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BROKER TERMS OF SERVICE AGREEMENT This Agreement together with your Broker Order sets forth the Standard Terms and Conditions that apply to your use of FreeFSBO® services. FreeFSBO is a registered service mark and dba of Martcam LLC. a North Carolina corporation and any reference in this "Terms of Service Agreement" to FreeFSBO shall be considered one in the same with Martcam LLC. The Broker Order you completed in conjunction with your account activation is a part of this Agreement and is incorporated herein by this reference as though fully set forth herein. TERMS AND CONDITIONS FOR USE OF FreeFSBO SERVICES, RECEIPT OF CONSUMER CONTACT INFORMATION AND FOR USE OF THE FreeFSBO.com WEBSITE. BY VISITING OR USING THE FreeFSBO WEBSITE, OR ANY PAGE OF THE www.FreeFSBO.com WEBSITE, YOU ARE AGREEING TO BE BOUND BY THESE TERMS OF SERVICE, AND THAT SUCH AGREEMENT CONSTITUTES A BINDING CONTRACT BETWEEN YOU AND FreeFSBO. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS OF USE, PLEASE DO NOT VISIT OR USE THE FreeFSBO WEBSITE OR ANY PAGE OF THE FreeFSBO WEBSITE. Definitions: For the purposes of this Agreement, the terms set forth below shall have the following meanings: 1. “Agreement” refers to this Terms of Service Agreement AND your Broker Order; Privacy Policy FreeFSBO is committed to maintaining the privacy and security of any and all information that you provide to FreeFSBO through the FreeFSBO.com website. To that end, FreeFSBO urges you to review the FreeFSBO Privacy Policy, which may be accessed by clicking on the following link: Privacy Statement Please note that privacy policies of FreeFSBO's affiliates or third parties may apply to information you provide on the FreeFSBO.com website. In addition, websites linked to the FreeFSBO.com website may have separate privacy policies. Except where we specify otherwise, FreeFSBO offers you access to the FreeFSBO.com website solely for your personal and non-commercial uses. You promise and agree that you will not use the FreeFSBO.com website, in whole or in part, for any purpose that is unlawful in any state or county or prohibited by this Agreement. You agree that you will not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, frame in another web page, use on any other website, transfer or sell any information, software, lists of users, databases or other lists, products or services provided through or obtained from the FreeFSBO.com website. This means, among other activities, that you agree not to engage in the practices of “screen scraping,” “database scraping,” or any other similar activity. You agree that you will not use the FreeFSBO.com website in any manner that could damage, disable, overburden, or impair the FreeFSBO.com website or interfere with any other party's use and enjoyment of the FreeFSBO.com website. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the FreeFSBO.com website. If and when requested by FreeFSBO.com, you agree to provide true, accurate and complete user information and to refrain from impersonating or falsely representing your affiliation with any person or entity. Except with the written permission of FreeFSBO.com, you agree that you will not access or attempt to access password protected, secure or non-public areas of the FreeFSBO.com website. You agree that FreeFSBO may in its sole discretion and at any time terminate your access to and use of the FreeFSBO.com website, or any part thereof, with or without notice. The FreeFSBO.com website contains content and information originated by FreeFSBO. FreeFSBO makes available such content and information through the FreeFSBO.com website as a public service, for the sole purpose of aiding you, the individual Broker. FreeFSBO, therefore, cannot guarantee the accuracy, sufficiency, correctness, veracity, completeness, or timeliness of such information. You are responsible for confirming the sufficiency and reliability of any such information. This means, for example, that all of the information and materials contained in the FreeFSBO.com website—including any terms and conditions necessary to obtain a loan or other products or services—are subject to change at any time. Not all products and services are available in all geographic areas. Your eligibility for particular products and services is subject to final FreeFSBO determination and acceptance. E-Signatures and Communications All electronic communications, including any electronic signatures or identifiers of FreeFSBO, are being transmitted solely for informational purposes. By making an electronic communication, FreeFSBO specifically does not intend to agree, bind, or otherwise consent to any matter for any purpose whatsoever, and does not intend that the electronic communication, or any related or associated electronic media or data, to constitute, or to be deemed to constitute, an electronic signature pursuant to any state or federal law or regulation that authorizes the use of electronic signatures. Your acceptance of these terms is your warrant and representation to us that your conduct in performing your obligations under this Agreement will conform to all of the Terms of Service set forth herein and all applicable, international and/or federal, state and local laws, rules and regulations including, without limitation, the provisions of the published FreeFSBO Privacy Policy; all privacy laws and anti-spam laws (including, but not limited to, the Graham-Leach-Bliley Act, the Do-Not-Call Telephone Solicitation Implementation Act of 2003 and the Telephone Consumer Protection Act of 1991), laws regarding email marketing (including, but not limited to, the CAN-SPAM act of 2003), and the Fair Credit Reporting Act. If, after you contact a Lead, and the Consumer requests to be removed from any further contact from you and/or FreeFSBO, you agree to comply with this request for your own records AND you agree to forward that Consumer's request to FreeFSBO via e-mail at opt.out@FreeFSBO.com within ten (10) business days of your receipt of the request. Upon the delivery of Leads, You represent, warrant and agree to: 1. Contact the Consumer in a timely fashion; REGISTERING FOR SERVICE — BROKER ORDER Registration is available to eligible members only. You may only register one time for our service. To register, you must complete a Broker Order wherein you provide your business contact information, billing information, initial lead type and filter criteria, and your initial lead block purchase commitment(s). The Broker Order is a legally binding contract and is part of this Terms of Service Agreement, incorporated herein by this reference as though fully set forth herein. After you register, you may set up sub-accounts if you need to have more filters or set up accounts for other loan officers at your company. Your user account shall be provisionally activated when Martcam LLC has received your fully executed Broker Order, and you affirmatively agree to this Terms of Service Agreement. Permanent activation will occur only when Martcam LLC has received confirmation that your initial Block Commitment payment(s) has cleared by your bank or Credit Card Company. You can expect a processing delay of up to ten (10) business days from the date you authorize payment on your credit card or the date we receive your check for your Block Commitment payment to clear your bank or Credit Card Company. All terms and conditions of this Terms of Service agreement apply during this provisional activation period. Martcam LLC reserves the right to deactivate your account at any time during this provisional activation period without prior notice to you. BUYING LEADS You may only purchase Leads once your account has been activated and there are sufficient funds on deposit in your account to purchase the Leads you choose. Your account shall be debited for the cost of the Lead(s) you ordered when those Leads are forwarded to you via email. FROM TIME TO TIME SPECIAL LEAD PRICES AND PROMOTIONS ARE EXTENDED TO BROKER SUBSCRIBERS. WHEN OFFERED, SPECIAL LEAD PRICES ARE EXTENDED TO ACCOUNT HOLDERS ON THE EXPRESS CONDITION THAT THE ACCOUNT HOLDER PURCHASE THE ENTIRE LEAD VOLUME COMMITMENT AGREED TO IN THE OFFER EXTENDED. SHOULD YOU ACCEPT AND PARTICIPATE IN ANY SUCH SPECIAL LEAD PRICE OFFERS AND PROMOTIONS, ANY REDUCTION IN THE CONTRACTED VOLUME COMMITMENT OR REQUEST FOR ACCOUNT TERMINATION PRIOR TO YOU FULFILLING YOUR TOTAL PURCHASE COMMITMENT UNDER THE PROMOTION, WILL VOID THE PROMOTIONAL PRICING RETROACTIVE TO THE START DATE OF THE PROMOTION ITSELF AND WILL RESULT IN A FULL CURRENT MARKET PRICE CHARGE ASSESSMENT BEING LEVIED FOR EACH LEAD PURCHASED FROM THE PROMOTION START DATE UP TO THE POINT OF REDUCTION OR TERMINATION. Some Leads sold by FreeFSBO are non-exclusive and may be sold to multiple brokers according to filtering criteria established by individual Brokers and the Lead data itself. There is currently one service level available - Auto-Routed Leads. Regardless of the distribution level of Lead requested (exclusive or non-exclusive), with the exception of your initial Block and volume commitments set forth in your initial Broker Order, if you decide to buy Leads, the price for the Leads will be based on the FreeFSBO pricing schedule in effect at the time you buy the Leads. YOUR PURCHASE IS A BINDING CONTRACT subject to the guarantee, return, refund policies and other terms set forth in this Terms of Service Agreement and in your initial Broker Order. Your account will be immediately debited for the total initial commitment amount(s) you agreed to in your Broker Order. After your Initial Commitment is satisfied as set for below, your account will be immediately debited for the total purchase amount based upon the current market price for the Leads you accept as stated in the FreeFSBO pricing schedule in effect at the time you buy the Leads. Your account shall be debited for the cost of the Lead(s) as they are delivered via email. Auto-Routed Lead Block Initial Volume Commitment: By establishing your user account for Auto-Routed lead delivery, you are committing yourself to purchase an initial block of Leads to be delivered to your account. Leads will be automatically delivered to your email account each business day until your initial block deposit is exhausted, according to the filter criteria you select. Filter criteria can be changed as often as you choose. You will be charged a fee per Lead for those Leads auto-routed to your email account as called out in your initial block commitment. Your initial Block Commitment is non-cancelable. Your Initial Block Commitment set up fee is non-refundable once your account is activated. Prices subject to change without notice. FUNDING YOUR ACCOUNT AUTO-ROUTED LEADS Initial Set up Fee (Non-Refundable): $500.00 Initial Volume Commitment Fee (Non-Refundable): Minimum of $500.00 CONTINUING USER ACCOUNT MINIMUM deposit amount *: $250 Funding your account. POSITIVE ID IS REQUIRED FOR ALL CHECK AND CREDIT CARD FUNDINGS. If you use a credit card to fund your account, YOU AGREE TO NOT CHARGE BACK YOUR CARD for any reason until you contact us to try and resolve your dispute. If you are dissatisfied with our services or any Lead or Leads you have purchased using your credit card you must follow the return/refund policy and procedures set forth under this Terms of Service Agreement. In the event you breach this term and you charge back your credit card for all or partial amounts within your account, we will dispute the chargeback if we feel your claim is without merit. If we are successful, you will be charged a collection fee of one hundred ($100) dollars, you will be charged an administrative service fee of one hundred ($100) dollars, which you agree to pay in addition to the amount of the Lead purchase fee due for Leads you have received to the date of the chargeback. Your user account balance will not reflect a deposit made until your credit card company has processed your payment into Martcam LLC's merchant account. This date may differ from the date you actually authorize your payment. 1. For all New Broker accounts funded with a credit card: You must provide our accounting department with a legible fax of an enlarged copy of your driver's license and Credit Card used to fund your account. You may fax these to 613 257 3614. The name on both the driver's license and the credit card must be the same, NO EXCEPTIONS. If you prefer, you may block out all but the last 5 digits of the credit card number prior to faxing it. The faxed document must reference the Broker account number you have been assigned when you opened your account. 2. For all Existing Broker accounts funded with a different credit card: If you are funding your existing account with a credit card other than the one used to open your account initially, you must provide our accounting department with a legible fax of an enlarged copy of your driver's license and Credit Card used to fund your account. You may fax these to 613-257-3614. The name on both the driver's license and the credit card must be the same, NO EXCEPTIONS. If you prefer, you may block out all but the last 5 digits of the credit card number prior to faxing it. The faxed document must reference the Broker account number you have been assigned when you opened your account. 3. For all Existing Brokers opening additional accounts: You must provide our accounting department with a legible fax of an enlarged copy of your driver's license and Credit Card used to fund your additional account. You may fax these to 613 257 3614. The name on both the driver's license and the credit card must be the same, NO EXCEPTIONS. If you prefer, you may block out all but the last 5 digits of the credit card number prior to faxing it. The faxed document must reference the Broker account number you have been assigned when you opened your account. 4. Check or Draft: If you use a check you agree to not stop payment on the check for any reason. If you are dissatisfied with our services or any Lead or Leads you have purchased using your check or draft you must follow the return/refund policy and procedures set forth under this Terms of Service Agreement. If your check or draft is not honored by the bank for any reason, you are subject to and will be charged a return check fee equal to three (3) times the face value of the check up to a maximum of one hundred ($100) dollars, which you agree to pay in addition to the check face amount. Your user account balance may not reflect a deposit made into your user account until your check been deposited into our bank, processed and has cleared your bank. This date may differ from the date you send your payment or the date we receive your check. ALL CHECKS MUST BE ACCOMPANIED BY A CLEAR ENLARGED COPY OF A VALID DRIVER'S LICENSE FOR THE SIGNER OF THE CHECK. In any of the above circumstances, ALL UNPAID ACCOUNTS WILL BE SENT TO COLLECTIONS. In addition to the account balance owed to us, you will be responsible to pay any collection costs of not less than 40% of the outstanding balance in addition to reasonable attorney fees and court costs. Automated Lead Delivery An Auto Routed Lead is considered delivered when it is made available to you regardless of any supplemental delivery method you may request. For Brokers that FreeFSBO determines meet the technical requirements and operational and funding eligibility criteria, Leads shall be provided to you pursuant to the parameters defined in your initial Broker Order and according to the filtering criteria you may from time-to-time select. We will not change or alter your forwarding email address without your permission. Leads are delivered to you through our automated delivery system according the filter criteria you choose. Broker leads will be automatically forwarded ("Auto-Routed") to your email address by our automated lead delivery system. Check your email account on a regular basis to ensure your Leads are being retrieved. Auto-Routed Leads are normally delivered throughout a business day during each Business Week throughout the year, as they are received into our database and cleared through our quality assurance check. FreeFSBO shall endeavor to make Leads available as soon after submission as is practical given quality assurance testing and lead volume loads experienced. FreeFSBO shall have no responsibility for any service or server outages or failure of Broker's email system or Internet access. FreeFSBO defines a “business day” as follows: 1. Each 24 hour period beginning at 12:01 A.M. Pacific Standard Time through 12:00 midnight Monday through Friday shall be considered as one business day. FreeFSBO defines a “business week” as comprised of five (5) consecutive business days Monday through Friday. LEAD CONTENT AND LIMITED GUARANTEE Auto-Routed Leads: Leads are automatically sent to you each business day based upon the filter criteria you choose. When reference is made on our website as to the age of a Lead, that age is stated in terms of business days, not calendar days. Leads are procured from FreeFSBO.com exclusively. FreeFSBO employs internal data validation procedures and makes every effort to ensure you receive only valid Leads. These efforts may include a 24 hour lock-down period to phone verify the Leads before they are distributed. Nevertheless, as the actual age of the data received may be different than the date FreeFSBO received the Lead, occasionally a Lead may contain information that, though consistent with our validation criteria, is no longer valid. We offer a Limited guarantee that each Auto-Routed Lead to be a valid Lead as defined in the “Definitions” section of this Agreement. Leads provided under your Initial Block Commitment that are subsequently shown to be Invalid Leads as defined in prior sections of this Agreement, will be replaced with a valid Lead or be issued a Lead credit to your FreeFSBO account for the cost of invalid lead up to the maximum return allowance as defined in subsequent sections of this Agreement. YOU ARE NOT ENTITLED TO ANY CASH REFUNDS DURING YOUR INITIAL BLOCK COMMITMENT PERIOD. For Leads purchased after your initial Block Commitment period, we will issue a Lead credit to your FreeFSBO account for the amount you paid for an Automatically Routed Lead that is subsequently shown to be an Invalid Lead as defined in prior sections of this Agreement according to our standard Lead dispute and refund policy set forth in this Agreement. Data provided within a Lead is inputted solely by the Consumer and not FreeFSBO or anyone affiliated with us. Consumers submit their contact information directly to FreeFSBO. WE DO NOT GUARANTEE THE AGE OF THE DATA CONTAINED IN A LEAD, WILL REMEMBER SUBMITTING THEIR CONTACT INFORMATION ON AN OPT-IN REQUEST. WE DO NOT GUARANTEE THAT THEIR EMAIL ADDRESS IS CORRECT OR THAT THEIR STATED HOME VALUE, REQUESTED LOAN AMOUNT, OR CREDIT QUALITY. HOW YOU APPROACH AND HANDLE EACH LEAD IS UP TO YOU AND NOT UNDER THE CONTROL OF FreeFSBO. AS SUCH, WE DO NOT GUARANTEE YOUR RESULTS OR THAT YOU WILL CLOSE ANY TRANSACTIONS WITH OUR LEADS. Since most of our Leads are non-exclusive, the Consumer may have started a loan process with another Loan Officer, so this is not a valid reason for a dispute, refund or credit. Similarly, Consumers often will change their mind after they submit a request for contact and thus may not be willing to apply for a loan with you, so this is not a valid reason for a dispute, refund or credit. We recommend contacting the Consumer as soon as you get the Lead so you can be the first to earn their business. FreeFSBO reserves the right to change or adjust this policy without prior notice to you. You are therefore encouraged to periodically review this Terms of Service Agreement. FreeFSBO reserves the right to monitor your disputes and returns to determine their validity. FreeFSBO reserves the right to verify your dispute rationale and in our sole discretion, determine if your dispute is valid. In the event your dispute is determined to be without merit, the charge for the valid Lead will stand against your account, no credit will be issued, and a dispute validation penalty will automatically be charged to your account according to the terms set fort in our Lead Return Policy. You will be notified via your account report of our actions to accept or deny your dispute within ten (10) working days of receipt of your dispute. ABUSE OF THIS RETURN POLICY WILL NOT BE TOLERATED. In the event we determine in good faith that your dispute is without merit according to our lead return policy and that you are abusing our return policy based upon the number or frequency of disallowed returns, in addition to not receiving a credit of the Lead cost, your account will automatically be charged a dispute validation fee of $10 for each disputed Lead proven to be without merit. In addition to all other remedies under this contract and in law, FreeFSBO reserves the right to terminate your account if abuse of this Lead Return Policy is proven to exist. FreeFSBO reserves the right to change or adjust this policy without prior notice to you. You are therefore encouraged to periodically review this Terms of Service Agreement. DISPUTED LEAD RETURN POLICY: Auto-Routed Leads: YOU ARE ALLOWED TO RETURN TO US A MAXIMUM OF 20% OF THE TOTAL NUMBER OF INVALID LEADS YOU PURCHASED EACH CALENDAR MONTH. ALL RETURNS WILL BE VERIFIED FOR VALIDITY AND MAY BE REJECTED IF YOUR RETURN REASON IS WITHOUT MERIT. If any Lead provided to you does not contain valid basic contact information as described in the previous guarantee section, within five (5) days of purchase notify FreeFSBO by email (returns@FreeFSBO.com), insert the Lead Id into the subject field and reason for returning the Lead. Dispute percentages are electronically monitored and limited to a maximum of 20% of your total Lead purchase volume for a calendar month. Disputes may be processed electronically unless your account has exceeded the return percentage maximum. Subject to the maximum allowable return limit above, Replacement Leads or Lead credit shall be provided for Invalid Leads. However replacements shall not be provided for Leads where Consumers have elected not to use Broker's services. Broker hereby agrees to notify FreeFSBO in writing (via email to returns@FreeFSBO.com) of any Invalid Leads within five (5) calendar days of their delivery to Broker, which notice shall specify the invalidation criteria that is not met. LEADS MAY NOT BE RETURNED AFTER FIVE (5) CALENDAR DAYS AFTER DELIVERY. Following FreeFSBO's confirmation of any Invalid Leads, FreeFSBO shall provide replacement Leads. Lead returns of three (3) or less from the same batch can be processes using the automated lead dispute system found on the www.FreeFSBO.com website. Disputed Leads in excess of three (3) Leads from the same batch will require customer service verification and manual processing. In such circumstances, you will be provided a name and contact phone number to call to complete your dispute. FreeFSBO reserves the right to monitor, validate, either electronically or by physical contacting the Consumer, your disputes and returns to determine if your dispute is valid. In the event your dispute is determined to be without merit and that you are abusing our return policy based upon the number or frequency of disallowed returns, the charge for the valid Lead will stand against your account and no credit will be issued. Proof of the validation results is available to you upon your written request. FreeFSBO reserves the right to charge your broker account a dispute resolution fee of $10 for each and every Lead you attempted to dispute where such dispute is proven to be without merit. You will be notified via email of our decision to accept or deny your dispute within ten (10) working days of receipt of your dispute. FreeFSBO reserves the right to change or adjust this policy without prior notice to you. You are therefore encouraged to periodically review this Terms of Service Agreement.
ALL REFUNDS AND CREDITS ARE SUBJECT TO THE INITIAL BLOCK RESTRICTIONS, INACTIVE ACCOUNT POLICIES, LEAD DATA QUALITY GUARANTEES, AND DISPUTED LEAD RETURN POLICIES STATED IN PREVIOUS SECTIONS OF THIS TERMS OF SERVICE AGREEMENT. ALL REFUND OR LEAD CREDIT REQUESTS (NOT AUTOMATICALLY PROCESSED BY OUR AUTOMATED SYSTEM AS STATED ABOVE) MUST BE SENT BY YOU IN WRITING (FAX OR U.S. MAIL ONLY) AND VERIFIED VIA TELEPHONE BY AN AUTHORIZED FreeFSBO REPRESENTATIVE. NO REFUNDS OR LEAD CREDITS WILL BE PROCESSED OR ISSUED BASED UPON AN E-MAIL REQUEST OR VOICE TELEPHONE MESSAGE. NO EXCEPTIONS. No refunds to your account will be made during your initial Block or Volume Commitment periods as defined in the above sections or if your monthly Maximum dispute percentage has been reached as described in the above sections. After your initial Block and/or Volume Commitment(s) ends, Lead Credits or Refunds are offered ONLY in the following circumstances: 1. A Lead credit to your FreeFSBO account will be processed within two (2) business days following receipt an acceptance of a disputed lLead(s). Please allow up to ten (10) business days to process refunds once we have received your written request. If a refund request is received and authorized 120 days or more following the charge your refund will be by business check made payable to the name that appears on the credit card used and will be mailed only to the address listed as the billing address for the card user, NO EXCEPTIONS. Under such circumstances, FreeFSBO shall be entitled to deduct from your refund the merchant card participation fee equivalent to the merchant services charges paid by us for your initial charge to your bank card. CONFIDENTIAL INFORMATION The data form provided to you by FreeFSBO is proprietary to FreeFSBO and thus provided to you in confidence and for your individual business use only. YOU MUST KEEP ALL LEAD DATA CONFIDENTIAL. You may use the Lead data provided only for the business purpose contemplated under this Agreement. We encourage you to tell the prospective client that you got their information from FreeFSBO, however, without the prior written permission of FreeFSBO you may not forward, copy, or otherwise distribute in any form or media, the actual Lead data to the prospective client or any other third party. UNDER NO CIRCUMSTANCES ARE YOU AUTHORIZED TO RESELL OR OTHERWISE DISTRIBUTE, WHETHER YOU ARE COMPENSATED OR NOT, ANY LEAD DATA SUPPLIED TO YOU BY FREEFSBO TO ANY OTHER THIRD PARTY. BROKER'S RESPONSIBILITIES You agree that you will not use FreeFSBO, FreeFSBO data or Leads for any unauthorized use including but not limited to chain letters, junk mail, "spamming", telephone solicitations in violation of any state or federal Do-Not-Call registry, or as a basis for any use or distribution lists to any person who has not given specific permission to be included in such a process. You further agree not to use FreeFSBO or FreeFSBO data to send any messages or materials that are unlawful, considered an act(s) against public policy, discrimination of any kind, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise constitute a criminal offense, give rise to civil liability or otherwise objectionable material of any kind or nature or that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. FreeFSBO reserves the right to terminate User's account immediately and without notice, if it becomes aware and determines, in its sole discretion, that User is violating any of the foregoing guidelines. LINKS Some Links on the FreeFSBO website may let you leave the FreeFSBO website. You understand the linked sites are not under the control of FreeFSBO and FreeFSBO is not responsible for the contents or operation of any linked site or any link contained in a linked site, or any changes or any updates of such sites. FreeFSBO is not responsible for web casting or any other form of transmission received from any linked site. FreeFSBO is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by FreeFSBO of the linked site or any association with their operators. RELATIONSHIP OF THE PARTIES Nothing contained in this Agreement shall be construed as creating any agency, legal representative, partnership, or other form of joint enterprise between the parties. Neither party shall have authority to contract for or bind the other in any manner whatsoever. DISCLAIMER OF WARRANTIES/LIMITATION OF LIABILITY THE FREEFSBO SERVICE IS PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. FREEFSBO EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE FREEFSBO SERVICE WILL BE ERROR-FREE, TIMELY, SECURE OR UNINTERRUPTED. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY FREEFSBO, ITS EMPLOYEES, LICENSORS OR AGENTS WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL FREEFSBO, MARTCAM LLC., ITS AFFILIATES, OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS AND ASSIGNS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE FREEFSBO SERVICE, INCLUDING BUT NOT LIMITED TO RELIANCE ON ANY INFORMATION OBTAINED ON THE FREEFSBO SERVICE; OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, LOSS OF OR DAMAGE TO DATA, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO FREEFSBO RECORDS, PROGRAMS OR SERVICES. THE SUBSCRIBER HEREBY ACKNOWLEDGES THAT THIS PROVISION WILL APPLY WHETHER OR NOT FREEFSBO IS GIVEN NOTICE OF THE POSSIBILITY OF SUCH DAMAGES AND THAT THIS PROVISION WILL APPLY TO ALL CONTENT, MERCHANDISE OR SERVICES AVAILABLE FROM FREEFSBO AND ITS AFFILIATES. EXCEPT FOR ACTIONS BY MARTCAM LLC. TO COLLECT FEES DUE TO US, IN THE EVENT THAT EITHER PARTY BREACHES ITS OBLIGATIONS UNDER THIS AGREEMENT, THE NON-BREACHING PARTY SHALL HAVE THE RIGHT TO EXERCISE ALL RIGHTS AND REMEDIES AVAILABLE TO IT AT LAW OR IN EQUITY; PROVIDED, HOWEVER, SUBJECT TO THE DAMAGE AMOUNT LIMITATION SET FORTH BELOW, THE LIABILITY OF THE BREACHING PARTY SHALL BE LIMITED TO DIRECT, ACTUAL DAMAGES ONLY AND ALL OTHER DAMAGES AND REMEDIES ARE EXPRESSLY WAIVED. IN NO EVENT SHALL EITHER PARTY INCLUDING MARTCAM LLC, ITS AFFILIATES, OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS AND ASSIGNS, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES IN TORT, CONTRACT OR OTHERWISE INCLUDING, WITHOUT LIMITATION, LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR CLAIM. LIABILITY OF FREEFSBO, MARTCAM LLC, ITS AFFILIATES, OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS AND ASSIGNS, AND THE LIABILITY OF OUR SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE LESSER OF (A) THE AMOUNT OF FEES YOU PAY TO US IN THE TWO (2) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, OR (B) ONE HUNDRED DOLLARS ($100). THE TERMS OF THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT FOR WHATEVER REASON. FORCE MAJEURE Neither party shall be liable in any way for its failure to perform hereunder, other than its failure to pay any monies due and owing hereunder, if such failure is occasioned by any of the following: war; fire; flood; interruption of transportation; embargo; accident; explosion; governmental orders, regulations, restrictions, priorities or rationing; strike, lockout or other labor problems; or any cause beyond the reasonable control of the non-performing party provided, however, that the non-performing party shall make a good faith effort to perform. COPYRIGHT AND TRADEMARKS All contents of the FreeFSBO website are proprietary to Martcam LLC its successors and assigns, and/or its suppliers and are protected under U.S.A. and international Copyright and Trademark laws. All rights are reserved. You may not download and/or save a copy of any of the screens except as otherwise provided in this Agreement; you may, however, print a copy of the information on this website for your personal records to be used as a reference. Martcam LLC does not grant any license or other authorization to any user of its trademarks, service marks, copyrightable material or other intellectual property by placing them on this website. Martcam LLC reserves any rights not expressly granted herein. TERM OF AGREEMENT AND TERMINATION THIS AGREEMENT IS NON-CANCELLABLE BY BROKER DURING THE FIRST NINETY (90) DAYS FOLLOWING ACTIVATION. This Agreement shall remain in force and effect as long as you hold an account with FreeFSBO. This Agreement is automatically renewed each time you access the FreeFSBO website and/or log-in to your account and/or use our services. You may close your account at any time after the 90th calendar day following your account activation and terminate this Agreement by providing not less than ten (10) days prior written notice sent by traditional postal service mail, courier or facsimile to FreeFSBO of your desire to cancel your account. Absence of such a voluntary cancellation this agreement may be terminated immediately by either party: 1) In the event the other party suffers any insolvency proceeding, either voluntary or involuntary, or is adjudicated bankrupt or makes any assignment for the benefit of creditors. Such termination shall not relieve the party in proceedings from liability for the performance of its obligations arising prior to such termination and shall be in addition to all other rights and remedies the terminating party may have available to it under this Agreement, at law or in equity; or GOVERNING LAW AND CHOICE OF VENUE North Carolina law shall govern this Agreement, and any dispute arising from the relationship between the parties to this Agreement, excluding any laws that direct the application of another jurisdiction's laws and without regard to conflicts of law principles. In any litigation, arbitration, or other proceeding by which one party either seeks to enforce its rights under this Agreement (whether in contract, tort, or both) or seeks a declaration of any rights or obligations under this Agreement, the prevailing party shall be awarded its reasonable attorney fees, and cost and expenses incurred, subject to the Limitation of Liability clause. The parties consent to the exclusive jurisdiction and venue of the courts of the State of North Carolina, County of Mecklenburg or to any Federal Court located within the southern district for the State of North Carolina. INTERPRETATION AND CONSTRUCTION No provision of this Agreement shall be construed in favor of or against FreeFSBO or you by reason of the extent to which any such party or its counsel participated in the drafting thereof. No direct benefit is intended to be conferred by this Agreement on any person not a party to this Agreement and any benefit which may be actually conferred is purely incidental. In the event of any conflict between the terms of this Agreement and the Broker Order, the terms of this Agreement shall control. ARBITRATION With the exception of an action to collect unpaid fees for Leads purchased by Broker which shall be brought in traditional court settings, Any dispute or claim arising hereunder shall be submitted to binding arbitration in Mecklenburg County, North Carolina, and conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association, ("AAA"), and the parties expressly waive any right they may otherwise have to cause any such action or preceding to be brought or tried elsewhere. Any such dispute or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The parties hereunder further agree that: (i) any request for arbitration shall be made in writing and must be made within a reasonable time after the claim, dispute or other matter in question has arisen; provided however, that in no event shall the demand for arbitration be made after the date that institution of legal or equitable proceedings based on such claim, dispute, or other matter would be barred by the applicable statues of limitations; (ii) the appointed arbitrator must be a former or retired judge or attorney at law with at least five (5) years experience in the substantive area of this Agreement; (iii) all proceedings involving the parties shall be reported by a certified shorthand reporter and written transcripts of any such proceedings shall be prepared and made available to the parties; (iv) the decision of the arbitrator or arbitrators must be made within ninety (90) days from the date the arbitration proceedings are initiated; (v) costs and fees of the arbitrator shall be borne by the non-prevailing party, unless the arbitrator or arbitrators determine otherwise; (viii) the award or decision of the arbitrator, which may include equitable relief, and reasonable attorneys fees and costs to the prevailing party, shall be final and judgment may be entered on such award in accordance with applicable law in any court having jurisdiction over the matter. The parties agree that in connection with any such arbitration, the following provisions of the North Carolina Code of Civil Procedure, as enacted or hereafter amended, shall apply: Section 1856, et seq., "The General Principles of Evidence"; Section 2016, et seq., "The Civil Discovery Act"; and Section 1283.5, "Manner of Taking Deposition." Should either party file an action contrary to this provision, the other party may recover reasonable attorneys' fees and costs of not less than one thousand ($1000) dollars and not more than the actual reasonable attorneys fees and costs incurred in defending such an action and subject to written verification, proof and approval by a court of competent jurisdiction with whom the action in question was heard. SEVERABILITY If any provisions of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited. SURVIVABILITY The terms of this Agreement apply to those obligations that survive any cancellation, termination, or rescission, namely confidentiality/non-disclosure, warranty, indemnification, liability and limits thereon, rights and obligations upon and following termination and assignment. INDEMNIFICATION You agree to defend, indemnify and hold harmless FreeFSBO against any and all claims, losses, liability costs and expenses (including but not limited to reasonable attorneys' fees) arising from your violation of these Terms and Conditions or any third-party's rights, (including, without limitation, infringement of any copyright trademark, service mark, trade secrets, right of privacy or publicity or any other third party right). The terms of this section shall survive the termination of your relationship with FreeFSBO. HEADINGS Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such action. ASSIGNMENT You may not sell, mortgage, assign or otherwise transfer any of your rights or obligations under this Agreement to any other person or entity, without the express written consent of FreeFSBO. Notwithstanding the foregoing, either You or FreeFSBO may assign its rights and obligations under this Agreement without consent and without notice to the other, and both You and FreeFSBO shall accept such assignment as a novation, to a successor as a result of a change in business legal structure, corporate restructuring, reorganization, merger, consolidation, or acquisition of all or substantially all of the assigning party's stock or assets, provided that this Agreement shall be binding upon, inure to the benefit of and be enforceable by You and FreeFSBO and their respective successors and assigns. ENTIRE AGREEMENT This Agreement constitutes the final, complete, and exclusive statement of the terms of this Agreement between the parties pertaining to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings or agreements of the parties. No party has been induced to enter into this Agreement by, nor is any party relying on, any representation or warranty independent of those expressly set forth in this Agreement. No direct benefit is intended to be conferred by this Agreement on any person not a party to this Agreement and any benefit which may be actually conferred is purely incidental. MODIFICATION OF TERMS FreeFSBO reserves the right to modify this Terms of Service Agreement and its policies at any time and without advance notice to you, effective upon making the modified provisions available on the FreeFSBO website. You are responsible for regularly reviewing these documents. Continued use of the FreeFSBO website after any such changes shall constitute your consent to such changes. FreeFSBO does not and will not assume any obligation to notify you of any changes to this Terms of Service Agreement. Your establishing of an account and/or your use of the contact information on FreeFSBO website is evidence that you have read and understand this Terms of Service Agreement as set forth above and that you have had the opportunity to consult with independent counsel of your choice prior to establishing your account and utilizing the services contemplated by this Agreement Last updated Oct 11, 2006 |