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RETAILQUEST.COM1. SCOPE OF AGREEMENT. This Terms of Service is a legal contract between You and Niles Commercial, Inc. doing business as RetailQuest.com (the "Company"). This agreement governs Your use of the Company's RetailQuest.com service (the "Service").
TERMS OF SERVICE
If You agree to be bound by the terms of this agreement, You should click on the "I AGREE" button at the end of this agreement. If You do not agree to be bound by the terms of this agreement, You should click "I DISAGREE." If You click "I DISAGREE," or You do not agree, You should not use the Service. Your continued use of the Service will signify that You do agree with these terms.
2. USE OF THE SERVICE. The Company offers three levels of the Service. Landlords and Brokers wishing to list properties must establish an account by registering on the Company's website (www.retailquest.com) (the "Website"). Visitors to the Website may browse the available listings for free; or they may also establish an account by registering on the Website, which gives them the ability to manage the listings about which they are interested. The Company also offers landlords and brokers a premium version of the Service. The premium version enables them to enter tenant information and to manage their listings, properties and property profiles. In order to use the premium version of the Service, landlords and brokers must pay a monthly or annual subscription fee by submitting their credit card numbers during the registration process. The fees for premium service are posted on the Company's website at http://www.retailquest.com/pg/index.php?section=aboutUs The fees for premium service will be deducted.
Only one individual may access any free or premium account at the same time using the same user name or password, unless we agree otherwise.
3. FEES AND PAYMENTS FOR PREMIUM SERVICE. You agree to pay the subscription fees and any other charges incurred in connection with Your user name and password for the Service (including any applicable taxes) at the rates in effect when the charges were incurred. We will bill all charges automatically to Your credit card. Subscription fees will be billed at the beginning of Your subscription or any renewal. Unless we state in writing otherwise, all fees and charges are nonrefundable. We may change the fees and charges then in effect, or add new fees or charges, by giving You notice in advance. If You want to use a different credit card or there is a change in credit card validity or expiration date, or if You believe someone has accessed the Service using Your user name and password without Your authorization, You must contact us immediately. You are responsible for any fees or charges incurred to access the Service through an Internet access provider or other third-party service. Your subscription will renew automatically, unless we terminate it or You notify us by telephone, mail, or e-mail (receipt of which must be confirmed by email reply from us) of Your decision to terminate Your subscription. For annual subscriptions, we will notify You of the pending renewal of Your subscription at least 30 days prior to the date Your subscription renews, except as otherwise required by law. You must cancel Your subscription before it renews in order to avoid billing of subscription fees for the renewal term to Your credit card.
4. TERMINATION OF ACCESS TO SERVICE. If You fail to pay the fees, the Company may send you a reminder notice before terminating Your access to the premium service; but You agree that the Company is not required to do so. The Company may terminate Your access to the premium service at any time if you miss a payment, with or without notice to You of such termination. The Company may also terminate Your access to the free Service or the premium Service, as applicable, with or without notice, if You violate the terms of this agreement, or if the Company reasonably determines that Your activities in connection with the Service violate any law or regulation or any rule posted on the Website. You agree that the Company shall have no liability to You whatsoever and no obligation to give You a refund of any premium Service fees if your access is terminated early for any reason.
5. OWNERSHIP OF SERVICE; INTELLECTUAL PROPERTY RIGHTS. The Company owns all right, title and interest in and to the Service, including without limitation, the text, graphics, images, video, metadata, design, organization, compilation, look and feel, advertising and all other protectable intellectual property available through the Service. You may copy listings for Your own use; but You may not otherwise copy modify or display the contents of the Website without the Company's prior written consent. The content of the Website is protected by copyright and other intellectual property laws. Unless you have our written consent, you may not sell, publish, distribute, retransmit or otherwise provide access to the content received through the Service to anyone.
You represent and warrant that: (i) You own the User Content transmitted or otherwise have the right to grant the licenses set forth in this section, (ii) the User Content does not violate the privacy rights, publicity rights, copyright rights, intellectual property rights, or any other rights of any person, and (iii) the transmitting of User Content does not result in a breach of any contract between You and a third party or the infringement of any third party's intellectual property rights or rights of privacy. You agree to pay for all royalties, fees and any other monies owing any person by reason of any User Content transmitted.
You represent and warrant that You will not transmit User Content that is considered Prohibited Content. "Prohibited Content" includes content that: (a) is obscene, patently offensive, or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (b) harasses or advocates harassment of another person; (c) involves the transmission of "phishing" emails, "junk mail," "chain letters," or unsolicited mass mailing or "spamming"; (d) promotes information that You know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (e) promotes an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protect devices, or providing pirated music or links to pirated music files; (f) provides material that exploits people under the age of 18 in a sexual or violent manner, or solicits personal information from anyone under 18; or (g) provides instructional information about illegal activities such as making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses.
You agree to use the Service in a manner consistent with any and all applicable laws and regulations. You agree that we reserve the right to remove any content we deem inappropriate from our Website without notice to You. This includes all materials related to Your use of the Services, including property listings, email messages, postings, profiles or other personalized information You have created while using the Service.
7. CONTENT RECEIVED BY YOU. You acknowledge that You may receive content from third parties through your use of the Service or the Website ("Third Party Content"). Such third party content includes, without limitation, property listings and email messages. The Company does not monitor or control Third Party Content. You agree that the Company and its licensors shall in no way be liable for any Third Party Content, even if it violates a law or regulation or is offensive to you. You agree that Your only recourse in the event you object to Third Party Content displayed on the Company's Website or sent to You through the use of the Service is to cease using the Service.
8. ACCESS OF THIRD PARTY SITES. From time to time the Service may provide You with access to third party content sites ("Third Party Sites") through links to those Third Party Sites. You agree that the Company does not control, and therefore has no responsibility for, the content on any Third Party Sites.
9. WARRANTY DISCLAIMER. EXCEPT AS EXPLICITLY SET FORTH HEREIN, THE SERVICE IS PROVIDED BY THE COMPANY "AS IS" AND WITHOUT WARRANTY OF ANY KIND. THE COMPANY HEREBY DISCLAIMS (TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW) ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, SECURITY CAPABILITY, UNAUTHORIZED USE AND NON-INFRINGEMENT. WITHOUT LIMITATION, THE COMPANY DOES NOT MAKE ANY WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, THAT THE SERVICE WILL OPERATE IN AN ERROR-FREE MANNER, THAT THE SERVICE ITSELF WILL BE RELIABLE, THAT THE INFORMATION CONTAINED IN THE LISTINGS PROVIDED THROUGH THE SERVICE WILL BE ACCURATE, THAT THE MESSAGES OR NOTIFICATIONS DELIVERED BY THE SERVICE WILL BE TIMELY, OR THAT ANY ERRORS IN THE OPERATION OF THE SERVICE WILL BE CORRECTED. THE COMPANY WILL USE REASONABLE COMMERCIAL EFFORTS TO ENSURE THAT THE INFORMATION YOU POST TO THE SERVICE WILL BE SECURE. THESE DISCLAIMERS OF WARRANTY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
IN ADDITION, THE COMPANY SHALL NOT BE RESPONSIBLE FOR ANY LOSSES ARISING OUT OF THE UNAUTHORIZED USE OF YOUR USER NAME, PASSWORD AND/OR ACCOUNT AND YOU AGREE TO INDEMNIFY AND HOLD HARMLESS THE COMPANY, ITS PARTNERS, PARENTS, SUBSIDIARIES, AGENTS, AFFILIATES AND/OR LICENSORS, AS APPLICABLE, FOR ANY IMPROPER, UNAUTHORIZED OR ILLEGAL USES OF THE SAME. IF YOU ARE RESIDING IN A JURISDICTION WHICH RESTRICTS THE USE OF INTERNET-BASED APPLICATIONS ACCORDING TO AGE, OR WHICH RESTRICTS THE ABILITY TO ENTER INTO AGREEMENTS SUCH AS THIS AGREEMENT ACCORDING TO AGE AND YOU ARE UNDER SUCH AGE LIMIT, YOU MAY NOT ENTER INTO THIS AGREEMENT OR USE THE SERVICE.
10. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL THE COMPANY OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUPPLIERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR (I) ERRORS, MISTAKES, OR INACCURACIES IN THE SERVICE, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVICE AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE, (V) LOST PROFITS (VI) COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER DAMAGES RESULTING FROM YOUR USE OF THE SERVICE. THE COMPANY'S LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY YOU HEREUNDER OR IF NONE PAID TO TEN ($10.00) DOLLARS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
11. INDEMNITY. You agree to defend, indemnify and hold harmless the Company, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (a) Your use of and access to the Service; (b) Your violation of any term of this agreement; or (c) Your violation of any third party right, including without limitation any copyright, property, or privacy right. This indemnification obligation will survive this agreement.
12. INTERNATIONAL CONSIDERATIONS. The Company makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.
13. TRADEMARKS. The Company and its respective designs, trademarks and logos are trademarks of the Company. All other trademarks and/or service marks are the property of their respective owners.
14. CHANGES TO AGREEMENT. The Company may from time to time modify this agreement by posting a copy of the amended Terms of Service at todo. If You do not agree to (or cannot comply with) the agreement as amended, Your only remedy is to stop using the Service. You will be deemed to have accepted the agreement as amended if You continue to use the Service after any amendments are posted.
15. MISCELLANEOUS. This agreement constitutes the entire agreement between the parties with respect to the use of the Service and supersedes all prior or contemporaneous understandings, communications or agreements, written or oral, regarding such subject matter. If any provision of this agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the remainder of the agreement shall be in full force and effect.
The failure of the Company to act with respect to a breach of this agreement by You or others does not constitute a waiver and shall not limit the Company's rights with respect to such breach or any subsequent breaches. This agreement is personal to You and may not be assigned or transferred for any reason whatsoever (including, without limitation, by operation of law, merger, reorganization, or as a result of an acquisition or change of control) without the Company's consent and any action or conduct in violation of the foregoing shall be void and without effect.
The Company expressly reserves the right to assign this agreement and to delegate any of its obligations hereunder. This agreement shall be governed by and construed under California law as such law applies to agreements between California residents entered into and to be performed within California.
The sole and exclusive jurisdiction and venue for actions arising under this agreement shall be the State and Federal courts in Santa Clara County, California; You hereby agree to service of process in accordance with the rules of such courts. The party prevailing in any dispute under this agreement shall be entitled to its costs and legal fees.
© Niles Commercial, Inc., 2009
RETAILQUEST.COM is a trademark of Niles Commercial, Inc.