End User License Agreement

Effective 9/8/11

TOTAL CONNECT END USER LICENSE ("License") BY a la mode technologies, llc.

IMPORTANT NOTICE TO USER – PLEASE READ CAREFULLY

 

YOU MAY NOT ACCESS TOTAL CONNECT (THE "SOFTWARE") OR USE ANY OF THE INFORMATION INCLUDED THEREON UNLESS YOU FIRST REVIEW AND ACCEPT THE TERMS AND CONDITIONS OF THIS USER AGREEMENT (The "AGREEMENT") BY CLICKING ON "I AGREE," YOU REPRESENT AND WARRANT TO a la mode technologies, llc.  (REFERRED TO HEREIN AS "ALM" or "WE") THAT YOU ARE A VENDOR PERFORMING A SERVICE SPECIFIC TO A REAL ESTATE TRANSACTION.  THIS AGREEMENT CONSTITUTES A BINDING AGREEMENT BETWEEN ALM AND THE TOTAL CONNECT USER ("USER" OR "YOU").  AFTER REVIEWING THE TERMS AND CONDITIONS BELOW, PLEASE ACKNOWLEDGE YOUR AGREEMENT BY CLICKING ON "I AGREE," OR THAT YOU DECLINE THIS AGREEMENT BY CLICKING ON "I DO NOT AGREE" AT THE BOTTOM OF THIS FILE.  YOU CANNOT OBTAIN ACCESS TO THE NETWORK UNLESS YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT BY CLICKING ON "I AGREE."

 

1.
Access to Software.  ALM hereby grants to you, and you hereby accept, a limited, revocable, non-exclusive right to access the Software solely for purposes directly related to your professional activities arising in the ordinary course of business, subject to and in accordance with the terms and conditions hereof.  Any other use of the Software is strictly prohibited. 
2.
Transaction Fees.  You shall pay the fees, if applicable, and other charges for the Services as stated on http://help.alamode.com/docs/2015.htm or in this Agreement.  All fees 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 arrears 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 transaction fees due.  You agree to pay ALM its reasonable expenses, including attorneys’ and collection agency fees, incurred in enforcing its rights under this Agreement.
2.2
Credit Card Processing.  By entering credit card information, User is authorizing ALM to charge the supplied credit card for each transaction made by User.
2.3
Refunds.  ALM will refund transaction fees if an order is canceled.  Refunds can take up to three (3) business days to process after the cancellation.
3.
Solicitation.  Soliciting any of the individuals or companies for purposes of selling products or services other than the real estate related products and services for which this software was specifically designed is prohibited.
4.
Use of Software.  In connection with your activities when using the Software, you shall (i) operate your business in accordance with all applicable laws and regulations, (ii) (iv) make no false or misleading representations to any party with regard to any product or service offered by you, and (v) not participate or engage in any illegal, deceptive, misleading, unethical or improper practice or infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy. 
5.
Information Rights.  ALM may retain and use information collected in Your use of the Software.  ALM will not share information associated with You with any third parties unless we (i) have Your consent; (ii) conclude that it is required by law or a good faith belief that access, preservation or disclosure of such information is reasonably necessary to protect the rights, property or safety of ALM, its users or the public; or (iii) provide such information in certain limited circumstances to third parties to carry out tasks on ALM’s behalf (e.g., billing or data storage) with strict restrictions that prevent the data from being used or shared except as directed by ALM.  When this is done, it is subject to agreements that oblige those parties to process such information only on ALM’s instructions and in compliance with this Agreement and appropriate confidentiality and security measures.
6.
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 TOTAL Connect 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.
7.
User Communication.  ALM reserves the right to send service e-mails notifying User 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 the Software.

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

8.
Restrictions.  You may not publish, display, disclose, rent, lease, sublease, modify, loan, distribute, or create derivative works based on the Software, or any part thereof.  You may not reverse engineer, decompile, translate, adapt, or disassemble the Software, nor shall you attempt to create the source code from the object code for the Software.  You shall not transmit the Software over any network or between any devices, although you may use the Software to make such transmissions of other materials.
9.
Ownership.  You have no ownership rights in the Software.  Rather, you have a license to use the Software as long as this Agreement remains in full force and effect.  Ownership of the Software, Documentation and all intellectual property rights therein shall remain at all times with ALM.  Any other use of the Software by any person, business, corporation, government organization or any other entity is strictly forbidden and is a violation of this Agreement.
10.
Copyright.  The Software, and Documentation contain material that is protected by United States Copyright Law and trade secret law, and by international treaty provisions.  All rights not granted to you herein are expressly reserved by ALM.  You shall not remove any proprietary notice of ALM from any copy of the Software or Documentation.
11.
Termination.  This Agreement shall become effective upon your acceptance of the terms and conditions contained herein and shall continue until terminated.
11.2
ALM reserves the right to terminate this Agreement for any breach of the provisions hereof or the provisions of the Agreement, as determined by ALM in its sole discretion.  ALM shall have no obligation to refund any of User’s fees due to ALM’s early termination of this Agreement.
11.3
ALM grants you the right to terminate this Agreement at any time.  Termination is effective when you cease use of the Software.  Such termination shall not relieve you of the obligation to pay the transaction fees due.
12.
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 Users.
13.
ALM’s Rights.  You hereby acknowledge that the Software is the proprietary property of ALM, the names and marks "Mercury" and "TOTAL Connect," 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, trademarks, service marks or designs related to Mercury, TOTAL Connect 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 you any ownership rights in the Marks or in any other intellectual property of ALM.  All right, title and interest in and to the Marks, and any other intellectual property of the ALM shall remain with ALM.  You further acknowledge that the Network and its functionality, structure and organization, and the code format of the Network are valuable confidential trade secrets of ALM. 
14.
Disclaimer of Warranties.  User 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 Mercury Network 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 USER’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.
15.
Limitation of Liability.  IN NO EVENT WILL ALM BE LIABLE TO USER 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 TOTAL CONNECT, (III) THIS AGREEMENT OR (IV) USER’S SOFTWARE REGARDLESS OF THE NATURE OR BASIS OF THE CLAIM INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT OR STRICT LIABILITY CLAIMS.  IN ADDITION, ALM SHALL HAVE NO LIABILITY OF ANY KIND OR NATURE TO USER ARISING OUT OF OR RELATED TO USER’S USE OF OR INABILITY TO USE USER’S SOFTWARE OR ACCOUNT.  IN THE EVENT THAT ALM IS LIABLE TO USER FOR ANY LOSS ARISING OUT OF OR RELATED TO THE SERVICES, THIS AGREEMENT OR USER’S SOFTWARE, ALM’S AGGREGATE LIABILITY TO USER WILL IN NO EVENT EXCEED $100.00.
15.2
No Liability for Unauthorized Use or Access.  User is solely responsible for ensuring that each password for User’s account is utilized only by User or, if applicable, by User’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 account 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.
16.
Indemnity.  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 or in connection with or resulting from your participation in the Network and or 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 the software 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.
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.
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.
19.
Governing Law.  This Agreement shall be construed and governed by the internal laws of the State of Oklahoma, U.S.A., excluding the application of its choice-of-law principles.  ALM may seek any interim or preliminary relief from a court of competent jurisdiction in Oklahoma City, Oklahoma necessary to protect the rights or property of ALM pending the completion of litigation or settlement.
20.
Severability.  If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced.  You agree that this Agreement may be assigned by ALM, in its sole discretion, to a third party in the event of a merger or acquisition.  This Agreement sets forth the entire understanding and agreement between you and ALM with respect to the subject matter hereof.
21.
Modifications to Terms of Service and Other Policies.  ALM reserves the right to change or modify any of the terms and conditions contained in this Agreement or any policy governing the software, at any time.  You are responsible for regularly reviewing the policy.  No amendment to or modification of this Agreement will be binding unless (i) You accept updated terms online, or (ii) You continue to use the Service after ALM has posted updates to the Agreement or to any policy governing the software.
22.
Assignment.  User 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.
No Waiver.  Neither the failure nor the delay of ALM in exercising, enforcing or taking action against you with respect to any of the ALM’s powers or rights shall operate as a waiver of such powers or rights.  No single or partial exercise by ALM of any of its powers or rights will preclude ALM from exercising such powers and rights in the future or from exercising other powers and rights.
24.
Section Headings.  The headings of sections in this Agreement are provided for convenience only and will not affect the construction of the sections.

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.  YOU FURTHER ACKNOWLEDGE THAT THIS LICENSE 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 LICENSE.  YOU ALSO AGREE THAT ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE APPLY TO YOUR USE OF THE NETWORK, SHOULD YOU CHOOSE TO PROCEED WITH THE USE AND IMPLEMENTATION OF THE SOFTWARE.