End User License and Service Agreement
IMPORTANT! PLEASE READ CAREFULLY. THIS IS A CONTRACT. BY USING THIS website, YOU ACCEPT ALL TERMS AND CONDITIONS OF THIS AGREEMENT. If you disagree with any of the terms that follow or do not agree to be bound by all such terms, do not use our products and/or services.
By using any IDX Northwest product or service you indicate you have read, understand and expressly agree to be bound by the terms, conditions and provisions of this End User License and Service Agreement and Terms of Service in their entirety.
IDX Northwest, LLC, through its websites located at idxnw.com provides you with website graphics, online coding and "Control Panel" software (the “website Tools”) and grants you the non-exclusive, non-transferable right to use the supplied graphics and any supplied code and software on a monthly basis as long as all fees due are paid in full and your account is in good standing. IDXNW reserves the right to terminate your use of supplied graphics and any supplied code and software in the event you have not abided by the rules of this agreement or your payment for any fees due are past the date due as indicated on the billing invoice. The website Tools, together with any website design, hosting and/or support services you purchase from IDXNW, are referred to as the “Services.”
The initial term of this agreement is determined in the original order form or request, if no length of term is specified in the order form, the term is one year unless otherwise noted (the "Initial Term"). The initial term shall commence upon your acceptance of this agreement or by using the services. This Agreement will be automatically renewed at the end of the initial term (and any renewal term) for the same term unless you provide written notice to IDXNW of termination of this Agreement according to the Cancellation Policy described below.
You agree to pay for IDXNW products and services you purchase or subscribe according to the current rates listed at the www.idxnw.com site and/or any other mutually agreed upon fees. You authorize IDXNW to automatically charge your supplied credit card (if applicable) for the agreed amount on the billing statement, the renewal period, or any other agreed upon billing cycle. All setup or deposit fees for custom work will be charged to your supplied credit card or invoiced to you at the time the order is placed. All service fees will be charged to your credit card at the time your site or service is live and ready for your use (at such time you can access the site or service via the internet). Unless otherwise agreed, all payments are due in advance for the Service to be rendered during the upcoming service period. IDXNW may, in its sole and exclusive discretion, immediately suspend or terminate your Services without notice to you if you fail to provide payment, or valid payment information or authorization or fail to pay for any Services when due. Should either party choose to terminate services for any reason prior to the expiration of the current service term, whether the account is monthly or annual, any and all pre-paid amounts for the currently active term are forfeit and will not be prorated or refunded upon early cancellation or termination. Payment on billed balances are considered past due on the 16th calendar day following the invoice date and are subject to interruption of service until payment in full and applicable late fee is received. Balances that remain unpaid beyond the 30th calendar day following the invoice date will be subject to immediate termination of any and all products and services provided by IDXNW (even if they are not directly related to the product or service described in the past due bill in question) without refund of any pre-paid services and also subject to immediate action by our contracted collection agency (currently Renton Collections in Renton, WA). IDXNW may charge a fee of no less than $50.00 or 10% of the outstanding balance (whichever is greater) to reinstate any service that has been suspended or terminated. Returned checks, denied credit/debit card authorizations, or card charback attempts are subject to a $50.00 fee per denied instrument or occurrance, and any check not honored by your bank (for whatever reason), denied credit/debit card authorization, or card chareback attempt can and will cause immediate suspension of your products and/or services until payment in full by certified funds, plus any additional fees, is received by us.
IDXNW sends billing statements by email to the primary address we have on file at least 30-days prior to the expiration of the standard service period. It is the sole responsibility of the client to ensure that payment is received by us no later than the day prior to the pre-paid service period to avoid automatic suspension of service by our billing systems.
IDXNW and its licensors own all right, title, and interest in and to all website designs, website content, layouts, graphics, images, interfaces, scripts, HTML code, software, and trademarks included in or underlying the Services and, except as expressly provided herein, nothing in this Agreement or otherwise shall be deemed to grant to you, directly or by implication, estoppel or otherwise, any right or license with respect thereto.
IDX: (with the exception of custom graphics created specifically for you)
You hereby acknowledge that IDXNW is not responsible for the maintenance (e.g., updating content to keep it current, backups of data, etc.) of your website(s).
You hereby agree that under any circumstances you will not directly link to, download, or use for any other secondary purpose, the listing photos or other images on our servers as they are copyrighted material owned by NWMLS and/or IDXNW.
NWMLS MEMBERSHIP REQUIRED.
You must be actively licensed in the State of Washington as a real estate broker or sales person to subscribe to the IDX products and services of IDXNW. You must be also a member in good standing of NWMLS to subscribe to the IDX products and services of IDXNW. You hereby agree to cease all use and offering of our products and services to the public and inform IDXNW immediately in the event your membership with NWMLS lapses, is suspended, or otherwise becomes inactive for any reason. You also agree that there will be no refund of any fees paid in advance due to a change in your NWMLS membership status, or a change in your eligibility to access the NWMLS data feeds through an active and approved Download Agreement (Form 110) between the member broker and the NWMLS that specifically names IDXNW as an authorized consultant.
TERMS OF SERVICE.
Portions of the Service may contain user-provided or third party content, to which you may contribute appropriate content (the "Content"). For this Content, the submitter is the owner, and IDXNW is only a distributor. By submitting Content to your website, you grant IDXNW, as the host of your website, a limited license to use, host, and distribute the Content (including on a co-branded basis with a third party service provider). You should submit only Content which belongs to you and will not violate the intellectual property rights or other rights of other people or organizations. IDXNW is sensitive to copyright and other intellectual property rights of others. IDXNW also reserves the right to remove any user -provided content that comes to its attention and that it believes, in its sole discretion, is illegal, obscene, indecent, defamatory, incites racial or ethnic hatred or violates the rights of others. IDXNW and its licensors also reserve the right to remove (or cause you to remove) their trademarks and logos from your website, at any time without notice.
INTERNET DOMAIN NAMES.
IDXNW has chosen independent third-party domain name vendors who are ICANN accredited registrars, to provide domain name registration services for your benefit.
If IDX Northwest registers a domain name in connection with any service or product provided to you, you will be listed as the registrant of that domain name. You hereby authorize IDXNW to list itself as any other contact in connection with your domain name(s) registered by IDXNW and to take any actions IDXNW deems appropriate in those capacities. However, upon termination of any IDXNW Service, IDXNW may immediately cease acting in those capacities, and will not be responsible for forwarding any notices, emails or other correspondence to you or for taking any other actions in connection with your domain names. Additionally, in the event that your account is suspended by IDXNW for lack of payment or any other reason, IDXNW shall not renew any domain names that may become due for renewal during the suspension of your account. You will be solely responsible for all ongoing fees, as well as removing IDX Northwest as the billing, technical, and admin contact, and any related name server changes, in connection with your domain names.
You agree that at no time during or after the term of this End User Licensing Agreement will IDXNW or any of its licensors or service providers be responsible for any liability in connection with the loss or interruption of service or your right to use or own any Internet domain name.
IDX Northwest provides domain name registration as a convenience to our clients but makes no guarantee that our efforts to pay for on your behalf or maintain your continued claim or right to use any Internet domain name will be error free.
You agree and understand that it is your sole responsibility to monitor and verify your continued claim or right to use any Internet domain name, and that all fees due to the third party domain name vendor are paid in full either by you or by IDXNW. You agree that in no event (including negligence or otherwise on the part of IDXNW) will the liability of IDXNW or any of its licensors or service providers for any damages, losses and causes of actions relating to or in connection with any Internet domain name registered on your behalf, whether in contract or tort (including negligence or otherwise) or under any other legal theory, exceed the actual dollar amount paid by you or by IDXNW to the third party domain name vendor for the Internet domain name during the previous calendar year.
ACCESSING YOUR NON-IDXNW SITE.
If you elect for any reason to give IDXNW FTP, control panel, administrative or similar access to any website owned or controlled by you and not hosted by IDXNW, you understand and agree that IDXNW is not responsible for any potential damage, data loss or actual security breaches to your website now or in the future. You agree you are responsible for backing up and restoring your own website code, HTML and content in the event you wish to have your original website restored. You understand that all indemnifications, limitation of warranties, and limitations of liabilities within this contract apply.
SEO: SEARCH ENGINE OPTIMIZATION PROGRAM.
You understand there are no guarantees with search engine optimization (SEO) services. IDXNW will do its best to increase your site placement in search engine results, but can offer no guarantee that your placement will increase.
You will indemnify, save harmless, and defend IDXNW and its licensors and service providers and its and their employees, officers, directors, and agents (collectively “indemnified parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including but not limited to reasonable attorneys' fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to any use of the Services, including any violation of the IDXNW Terms of Service or Acceptable Use Policy.
You understand that IDXNW will make best efforts in providing the highest quality service. YOU EXPRESSLY AGREE THAT: YOUR USE AND ANY OTHER USERS’ USE OF THE IDXNW SERVICES, OR ANY THIRD PARTY SERVICE PROVIDED TO YOU BY IDXNW, IS AT YOUR OR SUCH USERS’ OWN SOLE RISK. IDX Northwest ’ SERVICES AND TECHNOLOGY AND ANY THIRD PARTY SERVICES PROVIDED TO YOU BY IDXNW, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. IDX Northwest AND ITS LICENSORS AND SERVICE PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT;. IDXNW AND ITS LICENSORS MAKE NO REPRESENTATION OR WARRANTY THAT (A) IDXNW ’SERVICES AND ANY THIRD PARTY SERVICE PROVIDED TO YOU BY IDXNW WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (B) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF IDXNW ’ SERVICES AND OR ANY THIRD PARTY SERVICE PROVIDED TO YOU BY IDXNW WILL BE ACCURATE OR RELIABLE, (C) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH IDXNW ’ SERVICES, INCLUDING THOSE OF ANY THIRD PARTY, WILL MEET YOUR EXPECTATIONS, OR (D) THAT ANY ERRORS IN IDXNW TECHNOLOGY, SERVICE AND OR ANY THIRD PARTY SERVICE PROVIDED TO YOU BY IDXNW WILL BE CORRECTED.
LIMITATION OF LIABILITY.
IN NO EVENT SHALL IDXNW OR ITS EMPLOYEES, AFFILIATES, AGENTS, THIRD-PARTY SERVICE PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR USE, BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR STRICT LIABILITY OR OTHER LEGAL THEORY, EVEN IF IDX Northwest HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event will the liability of IDXNW or its licensors or service providers for any damages, losses and causes of actions, whether in contract or tort (including negligence or otherwise) or under any other legal theory, exceed the actual dollar amount paid by you for the IDXNW service or third party service, product or products which gave rise to such damages, losses and causes of actions, during the previous one (1) month period prior to the date the damage or loss occurred or the cause of action arose.
GOVERNING LAW AND VENUE.
This agreement shall be construed in accordance with, and all disputes hereunder shall be governed by, the laws of the state of Washington, excluding any conflict of laws rules. The parties agree that the judicial forum for any actions or proceedings brought relating to this Agreement shall be the federal or state courts located in King County or the U.S. Federal District Court for the Western District of Washington, as appropriate, and that no other court in any other country or state will have jurisdiction or venue as to any legal action brought to enforce, interpret, or recover damages for a breach of this Agreement. The prevailing party in any such action shall be entitled to all costs and reasonable attorneys’ fees.
ASSIGNMENT AND SEVERABILITY.
This Agreement shall be binding upon you, IDXNW and our respective successors and assigns. You may not assign this Agreement without the prior written consent of IDXNW. If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remaining provisions of this Agreement shall remain in full force and effect.
You may terminate this agreement at any time prior to the end of the term specified in the original order form or any other specified term (the term is one month unless otherwise noted) by contacting IDXNW via phone, mail, or email to request a “Service Cancellation Form”. The service cancellation form will be sent to you via email. You will need to complete the form and fax it back to the Fax number provided on the form. IDXNW will in turn contact you to verify sufficient customer identification information. For security, all cancellation requests must be made by the primary contact person on the account. IDXNW shall not refund to you any fees paid in advance of such termination. You will be required to pay in full to IDXNW the standard charges and fees for any time remaining in the term. Any termination request shall be effective upon receipt the service cancellation form and verification of identity, unless another date is specified in such termination request. Any termination of this agreement by IDXNW or you shall not relieve you of any obligations to pay fees accrued prior to such cancellation.
Last updated: November 13, 2008
Date effective: November 13, 2008