Pleaseread this page carefully, as it contains the terms of a legal agreementbetween you and FSBO, Inc. that govern your access TO, use of, andpurchase of services AND/OR GOODS made available on FSBO.COM. Byaccessing, 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 tocomply with all applicable laws and regulations. If you do not agreeto all of these terms, you may not access, USE, purchase servicesAND/OR GOODS made available on and/or otherwise utilize fsbo.com.
If you have any questions relating to FSBO.com orthis Agreement, please call the FSBO.com Helpline at 1-800-690-5802 x1 Monday – Friday 9am-4pm EST or send us an email at email@fsbo.com. This Agreement was last revised on March 7, 2012.
1. FSBO, INC. AND FSBO.COM
The website FSBO.com is owned and operated by FSBO,Inc. (“Company”). The Company is primarily an Internet advertisingservice for real estate offered "for sale by owner". The Company isnot a licensed real estate broker. The Company is not a member of anymultiple listing service (MLS), and does not list real estate on anyMLS. FSBO.com makes the following available to buyers and sellers ofresidential real estate and related service providers: (a) for-sale,bankruptcy, and rental property listings; (b) advertising of for-saleproperty listings and related service providers; (c) banneradvertisements; (d) seller’s option to forward information to aflat-fee real estate broker; (e) ‘for sale by owner’ products; (f)participation in Affiliate Program; (g) information pertaining torelated service providers (including but not limited to legal,mortgages, valuations, moving, and ‘Contract to Closing’); (h) samplecontracts, hyperlinks to industry websites, general advice for buyersand 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.cominternet domain, and all services and products made available onfsbo.com, including but not limited to the services and productsidentified in this Section 1. References in this Agreement to“FSBO.com” shall mean any and all webpages or other content orinformation appearing on the fsbo.com internet domain or computerservers owned or utilized by the Company.
2. DISPUTE RESOLUTION
This Agreement shall be governed by and construed inaccordance with the laws of the State of Georgia, notwithstanding theconflict of laws provisions of any state. You irrevocably andunconditionally (i) consent to submit to the exclusive jurisdiction ofthe state and federal courts in the County of Fulton, Georgia (the“Georgia Courts”) for any litigation or dispute arising out of orrelating to this Agreement or your performance or nonperformancehereunder (including but not limited to collection matters), (ii) agreenot to commence any litigation arising out of or relating to thisAgreement or the Company’s performance or nonperformance hereunderexcept in the Georgia Courts, (iii) agree not to plead or claim thatsuch litigation brought therein has been brought in an inconvenientforum, and (iv) agree the Georgia Courts represent the exclusivejurisdiction for all disputes arising out of or relating to thisAgreement, or either parties’ performance or nonperformancethereunder. Disputes arising out of or relating to this Agreementshall include but not be limited to disputes arising out of or relatingto your access to, use of and/or purchase of services or goods madeavailable on FSBO.com. You agree that regardless of any statute or lawto the contrary, any claim or cause of action by you arising out of orrelated to your use of the Site, the Agreement, or the Company’sperformance or nonperformance under the Agreement, must be filed withinone (1) year after such claim or cause of action arose, or it shall beforever barred.
3. ACCESS AND USE
a. Access. You shall be solelyresponsible for hardware, interconnections and telecommunications toaccess 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.comwebsite or the content contained on any such web page for commercialuse without the Company’s prior express written permission. You willnot spam or send unsolicited e-mail or other messages to any other userof the Site for any reason, by means of FSBO.com or otherwise. Youagree that you will not use any device, software or routine tointerfere or attempt to interfere with the proper working of the Site.You agree that you will not take any action that imposes anunreasonable or disproportionately large load on FSBO.com, theCompany’s computer system, or other infrastructure. You agree not tomodify, translate, reverse engineer, decompile, disassemble or createderivative works based upon, the Site or any software or programmingrelated thereto. Any access or attempt to access any areas of theCompany’s computer system, or information contained on the system,except for FSBO.com and information contained thereof, for anypurposes, is strictly prohibited.
b. Use. The Site is for theexclusive use of buyers and sellers of real estate and related serviceproviders. Subject to the terms contained herein, Company herebygrants to you a non-exclusive, non-transferable, non-sublicenseable,world-wide license to use the Site, which shall include the right tosearch, display and print the property listings appearing on FSBO.comfor personal, noncommercial use only, provided you do not modify thematerials and that you retain all copyright and other proprietarynotices contained in the materials. Company reserves any rights notexpressly granted herein. You may not search, display, print,distribute, copy, reproduce, publish, download, or transmit anymaterial on the Site for commercial use without prior written approvalof Company. You may not “mirror” or “frame” any material contained onthis Site on any other server or website, regardless of means, withoutprior written permission from Company. The Company reserves the rightto monitor your access and use of the Site and your compliance with theterms hereof without notice to you.
c. Use Restrictions. You agreenot 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 Stateslaw or regulation, (2) is threatening, obscene, indecent, defamatory orthat otherwise could adversely affect any individual, group or entityor (3) violates the rights of any individual, group or entity,including rights protected by copyright, trade secret, patent or otherintellectual property or similar laws or regulations including, but notlimited to, the installation or distribution of "pirated" or othermaterials that are not appropriately licensed for use by you. Youshall be responsible for determining what laws or regulations areapplicable to your use of the Site. You may only use the Site in amanner that, in the Company's sole judgment, is consistent with thepurposes of the Site. If you are unsure of whether any contemplateduse or action is permitted, please contact the Company immediately at email@fsbo.comfor clarification. By way of example, and not limitation, thefollowing uses described below of the Site are expressly prohibited:
i. upload, post, e-mail orotherwise transmit any information, data, text, software, music, sound,photographs, graphics, video, messages or other materials that isunlawful, harmful, threatening, abusive, harassing, tortious,defamatory, vulgar, obscene, libelous, invasive of another's privacy,hateful, or racially, ethnically or otherwise objectionable, or thatcould give rise to any civil or criminal liability under both domesticand international law. Pornography and pornographic relatedmerchandising are prohibited, including providing links to pornographiccontent elsewhere;
ii. threaten to harm, attempt to harm or actually harm minors in any way;
iii. impersonate any person orentity, including, but not limited to, a Company employee or agent, orfalsely state or otherwise misrepresent your affiliation with a personor entity, or misrepresent yourself as actual buyers or sellers of realestate;
iv. forge headers or otherwisemanipulate identifiers in order to disguise the origin of any contenttransmitted through the Site or develop restricted or password-onlyaccess pages, or hidden pages or images (those not linked to fromanother accessible page);
v. upload, post, e-mail orotherwise transmit any content that you do not have a right to transmitunder any law or under contractual or fiduciary relationships (such asinside information, proprietary and confidential information learned ordisclosed as part of employment relationships or under nondisclosureagreements);
vi. upload, post, e-mail orotherwise transmit any content that infringes any patent, trademark,trade secret, copyright or other proprietary rights of any party;
vii. upload, post, e-mail orotherwise transmit any unsolicited or unauthorized advertising,promotional materials, "junk mail," "spam," "chain letters," "pyramidschemes," or any other form of solicitation, or solicit any person orcompany using any telephone number, email address or other contactinformation found on the Site for any reason other than the purchase ofreal estate or related services advertised for sale on the Site;
viii. upload, post, e-mail orotherwise transmit any material that contains software viruses or anyother computer code, files or programs designed to interrupt, destroyor limit the functionality of any computer software or hardware ortelecommunications equipment;
ix. interfere with or disrupt theSite or servers or networks connected to the Site, or disobey anyrequirements, procedures, policies or regulations of networks connectedto the Site;
x. intentionally orunintentionally violate any applicable local, state, national orinternational law, including, but not limited to, regulationspromulgated by the Federal Communications Commission, U.S. Departmentof Housing, the U.S. Securities and Exchange Commission, any rules ofany national or other securities exchange, including, withoutlimitation, the New York Stock Exchange, the American Stock Exchange orthe NASDAQ, and any regulations having the force of law;
xi. “stalk" or otherwise harass another;
xii. promote or provideinstructional information about illegal activities, promote physicalharm or injury against any group or individual, or promote any act ofcruelty to animals. This may include, but is not limited to, providinginstructions on how to assemble weapons or creating "Crush" sites;
xiii. effecting security breachesor disruptions of Internet communication. Security breaches include,but are not limited to, accessing data of which you are not an intendedrecipient or logging into a server or account that you are notexpressly 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 providedthat such link does not portray the Company or the Site in a false,misleading, derogatory, or otherwise defamatory manner. This limitedright may be revoked at any time for any reason whatsoever. You maynot use framing techniques to display any content, information, layout,design, copyrighted works, trademark, logo or trade name appearing onFSBO.com. Links on the Site to third party websites are providedsolely as a convenience to you. If you use these links, you will leavethe Site. Company has not reviewed all of these third party websitesand does not control and is not responsible for any of these sites,their content or their policies, including, without limitation, privacypolicies or lack thereof. Except as expressly set forth on the Site,Company does not endorse or make any representations about third partywebsites or any information, software or other products or materialsfound there, or any results that may be obtained from using them. Ifyou decide to access any of the third party websites linked to by thisSite, you do so entirely at your own risk.
4. PROPRIETARY CONTENT
a. General. The Company’s Internetoperations, design, hardware designs, algorithms, software (in sourceand object forms), user interface designs, other templates and designs,algorithms, architecture, class libraries, and documentation (bothprinted and electronic), know-how, good will, moral rights, tradesecrets and any related intellectual property rights throughout theworld, and any derivative works, improvements, modifications,enhancements or extensions thereof, shall remain the sole and exclusiveproperty of Company, and you shall have and acquire no interest in themwhatsoever.
b. Copyright and Trademark. Allinformation, content and materials that appear on FSBO.com, including,without limitation, text, photographs, images, pictures, graphics andother files, and the selection and arrangement thereof, but excludinginformation, content and materials that are submitted to the Site byusers 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 allpage headers, custom graphics, button icons, and scripts), butexcluding marks, names and logos submitted to the Site by usersthereof, 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 anddisplayed on this Site are and shall remain the sole property of theCompany. Nothing in this Agreement shall confer any right of ownershipof any of the Copyrighted Works or Trademarks in you. Further, nothingin this Agreement shall be construed as granting, by implication,estoppel or otherwise any license or right to use any of theCopyrighted Works or Trademarks used or displayed on the Site, withoutthe express written permission of the Company. Neither the CopyrightedWorks nor the Trademarks may be copied, imitated or used, in whole orin part, without the prior written permission of Company.
c. Company as Intermediary. TheCompany does not create, make, author, write, print or otherwiseproduce any of the for-sale, bankruptcy or rental property listingsthat appear on FSBO.com, including but not limited to the text,photographs, images and links to third party websites containedtherein. All such property listings are produced and submitted toFSBO.com by others.
5. DISCLAIMER OF WARRANTIES
The Site, including all content, services, goods,software, functions, materials, and information found or availablethereon, is provided “as is” and “as available” without warranties ofany kind, either express or implied. The Company disclaims allwarranties, express or implied, of any kind, including, but not limitedto, warranties of quiet enjoyment and non-infringement and impliedwarranties of merchantability, fitness for a particular purpose,non-infringement, title, quiet enjoyment, merchantability of computerprograms, data accuracy, system integration, informational content, andothers expressly disclaimed below in this Section 5. Company does notwarrant or make any representations regarding the operation of theSite, the use, validity, applicability, propriety, accuracy orreliability of, or the results of the use of the Site or any othersites linked to from this Site. The Site materials may be out of date,and Company makes no commitment to update the Site materials orotherwise monitor same. Company does not and cannot guarantee orwarrant that the files available for downloading from the Site, if any,will be free from infection, viruses, worms, Trojan horses, or othercode that manifest contaminating or destructive properties. Companydoes not warrant that the Site, including any software, materials,products, or services, will be uninterrupted or error-free or that anydefects in the Site, including any software, materials, products, orservices will be corrected. Company assumes no responsibility for thealteration, deletion, mis-delivery or failure to deliver or store anyof your communications, data, or personalization settings, includingbut 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 inthe software driving the Site will be corrected. You understand andagree that any material and/or data downloaded or otherwise obtainedthrough the use of the Site is done at your own discretion and risk andthat you will be solely responsible for any damage to a computer systemor loss of data that results from the download of such material and/ordata. No advice or information, whether oral or written, obtained byyou through the Site shall create any warranty not expressly madeherein. Company makes no warranties regarding the number or types ofproperties available for sale on the Site, or whether any propertylisted on the Site for sale or rental will ever be purchased orrented. Company makes no warranties regarding any of the terms a buyeror seller may or will obtain with respect to any property listed on theSite, the number of ‘hits’ or pageviews of any property listed on theSite, or the scope of dissemination of any property listed on theSite. Company makes no warranties whatsoever regarding the ownership,authority to sell or rent, or condition of any property listed on theSite, or the sincerity or ability to pay of any potential buyer ortenant. The Company makes no warranties regarding the quality orquantity of telephone calls, email or other inquiries received by usersthat advertise on the Site. Company makes no warranties regarding theappearance, alteration or removal of a property listing on third-partywebsites or the like. The Company makes no warranties that a propertylisting will appear anywhere in particular online or offline, or forany period of time, except as expressly set forth on the Site. TheCompany makes no warranties regarding the quality or quantity ofproperties listed on the Site for sale or rent. The Company makes nowarranties regarding the quality of the service providers thatadvertise on the Site or regarding the services or goods provided bysame. The Company makes no warranties regarding the ability of a Siteuser to access or use the Site, or purchase services or goods madeavailable on the Site, at any particular time or times or from anyparticular 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 beliable for any damages, losses, or liability, including, withoutlimitation, (i) direct, indirect, special, incidental, or consequentialdamages, (ii) damages, losses or liability resulting from failure tosell, purchase or rent real property on certain terms or otherwise,(iii) damages, losses or liability resulting from lost profits, lostdata (or other intangibles), or business interruption, either arisingout of or relating to the use of the Site (including the use of theservices of any third parties that FSBO.com links to) and anyinformation contained thereon, or the inability to use the Site, or(iv) resulting from your failure to comply with this Agreement, whetherbased on warranty, contracts, statutes, regulations, tort (includingbut not limited to, negligence) or any other legal theory and whetheror not advised of the possibility of such damages. If your use of thematerials or information from this Site results in the need forservicing, repair or correction of equipment or data, you areresponsible for all costs thereof. Your sole and exclusive remedyunder this Agreement is to discontinue use of the Site. Some states donot allow the exclusion or limitation of incidental or consequentialdamages, so the above limitation or exclusion may not apply to you.
7. Indemnification
You agree to immediately notify Company of anddefend, indemnify and hold the Company and its shareholders,subsidiaries, affiliates, directors, officers, employees and agentsharmless from, any claim, loss, or demand (including reasonableattorneys’ fees and costs) made by any third party arising out of or aresult of (i) your use of the Site (including the unauthorized use ofyour account or any other breach of security known to you); (ii) theviolation of any term of this Agreement by you; (iii) the direct orcontributory infringement by you, or another user using your account,of any intellectual property any person or entity; or (iv) anyinformation you obtained from the Site.
8. User submitted Information
You are solely responsible for the contents of yoursubmissions or messages intended for the Company or third parties, madeto or sent from FSBO.com or otherwise, and same shall be treated asnon-confidential and non-proprietary unless expressly statedotherwise. You grant to the Company a worldwide, perpetual,irrevocable, royalty-free, sublicenseable right, in any media now knowor currently known, to exercise all copyright and other intellectualproperty rights with respect to such submissions or messages. Youagree that any such submissions or messages, including but not limitedto property listings, or any derivative works thereof, may bedisseminated, distributed, publicly displayed on third party websites,reproduced, used, sublicensed, posted, or published by the Company, andsearched, displayed, printed or otherwise used or exploited byCompany’s customers, in accordance with the Privacy Policy posted onFSBO.com. You agree to provide true, accurate, current and completeinformation and to maintain and promptly update such information tokeep it true, accurate, current and complete. You warrant that you ownand are authorized to offer for sale and to sell any property yousubmit to the Site for listing. You represent and warrant to theCompany that any information, photographs, images, graphics, videorecords or the like, virtual tours, drawings, written descriptions,remarks, narratives, pricing information and other copyrightableelements relating to your property listing do not violate or infringeupon the rights, including any copyright rights, of any person orentity.
9. User Password/Security
You will receive a password during the registrationprocess which is for your use only. You are fully responsible formaintaining the confidentiality of your password and all actions takenon the Site after access is obtained by means of your password. Youagree 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 pricefor the service(s) selected, and must be paid by direct charge to acredit card. You hereby authorize Company to charge such credit cardto pay for any charges that you may incur in the future as theyaccrue. You must notify Company of any changes to your credit cardaccount (including, without limitation, applicable account number orcancellation or expiration of the account), your billing address, orany information relating to the Company’s ability to charge youraccount. Once your property listing is posted on FSBO.com, you agreethat all sales are final, and there are no credits or refundswhatsoever. You may alter or remove your property listing fromFSBO.com by clicking on ‘Modify Your Listing’ and logging in. Failureto make any payment as set forth herein shall be deemed to be amaterial breach of this Agreement and shall be sufficient cause for theimmediate termination of this Agreement by Company. In the event ofcollection enforcement, you will be liable for any costs associatedwith such collection, including, without limitation, reasonableattorneys' fees, court costs and collection agency fees. All chargesshall be exclusive of any applicable taxes. You are responsible for thepayment of all federal, state, and local sales, use, value added,excise, duty and any other taxes assessments, other than taxes based onCompany's net income
11. NO BROKERAGE SERVICES
You understand and agree that except as expresslyprovided for otherwise by the Site, the Company does not offer orprovide any advice or assistance in connection with the sale, purchaseor leasing of real estate, including but not limited to real estatebrokerage services. You understand and agree that all real estatebrokerage commissions are negotiable and that the Company does not setcommission rates or provide any advice relating to commissions.
12. Property listings displayed on the Site’s homepage
The Company attempts to display the nine mostrecently submitted for-sale property listings (along with a singlephotograph of each property if one is provided by Seller), on theFSBO.com home page. These property listings must be submitted by meansof the FSBO.com website, be paid for in full, and must not contain anyobjectionable content. These listings will automatically be rotatedoff of the FSBO.com homepage in real time (and will not reappear on theFSBO.com homepage) as new for-sale property listings are submitted tothe Site. Placement of your property listing on the FSBO.com homepage,or placement for any period of time or in any particular manner, isneither guaranteed nor available for purchase.
13. FLAT FEE MLS SERVICE
Upon your selection of the Flat Fee MLS package, theCompany 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. Thereafterthe Company has no involvement whatsoever in connection with yourproperty listing or any multiple listing service. You will be chargedby MLSmart Realty, LLC and you will not be charged by the Company. Inaddition to the flat fee quoted on FSBO.com, you will likely beresponsible to pay a real estate commission in the event your buyer isrepresented by a broker. There are no refunds for this service.Before entering into a written listing agreement with a licensed realestate broker, you should inquire about the multiple listing service(s)encompassing your property, what, if any, websites your listing willappear on (e.g., realtor.com), and whether there are any additionalfees charged (e.g. for alterations to the listing). Listing in an MLSis not a guarantee that your property will be purchased - it is only anadvertisement that your property is for sale and typically lasts forsix months. Once listed on an MLS, your property is no longerconsidered "For Sale By Owner" and we are unable to offer refunds asthe service paid for has been provided.
14. Termination
This Agreement may be terminated by any partyimmediately for any reason or no reason, including but not limited toyour breach of this Agreement. Upon any termination of this Agreement,(i) your license and authorization to use the Site shall terminateimmediately without notice; (ii) you must immediately discontinue useof the Site, including any hyperlinks to the Site; (iii) you mustimmediately destroy any downloaded or printed materials; and (iv) theCompany will remove from the Site any listings or other materials youmay have previously submitted. Sections 2, 4, 5, 6, 7, 10, 14, 16 and17 of this Agreement shall survive any termination of this Agreement.
15. ALTERATIONS TO AGREEMENT/SITE
Company may alter or amend this Agreement at anytime without notice by revising this page. By accessing, using orpurchasing services or goods made available at FSBO.com, you agree tobe bound by any such revisions and should therefore periodically visitthis page to determine the then current terms and conditions to whichyou are bound. Company may alter or amend the content of FSBO.com,including the services and goods made available at FSBO.com, at anytime and without notice. For example, the Company may, in its solediscretion and at any time, discontinue the Site, or any componentthereof.
16. Notices
Notices given by Company to you will be sent to thee-mail address or conventional mailing address you provide to Companyas part of the registration process, or to updated addresses which youprovide to Company via notice consistent with this Section 16. Noticesgiven by you to Company must be given by e-mail to email@fsbo.com.Notwithstanding anything herein to the contrary, it is your soleresponsibility to update your e-mail and mailing address for noticeshereunder, and notice sent to the e-mail or conventional mailingaddress last provided by you to Company shall be valid and binding onyou regardless of whether such address has been changed, canceled, hasexpired, has been terminated, or otherwise becomes inoperative.
17. MISCELLANEOUS
This Agreement shall be deemed to express, embodyand supersede all previous understandings, agreements and commitments,whether written or oral, between you and the Company with regard to thesubject matter hereof. If any provision(s) of this Agreement is heldby a court of competent jurisdiction to be contrary to law, then suchprovision(s) shall be construed, as nearly as possible, to reflect theintentions of the parties with the other provisions remaining in fullforce and effect. Company’s failure to exercise or enforce any rightor provision of this Agreement shall not constitute a waiver of suchright or provision unless acknowledged and agreed to by Company inwriting. The Section titles in this Agreement are solely used for theconvenience of the parties and have no legal or contractualsignificance. This Agreement may be assigned in whole or in part byCompany. Neither this Agreement, nor the rights and obligationscontained herein, may be assigned in any manner by you without theprior express written permission of Company. These terms do not alterin any way the terms of any other separate agreement you may have withCompany.