End User License Agreement

Welcome! It is important that you carefully read these terms.

BIRDVIEW Technologies ("BIRDVIEW", "Licensor", "We", "Us", or "Our") owns, distributes and provides various products and services that enable real estate professionals including but not limited to real estate brokerages, their agents and affiliates to maintain online real estate World Wide Web Sites, composed of World Wide Web Pages, which utilize BIRDVIEW proprietary software including but not limited to OFFICESITE, AGENTPAGE, AGENTSITE, SHARENET, NEIGHBORHOODVIEW, BIRDTALK, PROSPECTPRO, BANRE, and MLSBOOSTER (collectively, the "BIRDVIEW Software").

By clicking on the "Login" button or by using the BIRDVIEW Software, these terms form a license ("License") agreement between BIRDVIEW and You ("You," "Your" Or "User") for the use of the BIRDVIEW Software, including any and all versions or variations of the software, and any future fixes, updates and upgrades provided to you.

1. License Grant.

BIRDVIEW hereby grants you a non-exclusive, non-transferable license to use, display and incorporate the BIRDVIEW Software. You shall have no right to reverse assemble or de-compile such software. The BIRDVIEW Software is owned by BIRDVIEW or a third party from which BIRDVIEW has licensed rights, and their content, structure and organization constitute valuable trade secrets of BIRDVIEW or a third party. Subject to the non-exclusive limited right to use the BIRDVIEW Software specifically granted in this Agreement, BIRDVIEW reserves all rights to the BIRDVIEW Software. You may not use Web Pages or parts of Web Pages generated by the BIRDVIEW Software on any server other than servers controlled by BIRDVIEW. You agree that Web Pages generated by the BIRDVIEW Software will at all times display a legend similar to the following: "© [current year] BIRDVIEW, Inc. All Rights Reserved." with an appropriate BIRDVIEW logo.

2. Your Obligations.

You accept final responsibility for the selection and use of all creative, audiovisual, and personal works and images (collectively, the "Images"), which are included in any Web Page. You represent and warrant that you have or shall have the right and authority to copy, adapt, distribute, display, and publish the Images as provided in the Web Pages. You shall have the sole responsibility to determine the scope of "disclaimers" included in your Web Site. You acknowledge that the listing data placed on your Web Site has been input for such display with knowledge and approval of the property owner(s) and has as well any other necessary permissions. You give BIRDVIEW the right to use, publish, and advertise certain provided listing data on other participating BIRDVIEW client web sites, subject to local MLS policy.

3. Access and Interference; Passwords You may not violate or attempt to violate the security of our BIRDVIEW Software. We reserve the right to investigate occurrences which may involve such violations, and may involve, and cooperate with, law enforcement authorities in prosecuting users who have participated in such violations. You agree that it is your responsibility to install anti-virus software and related protections against viruses, Trojan horses, worms, time bombs, cancelbots or other techniques that may have the effect of damaging, destroying, disrupting or otherwise impairing a computer's functionality or operation.

In order to access certain BIRDVIEW Software, you will be required to establish an account including a unique identification code or name (a "Username") and password (a "Password"). You are the sole and exclusive owner of any Username and Password combination issued or chosen by you. Maintaining the confidentiality and security of your Username and Password is solely your responsibility. You are fully responsible for the use and protection of each Username and Password issued to or chosen by you and for all transactions undertaken by means of any account opened, held, accessed or used via such Username and Password. You shall notify us immediately and confirm in writing any unauthorized use of accounts or any breach of security, including without limitation any loss, theft or unauthorized use of your Username(s) and Password(s). If we have reasonable grounds to suspect that the security of your Username and Password has been compromised, we have the right to suspend or terminate your account, refuse any and all current or future use of the BIRDVIEW Software, and pursue any appropriate legal remedies. We shall not be responsible for any losses incurred in connection with any misuse of any Username and Password.

4. Indemnity.

You shall defend, indemnify, and hold harmless BIRDVIEW, its employees, agents, officers, and directors, with respect to any claim or action brought against BIRDVIEW, its employees, agents, officers, or directors, arising out of or in connection with the operation, condition, or content of your Web Pages; the conduct of any business, advertising, marketing, or sales in connection therewith; and any negligent or illegal act or omission of yours or any of your agents, contractors, servants, employees, or other users or accessees.

5. Disclaimer of Warranty and Liability.

All BIRDVIEW Software is delivered without warranty of any kind, including, without limitation, any warranty of title, merchantability, or fitness for a particular purpose. Without limiting the foregoing, you acknowledge that BIRDVIEW makes no representation or warranty that the BIRDVIEW Software provided hereunder will increase your business or revenue. In no event shall BIRDVIEW be liable to you for any amount in excess of the fees actually paid by you to BIRDVIEW. BIRDVIEW shall have no liability for any indirect, cover, special, incidental, or consequential damages, including, without limitation, loss of profits.

6. Applicable Law

The substantive laws of the State of Illinois in the United States of America, without regard to conflict of laws principles, shall govern all matters relating to or arising from this Agreement, and the use of any or all of the BIRDVIEW Software. Subject to the dispute resolution procedures set forth below, you hereby submit to the exclusive jurisdiction and venue of the appropriate State and Federal courts located in DuPage County, Illinois, with respect to all matters arising out of or relating to this Agreement.

7. Arbitration

Any claim or controversy arising out of or related to this Agreement, or the BIRDVIEW Software we provide or distribute shall be settled by individual binding arbitration in accordance with the rules of the American Arbitration Association then effective. Any such claim or controversy shall be arbitrated on an individual basis and shall not be consolidated with a claim of any other party. Further, in any such dispute, under no circumstances will you be permitted to obtain awards for, and you hereby waive all rights to claim punitive, incidental or consequential damages, and you further waive all rights to have damages multiplied or increased. This shall not preclude BIRDVIEW from seeking any injunctive relief for protection of our Intellectual Property Rights. The arbitration shall take place in Glen Ellyn, Illinois or such other location as the parties may mutually agree. The arbitrator(s) shall issue a reasoned award, and any judgment on the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction. The arbitrator(s) will each be a natural person who has never been employed (either as an employee or as an independent consultant) by either of the parties, or any parent, subsidiary or affiliate thereof, and will be generally familiar with the business of the parties. The arbitrator(s) may upon request exclude from use in the arbitration proceeding any evidence not made available to the other party pursuant to a proper discovery request. The cost of the arbitration will be borne equally by the parties. The parties, their representatives, other participants, the arbitrator(s) and the administrator(s) of the arbitration will hold in confidence the existence, content and outcome of the arbitration. The parties understand that: (i) arbitration is final and binding on the parties; (ii) the parties are waiving their right to seek remedies in court, including the right to a jury trial; (iii) pre-arbitration discovery is generally more limited than and different from court procedures; and (iv) any party's right to appeal or to seek modification of rulings by the arbitrators is strictly limited.

8. Successor Agreements

The terms of this Agreement may change from time to time. You should check back at the Website regularly to determine if any material changes have been made. We will prominently post material changes on the Website at least 14 days prior to the effective date of the change and will also attempt to provide you with an on-line notice informing you when such material changes have been made to this Agreement, which notice shall contain an active link that you can use to view a web page containing or linking to the revised Agreement.

You agree that your continued use of the BIRDVIEW Software after the effective date of any change will constitute your affirmative consent to this revised Agreement. If you do not accept such revisions, you must cease all access to and use of the BIRDVIEW Software hereunder. Failure to cease use of the BIRDVIEW Software will be deemed an acceptance of the terms of the most current Agreement. Any payment obligations you have will continue to exist even if you do not accept any revised Agreement.

9. Other Agreements

If you have executed another license agreement with us with respect to the BIRDVIEW Software, then both Agreements shall control your use of the BIRDVIEW Software. If there is any confusion in the meaning of the terms between the two Agreements, then the terms of the more restrictive license agreement shall control your use of the BIRDVIEW Software.

10. General Provisions

You shall not assign this Agreement without the prior written consent of BIRDVIEW, and any such attempted assignment shall be void. This Agreement shall be binding upon the parties' respective successors and permitted assigns. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in such provision, and that the other provisions of this Agreement remain in full force and effect. The section headings used in this Agreement are for convenience only and have no legal or contractual effect. Any delay or failure to enforce BIRDVIEW's rights under this Agreement does not prevent BIRDVIEW from enforcing any right at a later time and all BIRDVIEW rights and indemnities will survive termination of this Agreement.

11. Offensive Content

You may not publish or transmit via the BIRDVIEW Software any content that BIRDVIEW reasonably believes:

• is unfair or deceptive;
• violates a person's privacy;
• constitutes child pornography;
• creates a risk to a person's safety or health, creates a risk to public safety or health, compromises national security, or interferes with a investigation by law enforcement;
• improperly exposes trade secrets or other confidential or proprietary information of another person;
• is otherwise illegal or solicits conduct that is illegal;
• is otherwise malicious or fraudulent.

Should you breach BIRDVIEW's offensive content policy, BIRDVIEW will remove the offensive content as soon as possible after being notified by a third party. When BIRDVIEW removes offensive content, BIRDVIEW will notify you that BIRDVIEW considers the content to be offensive and that it should not be reposted. BIRDVIEW reserves the right to determine in its sole capacity what it deems as offensive content. Furthermore, BIRDVIEW reserves the right to deactivate any BIRDVIEW Software that is being used to breach BIRDVIEW's offensive content policy and to demand full payment of any fees contractually agreed to.