THIS WEB SITE TERMS OF USE (“AGREEMENT”) IS A LEGAL DOCUMENT BETWEEN YOU (“USER”) AND Tri-State Property Exchange Corp. (“Tri-State Property Exchange Corporation”). THIS AGREEMENT STATES THE TERMS AND CONDITIONS UNDER WHICH YOU MAY ACCESS Tri-State Property Exchange Corp. WEB SITE. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING Tri-State Property Exchange Corp. WEB SITE. BY CLICKING THE ACCEPT BUTTON AND ACCESSING Tri-State Property Exchange Corp. WEB SITE YOU INDICATE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, USER SHALL CLICK THE REJECT BUTTON AND SHALL NOT USE OR ACCESS Tri-State Property Exchange Corp. WEB SITE.
WEB SITE TERMS OF USE
This Web Site Terms of Use ("Agreement") is made as of the Effective Date, by and between Tri-State Property Exchange Corp., a New York corporation with an address of P.O.Box ______ Staten Island, NY 10314 (“Tri-State Property Exchange Corp.”) and you, the party identified as User (“User”).
WITNESSETH
WHEREAS, Tri-State Property Exchange Corp. has developed and owns that certain Tri-State Property Exchange Web Site (as defined hereinafter) for use and access by users through the Internet; and
WHEREAS, Clients (as defined hereinafter) and Associates (as defined hereinafter), collectively referred to as User, desire to access Tri-State Property Exchange Corp. Web Site and use the Services (as defined hereinafter) in accordance with the terms and provisions of this Agreement; and
WHEREAS, Tri-State Property Exchange Corp. desires to provide Users (as defined hereinafter) access to the Tri-State Property Exchange Corp. Web Site for purposes of obtaining information.
NOW, THEREFORE, in consideration of the mutual benefits of the covenants and restrictions herein contained, User and Tri-State Property Exchange Corp. hereby agree as follows:
ARTICLE I: RECITALS AND DEFINITIONS
Section 1A – Recitals: The above recitals and identification of parties are true and correct.
Section 1B – Definitions: The following definitions shall apply:
- Access: The term “access” and variants thereof (including, without limitation, “accessing” and “accessible”) shall mean to store data in, retrieve data from or otherwise approach or make use of (directly or indirectly) through electronic means or otherwise.
- User: The term “User” shall mean Associates, employees of Client, and independent contractors hired by Client.
- User Content: The term “User Content” shall mean any and all User data and information used, stored on, or transmitted through the System in connection with Associate or Client (as the case may be) information
- Authorized Person: The term “Authorized Person” shall mean a person or organization who is authorized in writing by Tri-State Property Exchange Corp. to receive Proprietary Information and who agrees to maintain the propriety and confidentiality of such Proprietary Information.
- Associates: The term “Associates” shall mean employees of Tri-State Property Exchange Corp. and independent contractors hired by Tri-State Property Exchange Corp
- Client: The term “Client” shall mean an individual or organization that has engaged Tri-State Property Exchange Corp. to perform services as of the Effective Date.
- Unauthorized User: The term “Unauthorized User” shall mean any individual who accesses the Tri-State Property Exchange Corp. Web Site except for: (1) Associates and Clients authorized by Tri-State Property Exchange Corp. to access the Tri-State Property Exchange Corp. Web Site for purposes of using the Services; accessing, retrieving, and viewing Data, and inputting and retrieving User Content; and (2) Authorized Persons who are authorized in writing by Tri-State Property Exchange Corp. to access the Tri-State Property Exchange Corp. Web Site and the Services
- Data: The term “Data” shall mean any and all data and information used, stored on, or transmitted through the System, including (without limitation) the User Content
- Documentation: The term “Documentation” shall mean any and all written manuals, user’s guides, and Policy Statements concerning the Data and Tri-State Property Exchange Corp. Web Site as provided to User in printed or electronic form.
- Effective Date: The term “Effective Date” shall mean the first date by which Tri-State Property Exchange Corp. assigns a Password to User.
- Internet: The term “Internet” shall mean that certain global network of computers commonly referred to as the Internet.
- Technology: The term “Technology” shall mean any and all information, data, applications, methodologies, techniques, ideas, solutions, processes, adaptations, products, concepts, procedures, works of authorship, Tri-State Property Exchange Corp. Web Site, scripts, documentation, flow charts, diagrams, software libraries, databases, data structures, data models, data dictionaries, fields, records, screen displays, and graphic interfaces.
- Tri-State Property Exchange Corp. Technology: The term “Tri-State Property Exchange Corp. Technology” shall mean the Password, Data, Tri-State Property Exchange Corp. Web Site, System, Documentation, and any and all Technology developed by or for Tri-State Property Exchange Corp.
- The Tri-State Property Exchange Corp. Web Site: The term “Tri-State Property Exchange Corp. Web Site” shall mean that certain web site developed by or for Tri-State Property Exchange Corp., which is integrated with and implemented on the System and accessible by User via the Internet, including information, data, communication and text transmitted through the Tri-State Property Exchange Corp. Web Site and used or stored on the System.
- Password: The term “Password” shall mean that certain user name and password assigned by Tri-State Property Exchange Corp. to User for purposes of accessing the Tri-State Property Exchange Corp. Web Site and Services.
- Policy Statement: The term “Policy Statement” shall mean that certain written statement of policies (in printed or electronic form) concerning User access to the Tri-State Property Exchange Corp. Technology and use of the Services as may be adopted by Tri-State Property Exchange Corp. and as modified by Tri-State Property Exchange Corp. from time-to-time.
- Licensed Content: The term “Licensed Content” shall mean third party Technology incorporated in whole or part into Tri-State Property Exchange Corp. Technology.
- Restatements: The term “Restatements” shall mean Section 757 of the Restatement of Torts, Section 39 of the Restatement (Third) of Unfair Competition, Section 1 of the Uniform Trade Secrets Act and 18 U.S.C. § 1839.
- Services: The term “Services” shall mean those certain services as provided by Tri-State Property Exchange Corp. to User through the Tri-State Property Exchange Corp. Web Site.
- System: The term “System” shall mean computer systems and communications equipment owned or leased by Tri-State Property Exchange Corp. and used for hosting the Tri-State Property Exchange Corp. Web Site.
- Unauthorized Access: The term “Unauthorized Access” shall mean any access to the Tri-State Property Exchange Corp. Web Site except for the exclusive purposes of using the Services; accessing, retrieving, and viewing Data; and inputting and retrieving User Content.
- Proprietary Information: The term “Proprietary Information” shall mean the Data, Policy Statement, Documentation, Password, and any and all information in connection with the Tri-State Property Exchange Corp. Technology which is disclosed to User by Tri-State Property Exchange Corp. or learned or obtained by User and is not: (1) conveyed to User by a third party; (2) released by Tri-State Property Exchange Corp. without restriction; (3) independently developed by User; and (4) required by Court Order to be released by User.
ARTICLE II: SCOPE OF SERVICES
Section 2A – Access: Tri-State Property Exchange Corp. hereby grants User a non-exclusive and non-transferable license to access the Tri-State Property Exchange Corp. Web Site subject to the terms and conditions of this Agreement.
Section 2B – User Content: User may input, retrieve, and modify User Content in connection with the Services using the Tri-State Property Exchange Corp. Web Site. User shall not modify any Data or information except User Content.
Section 2C – Password: Tri-State Property Exchange Corp. shall assign User a Password for purposes of accessing the Tri-State Property Exchange Corp. Web Site and using the Services. User hereby accepts responsibility for, and shall be liable for, all access to the Tri-State Property Exchange Corp. Web Site, Data, and Services in connection with the Password. User shall access the Tri-State Property Exchange Corp. Web Site and the Services only using the Password. User shall be responsible for the confidentiality and maintenance of the Password. Modification of the Password shall be subject to written approval of Tri-State Property Exchange Corp. All assignments of the Password by User shall be void.
Section 2D – Unauthorized Access: User shall prevent Unauthorized Users from accessing the Tri-State Property Exchange Corp. Web Site and the Services using the Password. User shall prevent Unauthorized Access to the Tri-State Property Exchange Corp. Web Site and the Services using the Password.
Section 2E – Lawful Purpose: User represents and warrants that User access to the Tri-State Property Exchange Corp. Technology shall not violate any contract, statute, rule, regulation, or other obligation under which User is bound. User represents and warrants that User shall not access the Technology or Services to conduct or solicit the performance of any business or activity that is tortuous or prohibited by law.
Section 2F – Policy Statement: User shall comply with the Policy Statement. Tri-State Property Exchange Corp. may modify the Policy Statement from time to time in the exclusive discretion of Tri-State Property Exchange Corp.
Section 2G – Back-Up: Tri-State Property Exchange Corp. shall perform routine backup of files stored on the System using commercially reasonable measures.
Section 2H – Semi-Annual Email To Update Listing: Tri-State Property Corp. Exchange shall send an email semi-annually to user. User agrees to supply and update any information on listing as well as verify that property is still available for sale in this semi-annual email. User understands this semi-annual email is sent to user to keep content on website current. User accepts deletion of user’s listing by Tri-State Property Exchange Corp., if user fails to update status of listing when semi-annual email is sent to user by Tri-State Property Exchange Corp., and user accepts and agrees this will forfeit any money paid to Tri-State Property Exchange Corp. for those listings. User agrees that new listing fee needs to be paid by user to re-list deleted listing. User agrees and accepts these terms regarding the semi-annual email that will be sent to user by Tri-State Property Exchange Corp.
ARTICLE III: TERM OF AGREEMENT
Section 3A – Employment: User shall notify Tri-State Property Exchange Corp. immediately upon termination of employment or contracting services (as the case may be) with Client or Tri-State Property Exchange Corp. (as the case may be). Upon termination of employment or contracting services (as the case may be) with Client or Tri-State Property Exchange Corp. (as the case may be), this Agreement shall terminate and User shall cease all access to the Tri-State Property Exchange Corp. Web Site and the Services.
Section 3B – Shut-off: Tri-State Property Exchange Corp. shall have the right to disable and deny the Password and terminate this Agreement without notice upon (1) User’s termination of employment or contracting services (as the case may be) with Client or Tri-State Property Exchange Corp. (as the case may be); (2) User violation of Section 2.05; or (3) Tri-State Property Exchange Corp. receipt of notice from a third party challenging use of the Tri-State Property Exchange Corp. Web Site or Services by User.
Section 3C – Deactivation and Removal: Upon termination of this Agreement, Tri-State Property Exchange Corp. shall have the right to disable and deny the Password and cease all User access to the Tri-State Property Exchange Corp. Technology and Services. Upon termination of this Agreement, Tri-State Property Exchange Corp. shall remove, migrate, destroy, or convert (as the case may be) all User Content in its possession. User shall destroy or return (as requested by Tri-State Property Exchange Corp.) any copies of Tri-State Property Exchange Corp. property in possession of User.
ARTICLE IV: INTELLECTUAL PROPERTY
Section 4A – Ownership and Title: Title to the Tri-State Property Exchange Corp. Technology (excluding Licensed Content), including ownership rights to patents, copyrights, trademarks and trade secrets in connection therewith shall be the exclusive property of Tri-State Property Exchange Corp.
Section 4B – Reverse Engineering: Customer shall not reverse engineer the Tri-State Property Exchange Corp. Web Site and shall use reasonable efforts to prevent reverse engineering of the Tri-State Property Exchange Corp. Web Site.
Section 4C – Modifications: User shall not copy the Tri-State Property Exchange Corp. Web Site and Documentation and shall not allow the Tri-State Property Exchange Corp. Web Site and Documentation to be copied without the prior written consent of the Tri-State Property Exchange Corp. User shall not modify the Tri-State Property Exchange Corp. Web Site and Documentation and shall not allow the Tri-State Property Exchange Corp. Web Site and Documentation to be modified without the prior written consent of Tri-State Property Exchange Corp . If the Tri-State Property Exchange Corp. Web Site or Documentation is modified, such modifications shall be the sole and exclusive property of Tri-State Property Exchange Corp. and shall own any and all of the rights, title, and interests to such modifications, including (but not limited to) any and all copyrights, patents, and trade secrets related thereto.
Section 4D – Proprietary Information: User shall not disclose Proprietary Information except to Authorized Persons. User shall hold Proprietary Information in strict confidence and shall not duplicate, use or disclose Proprietary Information except as otherwise permitted under this Agreement. User hereby acknowledges and agrees that the Proprietary Information derives independent economic value (actual or potential) from not being generally known to other persons who can obtain economic value from its disclosure or use and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; is the subject of reasonable efforts under the circumstances to maintain its secrecy; and is a trade secret as defined under the Restatements.
Section 4E – No Contest: User shall not contest or aid in contesting the ownership or validity of the copyrights, trademarks, service marks and trade secrets of Tri-State Property Exchange Corp. in connection with the Tri-State Property Exchange Corp. Technology.
Section 4F – Noncompete: User shall not (directly or indirectly) promote, advertise, market, or provide any product or service similar to or competitive with the Tri-State Property Exchange Corp. Web Site or Services.
ARTICLE V: WARRANTY
Section 5A – Warranty: Tri-State Property Exchange Corp. hereby represents and warrants that the Services shall be provided on a reasonable efforts basis and shall conform to the standards generally observed in the industry for similar services.
Section 5B – WARRANTY LIMITATION: THE WARRANTY SET FORTH IN SECTION 5.01 IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES OF MERCHANTABILITY. EXCEPTING THE WARRANTY SET FORTH IN SECTION 5.01, Tri-State Property Exchange Corp. HEREBY DISCLAIMS AND USER HEREBY WAIVES ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY. The Tri-State Property Exchange Corp. WEB SITE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. The Tri-State Property Exchange Corp. DOES NOT GUARANTEE OR WARRANT THE ACCURACY, COMPLETENESS OR USEFULNESS OF the Tri-State Property Exchange Corp. WEB SITE. Tri-State Property Exchange Corp. DOES NOT MAKE ANY WARRANTY AND USER HEREBY WAIVES ANY AND ALL WARRANTIES AS TO THE RESULTS OBTAINED FROM THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF Tri-State Property Exchange Corp. WEB SITE. USER HEREBY ACKNOWLEDGES AND AGREES THAT USE OF THE SERVICES SHALL BE AT THE SOLE AND EXCLUSIVE RISK OF USER AND SUBJECT TO THE RESTRICTIONS, TERMS AND CONDITIONS, RULES, REGULATIONS, POLICIES, APPLICABLE LAWS AND THE POLICY STATEMENT GOVERNING THE SERVICES. Tri-State Property Exchange Corp. SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR HARM OR DAMAGES RESULTING FROM OR ARISING OUT OF USER INABILITY TO USE THE SERVICES.
Section 5C – Inaccuracies: User hereby acknowledges that the Data may contain errors, inaccuracies, and omissions. User shall assume any and all risk of loss, harm or damage associated with User access to and use of the Tri-State Property Exchange Corp. Technology.
Section 5D – Express Warranties: User hereby acknowledges and agrees that Tri-State Property Exchange Corp. (including officers, employees, agents, directors, and independent contractors of Tri-State Property Exchange Corp.) has not made or granted to User any express warranties concerning the Real Estate Factory Inc. Technology, excepting the warranty in Section 5.01.
Section 5E – Limitation of Damages: Tri-State Property Exchange Corp. shall not be liable to User for any lost profits or consequential, exemplary, incidental or punitive damages, in connection with (1) use, performance or operation of the Tri-State Property Exchange Corp. Web Site or Services; (2) use, performance or operation of the Internet or use of the Internet by User; and (3) loss of Data, regardless of the form of action, whether in contract or in tort, including negligence, regardless of whether Tri-State Property Exchange Corp. has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable.
Section 5F – Remedies: The sole remedy for User for any reason and for any cause of action whatsoever in connection with this Agreement and the Tri-State Property Exchange Corp. Web Site or Services, regardless of the form of action, whether in contract or in tort, including negligence, shall be modification of the Tri-State Property Exchange Corp. Web Site, as determined by Tri-State Property Exchange Corp.
Section 5G – Force Majeure: Tri-State Property Exchange Corp. shall not be liable to User for failing to perform its obligations hereunder because of circumstances reasonably beyond the control of Tri-State Property Exchange Corp. Such circumstances shall include (without limitation) any acts or omissions of any government or governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, labor disputes, power failure, delays in transportation or deliveries of supplies or materials, acts of God, computer failure, hardware failure, telecommunications failure, software failure, failure of User to cooperate with the reasonable requests of Tri-State Property Exchange Corp., breach of this Agreement by User, and any other events reasonably beyond the control of Tri-State Property Exchange Corp.
Section 5H – Content Warranty: User represents and warrants that any and all information provided by User in connection with this Agreement, the Password, Services, and the User Content are to be true, accurate, complete, and current.
Section 5I – Indemnification: User shall release, defend, indemnify and hold harmless Tri-State Property Exchange Corp. from and against any and all claims, liability, losses and damages arising in connection with: (1) User access to the Tri-State Property Exchange Corp. Technology; (2) use of the Services by User; (3) the User Content; and (4) breach of this Agreement by User.
Section 5J – Export Assurance: User shall not disclose, export, distribute, or transfer any Data to any third party individual or entity or any division, affiliate or subsidiary of User located in any country other than the United States. User shall not perform any act in conflict with or in violation of the export laws and regulations of the United States.
Section 5K – Loss of User Content: Programming, design errors, maintenance of the Tri-State Property Exchange Corp. Web Site or Services, or unauthorized access to the Tri-State Property Exchange Corp. Web Site or Services may result in the loss of User Content. Tri-State Property Exchange Corp. shall not be responsible for any loss of User Content.
ARTICLE VI: MISCELLANEOUS
Section 6A – Assurances: User represents and warrants that all representations, warranties, recitals, statements and information provided to Tri-State Property Exchange Corp. under this Agreement are true, correct, and accurate as of the Effective Date.
Section 6B – Entire Agreement: This Agreement contains the entire understanding of the parties relating to the Tri-State Property Exchange Corp. Technology and supersedes all previous verbal and written agreements between Tri-State Property Exchange Corp. and User relating to the Tri-State Property Exchange Corp. Technology. The Policy Statement (as modified by Tri-State Property Exchange Corp. from time to time) is incorporated herein by this reference and made a part of this Agreement.
Section 6C – Continuation: The terms and provisions of Articles I, III, IV, V, and VI of this Agreement shall survive termination and cancellation of this Agreement.
Section 6D – Amendments and Modifications: Excepting modifications to the Policy Statement, any alteration, modification, or amendment of this Agreement shall be void unless such alteration, modification, or amendment is in writing and signed by the parties hereto.
Section 6E – Severability: If a provision of this Agreement is rendered invalid the remaining provisions shall remain in full force and effect.
Section 6F – Captions: The headings and captions of this Agreement are inserted for convenience of reference and do not define, limit or describe the scope or intent of this Agreement or any particular section, paragraph, or provision.
Section 6G – Counterparts: This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
Section 6H – Governing Law: This Agreement is governed by the laws of the State of New York, without regard to any rules of conflict or choice of laws that require the application of laws of another jurisdiction, and venue shall be New York City.
Section 6I – User Notice: All notices shall be in writing. Notices to User shall be deemed delivered when delivered electronically, by commercial overnight delivery service, by Certified or Registered Mail - Return Receipt Requested - or by hand to an address set forth for User as maintained in Tri-State Property Exchange Corporation’s records. Notices to User shall be deemed given on the date notice is delivered electronically or by hand to User or on the date of receipt by User (as evidenced in the case of Certified or Registered Mail by Return Receipt), whichever occurs first. Notices delivered to User electronically (including, without limitation, electronic mail) shall be deemed written notices.
Section 6J – The Tri-State Property Exchange Corp. Notice: Notices to Tri-State Property Exchange Corp. shall be deemed delivered when delivered by commercial overnight delivery service, Certified or Registered Mail - Return Receipt Requested - or by hand to the person and address set forth below for Tri-State Property Exchange Corp. Notices to Tri-State Property Exchange Corp. shall be deemed given on the date notice is received by Tri-State Property Exchange Corp. (as evidenced in the case of Certified or Registered Mail by Return Receipt).
Tri-State Property Exchange Corp.
P.O. Box 131443
Staten Island, NY 10313
Section 6K – Pronouns/Gender: Pronouns and nouns shall refer to the masculine, feminine, singular, or plural, as the context shall require.
Section 6L – Equitable Remedies: The parties hereby acknowledge that damages at law may be an inadequate remedy to Tri-State Property Exchange Corp. In addition to all other remedies that may be available at law or equity, Tri-state Property Exchange Corp. shall have the rights of specific performance and injunction in the event of a breach or threatened breach of this Agreement by User.
Section 6M – Waiver: Waiver of a breach of this Agreement shall not constitute a waiver of any other breach. All remedies under this Agreement are in addition to equitable remedies and remedies provided by law. Failure to enforce any provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision. Any waiver of a provision of this Agreement shall not be binding unless such waiver is in writing and signed by the waiving party.
Section 6N – Assignments: Any and all assignments of rights here under by User shall be void.
Section 6O – Public Announcements: All public announcements concerning the Tri-State Property Exchange Corp. Technology or the relationship of User and Tri-State Property Exchange Corp. under this Agreement shall be subject to the prior written approval of Tri-State Property Exchange Corp.
Section 6P – Arbitration: Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration in accordance with the Arbitration Rules of New York in strict confidentiality. Arbitration is with JAMS, in accordance with JAMS Rules.
Section 6Q – Litigation Expense: In the event of litigation or arbitration arising out of this Agreement, each party shall pay its own costs and expenses of litigation or arbitration (excluding fees and expenses of arbitrators and administrative fees and expenses of arbitration).
Section 6R - Emails: User agrees to receive and accept emails from Tri-State Property Exchange Corp. |
