17. Warranty. Subscriber warrants that it has the authority to make the assignment in Paragraph 16. Subscriber warrants that (a) the Subscriber Contribution does not infringe on the copyright or other intellectual property rights of any third party; and (b) Subscriber has the written consent of any party necessary to provide the Subscriber Contribution to Participant or MLSCFR.
18. License. MLSCFR hereby grants Subscriber a license to use the MLSCFR Software and the MLSCFR Database during the term of this Agreement, subject to the permission of Participant and according to the terms of the MLSCFR Policies. All other uses are prohibited.
FEES AND PAYMENT TERMS.
19. Applicable fees. Subscriber shall pay the fees set forth in MLSCFR’s official Schedule of Fees which MLSCFAR may amend at any time subject to the terms of Paragraph 23.
20. Payment terms. Subscriber shall pay the fees according to the terms set out in the MLSCFR Policies.
21. No refunds. MLSCFR need not refund or pro-rate fees in the event of termination or suspension of this Agreement unless the MLSCFR Policies provide otherwise. Initiation fees, if any, are not refundable.
22. Taxes. All fees for the MLSCFR Service are exclusive of federal, state, municipal or other governmental excise, sales, value-added, use, personal property and occupational taxes, excises, withholding obligations and other levies now in force or enacted in the future and, accordingly, Subscriber shall pay all such taxes and levies other than any tax or levy on the net income of MLSCFR.
23. Fee increases. MLSCFR may amend the Schedule of Fees at any time at its sole discretion. MLSCFR shall provide written notice to Subscriber at least thirty days in advance of the effective date of any fee increase. If Subscriber objects to the increase, Subscriber may terminate this Agreement by written notice to MLSCFR at any time before the effective date of the increase.
24. Fines. MLSCFR may collect fines from Subscriber and from Participant on Subscriber’s behalf for violation of the MLSCFR Policies. Payment terms for fines are set out in the MLSCFR Policies. MLSCFR may amend its schedule of fines and terms for collecting them at its sole discretion at any time.
TERM AND TERMINATION.
25. Term. This Agreement shall commence upon the Effective Date set forth below and shall continue thereafter on a month-to-month basis until terminated.
26. Termination for breach. MLSCFR may terminate this Agreement with notice if Subscriber fails to comply with the terms of this Agreement or of the MLSCFR Policies.
27. Termination of Participant. This Agreement shall terminate immediately and without notice if the Participant License and Access Agreement between MLSCFR and Participant is terminated for any reason.
28. Termination for failure to pay. In the event Subscriber fails to pay any fees required under this Agreement, MLSCFR may terminate service without being subject to arbitration, and MLSCFR may bring any claims for fees to small claims court. In its sole discretion, MLSCFR may suspend its performance under this Agreement rather than terminating it, in the event that Subscriber fails to pay fees required under this Agreement.
29. Termination without fault. Either party may terminate this Agreement upon 30 days’ written notice to the other party. Subscriber may not terminate this Agreement so long as Subscriber remains affiliated with a broker/appraiser manager that is subject to a Participant Agreement with MLSCFR.
30. Events upon termination. Promptly upon any termination of this Agreement, (a) MLSCFR shall deactivate Subscriber’s user ID and password, and Subscriber shall have no further access to the MLSCFR Service; (b) Subscriber shall purge all copies of the MLSCFR Software and the MLSCFR Database from Subscriber’s personal computers; (c) all licenses granted hereunder shall immediately terminate; and (d) Subscriber will not be permitted to be affiliated with Participant or any other participant of MLSCFR unless a new subscriber agreement between Subscriber and MLSCFR is executed.
DISCLAIMER, LIMITATION OF LIABILITY, AND INDEMNIFICATION.
31. DISCLAIMER OF WARRANTIES. MLSCFR PROVIDES THE MLSCFR SERVICE AND ALL COMPONENTS OF IT ON AN “AS IS,” “AS AVAILABLE” BASIS. USE OF THE MLSCFR SERVICE AND THE INFORMATION AVAILABLE THROUGH THE MLSCFR SERVICE ARE AT THE SOLE RISK OF SUBSCRIBER. THE MLSWRAR AFFILIATES DO NOT WARRANT THAT THE MLSWRAR SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, AND THE MLSCFR AFFILIATES MAKE NO WARRANTY AS TO THE ACCURACY, COMPLETENESS, CURRENCY, OR RELIABILITY OF ANY INFORMATION AVAILABLE THROUGH THE MLSCFR SERVICE. THE MLSCFR AFFILIATES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES WITH RESPECT TO THE MLSCFR SERVICE AND THE INFORMATION AVAILABLE THROUGH THE MLSCFR SERVICE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. The MLSCFR Service may contain hyperlinks to web sites operated by parties other than MLSCFR; MLSCFR does not control such web sites, is not responsible for their contents, does not endorse the sites or contents, and may have no relationship with the sites’ operators.
32. LIMITATIONS AND EXCLUSIONS OF LIABILITY. NONE OF THE MLSCFR AFFILIATES SHALL BE LIABLE TO SUBSCRIBER OR ANYONE ELSE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE MLSCFR SERVICE, INCLUDING RELIANCE BY SUBSCRIBER ON ANY INFORMATION OBTAINED THROUGH USE OF THE MLSCFR SERVICE; MISTAKES, OMISSIONS, DELETIONS OR DELAYS IN TRANSMISSION OF SUCH INFORMATION; INTERRUPTIONS IN TELECOMMUNICATIONS CONNECTIONS TO THE MLSCFR SERVICE; AND VIRUSES OR FAILURES OF PERFORMANCE; WHETHER CAUSED IN WHOLE OR PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OF, DESTRUCTION OF, OR UNAUTHORIZED ACCESS TO THE MLSCFR SERVICE AND RELATED INFORMATION, RECORDS AND PROGRAMS.
33. MAXIMUM AGGREGATE LIABILITY. IN NO EVENT SHALL MLSCFR BE LIABLE TO PARTICIPANT FOR ANY AMOUNT IN EXCESS OF THE GREATER OF (A) THE FEES PARTICIPANT HAS PAID MLSCFR, IF ANY, IN THE YEAR IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO ANY CLAIM FOR DAMAGES; OR (B) $100.
34. Indemnification. Subscriber shall defend, indemnify and hold the MLSCFR Affiliates and Other Participants and Subscribers harmless from and against any and all liability, damages, loss or expense (including reasonable fees of attorneys and other professionals) in any claim, demand, action or proceeding initiated by any third-party against the MLSCFR Affiliates or Other Participants and Subscribers arising from any acts of Subscriber, including (a) putting inaccurate information into the MLSCFR Service; (b) making unauthorized use of Subscriber’s password; (c) making unauthorized use of the MLSCFR Database; (d) infringing any proprietary or contract right of any third party; (e) breaching any warranty under this Agreement; and (f) violating this or any other Agreement or any law.
35. Acknowledgment. Subscriber acknowledges that MLSCFR has set its fees and other charges in reliance on the disclaimers of warranty and limitations and exclusions of liability set forth in this Agreement and that the same form an essential basis of the bargain between the parties.
DISPUTES AND REMEDIES.
36. Injunctive relief. Subscriber acknowledges and agrees that the MLSCFR Software and MLSCFR Database are confidential and proprietary products of MLSCFR and that in the event there is an unauthorized disclosure of them by Subscriber, no remedy at law will be adequate. Subscriber therefore agrees that in the event of such unauthorized disclosure of MLSCFR Software or MLSCFR Database, MLSCFR may obtain injunctive relief or other equitable remedies against Subscriber in addition to all available remedies at law, without any showing of actual damages or posting any bond or security of any kind.
37. Dispute resolution. In the event MLSCFR claims that Subscriber has violated the MLSCFR Policies, MLSCFR may, at its option, resolve such a claim according to the disciplinary procedures set out in the MLSCFR Policies, provided MLS does not also base a claim that Subscriber has breached this Agreement on the same facts. Except as provided in this paragraph and in Paragraph 28, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, including the Expedited Procedures where applicable, the Optional Procedures for Large Complex Commercial Disputes where applicable, and the Optional Rules for Emergency Measures of Protection (collectively, the “Arbitration Rules”). Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction over the parties. Unless all parties to the dispute agree otherwise, any arbitration hearing or proceeding hereunder shall be held in New Hanover County, North Carolina, except that it may be held by telephone where the Arbitration Rules expressly so permit. Subscriber agrees to submit any disputes or claims under this Agreement not subject to arbitration to the jurisdiction and venue of the state and federal courts sitting in New Hanover County, North Carolina.
38. Liquidated damages. Subscriber acknowledges that damages suffered by MLSCFR from access to the MLSCFR Service by an unauthorized third party as a result of disclosure of Subscriber’s password or an unauthorized disclosure by Subscriber of the MLSCFR Database to a third party would be speculative and difficult to quantify. Accordingly, as a material inducement to MLSCFR to enter into this Agreement with Subscriber, Subscriber agrees that (a) in the event that any disclosure of Subscriber’s password results in access to the MLSCFR Service by an unauthorized third party, regardless of whether such disclosure is intentional, negligent or inadvertent, Subscriber shall be liable to MLSCFR for liquidated damages in the amount of $5,000 (or the amount established in the MLSCFR Policies, whichever is greater) and termination of this Agreement; and (b) in the event that Subscriber makes unauthorized disclosure of any portion of the MLSCFR Database to any third party, Subscriber shall be liable for liquidated damages in the amount of $5,000 (or the amount established in the MLSCFR Policies, whichever is greater) for each real estate listing disclosed and termination of this Agreement.
39. Legal fees. In the event of legal action or arbitration between MLSCFR and Subscriber, on account of or in respect to this Agreement, the prevailing party in such action or arbitration shall be entitled to recover its reasonable attorneys’ fees, costs and expenses incurred in such action or arbitration.
MISCELLANEOUS.
40. No third-party beneficiaries. This Agreement is entered into solely between, and may be enforced only by, MLSCFR and Subscriber, and this Agreement shall not create or be construed to create any rights in any home owner, home seller, home purchaser, board or association, or other third party.
41. Interpretation and amendment. Subscriber expressly consents to the execution of amendments by electronic means (such as web site “click through” agreements). MLSCFR may amend this agreement by providing 30 days’ advance notice of the amendment to Subscriber. If Subscriber continues to use the MLSCFR Service or MLSCFR Database after the expiration of the 30-day notice period, Subscriber will be deemed to have agreed to the terms as amended. Except as provided in this paragraph, this Agreement may not be amended except by written instrument executed by both parties.
42. Assignment. Neither this Agreement nor any obligations or duties hereunder may be assigned or delegated by Subscriber. Any purported assignment or delegation in contravention of this section is null and void.
43. Integration and severability. This Agreement contains the entire understanding of the parties and supersedes all previous oral and written agreements on the subject hereof. Each provision of this Agreement is severable from the whole, and if one provision is declared invalid, the other provisions shall remain in full force and effect. The foregoing notwithstanding, if any provision of Section 8 is declared invalid or unenforceable by any court of competent jurisdiction, this Agreement and Subscriber’s access to the MLSCFR Service shall immediately terminate.
44. Governing law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of North Carolina applicable to contacts made and performed in North Carolina, without regard to its conflicts of law and choice of law provisions.
45. Notice. Any notice required or permitted to be given under this Agreement shall be in writing and delivered via (a) U.S. Mail, postage paid and return receipt requested; (b) express mailing service with confirmation of receipt; (c) facsimile transmission, provided sender obtains confirmation of transmission; or (d) electronic mail, provided sender requests a return receipt. All notices are effective on the date of receipt or three days after transmission, whichever is earlier.