MASTER SUBSCRIPTION AGREEMENT
THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS ACCESS AND USE OF THE SERVICES OFFERED BY SETSCHEDULE, LLC (“SETSCHEDULE”), INCLUDING ACCESS ON A MEMBERSHIP BASIS, A TRIAL BASIS, AND OR EVALUATION BASIS FOR EVALUATING WHETHER TO ENTER INTO FULL COMMERCIAL BUSINESS ARRANGEMENT WITH SETSCHEDULE – ALL SERVICES REFERRED HEREIN AS (“SETSCHEDULE SERVICES”).
PLEASE READ VERY CAREFULLY THE FOLLOWING TERMS AND CONDITIONS BEFORE SIGNING UP OR USING THE SETSCHEDULE SERVICES. ACCESSING OR OTHERWISE USING THE SETSCHEDULE SERVICES REQUIRES YOU TO AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR OTHERWISE PURCHASING OR ACCESSING ANY OF THE SETSCHEDULE SERVICES, YOU (HEREINAFTER “YOU” OR “MEMBER” OR “SUBSCRIBER”) AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” OR “MEMBER” OR “SUBSCRIBER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SETSCHEDULE SERVICES.
TABLE OF CONTENTS
3. OUR RESPONSIBILITIES
4. YOUR RIGHTS AND OBLIGATIONS
5. ADDITIONAL RIGHTS AND OBLIGATIONS OF PREMIUM MEMBERS
6. USE OF SERVICES
7. THIRD PARTY PROVIDERS
8. FEES AND PAYMENT FOR PREMIUM SERVICES
9. PROPRIETARY RIGHTS AND LICENSES
11. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
12. MUTUAL INDEMNIFICATION
13. LIMITATION OF LIABILITY
14. TERM AND TERMINATION
15. NOTICES, GOVERNING LAW AND JURISDICTION
16. GENERAL PROVISIONS
1.1. Affiliates: “Affiliate” or “Affiliates” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.3. Appointments: Appointments are a type of Lead that specifically includes one or more scheduled events with a specific date and time, where a willing and capable Prospective Client expresses an interest to engage with a Member for Member’s services associated with the consummation of a Real Estate Transaction.
1.4. Beta Services: Beta Services shall mean any of the SetSchedule Services accessed by You for evaluation purposes; Beta Services may not be generally available to You.
1.5. Content: Content shall mean any software, platform, data, or information created or provided by SetSchedule to end-users that access the SetSchedule Services through online access or downloadable medium.
1.6. Confidential or Proprietary Information: Confidential Information or Proprietary Information shall mean the Content, Software, Documentation, and any information, technical data, or know-how considered proprietary or confidential by SetSchedule including, but not limited to, SetSchedule’s research, services, inventions, processes, specifications, designs, drawings, diagrams, concepts, marketing, techniques, documentation, source code, customer information, personally identifiable information, pricing information, procedures, menu concepts, business and marketing plans or strategies, financial information, and business opportunities disclosed by SetSchedule before or after the Effective Date of this Agreement, either directly or indirectly in any form whatsoever, including in writing, orally, machine readable form or through access to the SetSchedule Services.
1.7. Documentation: Documentation shall mean SetSchedule Services’ user guides, documentation, and help and training materials, as updated from time to time, which may be provided to users of the website or mobile applications.
1.8. Effective Date: The Effective Date of this Agreement is the date in which You accept this Agreement by clicking a box indicating your acceptance, or by executing an Order Form that references this Agreement, or otherwise purchasing or accessing any of the SetSchedule Services.
1.9. Intermediary: In general, SetSchedule is an intermediary, or finder, that introduces real estate brokers and agents to prospective clients but does not negotiate terms or engage in any other transactional activity. As an intermediary, SetSchedule’s duties will be limited to bringing real estate brokers and agents to prospective clients together so that they may negotiate their own contract.
1.10. Lead: A Lead shall mean contact information for a person or entity who may be a Prospective Client.
1.11. Members: A Member is a person qualifying under Section 2, using SetSchedule Services, and signatory to this Agreement.
1.12. Membership: Membership means the service provided by SetSchedule to Members, which does not require payment of a Service Fee.
1.13. Order Form: An Order Form shall mean an ordering document or online order specifying the SetSchedule Services to be provided hereunder that is entered into between You and SetSchedule, including any addenda and supplements thereto.
1.14. Premium Member: A Premium Member is a person qualifying under Section 2, enrolled in SetSchedule’s Premium Membership Program, signatory to this Agreement, having paid a Service Fee commensurate with Premium Member’s Membership Level selected by the Premium Member on a SetSchedule Order Form.
1.15. Premium Membership Program: SetSchedule’s Premium Members receive a predetermined number of Appointments. The specific number of Appointments may be determined by SetSchedule, or selected by the Premium Member on a SetSchedule Order Form.
1.16. Prescribed Period: Any time within 24 months from the date of the Appointment scheduled by SetSchedule between Member and Prospective Client.
1.17. Prospective Clients: A Prospective Client shall mean a party or individual interested in engaging the services provided by You and associated with the consummation of a Real Estate Transaction.
1.18. Real Estate Agent: A “real estate agent” is a person who, for compensation or in expectation of compensation, is employed by, an independent contractor for, or under the authority of a licensed real estate broker to purchase, sell, and/or lease property in the United States.
1.19. Real Estate Broker: A “real estate broker” is a person who is licensed to, for compensation or in expectation of a compensation, regardless of the form or time of payment: (a) sell or offer to sell, buy or offer to buy, solicit prospective sellers or purchasers of, solicit or obtain listings of, or negotiate the purchase, sale or exchange of real property or a business opportunity; (b) lease or rent or offer to lease or rent, or places for rent, or solicit listings of places for rent, or solicit for prospective tenants, or negotiate the sale, purchase or exchanges of leases on real property, or on a business opportunity, or collect rents from real property, or improvements thereon, or from business opportunities; (c) assist or offer to assist in filing an application for the purchase or lease of, or in locating or entering upon, lands owned by the state or federal government; (d) solicit borrowers or lenders for or negotiates loans or collects payments or perform services for borrowers or lenders or note owners in connection with loans secured directly or collaterally by liens on real property or on a business opportunity; or (e) sell or offer to sell, buy or offer to buy, or exchange or offer to exchange a real property sales contract, or a promissory note secured directly or collaterally by a lien on real property or on a business opportunity, and perform services for the holders thereof.
1.20. Real Estate Transaction: A Real Estate Transaction includes but is not limited to the purchase, sale, or lease of real property facilitated by You for the benefit of the Prospective Client introduced by SetSchedule through an Appointment or Lead.
1.21. Software: Software shall mean any software that You may be allowed to use or download, either with a purchase or at no charge, in connection with the SetSchedule Services and which may update automatically.
1.22. SetSchedule: SetSchedule is a Real Estate Broker as defined in 1.19 with license number 01939153.
1.23. Third-Party Applications: Third Party Applications shall mean products or services that may be made available by SetSchedule or third parties for integration with the SetSchedule Services.
1.24. Website: Website refers to the SetSchedule website at www.setschedule.com.
1.25. Your Data: Your Data shall mean data or information, including personally identifiable information, which You enter, upload or otherwise provide into SetSchedule forms, such as an Order Form, or into the environment provided to You, such as a mobile application or the Website, to access the SetSchedule Services.
2. QUALIFICATIONS, MEMBERSHIP & PREMIUM MEMBERSHIP PROGRAMS
2.1. Member Qualifications: You warrant that You are a United States citizen, a United States national, or a lawful permanent resident alien and at least 18 years of age, and licensed as a real estate broker, or an agent employed by a licensed real estate broker with authority and capacity to purchase, sell, and/or lease property in the United States.
2.1.1. E&O Insurance and Licensing: As a Member, You must hold sufficient Real Estate Agents/Brokers Liability, Errors and Omissions Insurance coverage and have an active real estate license. By accepting the terms of this Agreement, You warrant that You in fact hold sufficient Real Estate Agents/Brokers Liability, Errors and Omissions Insurance coverage and have an active real estate license.
2.2. Membership Program: SetSchedule’s Membership Program is free, meaning there are no monthly fees for access to our Leads. In exchange for access to SetSchedule’s Leads, all Members agree to timely pay SetSchedule Referral Fees associated with commissions earned as a result of consummating transactions with Prospective Clients referred through our Leads. Referral Fees are defined and detailed below in Section 4.
2.3. Premium Membership: In addition to being provided with access to our Leads, Premium Members receive access to Appointments and other Benefits (Premium Service(s)) depending on various membership levels, each level having different Service Fees. The Service Fees, Membership Levels, and Benefits therein are defined in the SetSchedule Website or mobile application, and provided to You and or selected by You in the Order Form.
3. OUR RESPONSIBILITIES
3.1. Provision of Services. SetSchedule will provide Members with Leads at SetSchedule’s discretion based on availability.
3.2. Provision of Premium Services. Should You elect to become a Premium Member by submitting an Order Form and paying a Service Fee, SetSchedule will: (a) make Premium Services available to You pursuant to this Agreement and the applicable Order Forms; (b) provide standard support for the Premium Services at no additional charge, and/or upgraded support if purchased; and (c) use commercially reasonable efforts to make certain online Premium Services, including the mobile device application platform, available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which SetSchedule shall give reasonable electronic notice and which SetSchedule shall schedule to the extent practicable), and (ii) any unavailability caused by circumstances beyond SetSchedule reasonable control, including without limitation those identified in Section 16.5 of this Agreement.
3.3. SetSchedule Personnel. SetSchedule will be responsible for the performance of SetSchedule employees and independent contractors working within the scope of their duties and their compliance with SetSchedule obligations under this Agreement, except as otherwise specified herein.
3.4. Beta Services. From time to time, SetSchedule may invite You to try Beta Services at no charge. You may accept or decline any such trial in Your sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered Premium Services under this Agreement, are not supported, and may be subject to Additional Terms. SetSchedule may discontinue Beta Services at any time in SetSchedule sole discretion and may never make them generally available. SetSchedule will have no liability for any harm or damage arising out of or in connection with a Beta Service.
3.4.1. NO WARRANTY. BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
3.4.2. THE PARTIES ACKNOWLEDGE THAT THE BETA SERVICE IS FOR USE IN A BETA TEST. SETSCHEDULE DISCLAIMS ALL WARRANTIES RELATING TO THE EVALUATION SOFTWARE, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
3.4.3. Beta Services License. Subject to the terms of this Agreement, SetSchedule grants to You a non-sublicensable, nonexclusive license to use the Beta Services during the term of this Agreement unless explicitly agreed to in writing by the SetSchedule. SetSchedule shall at all times retain all title to and ownership of the Beta Services and all ancillary products thereof. You agree to use the Beta Services only in the ordinary course of testing, and You will not reproduce or modify the Beta Services or any portion thereof. You shall not rent, sell, lease or otherwise transfer the Beta Services or any part thereof or use it for the benefit of a third party. You shall not reverse assemble, reverse compile or reverse engineer the Beta Services, or otherwise attempt to discover any Beta Services underlying Proprietary Information.
4. YOUR RIGHTS AND RESPONSIBILITIES
4.1. Registration. Upon Your registration on the SetSchedule Website or mobile application, SetSchedule may make one or more of the SetSchedule Services available to You without requiring payment of a Service Fee until the start date of any Premium Service ordered by You. Additional terms and conditions may appear on the registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
4.2. Leads. All Members will be provided access to Leads at SetSchedule’s discretion without requiring Member to pay a Service Fee. SetSchedule makes no guarantee that a real estate transaction will be consummated as a result of a Lead.
4.3. Termination of Services. SetSchedule may terminate or immediately suspend Your Service at any time for any reason without any liability. You acknowledge Your Service may not be complete or fully functional and may contain bugs, errors, omissions and other problems.
4.4. Referral Fees. All Members (including Premium Members), in consideration for receipt of the Leads and or Appointments provided by SetSchedule, agree to pay SetSchedule 20% of the GROSS commissions earned from each Lead that results in a Real Estate Transaction, payable upon closing escrow (if used in Member’s transaction), upon recordation of the deed, other evidence of transfer, or otherwise consummation of the transaction associated with the Real Estate Transaction.
4.4.1. Example. Only by way of example and for illustrative purposes, where SetSchedule provides Member with a referral, and Member, personally or through its Agent or Broker, earns 2.5% commission on a $1,000,000.00 contract, SetSchedule’s Referral Fee amounts to 20% off the GROSS $25,000.00 or $5,000.00.
4.5. Duration of Referral Fee Obligations. SetSchedule retains rights to any Referral Fees under Section 4.4 on any commission earned by a Member (including Premium Members) from Prospective Clients whether met through Leads or Appointments, during the Prescribed Period.
4.5.1. Multiple Transactions Resulting from Lead or Appointment. Member has a duty to pay Referral Fees under Sections 4.4 and 4.5 for multiple Real Estate Transaction with a single Prospective Client so long as the transactions are completed within the Prescribed Period.
4.5.2. Example. Only by way of example, and for illustrative purposes, where SetSchedule provides Member with a referral opportunity or Prospective Client on January 1, 2016, and Member, personally or through its Agent or Broker, earns commission on purchase of Property X to the Prospective Client as a result of a first transaction, a first Referral Fee will be owed to SetSchedule based on that first transaction per Section 4.4. If the same Prospective Client then, on July 1, 2016, sells Property X and through that second transaction Member earns commissions resulting from the second transaction, a second Referral Fee will be owed to SetSchedule based on that second transaction per Section 4.5 because the transaction occurred under the conditions of Section 4.5.1 of this agreement- during the Prescribed Period.
4.6. Duty to Report. You agree to promptly report to SetSchedule within 24 hours upon the following Triggering Events: (i) entering into a Listing Agreement with a Prospective Client/Seller; (ii) making an Offer on behalf/for a Prospective Client/Buyer; (iii) Opening Escrow in any transaction involving a Prospective Client; (iv) Closing Escrow in any transaction involving a Prospective Client; or entering into any Other Agreement that gives Member authority to offer, accept, sell, buy, rent or lease real estate, or otherwise procure any other business opportunity on behalf of a Prospective Client during the Prescribed Period.
4.6.1. Duty to Inform Company. SetSchedule may from time to time during the relationship between SetSchedule and Member, inquire as to Member’s activities, including but not limited to business production, revenue shares obtained from Referrals, or Referral Fees due; as such, Members agree to provide SetSchedule with said information requests, including updates such as bi-monthly status updates concerning the same.
4.7. Code of Conduct. While You are free to negotiate terms with Prospective Clients, and SetSchedule in no way will be involved in negotiations between Members and Prospective Clients, Member shall act professional and prudent at all times with Prospective Clients, including but not limited to meetings such as Appointments provided by SetSchedule.
4.8. Referral Agreement & Duty to Inform Member’s Agents, Broker of Member Obligations. Member agrees to ensure that its Agents and/or Broker agree to the terms of this agreement, and shall provide its Agents and/or Broker with this agreement. As such, Member shall be responsible for any commissions, or referral fees obtained through its Agents and/or Broker. To these ends, Member shall provide SetSchedule with contact information for Member, its Agents, Broker, Escrow Officer, Loan Officer, or any of Member’s representatives or Agency for who Member works for, and Member shall advise its Agents, Broker, Escrow Officer, Loan Officer, or any of Member’s representatives or Agency for who Member works for, of this Agreement with SetSchedule and Member’s obligations under this Agreement.
4.8.1. Referral Agreement: Member shall provide its Agents, Broker, Escrow Officer, Loan Officer, or any of Member’s representatives or Agency for who Member works for, with a Referral Agreement. In the event that You are required by policy or law to use a specific Referral Form, then you agree to provide that Referral Form with the Required Information upon request by SetSchedule.
4.8.2. Required Information: You agree to identify and provide in the Referral Agreement or your own Referral Form: (a) SetSchedule’s Brokerage Information, which has been or will be provided to You; (b) Your full legal Name as it appears in Your real estate license; (c) Name of Your Broker; (d) Your Address; (e)Your Phone Number; (f) Your email address; and (g) Your real estate License Number.
4.9. NO WARRANTIES. NOTWITHSTANDING SECTION 11 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS), SETSCHEDULE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY, INDEMNITY, CONFIDENTIALITY OR SUPPORT OBLIGATIONS.
5. ADDITIONAL RIGHTS AND OBLIGATIONS OF PREMIUM MEMBERS.
5.1. Service Fees. Premium Members agree to pay Service Fees due at the time of acceptance of this Agreement and or submission of an Order Form. Service Fees will be charged in accordance with each Premium Member’s selection on the Order Form. Premium Members will also be obligated to pay Referral Fees as described in Section 4 of this Agreement.
5.2. Additional Duty to Inform Company. In addition to any SetSchedule request for information from Member, or any duty to report upon a Triggering Event, Member shall regularly report to SetSchedule as follows:
5.2.1. Monthly Status Updates: Via email, once a month by the last day of the month, a Member must send SetSchedule status of all Leads and referrals dispatched to Member (current or past) for a minimum of 24 months from the dispatch date.
6. USE OF SERVICES
6.1. Usage Limits. SetSchedule Services are subject to usage limits, including, for example, the Member specified in Order Forms. Unless otherwise specified, (a) an Order Form refers to a specific Member, and the Services or Premium Service may not be accessed by Members other than those identified on the Order Form, and (b) a Member’s password may not be shared with any other individual.
6.2. End User License. Usage Restrictions & Remedial Measures. SetSchedule hereby grants to You a limited, non-exclusive, non-transferable right to use SetSchedule’s Software concerning the SetSchedule Services provided that You agree to the following:
6.2.1. Usage Restrictions. You shall not: (a) make any SetSchedule Services available to, or use any SetSchedule Services for the benefit of, anyone other than Member; (b) sell, resell, license, sublicense, distribute, rent or lease any SetSchedule Services, or include any SetSchedule Services in a service bureau or outsourcing offering; (c) use a SetSchedule Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) use a SetSchedule Service to store or transmit code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs or Trojan horses (“Malicious Code”); (e) interfere with or disrupt the integrity or performance of any SetSchedule Services or third-party data contained therein; (f) attempt to gain unauthorized access to any SetSchedule Services or its related systems or networks; (g) permit direct or indirect access to or use of any SetSchedule Services in a way that circumvents a contractual usage limit; (h) copy a SetSchedule Services or any part, feature, function or user interface thereof; (i) frame or mirror any part of any SetSchedule Services; (j) access any SetSchedule Services or Content in order to build a competitive product or service; or (k) modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile or attempt to decipher any code relating to the SetSchedule Services.
6.2.2. Remedial Measures. SetSchedule may, at its sole and absolute discretion, without prior notice to You and without liability, reject, prevent, discontinue or suspend Your account(s) and/or Your use of the SetSchedule Services if, at its sole discretion, SetSchedule is of the opinion that Your use does not meet SetSchedule’s specifications or guidelines, or which SetSchedule may consider to be inappropriate, illegal or harmful to its interests, or in violation of this Agreement. If SetSchedule exercises its absolute discretion under this Section 6.2.2, it shall have no obligation to refund any portion of any pre-paid memberships, or otherwise paid fees if applicable. Without limiting or waiving any right or claim against You that SetSchedule may have under the law or this Agreement in relation to any inappropriate, illegal or harmful use, SetSchedule reserves the right to deduct any costs, damages or expenses that it may have incurred in relation to such inappropriate, illegal or harmful use from Your unused pre-paid membership, if any, or to claim the same from You by any other means.
7. THIRD PARTY PROVIDERS
7.1. Third Party Products and Subscription Services. Any use or implementation by You of Third Party products or services, including any exchange of data between You and any Third-Party provider, is solely between You and the applicable Third-Party provider pursuant to such documentation as may be applicable, including any Third Party Provider’s end user license agreement. SetSchedule does not warrant or support Third Party Applications or other Third-Party products or services, regardless of whether they are designated as “certified” or otherwise, except as specified in an Order Form. SetSchedule does not endorse or assume any responsibility for any such Third-Party Applications information, materials, products, or services.
7.2. Integration with Third Party Applications. The SetSchedule Services may contain features designed to interoperate with Third Party Applications. To use such features, You may be required to obtain access to Third Party Applications from their providers, and may be required to grant SetSchedule access to Your account(s) on such Applications, and may incur additional fees.
8. FEES AND PAYMENT FOR PREMIUM SERVICES
8.1. Fees. You shall pay all fees specified in Order Forms; Except as otherwise specified herein: (i) fees are based on SetSchedule Services purchased and not actual usage; (ii) payment obligations are non-cancelable and fees paid are non-refundable; and (iii) the number of Appointments purchased cannot be reduced during the relevant Membership Term.
8.2. Invoicing and Payment. You will provide SetSchedule with valid and updated credit card information, or with a completed Order Form or alternative document reasonably acceptable to SetSchedule that provides payment information. If You provide credit card information, You authorize SetSchedule to charge Your credit card for all Premium Services listed in the Order Form for the initial Membership Term and any renewal Membership Term as set forth therein. Such charges shall be made in advance and automatically renewed on a monthly basis, or on the indicated reoccurring billing frequency as stated in the applicable Order Form. Regardless of the billing frequency, the charges shall be made within 10 days prior to the commencement of the applicable billing period. If the Order Form specifies that payment will be by a method other than a credit card, SetSchedule will invoice You in advance and otherwise in accordance with the relevant Order Form. You are responsible for providing complete and accurate billing and contact information to SetSchedule and notifying SetSchedule of any changes to such information. Automatic renewal will continue unless You notify SetSchedule prior to the commencement of the next Membership Term for which You are cancelling Your Membership, per Section 8.3 below.
8.3. Cancellations for Premium Services. Cancellation for Premium Services are defined in Your Order Form. However, please note that when cancelling Your Premium Membership, You remain responsible for all Referral Fee Obligations under Section 4 of this Agreement during the Prescribed Period.
8.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for SetSchedule Services is 30 or more days overdue, SetSchedule may, without limiting SetSchedule’s other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend SetSchedule Services to You until such amounts are paid in full.
8.5. Taxes. You are responsible for paying all taxes associated with earnings you may receive as a result if using the SetSchedule Services. If SetSchedule has the legal obligation to pay or collect taxes for which You are responsible under this section, the appropriate amount shall be invoiced to and paid by You, unless You provide SetSchedule with a valid tax exemption certificate authorized by the appropriate taxing authority.
9. PROPRIETARY RIGHTS AND LICENSES
9.1. Intellectual Property. You understand that You obtain no other rights whatsoever to the SetSchedule Services, Content, Software and associated Documentation (if provided), or any related intellectual property rights of SetSchedule and SetSchedule licensors. You understand that SetSchedule and SetSchedule licensors own all intellectual property rights to the SetSchedule Services, Software and associated Documentation. This ownership extends to all copies and portions of these items, and all improvements, enhancements, modifications and derivative works to these items. Therefore, Your right to use the SetSchedule Services, Software and associated Documentation (if provided) is a limited right to use or license, and not a transfer of ownership or title, and such license is limited to the terms and conditions of this Agreement.
9.2. License to Use SetSchedule Services. SetSchedule grants You a worldwide, limited-term license, under SetSchedule applicable intellectual property rights and licenses, to use the SetSchedule Services acquired by You pursuant to Order Forms, subject to those Order Forms and this Agreement.
9.3. Permission to Use Feedback. You grant SetSchedule and SetSchedule Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the SetSchedule Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You relating to the operation of the SetSchedule Services.
9.4. No Assignment. You may not assign any of Your rights or obligations hereunder, whether by operation of law or otherwise, without SetSchedule’s prior written consent.
10.1. Confidentiality: Each party agrees to treat all Confidential Information as confidential and not to use or disclose such Confidential Information except as necessary to perform its obligations under this Agreement.
10.2. Protection of Confidential or Proprietary Information. You agree not to use any of the Confidential or Proprietary Information of SetSchedule except as authorized under this Agreement. For the avoidance of doubt, Your Data as defined herein is not a part of Confidential or Proprietary Information. Except as explicitly authorized in writing by this Agreement or otherwise, You agree to: (a) not use, for Your own benefit or the benefit of any third party, the other party’s Confidential Information; and (b) use all reasonable care, but in no event less care than it takes to protect your own Confidential Information of similar importance, to protect the SetSchedule’s Confidential Information from unauthorized use, disclosure and publication. You acknowledge that the breach of this Section 10 could cause great or irreparable injury to the disclosing party and that pecuniary compensation would not afford adequate relief, and therefore, that upon any such unauthorized disclosure by You, Your agents or affiliates, SetSchedule shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
10.3. Permitted Use of Your Confidential Information. In the event that Your Data or any information provided by You to SetSchedule is deemed Your Confidential Information, You grant to SetSchedule a non-exclusive, royalty free right during Your use of the SetSchedule Services, to use Your Confidential Information for the sole purpose of performing SetSchedule obligations under this Agreement in accordance with the terms of this Agreement. Such rights shall include permission for SetSchedule to generate and publish aggregate, anonymized reports on system usage and Content trends and type, provided they do not conflict with Section 10.1.
10.4. Legal Compliance. SetSchedule maintains that its primary duty is to protect Your Data to the extent the law allows. SetSchedule reserves the right to provide Your Confidential Information to third parties as required and permitted by law (such as in response to a subpoena or court order), and to cooperate with law enforcement authorities in the investigation of any criminal or civil matter. If SetSchedule is required by law to make any disclosure of Your Confidential Information that is prohibited or otherwise constrained by this Agreement, then SetSchedule will provide You with prompt written notice (to the extent permitted by law) prior to such disclosure so that You may seek a protective order or other appropriate relief. Subject to the foregoing sentence, SetSchedule may furnish that portion (and only that portion) of Your Confidential Information that it is legally compelled or otherwise legally required to disclose.
11. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
11.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
11.2. Warranties. SetSchedule warrants that (a) this Agreement, and the Order Forms accurately describe in all material respects the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) SetSchedule will not materially reduce the overall security of the Premium Services during a subscription term, (c) subject to Section 7 (Integration with Third Party Applications), SetSchedule will not materially reduce the functionality of the Premium Services during a subscription term, and (d) the Premium Services and Content will not introduce Malicious Code into Your systems. For any breach of an above warranty, Your exclusive remedies are those described in Sections 14.3 (Termination).
11.3. DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
11.4. DISCLAIMER OF GUARANTEE. ALTHOUGH SETSCHEDULE WILL MAKE EVERY EFFORT TO CONFIRM THE CAPACITY AND WILLINGNESS OF PROSPECTIVE CLIENTS TO ENTER INTO CONTRACTS OR TRANSACTIONS USING THE SETSCHEDULE SERVICES, SETSCHEDULE MAKES NO GUARANTEE THAT A REAL ESTATE TRANSACTION WILL BE CONSUMMATED AS A RESULT OF A LEAD.
12. MUTUAL INDEMNIFICATION
12.1. Indemnification by SetSchedule. SetSchedule will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of a Premium Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Subscriber”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of, a claim against You, provided You (a) promptly give SetSchedule written notice of the claim, (b) give SetSchedule sole control of the defense and settlement of the claim (except that SetSchedule may not settle any claim against You unless it unconditionally releases You of all liability), and (c) give SetSchedule all reasonable assistance, at SetSchedule’s expense. If SetSchedule receives information about an infringement or misappropriation claim related to a SetSchedule Service, SetSchedule may in SetSchedule’s discretion and at no cost to You (i) modify the SetSchedule Services so that it no longer infringes or misappropriates, without breaching SetSchedule’s warranties under Section 11.2 (Warranties), (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that SetSchedule Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a claim against You arises from Content, a Third Party Application or Your breach of this Agreement.
12.2. Indemnification by You. You will defend SetSchedule against any claim, demand, suit or proceeding made or brought against SetSchedule by a third party alleging that Your Data, or Your use of any SetSchedule Service in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and will indemnify SetSchedule from any damages, attorney fees and costs finally awarded against SetSchedule as a result of, or for any amounts paid by SetSchedule under a court-approved settlement of, a Claim Against Us, provided SetSchedule (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against SetSchedule (except that You may not settle any Claim Against SetSchedule unless You unconditionally release SetSchedule of all liability), and (c) give You all reasonable assistance, at Your expense.
12.3. Exclusive Remedy. This Section 12 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 12.
13. LIMITATION OF LIABILITY
13.1. LIMITATION OF LIABILITY. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY CLAIM OR SERIES OF RELATED CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 8 (FEES AND PAYMENT FOR PREMIUM SERVICES).
13.2. EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
14. TERM AND TERMINATION
14.1. Term of Agreement. This Agreement commences on the date You first accept it and continues until all Memberships hereunder have expired or have been terminated and are not renewed.
14.2. Term of Premium Services. The term of each Premium Service shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, Premium Services will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The pricing during any automatic renewal term will be the same as that during the immediately prior term unless SetSchedule has given You written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
14.3. Termination. This Agreement may be terminated by each of the Parties at any time, provided that prior Notice is given under Section 15 of this Agreement, and that You will remain responsible for: (i) any obligations under this Agreement pertaining to any Appointments provided to You prior to said Notice of termination and (ii) any Real Estate Transactions within the Prescribed Period.
14.4. Surviving Provisions. The Sections titled “Fees and Payment for Purchase Services,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Notices, Governing Law and Jurisdiction,” “Duration of Referral Fee Obligations” and “General Provisions” will survive any termination or expiration of this Agreement.
15. NOTICES, GOVERNING LAW AND JURISDICTION
15.1. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. SetSchedule Contact Information: Tel.: 888-222-0011; Email: firstname.lastname@example.org.
15.2. Governing Law. The law of California law shall govern, construe and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement.
15.3. Arbitration. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by binding arbitration in Orange County, California before a single arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
16. GENERAL PROVISIONS
16.1. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and SetSchedule regarding Your use of SetSchedule Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) this Agreement, and (2) the applicable Order Form.
16.2. Updates to this Agreement. SetSchedule reserves the right to alter the terms and conditions of this Agreement at any time. If SetSchedule updates this Agreement in any way, SetSchedule will post the updated terms on its website or will notify You using reasonable efforts by any means. If You renews the term, or purchases additional SetSchedule Services after the updated Agreement has been posted, You agree to the updated terms.
16.3. Publicity. You hereby agree that SetSchedule may, but is not obliged to, use Your name and refer to You as a user of the SetSchedule Services in any publicity, press release, advertising or marketing material, throughout the world using any form of media. If You wish to use or display SetSchedule trademarks or mention SetSchedule in any publication, website, press release or in any other manner, You must obtain the prior written consent of SetSchedule.
16.5. Force Majeure. SetSchedule has no responsibility for and is released from all contractual obligations and liability (e.g. for damages) if its performance of these terms and conditions is affected by an event of force majeure. For the purpose of this clause, the term “force majeure” means and includes any event which was not under the control of SetSchedule, or was not reasonably foreseeable, including, but not limited to any natural disaster such as thunderstorm, flood or storm, fire, national emergency, strike or equivalent labor action, or the unavailability of the Internet for reasons beyond the control of SetSchedule.
16.6. Injunctive Relief. You understand and agree that SetSchedule shall suffer irreparable harm in the event that any Member breaches any of its obligations under this Agreement and that monetary damages shall be inadequate to compensate SetSchedule for such breach. Accordingly, You agree that, in the event of a breach or threatened breach by You of any of the provisions of the Agreement, SetSchedule, in addition to and not in limitation of any other rights, remedies or damages available to SetSchedule at law or in equity, shall be entitled to an interim injunction, interlocutory injunction, and permanent injunction, in order to prevent or to minimize any such breach by You or any or all of Your partners, agents, representatives, and any and all persons directly or indirectly acting for, on behalf of, or with You.
16.7. Indemnification for Actions of Representatives. In addition to any other remedies available to SetSchedule, You shall indemnify SetSchedule and its successors and assigns, and its and their respective officers, directors, shareholders, employees and agents, against any and all damages, claims, losses, liabilities and expenses of every kind and character, including without limitation, reasonable legal, accounting and other expenses, including reasonable attorney’s fees, for bodily injury, illness, death, loss, damage or destruction of property or violation of law, order or regulation (whether willful, reckless, negligent or in strict liability) arising out of any actions by You or any of Your representatives, including negligence, misrepresentations, strict liability, willfull misconduct, or any other breach of duties by You or Your representatives that cause injury or harm a third party or Prospective Client.
16.8. Actions of Prospective Clients. You agree to hold SetSchedule and its successors and assigns, and its and their respective officers, directors, shareholders, employees and agents, harmless against any and all damages, claims, losses, liabilities and expenses of every kind and character, including without limitation, reasonable legal, accounting and other expenses, including reasonable attorney’s fees, for bodily injury, illness, death, loss, damage or destruction of property or violation of law, order or regulation (whether willful, reckless, negligent or in strict liability) arising out of any actions by third parties, including Prospective Clients, introduced during Appointments or through Leads, including negligence, misrepresentations, strict liability, willfull misconduct, or any other breach of duties by said third parties or their representatives.
16.9. Exclusion of Consequential Loss. In no circumstances shall SetSchedule be liable for indirect, consequential, reliance, or special loss or damages or for lost revenues, lost savings, lost business opportunity or lost profits of any kind.
16.10. Attorney’s Fees. In the event any litigation, arbitration, or other proceeding is brought for the interpretation or enforcement of this Agreement, or because of an alleged dispute, default, misrepresentation, or breach in connection with any of the provisions of this Agreement, the prevailing Party or Parties shall be entitled to recover their reasonable attorneys’ fees, costs, and expenses actually incurred in connection therewith, in addition to any other relief to which she, it, or they may be entitled.
16.11. Entire Agreement, Amendments, Prior Discussions. This Agreement constitutes the final, exclusive and complete statement of the party’s agreement respecting the subject matter addressed herein. This Agreement may not subsequently be amended or modified except by a writing signed by both parties hereto.
16.12. Successors and Assigns. This Agreement is binding upon each party hereto and its successors. Neither party may assign or transfer any right or obligation under this Agreement without prior written consent of SetSchedule.
16.13. Severability. In the event that any provision or part of any provision of this Agreement shall be deemed to be void or invalid by a court of competent jurisdiction, the remaining provisions or parts shall be and remain in full force and effect.