Subscriber Terms
These Subscriber Terms (the “Agreement”) are entered into by and between EliteListings.com and you as the “Subscriber”. This Agreement shall be effective (the “Effective Date”) on the earliest of (a) the date you completed an order on EliteListings.com (“Order”); or (b) your use of the Service.
Services
a) EliteListings.com shall make the Service purchased under the Order available to Subscriber pursuant to this Agreement during the applicable Subscription Term stated on the Order.
b) Subscriber shall not make the Service available to, or use any Service for the benefit of, anyone other than it.
c) EliteListings.com may suspend the account of Subscriber or any of its end users who (a) violates this Agreement or EliteListings.com’s Terms of Use; or (b) is using the Service in a manner that EliteListings.com.com reasonably believes may cause a security risk, a disruption to others’ use of the Service, or liability for EliteListings.com.
d) EliteListings.com offers products and services from third parties to Subscriber, as well as featuring advertisements and promotions from third parties or may otherwise provide information about or links or referrals to third-party products or services (“Third Party Products and Services”). EliteListings.com does not make any guarantees about the accuracy, currency, suitability, or quality of the information about such Third Party Products and Services, and EliteListings.com assumes no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content made available by Third Party Products and Services. Because EliteListings.com does not control such Third-Party Products and Services, EliteListings.com is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings with any Third Party Products and Services, and Subscriber uses such Third Party Products and Services at their own risk. Subscriber’s dealings or correspondence with such Third-Party Products and Services, and any terms, conditions, warranties, or representations associated with such dealings are solely between Subscriber and such third party. Subscriber should investigate and use their independent judgment regarding the merits, quality, and reputation of any Third Party Products and Services that Subscriber finds on or through EliteListings.com.
e) Services include social media and quarterly direct mail advertising for Subscriber’s selected campaigns. All Services and associated fees, prices, discounts, and promotions are subject to change without notice. Subscriber should log into its user account to view current Services and associated and current fees, prices, discounts, and promotions.
f) EliteListings.com will make its best efforts to provide support in relation to the Services. Subscriber acknowledges that its use of the Services and access to its user account may occasionally be restricted, delayed or temporarily unavailable for service, upgrades, maintenance, or other reasons. It may also be restricted, delayed, or temporarily unavailable for service, upgrades, maintenance, or other reasons by third parties, such as mobile carriers. From time to time, EliteListings.com’s support in relation to the Services and user accounts may be restricted, delayed, or temporarily unavailable due to service, upgrade, maintenance, or other reasons.
User Account.
In order to use the Services, Subscriber may need to create and access a user account. Subscriber agrees to provide current, complete, true and accurate account information. Subscriber agrees to keep its log-in information confidential and not authorize any third party to use it or to use its user account. Subscriber agrees that EliteListings.com may attribute all use of Subscriber’s user account to Subscriber, and that Subscriber is responsible for all activities that occur under its user account, and for any content posted, transmitted, uploaded or otherwise provided by or from its user account (“Subscriber Content”). Subscriber represents and warrants that it has the rights necessary to grant the aforementioned rights and that Subscriber Content does not infringe the rights of any third party or violate any applicable law. Subscriber agrees to notify EliteListings.com immediately if it suspects any unauthorized use of its user account, the Services, or any other breach of security. Although EliteListings.com will not be liable for any of Subscriber’s losses caused by unauthorized use of its user account, Subscriber may be liable for the losses of EliteListings.com or third parties due to such unauthorized use.
Warranties.
Except as expressly provided for in this section, to the fullest extent permitted by law, the services are provided on an “as is” and “as available” basis without any warranties of any kind, and EliteListings.com expressly disclaims any and all warranties, whether express or implied, including but not limited to the implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement. Subscriber acknowledges that EliteListings.com does not warrant that the service will be uninterrupted, timely, secure, or error-free. EliteListings.com is not responsible for and disclaims all liability related to delays, delivery failures, interception, alteration, or other damage resulting from matters outside of its control, including problems inherent in the use of the internet, mobile and personal computing devices, transmission of electronic communications over the internet or other networks and this party hosting service providers.
Fees and Payment
a) Subscriber’s subscription fees are set forth in the applicable Order. Subscriber shall pay all fees when due and is responsible for providing complete and accurate billing information to EliteListings.com. If such fees are being paid via credit card or other electronic means, Subscriber authorizes EliteListings.com to charge such fees using Subscriber’s selected payment method. Payment obligations are non-cancelable and fees paid are non-refundable unless otherwise provided herein. Where Subscriber designates use of a third-party payment processor network (such as a payment agent, for example), Subscriber shall be responsible for payment of all fees and charges associated with use of such network. EliteListings.com reserves the right to suspend Subscriber’s account, in addition to all of its other available rights and remedies, in the event that Subscriber’s account becomes overdue. Suspension shall not relieve Subscriber’s obligation to pay amounts due.
b) Subscriber agrees that its subscription will automatically renew on an annual or monthly basis depending on the Order (the “Renewal Date”). Subscriber authorizes EliteListings.com to automatically charge Subscriber for the applicable fees on or after the Renewal Date unless the Subscription has been terminated or canceled in accordance with this Agreement. Subscriber must cancel its subscription prior to the Renewal Date in order to avoid billing of the next period’s subscription fees. If Subscriber chooses to cancel its subscription during the subscription term, Subscriber may use the Service until the end of its then-current subscription term or renewal period, but will not be issued a refund for the most recently (or any previously) charged fees.
c) For monthly subscriptions, Subscriber authorizes EliteListings.com to automatically charge Subscriber for the first month upon the effective date of the Order. Subscriber further authorizes EliteListings.com to automatically charge Subscriber for the second month five (5) calendar days in advance of the first monthly Renewal Date. Thereafter, each successive month’s fee will be charged on the monthly Renewal Date.
Term and Termination.
This Agreement commences on the Effective Date and shall remain in effect until all subscriptions to the Service have expired or been terminated. Either party may terminate this Agreement (a) if the other party is in material breach of this Agreement and fails to cure such breach within thirty (30) days following receipt of written notice from the non-breaching party; or (b) as set forth in Order, and where the Order is silent, then the Agreement may only be terminated at the end of its then-current subscription term or renewal period. Upon expiration or termination of this Agreement for any reason, all subscriptions and any other rights granted to Subscriber under this Agreement shall immediately terminate, and EliteListings.com may immediately deactivate Subscriber’s account(s) associated with the Agreement. In no event will any termination relieve Subscriber of the obligation to pay any fees accrued or payable to EliteListings.com.
Indemnification.
Subscriber shall defend EliteListings.com, its Affiliates, and their employees, officers, and directors (together, the “Indemnified Parties”) from and against third party claims, actions, and demands arising from Subscriber’s use of the Services, and Subscriber shall indemnify and hold the Indemnified Parties harmless against any damages, reasonable attorneys’ fees, and costs finally awarded against the Indemnified Parties as a result of, or for any amounts paid by the Indemnified Parties under the settlement or other resolution of a claim against EliteListings.com.
Representations and Warranties.
Subscriber represents and warrants it will comply with all applicable laws (including but not limited to the Telephone Consumer Protection Act of 1991, as amended; The Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003, as amended; and state and federal privacy laws) in its receipt of and use of the Services received from EliteListings.com.
Limitation of Liability. In no event shall EliteListings.com’s liability arising out of or related to this Agreement (whether in contract, tort, negligence, or under any other theory of liability) exceed the total amount paid or payable by Subscriber hereunder in the 12 months immediately preceding the first event giving rise to liability. In no event shall EliteListings.com or its affiliates have any liability to Subscriber for any lost profits, revenues, or loss of use, or for any indirect, special, incidental, consequential, exemplary, or punitive damages however caused, whether in contract, tort, or under any other theory of liability and whether or not EliteListings.com has been advised of the possibility of such damages, and even if a remedy fails of its essential purpose. The foregoing disclaimer shall not apply to the extent prohibited by applicable law.
Miscellaneous
a) The Service is controlled and operated by EliteListings.com in the United States of America. Those who access or use the Service from other jurisdictions do so at their own risk and are responsible for compliance with local laws.
b) This Agreement and any disputes arising under it will be governed by the laws of the State of Texas without regard to its conflict of laws provisions, and each party consents to the personal jurisdiction and venue of the state or federal courts located in Austin, Texas. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. The parties agree that any and all disputes arising out of or in any way relating to this Agreement, including without limitation its existence, validity or termination, shall be resolved exclusively by binding arbitration before a single arbitrator with the American Arbitration Association and pursuant to their then existing arbitration rules. The place of the arbitration will be Austin, Texas unless otherwise agreed upon by the parties. Judgment upon any such award may be enforced in any court of competent jurisdiction. The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. The parties further agree that the prevailing party in any action or proceeding to enforce any right or provisions under this Agreement, including any arbitration or court proceedings, will be entitled to recover its reasonable costs and attorneys’ fees.
c) EliteListings.com may give general notices related to the Service that are applicable to all customers by email, text, in-app notifications, or by posting them on the EliteListings.com website or through the Service and such electronic notices shall be deemed to satisfy any legal requirement that such notices be made in writing. Notices to EliteListings.com must be sent to customersuccess@EliteListings.com.
d) EliteListings.com shall not be liable for delayed or inadequate performance of its obligations to the extent caused by a condition that is beyond EliteListings.com’s reasonable control, including but not limited to natural disaster, pandemic, civil disturbance, acts of terrorism or war, labor conditions, governmental actions, interruption or failure of the Internet or any utility service, failures in third-party hosting services, and denial of service attacks (each a “Force Majeure Event”). EliteListings.com shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations.
e) Neither this Agreement nor any of the rights and licenses granted under this Agreement may be transferred or assigned by Subscriber.
f) EliteListings.com may revise this Agreement from time to time by posting the modified version on its website. By continuing to access or use the Service after the posted effective date of modifications to this Agreement, Subscriber agrees to be bound by the revised version of the Agreement.
g) This Agreement, including all and any Order(s) hereunder, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes and replaces any prior or contemporaneous representations, understandings and agreements, whether written or oral, with respect to its subject matter. To the extent of any conflict or inconsistency between the provisions of the Agreement and any Order, the Agreement shall prevail.