TERMS OF SERVICE

THE FOLLOWING TERMS AND CONDITIONS (“TERMS OF SERVICE”) GOVERN YOUR USE OF THE WEBSITE LOCATED AT ACULIST.COM (“WEBSITE”) AND THE TECHNOLOGY TOOLS PROVIDED THROUGH THE WEBSITE BY ACULIST, INC., A DELAWARE GENERAL CORPORATION (“ACULIST”).

1. Description of Service and Acceptance of Terms. Aculist is the wholly-owned “Products” Company for MLSListings, a northern California regional multiple listing service (“MLSL”). Aculist gives brokers and their agents the power of choice with The Aculist EdgeTM software platform (the “Platform”) that converts MLS data into valuable business and market insights. Armed with up-to-date, accurate, and relevant information, real estate professionals can educate their clients, prospective buyers and sellers by showing easy-to-understand charts and reports. Your access to, and use of the Website, which includes without limitation, the Platform, constitutes your agreement with and acknowledgment of these Terms of Service including Aculist’s Privacy Policy as may be amended from time to time by Aculist without notice. If you do not agree with these Terms of Service, you are not permitted to access or otherwise use the Website. Each time you use the Website, you reaffirm your acceptance of the then-current Terms of Service. If you do not wish to be bound by these Terms of Service, you must discontinue using the Website.

2. License and Use Restrictions

a. Subject to the terms and conditions of these Terms of Service, Aculist hereby grants to you a revocable, non-exclusive, non-transferable, limited license to access and make use of the Website and the data and pre-formatted reports that Aculist makes available to you (“Licensed Materials”) in order to create market data reports for the sole purpose of (i) marketing your real estate brokerage services to your clients and prospective clients, (ii) facilitating your licensed real estate activities, and (iii) assisting in the training and support of other authorized Aculist users.

b. Aculist’s grant of license under Section 2(a) is expressly conditioned on your assurance that you will not offer or provide products containing any Licensed Materials or information derived therefrom to the general public or others for sale or otherwise outside the scope of the license in Section 2(a) including via access to any website, newsletter, advertisement, or other communication. Rather, you will only make the Licensed Materials or information derived therefrom on the condition that (i) all use of the Licensed Materials and all products and materials derived therefrom is on an “AS IS”, “AS AVAILABLE” basis; (ii) Aculist, MLSL and their respective licensors shall not be liable for any claim or loss resulting from the content of, errors or omissions in, or the end user’s use of the information contained in or retrieved from the Licensee Materials; and (iii) any use of the Licensed Materials is subject to these Terms of Service.

c. Use of the Licensed Materials in products or services designed or sold for any purpose other than expressly specified in Section 2(a) is specifically excluded from the license granted in these Terms of Service and requires the prior written consent of Aculist.

d. You agree not to modify, reproduce, duplicate, copy, sell, resell or exploit the Service for any commercial purposes other than as expressly allowed by these Terms of Service, or to create derivative works from the Website or any portion thereof, without Aculist’s prior written consent. “Derivative Work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.

e. You agree not to enable any third person to access the Website and to keep confidential your log-in password(s) associated with accessing the Website.

f. No portion of the Website may be reproduced, duplicated, or copied without the express written consent of Aculist. You may not reverse engineer or decompile any of the software or algorithms available on or through the Website. This license does not include the right to grant access, directly or indirectly, to any third party.
g. Systematic retrieval of information from the Website is expressly prohibited. Aculist reserves the right to implement limitations on the amount of information that can be provided to you.

h. The Licensed Materials shall not be used for any purpose that would be deemed illegal under any applicable federal, state or local statute and you agree to comply with the same when using any Licensed Materials.

3. Warranties/Disclaimer

a. Aculist warrants that the Licensed Materials will be as current and complete as may be reasonably achieved using the source data licensed by Aculist in the ordinary course of its business. You understand and agree that: (a) your use of the Website is at your own risk; and (b) the presence of specific data content does not necessarily ensure completeness or accuracy of such data. You may notify Aculist of purported errors in the Licensed Materials, and, in response, Aculist will research such matter(s) and, if possible, correct the Licensed Materials.

b. YOU UNDERSTAND AND EXPRESSLY AGREE THAT:
i. YOUR USE OF AND RELIANCE UPON THE WEBSITE AND THE LICENSED MATERIALS IS AT YOUR SOLE RISK. THE WEBSITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ACULIST EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
ii. ACULIST MAKES NO WARRANTY THAT (i) THE WEBSITE WILL MEET YOUR REQUIREMENTS, (ii) THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, AND (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE WILL BE ACCURATE OR RELIABLE.
iii. YOU OBTAIN ANY MATERIAL THROUGH THE USE OF THE WEBSITE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
iv. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ACULIST OR THROUGH THE WEBSITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.

4. Limitation of Liability/Indemnification

a. Except as otherwise expressly set forth in these Terms of Service, Aculist, MLSL, any company affiliated with Aculist or MLSL, or any officer, director, employee, agent, subcontractor, successor or assign of Aculist or MLSL shall not be liable to you for any loss, injury, claim, liability or damage of any kind resulting in any way from (a) errors or omissions in Licensed Materials, (b) use of Licensed Materials by you or any party receiving any Licensed Materials from you directly or indirectly or (c) the content of Licensed Materials as provided by Aculist through the Website and under these Terms of Service.

b. Aculist’s and MLSL’s entire liability and your exclusive remedy with respect to any dispute with Aculist (including without limitation your use of the Licensed Materials) is to discontinue your use of the Website. To the fullest extent allowed by applicable law, you hereby waive, disclaim and release Aculist, MLSL, any of their subsidiaries and affiliates, and their respective officers, directors, employees, agents, successors, and assigns, from all claims of any kind (specifically including any and all claims for actual, direct, indirect, incidental, consequential, punitive or exemplary damages, attorneys’ fees and costs, or claims for interest, even if Aculist is advised of the possibility of such damages), related to, in connection with or arising from, directly or indirectly, your access to (or inability to access) the Website or the use of any material or information contained on or provided through the Website and under these Terms of Service.

c. You agree to defend, indemnify and hold harmless Aculist, MLSL, and their respective licensors, directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees, arising out of your use of the Licensed Materials in violation of these Terms of Service. Aculist reserves the right, at its own expense and in its sole discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. In that event, and only in such event, shall you have no further obligation to provide indemnification for Aculist in that matter.

5. Intellectual Property

a. Aculist owns all right and title, including any applicable copyright, to the arrangement of the content on the Website and within the Platform and in any report generated through the Website or the Platform.

b. You acknowledge that Aculist has expended considerable time, effort and funds to compile Licensed Materials. Title to Licensed Materials shall at all times remain in Aculist, including its licensors, and you shall have no rights therein except as provided in these Terms of Service.

c. Aculist, Aculist.com, the Aculist logo, and other Aculist logos, product and service names are trademarks and service marks of Aculist (the “Aculist Marks”). You agree not to display or use in any manner, the Aculist Marks without Aculist’ prior permission. You may use Aculist Marks, but only in conjunction with the products and services that are provided to you as an authorized user of the Website. You may not alter or remove these marks from any Licensed Materials.

d. Aculist has agreements with third party licensors that may require the display of the licensors’ brand marks or copyright notices on certain content. You may not alter or remove these marks from any Licensed Materials.

6. Privacy and Data Collection – You shall comply with the Privacy Policy on the Aculist Website and all applicable privacy and information security laws including, but not limited to, security breach notification laws. Browser cookies, including third-party cookies, are required to access the Website. As a result of using the Website, Aculist may collect usage data from you in accordance with the Privacy Policy and may use such data for internal purposes and for incorporation into Aculist’s products and services.

7. User Generated Content – Aculist may allow you to upload content for use with reports generated by the Website. Aculist respects other people’s rights, and expects you to do the same.

a. You will not upload or use any content in connection with the Website that infringes or violates someone else’s rights or otherwise violates the law.
b. Aculist can remove any content or information you upload if Aculist believes that it violates these Terms of Service or applicable law.
c. If Aculist removes your content for infringing someone else’s copyright, and you believe it was removed by mistake, Aculist will provide you with an opportunity to appeal.
d. If you repeatedly infringe other people’s intellectual property rights, Aculist will disable your account when appropriate.
e. You will not use Aculist copyrights or Trademarks or any confusingly similar marks, except as expressly permitted by Aculist.
f. By uploading content to the Website, you grant Aculist, its parent, subsidiaries, affiliates, and third-party licensees a nonexclusive, perpetual, irrevocable, sub-licensable, royalty-free license to use, store, display, publish, transmit, transfer, distribute, reproduce, aggregate, and create derivative works of such content for any purpose, in any form, medium, or technology now known or later developed, that is related to delivering service to you through the Website.

8. This Website may provide, or third parties may provide, links to other World Wide Web sites or resources. Because Aculist has no control over such sites and resources, you acknowledge and agree that Aculist is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content on or available from such sites or resources. You further acknowledge and agree that Aculist will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content available on or through any such site or resource.

9. Termination – Aculist may restrict, suspend, or terminate your access to the Website at any time, including, without limitation, (a) immediately upon notice to you in the event that you are no longer a participant or subscriber of MLSL; (b) immediately upon notice to you in the event that you are using the Licensed Materials (or any portion thereof) in any way other than as expressly permitted by these Terms of Service; or (c) immediately upon notice to you in the event that you breach these Terms of Service.

10. Updates and Revisions to Terms of Service and Website – Aculist reserves the right at any time to modify or discontinue, temporarily or permanently, the Website (or any part thereof) with or without notice to you. You agree that Aculist shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Website. In addition, Aculist may update and/or revise these Terms of Service at any time, and from time to time, with or without notice to you, and you agree to be bound by such updates, modifications and/or revisions. Updates and revisions will be incorporated from time to time into these Terms of Service, and you are responsible and agree to review these Terms of Service from time to time to ensure compliance if you continue to use the Website after such Terms of Service have been updated. To the extent notices are issued, you agree to accept notices electronically.

11. Injunctive Relief – You acknowledge that any use of the Licensed Materials which is not in accordance with the terms of these Terms of Service or any violation of the restrictions imposed on its use of the Licensed Materials would cause irreparable harm to Aculist for which there would be no adequate remedy at law. Accordingly, you agree that in the event of any such violation, Aculist shall be entitled to immediate injunctive relief (temporary, preliminary or permanent, as the case may be) against you, in addition to such other rights and remedies to which it may be entitled by law. In the event any such injunction is entered, you shall pay the reasonable expenses incurred by Aculist in obtaining such injunction, including, without limitation, reasonable attorneys’ fees.

12. DMCA Disclaimer – If you believe that your intellectual property rights have been violated by Aculist or by a third party who has uploaded content on our Website, please provide the following information to the designated copyright agent listed below:
a. A description of the copyrighted work or other intellectual property that you claim has been infringed;
b. A description of where the material that you claim is infringing is located on the Website;
c. An address, a telephone number, and an e-mail address where Aculist can contact you and, if different, an e-mail address where the alleged infringing party, if not Aculist, can contact you;
d. A statement that you have a good-faith belief that the use is not authorized by the copyright or other intellectual property rights owner, by its agent, or by law;
e. A statement by you under penalty of perjury that the information in your notice is accurate and that you are the copyright or intellectual property owner or are authorized to act on the owner’s behalf;
f. Your electronic or physical signature.

Aculist may request additional information before removing any infringing material. Aculist may provide the alleged infringing party with your e-mail address so that that person can respond to your allegations.

Procedure for Notice of Copyright Infringement Pursuant to the Digital Millennium Copyright Act, 17 U.S.C. 512. If you wish to notify us of Content or postings on this Website that may result in copyright infringement pursuant to the Digital Millennium Copyright Act, 17 U.S.C. 512, please mail your notification to Legal Department, Aculist Inc. 350 Oakmead Parkway, Suite 200, Sunnyvale CA 94085 or fax your notification to our designated agent at (408) 341-895

12. Miscellaneous

a. The provisions of these Terms of Service addressing disclaimers of representations and warranties, limitation of liability, indemnity obligations, intellectual property, injunctive relief, arbitration and governing law shall survive the termination of these Terms of Service.

b. These Terms of Service govern your use of the Website. You also may be subject to additional terms and conditions that may apply when you use other Aculist products or services, third-party content or third-party software.

These Terms of Service and the relationship between you and Aculist are governed by the laws of the State of California without regard to its conflict of law provisions. You and Aculist agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Santa Clara, California.

The failure of Aculist to exercise or enforce any right or provision of the Terms of Service is not a waiver of such right or provision. If any provision of the Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect.

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Website or the Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.

The section titles in the Terms of Service are for convenience only and have no legal or contractual effect.

Aculist reserve all rights not expressly granted or addressed herein.