TERMS
AND CONDITIONS OF USE
REGARDING
NEXTPRODIGY
WEBSITE AND SERVICES
Description
of Service. NextProdigy, Inc. ("NextProdigy")
provides users with access to a collection of websites, resources, data,
software, messages, phone applications, and tools ("Service"),
including, without limitation, HomeProdigy.com,
MobileProdigy.com., 4HP.com, and TeleProdigy.com. The
Service that NextProdigy provides is subject to the following terms
and conditions of use ("T&C"), which NextProdigy may
modify by posting revised T&C on NextProdigy's website(s) from
time to time without providing notification. Unless otherwise
stated, any new features or enhancements to the current Service shall
be subject to this agreement ("Agreement") in addition to
any T&C applicable to a particular item of Service. You are
responsible for regularly reviewing the T&C and all applicable changes
thereto. Continued use of the Service after changes in the T&C
are made will constitute your acceptance of such changes.
Binding
Agreement. When you visit and use any site within NextProdigy's
family of websites or when you register for a new NextProdigy account,
you are agreeing to be bound by the T&C and representing that you
are of legal age to enter into a binding contract. If you do not
wish to be bound by this Agreement, please refrain from accessing or
using any NextProdigy Service or NextProdigy website and from registering
for any NextProdigy account.
DISCLAIMERS
OF WARRANTY
YOU
EXPRESSLY UNDERSTAND AND AGREE THAT:
NEXTPRODIGY
PROVIDES THE SERVICE ON AN "AS-IS" AND "AS-AVAILABLE" BASIS.
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. ANY SOFTWARE OR
OTHER MATERIAL THAT YOU DOWNLOAD OR OTHERWISE OBTAIN VIA THE SERVICE
IS AT YOUR SOLE RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES
TO YOUR COMPUTER SYSTEM OR FOR ANY LOSS OF DATA RESULTING FROM THE DOWNLOAD
OF SUCH MATERIAL.
THE
INFORMATION PROVIDED BY THE NEXTPRODIGY SERVICE IS DEEMED TO BE ACCURATE
BUT NEXTPRODIGY CANNOT GUARANTEE ITS ACCURACY. TO THE FULLEST
EXTENT PERMITTED BY LAW NEXTPRODIGY EXPRESSLY DISCLAIMS ALL WARRANTIES
OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY,
INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF PROPRIETARY
RIGHTS; WARRANTIES REGARDING THE ACCURACY, SUFFICIENCY, VERACITY, VALUE,
APPROPRIATENESS, CORRECTNESS, COMPLETENESS, LEGALITY, SECURITY, AVAILABILITY,
OPERABILITY, TIMELINESS, RELIABILITY, OR USEFULNESS OF INFORMATION,
DATA, SERVICES OR PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THE
NEXTPRODIGY SERVICE OR THE NEXTPRODIGY WEBSITE(S) OR THE NEXTPRODIGY
PHONE APPLICATIONS. NEXTPRODIGY DOES NOT INTEND THE INFORMATION
PROVIDED BY THE SERVICE TO BE A SUBSTITUTE FOR PROFESSIONAL ADVICE.
YOU ARE RESPONSIBLE FOR CONFIRMING THE ACCURACY AND RELIABILITY OF ANY
INFORMATION COMPRISING ALL OR A PART OF THE SERVICE.
LIMITATION
OF LIABILITY
YOU
EXPRESSLY UNDERSTAND AND AGREE THAT: NEXTPRODIGY AND NEXTPRODIGY'S
SUBSIDIARIES AND AFFILIATES AND ITS AND THEIR RESPECTIVE INVESTORS,
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, INFORMATION PROVIDERS,
LICENSORS AND OTHER REPRESENTATIVES, AND SUCH PARTIES' SUCCESSORS
AND ASSIGNS, SHALL NOT BE LIABLE TO YOU 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 TANGIBLE
AND/OR INTANGIBLE LOSSES (EVEN IF NEXTPRODIGY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES) RESULTING FROM THE USE OR THE INABILITY
TO USE THE SERVICE, WHETHER SUCH CLAIM IS BASED ON BREACH OF WARRANTY,
CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. NextProdigy
bears no responsibility for any damages arising from any failure of
performance, failure to store, omission, interruption, deletion, defect,
delay in operation or transmission, error in operation or transmission,
computer virus, telecommunications line failure, theft, destruction,
unauthorized access, alteration or use of records, breach of contract,
tortious behavior, negligence or any other cause of action.
E X C L U
S I O N S
SOME
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE
LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL
DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS AND DISCLAIMERS
MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF
NEXTPRODIGY AND NEXTPRODIGY'S SUBSIDIARIES AND AFFILIATES AND ITS
AND THEIR RESPECTIVE INVESTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS,
CONTRACTORS, INFORMATION PROVIDERS, LICENSORS AND OTHER REPRESENTATIVES,
AND SUCH PARTIES' SUCCESSORS AND ASSIGNS, IS LIMITED TO THE GREATEST
EXTENT PERMITTED BY LAW.
Privacy
Policy. NextProdigy understands that privacy is important
to you. Any information that NextProdigy collects about you is
used or shared according to NextProdigy's Privacy Policy, which is
incorporated into the T&C. A copy of NextProdigy's Privacy
Policy can be found at http://www.homeprodigy.com/index.php?main_page=privacy
Disclosure.
You agree that NextProdigy may disclose, monitor, edit, access and preserve
your personal information and content if NextProdigy reasonably believes
that NextProdigy must do so in order to comply with any applicable law,
valid legal process or governmental request, in order to enforce the
T&C and NextProdigy's Privacy Policy, or in order to protect the
rights of NextProdigy employees, users or third parties. The personal
information collected by NextProdigy may be stored and processed in
the United States or any other country in which NextProdigy or NextProdigy's
contractors/agents maintain facilities. By using the Service,
you consent to any such transfer of information outside of the country
in which you reside.
Third-Party
Content. As consideration for using the Service, you understand
that NextProdigy may display advertisements and provide links to third-party
content and websites over which NextProdigy has no control. NextProdigy
takes no responsibility for any content, advertising or products from
third party service providers, including, without limitation, any content
considered harmful, objectionable, inappropriate or offensive, and does
not endorse or guarantee the availability of such third party services.
You agree that NextProdigy shall not be liable for damage of any sort
incurred as the result of your dealings with advertisers or your use
of any third-party goods or services.
Your
Conduct. When using the NextProdigy Service, you agree:
(i) to maintain and update your account information to keep it complete
and accurate; (ii) to maintain the confidentiality of your account password
and notify NextProdigy of any unauthorized use of your password or account
and of any other security breach; (iii) to use the Service for your sole,
personal, private and noncommercial use only; (iv) NOT to impersonate
another person or entity, falsely state or otherwise misrepresent your
affiliation with any party; and (v) NOT to upload, post, e-mail, transmit
or otherwise make available ("Make Available") any content:
(a) that you are not permitted to Make Available under any law, contractual
duty or fiduciary relationship; (b) that infringes any patent, trademark,
trade secret, copyright or other proprietary rights; or (c) that is unlawful,
fraudulent, defamatory, harassing, offensive, indecent or inappropriate
as reasonably determined by NextProdigy.
Payment
for Services Requested.
In the event you should request services that require payment, you agree
to pay for those services in the manner specified from time to time.
Termination.
NextProdigy reserves the right to restrict, disable, suspend or terminate
your account and refuse any and all current or future use of the Service
without prior notice and for any reason. NextProdigy also reserves
the right, but bears no obligation, to monitor, screen and remove any
content available via the Service.
Minimum
Age Limit. You must be eighteen (18) years of age or older
to use the Service, and you must have all necessary right, power and
authority to enter into the T&C and to perform the acts required
hereunder.
REAL
ESTATE SERVICES
Real
Estate Clients. You represent that you have not entered
into any agreement which conflicts with
the T&C, such as a listing agreement or buyer broker agreement,
with a real estate agent or agency other than: (i) a NextProdigy
employee, agent or contractor; or (ii) with another broker or agent
who is a customer in good standing with NextProdigy, and who
has authorized your access to the customer level of the Service through
their separate client agreement with you.
To determine if your broker or agent (other than NextProdigy) is an
existing customer of NextProdigy, you will be asked identify your agent
during the account creation process and the agent will be contacted
for verification.
Should you cease to have a listing agreement or buyer broker agreement
with the other broker or agent, your account shall automatically revert
to a NextProdigy customer account, on the conditions described in the
two paragraphs immediately below entitled
Real Estate Data and
MLS Rules, until such time that your account is terminated.
If you are
currently a party to a listing agreement or buyer broker agreement with
another broker or agent who is NOT a customer in good standing with
NextProdigy, your account will be LIMITED TO A PUBLIC level of the Service
(including, but not limited to, viewing only active listings), unless
the other agent authorizes NextProdigy to make available to you the
customer level of the Service. You will be provided an opportunity
in the account creation process to request this authorization from your
agent. If your agent approves authorization, your account will
change to the customer level of the Service (including, but not limited
to, viewing information on sold properties). If your agent does
not approve authorization, your account will remain at the public level
of the Service until the end of the term of your agreement with your
other agent.
Real
Estate Data. As a NextProdigy customer, you may not
copy or distribute any home data for any purpose other than the evaluation
of properties for sale or purchase. You agree that all data obtained
from the Service is intended only for your personal, noncommercial use.
You represent that you have a bona fide interest in the purchase, sale
or lease of real estate of the type being offered through the Service.
You will not copy, redistribute or retransmit any of the
Multiple Listing Service ("MLS") Data or other information provided
through the Service. You acknowledge
the
ownership of, and the validity of the copyright in and to the MLS Data provided by each
MLS provider to the Service, as identified in the Service.
MLS
Rules.As a NextProdigy customer, you acknowledge that MLS rules permit us to provide
full customer access to MLS data only to people who are
ready, willing and able potential buyers
and/or sellers of the types of property presented by the Service, and
who seek the assistance of NextProdigy in making their real estate marketing
decision. By creating an account to use the Service you are requesting,
and agreeing to accept, the assistance of NextProdigy, in its capacity
as licensed real estate agent for this limited purpose, subject to all
of the T&C. NextProdigy is allowing you to access the
customer level of the Service for the express purpose of facilitating
your decision–making process in the consideration of a purchase or
sale of the property presented by the Service. This is not
a binding exclusive relationship on either you or NextProdigy.
Real
Estate Broker/Agent. If you are a real estate broker/agent,
licensed and in good standing with the State of Texas, and are currently
authorized to access the MLS service in one or more MLS service areas
covered by the Service, you may create an account with NextProdigy to
use the agent level of the Service for yourself and your employees who
are also authorized to access the MLS, but only in those MLS service
areas in which you are a member in good standing. You may also authorize,
on an individual basis, use of the customer level of the Service for
your clients, provided you agree that you
will not authorize access to the customer level of the Service for anyone
except clients with whom you have an existing exclusive listing or buyer's
representation agreement for a property in a MLS service area in
which you are a member. You acknowledge that it may be necessary
for the agents, contractors, or employees of NextProdigy to contact
your clients, regarding their use of the Service, and authorize such
contact as may be required.
Financial
and Mortgage Tools. The financial calculations are not
an offer to lend. Interest rates are for demonstration purposes
only, and actual market interest rates may vary.
Other
Parties. You agree to refrain from contacting the owner
or seller of any property using information obtained through the Service.
Furthermore, you agree that NextProdigy's employees, agents or contractors
may represent other prospective buyers or sellers of the same properties
that meet your criteria.
NEXTPRODIGY
PHONE APPLICATIONS
All programs, services, processes,
designs, software, technologies, trademarks, trade names, inventions
and materials comprising the NextProdigy phone application portions
of the Service ("MobileProdigy") are wholly owned by NextProdigy
and/or its licensors and service providers except where expressly stated
otherwise.
You understand and agree that you are not the owner of any Toll-Free
telephone number or Local telephone number (Number) used to provide
the MobileProdigy service or any of the websites affiliated with MobileProdigy.
Ownership of any such Number is vested solely in NextProdigy which will
assign such Numbers to you for your use during the term of this agreement.
You understand and agree that following the termination of your MobileProdigy
account for any reason, such Number may be re-assigned immediately to
another customer, and you agree that NextProdigy will not be liable
for damages including consequential or special damages arising out of
any such re-assignment, and you hereby waive any claims with respect
to any such re-assignment, whether based on contractual, tort or other
grounds, even if NextProdigy has been advised of the possibility of
damages.
You agree that NextProdigy will not be liable for damages (including
consequential or special damages) arising out of any change in the Number
assigned to you, and you hereby waive any claims with respect to any
such change, whether based on contractual, tort or other grounds, even
if NextProdigy has been advised of the possibility of damages.
If prior to the expiration or termination of your MobileProdigy account,
you request, in writing, the transfer of Ownership of the Number from
MobileProdigy to you, MobileProdigy agrees to cooperate in the Number's
release to the Local or Long Distance Carrier of your choice (Carrier)
provided all of the following four conditions are met:
Condition 1: You agree to assume any and all financial responsibility
for any and all one-time and recurring charges, tariffs, and taxes associated
with the Number beginning on the effective date of the transfer.
Condition 2: You are current in payment to NextProdigy and you have
no outstanding or past-due balances.
Condition 3: You provide to NextProdigy at your expense all necessary
transfer forms as required by your Carrier.
Condition 4: You have subscribed to an MobileProdigy Service associated
with the Number for a minimum period of six (6) months.
INTELLECTUAL
PROPERTY RIGHTS
You
acknowledge that NextProdigy owns all right, title and interest in the
Service, including, without limitation, all intellectual property rights
therein and thereto, which intellectual property rights are protected
by US and international law. You agree that you will not copy,
reproduce, alter, modify, retransmit, redistribute, decompile, disassemble,
reverse engineer or create derivative works
of the Service,
the Service software or, except as expressly authorized herein, the
information accessible through the Service. You also agree not
to use any automated or manual process, robot, spider or screen-scraper
to copy or monitor any part of the Service.
Copyright.
All content and compilations included as part of the Service, such as
text, graphics, logos, buttons, images, audio, video, charts, graphs,
data compilations and software are the property of NextProdigy or NextProdigy's
content suppliers and are protected by US and international law.
Trademark.
The name NextProdigy, HomeProdigy, MobileProdigy, and TeleProdigy jvand
the NextProdigy logo
are trademarks of NextProdigy. Other graphics, logos, buttons
or marks used in connection with the Service,
are trademarks or trade dress of NextProdigy or, in the case of third
party trademarks,
the property of their respective owners.
Except as expressly provided for in this Agreement, no rights or implied
licenses are granted to you in the copyrights, trademarks, logos, service
marks or other intellectual property of NextProdigy or third parties
by virtue of this Agreement or use of the Services.
Your
Rights. NextProdigy does not claim ownership in any third-party
content made available as part of the Service, including any text, data,
information, images, photographs, music, sound, video or other material
made available as part of the Service. If you, however, submit
material to NextProdigy, you grant NextProdigy and NextProdigy's subsidiaries
and affiliates a nonexclusive, royalty-free, perpetual, irrevocable and
fully sublicensable right to use, reproduce, alter, modify, adapt, publish,
translate, distribute, display, create derivative works from or otherwise
make available such content and its derivatives throughout the world
in any media.
Notification
of Claims of Copyright Infringement: NextProdigy respects
the intellectual property rights of others, and we ask you to do the
same. NextProdigy may, in appropriate circumstances and at our
discretion, terminate Service and/or access to the Website for users
who infringe the intellectual property rights of others. If you
believe that your work is the subject of copyright infringement and/or
trademark infringement and appears on the NextProdigy Website, please
provide NextProdigy's designated agent the following information:
- A physical or electronic
signature of a person authorized to act on behalf of the owner of an
exclusive right that is allegedly infringed.
- Identification of
the copyrighted and/or trademarked work claimed to have been infringed,
or, if multiple works at a single online site are covered by a single
notification, a representative list of such works at that site.
- Identification of
the material that is claimed to be infringing or to be the subject of
infringing activity and that is to be removed or access to which is
to be disabled at the Website, and information reasonably sufficient
to permit NextProdigy to locate the material.
- Information reasonably
sufficient to permit NextProdigy to contact you as the complaining party,
such as an address, telephone number, and, if available, an electronic
mail address at which you may be contacted.
- A statement that
you have a good faith belief that use of the material in the manner
complained of is not authorized by the copyright and/or trademark owner,
its agent, or the law.
- A statement that
the information in the notification is accurate, and under penalty of
perjury, that you are authorized to act on behalf of the owner of an
exclusive right that is allegedly infringed.
NextProdigy's
agent for notice of claims of copyright or trademark infringement on
this Website can be reached as follows:
By mail: 14902
Preston Rd.
By phone: (972)
934-3022
Please also
note that for copyright infringements under Section 512(f) of the Copyright
Act, any person who knowingly materially misrepresents that material
or activity is infringing may be subject to liability.
Indemnification.
You agree to defend, indemnify and hold harmless NextProdigy and NextProdigy's
subsidiaries and affiliates and its and their respective investors,
directors, officers, employees, agents, contractors, information providers,
licensors and other representatives and such parties' successors and
assigns, from any and all claims, losses, liabilities, damages costs
(including attorneys fees), penalties and demands arising from or in
any way related to your use of the Service, the content you submit or
NextProdigy's use thereof, or from your failure to abide you the terms
of this Agreement. NextProdigy reserves the right, at NextProdigy's
own expense, to assume the exclusive defense and control of any matter
which is covered by the foregoing indemnity, and you agree to cooperate
with NextProdigy's defense of the applicable claims.
GENERAL
TERMS
Entire
Agreement. The T&C constitutes the entire agreement between
you and NextProdigy and governs your use of the Service, superseding
any and all prior agreements. An electronic version of this Agreement
shall be admissible in judicial or administrative proceedings to the
same extent and subject to the same conditions as other business documents
generated in printed form.
Applicable
Law. The T&C shall be governed by the laws of the
State of Texas without regard to conflict of law provisions. You
and NextProdigy consent to submit to the personal and exclusive jurisdiction
of the courts located within Dallas County, Texas.
Waiver.
The failure of NextProdigy to exercise or enforce any term or condition
of the T&C shall not constitute a waiver of such terms or condition.
Severability.
If any term or condition of the T&C shall be or become illegal,
null or void for any reason or shall be held by any court of competent
jurisdiction to be unenforceable or illegal, null or void, the remaining
terms and conditions of the T&C shall continue in full force and
effect and shall not be affected thereby. It is hereby declared
that such remaining terms and conditions of the T&C would have been
and are imposed irrespective of the fact that any one or more of the
other terms and conditions of the T&C have been held unenforceable
or have become or have been held to be illegal, null or void.
Furthermore, in lieu of the unenforceable or the illegal, null or void
term or condition, there automatically shall be added to the T&C
a term or condition as similar as legally possible to the term or condition
held to be unenforceable or illegal, null or void.
Statute
of Limitations. You agree that any claim or cause of action
arising out of or related to use of the Service or the T&C must
be filed within one (1) year after such claim or cause of action arose
or be forever barred. The agreement contained in the preceding
sentence is intended to control, regardless of any statute or law to
the contrary.
Relationship.
You agree that no joint venture, partnership, employment, agency or
fiduciary relationship exists between you and NextProdigy as a result
of this Agreement. You also agree that there are no survivorship
rights or third party beneficiary rights pertaining to this Agreement,
the Service or the T&C.
Force
Majeure. Under no circumstances shall NextProdigy be held
liable for any delay or failure in performance resulting directly or
indirectly from acts of nature, forces or causes beyond NextProdigy's
reasonable control, including, without limitation, fires, floods, storms,
explosions and acts of God.
