End User License Agreement

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	End User License Agreement

BROKER XSITES
TERMS OF SERVICE AGREEMENT

IMPORTANT NOTICE TO USER - PLEASE READ CAREFULLY

THE FOLLOWING TERMS OF SERVICE AGREEMENT (THE "AGREEMENT") DETAILS THE TERMS AND CONDITIONS FOR THE WEBSITE HOSTING AND E-COMMERCE SERVICES (THE "SERVICES") PROVIDED AND ADMINISTERED BY A LA MODE, INC. (REFERRED TO HEREIN AS "ALM" OR "WE"). THIS AGREEMENT CONSTITUTES A BINDING AGREEMENT BETWEEN ALM AND THE BROKER XSITES MEMBER ("MEMBER" OR "YOU"). YOU MAY NOT ACCESS BROKER XSITES UNLESS YOU FIRST REVIEW AND ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT BY CLICKING ON THE "AGREE" BUTTON AT THE BOTTOM ON THIS PAGE. AFTER YOU REVIEW THE TERMS AND CONDITIONS BELOW, PLEASE ACKNOWLEDGE YOUR AGREEMENT BY CLICKING ON THE "AGREE" BUTTON OR THAT YOU DECLINE THIS AGREEMENT BY CLICKING ON THE "DISAGREE" BUTTON AT THE BOTTOM OF THIS PAGE.

TERMS AND CONDITIONS

1. LICENSE TERMS: ALM hereby grants You a nonexclusive, nontransferable, restrictive and conditional right to use the Services subject to the terms and conditions contained in this License. You assume full responsibility for the selection of this program to achieve your intended results, and for the installation, use, and results obtained from said Services.

2. Fees and Payment. You shall pay the fees and other charges for the Services as stated on the ALM website or in this Agreement. All fees are due immediately and, except as expressly provided herein, are non-refundable. ALM reserves the right to change its fees at any time. You shall make all payments in U.S. currency. Your credit card will be billed in advance for any and all fees. ALM reserves the right to suspend or terminate your account if credit card charges are denied. Such suspension or termination shall not relieve you of the obligation to pay the fees due. You agree to pay ALM its reasonable expenses, including attorneys' and collection agency fees, incurred in enforcing its rights under this Agreement.

3. Term and Termination. This Agreement shall become effective upon your acceptance of the terms and conditions contained herein and shall continue for a period of one (1) year unless sooner terminated as provided below.

4. ALM reserves the right to terminate this Agreement for any reason, as determined by ALM in its sole discretion. ALM shall have no obligation to refund any of Member's fees due to ALM's early termination of this Agreement.

5. Upon the termination of this Agreement for any reason, ALM shall replace the home page of Member's website with a standard error message at no charge to Member.

6. USE OF THE SERVICES: You agree to take all reasonable and necessary steps to ensure that all employees and other persons under your control do not use the Services in contravention of the terms of this License and are aware of and abide by the terms of this License. The Services shall be used only by you and your company.

7. User agrees that as a Broker XSite owner, you accept all responsibility for any and all XSites under your Broker XSite account, including, but not limited to data, listings, and all use, now known or later invented. It is your responsibility to ensure that all users of your sites will comply with the Agent XSites End User License Agreement, including the advertising of homes and MLS listings.

8. User agrees that in the event User participates in or utilizes Listings XChange functionality, that User provides express consent to Listings XChange users to use, publish, promote or advertise User's applicable listings. User acknowledges and agrees that Users and Listings XChange users create advertising relationships and that ALM is not a party to said relationship. Users and Listings XChange users accept the obligation to create, manage, alter, and/or end said relationships and participation in the Listings XChange functionality. There is no transfer of ownership rights associated with this functionality.

9. Responsibility for Member Website Development, Operation and Maintenance. Member will be solely responsible for the development, operation and maintenance of Member's website and all content and materials appearing on-line including, without limitation:
(a) the accuracy and appropriateness of content and materials appearing on the website;
(b) ensuring that the content and materials appearing do not violate or infringe upon the rights of any third party;
(c) ensuring that the content and materials appearing are not libelous or otherwise illegal;
(d) the final calculation and application of shipping and sales tax and for accepting, processing, filling and shipping any customer orders;
(e) handling any customer inquiries or complaints arising from customer orders; and
(f) the security of any customer credit card numbers and related customer information that you obtain or access as a result of conducting electronic commerce via Member's website and to keep all such information confidential and to exercise the same degree of care and security standard in the industry.

10. Member Communication. ALM reserves the right to send Member service e-mails notifying Member of operational or other changes that may affect or change the Services offered by ALM. Please note that you cannot opt out of such service e-mails because these service e-mails provide information critical for the operation of Member's website.

MEMBER HEREBY GRANTS ALM EXPRESS WRITTEN PERMISSION TO SEND FAX AND OR EMAIL SOLICITATIONS OR ADVERTISEMENTS, THUS SATISFYING ANY EXPRESS WRITTEN PERMISSION REQUIREMENT.

11. Amendments/Modifications. ALM reserves the right to amend the Service offerings and add, delete, suspend or modify the terms and conditions of the Services at any time, and to determine whether and when, at its sole discretion, any such changes apply to existing or future Members.

12. Content.

12.1 ALM is not responsible for the content of any web page hosted by ALM. The opinions and views expressed in such web pages do not necessarily reflect those of ALM. The contents of the web pages hosted by ALM are not reviewed in any way before they appear on the web page. As the author of web pages hosted on XSites, you take full responsibility for their contents. Do not use the web space provided by ALM to provide material that is offensive to the web community including, but not limited, expressions of bigotry, racism, hatred or profanity or for promoting or providing instructional information about illegal activities or promoting physical harm or injury against any group or individual.

12.2 XSites shall only be used for lawful purposes. Transmission or solicitation of any material that violates any local, state, federal or international law, order or regulation is prohibited.

12.3 Your web pages cannot contain, or provide links to, materials that ALM, in its sole discretion, may consider illegal or offensive including, but not limited to:
(a) copyrighted material not belonging to you -- for example, music, images, software or video -- unless you have the prior consent of the copyright owner;
(b) trademarked materials not belonging to you without the prior consent of the trademark owner;
(c) pornography, nudity, sex or any other material that would commonly be considered "indecent" or "appealing to the prurient interest";
(d) gambling;
(e) foul language;
(f) pyramid or other illegal solicitation schemes; or
(g) insults to other persons or businesses including, but not limited to, material that is obscene, threatening, harassing, defamatory or libelous.

12.4 You shall not use your web pages to conduct any of the following activities:
(a) send bulk/spam e-mail;
(b) send mass/spam news postings;
(c) disclose the trade secrets of any other person or entity;
(d) use patented or trademarked materials without the prior consent of the patent or trademark owner;
(e) rent, sell or otherwise distribute web space to third parties; or
(f) conduct any other activity that ALM determines, in its sole discretion, to be fraudulent, illegal or an unreasonable drain on system resources.

12.5 The financial calculators are made available to you "AS IS" for your independent use and are not intended to provide investment advice. We can not and do not guarantee their applicability in regards to your individual circumstances. A LA MODE MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, REGARDING THE FINANCIAL CALCULATORS INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

13. Security. You agree that you will not attempt to compromise the security on the ALM servers by any means including, but not limited to:
(a) attempting to gain access to restricted information on the ALM servers;
(b) attempting to disable, cripple or modify ALM servers or any service running on an ALM server; or
(c) attempting to access information in other XSites accounts.

ALM reserves the right to prosecute any person or entity attempting to compromise the security of the ALM servers to the fullest extent allowed by applicable law.

14. LIMITED WARRANTY: a la mode, inc. warrants for a period of 100 days from your receipt of the Software delivered with this package, that if operated as directed, this program will operate substantially in accordance with the Documentation. However, a la mode, inc. does not warrant that the functions contained in the Software will meet your requirements or that the operation of this program will be uninterrupted or error free. Any use by you of the Software is at your own risk. This Limited Warranty is the only warranty provided by a la mode, inc. regarding the Software. To make a warranty claim, you must return this program to the location where you obtained it along with proof of purchase within such 100 day period. If this program does not perform substantially in accordance with the Documentation, a la mode inc.’s entire liability and your exclusive remedy shall be limited to, at a la mode, inc’s sole and exclusive discretion, either:
a. The replacement of any software not meeting a la mode, inc.’s "Limited Warranty" which is returned to a la mode, inc., or
b. If a la mode, inc. is unable to deliver replacement software which is free of defects in materials or workmanship, you may terminate this Agreement by returning the program and your purchase price will be refunded to you within a reasonable period of time.

15. Disclaimer of Warranties. Member understands that the Internet and other various networking communication mediums are not secure, unless explicitly specified as such, and may be subject to interception or loss. ALM makes no representations or warranties of any kind, either express, implied or statutory, concerning the data or information available through XSites or the Internet. ALM'S SERVICES ARE PROVIDED ON AN "AS IS" BASIS. ALM MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT; THAT THE SERVICES WILL MEET MEMBER'S REQUIREMENTS OR WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR; ANY IMPLIED WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE; REGARDING ANY THIRD PARTY SOFTWARE OR SERVICES; AND/OR ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF ALM. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ALM DISCLAIMS ANY AND ALL SUCH REPRESENTATIONS AND WARRANTIES.

16. Limitation of Liabilities.

16.1 General. IN NO EVENT WILL ALM BE LIABLE TO MEMBER FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, INDIRECT, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOST PROFITS OR LOSS OF BUSINESS) ARISING OUT OF OR RELATED TO (I) THE SERVICES, (II) YOUR USE OF ANY DATA, INFORMATION OR THIRD PARTY SOFTWARE AVAILABLE THROUGH XSITES, (III) THIS AGREEMENT OR (IV)MEMBER'S WEBSITE REGARDLESS OF THE NATURE OR BASIS OF THE CLAIM INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT OR STRICT LIABILITY CLAIMS. IN ADDITION, EXCEPT FOR THE SERVICE LEVEL WARRANTY SPECIFIED IN SECTION 13 HEREOF, ALM SHALL HAVE NO LIABILITY OF ANY KIND OR NATURE TO MEMBER ARISING OUT OF OR RELATED TO MEMBER'S USE OF OR INABILITY TO USE MEMBER'S WEBSITE. IN THE EVENT THAT ALM IS LIABLE TO MEMBER FOR ANY LOSS ARISING OUT OF OR RELATED TO THE SERVICES, THIS AGREEMENT OR MEMBER'S WEBSITE, ALM'S AGGREGATE LIABILITY TO MEMBER WILL IN NO EVENT EXCEED THE AMOUNT OF ANY ACTUAL MONETARY LOSS OR DAMAGES SUFFERED UP TO, AND NOT IN EXCESS OF, THE AGGREGATE FEES PAID, IF ANY, FOR THE SERVICES WHICH GAVE RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CLAIM AROSE.

16.2 No Liability for Unauthorized Use or Access. Member is solely responsible for ensuring that each password for Member's website is utilized only by Member or, if applicable, by Member's authorized employees and agents. ALM shall have no liability for any loss, claim, damage or other liability that may arise from the unauthorized use of a password. If a password is lost or stolen or if you have reason to believe that your website is no longer secure for any reason, it is your responsibility to notify ALM of such loss or theft so that the password can be deactivated and a new password assigned. ALM will use commercially reasonable efforts to effect password deactivation requests promptly.

17. Member Acknowledgement. Member acknowledges and agrees that the disclaimers of warranties, limitations of liability and indemnification provisions set forth in this Agreement reflect a mutually agreed upon allocation of risk and form a fundamental part of the basis of the bargain hereunder, without which ALM would not have entered into this Agreement.

18. Domain Name. If Member wishes to register a custom domain name ("Domain Name") for the Member's website, ALM will cooperate with Member in registering the Domain Name with the appropriate entity. As between Member and ALM, Member shall own all right, title and interest in and to the Domain Name. Member shall be solely responsible for tracking and ensuring that all required renewals for Member Domain Names are made in a timely manner. ALM will cooperate with Member to renew Domain Names. ALM makes no representation or warranty of any kind concerning the registration of a Domain Name for Member, or concerning the automatic renewal of Domain Names on behalf of Member and under no circumstances shall ALM be liable to Member or any other person or entity in the event that any Domain Name is either not registered or renewed in a timely manner. As part of the Services provided under this Agreement, ALM will provide reasonable domain name server ("DNS") assistance. If Member arranges for a third party to provide DNS and/or e-mail service, Member shall hold ALM harmless from and against any errors made as a result of the third party's management of Member's DNS and/or e-mail service. If a third party provides DNS and/or e-mail service for Member, and Member requests additional services from ALM concerning Member's DNS and/or e-mail service, such additional services will be provided at ALM's then current hourly rate.

19. Acceptable Use Policy. You shall comply at all times with the terms of the XSites Acceptable Use Policy, a copy of which may be found at http://www.alamode.com/xsites/aup. ALM may change the Acceptable Use Policy at any time without notice, at ALM's sole discretion. ALM may terminate this Agreement if you violate the terms of the Acceptable Use Policy. The determination of whether the terms of the Acceptable Use Policy have been violated will be made solely by ALM.

20. Service Level. If, due to the fault of ALM, Member's website is not accessible to users for eighty-five percent (85%) or more of the hours in any particular month following the month in which this Agreement becomes effective, then Member shall be entitled to a pro rata refund of the fees paid for such hosting in such month (in proportion to the percentage of the total hours of the month in which the website is not accessible). ALM will not be responsible for refunding any other fees paid by Member.

21. Intellectual Property. Member acknowledges and agrees that XSites is a valuable commercial product of ALM, the development of which has involved expenditure by ALM of substantial time and money. Member acknowledges and agrees that Member has no ownership rights in XSites. Member further acknowledges and agrees that the name and mark "Broker XSites" and all associated names, marks and logos (collectively, the "Marks") are the trademarks and/or service marks of ALM or its affiliates, and that any trade dress, trademark, service mark or designs related to XSites and/or the Marks are the intellectual property of ALM and are protected by United States copyright laws, trademark laws, trade secret laws, international treaties and applicable laws of the states and jurisdictions where they are used. This Agreement does not grant to Member any ownership right in the Marks or in any other intellectual property of ALM. All material on XSites including, but not limited to, images, illustrations and musical compositions is protected by copyrights that are owned or controlled by ALM or by other parties that have licensed their material to ALM. Except as otherwise provided in the following sentence, all right, title and interest in and to the Marks and any other intellectual property of ALM shall remain with ALM. ALM grants a non-exclusive, revocable, non-transferable license to Member to use solely during the term of this Agreement the graphics, text, musical compositions, tools and modules provided by ALM through XSites; provided, however, that such graphics, text, musical compositions, tools, and modules may be used by Member only on ALM's server. Such license shall terminate upon the termination of this Agreement. Member shall not, under any circumstances, resell, distribute or allow any other entity or person to use any of ALM's products, modules, tools, scripts, graphics, text, database/programming code or object or source codes without ALM's prior written consent. As between Member and ALM, the parties agree that ALM shall own and retain all intellectual property rights, copyrights, patents and all rights, title and interest in and to all of the products, modules, tools, scripts, graphics, text, database/programming code and object or source codes provided or supplied by ALM that are displayed on Member's website or used in the development or the maintenance of Member's website. Access to XSites does not grant to Member the right to reproduce, copy or distribute (except as permitted by ALM on web pages hosted by ALM) by any means, method or process whatsoever, now known or hereafter developed, any of the musical compositions made available by ALM through XSites including, without limitation, transferring or downloading them to a computer hard drive, or otherwise copying them onto any other storage medium. In addition, access to XSites does not grant to Member the right to perform publicly, by any means, method or process whatsoever, now known or hereafter developed, any of the musical compositions made available by ALM through XSites including, without limitation, any transmission, retransmission, or further transmission of them. All musical compositions made available by ALM through XSites are protected by copyrights that are owned by the individual composers thereof or other parties and all such musical compositions have been licensed by Shockwave-Sound.com for use only on web pages hosted by ALM.

22. Links to Other Websites. As a convenience to Member, ALM provides links to websites owned and operated by third parties not affiliated with ALM. Member's use of the services and products offered via any such linked website shall be at Member's own risk and ALM assumes no responsibility for the products and services offered via any such linked website, regardless of whether ALM receives a referral fee for Member's use of the linked website. Member acknowledges and agrees that ALM shall not be held responsible for the legality, accuracy or inappropriate nature of any content, advertising, products, services or information located on or through any of the linked websites, nor for any losses or damages caused or alleged to have been caused by the use of or reliance on any content from any such linked website.

23. General Provisions.

23.1 Governing Law. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of Oklahoma, without giving effect to its conflict of laws principles.

23.2 Force Majeure. ALM shall not be liable for nonperformance, delay, errors, data loss or other loss caused by any event reasonably beyond ALM's control including, but not limited to, acts of God, war, terrorism, hostilities, revolution, civil disorder, national emergency, strikes, lockouts, unavailability of supplies, epidemics, fire, flood, earthquake, force of nature, explosion, embargo or any law, proclamation, regulation, ordinance or other act or order of any court, government or governmental agency.

23.3 Legal Expenses. The prevailing party in any arbitration proceeding or other legal action brought by one party against the other and arising out of this Agreement shall be entitled, in addition to any other rights and remedies it may have, to reimbursement for its expenses, including court costs and reasonable attorneys' fees.

23.4 Severability; Waiver. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.

23.5 Assignment. Member may not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of ALM. ALM's rights and obligations hereunder will bind and inure to the benefit of its successors and assigns.

23.6 Independent Contractors. The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party.

23.7 Indemnification; you agree to indemnify and hold ALM harmless from any and all claims and demands, including, but not limited to reasonable attorneys' fees, made by any third party due to or arising out of any information, including, but not limited to, information provided by ALM. The information, software, products, and services may include inaccuracies or typographical errors. Changes are periodically added to the information herein. ALM, its affiliates and/or its respective suppliers may make improvements and/or changes in this site at any time. In no event shall ALM be liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the use or performance of ALM services and software.

23.8 Entire Agreement. This Agreement sets forth the entire understanding and agreement of the parties and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement. ALM reserves the right in its sole discretion to change or modify this Agreement in whole or in part at any time or from time to time.

Microsoft Notice to USER

Microsoft disclaims to the extent permitted by applicable law, all warranties by Microsoft and any liability by Microsoft, its affiliates or suppliers for any damages, whether direct, indirect, or consequential, arising from the use of the Microsoft software services.

ALM will provide product support for the software services covered under this Agreement, unless otherwise indicated.

In an effort to improve the flow of email from you to your intended recipients, ALM may, from time to time, provide you with feedback from third parties. In the event that your email is deemed SPAM, and you fail to remove the recipient from your lists, ALM may, in its sole discretion, suspend or disconnect your service. In cases where feedback is provided by Microsoft, you shall treat the feedback and all information contained in such feedback as confidential information that is owned by Microsoft, and shall not share such feedback with any third parties.

BY CONTINUING YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT AND THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER ACKNOWLEDGE THAT THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN YOU AND ALM AND SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. YOU ALSO AGREE THAT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT APPLY TO YOUR USE OF XSITES SHOULD YOU CHOOSE TO PROCEED WITH THE USE OF XSITES. FINALLY, IF MEMBER IS AN ENTITY OF ANY KIND, YOU ACKNOWLEDGE THAT YOU ARE AN OFFICER OR OTHER AUTHORIZED PERSONNEL FOR MEMBER WHO HAS THE AUTHORITY TO AUTHORIZE THE PAYMENT FOR THE SERVICES CONTEMPLATED UNDER THIS AGREEMENT.