Terms of Service
Total Expert Inc.
Total Expert Inc. (“TE”), a Minnesota-based SaaS (Software as a Service) company, produces business websites for housing industry professionals on a subscription basis (“Subscription”) including, but not limited to, Realtors, real estate brokerages, real estate sales teams, home mortgage lenders, construction trade companies, and housing related suppliers of products and services.
By using TE products and services, you (the “Client”) agree to the following terms and conditions (the “Terms”), and any policies, guidelines or amendments thereto that may be presented to you from time to time, including but not limited to Program Policies and Legal Notices (collectively, the “Terms”). We may revise the Terms at any time without prior notice, which are posted on our corporate website, www.TotalExpertInc.com.
Use of Services
TE and its affiliated companies offer Subscription services to you, provided that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. In order to access certain services, you may be required to provide current, accurate identification, contact, and other information as part of the registration process and/or continued use of TE services (“Services”). You are responsible for maintaining the confidentiality of your account password, and are responsible for all activities that occur under your account. You agree to immediately notify TE of any unauthorized use of your password or account or any other breach of security. TE cannot and will not be liable for any loss or damage arising from your failure to provide us with accurate information or to keep your password secure.
TE will periodically offer ancillary services to Subscription Clients such as creative services including, but not limited to, graphic creation, content, paid digital advertising, search engine marketing, and print advertising. These ancillary services can be purchased by you, the Client, at then current prices from TE. You, the Client, agree to pay for ancillary services purchased by you. If you co-market listings with other mortgage, title or real estate agents, you attest that you have full right and privilege to use / supply the content in the co-marketing project.
Paid Internet advertising to increase visitor / consumer traffic to your website will not occur unless you specifically purchase such a service from TE or other qualified vendor.
Customer support is provided by live chat, email, phone, and the Total Expert Help Center during our standard business hours listed on the Support page. General support questions or issues related to errors in, or the improper functioning of, the services are provided at no cost by TE. All other requests for training, customization and/or other services will be billed based upon then current TE pricing.
You understand that all information, data, text, email, listings, photographs, graphics, video, messages or other materials (“Content”) are the sole responsibility of the person from which such Content originated. TE reserves the right but shall have no obligation, to pre-screen, flag, filter, refuse, modify or move any Content available via TE services. You understand that you use TE services at your own risk. You agree that you are responsible for your own conduct and any Content that you create, transmit or display while using TE services and for any consequences thereof. You agree to use TE services only for purposes that are legal, proper and in accordance with the Terms and any applicable policies or guidelines. You agree that you will not engage in any activity that interferes with or disrupts TE services or servers or networks connected to TE services.
In addition to this agreement, your use of some specific TE services is governed by the policies or guidelines specific to those services and which are specifically incorporated into this agreement.
Notwithstanding anything to the contrary herein, Total Expert does not make any representation or warranty with respect to compliance with any applicable law or regulation for the Services provided or regarding any fees or payments made by or imposed on any co-marketer. You acknowledge and agree that it is your obligation to conduct your activities in compliance with all applicable laws and regulations including, without limitation, the federal Real Estate Settlement Procedures Act and its implementing regulations.
By using TE services, you acknowledge and agree that TE may access, preserve, and disclose your account information and any Content associated with that account if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to: (a) satisfy any applicable law, regulation, legal process or enforceable governmental request, (b) enforce the Terms, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security or technical issues (including, without limitation, the filtering of spam), or (d) protect against imminent harm to the rights, property or safety of TE, its users or the public as required or permitted by law.
You understand that the technical processing and transmission of TE Subscription services, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks, devices or services.
You acknowledge and agree that TE services, and any necessary software code (“Software”) used in connection with TE services, contain proprietary and confidential information that is protected by applicable intellectual property and other laws and treaties. Except as expressly authorized by TE or other proper third-party rights holders, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on Content, Services or Software, in whole or in part except as specifically authorized in a separate written agreement.
Subject to the Terms, you agree not to access TE services by any means other than through the interface that is provided by TE for use in accessing TE services except as specifically authorized in a separate written agreement. Except as expressly authorized by TE you agree not to use, copy, imitate, or incorporate any trademark, service mark, certification mark, trade dress, company name, or product name in a way that is likely to cause confusion among consumers. You also agree not to remove, obscure, or alter TE or any third party’s copyright notice, trademarks, certification marks or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the TE services or Software.
TE claims no ownership or control over any Content submitted, posted or displayed by you on or through TE services, but once submitted, posted, or displayed by you, you grant TE the perpetual right to use the content in conjunction with any TE products and services. You or a third party licensor, as appropriate, retain all patent, trademark and copyright to any Content you submit, post or display on or through TE services and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying Content on or through TE services which are intended to be available to the members of the public, you grant TE a worldwide, non-exclusive, royalty-free license to reproduce, adapt, modify, publish and distribute such Content on TE services for the purpose of displaying, distributing and promoting TE services. TE reserves the right to syndicate Content submitted, posted or displayed by you on or through TE services and use that Content in connection with any Services offered by TE. TE furthermore reserves the right to refuse to accept post, display or transmit any Content in its sole discretion.
You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any content submitted, or used in any co-marketing projects with other mortgage, title or real estate agents.
Grant of Use
This Subscription Agreement permits you to use a single login, on a single domain name (URL). Each Subscription is a single product, for an individual user, or group of users for Multiple User Subscriptions. This Agreement requires that each user of the Software be a Subscriber, either individually, or as part of a group. A Multi-User Subscription provides for a specified number of users to use this Software at any time. This does not provide for concurrent use across multiple domain names (URL’s) unless specifically agreed upon and ordered as such at an additional cost above the normal Subscription fee. Each user of this Software must be covered either individually, or as part of a group Multi-User Subscription. The Software is in use on a computer when it is accessed via web browser, a user logs in, or the software is hyperlinked from any source. The software may only be contained (whether built in or framed) within one primary domain name (URL), unless specifically agreed upon in the service agreement.
Limitations on Subscription
Except as expressly set forth in this Agreement, no rights are granted to do any of the following, and you shall not, and shall not cause or allow anyone else, to do any of the following: (a) use, display, access, distribute, transfer, alter, or modify the Content, or otherwise create any derivative works of the Content, (b) download, distribute, export, deliver, or transmit any of the Content, including to any computer or other electronic device, (c) sell, grant access to, or sublicense the Content, or any portion of the Content, to any third party. You agree to take all reasonable steps necessary to protect the Content from unauthorized access, distribution, copying or use. Additionally, you agree to never use crawlers, rogue bots, site scrapers or any automated script/software or method that attempts to mine the listing content on your own or any other accounts in the system. You acknowledge that we may block access to our servers and/or membership, and if misuse is discovered, your account will be immediately terminated without prior notice, and without refund of any payments made to TE.
MLS Data Services
TE provides certain services that are provided in part by third-party Multiple Listing Services (MLS) and data providers such as ListHub. Your use of such services is subject to the terms and conditions set forth by each individual MLS supplier; in most cases, you must be an active member of the MLS in order to participate in MLS Data Services provided by the MLS and TE. TE and/or the MLS data supplier will provide you with all necessary documentation, contracts, and fees required to participate in the MLS data services. TE is not responsible for the accuracy, completeness, functionality, usability, availability or merchantability of the MLS data services provided by third-party MLS data suppliers. The use of MLS (and data providers such as ListHub) data services is strictly at your own risk and there is no guarantee or implied warranties provided by TE.
You hereby agree as follows: (i) you shall not use the Services for “spamming,” as determined by TE in its reasonable discretion; (ii) you shall keep secure any identification, password and other confidential information relating to your site and shall notify TE immediately of any known or suspected unauthorized use of your site or breach of security, including loss, theft or unauthorized disclosure of passwords or other security information; (iii) you shall not use the services for any unlawful purpose; (iv) you shall not engage in any other conduct that restricts or inhibits any other person from using or enjoying the Services, or which, in the judgment of TE, exposes TE or any of its customers or suppliers to any liability or detriment of any type; and (vi) you shall be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of the services, and you shall be responsible for all charges related thereto.
TE may automatically report version number or other diagnostic information and may automatically apply upgrades to update, enhance and further develop TE services, including providing bug fixes, patches, enhanced functions, missing plug-ins and new versions.
General Practices Regarding Use and Storage
You agree that TE has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted by TE services. You acknowledge that TE may have set no fixed upper limit on the number of transmissions you may send or receive through TE services or the amount of storage space used; however, we retain the right, at our sole discretion, to create limits at any time with or without notice.
Modifications to Service
TE reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, TE services (or any part thereof) with or without notice. You agree that TE shall not be liable to you or to any third party for any modification, suspension or discontinuance of TE services.
Billing amounts and frequencies are as outlined on your product or service Order Form. Once payments are collected, refunds are not available.
All Subscription fees are exclusive of sales taxes, which TE will charge as applicable. You, the Client, agree to pay applicable taxes for your use of the Subscription and ancillary services.
If you are using a credit card to pay for any TE products or services, you acknowledge that you have the authority to enter into a credit card agreement and agree to pay for all charges from TE. In the event credit card charges are refused / rejected by your credit card company, your TE products / services may be disabled by TE without notice until remedied. Additionally, you explicitly authorize recurring charges to your credit card for monthly subscription products / services.
TE reserves the right to pass through to you, the Client, any MLS data surcharge levied to TE as a vendor by your MLS when local MLS data feed fees incurred by TE exceed that deemed to be reasonable by TE, and TE alone, as compared with the national norm.
Non-usage of an account is not proof of termination of service. You are responsible for full payment on all accounts whether or not the account is ever utilized until such time as the account is terminated by appropriate notice.
Pricing adjustments / deviations may occur from time to time based upon, but not limited to, increased costs, paid advertising fees, larger than customary community / market sizes, site customization, etc.
TE services may provide, or third parties may provide, links to other World Wide Web sites or resources. TE may have no control over such sites and resources and you acknowledge and agree that TE 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, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that TE shall 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, goods or services available on or through any such site or resource.
We reserve the right to publish new customer signups and positive feedback at our corporate website and other public forums, such as news websites, blogs and other industry-specific websites. You, the Client, grant TE the right to use your name and logo in any publication, electronic or print, for promotional purposes. If you do not want us to quote your positive experiences or announce your use of our service you must notify us in advance. If notice is received after initial publication date, we will remove any notices generated from these said announcements promptly on www.TotalExpertInc.com. You shall indemnify and hold harmless TE, its affiliated companies and third-party vendors against any and all claims, losses, damages, liabilities, costs, and expenses (including reasonable attorneys fees) arising out of or relating to these announcements.
You agree to hold harmless and indemnify TE, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners, (collectively “TE and Partners”) from and against any third party claim arising from or in any way related to your use of TE services, violation of the Terms or any other actions connected with use of TE services, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case, TE will provide you with written notice of such claim, suit or action.
Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF TE SERVICES IS AT YOUR SOLE RISK. TE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TE AND PARTNERS EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
TE AND PARTNERS DO NOT WARRANT THAT (i) TE SERVICES WILL MEET YOUR REQUIREMENTS, (ii) TE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF TE SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH TE SERVICES WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF TE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TE OR THROUGH OR FROM TE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TE AND PARTNERS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF TE OR PARTNERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i) THE USE OR THE INABILITY TO USE TE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM TE SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON TE SERVICES; OR (v) ANY OTHER MATTER RELATING TO TE SERVICES.
Exclusions and Limitations
NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY, WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS IN SECTIONS 14 AND 15, WHICH ARE LAWFUL IN YOUR JURISDICTION, WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
No Third-Party Beneficiaries
You agree that, except as otherwise expressly provided in the Terms, there shall be no third party beneficiaries to the Terms.
You agree that TE may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on TE services.
The Terms (including any policies, guidelines or amendments that may be presented to your form time to time such as Program Policies and Legal Notices) constitute the entire agreement between you and TE and govern your use of TE services, superseding any prior agreements between you and TE for the use of TE services. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other TE services, partner services, third-party content or third-party Software.
Choice of Law and Forum
The Terms and the relationship between you and TE shall be governed by the laws of the State of Minnesota without regard to its conflict of law provisions. You and TE agree to submit to the personal and exclusive jurisdiction of the courts located within Hennepin County, Minnesota.
Waiver and Severability of Terms
The failure of TE to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. If any provision of the Terms 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 remain in full force and effect.
The section headings in the Terms are for convenience only and have no legal or contractual effect.