1. ACCEPTANCE OF TERMS
2. DESCRIPTION OF PRODUCTS & SERVICE
Taggart shall provide its services (the "Service") through the TaggLine System. The Service shall consist primarily of acquiring, organizing, storing, processing, retrieving and making available to potential home buyers ("end-users") certain information input by you ("Content") regarding one or more homes for which you are acting as real estate agent. The Content regarding a particular home will be made available to end-users through Short Message Service alphanumeric messages ("SMS") and Multimedia Message Service picture messages ("MMS"). End-users request such SMS and MMS information by inputting a telephone number and property listing into their cellular telephones or wireless handheld devices, which is then received and processed by an interactive voice response system ("IVR"). End-users receive the requested information from the TaggLine System directly on the end-user's cellular phone or wireless handheld device.
You shall be responsible for uploading any and all information Content you wish to have viewed by an end-user accessing the TaggLine System. The Content shall be uploaded via the Internet to the TaggLine System, subject to the restrictions of Section 6 of this Agreement. Notwithstanding any provision in the Agreement, the Content related to a particular home shall be removed from the TaggLine System upon the sale of the home which is the subject to particular uploaded Content. In the event a home is sold and the Content related to the particular home is not removed by you within one year, you agree that Taggart shall have the right to remove such Content in its sole discretion.
You understand and agree that the Service is provided "AS-IS" and that Taggart assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications, personalization settings or documentation or information (including Content) which has been uploaded onto the TaggLine System by you. You are responsible for obtaining access to the Service and that access may involve third party fees (such as Internet service provider or airtime charges). Your are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the Service.
3. BILLING AND PAYMENT TERMS
The fee for the Service shall be determined on a per property listing basis or a per month basis. In the case of a per property listing fee, the fee is a one-time charge and shall be paid via credit card at the time Content regarding such property is entered into the TaggLine System by you. In the case of a per month fee, the fee will be recurring, charged monthly on the day of the month on which the user first became a subscriber. We do not accept cash, checks or other forms of payment, unless otherwise established and approved in writing by an officer of Taggart. We will email you "Invoices" each time your credit card is charged. By using the Service, you agree to allow Taggart to charge your credit card for fees incurred.
You may cancel the Service for any specific property or for all properties listed by you by providing a ten-day written notice (in the form of a written letter or email) to Taggart at the following address:
Taggart Communications, Inc.
3109 West 50th Street
Minneapolis, MN 55410
or email Accounts. The date of cancellation of the Service for such property listing shall be the date that is ten days following the date on which Taggart receives the notice of cancellation and all Content relating to such property listing shall be removed from the TaggLine System on or before such date. Upon cancellation of the Service, you shall remove and/or discontinue use of all advertisements for the Service with respect to any property for which the Service has been cancelled. If you have not removed and/or discontinued all advertisements for the Service as of the date of cancellation, you agree to pay $0.50 per enquiry made to any property code for which the Service has been cancelled.
5. MEMBER ACCOUNT, PASSWORD AND SECURITY
You will receive a password and account designation upon completing the registration process. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify Taggart of any unauthorized use of your password or account or any other breach of security; and (b) ensure that you exit from your account at the end of each session. Taggart will not be liable for any loss or damage arising from your failure to comply with this Section 5.
6. USER CONDUCT
You agree to not use the Service to (a) upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (b) harm minors in any way; upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (c) upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights ("Rights") of any party; (d) upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; Interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; intentionally or unintentionally violate any applicable local, state, Federal or international law including, but not limited to, any privacy acts or no call legislation currently enacted or enacted during the term of this Agreement.
You acknowledge that Taggart may or may not pre-screen Content, but that Taggart and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or move any Content that is available via the Service. Without limiting the foregoing, Taggart and its designees shall have the right to remove any Content that violates this Agreement or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness or usefulness of such Content.
You acknowledge, consent and agree that Taggart may access, preserve, and disclose your account information and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce this Agreement; (iii) respond to claims that any Content violates the rights of third-parties; (iv) respond to your requests for customer service; or (v) protect the rights, property, or personal safety of Taggart, its users and the public. You understand that the technical processing and transmission of the Service, including your Content, may involve (A) transmissions over various networks; and (B) changes to conform and adapt to technical requirements of connecting networks or devices.
You understand that the Service and software embodied within the Service may include security components that permit digital materials to be protected, and use of these materials is subject to usage rules set by Taggart and/or content providers who provide content to the Service. You may not attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Service, in whole or in part, is strictly prohibited.
7. REPRESENTATIONS AND WARRANTIES
You represent and warrant to Taggart that you have the full legal right to upload and use the Content in the manner contemplated by this Agreement and that such use will not violate the Rights of any third party, including rights of confidentiality or privacy. You further represent and warrant to Taggart that you will use any and all information provided by Taggart in connection with your use of the Service, including information regarding end-users, in compliance with all applicable local, state, Federal or international law including, but not limited to, any privacy acts or no call legislation currently enacted or enacted during the term of this Agreement.
You agree to indemnify, defend and hold harmless Taggart and its subsidiaries, affiliates, officers, directors, employees, agents, co-branders and/or partners from and against any and all claims, suits, damages, penalties, losses, liabilities, settlement fees, costs of investigation and defense and other costs and expenses, including claims from third parties and reasonable attorneys' fees and expenses that arise out of or are attributable to (a) the Content you submit or make available through the Service; (b) your use of the Service; (c) your connection to the Service; (d) your violation of this Agreement; (e) your violation of any applicable law; and/or (f) your violation of any rights of another.
9. NO RESALE OF SERVICE
You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service or any software used in accessing the Service.
10. MODIFICATIONS TO SERVICE
Taggart reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Taggart shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
You agree that Taggart may, under certain circumstances and without prior notice, immediately terminate your Taggart account and access to the Service. Cause for such termination shall include, but not be limited to, (a) breaches or violations of this Agreement or other incorporated agreements or guidelines; (b) requests by law enforcement or other government agencies; (c) a request by you (self-initiated account deletions); (d) discontinuance or material modification to the Service (or any part thereof); (e) unexpected technical or security issues or problems; (f) you have engaged in fraudulent or illegal activities; and/or (g) nonpayment of any fees owed by you in connection with the Services. Termination of your Taggart account includes (i) removal of access to all offerings within the Service; (ii) deletion of your password and all related information, text associated to codes, activity reports and all Content associated with or inside your account (or any part thereof); and (iii) barring further use of the Service. Further, you agree that all terminations for cause shall be made in Taggart's sole discretion and that Taggart shall not be liable to you or any third party for any termination of your account or access to the Service.
12. TAGGART'S PROPRIETARY RIGHTS
All materials, developments, inventions, software, trademarks, patents, trade dress, copyrights, information, data, writings, designs, engineering, know-how, trade secrets, and other intellectual property, in any form whatsoever, which is provided or made available to you by and/or on behalf of Taggart in connection with the Services is and shall remain the sole property of Taggart ("Taggart Property"). You shall not acquire any right, title or interest in any Taggart Property as a result of this Agreement, other than the rights set forth in Section 18 below. Upon termination of this Agreement for any reason, you shall return to Taggart all materials and equipment, if any, supplied to you by or on behalf of Taggart. You acknowledge and agree that the Service and the Taggart Property contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly permitted by this Agreement or authorized in writing by Taggart, you agree not to modify, rent, lease, loan, sell, distribute, use or create derivative works based on the Service or the Taggart Property, in whole or in part.
13. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TAGGART EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
TAGGART MAKES NO WARRANTY THAT (A) THE SERVICE WILL MEET YOUR REQUIREMENTS; (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; AND/OR (D) ANY ERRORS IN THE SOFTWARE OR TAGGLINE SYSTEM WILL BE CORRECTED. YOU HEREBY ACKNOWLEDGE THAT YOU HAVE NO RIGHT TO BRING A CAUSE OF ACTION AGAINST TAGGART IN A COURT OF LAW UPON THE HAPPENING OF ANY OF THE EVENTS DESCRIBED IN THIS PARAGRAPH.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TAGGART OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
14. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TAGGART SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF TAGGART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE SERVICE; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (D) ANY OTHER MATTER RELATING TO THE SERVICE.
15. EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 13 AND 14 MAY NOT APPLY TO YOU.
16. NO THIRD PARTY BENEFICIARIES
You agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement.
Taggart may provide you with notices, including those regarding changes to this Agreement, by either email, regular mail, or postings on the Service.
18. TRADEMARK INFORMATION
Taggart grants you permission to use the Taggart marks on advertising brochures, sign riders, website advertisements and other real estate-oriented marketing campaigns by or on your behalf solely in connection with your use of the Service. All other uses not associated with your use of the Service are expressly prohibited without the prior approval of an officer of Taggart. Upon cancellation of the Service, you agree to remove all references to Taggart from any and all marketing materials and advertisements. Any attempt to copy, steal or infringe on any intellectual property owned by Taggart will constitute a violation of US Federal Patent and Trademark law and will be subject to prosecution.
19. GENERAL INFORMATION
Entire Agreement. This Agreement constitutes the entire agreement between you and Taggart and governs your use of the Service, superseding any prior agreements between you and Taggart with respect to the Service.
Choice of Law and Forum. This Agreement and the relationship between you and Taggart shall be governed by the laws of the State of Minnesota without regard to its conflict of law provisions. You and Taggart agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Hennepin, Minnesota.
Waiver and Severability of Terms. The failure of Taggart to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect.
No Right of Survivorship and Non-Transferability. You agree that your Taggart account is non-transferable and any rights to such account and all contents within your account (including the Content) terminate upon your death, dissolution, termination or liquidation, as applicable. Upon such death, dissolution, termination or liquidation, your account may be terminated and all contents therein (including Content) permanently deleted. Headings. The section titles in this Agreement are for convenience only and have no legal or contractual effect.