Last modified: July 2021
These Terms of Service – e (“Agreement”) are between you (“You”) and MoxiWorks LLC, a Washington limited liability company (“MoxiWorks”) and govern Your use of this real estate technology platform, including the software and applications included therewith (which applications include the Comparative Market Analysis Application (“CMA Application”)), and all content, hosting, and related services provided in connection therewith, all of which together constitute the “Site”.
1. ADDITIONAL TERMS
Certain features of the Site may be subject to additional terms (“Additional Terms”) presented in conjunction with such features. You must agree to any applicable Additional Terms before using the features of the Site to which they apply. Unless otherwise specified in any Additional Terms, all Additional Terms are incorporated into this Agreement. If you do not agree to Additional Terms, then you may not use the Site to which they relate. If any Additional Term is inconsistent with the provisions of this Agreement, the Additional Term will prevail for the specific feature of the Site to which it applies.
2. ACCEPTANCE OF AGREEMENT
By clicking the “I Agree” button below or by accessing and using the Site, You (a) agree to be bound by this Agreement; (b) represent and warrant that, You are 18 years old or older and, if You are acting on behalf of an entity, that the entity is a corporation, partnership, or other legal entity duly formed (and incorporated, if applicable) in good standing where required to do business, and You have all legal authority and power to accept this Agreement on the entity’s behalf; (c) agree to provide true, accurate, current, and complete information in any registration forms required in connection with the Site; (d) represent and warrant that You have the power and authority to enter into and perform under this Agreement; and (e) represent and warrant that Your use of the Site will comply with the terms of this Agreement and all applicable laws. If You are a third party accessing an account(s) on behalf of an account owner (e.g., as an administrator), You agree that this Agreement applies to Your activities on behalf of such account owner. If this Agreement or any future changes are not acceptable to You, Your sole remedy is to no longer use the Site.
MoxiWorks may modify this Agreement at any time in its sole discretion. Modifications are effective upon being posted on the Site and will apply to Your use of the Site after any such changes are posted. Although MoxiWorks may provide notice to You of changes to this Agreement, You are responsible for reviewing the Agreement posted on the Site periodically to ensure that You are aware of any changes. Your continued use of the Site following MoxiWorks’ modification of this Agreement will constitute Your acceptance of the changes. Any new or additional features, tools, services, or content that are added to the Site will also be subject to this Agreement.
4. PLATFORM ACCESS AND USE
MoxiWorks grants You a personal, limited, non-transferable, non-sublicensable, and non-exclusive right and license to access and use the Site only on servers controlled by MoxiWorks in accordance with the use instructions (including configuration options) included with the Site. You may only use the Site for the purpose of assisting in the marketing and sale of real property and not for any other purpose.
In connection with Your access to the Site and MoxiWorks Content (as defined below), You agree that You will not use the Site or the MoxiWorks Content, in a way that is unlawful or prohibited under this Agreement. Except for the limited rights set forth in this Section, You may not:
- Download, copy, transmit, exploit, broadcast, perform, modify, distribute, publicly display, or create a derivative work of the Site, or sell, lease, sublicense or otherwise assign, or transfer any right in the Site;
- Violate any applicable federal, state or local law or regulation, including but not limited to, any laws regarding the export of data or software from the United States or other countries, the Civil Rights Acts of 1866 and 1964, the Fair Housing Act, the Americans with Disabilities Act, the Equal Credit Opportunity Act, the Fair Credit Reporting Act, and the CAN-SPAM Act of 2003;
- Obtain unauthorized access to the Site;
- Send any advertising or promotional material that is unrelated to the purchase, sale, or marketing of real estate in connection with the Site;
- Send junk mail, chain letters, spam, contest advertisements, or similar unsolicited messages;
- Create a false identity for the purpose of misleading others, including attempting to impersonate MoxiWorks, a MoxiWorks employee, or another user;
- Engage in defamation, harassment, or abuse, or otherwise violate, or attempt to violate, the rights of others;
- Publish, post, upload, distribute or disseminate any material or information on the Site that is inappropriate, profane, defamatory, infringing, obscene, harassing, harmful, threatening, tortious, libelous, invasive of another’s privacy or right of publicity, hateful, or unlawful, or that is racially, ethnically, or otherwise objectionable on the Site;
- Falsify or remove any notices or proprietary markings indicating the origin or source of information that is uploaded or downloaded from the Site, including MoxiWorks Content;
- Use a third party’s content in unauthorized manner, including by uploading information that contains material protected by intellectual property laws or rights of privacy that You do not own and for which You have not obtained necessary consents;
- Use the Site in any manner that could disable, overburden, damage, impair, or interfere with any other party’s use of the Site or employ any device or software in an attempt to do so;
- Circumvent the user authentication or security of the Site or any host, network, or account related thereto;
- Introduce any harmful material or software designed to cause damage or impair functioning of the Site. including but not limited to, viruses, trojan horses, worms, logic bombs, cancelbots, or corrupted files;
You agree not to access the Site by any means other than through the designated interfaces that are provided or authorized by MoxiWorks for use in accessing the Site. For example, the CMA Application is a part of the Site though it may be presented and may run as a separate application (using a separate interface for access) or it may be presented and may run as an embedded application within the overall platform framework.
You may not use the features and functionality, web pages or parts of web pages, or application outputs (e.g., compiled presentation reports (“CMA Reports”)) that are generated by means of the Site (other than Your Content (as defined below) contained therein), on any applications, devices or servers other than servers controlled by MoxiWorks without MoxiWorks’ express written authorization. Notwithstanding the foregoing, You may store CMA Reports in .pdf format on Your personal computing devices. You acknowledge and agree that the Site is intended for access and use by means of web browsing software, and that MoxiWorks does not commit to support any particular web browsing platform. MoxiWorks reserves the right at any time to revise and modify the Site, release subsequent versions and to alter features, specifications, capabilities, functions and other characteristics of the Site, without notice to You. If any revision or modification to the Site.
5. TERM AND TERMINATION
This Agreement commences on the date that You first access and use the Site and continues until terminated by either party in accordance with this Section. Either party may terminate this Agreement at any time and for any reason upon written notice to the other party.
In the event of termination, MoxiWorks may, at its option, permanently delete from its servers any and all information and content (including Your Content (as defined below)) that You have uploaded to the Site, including but not limited to any web pages generated by You or the Site and any CMA Reports generated by You or the CMA Application. MoxiWorks will not be responsible or liable for such deleted information and content.
MoxiWorks may, in addition to its right to terminate this Agreement, suspend all or part of the Site and/or suspend or limit Your access to the Site if MoxiWorks determines any such suspension to be necessary for any technical, security, or other reason.
7. USE GUIDELINES
You acknowledge and agree that MoxiWorks may, from time to time during the term of this Agreement, issue instructions, use guidelines, and policies regarding Your use of the Site and that You will be bound by such guidelines upon their issuance.
8. ACCESS AND SECURITY
You may receive a password from MoxiWorks to access and use the Site. You agree to keep Your password confidential. You are fully responsible for all activities that occur under Your password on the Site. You agree to immediately notify MoxiWorks of any unauthorized uses of the Site or any other breaches of security of which You become aware. You acknowledge and agree that MoxiWorks will not be liable for Your acts or omissions or those of any user of the Site to whom You gave access, including any damages of any kind incurred as a result of such acts or omissions.
9. YOUR CONTENT
You may be able to upload content on the Site (including, but not limited to, Your personal information, data, text, links to content, software, music, sound, photographs, graphics, videos, messages or other materials (collectively, “Your Content”)). You are legally responsible for all of Your Content that You upload, post or store on or in connection with the Site. You represent and warrant that (a) You have all necessary rights in and to all of Your Content; (b) Your Content does not infringe any proprietary or other rights of any third party; (c) Your Content is accurate and will not cause injury to any person; and (d) You will indemnify MoxiWorks and its employees, officers, directors, affiliates, contractors, suppliers, and agents, for all claims resulting from Your Content. You grant MoxiWorks a worldwide, royalty-free, perpetual, non-exclusive, irrevocable, and fully sublicensable license to host and use Your Content in connection with its operation of the Site and otherwise in connection with MoxiWorks’ business operations (including rights to use, reproduce, modify, publish, create derivative works of, display, transmit, and broadcast).
10. MOXIWORKS CONTENT; MLS CONTENT AND TERMS
MoxiWorks may make its own or third-party content available to You for use on the Site (“MoxiWorks Content”). Your use of the MoxiWorks Content will be limited to use on the Site and You may only modify the MoxiWorks Content if modification is expressly permitted by use instructions on the Site. You may not use any trademarks, product or service names of MoxiWorks or its licensors without MoxiWorks’ prior written permission. Without limiting the foregoing, (a) information about and photographs of individual properties are provided by the listing agent and/or by the multiple listing service (“MLS”) for the area in which the subject property is located, and may not be copied or used in any manner without the express permission of the copyright owner; and (b) information about individual properties will be provided by one or more multiple listing services (MLS) and subject to terms and disclaimers provided by each MLS.
MoxiWorks Content includes consumer data provided through Infutor Data Solutions (“Infutor Data”). If You elect to purchase Infutor Data through MoxiWorks, You will receive a limited, revocable license to use the Infutor Data solely in connection with (and for the duration of) Your use of the Site, for the limited purposes of (i) updating, maintaining, and storing customer contact information, (ii) communicating with customers and potential customers, and (iii) analyzing customer contact information in connection with marketing research, strategy, and initiatives.
MoxiWorks may add or remove MLS content and the applicable terms or to reflect revised terms applicable to any MLS content that is made available in connection with the Site. You agree to comply with the MLS terms and to only access and use the MLS content for which You are authorized (e.g., certain MLS content may be restricted for use by agents in certain geographic regions and/or that are members of certain regional or national organizations). The MLS terms will describe the requirements for access and use of the various MLS content.
11. PUBLIC COMMUNICATION
You may have the opportunity to communicate with others via chat, forums, bulletin boards, or other similar types of communication on or through the Site. In connection with such public communications, You may not upload, post, reference or link to any content that (a) violates this Agreement; or (b) violates any acceptable use policies that MoxiWorks may issue in connection with the Site. You agree that (i) these are public and not private communications; (ii) You have no expectation of privacy concerning Your use of or participation in any communication channels made available on or through the Site; and (iii) personal information that You share publicly on or through the Site may be seen and used by others and may result in unsolicited communications. MoxiWorks is not responsible or liable for any information that You choose to publicly communicate on or through the Site, or for the actions of any other users accessing web pages or features made available on or through the Site.
12. PROPRIETARY RIGHTS AND OWNERSHIP
You acknowledge and agree that the Site and MoxiWorks Content contains proprietary and confidential information that is protected by copyright, patent, trademark, trade secret, and other applicable intellectual property and other laws. Except for Your limited access and use license, (a) You may not use, copy, transmit, modify, distribute or create any derivative works of the Site or the MoxiWorks Content; and (b) MoxiWorks, its licensors, and its third-party suppliers retain all right, title and interest in and to the Site and the MoxiWorks Content, as applicable.
MoxiWorks has no obligation to provide support to You in connection with Your use of the Site.
You agree to defend, indemnify and hold harmless MoxiWorks and its employees, officers, directors, affiliates, contractors, suppliers, and agents from and against any and all liabilities, claims and expenses (including attorneys’ fees) that arise from Your breach of this Agreement or Your breach of any MLS terms or in connection with Your use of the Site or any of Your Content that You upload to the Site. Without limiting the foregoing indemnification obligations, MoxiWorks reserves the right to, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You. You agree to reasonably cooperate as requested by MoxiWorks in the defense of any claims.
15. DISCLAIMER OF WARRANTIES; LIMITATIONS ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SITE AND THE INFORMATION, MOXIWORKS CONTENT, SOFTWARE, PRODUCTS AND SERVICES (INCLUDING ANY HOSTING SERVICES) ASSOCIATED WITH IT ARE PROVIDED “AS IS.” MOXIWORKS AND/OR ITS AFFILIATES, SUPPLIERS, AND REAL ESTATE PROFESSIONALS DISCLAIM ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO THE SITE AND ANY INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES PROVIDED HEREIN, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. MOXIWORKS DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR RELIABILITY OF THE MOXIWORKS CONTENT. IN PARTICULAR, MOXIWORKS MAKES NO WARRANTY THAT THE SITE OR MOXIWORKS CONTENT: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE OR PROVIDED ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (C) WILL BE ACCURATE, COMPLETE, OR RELIABLE, OR (D) WILL BE FREE FROM VIRUSES, WORMS, OR OTHER HARMFUL OR MALICIOUS COMPONENTS. NOR DOES MOXIWORKS WARRANT THAT ANY DEFECTS OR ERRORS ON THE SITE OR CONTENT WILL BE CORRECTED. USE OF THE SITE IS AT YOUR OWN RISK.
MOXIWORKS, ITS AFFILIATES, ITS SUPPLIERS, AND REAL ESTATE PROFESSIONALS ARE NOT LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR OTHER INJURY ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SITE OR WITH THE DELAY OR INABILITY TO USE THE SITE, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES OBTAINED THROUGH THE SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE SITE, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF MOXIWORKS OR ITS SUPPLIERS HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE AGGREGATE LIABILITY OF MOXIWORKS, ITS AFFILIATES, SUPPLIERS, AND REAL ESTATE PROFESSIONALS UNDER OR IN CONNECTION WITH THIS AGREEMENT AND THE SITE WILL NOT, FOR ANY REASON, EXCEED TEN DOLLARS (US$10).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS OF LIABILITY AS SPECIFIED HERE AND, TO THE LEAST EXTENT AS ALLOWED BY LAW, SUCH EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
16. DISPUTE RESOLUTION
You agree that any claim or controversy arising out of or relating to this Agreement and/or the use of the Site will be governed by the laws of the state of Washington, and that venue for any action arising from or related to this Agreement and/or the use of the Site will be solely in any court of competent jurisdiction in Seattle, King County, Washington, USA. If either party employs attorneys to enforce any rights in connection with any such dispute or lawsuit the prevailing party will be entitled to recover reasonable attorneys’ fees.
You may not assign this Agreement, in whole or in part, without the prior written consent of MoxiWorks, and any attempted assignment will be void. MoxiWorks may assign this Agreement at our sole discretion. This Agreement will bind and inure to the benefit of permitted assigns.
18. RELATIONSHIP OF PARTIES
This Agreement will not establish a partnership, joint venture, employment, franchise, or agency between MoxiWorks and You. Neither party will have the authority to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. Except as otherwise expressly provided herein, there will be no third-party beneficiaries to this Agreement.
19. CLAIMS OF COPYRIGHT INFRINGEMENT
MoxiWorks respects the intellectual property rights of others and take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If You believe any materials accessible on or from the Site infringe Your copyright, You may request removal of those materials (or access to them) from the Site by submitting written notification to our copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. §512(c)(3)) (“DMCA”), Your written notice (“DMCA Notice”) must include substantially the following:
a. Identification of the copyrighted work that You claim has been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at the site;
b. Identification of the material that You claim is infringing, including a description of where it is located so that our copyright agent can locate it;
c. Your name, address, telephone number, and, if available, e-mail address, so that our copyright agent may contact You about Your complaint;
d. A signed statement that the above information is accurate; that You have a good faith belief that the identified use of the material is not authorized by the copyright owner, its agent, or the law; and, under penalty of perjury, that You are the copyright owner or are authorized to act on the copyright owner’s behalf in this situation.
Our designated copyright agent to receive DMCA Notices is:
Erin S. Hennessy
Haynes and Boone LLP
30 Rockefeller Plaza, 26th Floor
New York, NY 10112
If You fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, Your DMCA Notice may not be effective. Please be aware that if You knowingly materially misrepresent that material or activity on the Site is infringing Your copyright, You may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
If You believe that material You posted on the Site was removed or access to it was disabled by mistake or misidentification, You may submit a counter notification to our copyright agent. Pursuant to the DMCA, a valid counter notification must include substantially the following:
a. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
b. Your name, address, telephone number, and, if available, e-mail address, so that our copyright agent may contact You about Your counter notification;
c. A signed statement under penalty of perjury that You have a good faith belief that the material identified in Your counter notification was removed or disabled as a result of mistake or misidentification;
d. A signed statement that You consent to the jurisdiction of Federal District Court for the judicial district in which Your address is located, or if Your address is outside of the U.S., for any judicial district in which the Site may be found; and that You will accept service of process from the person (or agent of that person) who provided the Site with the DMCA Notice at issue.
Our designated copyright agent to receive counter notifications is:
Erin S. Hennessy
Haynes and Boone LLP 30 Rockefeller Plaza, 26th Floor
New York, NY 10112
The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against You within ten business days of receiving the copy of Your counter notification. Please be aware that if You knowingly materially misrepresent that material or activity on the Site was removed or disabled by mistake or misidentification, You may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
It is our policy in appropriate circumstances to disable and/or terminate a repeat infringer’s account or other similar ability to use the Site.
This information should not be construed as legal advice. We recommend You seek independent legal counsel before filing a DMCA Notice or counter notification.
20. THIRD-PARTY SERVICES AND LINKS
The Site may incorporate third-party services (e.g., Google Analytics, Google Mapping, Twilio) and Your use of such third-party services will be at Your own risk and subject to any additional terms provided with the service. MoxiWorks will not be liable or responsible for the third-party service, including as to delivery and accuracy. The Site may include links to third-party sites and content and Your use of such third-party sites and content will be at Your own risk and subject to any additional terms applicable to the third-party sites and content. MoxiWorks will not be liable or responsible in any way for such third-party sites and content.
You agree that this Agreement and the non-public components of the Site and all non-public information provided in connection with this Agreement and the Site are the confidential and proprietary information of MoxiWorks and its third party suppliers (“MoxiWorks Confidential Information”). You agree not to disclose MoxiWorks Confidential Information to any third party without the prior written consent of MoxiWorks. If You are required by law to disclose any MoxiWorks Confidential Information You agree to provide MoxiWorks with as much advance notice and an opportunity to intervene to prevent or limit such disclosure before complying with any legally required disclosure. You agree to protect MoxiWorks Confidential Information in the same manner that You protect Your own confidential information but in no event to use less than industry standard efforts.
23. FORCE MAJEURE
Except for any obligations to make payments, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including but not limited to, acts of war, acts of terrorists, acts of God, earthquake, flood, embargo, riot, labor shortage or dispute, and/or failure of the internet.
24. SITE NOTICE
MoxiWorks may provide You notice under this Agreement to the email address that You provide when registering for access and use of the Site. Notices emailed to You will be deemed given and received when the email is sent. You may provide notice under this Agreement to MoxiWorks to the following address:
Attn: Chief Financial Officer
1000 Second Ave. Suite 1300
Seattle, Washington 98104
The following Sections will survive the expiration or termination of this Agreement: 5, 9, 12, 14, 15, 16 – 18, 20, 23, and 26 – 28.
26. INTEGRATION AND SEVERABILITY
This Agreement constitutes the entire agreement between You and MoxiWorks and supersede any prior agreement(s) pertaining to the Site (including prior versions of this Agreement). If any provision of this Agreement is found by a court of competent jurisdiction to be void or unenforceable the parties agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision and that the other provisions of this Agreement will remain in full force and effect.