Please
read this page carefully, as it contains the terms of a legal agreement
between you and FSBO, Inc. that govern your access TO, use of, and
purchase of services AND/OR GOODS made available on FSBO.COM. By
accessing, USING, purchasing services OR GOODS MADE AVAILABLE ON,
and/or otherwise utilizing fsbo.com you acknowledge that you have read,
understood and agreed to be bound by the terms of this Agreement and to
comply with all applicable laws and regulations. If you do not agree
to all of these terms, you may not access, USE, purchase services
AND/OR GOODS made available on and/or otherwise utilize fsbo.com.
If you have any questions relating to FSBO.com or
this Agreement, please call the FSBO.com Helpline at 1-800-690-5802
Monday – Friday 8am-6pm EST or send us an email at email@fsbo.com. This Agreement was last revised on January 5, 2007.
1. FSBO, INC. AND FSBO.COM
The website FSBO.com is owned and operated by FSBO,
Inc. (“Company”). The Company is primarily an Internet advertising
service for real estate offered "for sale by owner". The Company is
not a licensed real estate broker. The Company is not a member of any
multiple listing service (MLS), and does not list real estate on any
MLS. FSBO.com makes the following available to buyers and sellers of
residential real estate and related service providers: (a) for-sale,
bankruptcy, and rental property listings; (b) advertising of for-sale
property listings and related service providers; (c) banner
advertisements; (d) seller’s option to forward information to a
flat-fee real estate broker; (e) ‘for sale by owner’ products; (f)
participation in Affiliate Program; (g) information pertaining to
related service providers (including but not limited to legal,
mortgages, valuations, moving, and ‘Contract to Closing’); (h) sample
contracts, hyperlinks to industry websites, general advice for buyers
and sellers, industry news, answers to frequently-asked questions; and
(i) any other services or products made available on FSBO.com.
References in this Agreement to the “Site” shall mean FSBO.com,
including but not limited to all webpages appearing on the fsbo.com
internet domain, and all services and products made available on
fsbo.com, including but not limited to the services and products
identified in this Section 1. References in this Agreement to
“FSBO.com” shall mean any and all webpages or other content or
information appearing on the fsbo.com internet domain or computer
servers owned or utilized by the Company.
2. DISPUTE RESOLUTION
This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia, notwithstanding the
conflict of laws provisions of any state. You irrevocably and
unconditionally (i) consent to submit to the exclusive jurisdiction of
the state and federal courts in the County of Fulton, Georgia (the
“Georgia Courts”) for any litigation or dispute arising out of or
relating to this Agreement or your performance or nonperformance
hereunder (including but not limited to collection matters), (ii) agree
not to commence any litigation arising out of or relating to this
Agreement or the Company’s performance or nonperformance hereunder
except in the Georgia Courts, (iii) agree not to plead or claim that
such litigation brought therein has been brought in an inconvenient
forum, and (iv) agree the Georgia Courts represent the exclusive
jurisdiction for all disputes arising out of or relating to this
Agreement, or either parties’ performance or nonperformance
thereunder. Disputes arising out of or relating to this Agreement
shall include but not be limited to disputes arising out of or relating
to your access to, use of and/or purchase of services or goods made
available on FSBO.com. You agree that regardless of any statute or law
to the contrary, any claim or cause of action by you arising out of or
related to your use of the Site, the Agreement, or the Company’s
performance or nonperformance under the Agreement, must be filed within
one (1) year after such claim or cause of action arose, or it shall be
forever barred.
3. ACCESS AND USE
a. Access. You shall be solely
responsible for hardware, interconnections and telecommunications to
access the Site. You agree that you will not use any robot, spider,
other automatic device, or manual process to extract, “screen scrape,”
monitor, “mine,” or copy any static or dynamic web page on the FSBO.com
website or the content contained on any such web page for commercial
use without the Company’s prior express written permission. You will
not spam or send unsolicited e-mail or other messages to any other user
of the Site for any reason, by means of FSBO.com or otherwise. You
agree that you will not use any device, software or routine to
interfere or attempt to interfere with the proper working of the Site.
You agree that you will not take any action that imposes an
unreasonable or disproportionately large load on FSBO.com, the
Company’s computer system, or other infrastructure. You agree not to
modify, translate, reverse engineer, decompile, disassemble or create
derivative works based upon, the Site or any software or programming
related thereto. Any access or attempt to access any areas of the
Company’s computer system, or information contained on the system,
except for FSBO.com and information contained thereof, for any
purposes, is strictly prohibited.
b. Use. The Site is for the
exclusive use of buyers and sellers of real estate and related service
providers. Subject to the terms contained herein, Company hereby
grants to you a non-exclusive, non-transferable, non-sublicenseable,
world-wide license to use the Site, which shall include the right to
search, display and print the property listings appearing on FSBO.com
for personal, noncommercial use only, provided you do not modify the
materials and that you retain all copyright and other proprietary
notices contained in the materials. Company reserves any rights not
expressly granted herein. You may not search, display, print,
distribute, copy, reproduce, publish, download, or transmit any
material on the Site for commercial use without prior written approval
of Company. You may not “mirror” or “frame” any material contained on
this Site on any other server or website, regardless of means, without
prior written permission from Company. The Company reserves the right
to monitor your access and use of the Site and your compliance with the
terms hereof without notice to you.
c. Use Restrictions. You agree
not to post, transmit, e-mail, re-transmit or store material on,
through or from the Site which, in the sole judgment of the Company:
(1) is in violation of any local, state, federal or non-United States
law or regulation, (2) is threatening, obscene, indecent, defamatory or
that otherwise could adversely affect any individual, group or entity
or (3) violates the rights of any individual, group or entity,
including rights protected by copyright, trade secret, patent or other
intellectual property or similar laws or regulations including, but not
limited to, the installation or distribution of "pirated" or other
materials that are not appropriately licensed for use by you. You
shall be responsible for determining what laws or regulations are
applicable to your use of the Site. You may only use the Site in a
manner that, in the Company's sole judgment, is consistent with the
purposes of the Site. If you are unsure of whether any contemplated
use or action is permitted, please contact the Company immediately at email@fsbo.com
for clarification. By way of example, and not limitation, the
following uses described below of the Site are expressly prohibited:
i. upload, post, e-mail or
otherwise transmit any information, data, text, software, music, sound,
photographs, graphics, video, messages or other materials that is
unlawful, harmful, threatening, abusive, harassing, tortious,
defamatory, vulgar, obscene, libelous, invasive of another's privacy,
hateful, or racially, ethnically or otherwise objectionable, or that
could give rise to any civil or criminal liability under both domestic
and international law. Pornography and pornographic related
merchandising are prohibited, including providing links to pornographic
content elsewhere;
ii. threaten to harm, attempt to harm or actually harm minors in any way;
iii. impersonate any person or
entity, including, but not limited to, a Company employee or agent, or
falsely state or otherwise misrepresent your affiliation with a person
or entity, or misrepresent yourself as actual buyers or sellers of real
estate;
iv. forge headers or otherwise
manipulate identifiers in order to disguise the origin of any content
transmitted through the Site or develop restricted or password-only
access pages, or hidden pages or images (those not linked to from
another accessible page);
v. upload, post, e-mail or
otherwise transmit any content that you do not have a right to transmit
under any law or under contractual or fiduciary relationships (such as
inside information, proprietary and confidential information learned or
disclosed as part of employment relationships or under nondisclosure
agreements);
vi. upload, post, e-mail or
otherwise transmit any content that infringes any patent, trademark,
trade secret, copyright or other proprietary rights of any party;
vii. upload, post, e-mail or
otherwise transmit any unsolicited or unauthorized advertising,
promotional materials, "junk mail," "spam," "chain letters," "pyramid
schemes," or any other form of solicitation, or solicit any person or
company using any telephone number, email address or other contact
information found on the Site for any reason other than the purchase of
real estate or related services advertised for sale on the Site;
viii. upload, post, e-mail or
otherwise transmit any material that contains software viruses or any
other computer code, files or programs designed to interrupt, destroy
or limit the functionality of any computer software or hardware or
telecommunications equipment;
ix. interfere with or disrupt the
Site or servers or networks connected to the Site, or disobey any
requirements, procedures, policies or regulations of networks connected
to the Site;
x. intentionally or
unintentionally violate any applicable local, state, national or
international law, including, but not limited to, regulations
promulgated by the Federal Communications Commission, U.S. Department
of Housing, the U.S. Securities and Exchange Commission, any rules of
any national or other securities exchange, including, without
limitation, the New York Stock Exchange, the American Stock Exchange or
the NASDAQ, and any regulations having the force of law;
xi. “stalk" or otherwise harass another;
xii. promote or provide
instructional information about illegal activities, promote physical
harm or injury against any group or individual, or promote any act of
cruelty to animals. This may include, but is not limited to, providing
instructions on how to assemble weapons or creating "Crush" sites;
xiii. effecting security breaches
or disruptions of Internet communication. Security breaches include,
but are not limited to, accessing data of which you are not an intended
recipient or logging into a server or account that you are not
expressly authorized to access;
xix. rent, lease, transfer, resell and/or otherwise transfer rights to the Site; and
xx. delete or write over any portion of any listing or software appearing on or relating in any manner to the Site.
d. Hyperlinks. You are granted a limited,
nonexclusive right to create a “hypertext” link to FSBO.com provided
that such link does not portray the Company or the Site in a false,
misleading, derogatory, or otherwise defamatory manner. This limited
right may be revoked at any time for any reason whatsoever. You may
not use framing techniques to display any content, information, layout,
design, copyrighted works, trademark, logo or trade name appearing on
FSBO.com. Links on the Site to third party websites are provided
solely as a convenience to you. If you use these links, you will leave
the Site. Company has not reviewed all of these third party websites
and does not control and is not responsible for any of these sites,
their content or their policies, including, without limitation, privacy
policies or lack thereof. Except as expressly set forth on the Site,
Company does not endorse or make any representations about third party
websites or any information, software or other products or materials
found there, or any results that may be obtained from using them. If
you decide to access any of the third party websites linked to by this
Site, you do so entirely at your own risk.
4. PROPRIETARY CONTENT
a. General. The Company’s Internet
operations, design, hardware designs, algorithms, software (in source
and object forms), user interface designs, other templates and designs,
algorithms, architecture, class libraries, and documentation (both
printed and electronic), know-how, good will, moral rights, trade
secrets and any related intellectual property rights throughout the
world, and any derivative works, improvements, modifications,
enhancements or extensions thereof, shall remain the sole and exclusive
property of Company, and you shall have and acquire no interest in them
whatsoever.
b. Copyright and Trademark. All
information, content and materials that appear on FSBO.com, including,
without limitation, text, photographs, images, pictures, graphics and
other files, and the selection and arrangement thereof, but excluding
information, content and materials that are submitted to the Site by
users thereof, are copyrighted materials of the Company (the
“Copyrighted Works”). The trademarks, service marks, trade names,
trade dress and logos used and displayed on this Site (including all
page headers, custom graphics, button icons, and scripts), but
excluding marks, names and logos submitted to the Site by users
thereof, are registered and unregistered trademarks, service marks,
trade names, trade dress and logos of the Company (the “Trademarks”).
You acknowledge that the Copyrighted Works and Trademarks used and
displayed on this Site are and shall remain the sole property of the
Company. Nothing in this Agreement shall confer any right of ownership
of any of the Copyrighted Works or Trademarks in you. Further, nothing
in this Agreement shall be construed as granting, by implication,
estoppel or otherwise any license or right to use any of the
Copyrighted Works or Trademarks used or displayed on the Site, without
the express written permission of the Company. Neither the Copyrighted
Works nor the Trademarks may be copied, imitated or used, in whole or
in part, without the prior written permission of Company.
c. Company as Intermediary. The
Company does not create, make, author, write, print or otherwise
produce any of the for-sale, bankruptcy or rental property listings
that appear on FSBO.com, including but not limited to the text,
photographs, images and links to third party websites contained
therein. All such property listings are produced and submitted to
FSBO.com by others.
5. DISCLAIMER OF WARRANTIES
The Site, including all content, services, goods,
software, functions, materials, and information found or available
thereon, is provided “as is” and “as available” without warranties of
any kind, either express or implied. The Company disclaims all
warranties, express or implied, of any kind, including, but not limited
to, warranties of quiet enjoyment and non-infringement and implied
warranties of merchantability, fitness for a particular purpose,
non-infringement, title, quiet enjoyment, merchantability of computer
programs, data accuracy, system integration, informational content, and
others expressly disclaimed below in this Section 5. Company does not
warrant or make any representations regarding the operation of the
Site, the use, validity, applicability, propriety, accuracy or
reliability of, or the results of the use of the Site or any other
sites linked to from this Site. The Site materials may be out of date,
and Company makes no commitment to update the Site materials or
otherwise monitor same. Company does not and cannot guarantee or
warrant that the files available for downloading from the Site, if any,
will be free from infection, viruses, worms, Trojan horses, or other
code that manifest contaminating or destructive properties. Company
does not warrant that the Site, including any software, materials,
products, or services, will be uninterrupted or error-free or that any
defects in the Site, including any software, materials, products, or
services will be corrected. Company assumes no responsibility for the
alteration, deletion, mis-delivery or failure to deliver or store any
of your communications, data, or personalization settings, including
but not limited to messages sent or received by means of the Site.
Company makes no warranty that the Site will meet your requirements,
that the Site will be secure or error or virus free, or that defects in
the software driving the Site will be corrected. You understand and
agree that any material and/or data downloaded or otherwise obtained
through the use of the Site is done at your own discretion and risk and
that you will be solely responsible for any damage to a computer system
or loss of data that results from the download of such material and/or
data. No advice or information, whether oral or written, obtained by
you through the Site shall create any warranty not expressly made
herein. Company makes no warranties regarding the number or types of
properties available for sale on the Site, or whether any property
listed on the Site for sale or rental will ever be purchased or
rented. Company makes no warranties regarding any of the terms a buyer
or seller may or will obtain with respect to any property listed on the
Site, the number of ‘hits’ or pageviews of any property listed on the
Site, or the scope of dissemination of any property listed on the
Site. Company makes no warranties whatsoever regarding the ownership,
authority to sell or rent, or condition of any property listed on the
Site, or the sincerity or ability to pay of any potential buyer or
tenant. The Company makes no warranties regarding the quality or
quantity of telephone calls, email or other inquiries received by users
that advertise on the Site. Company makes no warranties regarding the
appearance, alteration or removal of a property listing on third-party
websites or the like. The Company makes no warranties that a property
listing will appear anywhere in particular online or offline, or for
any period of time, except as expressly set forth on the Site. The
Company makes no warranties regarding the quality or quantity of
properties listed on the Site for sale or rent. The Company makes no
warranties regarding the quality of the service providers that
advertise on the Site or regarding the services or goods provided by
same. The Company makes no warranties regarding the ability of a Site
user to access or use the Site, or purchase services or goods made
available on the Site, at any particular time or times or from any
particular geographic location, area, state or region.
6. LIMITATION OF COMPANY’S LIABILITY
In no event will Company, its parents, subsidiaries,
shareholders, directors, affiliates, officers, employees, or agents be
liable for any damages, losses, or liability, including, without
limitation, (i) direct, indirect, special, incidental, or consequential
damages, (ii) damages, losses or liability resulting from failure to
sell, purchase or rent real property on certain terms or otherwise,
(iii) damages, losses or liability resulting from lost profits, lost
data (or other intangibles), or business interruption, either arising
out of or relating to the use of the Site (including the use of the
services of any third parties that FSBO.com links to) and any
information contained thereon, or the inability to use the Site, or
(iv) resulting from your failure to comply with this Agreement, whether
based on warranty, contracts, statutes, regulations, tort (including
but not limited to, negligence) or any other legal theory and whether
or not advised of the possibility of such damages. If your use of the
materials or information from this Site results in the need for
servicing, repair or correction of equipment or data, you are
responsible for all costs thereof. Your sole and exclusive remedy
under this Agreement is to discontinue use of the Site. Some states do
not allow the exclusion or limitation of incidental or consequential
damages, so the above limitation or exclusion may not apply to you.
7. Indemnification
You agree to immediately notify Company of and
defend, indemnify and hold the Company and its shareholders,
subsidiaries, affiliates, directors, officers, employees and agents
harmless from, any claim, loss, or demand (including reasonable
attorneys’ fees and costs) made by any third party arising out of or a
result of (i) your use of the Site (including the unauthorized use of
your account or any other breach of security known to you); (ii) the
violation of any term of this Agreement by you; (iii) the direct or
contributory infringement by you, or another user using your account,
of any intellectual property any person or entity; or (iv) any
information you obtained from the Site.
8. User submitted Information
You are solely responsible for the contents of your
submissions or messages intended for the Company or third parties, made
to or sent from FSBO.com or otherwise, and same shall be treated as
non-confidential and non-proprietary unless expressly stated
otherwise. You grant to the Company a worldwide, perpetual,
irrevocable, royalty-free, sublicenseable right, in any media now know
or currently known, to exercise all copyright and other intellectual
property rights with respect to such submissions or messages. You
agree that any such submissions or messages, including but not limited
to property listings, or any derivative works thereof, may be
disseminated, distributed, publicly displayed on third party websites,
reproduced, used, sublicensed, posted, or published by the Company, and
searched, displayed, printed or otherwise used or exploited by
Company’s customers, in accordance with the Privacy Policy posted on
FSBO.com. You agree to provide true, accurate, current and complete
information and to maintain and promptly update such information to
keep it true, accurate, current and complete. You warrant that you own
and are authorized to offer for sale and to sell any property you
submit to the Site for listing. You represent and warrant to the
Company that any information, photographs, images, graphics, video
records or the like, virtual tours, drawings, written descriptions,
remarks, narratives, pricing information and other copyrightable
elements relating to your property listing do not violate or infringe
upon the rights, including any copyright rights, of any person or
entity.
9. User Password/Security
You will receive a password during the registration
process which is for your use only. You are fully responsible for
maintaining the confidentiality of your password and all actions taken
on the Site after access is obtained by means of your password. You
agree to immediately notify Company by e-mail at email@fsbo.com of any unauthorized use of your password or account or any other breach of security relating to the Site.
10. FEES, REFUNDS AND CANCELLATION
All charges shall be at the then-advertised price
for the service(s) selected, and must be paid by direct charge to a
credit card. You hereby authorize Company to charge such credit card
to pay for any charges that you may incur in the future as they
accrue. You must notify Company of any changes to your credit card
account (including, without limitation, applicable account number or
cancellation or expiration of the account), your billing address, or
any information relating to the Company’s ability to charge your
account. Once your property listing is posted on FSBO.com, you agree
that all sales are final, and there are no credits or refunds
whatsoever. You may alter or remove your property listing from
FSBO.com by clicking on ‘Modify Your Listing’ and logging in. Failure
to make any payment as set forth herein shall be deemed to be a
material breach of this Agreement and shall be sufficient cause for the
immediate termination of this Agreement by Company. In the event of
collection enforcement, you will be liable for any costs associated
with such collection, including, without limitation, reasonable
attorneys' fees, court costs and collection agency fees. All charges
shall be exclusive of any applicable taxes. You are responsible for the
payment of all federal, state, and local sales, use, value added,
excise, duty and any other taxes assessments, other than taxes based on
Company's net income
11. NO BROKERAGE SERVICES
You understand and agree that except as expressly
provided for otherwise by the Site, the Company does not offer or
provide any advice or assistance in connection with the sale, purchase
or leasing of real estate, including but not limited to real estate
brokerage services. You understand and agree that all real estate
brokerage commissions are negotiable and that the Company does not set
commission rates or provide any advice relating to commissions.
12. Property listings displayed on the Site’s homepage
The Company attempts to display the nine most
recently submitted for-sale property listings (along with a single
photograph of each property if one is provided by Seller), on the
FSBO.com home page. These property listings must be submitted by means
of the FSBO.com website, be paid for in full, and must not contain any
objectionable content. These listings will automatically be rotated
off of the FSBO.com homepage in real time (and will not reappear on the
FSBO.com homepage) as new for-sale property listings are submitted to
the Site. Placement of your property listing on the FSBO.com homepage,
or placement for any period of time or in any particular manner, is
neither guaranteed nor available for purchase.
13. FLAT FEE MLS SERVICE
Upon your selection of the Flat Fee MLS package, the
Company transmits the information submitted by you to MLSmart Realty,
LLC (operator of www.MLSmart.com),
a licensed real estate broker in some, but not all, states. Thereafter
the Company has no involvement whatsoever in connection with your
property listing or any multiple listing service. You will be charged
by MLSmart Realty, LLC and you will not be charged by the Company. In
addition to the flat fee quoted on FSBO.com, you will likely be
responsible to pay a real estate commission in the event your buyer is
represented by a broker. There are no refunds for this service.
Before entering into a written listing agreement with a licensed real
estate broker, you should inquire about the multiple listing service(s)
encompassing your property, what, if any, websites your listing will
appear on (e.g., realtor.com), and whether there are any additional
fees charged (e.g. for alterations to the listing). Listing in an MLS
is not a guarantee that your property will be purchased - it is only an
advertisement that your property is for sale and typically lasts for
six months. Once listed on an MLS, your property is no longer
considered "For Sale By Owner" and we are unable to offer refunds as
the service paid for has been provided.
14. Termination
This Agreement may be terminated by any party
immediately for any reason or no reason, including but not limited to
your breach of this Agreement. Upon any termination of this Agreement,
(i) your license and authorization to use the Site shall terminate
immediately without notice; (ii) you must immediately discontinue use
of the Site, including any hyperlinks to the Site; (iii) you must
immediately destroy any downloaded or printed materials; and (iv) the
Company will remove from the Site any listings or other materials you
may have previously submitted. Sections 2, 4, 5, 6, 7, 10, 14, 16 and
17 of this Agreement shall survive any termination of this Agreement.
15. ALTERATIONS TO AGREEMENT/SITE
Company may alter or amend this Agreement at any
time without notice by revising this page. By accessing, using or
purchasing services or goods made available at FSBO.com, you agree to
be bound by any such revisions and should therefore periodically visit
this page to determine the then current terms and conditions to which
you are bound. Company may alter or amend the content of FSBO.com,
including the services and goods made available at FSBO.com, at any
time and without notice. For example, the Company may, in its sole
discretion and at any time, discontinue the Site, or any component
thereof.
16. Notices
Notices given by Company to you will be sent to the
e-mail address or conventional mailing address you provide to Company
as part of the registration process, or to updated addresses which you
provide to Company via notice consistent with this Section 16. Notices
given by you to Company must be given by e-mail to email@fsbo.com.
Notwithstanding anything herein to the contrary, it is your sole
responsibility to update your e-mail and mailing address for notices
hereunder, and notice sent to the e-mail or conventional mailing
address last provided by you to Company shall be valid and binding on
you regardless of whether such address has been changed, canceled, has
expired, has been terminated, or otherwise becomes inoperative.
17. MISCELLANEOUS
This Agreement shall be deemed to express, embody
and supersede all previous understandings, agreements and commitments,
whether written or oral, between you and the Company with regard to the
subject matter hereof. If any provision(s) of this Agreement is held
by a court of competent jurisdiction to be contrary to law, then such
provision(s) shall be construed, as nearly as possible, to reflect the
intentions of the parties with the other provisions remaining in full
force and effect. Company’s failure to exercise or enforce any right
or provision of this Agreement shall not constitute a waiver of such
right or provision unless acknowledged and agreed to by Company in
writing. The Section titles in this Agreement are solely used for the
convenience of the parties and have no legal or contractual
significance. This Agreement may be assigned in whole or in part by
Company. Neither this Agreement, nor the rights and obligations
contained herein, may be assigned in any manner by you without the
prior express written permission of Company. These terms do not alter
in any way the terms of any other separate agreement you may have with
Company.