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MLS MEMBER TERMS OF USE

This document is part of an agreement between you, an MLS member, and Financial Business Systems, Inc. (together with its affiliates, "FBS" or "we") regarding the use of the Spark Platform, the Spark Store, the Spark Bar, and the Spark Platform’s associated software and services, along with any Applications that are marketed and sold on the Store by application Developers. Before you use the Platform or any Applications made available through it, please read these Terms of Use and all other rules and policies related to the Platform (collectively, the "Terms of Use").

You warrant and represent that you are a current member in good standing of a Multiple Listing Service associated with the Store ("MLS") and that you are eligible to enter into this Agreement. BY CHECKING THE BOX TO ACCEPT OR BY USING THE PLATFORM, APP BAR, STORE OR OTHER FBS OR SPARK PLATFORM SERVICES, INCLUDING ANY APPLICATION IN THE STORE, YOU ARE AGREEING TO BE BOUND BY THESE TERMS OF USE, INCLUDING THE DEFINED TERMS LISTED AT THE END OF THE DOCUMENT.

  1. Credentials.To access the Platform, Store, App Bar, Applications, and any MLS Content through an Application, you must identify yourself and prove you are an authorized member of the MLS whose MLS Content you are seeking to access by entering credentials unique to you and not shared with anyone else. You represent and warrant that any user credentials or other information you present or use in the Platform or with any Application will be true, current and accurate, and you will not access MLS Content or Applications with false or inaccurate credentials. You will not share or lend your credentials to any third party.
  2. Access to the Platform and MLS Content. You may access the Platform, Store, App Bar, Applications, and any MLS Content for your internal business purposes and to service your Customers, provided you remain in compliance with these Terms of Use, Developer EULAs, MLS Rules and License Terms, and any other applicable agreement, terms of use or policiesp, including without limitation credentialing requirements in Section 1 above and the restrictions set forth below:
    1. You shall not share MLS Content with Consumers or other third parties except as expressly provided under these Terms of Use and the MLS Rules and License Terms;
    2. You may not copy, redistribute, retransmit any of the MLS Content, except for internal business purposes and to service your Customers;
    3. You shall not engage in scraping, harvesting or other type of collection of MLS Content;
    4. You may not reproduce, modify, reverse engineer, disassemble or decompile any binary code, API or other materials and components used in connection with the Platform or MLS Content;
    5. You may not remove or tamper with any security or analytics-related components associated with the Platform, Applications, MLS Content or MLS systems;
    6. You may not rent, lease, lend, upload to or host on any website or server, sell, redistribute or sublicense any Platform service or component, or enable others to do so;
    7. You may not take any action related to the Platform or MLS Content that interferes with, damages, accesses or uses in any unauthorized manner the hardware, software, networks, technologies or other properties or services of FBS or of any end user or other third party;
    8. You may not use the Platform or MLS Content in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of personality;
    9. You must comply with any additional restrictions stated in an Application or through the Platform, or any other rules, policies, requirements or other agreements or licenses you have from FBS or an MLS; and
    10. You shall provide any assistance reasonably requested by FBS or an MLS in remedying any unauthorized use of MLS Content.
  3. Providing Consumer Access to MLS Content.You may permit your Consumers to access MLS Content through Applications available on the Store, provided such access complies with MLS Rules and License Terms and such Consumers are subject to the Consumer Terms of Use available at Consumer Terms of Use (subject to change from time to time). MLS may terminate, suspend, or limit your access or use, or that of Consumers, of MLS Content at any time. Your rights to use MLS Content further depends on your compliance with the credentialing requirements in Section 1 above and the following limitations:
  4. Reservation of Rights. Except for the rights explicitly granted to you in this Terms of Use, all right, title and interest in Platform (including without limitation the Store and App Bar) and MLS Content are reserved and retained by FBS and the MLSs, respectively, and you do not acquire any ownership rights as a result of using or accessing the Platform or MLS Content.
  5. Store Management.You understand and agree that FBS and MLS have rights to manage the Store, your use of the Store, and any Applications available on the Store, and may at any time, without limitation:
    1. Remove any Application or feature from the Store;
    2. Provide updates to the Store from time to time for feature enhancement, security or other purposes;
    3. Terminate your access to any Application, whether previously purchased or subscribed by you or not, without obligation to provide a refund or credit to you. You must contact the Developer regarding refund, credit, or other billing issues;
    4. Terminate your access to the Store; and,
    5. Rate limit your access to the Store, Applications or MLS Content at any time and in FBS’s or MLS’s discretion.
  6. Licensing Applications. Applications may be licensed to you through the Store at no charge or for an initial or renewable subscription fee. Applications may also be offered on a free trial or other limited basis, which may restrict permitted time of use or contain other limitations. If you purchase an Application on a subscription basis or start a free trial for such a subscription, your subscription may automatically continue at the regular subscription price at the end of the subscription or trial term unless you elect not to continue the subscription. You may cancel future subscription renewals at any time during your subscription period, after which your subscription shall continue until the end of the already-paid subscription period and all future billing for that subscription shall cease. From time to time, FBS or MLS may offer sales and other promotions in the Store, and may modify or discontinue any of these promotions at any time without notice to you.
  7. Developer License Terms and Support.Most Applications on the Store are provided by third parties and may be licensed under separate End User License Agreements ("Developer EULAs"). If there is a conflict between the Developer EULAs and these Terms of Use, the provisions of these Terms of Use shall control.
  8. Purchase Transactions.All Purchases of Applications on the Store are final. "Purchases" shall be considered to include initial sales of Applications, purchases of upgrades or keys that unlock services, in-app purchase sales, subscription fees or renewals and any sales or exchanges that arise from an Application. You must contact the Developer regarding billing and support issues, including with any requests for refunds. Developer contact information is available in the Store.
  9. Inadvertent Purchases.In the event you inadvertently make a Purchase of an Application, you may cancel the Purchase by making a request in the Store within twenty-four (24) hours of the inadvertent Purchase.
  10. Application Support, Refund Requests Through Developer Only.Developers are solely responsible for support and maintenance of their Applications. FBS and MLS shall have no obligation or responsibility to provide support or maintenance for Applications. You must contact the Developer regarding billing and support issues for any Application, including with requests for refunds. You may find Developers’ contact information in the Store or in the Application.
  11. End User Comments.The Store provides end users with the ability to provide comments, ratings or other feedback for Applications ("Comments"). You may post such Comments for Applications provided you do not post material that is illegal, obscene, threatening, defamatory, invasive of privacy, infringing of others’ intellectual property rights, or otherwise injurious to third parties or objectionable and does not consist of or contain commercial solicitations, chain letters, mass mailings, or any form of "spam." You must post Comments under your own name as an individual or representative of an entity, and may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of a card or other content. You grant FBS a worldwide nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display Comments and your name in connection with such Comments in any way. You represent and warrant that (i) your Comments are your original work or you own or otherwise control all of the rights to Comments that you post; (ii) the Comments represent your personal opinion and are not posted in conjunction with other individuals or entities; (iii) the content of your Comments do not violate this Terms of Use; and (iv) that you will indemnify FBS and MLS for all claims resulting from Comments you post.

    FBS and MLS reserve the right to remove or edit any Comments, though FBS and MLS have no obligation to do so. You understand and agree that FBS and MLS may not regularly review posted Comments, and you may encounter offensive or objectionable content posted by other users. You may contact FBS at support@sparkplatform.com to report any offensive or objectionable content. FBS and MLS may take any actions or decline to act in response to all such requests in its sole discretion.
  12. Mobile/Web Access.You are solely responsible for any mobile data fees and other third-party charges you may incur in connection with your access, download and use of the Platform or Applications.
  13. Third Party Beneficiary (MLS).You acknowledge and agree that MLSs providing MLS Content through Applications under these Terms of Use shall be third party beneficiaries to these Terms of Use and shall be entitled to directly enforce, and rely upon, any provision of these Terms of Use that confers a benefit on (or rights in favor of) them. Other than this, no other person or company shall be third party beneficiaries to these Terms of Use.
  14. Privacy Policy.The Platform and Applications may provide FBS with information regarding your usage of the Platform, Applications and MLS Content. Such information collected may include personally identifiable information. Any information FBS receives may be used or shared with third parties for purposes that include marketing, product improvement, and verification of license compliance, according to FBS’s privacy policy available at http://sparkplatform.com/docs/terms_of_use/privacy.
  15. Warranty Disclaimer, Limitation of Liability.YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE PLATFORM AND MLS Content ARE AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM AND MLS Content ARE PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND, AND FBS AND MLS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. FBS AND MLS FURTHER DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED APPLICATION, THAT THE FUNCTIONS OR CONTENT CONTAINED IN THE PLATFORM OR MLS Content WILL MEET YOUR REQUIREMENTS, WILL BE FUNCTION WITHOUT INTERRUPTION OR WITHOUT ERROR, OR THAT DEFECTS IN THE PLATFORM OR MLS Content WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FBS, MLS OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL FBS OR MLS BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE PLATFORM AND MLS Content, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF FBS OR MLS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL FBS’S AND MLS’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE AMOUNT OF ONE DOLLAR ($1.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
  16. General Terms.
    1. Territory.The Platform and MLS Content are intended for and made available under these Terms of Use to customers in the United States only.
    2. Termination.These Terms of Use shall automatically terminate without notice if you breach any terms of these Terms of Use. In the event of such termination, you shall cease all use of the Platform and MLS Content, and we may immediately revoke your access to the Platform and MLS Content without notice to you and without obligation to refund any purchases. FBS shall further have the right to terminate these Terms of Use without notice at any time.
    3. Governing Law. These Terms of Use shall be governed by the laws of the State of North Dakota, without reference to its rules governing choice of law or venue or the U.N. Convention on Contracts for the International Sale of Goods. You hereby irrevocably consent to and waive any objection to the exclusive jurisdiction and venue of the federal and state courts located at Cass County, North Dakota for any and all disputes, claims and actions. Notwithstanding the foregoing, you acknowledge and agree that (i) FBS may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction, and (ii) MLSs providing MLS Content may enforce any rights to MLS Content or that are otherwise available to them under Section 13 in any jurisdiction and under any governing law.
    4. Amendments. FBS may amend any of these Terms of Use at its sole discretion by posting the revised terms in the Platform or by other notice to you. Your continued use of the Platform or MLS Content after the effective date of the revised Agreement terms shall constitute your acceptance of the terms.
    5. No Waiver.A failure by FBS or MLS to insist upon or enforce your strict compliance with these Terms of Use shall not constitute a waiver of any of FBS’s or MLS’s rights.
    6. Export Restrictions.You agree to comply with all export and re-export restrictions and regulations of the Department of Commerce and other United States agencies and authorities that may apply to the Platform or MLS Content.
    7. Government Users.If you are a U.S. Government end user, the Applications and MLS Content are licensed to you as "Commercial Items" as that term is defined in the U.S. Code of Federal Regulations (see 48 C.F.R. § 2.101), and the rights FBS grants to you for the Platform are the same as the rights customarily granted to others under these Terms of Use.

DEFINED TERMS

  • "Application(s)" are software applications or other digital products created by Developers for license through the Platform, including any content, services, technology, data and other materials included in or made available through such products, together with their enhancements, upgrades, updates, bug fixes, new versions and other modifications and amendments.
  • "Application Information" consists of all information provided to FBS by a Developer with an Application, including any information and content related to Applications and to Developer, such as all metadata, graphics, artwork, images, trademarks, trade names, logos and other descriptive or identifying information and materials associated with the Developer or Application.
  • The "Application Store" or "Spark Store" is a virtual storefront within the Platform that will allow MLS Members to discover, purchase, and review Applications provided by Developers for sale in the Store. The Application Store refers to the store in its entirety and is to be distinguished from an MLS Store, which only offers the Applications approved by a particular MLS.
  • "Consumer Content" consists of information saved by Consumers on the Platform, including without limitation contact information, saved searches, listing carts, favorites, email links, messages, and notes.
  • "Consumer Terms of Use" are the terms of use applicable to use of Platform services and Applications by Consumers, available at http://sparkplatform.com/docs/terms_of_use/consumer and subject to change from time to time.
  • A "Developer" is a person or entity in the business of developing and marketing software applications for sale through the Platform.
  • "Developer Agreement" is an agreement between FBS and Developers under which Developers develop, market and distribute Applications for the Platform, available at http://sparkplatform.com/docs/terms_of_use/developer and subject to change from time to time.
  • "Developer Content" consists of Applications, Application Information, associated documentation, and any other materials, notices, advertising or information provided by Developer to FBS.
  • An "End User" is a Member or Consumer that Purchases an Application, and is bound by the MLS Member Terms of Use or Consumer Terms of Use, respectively.
  • A "EULA" is an End User License Agreement provided by a Developer, at its option, to End Users.
  • "IDX" or "Internet Data Exchange" is an MLS Rule that allows one Member to display on their web site to Consumers certain MLS Content of other Members if they comply with the MLS Rules and License Terms for IDX.
  • "Members" of an MLS consist of persons or entities, including without limitation real estate agents, brokers, brokerage companies, appraisers, and others, identified by MLS as subscribing to the MLS service and agreeing to MLS Rules and License Terms.
  • "Member Content" consists of information saved by Members on the Platform, including without limitation information regarding the member’s contacts (e.g., contact name, email address, phone, address, and other information), saved searches, listing carts, emails, messages, user preferences, and notes (both private and shared). Member Content shall not include Member changes to MLS Content.
  • "MLS Content" is any information provided by MLS to FBS via the MLS RETS servers, MLS system, or other methods, along with any changes to such information made through the Platform, including without limitation listings, listing history, images, documents, multi-media links or embed codes (e.g., virtual tours, videos, floor plans), open house and agent tour information, member rosters, user preferences, saved searches, or other information. MLS Content shall include MLS Content in its standardized form under Section 5.f.
  • "MLS Member Terms of Use" are the terms of use applicable to MLS Members’ use of Platform services, which terms are available at http://sparkplatform.com/docs/terms_of_use/mls_member and subject to change from time to time.
  • "MLS Rules and License Terms" are specified by MLS in the API Manager and available to Developers and Applications through the API (http://sparkplatform.com/docs/api_services/system_info, including without limitation, for each user Role (e.g., MLS Member, IDX, VOW, etc.), the terms and agreements required, display requirements (e.g., what fields and disclaimers must and may be required to be displayed when displaying the MLS Content), and other rules for use or display of MLS Content.
  • The "MLS Store" is the portion of the Platform Store that is integrated or linked to the MLS system or website(s) and which only contains Applications not rejected by MLS.
  • A "Payment Processor" is an entity contracted by FBS to provide payment processing services for Store Purchases.
  • "Purchase(s)" are initial sales of Applications, purchases of upgrades or keys that unlock services, in-app purchase sales, subscription fees or renewals and any sales or exchanges that arise from an Application. Obtaining an Application, service or a subscription for a price of $0.00 shall be deemed a Purchase of or through an Application.
  • "Registrant" is a person or entity who has established a lawful consumer-broker relationship, including completion of all actions required by state law, with a Member and has registered with Member for authenticated access to MLS Content by providing their name and email address to Member through their web site or by other means.
  • "Spark API" is the application programming interface documented at http://sparkplatform.com/docs/overview/api.
  • "Spark Bar" or "App Bar" is software installed in or linked to the MLS system to provide Members access to the Spark Store, the applications purchased through the Store, notifications, user profile, logout, and other functionality that may change from time to time.
  • "Spark Platform" or "Platform" is the software owned and provided by FBS, which includes without limitation the Spark API, Store, App Bar, Role Manager, Data Mapper, and any other associated software, help documentation, and other materials. The Platform excludes MLS Content, Member Content, and Consumer Content.
  • "VOW" or "Virtual Office Web Site" is a web site operated by a Member that provides Registrants access to certain MLS Content in compliance with the MLS Rules and License Terms for VOWs.