules and Notification of Changes. Full Member understands and acknowledges that the Rules, Bylaws, Internet Display Rules and Compliance Guidelines are available online and certifies it has read a copy of the documents and agrees to comply with the HHIMLS Rules, Bylaws, Internet Data Display Rules and HHIMLS Compliance Guidelines as may be amended from time to time. Full Member agrees to submit disputes, if Full Member is a non-Realtor®, to HHIMLS and, if Full Member is a Realtor®, to its appropriate Realtor® Association. BIC and Head Appraiser of Full Member understands and agrees that it cannot leave one Full Member and join HHIMLS as an Associate Member or as the BIC or Head Appraiser of another Full Member unless all financial and other responsibilities are cleared with HHIMLS and this Full Member is either resigned in good standing or has appointed a new BIC with no outstanding responsibility to HHIMLS.
6.3 Use Prohibitions. Full Member agrees that it will not reproduce, redistribute, publish, display, retransmit, broadcast, electronically manipulate, sell, license, rent, transmit, or in any manner commercially exploit or allow anyone else to reproduce, redistribute, publish, display, retransmit, broadcast, electronically manipulate, sell, license, rent, transmit or in any manner commercially exploit the HHIMLS Content or any portion thereof in any format to anyone for any purpose other than the selling, listing or appraising of real estate. Under no circumstances shall Full Member receive any form of compensation for the HHIMLS Content or for unauthorized access to the HHIMLS Content from any third party for any reason. Full Member acknowledges that the HHIMLS Content is confidential and its use is restricted to Full Member and Full Member’s authorized Associate Members, Non-Licensed Sales Assistants and Staff.
6.4 Certain Data Subject To Consent Withdrawal. Full Member acknowledges that certain of the HHIMLS Content available through the HHIMLS System are subject to the continued consent of supplying third parties. If at any time any supplying third party’s consent is withdrawn, all information supplied by such party shall be removed from the HHIMLS Content.
6.5 Consumer Privacy and Information Security. Full Member agrees to comply with all applicable consumer privacy and information security laws. In the event of a breach of Full Member’s computer network or computerized systems, containing HHIMLS Content, by unauthorized persons or in the event of a loss of Full Member’s laptop which may contain personally identifiable information or HHIMLS Content, Full Member agrees to notify HHIMLS within twenty-four (24) hours of discovery of such event. Full Member agrees to use commercially reasonable security measures to protect the HHIMLS Content.
7. Set Up Costs.
Full Member is responsible for obtaining and maintaining in proper working order all personal computers, Internet connections, and computer software that may be necessary or useful for accessing and using the HHIMLS Content, the HHIMLS System and the HHIMLS Services and for the proper use thereof. Full Member shall not be entitled to refund of any fees under any circumstances for any hardware, software or Internet connection that is unable to access the HHIMLS System or the HHIMLS Services.
8. PROPRIETARY RIGHTS.
Full Member acknowledges that the HHIMLS Content, the HHIMLS System and the HHIMLS Services are valuable commercial products, the development of which has involved the expenditure of substantial time and money, that the HHIMLS Content may include textual, statistical, financial, photographic, video and audio components which are proprietary information of HHIMLS under copyright, and have been furnished to Full Member in trust. All rights, title and interest in the HHIMLS Content, the HHIMLS System and the HHIMLS Services, including the ownership of the copyright therein, shall at all times remain vested in HHIMLS. Except for the rights granted Full Member herein, Full Member agrees and understands that HHIMLS shall remain the exclusive owner of all rights, title, and interest in the HHIMLS Content, the HHIMLS System and the HHIMLS Services licensed hereunder and all copyrights and renewals thereof, heretofore and hereafter secured therein. All publication, dissemination and other rights in and to the HHIMLS Content, the HHIMLS System and the HHIMLS Services licensed hereunder are reserved for HHIMLS in all languages, formats and media throughout the world for the sole and exclusive use or any other disposition by HHIMLS, its respective assignees or grantees at any time and from time to time without obligation or liability to Full Member.
9. IDENTIFICATION NUMBERS.
9.1 REB ID. HHIMLS shall provide the Full Member identification number for access to the HHIMLS Content, the HHIMLS System and the HHIMLS Services for Full Member’s office identification (“REB ID”).
9.2 User ID and Password. HHIMLS shall also provide Full Member’s Associate Members or Non-Licensed Sales Assistants a user identification and password to each individual who participates in and requires access to and use of the HHIMLS Content, the HHIMLS System and the HHIMLS Services. Each token, user ID and password shall be personal to the individual and may not be used by any other person. Each individual shall be responsible for the security and safe keeping of its token, if applicable, and its password.
9.3 Secure Computing. HHIMLS reserves the right to establish additional security measures and establish practices and procedures to safeguard the HHIMLS Content, the HHIMLS System and the HHIMLS Services and Full Member agrees to abide by such security measures and procedures to safeguard the HHIMLS Content, the HHIMLS System and the HHIMLS Services.
9.4 Confidentiality. Full Member, Associate Members and Non-Licensed Sales Assistants shall treat the access identifications as private, confidential and personal and shall safeguard and maintain their confidentiality. Use by any other person or entity shall be considered as theft. Full Member shall be liable for any consequences that may result from unauthorized disclosure of Full Member’s or Associate Member’s or Non-Licensed Sales Assistant’s access identification, whether intentional, negligent or inadvertent, including but not limited to immediate termination of this Agreement and liability for liquidated damages. Full Member acknowledges that HHIMLS may seed the HHIMLS Content and watermark digital photographs, virtual tours, videos or other media and undertake monitoring on a regular random basis such that violations of the security of Full Member’s access identifications will be detected. This obligation to maintain confidentiality shall survive the termination of this Agreement.
10. HHIMLS USE OF FULL MEMBER INFORMATION.
HHIMLS reserves the right to distribute to prospective Full Members and other third parties certain non-confidential information concerning Full Member. In addition, HHIMLS may collect and compile information regarding frequency of use of, or specific uses, of the HHIMLS Content, the HHIMLS System and the HHIMLS Services by all users, including Full Member.
11. TERM AND TERMINATION.
11.1 Term. The term of this Agreement shall be one (1) year commencing upon the date Full Member executes this Agreement on the signature page hereof and shall automatically extend for additional one (1) year terms unless sooner terminated in accordance with Section 11.2 or 11.2.1, or upon cancellation by either party upon twenty four (24) hours written notice to the other party.
11.2 Termination. This Agreement and the rights granted hereunder may be terminated by either party in the event that the other party has not performed any material obligation or has otherwise breached any material term of this Agreement. HHIMLS may immediately terminate this Agreement in the event Full Member is no longer licensed to practice real estate in the State of South Carolina.
11.2.1 Promptly upon any termination of this Agreement, HHIMLS shall deactivate Full Member’s access identification numbers, and Full Member shall have no further access to the HHIMLS System, the HHIMLS Content or the HHIMLS Services. Full Member acknowledges that HHIMLS shall have no obligation to refund any fees or charges or any portion thereof paid to HHIMLS prior to termination and that Full Member’s termination must be received by HHIMLS prior to the 17th of any month in order to avoid financial responsibility for the next billing period.
12. HHIMLS SERVICE MARKS AND LOGOS.
Full Member shall have the right, during the term of this Agreement, to use the HHIMLS trade name and logo for the HHIMLS Services as available, in advertising, promotion and marketing materials solely for the purpose of announcing Full Member’s use of the HHIMLS Services to prospective customers. Full Member may re-publish any description of the HHIMLS Services which have been published by HHIMLS, provided the description is re-published on a verbatim basis, but shall not, under any circumstances, make any unauthorized representations or warranties regarding the HHIMLS Services or any HHIMLS Content.
13. WARRANTY DISCLAIMER.
FULL MEMBER EXPRESSLY AGREES THAT THE HHIMLS SERVICES, THE HHIMLS SYSTEM AND THE HHIMLS CONTENT ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, AND THAT USE OF THE HHIMLS SYSTEM, HHIMLS SERVICES AND THE HHIMLS CONTENT ARE AT THE SOLE RISK OF FULL MEMBER. HHIMLS DOES NOT WARRANT THAT THE HHIMLS SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, AND HHIMLS MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY HHIMLS CONTENT AVAILABLE THROUGH THE HHIMLS SYSTEM AND THE HHIMLS SERVICES. HHIMLS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. HHIMLS DOES NOT WARRANT THAT THE HHIMLS CONTENT IS ERROR-FREE, NOR THAT IT WILL MEET FULL MEMBER’S REQUIREMENTS, NOR THAT ANY ELECTRONIC TRANSMISSION THEREOF WILL OPERATE IN AN ERROR-FREE MANNER.
14. LIMITATION OF LIABILITY.
14.1 Limitations and Exclusions. Neither HHIMLS nor any of its officers, trustees, employees, those with an Ownership Interest, agents, or representatives shall be liable to Full Member or anyone else for any direct, indirect, incidental, special, or consequential damages that result from the use of, or inability to use, HHIMLS Content, the HHIMLS System and/or the HHIMLS Services, including but not limited to, reliance by any Full Member or authorized user on the HHIMLS Content or other information obtained through use of the HHIMLS System or the HHIMLS Services or that result from mistakes, omissions, deletions or delays in transmission, interruptions in telecommunications or Internet connections to the HHIMLS System and the HHIMLS Services, viruses or failures of performance, whether caused in whole or in part by negligence, acts of god, telecommunications or Internet failure, theft or destruction of, or unauthorized access to the HHIMLS Content, the HHIMLS System and/or the HHIMLS Services or related information, records or programs.
14.2 Maximum Aggregate Liability. In no event shall any liability of HHIMLS, its officers, trustees, employees, those with an Ownership Interest, agents, or representatives arising out of any claim related to this Agreement exceed the aggregate amount paid by Full Member hereunder in the twelve (12) months immediately preceding the event giving rise to such claim.
15. LIQUIDATED DAMAGES.
Full Member acknowledges that damages suffered by HHIMLS from access to or use of the HHIMLS Content, the HHIMLS System or the HHIMLS Services by an unauthorized third party as a result of disclosure of Full Member’s access identification information, including its Associate Members, Non-Licensed Sales Assistants and Staff, would be speculative and difficult to quantify. Accordingly, as a material inducement to HHIMLS to enter into this Agreement with Full Member, Full Member agrees that in the event that any disclosure of Full Member’s access identification information, including its Associate Members, Non-Licensed Sales Assistants and Staff, results in access to or use of the HHIMLS Content, HHIMLS System or the HHIMLS Services by or for an unauthorized third party, regardless of whether such disclosure is intentional, negligent or inadvertent, Full Member shall be liable to HHIMLS, at HHIMLS’s option, for liquidated damages in an amount not to exceed Five Hundred Thousand Dollars ($500,000.00).
16. FULL MEMBER AUTHORIZATION TO ENTER THIS AGREEMENT.
Full Member represents and warrants that the individuals who execute this Agreement are duly authorized to enter into this Agreement and, if applicable, the Agreements by and between HHIMLS and Full Member’s Associate Members. Full Member further represents and warrants that the BIC or Head Appraiser who executes this Agreement are duly licensed by the State of South Carolina to practice real estate or to appraise real property in the State of South Carolina.
17. INDEMNIFICATION BY FULL MEMBER.
Full Member shall protect, defend, indemnify and hold harmless HHIMLS and its officers, trustees, employees, those with an Ownership Interest, agents, or representatives from any and all liability, damages, loss or expense, including reasonable fees of attorneys and other professionals, arising from any claim, demand, action or proceeding initiated by any third party against any of them based upon the negligent, intentional or illegal acts of Full Member, including but not limited to: (a) inaccuracy of any Listing Content supplied to HHIMLS by Full Member or by any of Full Member’s Associate Members, Non-Licensed Sales Assistants or Staff, (b) any unauthorized use of Full Member’s or Associate Member’s access identification number, (c) any unauthorized use of the HHIMLS Content, or (d) infringement of any proprietary or contract right of any third party as a result of the availability of the HHIMLS Content through the HHIMLS System and the HHIMLS Services. Full Member shall assist HHIMLS, at Full Member’s expense, in the defense or settlement of any claim to which these indemnification obligations apply. These indemnification provisions shall survive the termination of the Full Member's participation in HHIMLS and the termination of this Full Member Agreement.
18. INJUNCTIVE REMEDIES.
Full Member acknowledges and agrees that the HHIMLS System, the HHIMLS Services and HHIMLS Content are confidential and proprietary products and that in the event there is an unauthorized disclosure of such by Full Member, no remedy at law may be adequate. Therefore, Full Member agrees that in the event of such unauthorized disclosure or use of the HHIMLS System, the HHIMLS Services or HHIMLS Content, HHIMLS may seek injunctive relief or other equitable remedies against Full Member in addition to all available remedies at law.
19. LEGAL FEES AND COSTS.
In the event legal action is taken against Full Member, or against Full Member and HHIMLS, and HHIMLS prevails in obtaining equitable relief or monetary damages, Full Member will be obligated to reimburse HHIMLS for the reasonable attorneys’ fees, costs and expenses it incurred in pursuing such legal action. Full Member will also be responsible for any legal fees and costs incurred by HHIMLS in enforcing any order or collecting a judgment.
20. MISCELLANEOUS.
Full Member agrees and acknowledges that HHIMLS may change the terms of this Agreement as the result of any amendments to the HHIMLS Rules or HHIMLS Compliance Guidelines. This Agreement contains the entire understanding of the parties and supersedes all previous oral and written agreements on the subject hereof. This Agreement may not be assigned by Full Member without the prior written consent of HHIMLS. This Agreement shall be governed by, and construed in accordance with, the laws of the State of South Carolina.
21. DIGITAL SIGNATURE PROVISION.
Full Member Broker-In-Charge, Registered Person or Designated Person respectively, as appropriate to your standing in relation to this Agreement, represent and warrant that they have the legal right, power and authority to agree to the terms of this Agreement on behalf of yourself and/or your organization. You further agree that your use of the HHIMLS Content, HHIMLS System and HHIMLS Services constitutes an electronic signature of this Agreement as defined by the Electronic Signatures in Global and National Commerce Act ("E-Sign") and the Uniform Electronic Transactions Act ("UETA") and that you have formed, executed, entered into, accepted the terms of and otherwise authenticated this Agreement and acknowledged and agreed that this Agreement is an electronic record for purposes of E-Sign, UETA and the Uniform Computer Information Transactions Act and as such is completely valid, has legal effect, is enforceable, and is binding on, and non-refutable by you. SAFEMLS ENROLLMENT AGREEMENT
This is a binding agreement (The "Agreement") between Hilton Head Multiple Listing Service, Inc. (“HHIMLS”) and You ("You" as a " Member" of HHIMLS). You may not use the HHIMLS System, HHIMLS Services or HHIMLS Compilation unless you read, understand, and agree to these Terms and Conditions of Use.
You are a Member, authorized to use this site. To the extent there is another agreement between You and HHIMLS, this is a supplemental agreement and should be construed so as not to conflict with the terms of other agreements or the Rules and Regulations between You and HHIMLS. If You are an Associate Member and are affiliated with HHIMLS Full Member, You are permitted access to these services and the HHIMLS Compilation only by virtue of your affiliation with an HHIMLS Full Member and your assent to the terms of this Agreement.
1. HHIMLS's obligations. In consideration of Your payment of fees (or payment of them on Your behalf by the MLS Full Member) and compliance with its Rules and Regulations and its Compliance Guidelines (the "HHIMLS Rules"), HHIMLS makes the HHIMLS System, HHIMLS Services and the HHIMLS Compilation available on or through its web site and any other delivery medium available to You and licenses it to You, subject at all times to the terms and conditions of this Agreement.
2. Your obligations and acknowledgements. Use limited. You may use the HHIMLS Compilation available on the HHIMLS site solely for the purpose of selling, listing, leasing, and appraising real estate. Your license to use the HHIMLS Compilation is immediately revoked, without notice from HHIMLS, in the event that You (i) use the HHIMLS Compilation for any purpose other than the one set forth in the first sentence of this Section 2(a); (ii) violate the HHIMLS Rules; (iii) disclose any of the HHIMLS Compilation available on the HHIMLS Service to any third party without the prior written authorization of HHIMLS; or (iv) disclose Your user ID or password to any third party for any purpose whatsoever.. Permitted disclosures. The foregoing section notwithstanding, You may, during the term of this Agreement (i) disclose the information obtained from the HHIMLS Compilation to consumers for their non-commercial use to the extent permitted by the HHIMLS Rules; and (ii) disclose your contributions to any party for any purpose approved by Your HHIMLS Full Member, if you are an Associate Member.. (e) Confidentiality. You shall maintain the confidentiality of your HHIMLS ID and password. The HHIMLS ID is provided exclusively for Your personal use and may not be shared with or used by any other person not authorized by the HHIMLS Rules and the MLS Policies and Procedures.
3. Lost ,Broken, or Stolen tokens Replacement cost of lost, broken, or stolen tokens is $35.00 Reactivation fee for a “lost Token”is $10.00 4. Term and termination. Term and termination. This Agreement shall continue until (i) As an HHIMLS Associate Member, You cease to be affiliated with HHIMLS Full Member; (ii) As an HHIMLS Full Member, You cease to have a valid and active membership agreement with HHIMLS. Events upon termination. Promptly upon any termination or expiration of this Agreement, (i)HHIMLS shall deactivate Your user ID and Password, and You shall have no further access to the HHIMLS Service.
Return all HHIMLS equipment including SafeMLS token. Tokens not immediately returned will be billed to the Full Member at the rate of $35.00 each.
NON-LICENSED SALES ASSISTANT AGREEMENT
This NON-LICENSED SALES ASSISTANT AGREEMENT, including the Non-Licensed Sales Assistant Registration form previously completed (the “Agreement”) is made and entered into and is effective as of the date the NLSA clicks the “I Agree” button at the end of this Agreement, is between Multiple Listing Service of Hilton Head Island, Inc., hereinafter referred to as “HHIMLS”, having its principal offices at P.O. Box, 5134, 18 Bow Circle, Hilton Head Island, South Carolina 29938, and the undersigned individual more fully described on the Non-Licensed Sales Assistant Registration form previously provided to HHIMLS, as may be changed from time to time, hereinafter referred to as “NLSA”, and is made with reference to the following facts and circumstances:
1. RECITALS.
1.1 HHIMLS is a multiple listing service company as it is defined in its Rules and Regulations.
1.2 HHIMLS collects, primarily from real estate professionals, through its computer technology and systems certain information including, but not limited to all data, photographs, images, graphics, video recordings, virtual tours, drawings, written descriptions, remarks, narratives and pricing information about real properties in the counties of Beaufort, Jasper, Allendale, Bamberg, Barnwell, Colleton, Hampton and Orangeburg in the State of South Carolina and then aggregates and compiles the Listing Content and displays, maintains and distributes the HHIMLS Content, principally to and for the benefit of those same real estate professionals together with other products and services which facilitate the business of its members. The HHIMLS Content as defined below includes data relating to boat slips, equities, shares, commercial, multi-family and residential properties listed for sale or rent, those that have been sold, those where the listing may have been withdrawn or may not have closed and includes unimproved and vacant properties.
1.3 NLSA is affiliated as an employee or independent contractor to a Full Member and NLSA is not licensed to practice real estate in the state of South Carolina and its Full Member desires that NLSA have access to the HHIMLS System, HHIMLS Services and HHIMLS Content pursuant to this Agreement.
1.4 The parties desire to enter this Agreement which, in addition to the HHIMLS Rules and HHIMLS Compliance Guidelines, will govern the use of the Listing Content, the HHIMLS Content, the HHIMLS System and the HHIMLS Services by the NLSA..
NOW, THEREFORE, in consideration of the Recitals, and the mutual promises and covenants contained herein and intending to be legally bound, each of parties agrees as follows:
2. DEFINITIONS
Capitalized terms in this Agreement shall have the meanings set forth opposite each, respectively, as follows:
2.1 Affiliate Member(s)” means any member of HHIMLS that is engaged in banking, mortgage lending, mortgage brokering and similarly related fields.
2.2 “Application(s) for Membership” means the forms created by HHIMLS for Real Estate Brokerage and Appraisal Firm Full Member, real estate and Appraiser licensee Associate Members and those engaged in other fields who are designated Affiliate Members.
2.3 “Appraiser” means any person who is licensed under Title 40 Chapter 60 of the South Carolina Revised Statutes or any future recodification thereof and legally can perform real estate appraisal.
2.4 “Appraisal Firm” means an entity which pools resources in one or more facilities with Appraisers who work under that entity’s name for the purpose of appraising real property.
2.5 “Associate Member(s)” means a member of HHIMLS who is an associated licensee, as that term is defined in South Carolina Code §40-57-30(1) (2005) or any recodification thereof, and who is associated with a Full Member or a Broker-In-Charge of a Full Member or is a certified Appraiser who is licensed by the South Carolina Appraisers Board who is associated with an Appraisal Firm and who has executed an Associate Member Agreement.
2.6 “Board of Trustees” or “BOT” means the group of individuals elected by the Full Members in accordance with the HHIMLS By-Laws, which group sets policy, rules, general business procedures and has the fiduciary responsibility of the operation of HHIMLS.
2.7 “Broker-In-Charge” or “BIC” means the term as defined in South Carolina Code §40-57-30(4) (2005) or any recodification thereof as any licensed real estate broker who is designated as having responsibility over the actions of its associated licensees and is affiliated with a Full Member.
2.8 “Business Day” means Monday through Friday except for HHIMLS holidays as follows: New Years Day, Good Friday, Memorial Day, Independence Day, Labor Day, Thanksgiving and the day after Thanksgiving, Christmas Eve Day and Christmas Day.
2.9 “Compilation” means all data, photographs, images, graphics, video recordings, virtual tours, drawings, written descriptions, remarks, narratives and pricing information about real properties in the counties of Beaufort, Jasper, Allendale, Bamberg, Barnwell, Colleton, Hampton and Orangeburg in the State of South Carolina which are aggregated and compiled, displayed, maintained and disseminated and includes data relating to commercial, business opportunities, boat slips, equities, shares, and residential properties listed for sale, lease or rent, those that have been sold, and those with respect to which the sale has been cancelled or has not closed, and includes unimproved and vacant properties, in any format, including but not limited to, computer database or any other format whatsoever.
2.10 “Compliance Guidelines” means a document created by HHIMLS which specifically contains the guidelines for compliance with these Rules and Regulations and sets forth the processing and correction fees for violations of these Rules and Regulations.
2.11 “Designated Person” or “DP” means the person appointed by the Real Estate Brokerage or Appraisal Firm, in writing on file with HHIMLS, to attend all Full Member meetings in the absence of the Broker-In-Charge or Head Appraiser.
2.12 “Full Member(s)” means any Real Estate Brokerage Firm that is a member of HHIMLS, has separately issued South Carolina REB office code number, has a Broker-In-Charge and holds an Ownership Interest in HHIMLS or an Appraisal Firm that is a member of HHIMLS, has a separately issued South Carolina Appraisal Board Code, has a Head Appraiser and holds an Ownership Interest in HHIMLS..
2.12 “HHIMLS Compliance Guidelines” means the guidelines established and adopted by the Board of Trustees of HHIMLS, as may be amended from time to time, to guide HHIMLS members in their compliance with the HHIMLS Rules and Regulations.
2.13 “Head Appraiser(s)” means a licensed Appraiser who is designated as having responsibility over the actions of its associated Appraisers and is affiliated with a Full Member
2.14 “HHIMLS Content” means the aggregation and the Compilation of Listing Content.
2.15 “HHIMLS Services” means other products and services which facilitate the business of Members.
2.16 “HHIMLS System” means its computers technology and software and hardware system that support the technology, the HHIMLS Content and HHIMLS Services.
2.17 “Listing Content” means all data, photographs, images, graphics, video recordings, virtual tours, drawings, written descriptions, remarks, narratives and pricing information about real properties in the counties of Beaufort, Jasper, Allendale, Bamberg, Barnwell, Colleton, Hampton and Orangeburg in the State of South Carolina.
2.18 “Members” means, individually or collectively, Full Members and Associate Members who hold current valid real estate licenses in the State of South Carolina and are capable of offering and accepting compensation to and from other Members or have the ability to receive referral fees and those who are registered and licensed by the appropriate state regulatory agency in the State of South Carolina to engage in the appraisal of real property.
2.19 “Non-Licensed Sales Assistant” or “NLSA” means a person employed by or under contract with and authorized by a Broker-In-Charge to access the HHIMLS System and enter properties for sale through the listing input screen for the Full Member, The Non-Licensed Sales Assistant is registered with HHIMLS, does not hold an active South Carolina real estate license and does not pay fees or charges to HHIMLS.
2.20 “Ownership Interest” means all the rights, benefits and privileges of HHIMLS as well as the obligations of HHIMLS in compliance with the HHIMLS By-Laws and the HHIMLS Rules for Full Members.
2.21 “Real Estate Brokerage” or “REB” means an entity with a separate South Carolina real estate license identification and REB office code for the purpose of brokering the sale of properties in the state of South Carolina and that has a Broker-In-Charge and is the financially responsible party to HHIMLS.
2.22 “Registered Person” means the person chosen by the BIC or Head Appraiser and identified on the application form for HHIMLS Services as the person who assumes all responsibilities of the Broker-In-Charge or Head Appraiser in the event the Broker-In-Charge or Head Appraiser has left a Full Member REB or Appraisal Firm or fails to fulfill its duties, including financial, as required by Full Membership in HHIMLS. If the Registered Person is licensed to sell real estate in the State of South Carolina or is licensed by the State of South Carolina to appraise real estate, the Registered Person is the person responsible if the BIC or Head Appraiser was not performing its responsibilities required by HHIMLS of a Full Member. If the Registered Person is not licensed in the State of South Carolina, the Registered Person is the person authorized by the Full Member REB or Appraisal Firm to appoint a new BIC or Head Appraiser for the Full Member REB or Appraisal Firm.
2.23 “Rules” means the Rules and Regulations of HHIMLS which may be amended by HHIMLS from time to time.
2.24 “Staff” means non-licensed employees of a Full Member.
3. GRANT OF ACCESS.
Subject to the provisions, terms and conditions of this Agreement and the HHIMLS Rules and HHIMLS Compliance Guidelines, HHIMLS hereby grants to NLSA during the Term a limited, non-exclusive, non-transferable license to access the HHIMLS System, the HHIMLS Services and the HHIMLS Content for the purpose of adding, editing, reviewing, researching and retrieving the HHIMLS Content.
4. METHOD OF ACCESS TO HHIMLS.
NLSA shall access the HHIMLS System, HHIMLS Content, and the HHIMLS Services through various types of electronic communications furnished by HHIMLS and/or third-party vendors, upon the terms and conditions required by HHIMLS and the third party vendor.
5. CONDITIONS, PROHIBITIONS AND LIMITATIONS ON ACCESS.
5.1 Compliance with Rules and Notification of Changes. NLSA understands and acknowledges that the Rules, Bylaws, Internet Display Rules and Compliance Guidelines are available online at the HHIMLS website and certifies it has read a copy of the documents and agrees to comply with the HHIMLS Rules, Bylaws, Internet Data Display Rules and HHIMLS Compliance Guidelines as may be amended from time to time.
5.2 Use Prohibitions. NLSA agrees that it will not reproduce, redistribute, publish, display, retransmit, broadcast, electronically manipulate, sell, license, rent, transmit, or in any manner commercially exploit or allow anyone else to reproduce, redistribute, publish, display, retransmit, broadcast, electronically manipulate, sell, license, rent, transmit or in any manner commercially exploit the HHIMLS Content or any portion thereof in any format to anyone for any purpose. Under no circumstances shall NLSA receive any form of compensation for the HHIMLS Content or for unauthorized access to the HHIMLS Content from any third party for any reason. NLSA acknowledges that the HHIMLS Content is confidential and its use is restricted to NLSA.
5.3 Certain Data Subject To Consent Withdrawal. NLSA acknowledges that certain of the HHIMLS Content available through the HHIMLS System is subject to the continued consent of supplying third parties. If at any time any supplying third party’s consent is withdrawn, all information supplied by such party shall be removed from the HHIMLS Content.
5.4 Consumer Privacy and Information Security. NLSA agrees to comply with all applicable consumer privacy and information security laws. In the event of a breach of NLSA’s computer network or computerized systems, containing HHIMLS Content, by unauthorized persons or in the event of a loss of NLSA’s laptop which may contain personally identifiable information or HHIMLS Content, NLSA agrees to notify HHIMLS within twenty-four (24) hours of discovery of such event. NLSA agrees to use commercially reasonable security measures to protect the HHIMLS Content.
6. Set Up Costs.
NLSA is responsible for obtaining and maintaining in proper working order all personal computers, Internet connections, and computer software that may be necessary or useful for accessing and using the HHIMLS Content, the HHIMLS System and the HHIMLS Services and for the proper use thereof.
7. PROPRIETARY RIGHTS.
NLSA acknowledges that the HHIMLS Content, the HHIMLS System and the HHIMLS Services are valuable commercial products, the development of which has involved the expenditure of substantial time and money, that the HHIMLS Content may include textual, statistical, financial, photographic, video and audio components which are proprietary information of HHIMLS under copyright, and have been furnished to NLSA in trust. All rights, title and interest in the HHIMLS Content, the HHIMLS System and the HHIMLS Services, including the ownership of the copyright therein, shall at all times remain vested in HHIMLS. Except for the rights granted NLSA herein, NLSA agrees and understands that HHIMLS shall remain the exclusive owner of all rights, title, and interest in the HHIMLS Content, the HHIMLS System and the HHIMLS Services licensed hereunder and all copyrights and renewals thereof, heretofore and hereafter secured therein. All publication, dissemination and other rights in and to the HHIMLS Content, the HHIMLS System and the HHIMLS Services licensed hereunder are reserved for HHIMLS in all languages, formats and media throughout the world for the sole and exclusive use or any other disposition by HHIMLS, its respective assignees or grantees at any time and from time to time without obligation or liability to NLSA.
8. IDENTIFICATION NUMBERS.
8.1 User ID and Password. HHIMLS shall provide NLSA access to and use of the HHIMLS Content, the HHIMLS System and the HHIMLS Services. Each token, user ID and password shall be personal to the individual and may not be used by any other person. The NLSA shall be responsible for the security and safe keeping of its token, if applicable, and its password.
8.2 Secure Computing. HHIMLS reserves the right to establish additional security measures and establish practices and procedures to safeguard the HHIMLS Content, the HHIMLS System and the HHIMLS Services and NLSA agrees to abide by such security measures and procedures to safeguard the HHIMLS Content, the HHIMLS System and the HHIMLS Services.
8.3 Confidentiality. NLSA shall treat the access identifications as private, confidential and personal and shall safeguard and maintain their confidentiality. Use by any other person or entity shall be considered as theft. NLSA shall be liable for any consequences that may result from unauthorized disclosure of NLSA’s access identification, whether intentional, negligent or inadvertent, including but not limited to immediate termination of this Agreement and liability for liquidated damages. NLSA acknowledges that HHIMLS may seed the HHIMLS Content and watermark digital photographs, virtual tours, videos or other media and undertake monitoring on a regular random basis such that violations of the security of NLSA’s access identification will be detected. This obligation to maintain confidentiality shall survive the termination of this Agreement.
9. HHIMLS USE OF NLSA INFORMATION.
HHIMLS reserves the right to distribute to prospective NLSAs and other third parties certain non-confidential information concerning NLSA. In addition, HHIMLS may collect and compile information regarding frequency of use of, or specific uses, of the HHIMLS Content, the HHIMLS System and the HHIMLS Services by all users, including NLSA.
10. TERM AND TERMINATION.
10.1 Term. The term of this Agreement shall be one (1) year commencing upon the date NLSA clicks the “I Agree” button on this Agreement below and shall automatically extend for additional one (1) year terms unless sooner terminated in accordance with Section 10.2 or 10.2.1, or upon cancellation by either party upon twenty four (24) hours written notice to the other party.
10.2 Termination. This Agreement and the rights granted hereunder may be terminated by either party in the event that the other party has not performed any material obligation or has otherwise breached any material term of this Agreement.
10.2.1 Promptly upon any termination of this Agreement, HHIMLS shall deactivate NLSA’s access identification numbers, and NLSA shall have no further access to the HHIMLS System, the HHIMLS Content or the HHIMLS Services. NLSA acknowledges that HHIMLS shall have no obligation to refund any fees or charges or any portion thereof paid to HHIMLS prior to termination.
11. HHIMLS SERVICE MARKS AND LOGOS.
NLSA shall have the right, during the term of this Agreement, to use the HHIMLS trade name and logo for the HHIMLS Services as available, solely for the purpose of providing services to its Full Member. NLSA may re-publish any description of the HHIMLS Services which have been published by HHIMLS, provided the description is re-published on a verbatim basis, but shall not, under any circumstances, make any unauthorized representations or warranties regarding the HHIMLS Services or any HHIMLS Content.
12. WARRANTY DISCLAIMER.
NLSA EXPRESSLY AGREES THAT THE HHIMLS SERVICES, THE HHIMLS SYSTEM AND THE HHIMLS CONTENT ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, AND THAT USE OF THE HHIMLS SYSTEM, HHIMLS SERVICES AND THE HHIMLS CONTENT ARE AT THE SOLE RISK OF NLSA. HHIMLS DOES NOT WARRANT THAT THE HHIMLS SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, AND HHIMLS MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY HHIMLS CONTENT AVAILABLE THROUGH THE HHIMLS SYSTEM AND THE HHIMLS SERVICES. HHIMLS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. HHIMLS DOES NOT WARRANT THAT THE HHIMLS CONTENT IS ERROR-FREE, NOR THAT IT WILL MEET NLSA’S REQUIREMENTS, NOR THAT ANY ELECTRONIC TRANSMISSION THEREOF WILL OPERATE IN AN ERROR-FREE MANNER.
13. LIMITATION OF LIABILITY.
13.1 Limitations and Exclusions. Neither HHIMLS nor any of its officers, trustees, employees, those with an Ownership Interest, agents, or representatives shall be liable to NLSA or anyone else for any direct, indirect, incidental, special, or consequential damages that result from the use of, or inability to use the HHIMLS Content, the HHIMLS System and/or the HHIMLS Services, including but not limited to, reliance by any NLSA on the HHIMLS Content or other information obtained through use of the HHIMLS System or the HHIMLS Services, or that result from mistakes, omissions, deletions or delays in transmission, interruptions in telecommunications or Internet connections to the HHIMLS System and the HHIMLS Services, viruses or failures of performance, whether caused in whole or in part by negligence, acts of god, telecommunications or Internet failure, theft or destruction of, or unauthorized access to the HHIMLS Content, the HHIMLS System and/or the HHIMLS Services or related information, records or programs.
13.2 Maximum Aggregate Liability. In no event shall any liability of HHIMLS, its officers, trustees, employees, those with an Ownership Interest, agents, or representatives arising out of any claim related to this Agreement exceed the aggregate amount paid by NLSA hereunder for the twelve (12) months immediately preceding the event giving rise to such claim.
14. LIQUIDATED DAMAGES.
NLSA acknowledges that damages suffered by HHIMLS from access to or use of the HHIMLS Content, the HHIMLS System or the HHIMLS Services by an unauthorized third party as a result of disclosure of NLSA’s access identification information would be speculative and difficult to quantify. Accordingly, as a material inducement to HHIMLS to enter into this Agreement with NLSA, NLSA agrees that in the event that any disclosure of NLSA’s access identification information, results in access to or use of the HHIMLS Content, the HHIMLS System or the HHIMLS Services by or for an unauthorized third party, regardless of whether such disclosure is intentional, negligent or inadvertent, NLSA shall be liable to HHIMLS, at HHIMLS’s option, for liquidated damages in an amount not to exceed Five Hundred Thousand Dollars ($500,000.00).
15. INDEMNIFICATION BY NLSA.
NLSA shall protect, defend, indemnify and hold harmless HHIMLS and its officers, trustees, employees, those with an Ownership Interest, agents, or representatives from any and all liability, damages, loss or expense, including reasonable fees of attorneys and other professionals, arising from any claim, demand, action or proceeding initiated by any third party against any of them based upon the negligent, intentional or illegal acts of NLSA, including but not limited to: (a) any unauthorized use of NLSA’s access identification number, (b) any unauthorized use of the HHIMLS Content, or (c) infringement of any proprietary or contract right of any third party as a result of the availability of the HHIMLS Content through the HHIMLS System and the HHIMLS Services. NLSA shall assist HHIMLS, at NLSA’s expense, in the defense or settlement of any claim to which these indemnification obligations apply. These indemnification provisions shall survive the termination of the NLSA's access to the HHIMLS Content, HHIMLS Services or HHIMLS System and the termination of this NLSA Agreement.
16. INJUNCTIVE REMEDIES.
NLSA acknowledges and agrees that the HHIMLS System, the HHIMLS Services and HHIMLS Content are confidential and proprietary products and that in the event there is an unauthorized disclosure of such by NLSA, no remedy at law may be adequate. Therefore, NLSA agrees that in the event of such unauthorized disclosure or use of the HHIMLS System, the HHIMLS Services or HHIMLS Content, HHIMLS may seek injunctive relief or other equitable remedies against NLSA in addition to all available remedies at law.
17. LEGAL FEES AND COSTS.
In the event legal action is taken against NLSA, or against NLSA and HHIMLS, and HHIMLS prevails in obtaining equitable relief or monetary damages, NLSA will be obligated to reimburse HHIMLS for the reasonable attorneys’ fees, costs and expenses it incurred in pursuing such legal action. NLSA will also be responsible for any legal fees and costs incurred by HHIMLS in enforcing any order or collecting a judgment.
18. MISCELLANEOUS.
NLSA agrees and acknowledges that HHIMLS may change the terms of this Agreement as the result of any amendments to the HHIMLS Rules or HHIMLS Compliance Guidelines. This Agreement contains the entire understanding of the parties and supersedes all previous oral and written agreements on the subject hereof. This Agreement may not be assigned by NLSA without the prior written consent of HHIMLS. This Agreement shall be governed by, and construed in accordance with, the laws of the State of South Carolina.
21. DIGITAL SIGNATURE PROVISION.
NLSA represents and warrants that they have the legal right, power and authority to agree to the terms of this Agreement. You agree that your use of the HHIMLS Content, HHIMLS System and HHIMLS Services and clicking “I Agree” below constitutes an electronic signature of this Agreement as defined by the Electronic Signatures in Global and National Commerce Act ("E-Sign") and the Uniform Electronic Transactions Act ("UETA") and that you have formed, executed, entered into, accepted the terms of and otherwise authenticated this Agreement and acknowledged and agreed that this Agreement is an electronic record for purposes of E-Sign, UETA and the Uniform Computer Information Transactions Act and as such is completely valid, has legal effect, is enforceable, and is binding on, and non-refutable by you.
SAFEMLS ENROLLMENT AGREEMENT
This is a binding agreement (The "Agreement") between Hilton Head Multiple Listing Service, Inc. (“HHIMLS”) and You ("You" as a " Member" of HHIMLS). You may not use the HHIMLS System, HHIMLS Services or HHIMLS Compilation unless you read, understand, and agree to these Terms and Conditions of Use.
You are a Member, authorized to use this site. To the extent there is another agreement between You and HHIMLS, this is a supplemental agreement and should be construed so as not to conflict with the terms of other agreements or the Rules and Regulations between You and HHIMLS. If You are an Associate Member and are affiliated with HHIMLS Full Member, You are permitted access to these services and the HHIMLS Compilation only by virtue of your affiliation with an HHIMLS Full Member and your assent to the terms of this Agreement.
1. HHIMLS's obligations. In consideration of Your payment of fees (or payment of them on Your behalf by the MLS Full Member) and compliance with its Rules and Regulations and its Compliance Guidelines (the "HHIMLS Rules"), HHIMLS makes the HHIMLS System, HHIMLS Services and the HHIMLS Compilation available on or through its web site and any other delivery medium available to You and licenses it to You, subject at all times to the terms and conditions of this Agreement.
2. Your obligations and acknowledgements. Use limited. You may use the HHIMLS Compilation available on the HHIMLS site solely for the purpose of selling, listing, leasing, and appraising real estate. Your license to use the HHIMLS Compilation is immediately revoked, without notice from HHIMLS, in the event that You (i) use the HHIMLS Compilation for any purpose other than the one set forth in the first sentence of this Section 2(a); (ii) violate the HHIMLS Rules; (iii) disclose any of the HHIMLS Compilation available on the HHIMLS Service to any third party without the prior written authorization of HHIMLS; or (iv) disclose Your user ID or password to any third party for any purpose whatsoever.. Permitted disclosures. The foregoing section notwithstanding, You may, during the term of this Agreement (i) disclose the information obtained from the HHIMLS Compilation to consumers for their non-commercial use to the extent permitted by the HHIMLS Rules; and (ii) disclose your contributions to any party for any purpose approved by Your HHIMLS Full Member, if you are an Associate Member.. (e) Confidentiality. You shall maintain the confidentiality of your HHIMLS ID and password. The HHIMLS ID is provided exclusively for Your personal use and may not be shared with or used by any other person not authorized by the HHIMLS Rules and the MLS Policies and Procedures.
3. Lost ,Broken, or Stolen tokens Replacement cost of lost, broken, or stolen tokens is $35.00 Reactivation fee for a “lost Token”is $10.00 4. Term and termination. Term and termination. This Agreement shall continue until (i) As an HHIMLS Associate Member, You cease to be affiliated with HHIMLS Full Member; (ii) As an HHIMLS Full Member, You cease to have a valid and active membership agreement with HHIMLS. Events upon termination. Promptly upon any termination or expiration of this Agreement, (i)HHIMLS shall deactivate Your user ID and Password, and You shall have no further access to the HHIMLS Service.
Return all HHIMLS equipment including SafeMLS token. Tokens not immediately returned will be billed to the Full Member at the rate of $35.00 each.
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