By using SMS, software, services or web sites (“SMS”), you agree to the following terms and conditions, and any related policies, guidelines or amendments, including but not limited to Program Policies and Legal Notices (collectively, the “Terms”). We reserve the right to update these Terms in the future. You can find the most current version of the Terms on the SMSwebsite at https://socialmediasensation.com/terms/
SMS, its subsidiaries, and affiliated companies (collectively “SMS”) offer its SMS to you, if you have the legal capacity to enter a contract under the laws of the United States, Canada or other applicable jurisdiction. In order to access certain SMS, we may require you to provide current and accurate identification, contact and other information as part of the registration process or continued use of SMS. You agree to maintain the confidentiality of your account password and all activities that occur under your account. You agree to notify SMS immediately of any unauthorized use of your password or account or any other breach of security that may affect your account. SMS cannot and will not assume liability for any loss or damage arising from your failure to provide us with accurate information or to keep your password secure.
SMS provides customer support by telephone and email, video and sometimes in person on Monday through Friday, between 8AM and 5PM PST/PDT. SMS provides technical support relating to errors in, or the improper functioning of, the services at no additional cost. SMS reserves the right to cancel and disable an account if SMS, in its sole judgment, determines that a customer or the customer’s primary contact has displayed a pattern of abusive, irrational or otherwise disruptive communication with the SMS Customer or Tech Support teams, or any other SMS employee.
You understand and agree that you remain solely responsible for any information, data, text, email, listings, software, photographs, graphics, video, messages or other materials (“Content”) you originate or provide SMS. SMS reserves the right, but shall have no obligation, to pre-screen, flag, filter, refuse, modify or move any Content available via SMS Services. You further understand that using SMS Services may expose you to offensive, indecent or objectionable Content, and that you use SMS Services at your own risk.
You agree that you remain solely responsible for your own conduct and any Content that you create, transmit or display while using SMS Services and for any consequences that may occur as a result. You agree to use SMS Services only for legal and proper purposes and in accordance with the Terms and any applicable policies or guidelines. You agree that you will not engage in any activity that interferes with or disrupts SMS Services or servers or networks connected to SMS Services.
In addition to and incorporated into these Terms, SMS may promulgate separate policies or guidelines to govern your use of certain specific SMS Services.
You acknowledge and agree that SMS Services and any necessary software used in connection with SMS Services (“Software”) contain proprietary and confidential information protected by applicable intellectual property and other laws and treaties. You agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on Content, SMS Services or Software, in whole or in part except as specifically authorized in writing by SMS or other proper third-party rights holders.
Subject to these Terms, SMS grants you a personal, non-transferable and non-exclusive right and license to use its Software; provided that you do not (and do not allow any third-party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sub-license, grant a security interest in or otherwise transfer any right in the Software, unless permitted or required by law or expressly authorized in writing by SMS.
You agree not to use modified versions of the Software, including without limitation for the purpose of obtaining unauthorized access to SMS Services. Except as expressly authorized by SMS you agree not to use, copy, imitate, or incorporate any trademark, service mark, trade dress, company name, or product name in a way likely to cause confusion among consumers. You also agree not to remove, obscure, or alter SMS’ or any third-party’s copyright notice, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the SMS Services or Software.
SMS claims no ownership or control over any Content submitted, posted or displayed by you on or through SMS Services. You or a third-party licensor, as appropriate, retain all ownership of patent, trademark and copyright to any Content you submit, post or display on or through SMS Services and responsibility for protecting those rights. By submitting, posting or displaying Content on or through SMS Services intended for public dissemination, you grant SMS a worldwide, non-exclusive, royalty-free license to reproduce, adapt, modify, publish and distribute such Content on SMS Services for the purpose of displaying, distributing and promoting SMS Services. SMS reserves the right to syndicate Content submitted, posted or displayed by you on or through SMS Services and use that Content in connection with any service offered by SMS. SMS further more reserves the right to refuse to accept post, display or transmit any Content in its sole discretion. You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted by this section to any content submitted.
GRANT OF LICENSE
This License Agreement (License) permits you to use a single login, on a single domain name (URL). SMS licenses the Software as a single product, to an individual user, or group of users for Multiple User Licenses and Site Licenses. This Agreement requires that each user of the Software have a license, either individually, or as part of a group. A Multi-User License provides for a specified number of users to use this Software at any time. This does not provide for concurrent use across multiple domain names (URLs) unless SMS specifically agrees and you order such concurrent use at an additional cost above the normal licensing fee. Each Software user must have an individual, or access as part of a group Multi-User License. You access the Software when accessed you log in via web browser or hyperlinked from any source. The software may reside (whether built in or framed) within one primary domain name (URL), unless specifically agreed upon in the service agreement.
LIMITATIONS ON LICENSE
Except as expressly permitted by these Terms, SMS grants no rights to do any of the following, and you shall not cause or allow anyone else, to do any of the following: (a) use, display, access, distribute, transfer, alter, or modify the licensed content, or otherwise create any derivative works of the licensed content, (b) download, distribute, export, deliver, or transmit any of the licensed content, including to any computer or other electronic device, or (c) sell, grant access to, or sub license the licensed content, or any portion of the licensed content, to any third-party. You agree to take all reasonable steps necessary to protect the licensed content from unauthorized access, distribution, copying or use. Additionally, you agree never to use crawlers, rogue bots, site scrapers or any automated script/software or method that attempts to mine the listing content on your own or any other accounts in the system. If you violate these limitations, you acknowledge that we may block access to our servers and terminate your account without prior notice.
MLS DATA SERVICES
SMS provides certain services from third-party Multiple Listing Services (MLS). You agree to use such services subject to the terms and conditions set forth by each individual MLS supplier, which usually includes that you have an active membership in the MLS. You understand and agree that you have sole responsibility for any fees charged by the MLS data supplier. SMS or the MLS data supplier will provide you with documentation, contracts and fees required to participate in the MLS data services. SMS reserves the right to retain any mutually signed contracts and is not obligated to provide access to final MLS documentation or contracts. SMS expressly disclaims responsibility for the accuracy, completeness, functionality, usability, availability or merchant ability of the MLS data services provided by third-party MLS data suppliers. You provide access and use of MLS data services strictly at your own risk.
You agree that you shall (i) not use SMS Services for “spamming,” as determined by SMS in its reasonable discretion; (ii) keep secure any identification, password and other confidential information relating to your site and shall notify SMS immediately of any known or suspected unauthorized use of your site or breach of security, including loss, theft or unauthorized disclosure of passwords or other security information; (iii) not use the SMS Services for any unlawful purpose; (iv) not engage in any other conduct that restricts or inhibits any other person from using or enjoying SMS Services, or which, in the judgment of SMS exposes SMS or any of its customers or suppliers to any liability or detriment of any type; and (vi) remain solely responsible for obtaining, maintaining and paying for all telephone, computer hardware and other equipment needed to access and use the SMS Services.
MALWARE, SPYWARE, AND WRAPPERS
You agree that you shall not distribute, intentionally or not, malware, spyware, or other code that SMS considers a liability. SMS reserves the right to disable any account that demonstrates such behavior.
SOFTWARE AND AUTOMATIC UPDATES
These Terms and any additional terms and conditions of the end-user license agreement accompanying Software provided by SMS shall govern your use of such Software. SMS may automatically report version number or other diagnostic information and may automatically download upgrades to the Software to update, enhance and further develop SMS Services, including providing bug fixes, patches, enhanced functions, missing plug-ins and new versions.
GENERAL PRACTICES REGARDING USE AND STORAGE
You agree that SMS has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted by SMS Services. You acknowledge that SMS may have set no fixed upper limit on the number of transmissions you may send or receive through SMS Services or the amount of storage space used; however, we retain the right, at our sole discretion, to create limits at any time with or without notice.
MODIFICATIONS TO SERVICE
SMS reserves the right at any time and from time to time to modify temporarily or permanently or discontinue SMS Services (in whole or part) with or without notice. You agree that SMS shall not bear any liability to you or to any third-party for any modification, suspension or discontinuance of SMS Services.
The fee for SMS Services comes due upon approval of the listing data display from your MLS and activation of your SMS account credentials. SMS will bill your credit card on or around the same day of the month in which your account credentials originated. Services and charges will continue on a month-to-month basis, unless otherwise stated in these Terms. Payment of the monthly fee covers SMS Services for the entire monthly billing cycle, whether or not you log onto your account. SMS will not refund fees paid.
If you cancel SMS Services, please notify SMS prior to your next monthly billing date. You must initiate cancellation from your Control Panel. If for any reason you cannot cancel from your Control Panel, you may notify SMS of your intent to cancel your subscription by email ([email protected]); however, such cancellations do not become effective until received by SMS. Please note that you cannot cancel by telephone; you must cancel in writing.
Cancelled accounts automatically terminate at the end of the current billing cycle, as long SMS receives your cancellation notice prior to the next monthly billing date (see above). Your account will remain active until terminated by the billing program. SMS does not assess a cancellation fee nor provide a refund for any unused service. Non-usage of an account does not constitute cancellation of SMS Services. Subscribers remain responsible for full payment on all accounts until properly cancelled.
You may discontinue your use of SMS Services at any time. You agree that SMS may at any time and for any reason, including a period of account inactivity, terminate your access to SMS Services, terminate the Terms, or suspend or terminate your account. If terminated, SMS will disable your account and you will not have access to SMS Services, your account or any files or other content contained in your account. Termination, Indemnity, Disclaimer of Warranties, Limitations of Liability, Exclusions and Limitations and choice of law, severability and statute of limitations within these Terms, shall survive expiration or termination.
SMS may provide, or third-parties may provide, links to other World Wide Web sites or resources. SMS has no control over such sites and resources. You acknowledge and agree that SMS has no responsibility for the availability of such external sites or resources, and does not endorse or assume liability for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that SMS has no responsibility or liability, directly or indirectly, for any damage or loss caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
SMS reserves the right to publish links to customer websites and positive feedback to our website and other public forums, such as news websites, blogs and other industry-specific websites. If you do not want us to quote your positive experiences or announce your use of our service you must notify us in advance. If SMS receives notice after initial publication date, we will promptly remove any notices generated from these announcements.
You agree to allow SMS to opt you into newsletter, new feature, and other email announcements provided by SMS. You may opt-out of any such newsletter, feature or announcements at any time, by following the instructions provided at the bottom of each such publication.
CLIENT REFERRAL PROGRAM TERMS
By agreeing to these terms, you also agree to participate in the SMS Client Referral Program.
SMS will award a billing credit to your account for referrals sent through your account-specific signup URL once the referred client has successfully passed their second billing cycle. Note that SMS is not responsible for referred accounts that choose NOT to use your dedicated, account-specific URL.
The credit shall equal 10% of amount paid by subscriber. The credit does not include any additional charges, including agent add-ons, MLS pass-through, or any other fees above and beyond your base SMS subscription cost.
If you choose to suspend or terminate your service, SMS will not recognize or pay any claims for any current or previous referral credits submitted.
SMS retains the right to modify, change, discontinue or cancel this referral program at any time.
You agree to indemnify and hold SMS, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners, (collectively “SMS and Partners”) harmless from and against any third-party claim arising from or in any way related to your use of SMS Services, violation of the Terms or any other actions connected with use of SMS Services, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. If served or notified of any such third-party claim, lawsuit or action, SMS will immediately (within reason) provide you with written notice of such claim, lawsuit or action.
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOU USE SMS SERVICES AT YOUR SOLE RISK. SMS PROVIDES THE SMS SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SMS EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
SMS DOES NOT REPRESENT OR WARRANT (i) THAT SMS SERVICES WILL MEET YOUR REQUIREMENTS, (ii) SMS WILL PROVIDE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE SMS SERVICES, (iii) THE ACCURACY OR RELIABILITY OF ANY RESULTS OBTAINED FROM THE USE OF SMS SERVICES, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH SMS SERVICES WILL MEET YOUR EXPECTATIONS, AND (V) THAT SMS WILL CORRECT ANY ERRORS IN THE SOFTWARE.
YOU DOWNLOAD OR OTHERWISE OBTAIN ANY MATERIAL THROUGH THE USE OF SMS SERVICES AT YOUR SOLE DISCRETION AND AT YOUR OWN RISK AND THAT YOU REMAIN SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SMS OR THROUGH OR FROM SMS SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT SMS SHALL NOT HAVE ANY LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SMS OR AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i) THE USE OR THE INABILITY TO USE SMS SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM SMS SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD-PARTY ON SMS SERVICES; OR (v) ANY OTHER MATTER RELATING TO SMS SERVICES.
EXCLUSIONS AND LIMITATIONS
SMSDOES NOT INTEND TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY, WHICH IT MAY NOT LAWFULLY EXCLUDE OR LIMIT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES; ACCORDINGLY, ONLY THE LIMITATIONS SET FORTH ABOVE, WILL LAWFULLY APPLY TO YOU. SMS EXPRESSLY LIMITS ITS LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
NO THIRD PARTY BENEFICIARIES
These Terms do not create, except as otherwise expressly provided, any third-party beneficiaries.
You agree that SMS may notify you, including those regarding changes to the Terms, by email, regular mail or web postings on SMS Services.
Entire Agreement. The current version of these Terms (including any related policies, guidelines or amendments such as Program Policies and Legal Notices) constitute the entire agreement between you and SMS and govern your use of SMS Services and supersede any prior such agreements.
Choice of Law and Forum. The laws of the State of Oregon without regard to its conflict of law provisions shall govern the Terms and the relationship between you and SMS. You and SMS agree to submit to the personal and exclusive jurisdiction of the courts located within Lane County, Oregon.
Waiver and Severability of Terms. SMS’ failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If a court of competent jurisdiction finds that any provision of the Terms unenforceable or invalid, you agree that the court should endeavor to give effect to the parties’ intentions as reflected by the invalidated provision to the maximum extent possible, and that the other provisions of the Terms remain in full force and effect.