Application End User License Agreement
Last Updated: June 6, 2017.
This Mobile Application End User License Agreement ("Agreement") is a binding agreement between you ("End User" or "you") and Showing Agent Services, LLC ("Company"). This Agreement governs your use of Showami, (including all related documentation, the web-based "Application"). The Application is licensed, not sold, to you.
THIS APPLICATION IS ONLY FOR LICENSED REAL ESTATE AGENTS. THIS APPLICATION IS ONLY FOR EITHER REAL ESTATE AGENTS ACTIVELY LICENSED IN A STATE AND/OR TERRITORY OF THE UNITED STATES TO REPRESENT BOTH BUYERS AND SELLERS AND HAVE ACCESS TO MULTIPLE LISTING SERVICE GOVERNED BY THE NATIONAL ASSOCIATION OF REALTORS. IF YOU ARE NOT LICENSED TO REPRESENT PARTIES IN REAL ESTATE TRANSACTIONS, YOU MUST A) NOT UTILIZE THIS APPLICATION AND B) EXIT IMMEDIATELY. PARTIES ENTERING THIS AGREEMENT WILL BE EITHER BUYER’S AGENTS (AGENTS WHO INITIATE A PROPERTY SHOWING AND PAY A FEE TO COMPANY PURSUANT TO SECTION 13 HEREIN TO UTILIZE A SHOWING AGENT/ASSISTANT ON BEHALF OF A BUYER), OR A SHOWING ASSISTANT (AN AGENT THAT WILL, UPON AGREEMENT, SHOW HOMES ON BEHALF OF THE BUYER’S AGENT FOR A FEE SET FORTH IN SECTION 14 HEREIN).
BY CLICKING THE "AGREE" BUTTON, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AFFIRM THAT YOU ARE A LICENSED REAL ESTATE AGENT UNDER THE AUSPICES OF THE NATIONAL ASSOCIATON OF REALTORS, AND ADHERE TO THEIR CODE OF ETHICS; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE APPLICATION.
License Grant. Subject to the terms of this Agreement, Company grants you a limited, non-exclusive and nontransferable license to:
- download, install and use the Application for your exclusive use on a single mobile device owned or otherwise controlled by you ("Mobile Device") strictly in accordance with the Application's documentation; and
License Restrictions. Licensee shall not:
- copy the Application, except as expressly permitted by this license;
- modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Application;
- reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
- remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Application or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time; or
- remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Application.
- Reservation of Rights. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Company and its licensors and service providers reserve and shall retain their entire right, title and interest in and to the Application, including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
BY USING THIS SITE, YOU ACKNOWLEDGE THAT THE CONTENT AND SERVICES OF THIS APPLICATION ARE LIMITED TO CONNECTING INDIVIDUALS WHO HAVE INDICATED THAT THEY ARE DULY LICENSED TO PROVIDE REAL ESTATE SERVICES INCLUDING BUYER’S AGENTS AND SHOWING ASSISTANTS. THE APPLICATION DOES NOT VERIFY OR WARRANTY THAT e.g. A) THE BUYER’S AGENT HAS AN EXCLUSIVE RIGHT TO BUY (OR ACCEPT THE RISK THAT THERE IS NOT AN EXCLUSIVE RIGHT TO BUY), B) WHETHER ANY PARTIES REPRESENTATIONS ARE TRUE OR CORRECT, C) THAT THE SHOWING ASSISTANT IS WILLING OR ABLE TO FULFILL THE SERVICES AGREED TO, D) THAT THE SHOWING AGENT WILL NOT PROVIDE ANY COMPETITIVE INFORMATION (I.E. GIVING AN OPINION OF PRICE, AND/OR CONDITION OF THE PROPERTY AND/OR SOLICITING THE CLIENT (EVEN THOUGH THESE ACTIONS ARE STRICTLY PROHIBITED UNDER THIS APPLICATION END USER LICENSE AGREEMENT). ACCORDINGLY, BOTH THE BUYER’S AGENT AND THE SHOWING AGENT ARE STRONGLY ENCOURAGED TO CONDUCT THOROUGH DUE DILLIGENCE BEFORE CONTRACTING WITH EACH OTHER FOR SERVICES.
Furthermore, End User acknowledges and accepts exclusive responsibility to secure any permission created through any agency or required by a third party including a brokerage. Some forms include broker and licensed real estate agent disclosures; broker consent forms; client subagent consent forms and/or any other form suggested by respective broker. The responsibility to determine if these forms, or any additional permission is required is exclusively the End User, and the Company has no responsibility and/or has no liability to secure such permissions orally or in writing.
- Geographic Restrictions. The Content and Services are based in the State of Colorado and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Content and Services from outside the United States, you are responsible for compliance with local laws.
Updates. Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:
- the Application will automatically download and install all available Updates; or
- you may receive notice of or be prompted to download and install available Updates.
- Third Party Materials. The Application may display, include or make available third-party content (including data, information, applications and other products services and/or materials) or provide links to third-party websites or services, including through third-party advertising ("Third Party Materials"). You acknowledge and agree that Company is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you and you access and use them at entirely at your own risk and subject to such third parties' terms and conditions.
Term and Termination.
- The term of Agreement commences when you install the Application/acknowledge your acceptance and will continue in effect until terminated by you or Company as set forth in this Section 9.
- You may terminate this Agreement by deleting the Application and all copies thereof from your Mobile Device.
- Company may terminate this Agreement at any time without notice, or if it ceases to support the Application, which Company may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
- Upon termination:
- all rights granted to you under this Agreement will also terminate; and
- you must cease all use of the Application and delete all copies of the Application from your Mobile Device and account.
- Termination will not limit any of Company's rights or remedies at law or in equity.
Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:
- PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES
- DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
Specific Terms for Showing Assistant. The Showing Assistant agrees and warrants that he/she’s only responsibility and requirement is to open the property to the buyer and remain on premises during the viewing. Any substantive conversation about e.g. the price, the real estate market, the neighborhood, and/or the condition of the property is expressly prohibited, and Showing Assistant will refrain from that communication. Showing Assistant agrees not to directly or indirectly solicit, contact (including but not limited to e-mail, regular mail, express mail, telephone, fax, and instant message), attempt to contact or meet with any viewing customers for purposes of offering or accepting goods or services similar to or competitive with those offered by Buyer’s Agent.
Showing Assistant also explicitly waives any claims that they are under ANY CIRCUMSTANCE the procuring cause of the sale for any client exposed through their relationship as a Showing Assistant to the Buyer’s Agent for a period of three years.
- Buyer’s Agent Fee Schedule. The following fee schedule for the Buyer’s Agent utilizing these services is attached. If you are the Buyer’s Agent, YOU AGREE TO PAY THESE FEES (WHEN PROMPTED) THROUGH STRIPE (or any other credit and/or debit processor the Company has contracted with to provide the service). Stripe Terms of Service.
- Showing Assistant Payment. The Showing Agent will be paid via STRIPE any amounts due under the Showami Payment Schedule (which includes a base amount (plus tip, at the sole discretion of the Buyer’s Agent.) Any amounts due will be transferred automatically by STRIPE (or any other credit and/or debit processor the Company has contracted with to provide the service) as soon as the Buyer’s Agent has paid the Buyer’s Agent Fee. Stripe Terms of Service.
- Indemnification. You agree to indemnify, defend and hold harmless Company and its officers, directors, employees, agents, affiliates, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement. Furthermore, you agree that Showami assumes no responsibility for the content you submit or make available through this Application.
- Export Regulation. The Application may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Application available outside the US.
- Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
- Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the federal courts of the United States or the courts of the State of Colorado in each case located in Denver. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
- Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
Payment Processing. Payment processing services for Buyer’s Agents and Showing Assistants on Showing Agent Services, LLC are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to this Application end user agreement or continuing to operate as a Buyer’s Agent or Showing Assistant with Showing Agent Services, LLC you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Showing Agent Services, LLC enabling payment processing services through Stripe, you agree to provide Showing Agent Services, LLC accurate and complete information about you and your business, and you authorize Showing Agent Services, LLC to share it and transaction information related to your use of the payment processing services provided by Stripe.
You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.