TERMS OF USE

Last Updated: June 6, 2017

This Terms of Use (the “Terms or “Agreement”) is a legal agreement between you (herein “you” or “Buyer”) and Open Listings Co. (herein “Open Listings”, “OL”, “us”, “we”, or “our”). OL is a Delaware corporation licensed as a Real Estate Brokerage in the State of California and the State of Washington with a business office located at 1864 N. Vermont Ave., Los Angeles, California 90027, United States. The Terms govern your access to and use of OL’s website [www.openlistings.com], mobile apps, digital properties and related services owned and operated by us, whether accessible on mobile devices, tablets, personal computers or other devices, (collectively, the “Services”). You agree to read carefully both the Terms and our Privacy Policy, which is available here and incorporated in these Terms by reference.  

Additionally, supplemental terms (collectively “Supplemental Terms”) apply to specific aspects of our Services (each a “Program”), such as our home-buying Program that is governed by separate real estate agreements.  Please read all Supplemental Terms carefully and contact us, as provided below if you have questions or concerns about any Program. You understand you are under no obligation work with Open Listings to buy a home or enter into any Supplemental Terms. Supplemental Terms: a) will be disclosed to you in connection with your application for a specific Program, b) are in addition to these Terms and, c) in the event of a conflict, prevail over these Terms.

The Services are controlled and operated by OL from its offices within the State of California, United States of America. OL makes no representation that the Services are appropriate or available for use in locations outside of the United States. Those who choose to access the Services from other locations do so at their own risk and are responsible for compliance with local laws and any applicable internet fees.

Equal Housing.  We are pledged to the letter and spirit of U.S. policy for the achievement of equal housing opportunity throughout the Nation. We encourage and support an affirmative advertising and marketing program in which there are no barriers to obtaining housing because of race, color, religion, sex, handicap, familial status, or national origin.

BY CLICKING ON THE BOX NEXT TO THE LANGUAGE ON THIS WEBSITE OR ANY SERVICES “I AGREE TO THE TERMS”, OR BY ACCESSING OR USING THE SERVICES, YOU REPRESENT, ACKNOWLEDGE, AND AGREE TO THE FOLLOWING: (1) YOU HAVE READ AND AGREE TO BE BOUND BY ALL APPLICABLE TERMS (WHICH INCLUDES THE PRIVACY POLICY AND ANY APPLICABLE SUPPLEMENTAL TERMS OR THIRD PARTY TERMS); (2) YOU ARE AN ADULT OF AT LEAST 18 YEARS OLD, A RESIDENT OF THE UNITED STATES WHO HAS THE LEGAL CAPACITY TO FORM A BINDING CONTRACT; AND  (3) REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT, (i) PERSONALLY, (ii) ON BEHALF OF A COMPANY, OR OTHER ENTITY (EACH, AN “AFFILIATE”), ON BEHALF OF THAT AFFILIATE AS ITS LEGALLY AUTHORIZED REPRESENTATIVE AND TO BIND SUCH AFFILIATE TO THE TERMS OF THIS AGREEMENT, AND (iii) IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF ANOTHER INDIVIDUAL, ON BEHALF OF THAT INDIVIDUAL AS ITS LEGALLY AUTHORIZED REPRESENTATIVE AND TO BIND SUCH INDIVIDUAL TO THE TERMS OF THIS AGREEMENT.

IF YOU DO NOT ACCEPT AND AGREE TO ALL OF THE FOLLOWING TERMS, OR IF YOU DO NOT HAVE SUCH AUTHORITY, YOU ARE NOT PERMITTED TO ACCESS OR USE THE SERVICES.  USING OR ACCESSING THE SERVICES CONSTITUTES YOUR ELECTRONIC SIGNATURE ON THE TERMS AND YOUR CONSENT TO EXECUTE THE TERMS ELECTRONICALLY.

WE MAY AMEND THE TERMS AS BELOW.  IF YOU DO NOT AGREE TO ANY CHANGE TO THE NEW TERMS, YOU MUST IMMEDIATELY DISCONTINUE USING OR ACCESSING THE SERVICES.

IMPORTANT, YOU MUST READ: THE TERMS INCLUDE A CLASS ACTION WAIVER AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES RATHER THAN JURY TRIALS. READ SECTION 10 CAREFULLY FOR DETAILS.

TERMS

1. Limited License.  The Services are for eligible and authorized Users.  Users have a limited personal, non-exclusive, non-transferable, revocable license to access and use the Services. Any and all rights not specifically and expressly granted by us herein are reserved, and no license, permission or right of access or use not granted expressly herein shall be implied.  OL reserves the right to interrupt all or any aspect of Services without prior notice.  You acknowledge that the Services may be interrupted for reasons beyond the control of OL and OL cannot guarantee that you will be able to access the Services or your User Account (as defined below) whenever you may wish to do so. OL has the right at any time for any reason or no reason to change and/or eliminate any aspect of the Services at our complete discretion.

2. Third Party Websites and Services Independent from OL.

 2.1. When accessing and using the Services, you may be directed to third party or external properties or websites that are not affiliated with OL (“Third Party Websites”). OL and its Third Party Providers are not responsible for the availability of Third Party Websites, and do not endorse, and are not responsible or liable for any content, advertising, services products, or other materials contained on Third Party Websites. You acknowledge that OL has no control over Third Party Websites and therefore your access to any Third Party Websites is at your own risk. OL shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of, inability to use, or reliance on any content, advertising, products, or other materials contained on Third Party Websites. We recommend that you carefully review any terms and conditions, privacy policies and any other legal documents that may be contained on any Third Party Websites..

3.  Authorized Account Holders & Conduct

               3.1. Account Eligibility.  You are only eligible to register for an account to register to use certain Services under Supplemental Terms for example [Home Brokerage] available here and at time of registration.  If you do not meet all such Supplemental Terms, then you may not register for these Services.   You may browse our website and view content without setting up a user account; however, to access or use all the Services, you must establish an authorized account with OL (“User Account”.)

        3.2. To establish a User Account, you may be required to provide OL and Authorized Vendors certain personal information, [[including without limitation, your first and last name, date of birth, e-mail address, account information for certain third party sites, phone numbers (including cell phone numbers), mailing address and zip code]] that may be used to [[identify you as an authorized user of the]] Services.

You agree that you will supply accurate information to OL when requested, and that you will update that information promptly if it changes. OL reserves all rights to pursue legal action against all persons who misrepresent personal information or who are otherwise untruthful about their identity, and to suspend or cancel User Accounts registered with inaccurate or incomplete information

               3.2.  Account Login Information.  During the registration process, you may be required to select a username and a password (collectively, “Login Information”). It is important that you remember your Login Information and that you keep your Login Information in a safe and secure offline location. You may not share or transfer your User Account or the Login Information with anyone other than as expressly set forth in these Terms of Use. You are responsible for protecting the confidentiality of the Login Information, and you will be responsible for all use of your User Account accessed with your Login Information, whether or not authorized by you. Any unauthorized access, use, distribution or transfer of your User Account or Login Information may result in suspension, termination, or cancellation of your User Account and your access to and use of the Services.

               3.3.  Security of Account and Login Information. In the event that you become aware of or suspect unauthorized use of your User Account or Login Information or any other breach of security, you agree to immediately notify OL of such use pursuant to the Notice provision below, and ensure that you secure your User Account, Login Information and computer from unauthorized access and use. Once we are notified of any unauthorized use or breach of security, we will attempt to reset your Login Information, which may require you to provide us with a new username or password. In accordance with our Privacy Policy, we have implemented technical, administrative and physical security measures to help safeguard and prevent unauthorized access, use or disclosure of your personal information. Although we use reasonable efforts to safeguard the security of your personal information, transmissions made on or through the Internet and personal information stored on our servers or the servers of Third Party Providers that we may use are vulnerable to attack and cannot be guaranteed to be secure. In addition, submissions made via email are not protected by encryption and are vulnerable to interception during transmission. To the extent allowed by law, OL hereby disclaims any liability for security breaches, access to or disclosure of your personal information or the unavailability of the Service or any delay or failure to perform resulting from any causes whatsoever.

        3.4.  No Ownership of Your User Account.  YOU AGREE THAT YOU HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN YOUR USER ACCOUNT, AND THAT ALL RIGHTS IN AND TO THE USER ACCOUNTS ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF OL.

        3.5 Code Of Conduct. Your use of the Services is governed by certain rules (the “Code of Conduct”) maintained and enforced by or on behalf of OL and to which you (and all users) must adhere. It is your responsibility to know, understand and abide by the Code of Conduct.  The following rules are not meant to be exhaustive.

                       3.5.1. Our Discretion. In addition to the conduct specified below, OL reserves the right, in its discretion, to take disciplinary or other measures as it sees fit in response to conduct that it deems unacceptable, including, without limitation, to delete or alter any username or the suspension, termination, or cancellation of your User Account and your access to and use of the Services, or terminate any license granted in these Terms of Use, for any reason whatsoever. OL reserves the right to modify the Code of Conduct at any time.

                       3.5.2 Prohibited Conduct. You must not use the service to I) Post, upload, email, transmit or otherwise make available any content that violates the intellectual property rights of any third party, infringes any privacy right, or is obscene, indecent, defamatory, or hateful; (II) Attempt to hack, deface, or interfere with the functioning of the Site. (III) Try to circumvent any security or password protection on the Site; IV) Copy or modify any software for the Site, or attempt to reverse engineer, decompile or disassemble any portion of the Site; Use the Site to harm minors.  Without limiting any of the foregoing, any attempt by you to disrupt, or encourage or promote the disruption of the Services may be a violation of criminal and civil laws. You agree that you will not violate any applicable law, rule or regulation in connection with your use of the Services, nor will you interrupt or attempt to interrupt the operation of the Services in any way, including without limitation, the following: (a) use any unauthorized third-party that intercepts, or otherwise collects, information from or through the Services; b) modify or cause to be modified any files that are a part of the Services in any way; c) facilitate, create or maintain any unauthorized connection to the Services; or; d) disrupt or assist in the disruption of any computer used to support the Services or another individual’s access to or use of the Services.

                           3.5.3  Username Rules - OL may change your username, block your registration, remove your username from all aspects the Service, and/or suspend or terminate your access to the Service if OL determines, at its discretion, that your username is contrary to the terms of these Terms of Use, including, without limitation, the requirements set forth in this Section 3. You may not use any name that a) belongs to another person with the intent to impersonate that person or that may mislead others to believe you to be the other person an employee of OL; b) that uses vulgar or insulting language or which is otherwise offensive, defamatory, obscene, hateful, or racially, ethnically, or religiously charged, or other language OL considers objectionable; c) that belongs to a popular culture figure, character, celebrity, media personality or any other name protected by a third-party’s trademark(s), service mark, publicity rights or other proprietary rights; d) that is, contains, or is substantially similar to, a trademark or service mark, whether registered or not; or e) that is related to drugs, sex, alcohol, or criminal activity.

4. MLS Terms of Use

4.1. OL requires its users to comply with all applicable laws, including but not limited to, individual state laws with respect to the sale or lease or real property. You agree that you will comply with all such laws applicable to you

4.2. Any information you obtain from the Open Listings website is intended for your personal, non-commercial use; provided that if you are a real estate or lending professional acting in your professional capacity, you agree your commercial use is limited to transactions done on your own behalf.

4.3. Subject to the foregoing, you will not copy, redistribute, or retransmit any of the information provided except in connection with your personal home search.

4.4. You acknowledge that the individual multiple listing services (herein “MLS”), which supply the listing data, owns such data and you acknowledge the validity of the MLS's copyright to such data.

5.  Content, Ownership, Copyrights

               5.1. Accuracy.  OL reasonably believes that all information on the Site about Activities is accurate. However, OL does not guarantee that this will always be true. If you believe that the Site contains inaccurate information about an Activity or the provider of an Activity, please report it to OL by sending e-mail to support@openlistings.com.

               5.2 Ownership. Nothing contained in these Terms of Use shall be construed as conferring any license or right, by implication, estoppel or otherwise without the written permission of OL. You acknowledge that all rights, ownership, intellectual property and title in and to the Services, including without limitation any User Accounts, Login Information, titles, trademarks, trade names, service marks, moral rights, computer code, themes, objects, catch-phrases, locations, concepts, artwork, animations, sounds, music, video, photographs, opinions, images, text, audio-visual effects, or methods of operation and any documentation related to any of the aforementioned Terms (collectively, “Materials”) are owned and controlled by OL or its Third Party Providers. You may not use, copy, reproduce, create derivative works from, perform, publicly display, adapt, upload, modify, edit, publish, post, transmit, participate in the transfer or sale, license, distribute or exploit, in any way whatsoever, the Materials contained in the Services without the express written permission of OL or its Third Party Providers. Any modification of the Materials or any portion thereof, or unauthorized use of the Materials for any other purpose, constitutes an infringement of OL’s, or its Third Party Providers’, copyrights and other proprietary rights and, for clarity, nevertheless are created for OL or its Third Party Providers’ sole and exclusive benefit, and are owned and controlled by OL or its Third Party Providers.

               5.3 User Content. The Site may allow users to post reviews, suggest new providers to us, and send messages to other users and providers. Any and all material of any kind or nature that you may submit (e.g., by uploading or transmitting) via the Services (“User Content”) shall be deemed, and shall remain, the property of OL or its Third Party Providers from the moment of creation. Accordingly, OL shall exclusively own all now known or hereafter existing copyrights and all other intellectual property rights to all User Content of every kind and nature, in perpetuity, throughout the universe. To the extent that any of the above may be void or unenforceable, you agree that any and all User Content is hereby irrevocably assigned to OL or its Third Party Providers, together with all intellectual property rights therein. To the extent any of the User Content is not assignable, by submitting User Content in connection with your access or use of the Services (whether such submission is directly to OL or to a party associated or affiliated with OL), you expressly grant OL or its Third Party Providers an exclusive, irrevocable license to, throughout the universe and in perpetuity, use, copy, reproduce, create derivative works from, perform, publicly display, adapt, translate, upload, modify, edit, publish, post, transmit, participate in the transfer or sale, sublicense, distribute or exploit, in any way or purpose whatsoever, any User Content, commercial or otherwise, in any medium now known or hereafter devised, without compensation or credit to the provider of the User Content. You also give up and agree to never assert any claim that any use by OL or its Third Party Providers of any Materials or User Content violates any of your rights, including but not limited to moral rights, privacy rights, rights to publicity, proprietary or other rights, or rights to credit for the material or ideas set forth therein.

               5.4. Limited License.  You are granted a limited, revocable, and nonexclusive right to create a hyperlink to any OL website so long as the link does not portray OL or its products or services or Third Party Providers in a false, misleading, derogatory, or otherwise offensive manner. You may not use any OL logo or other proprietary graphic or trademark as part of the link without express written permission.

               5.5. Digital Millennium Copyright Act.  We respect the intellectual property rights of others and request that users of the Services respect the intellectual property rights of others as well. Pursuant to 17 U.S.C. 512(i) of the United States Copyright Act, we will remove any content that allegedly infringes another party’s copyright and reserve the right to suspend, terminate, or cancel a User Account or a user’s access to and use of the Services if a user is found to be a repeat infringer. If you know of, or suspect, copyright infringement, please send a notice to OL at support@openlistings.com. The notice must contain all of the information set forth in section 512(c)(3)(a) of the U.S. Copyright Act, 17 U.S.C. § 101 et seq.

Online Listings, Co.,

Attn: DMCA Agent, 1864 N. Vermont Ave., Los Angeles, California 90027, United States

Email: support@openlistings.com             

               5.6. Submissions.  If you send us creative suggestions, ideas, notes, drawings, concepts, or other information (collectively the “Submissions”) such Submissions shall be deemed and shall remain the property of OL in perpetuity. By making any Submission, the sender automatically grants, or warrants that the owner of such material expressly grants, OL the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, and distribute such material (in whole or in part) throughout the universe and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for any purpose that OL chooses, whether internal, public, commercial, or otherwise, without any compensation, credit or notice to the sender whatsoever. The sender waives all so-called “moral rights” in all Submissions. The sender further waives the right to make any claims against OL relating to unsolicited Submissions, including, but not limited to, unfair competition, breach of implied contract and/or breach of confidentiality.

               5.7.  Termination.  We reserve the right to immediately terminate your use of the Site at any time without cause. If your use is terminated, OL may deactivate your account by deleting your password and user name, and all related information and files associated with them, and/or bar any further access to such information or files. Either OL or you may terminate these Terms of Use and your User Account at anytime. You may terminate these Terms of Use and your User Account by contacting OL and deleting your User Account as set forth in the Privacy Policy and then subsequently no longer accessing or using the Services. OL may terminate these Terms of Use by asking you to stop using the Services, and, if necessary by preventing your access to the Services and your User Account. OL shall have the right to suspend, terminate, cancel, modify, or delete these Terms of Use at any time for any reason or for no reason, with or without notice to you. IF YOU VIOLATE ANY OF THE TERMS OR CONDITIONS OF THESE TERMS OF USE, OL RESERVES THE RIGHT TO IMMEDIATELY SUSPEND, TERMINATE, OR CANCEL, IN ITS DISCRETION AND WITHOUT NOTICE TO YOU, YOUR USER ACCOUNT OR ACCESS TO THE SERVICES. UPON TERMINATION OF THESE TERMS OF USE OR YOUR USER ACCOUNT, YOU WILL HAVE NO FURTHER RIGHTS TO ACCESS OR USE THE SERVICES.


6.  Your Privacy and How OL May Communicate with You.  

        6.1. Consent to be contacted.  If you provide, or have provided, a telephone number to us (either through the Web Site or by other means), you expressly agree that we may contact you at that number in order to provide you with informational and service messages, including via text message and/or by using automated telephone technology. You represent and warrant that you are the authorized subscriber for the telephone number(s) you have provided. You may revoke your consent to be contacted at such number(s) by emailing us at support@openlistings.com or by replying STOP to a text notification. Standard message and data rates may apply. For purposes of responding to you and providing you with information and notices about your account or the Services (such as information about homes you might be interested in), you agree that OL may communicate with you through the contact information associated with your OL account or OL Applications, including your device ID, email, mobile number, telephone, or the postal address you provided (if any).  

        6.2.  Please review your Account Settings or settings on your mobile device to control what kind of messages you receive from OL. OL has no liability rising from your failure to maintain accurate contact or other information, including, but not limited to, your failure to receive critical information about the Services. Through the Services, you can make requests for home tours, real estate agent contact, help selling or buying a home or other requests. By making those requests, you authorize OL to share your personal information including your home search history, favorites and saved searches, with a real estate professional (a OL Agent or staff member, or a Partner Agent, as defined below). When you make such a request to OL you are extending an express invitation for OL, or another appropriate entity or person, to contact you. A Partner Agent is employed by or works with another brokerage, but has teamed up with us to provide OL-quality service to a wider range of customers. We'll refer you to a Partner Agent in our discretion. Open Listings is committed to handling responsibly the information and data we collect through our Websites and Services and agrees to use your personal information in accordance with the Privacy Policy and the Agreement. The Privacy Policy is hereby incorporated by reference into the Agreement. You can access, update, and delete certain information you provide the Service in your account profile by logging into your account or emailing us at support@openlistings.com. While we are ready to assist you in managing the information you provide to us, we cannot always delete records due to financial reporting, compliance, or other reasons. See our Privacy Policy here for details.

7.  WARRANTY DISCLAIMER

THE SERVICES ARE PROVIDED “AS IS”. NEITHER OL, ITS THIRD PARTY PROVIDERS, NOR ANY PERSON OR ENTITY INVOLVED IN CREATING, PROVIDING OR MARKETING ANY ASPECT OF THE SERVICES, NOR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, INVESTORS, PROFESSIONAL REPRESENTATIVES, LICENSORS, LICENSEES OR AGENTS, MAKE ANY WARRANTY WHATSOEVER, INCLUDING WITHOUT LIMITATION, THAT THE SERVICES OR THEIR FEATURES WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES ARE FREE OF HARMFUL COMPONENTS. OL EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE, AND NON-INFRINGEMENT. OL DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, VALIDITY, ACCURACY, SECURITY OR RELIABILITY OF, OR THE RESULTS OF THE USE OF, OR OTHERWISE RESPECTING, THE SERVICES OR ANY CONTENT, MATERIALS OR SERVICES OF ANY THIRD PARTY. THIS SECTION SHALL SURVIVE ANY EXPIRATION, TERMINATION OR CANCELLATION OF THE SERVICES AND/OR THESE TERMS OR ANY DETERMINATION THAT THESE TERMS OR ANY PORTION OF THESE TERMS IS VOID OR VOIDABLE.


8.  LIMITATION OF LIABILITY

NEITHER OL, ITS THIRD PARTY PROVIDERS, NOR ANY PERSON OR ENTITY INVOLVED IN PRODUCING, PROVIDING OR MARKETING ANY ASPECT OF THE SERVICES, NOR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, INVESTORS, PROFESSIONAL REPRESENTATIVES, LICENSORS, LICENSEES OR AGENTS, SHALL BE LIABLE IN ANY WAY FOR DAMAGE OR LOSS OF ANY KIND, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION (EVEN IF OL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE) RESULTING FROM (A) THE USE OF OR INABILITY TO USE THE SERVICES; (B) THE BREACH OF ANY REPRESENTATION OR WARRANTY (OTHER THAN THE LIMITED PRODUCT WARRANTY SET FORTH IN ABOVE); (C) THE DOWNLOADING OF ANY SOFTWARE OWNED OR OPERATED BY OL OR ANY THIRD PARTY PROVIDER; (D) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES; OR (E) INTERRUPTIONS OF THE SERVICES INCLUDING WITHOUT LIMITATION INTERNET SERVICE DISRUPTIONS, SOFTWARE, TRANSPORTATION, FACILITY OR OTHER FAILURES OR ANY OTHER EVENT WHICH MAY RESULT IN A LOSS OF DATA OR DISRUPTION OF SERVICES.

IN NO EVENT SHALL OL, ITS THIRD PARTY PROVIDERS, OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE SERVICES OR ANY SUBPART THEROF, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, INVESTORS, PROFESSIONAL REPRESENTATIVES, LICENSORS, LICENSEES OR AGENTS, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR ANY OTHER DAMAGES RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICES.

SOME JURISDICTIONS MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES OR DISCLAIMERS IN WHICH CASE SOME OF THE WARRANTIES OR DISCLAIMERS PROVIDED IN THESE TERMS OF USE MAY NOT BE APPLICABLE. TO THE EXTENT THAT THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION IS PROHIBITED OR FAILS OF ITS ESSENTIAL PURPOSE, OL’S TOTAL LIABILITY ARISING FROM THESE TERMS OF USE AND SOLE OBLIGATION WITH RESPECT TO DAMAGES SHALL NOT EXCEED ONE HUNDRED UNITED STATES DOLLARS (US$100.00). THIS SECTION SHALL SURVIVE ANY EXPIRATION, TERMINATION OR CANCELLATION OF THE SERVICES AND/OR THESE TERMS OF USE OR ANY DETERMINATION THAT THESE TERMS OF USE OR ANY PORTION OF THESE TERMS IS VOID OR VOIDABLE.

9. Indemnity.  You agree to indemnify, defend and hold OL, its Third Party Providers, or any person or entity involved in creating, producing, or distributing any of the Services, or any of their respective directors, officers, employees or agents, harmless from and against any and all damages, costs, losses and expenses, including reasonable attorney fees and court costs relating to or arising directly or indirectly from any suit, claim, demand or settlement based upon your posting or uploading any content using any feature or aspect or your failure to comply with these Terms or your violation of any third party right or your violation of any applicable law, rule or regulation of the United States.

10.  Dispute Resolution And Governing Law - IMPORTANT - READ CAREFULLY

               

10.1 Informal Resolution.  To expedite resolution and control the cost of any dispute, controversy or claim related to these Terms or the Privacy Policy  (“Dispute”), you and OL agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days prior to initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person or entity to the other in accordance with the Notice section above.

               10.2 Binding Arbitration.  Any dispute, claim or controversy arising out of or relating to these Terms of Use 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 arbitration before one arbitrator. The arbitration shall be administered by JAMS pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment may be entered in any court having jurisdiction. Notwithstanding the foregoing, OL may seek (and obtain) injunctive or other equitable relief in any court of competent jurisdiction. Without limiting or waiving any right or remedy to which OL or its assigns may be entitled under these Terms of Use or applicable law, in the event of any actual or threatened breach of these Terms by you or on your behalf, OL would be irreparably damaged if these Terms are not specially enforced and, as such, you agree that OL shall be entitled, without the need to post bond or other security or provide proof of damages, to obtain injunctive relief or other equitable relief in any court of competent jurisdiction. You may not, in any circumstance, seek to enjoin or limit the availability of any of OL’s products or services. To the full extent permitted by law: (a) no arbitration shall be joined with any other; (b) there is no right or authority for any claim related to these Terms or any of OL’s products or services to be arbitrated on a class action basis or to utilize class action procedures; and (c) there is no right or authority for any claim to be brought in a purported representative capacity on behalf of the general public or any other persons.

YOU AND OL AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

Further, unless both you and OL agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

THE PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ALL CLAIMS AND ISSUES ARISING UNDER, IN CONNECTION WITH, TOUCHING UPON OR RELATING TO THESE TERMS OF USE, THE BREACH THEREOF AND/OR THE SCOPE OF THE PROVISIONS OF THIS SECTION, WHETHER SOUNDING IN CONTRACT OR TORT, AND INCLUDING ANY CLAIM FOR FRAUDULENT INDUCEMENT THEREOF. YOU UNDERSTAND THAT, ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.

10.3.  Restrictions.  You and OL agree that any arbitration shall be limited to the Dispute between OL and you individually. To the full extent permitted by law, (i) no arbitration shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.

               10.4.  Exceptions to Informal Resolution and Binding Arbitration.  You agree that OL may chose, at its option and discretion, to exclude the following Disputes from (and, as such, the following Disputes will not be subject to) the above provisions concerning informal resolutions and binding arbitration: (i) any Dispute related to or arising from allegations of theft, piracy, invasion of privacy or the unauthorized use of OL’s or its Third Party Providers’ rights; and/or (ii) any claim by OL for injunctive or other equitable relief.

               10.5.  Location and Jurisdiction.  Any arbitration will be initiated in and take place in the County of Los Angeles, State of California, United States of America. Any Dispute not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, shall be decided by a court of competent jurisdiction wherever located, including, without limitation, in the County of Los Angeles, State of California, United States of America, and you and OL agree to submit to the personal jurisdiction of such courts.

11. Miscellaneous.  

        11.1. Changes. We may make material changes to our Terms at any time.  We will notify you of material changes by posting a notice of a revised policy linked from our homepage; www.openlistings.com and our posted Terms will indicate the Effective Date.  We may take additional steps to notify you and other users by sending you a notice to the e-mail address we have on file for you, or by placing notices on our website.  You should periodically check this page for updates.  Your continued use of the Services following the Effective Date means that you accept any changes to the Terms.

        11.2  Force Majeure. OL shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of OL, including without limitation, any failure to perform hereunder due to unforeseen circumstances, such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, earthquakes, tornados, hurricanes, pandemics, accidents, strikes, internet interruption, denial of service attack, hacking or shortages of transportation facilities, fuel, energy, labor or materials.

        11.3.  Severability.  You and OL agree that if any portion of this (Dispute Resolution and Governing Law) is found illegal or unenforceable (with the exception of 21(d)), that portion shall be severed and the remainder of this section shall be given full force and effect. If Section 21(d) is found to be illegal or unenforceable then neither you nor OL will elect to arbitrate any Dispute falling within that portion of Section 21(d) found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the County of Los Angeles, State of California, United States of America, and you and OL agree to submit to the personal jurisdiction of that court.   Notwithstanding if any other provision of these Terms shall be held invalid or unenforceable, in whole or in part, such provision shall be deemed severable from these Terms, and the validity and enforceability of all other provisions of these Terms shall not be affected thereby. These Terms constitute the entire agreement between the parties hereto relating to the subject matter hereof and supersedes all prior oral and written and all contemporaneous oral negotiations, commitments and understandings of the parties.

        11.4.  Governing Law.  Except as expressly provided otherwise, these Terms shall be governed by, and will be construed and enforced under, the laws, rules and regulations of the United States of America and the laws, rules and regulations of the State of California, excluding conflict of law rules and principles.