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Listing Agreement
This Listing Agreement "Agreement" governs Agent's ("your") purchase and use of all Website listing services as described in Clause 3 ("Services"), that you order and Content Technologies Dot Net LTD ("CTNL") accepts.
You must accept the terms of this Agreement in order to use the Services. BY REGISTERING FOR AND USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS AS WELL AS ALL POLICIES AND GUIDELINES INCORPORATED BY REFERENCE.
CTNL may modify any of the terms and conditions contained in this Agreement and any policy or guideline incorporated by reference, at any time in its sole discretion and may also determine whether and when modifications apply to existing and future customers. Any modifications are effective upon posting of the revisions on CTNL's Websites (the "Websites").
CTNL will post a notice of modifications to this Agreement for 30 days. CTNL may post modifications to referenced policies and guidelines without notice to you. Your continued use of the Services following CTNL's posting of any modifications constitutes your acceptance of the modifications.
IF YOU DO NOT AGREE TO THE TERMS OF ANY MODIFICATION, DO NOT CONTINUE TO USE THE SERVICES AND IMMEDIATELY NOTIFY CTNL OF YOUR TERMINATION OF THIS AGREEMENT IN THE MANNER DESCRIBED IN SECTION 1 BELOW.
References to "you", "your" and "yours" are references to agents subscribing to membership and services of CTNL.
References to "we", "us" and "our" are references to CTNL.
1. Term
1.1
1.2 Term. This Agreement will be for an "Initial Term" of 12 months from the date of your execution to the Listing Agreement. This Agreement will be automatically renewed (the "Renewal Term") at the end of the Initial Term for the same period as the Initial Term, unless terminated in accordance with this Clause 1.
1.3 Termination. (i) You or CTNL may terminate this agreement immediately upon the occurrence any of the following events:
(a). the other party failing to remedy a breach of this agreement having been given 30 days� notice of such a breach;
(b). the other party committing a material breach of this agreement that is not capable of remedy; or
(c). the other party becoming insolvent or being wound up.
(ii) Either party may terminate this agreement at any time, upon giving three months� notice in writing.
(iii) CTNL may withdraw your right to use the Services and/or terminate this agreement immediately upon the occurrence of any of the following events without any notice:
a. failure to pay the Fees as and when they fall due;
b. you misusing the Service or, in any way, bringing the Service into disrepute; or
c. You acting in any other way against the business interests of CTNL.
(iv) You must provide CTNL with your notice of termination by e-mail containing sufficient customer identification information so that CTNL may properly identify you and your account. Any notice of termination will be effective upon receipt of such notice by CTNL.
1.4 Consequences on Termination. Upon termination, all fees and any other charges shall become immediately due and payable. No refund will be due or made for any unexpired portion of any term. You further agree to immediately cease using the Service and shall remove all references to CTNL and/or its logo from all materials and your website. CTNL shall further remove the Data retrieved from your website that is incorporated into the Database and all other references to your service and disable the webfetching setup configured on your website within 30 days of the termination.
1.5 Liability and Obligations on Termination. If the Agreement expires or is terminated for any reason, CTNL is not liable to you because of the expiration or termination for compensation, reimbursement or damages on account of the loss of prospective profits, anticipated sales, goodwill or on account of expenditures, investments, leases or commitments in connection with your business, or for any other reason whatsoever flowing from the termination or expiration. If you terminate the Agreement you shall not be relieved of any obligations to pay fees and costs accrued before the termination date or any other amounts you owe to CTNL under this Agreement.
2. Payment.
2.1 Set-up cost for the Trial Period: You agree to pay the setup cost to configure your website for the purposes of enabling CTNL to fetch the Data (defined below) from your webserver.
2.2 Charges. You agree to pay all charges including the set-up charges for your use of the Services at the prices stated in the Order Form or at the then current CTNL prices, which will be exclusive of any applicable taxes. You are responsible for paying all federal, provincial/state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Services, other than taxes based on CTNL�s net income.
2.3 Payment. You agree to pay all charges for Services in advance according to the prices and payment method stated on the Order Form. You further agree to pay for the Services either at the time of placing the Order or by invoice. If you choose to be invoiced for the Services, CTNL will send to you by e-mail an invoice for the period for which you have registered for the Services. You will pay to CTNL the amount indicated in each invoice by the due date reflected on the invoice. You may choose to pay the invoice by credit card or by giro/bank transfer. If you choose to pay by credit card (which is available only through electronic invoicing and payment), you authorize CTNL to charge your credit card to pay for any charges that may apply to your account. You must notify CTNL of any changes to your card account (including, applicable account number, cancellation or expiration of the account), your billing address, or any information that may prohibit CTNL from charging your account.
2.4 Failure to Pay. If you fail to pay any fees and taxes within 10 days from the applicable due date for credit card or invoice payments, CTNL will assess late charges equal to the lesser of 1.5% per month or the maximum allowable under applicable law. Your failure to pay any fees and taxes within 10 days after the applicable due date is a material breach of this Agreement, justifying CTNL in suspending its performance and terminating this Agreement. If CTNL terminates for your material breach, you must still pay past due fees plus interest. You are responsible for any costs CTNL incurs in enforcing collection, including reasonable attorneys� fees, court costs and collection agency fees.
3. Services.
3.1 Provision of Services
CTNL shall provide the following services to You:
a. analyse your website to enable the Special webfetching software to retrieve data from your website.
b. retrieve the data containing details of properties and other related information including floor plans, maps and photographs (Data) uploaded by you on your websites into the Database via special webfetching software.
c. display the Data retrieved from your Website and where possible a hypertext link to your profile your website;
d. permit the general public to access the CTNL website at URLs maintained by CTNL like
- http://www.auslandsimmobilien.com
- http://www.auslandsimmobilien.tv
- http://www.overseasinvestment.net
- http://www.overseasproperty24.com
- http://www.overseasproperty24.co.uk
- http://www.properties24.co.uk
- http://www.fastigheter.tv
- and other websites of CTNL or CTNL's affiliates
and deemed suitable (the "Websites") which contain details of properties and other related information (including floor plans, maps and photographs) retrieved from your website (the "Data").
e. perform weekly updates by retrieving the Data using the special webfetching software;
f. notify you via email each time the Data is retrieved from your website.
g. endeavour to maintain the availability and performance of the Website, except for temporary unavailability due to scheduled maintenance and improvements downtime;
h. provide an email facility for the transmission of enquiries to you directly from the Website;
i. provide you with an user account to enable you to enter and update your information, address and other details
j. grant you a royalty-free licence to use the CTNL logos and names in any advertising or promotional or marketing displays in accordance with any instructions that CTNL may issue from time to time;
k. use reasonable endeavours to market the Website to prospective buyers, sellers and renters of properties. To achieve this, we reserve the right to negotiate and enter into online distribution agreements with third parties, whereby our database of properties can be accessed on those third party sites to achieve the maximum possible number of viewers of the Data.
h. provide such additional services as may be agreed from time to time;
i.
2. Your responsibilities. You shall:
a. be responsible for the provision, operation and support of any hardware, Internet connections and browser software necessary for effective use of the Service;
b. not deny CTNL's webfetching server to retrieve Data from your web server through special webfetching software;
c. shall provide timely notification of atleast a week in advance to CTNL of your website scheduled maintenance and downtime period;
d. not copy any element (including any source code) of the Service without the express written consent of CTNL;
c. use reasonable endeavours to upload accurate Data to your website;
d. satisfactorily respond to all customer enquiries generated as a result of the uploading of Data to the Website within one working day;
e. pay CTNL for the right to use the Service in accordance with the Clause 2 hereof;
f. ensure that you use the Service in accordance with applicable law, regulation and the reasonable instructions of CTNL;
g. notify CTNL immediately if you become aware of any unauthorised use of the Service;
h. grant CTNL a royalty free licence for the reasonable use of your name, logo and other trade marks on the Web Sites and in its marketing materials in accordance with any guidelines provided to CTNL.
3.2 Policies and Guidelines. The CTNL Acceptable Use and Service Guidelines (the �Usage Guidelines�) govern the general policies and procedures for use of the Services. CTNL�s On-line Privacy Statement governs how CTNL collects, stores, processes and uses information associated with your use of the Services. The Usage Guidelines and the On-line Privacy Statement are posted on CTNL's Websites at www.auslandsimmobilien.com and www.properties24.co.uk (or such other location as CTNL may specify) and may be updated from time-to-time. YOU SHOULD CAREFULLY READ THE USAGE GUIDELINES. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THE USAGE GUIDELINES AND ANY MODIFICATIONS TO THE TERMS. IMMOBILIEN MAY TERMINATE YOUR ACCOUNT FOR ANY VIOLATION OF THE USAGE GUIDELINES OR THIS AGREEMENT.
3.2 Technical Requirements. You must ensure that your website placed on CTNL's database is in a condition that is "fetching ready". CTNL will make no effort to validate this information for content, correctness or usability. If your website is not � fetching ready� i.e. does not support the webfetching capability as provided by CTNL ready�, CTNL may reject your website listing. CTNL will notify you of its refusal of your Web site and afford you the opportunity to modify the Web site to satisfy CTNL's requirements. You must notify CTNL of any changes you have made in your HTML structuring of the listing on your website, to enable the CTNL to configure the webfetching software. You further agree to pay CTNL a set up fee every time CTNL configures your webfetching.
3.3 Domain Names. At the time of placing your Order with CTNL you will confirm that you are the registered owner or the authorized agent of the owner of the domain name or names to be listed with CTNL. You will also confirm that your domain name does not violate any registration services� policies, or any law or regulation.
3.4 Security. You are solely responsible for any breach of security affecting your Web site. If your Web site is responsible for or involved in an attack on or unauthorized access into CTNL, CTNL will remove it immediately from its database. You will pay any charges resulting from the cost to correct security breaches affecting CTNL or any of its other customers.
4. Intellectual Property Rights.
4.1 Your License Grant to CTNL. You grant to CTNL a non-exclusive, worldwide, and royalty free license for the Trial Period, Initial Term and the Renewal Term, if applicable, to fetch, retrieve, exhibit, publish, transmit, distribute, display and otherwise to use Data from your website and to provide a link to your Web site for the purpose of rendering and operating the Services to you under this Agreement. You expressly:
(a) grant to CTNL the right to provide a direct link to your Web site via the Services and (b) agree that this Data listing is not an infringement of any of your intellectual property rights or any third party�s intellectual property rights.
4.2 Your Warranties and Representations. You warrant, represent and covenant to CTNL that:
(a)you, if an individual, are at least 18 years of age;
(b)you possess the legal right and ability to enter into this Agreement;
(c)you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines;
(d)you will be financially responsible for the use of your account;
(e)you have acquired or will acquire all authorization(s) necessary to use all elements of the Data, hypertext links to third-party Web sites or other content and has the right to place the same on the Service;
(f)you have verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including your content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and
(g)your content does not and will not infringe or violate any right of third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance,
(h)the Data complies with all relevant legislation and regulations including, but not limited to, the Data Protection Act 1998 and the Property Misdescriptions Act 1991;
(i)all the Data is accurate, complete, not misleading and up to date; and is related to the real estate properties and is of an inoffensive nature.
4.3 CTNL Materials and Intellectual Property. All materials, including any computer software (in object code and source code form), data or information that CTNL or its
suppliers or agents develop or provide under this Agreement, and any know-how, methodologies, equipment, or processes CTNL uses to provide the Services to you, including all copyrights, trademarks, patents, trade secrets, and other proprietary rights inherent therein and appurtenant thereto will remain CTNL�s or its suppliers� sole and exclusive property.
5. Enforcement.
5.1 Investigation of Violations. CTNL may investigate any reported violation of this Agreement, or its policies or any complaints and take any action that it deems appropriate and reasonable under the circumstances to protect its systems, facilities, customers and third parties.
5.2 Actions. CTNL may restrict or remove access from its servers any content that violates this Agreement or related policies and guidelines, or is otherwise objectionable or potentially infringing upon any third party�s rights or potentially violates any laws. If CTNL becomes aware that you have possibly violated this Agreement, any related policies or guidelines, third party rights or laws, CTNL may immediately take corrective action, including: (a) issuing warnings, (b) suspending or terminating the Service, and (c) restricting or prohibiting any and all uses of content distributed or made available for distribution via the Services that, in CTNL's sole discretion, may violate or infringe any law or third-party rights or that otherwise exposes or potentially exposes CTNL to civil or criminal liability or public ridicule. CTNL is not obligated to monitor or exert editorial control over information made available for distribution via the Services. If CTNL takes corrective action because of a possible violation, CTNL will not refund to you any fees you paid in advance of the corrective action.
5.3 Disclosure Rights. To comply with applicable laws and lawful governmental requests, to protect CTNL's systems and customers, or to ensure the integrity and operation of CTNL's business and systems, CTNL may access and disclose any information it considers necessary or appropriate. CTNL may report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulator, or other appropriate third parties. To the extent that any inconsistency exists between any terms of CTNL's On-line Privacy Statement and CTNL's right to disclose under this section, CTNL's right to disclose under this section will prevail.
6. Disclaimed Warranties.
CTNL exercises no control over, and accepts no responsibility for, the content of the information passing through CTNL's electronic systems, or the Internet. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED �AS IS� AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, ANY FAILURE BECAUSE OF COMPUTER HARDWARE OR COMMUNICATIONS SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, CTNL DOES NOT MAKE ANY DISCLAIMS, AND YOU WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.
7. Limitation and Exclusion of Liability.
7.1 Limitations. IN NO EVENT WILL CTNL OR ITS SUPPLIERS, AGENTS, AFFILIATES HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES OR BY ACCIDENT, FRAUDULENT MEANS OR DEVICES. NEITHER CTNL NOR ITS SUPPLIERS WILL HAVE ANY LIABILITY WITH RESPECT TO EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF CTNL HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. THE LIABILITY OF CTNL AND ITS SUPPLIERS TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE AMOUNT YOU ACTUALLY PAID TO CTNL UNDER THIS AGREEMENT DURING THE 3 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE ALLEGED CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES SET BY CTNL UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED ON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU RELEASE CTNL AND ITS SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THE LIMITATION STATED IN THIS SECTION 7.1.
7.2 Interruption of Service. CTNL, its suppliers, agents and affiliates are not liable for any temporary delay, outages or interruptions of the Services. Further, CTNL is not liable for any delay or failure to perform its obligations under this Agreement, where the delay or failure results from any act of God or other cause beyond its reasonable control (including, any mechanical, electronic, communications or third party supplier failure).
7.3 Indemnification.
You release and hold harmless, and agree to indemnify, CTNL and its affiliates and suppliers (and their respective employees, directors and representatives) against any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses (including, reasonable attorney�s fees and other litigation expenses) incurred by CTNL or its suppliers, arising out of or relating to: (a) your violation or breach of any term, condition, representation or warranty of this Agreement, or any applicable policy or guideline; (b) your improper or illegal use of the Services; or (c) your violation, alleged violation, or misappropriation of any intellectual property right (including trademark, copyright, patent, trade secrets) or non-proprietary right of a third party (including defamation, libel, violation of privacy or publicity).
8. Miscellaneous Provisions.
8.1 Entire Agreement. This Agreement, in conjunction with all policies and guidelines incorporated by reference, constitutes the entire agreement between you and CTNL with respect to the subject matter of the Agreement, and there are no representations, understandings or agreements that are not fully expressed in this Agreement and the related policies and guidelines.
8.2 No fiduciary Relationship; No Third Party Beneficiaries. CTNL is not the agent, fiduciary, trustee or other representative of you. Except for the rights of CTNL's suppliers, agents and affiliates under Sections 7 and 8, nothing expressed or mentioned in or implied from
this Agreement is intended or will be construed to give any person (other than the parties to this Agreement) any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of its representations, warranties, covenants, conditions and provisions are intended to be and are for the sole and exclusive benefit of the parties to this Agreement.
8.3 Amendments. Except as expressly provided in this Agreement, no amendment, change,
waiver, or discharge of this Agreement is valid unless in writing and signed by the parties.
8.4 Identification. CTNL may, free of any obligation to pay compensation, use your name and identify you as a CTNL's client, in advertising, publicity, or similar materials distributed or displayed to prospective clients.
8.5 Governing Law. THIS AGREEMENT IS GOVERENED BY THE LAWS OF ENGLAND AND
WALES, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN THE ENGLISH COURTS LOCATED IN LONDON, AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF
THESE COURTS.
8.6 Compliance with Laws. You will comply with all applicable laws and regulations and will indemnify and save CTNL harmless from your failure to so comply. CTNL will not have to perform any obligations set forth in this Agreement if the performance would violate any present or future law, regulation or policy of any applicable government.
8.7 Non-Assignment. You may not assign this Agreement or any right or obligation under this Agreement, by operation of law or otherwise, without CTNL's prior written consent. CTNL may assign its rights and obligations under this Agreement and may utilize affiliates and agents in performing its duties and exercising its rights, without your consent. This Agreement is binding on, inures to the benefit of, and is enforceable against the parties and their respective successors and assigns.
8.8 No Waiver. CTNL's failure to enforce the strict performance of any provision of this Agreement does not constitute a waiver of CTNL's right to subsequently enforce the provision or any other provisions of this Agreement.
8.9 Severability. If any term or provision of this Agreement is deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement, if applicable, will remain in full force and effect and, if the subject term or provision is deemed to be invalid, void or unenforceable only with respect to a particular application, the term or provision will remain in full force and effect with respect to all other applications.
8.10 Headings. The section headings used in this Agreement are for reference and convenience only and will not enter into the interpretation of the Agreement.
8.11 Survival. All provisions of this Agreement relating to your warranties, intellectual property rights, limitation and exclusion of liability, your indemnification obligations and payment obligations will survive the termination
June, 1th, 2006
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