Terms and Conditions

Terms and Conditions

Thank you for your interest in the ShowingTime® software and services (collectively "Software and Services"). By using the Software and Services you agree to be bound by these Terms of Use as may be amended from time to time (the "Terms of Use") and the ShowingTime Privacy Policy ("Privacy Policy") which is incorporated by reference herein.

You Must Agree to these Terms of Use to Use and Access the Software and Services

Each time you use and access the Software and Services, you reaffirm your acceptance of the then-current Terms of Use and our Privacy Policy. If you do not wish to be bound by these Terms of Use and our Privacy Policy, you may discontinue using and accessing the Software and Services. You cannot use the Software and Services until you have accepted these Terms of Use by clicking the “I agree” button and Privacy Policy.

Modifications to the Terms of Use

Any modification to these Terms of Use will be effective immediately upon posting and you agree to the new posted Terms of Use by continuing your use and access of the Software and Services. If you do not agree with the modified Terms of Use, your only remedy is to discontinue using the Software and Services.

Registered User Information

In order to obtain access to the non-public portions of the Software and Services, you must obtain a login name and password from ShowingTime. You agree that you will be responsible for maintaining your login name and password as private, confidential and personal and shall safeguard and maintain their confidentiality. You will be liable for any activity that occurs as a result of your enabling or permitting another person or entity to use your password. You agree to immediately notify us in the event that (i) your password is lost or stolen, or (ii) you become aware of any unauthorized use of your password or of any other breach of security that might affect the Software and Services. ShowingTime is not responsible for any loss or damage arising from your failure to comply with the provisions of this Section.

You acknowledge and agree that ShowingTime may terminate your login name and password and/or other access privileges and remove and discard any information you have posted, including but not limited to times and dates of appointments, agents or brokers names and content information, property locations, and other materials (“Content”) without notice to you for any reason, including without limitation, if (i) you do not use the Software and Services for what ShowingTime, in its sole discretion, deems to be an extended period of time, (ii) ShowingTime believes that you have violated any provision of this Agreement, and/or (iii) you have otherwise acted or failed to act in any manner that ShowingTime deems objectionable. You agree that any termination of your access to the Software and Services shall not result in any liability or other obligation of ShowingTime to you or any third party in connection with such termination.

You acknowledge and agree that the ShowingTime Privacy Policy explains how ShowingTime collects and uses information that is input into the Software and Services. You consent to ShowingTime using all information, whether personal or otherwise, that is input or otherwise collected by ShowingTime through the Software and Services.

To assure Software and Services compatibility, ShowingTime may access, store, and utilize hardware and software information about your computer, including: (1) the type of computer and processor, (2) the operating system and version on your computer, (3) the available disk and memory storage space available, (4) the speed of the computer, and (5) the version of software components used by ShowingTime, such as Microsoft .NET. No personal information is accessed, transmitted, or stored by ShowingTime without the Users's explicit consent.

You May Use the Software and Services for Lawful Purposes Only

You may use the Software and Services for lawful purposes only. You may not post on or transmit through the Software and Services or other means any material that (1) violates or infringes in any way upon the rights of others, (2) violates Fair Housing Rules, is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, indecent or otherwise objectionable, (3) encourages conduct that would constitute a criminal offense, (4) gives rise to civil liability, (5) violates any policies posted in any community areas or (6) otherwise violates any law, and you may not (7) collect or store personal data of other users of the Software and Services without the prior, written permission of such user(s), (8) directly or indirectly, intentionally disrupt or interfere with the Software and Services in any manner that may adversely affect ShowingTime or any user of the Software and Services and (9) upload, post, email or otherwise transmit any material that contains software viruses or any other code, files or programs designed or known to disable, interrupt, or limit the functionality of any computer hardware, computer software, or telecommunications equipment or facilities (subsections (1) through (9) are collectively referred to as "Prohibited Conduct"). Prohibited Conduct expressly includes any transmission of Content to people or other entities on mailing lists that you do not have full rights to use.

Content You Post

Users of the Software and Services who lawfully post or receive Content including but not limited to times and dates of appointments, agents names and contact information, property location, information, and other materials through the Software and Services, generally, own the creative property rights, if any, to that Content. You may not use Content you do not own or have sufficient permission to use for any reason whatsoever. You may only post Content that you created or have sufficient permission to post. You may not post or distribute Content that is illegal or that violates these Terms of Use. By posting or submitting Content through the Software and Services, you represent and warrant that (i) you either own or have sufficient rights in all the rights to this Content and (ii) this Content does not and will not infringe any copyright or any other third-party right nor violate any applicable law or regulation. You agree and acknowledge that you are solely responsible for any liabilities, fines, penalties or forfeitures occasioned by any such violations or lack of rights.

Although you retain ownership of all right, title and interest in Content, if any, that you post through the Software and Services, ShowingTime owns all right, title and interest in any compilation, collective work or other derivative work created by ShowingTime using or incorporating the Content; provided, however, ShowingTime will not reveal the phone numbers, addresses or other personal information of any individual in its use of the Content. Additionally, ShowingTime warrants that individual user data will not be released to other parties except in aggregate form or except in reports provided on behalf of you. In addition, by posting Content through the Software and Services, you grant ShowingTime, its affiliates, subsidiaries, assignees, agents and licensees the irrevocable, perpetual, worldwide right to reproduce, display, perform, distribute, adapt and promote this Content in any medium and/or to incorporate in other works in any form, media, or technology now known or later developed. You waive any right to privacy in the Content. You waive any right to inspect or approve uses of the Content or to be compensated for any such uses.

No Duty to Monitor or Support Software and Services

ShowingTime is not required to pre-screen Content posted through the Software and Services, although ShowingTime reserves the right to do so in its sole discretion. ShowingTime is not liable for Content that is provided by others. ShowingTime reserves the right to remove Content that, in its sole judgment, does not meet its standards or does not comply with these Terms of Use, but ShowingTime is not responsible for any failure or delay in removing such material.

Changes to the Software and Services

ShowingTime has the right at any time to change, modify, add to or discontinue or retire any aspect or feature of the Software and Services including, but not limited to, the Software, Services, Content, hours of availability, and equipment needed for access or use. ShowingTime has no obligation to provide you with notice of any such changes. ShowingTime is under no obligation to provide you with any error corrections, updates, upgrades, bug fixes and/or enhancements of the Software and Services.

ShowingTime Ownership

You acknowledge that the Software and Services may contain information, communications, software, photos, text, video, graphics, music, sounds, images and other material and services (collectively "Third Party Content"), which is generally provided by ShowingTime or by licensors of ShowingTime. You agree and acknowledge that, notwithstanding that ShowingTime permits access to the Software and Services and Third Party Content, as between you and ShowingTime, ShowingTime owns all rights, title and interest in and to the Software and Services and/or Third Party Content including, without limitation, all Intellectual Property Rights. "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide and in all media now existing or later developed. You agree to not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Software and Services and/or Third Party Content. You may not sell, assign, grant a security interest in or otherwise transfer any right in the Software and Services and/or Third Party Content or incorporate it (or any portion of it) into another product. You may not copy the Software and Services and/or Third Party Content. You may not modify the Software and Services and/or Third Party Content or use it in any way not expressly authorized by these Terms of Use. Finally, you may not authorize or assist any third party to do any of the things described in this paragraph. If you are aware that the Software and Services and/or Third Party Content or other Content on the web-site violates any third party Intellectual Property Rights, please notify ShowingTime at copyright@showingtime.com.

Disclaimer of Warranty; Limitation of Liability

DISCLAIMER OF WARRANTIES. FOR THE PURPOSES OF THIS AGREEMENT, “SOFTWARE AND SERVICES” SPECIFICALLY INCLUDES ALL THIRD PARTY CONTENT. YOUR USE OF THE SOFTWARE AND SERVICES IS AT YOUR SOLE RISK. THE SOFTWARE AND SERVICES IS PROVIDED "AS IS," "WITH ALL FAULTS" AND "AS AVAILABLE" FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. SPECIFICALLY, SHOWINGTIME AND ITS VENDORS DISCLAIM IMPLIED WARRANTIES THAT THE SOFTWARE AND SERVICES IS MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. SHOWINGTIME AND ITS VENDORS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE AND SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE AND SERVICES WILL BE CORRECTED. SHOWINGTIME AND ITS VENDORS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE AND SERVICES OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. SHOWINGTIME DOES NOT GUARANTEE THAT USERS WILL BE ABLE TO ACCESS OR USE THE SOFTWARE AND SERVICES AT TIMES OR LOCATIONS OF THEIR CHOOSING, OR THAT SHOWINGTIME WILL HAVE ADEQUATE CAPACITY FOR THE SOFTWARE AND SERVICES AS A WHOLE.

LIMITATION OF LIABILITY. SHOWINGTIME'S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY DEFECT IN OR DISSATISFACTION WITH THE SOFTWARE AND SERVICES AND/OR DISPUTE WITH SHOWINGTIME (INCLUDING WITHOUT LIMITATION YOUR USE OF OR INABILITY TO USE THE SOFTWARE AND SERVICES) IS TO DISCONTINUE YOUR USE OF THE SOFTWARE AND SERVICES. SHOWINGTIME AND ITS VENDORS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGE ARISING FROM YOUR USE OF THE SOFTWARE AND SERVICES (WHETHER BASED ON WARRANTY, CONTRACT OR TORT (INCLUIDNG NEGLIGENCE)) OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO ANY PARTY’S USE OF OR REGISTRATION WITH THE SOFTWARE AND SERVICES OR INABILITY TO USE OR REGISTER WITH THE SOFTWARE AND SERVICES. THESE EXCLUSIONS FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES INCLUDE, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, ACTIVITIES PRIOR TO, DURING OF AFTER ANY MEETING SCHEDULED THROUGH THE SOFTWARE AND SERVICES, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, THE DELAY, TERMINATION OR SUSPENSION OF ANY TELECOMMUNICATION DEVICES, OR ANY OTHER DAMAGES OR LOSSES, EVEN IF SHOWINGTIME HAD BEEN ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, SHOWINGTIME AND ITS VENDORS' LIABILITY IN SUCH STATE OR JURISDICTION SHALL BE LIMITED TO THE AMOUNT PAID BY YOU TO SHOWINGTIME FOR ONE (1) YEAR OF SOFTWARE AND SERVICES OR TO THE EXTENT PERMITTED BY LAW. SHOWINGTIME DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY PRODUCT OR SERVICE OFFERED THROUGH THE SOFTWARE AND SERVICES.

Indemnification

You agree to defend, indemnify and hold harmless ShowingTime, its vendors, and their respective directors, officers, shareholders employees, and agents from and against all claims and expenses, including attorneys' fees, arising out of your use of or inability to use the Software and Services.

Termination

ShowingTime has the right to terminate your registration, the Software and Services license or your access to Software and Services for any reason and at any time, including, without limitation, if it, in its sole discretion, considers your use to be unacceptable, or in the event of any breach by you of the Terms of Use. ShowingTime may, but shall be under no obligation to, provide you a warning prior to termination of your use of the Software and Services.

Assignment; Binding Effect

Neither Party may assign any right or interest in this Agreement, in whole or in part, without the other Party's written consent which consent will not be unreasonably withheld, except that no such consent will be required in connection with a merger, equity or debt financing, reorganization, sale of all, or substantially all, of such party's assets or a change in control where greater than fifty percent (50%) of either Party is owned by anyone other than a current shareholder. Any attempt to assign this Agreement other than as permitted above will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties, their successors and assigns.

Trademarks

All trademarks, service marks, names, logos and similar identifiers appearing on the Software and Services are the property of ShowingTime.

Trial Period

After your registration for the Services, ShowingTime may provide you with access to the Services as a free trial user for a designated free trial period (“Free Trial Period”). During the Free Trial Period, you may cancel your access to the Services at any time for any reason, and upon such termination, all rights and benefits granted to you pursuant to this Agreement shall cease. At the expiration of the Free Trial Period, you may continue to access the Services only pursuant to a paid subscription or by purchasing ad hoc reports under this Agreement.

Paid Subscriptions and Services

1. Fees. All fees are (i) payable in U.S. Dollars and (ii) based on specific services purchased and not on actual usage. SmartCharts current pricing is set forth on the Pricing page http://www.getsmartcharts.com/pricing.

2. Invoicing and Payment. You will provide ShowingTime with valid and updated credit card information, or if ShowingTime provides its prior written approval, with a valid purchase order to enable ShowingTime to invoice you. If ShowingTime invoices you, all fees will be due and payable within thirty (30) days of the invoice date.  Subscription fees are billed in advance for the initial subscription period and for each renewal subscription period thereafter on a monthly basis unless you and ShowingTime agree in writing to a different billing frequency. If you provide credit card information, you authorize ShowingTime to charge such credit card for all services selected by you via the Services, including for the initial subscription period and any renewal subscription periods at the then current subscription rates. You authorize ShowingTime to charge your credit card on a recurring monthly basis (or on a frequency otherwise agreed upon with ShowingTime in writing). By using the Services, you consent to receiving electronic communications from ShowingTime. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Services.  These electronic communications are part of your relationship with ShowingTime and you receive them as part of your subscription to the Services. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.

3. Subscription Periods.  Service subscription periods that you purchase commence on the start date that you select to purchase on the Site and continue for the subscription period specified therein. All subscriptions shall be subject to an initial period of at least one (1) month.  ShowingTime does not prorate for partial months.  All subscriptions shall automatically renew at the then current subscription rates for additional periods equal to the expiring subscription period or one year (whichever is shorter), unless either ShowingTime or You give the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription period.

4. Changes to Subscription Plan Levels and Cancellations.

a. Upgrades. If you choose to upgrade your subscription plan, your credit card will be charged or you will be invoiced, as applicable, the difference between your previous rate and your new rate for your new subscription plan and any prorated fees due from the time of the upgrade.

b. Downgrades. If you choose to downgrade your subscription plan, the new subscription fee will be in effect the next subscription period. Downgrading your subscription plan may cause the loss of some or all Submissions, Content, features, and/or capacity of your account.

c. Cancellations. If you choose to cancel your subscription plan through the My Account link on the website, all such cancellations are immediate.  No refunds are issued for any unused portion of the then current subscription period.

5. Past Due Charges. If any payments or credit card charges are not received from you by the due date, then at ShowingTime’s discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) ShowingTime may condition future subscription renewals on shorter or alternate payment terms. In the event of a payment default under this Agreement you shall reimburse ShowingTime for all collection costs including reasonable attorney’s fees incurred in connection with collecting any payments, together with costs in addition to the amount due.

6. Suspension of Services. If any amount you owe for Services is thirty (30) or more days past due (or one (1) day past due in the case of amounts you have authorized ShowingTime to charge to your credit card), ShowingTime may, without limiting other rights and remedies, accelerate your unpaid fee obligations under any agreements you have with ShowingTime so that all outstanding obligations become immediately due and payable, and suspend the provision of Services to you until such amounts are paid in full.

7. Taxes. Unless otherwise stated, fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with its purchases hereunder. If ShowingTime has the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you, unless you provide ShowingTime with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, ShowingTime is solely responsible for taxes assessable against it based on its income, property and employees.

 

Miscellaneous

A.     The provisions of these Terms of Use addressing disclaimers of representations and warranties, limitation of liability, indemnity obligations, intellectual property, and governing law shall survive the termination of these Terms of Use.

B.     These Terms of Use and any operating rules for any areas of functionality of the Software and Services constitute the entire agreement between ShowingTime and you regarding the subject matter of these Terms of Use, and supersede all previous written or oral agreements. The Terms of Use shall be governed by and construed in accordance with the laws of the State of Illinois, without regard to its conflict of laws rules. You expressly agree that the exclusive jurisdiction for any claim or dispute under the Terms of Use and or your use of the Software and Services resides in the courts located in the City of Chicago, Illinois, and you further expressly agree to submit to the personal jurisdiction of such courts for the purpose of litigating any such claim or action. The foregoing provision may not apply to you depending on the laws of your jurisdiction. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import.

C.    If you contact ShowingTime with information including, without limitation, feedback data (e.g., questions, comments, suggestions or the like) regarding the Software and Services, the content of the Software and Services or any item on the Software and Services (collectively, "User Feedback"), the User Feedback shall be deemed to be non-confidential and ShowingTime shall have no obligation to you of any kind with respect to the User Feedback. In addition, you agree and acknowledge that ShowingTime shall be free to reproduce, use, disclose, display, exhibit, transmit, perform, create derivative works and distribute the User Feedback to others without limitation, and to authorize others to do the same. Further, ShowingTime shall be free to use any ideas, concepts, know-how or techniques contained in the User Feedback for any purpose whatsoever, including, without limitation, developing, manufacturing and marketing products and other items incorporating the User Feedback. ShowingTime shall not be liable or owe any compensation for the use or disclosure of the User Feedback.

D.    The Software and Services may provide, or third parties may provide, links to other web sites. You acknowledge and agree that such links are provided for your convenience only and do not reflect any endorsement by ShowingTime with respect to the provider of such linked site or the quality, reliability or any other characteristic or feature of such linked site and ShowingTime is not responsible in any manner (including without limitation with respect to any loss or injury you may suffer) for any matter associated with the linked site, including without limitation, the content provided on or through any such linked site or your reliance thereon. SHOWINGTIME MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY LINKED SITE. YOUR USE OF ANY LINKED SITE IS SOLELY AT YOUR OWN RISK. In addition, you should be aware that your use of any linked site is subject to the Terms of Use applicable to that site, including the privacy policies (or lack thereof) of such site.

E.     You represent you are not an unapproved technology company or competitor accessing the Software and Services for competitive purposes..

F.     You are prohibited from directly or indirectly using any data or content extraction tool, or any other manual, computerized or automated mechanism, to access, compile, or otherwise download or extract any content or information from the Software and Services or any of ShowingTime’s services, except as expressly authorized by ShowingTime in writing. This prohibition includes use of any data mining tools, spiders, robots, scrapers or similar tools or technologies.

G.    You represent and warrant that you have the legal right, power and authority to agree to these Terms of Use. You further agree that your use and access of the ShowingTime Software and Services, constitutes an agreement and your Click-through is an electronic signature of these Terms of Use as defined by the Electronic Signatures in Global and National Commerce Act ("E-Sign") and the Uniform Electronic Transactions Act ("UETA") and that you have formed, executed, entered into, accepted these Terms of Use and otherwise authenticated and acknowledged and agreed that these are an electronic record for purposes of E-Sign, UETA and the Uniform Computer Information Transactions Act and as such is completely valid, has legal effect, is enforceable, and is binding on, and non-refutable by you.

Last Updated: October 2016

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