The J Xander Group Listing Agreement
TERMS AND CONDITIONS
1. Services. The J Xander Group, LLC t/a JX Group ("We" or "Us") owns and operates the website www.thejxandergroup.com which specializes in providing information regarding listings and rentals for commercial and residential real estate. (the "Website"). By completing a Listing Application on the Website, the party named in the Application ("You") enroll on the Website and enter into a contract (the "Agreement") to retain Us to continuously display on the Website for the term of this Agreement (the "Services") one or more advertisements and/or real estate listings provided by You (collectively, the "Listing").
2. Registration. Promptly after the date We receive Your completed Listing Application and payment in full of all Fees due; We will provide you with one or more user names and passwords to access password protected areas of the Website which are not generally available to the public (the "Restricted Areas"). When You submit a Listing Application, You represent and covenant that: (i) You have read and understand this Agreement and You have the power and authority to execute and deliver this Agreement; (ii) If You are submitting an application on behalf of Your employer, that You have taken all necessary corporate action to authorize the execution and delivery of this Agreement; (iii) This Agreement is and shall be the legal, valid and binding obligation of You and/or Your employer, enforceable in accordance with its terms; (iv) You shall provide the Listing and other information to Us with the bona fide intent to have the Listing displayed on the Website, not with an ulterior motive, such as to slander, defame or invade the privacy of another individual or provide information to one of our competitors; (v) In providing the Listing, You will comply with all applicable international, country, federal and state laws, rules and regulations, and all Website Policies; (vi) You shall regularly verify the accuracy of Your Listing and all other information posted on or available through the Website concerning You, and promptly notify Us of all outdated or inaccurate information; and (vii) All information You supply to Us is true, correct and complete.
3. User Names and Passwords. To help maintain the security of the Restricted Areas and the integrity of Your Listing, You agree that: (i) You will not disclose Your user name or password by any means to anyone other than Authorized Persons (i.e., Your employees and/or all persons who access Restricted Areas with Your consent for purposes specifically related to Your use of the Website); (ii) You shall notify Us within twenty-four (24) hours of any unauthorized disclosure or use of Your user name and password; and (iii) To the extent You are negligent in maintaining the confidentiality of your user name and password, You will be responsible for all damages caused to the Website and all information posted onto the Website through the use of Your user name and password, and You will be liable for all misuse of Your user name and password occurring prior to when You notify Us that the account has been compromised and We have reasonable time under the circumstances to terminate applicable access rights. Use by You of Restricted Areas of the Website shall be deemed conclusive evidence of Your agreement to these Terms and Conditions.
4. Listings. While in Restricted Areas of the Website, You may provide the information and photographs You wish to include in Your Listing, and You may enter the Restricted Areas at any time during the term of this Agreement to modify the Listing. All modifications to Listings shall be implemented on the Website within twenty-four (24) hours after You properly log out of the Restricted Areas. All photographs provided for a Listing must be provided in JPEG image format. Please do not submit more than five (5) photographs per Listing. Images/photographs should not exceed 100 kilobytes in size, nor should their longest side exceed 600 pixels in length. When You provide a Listing to Us, You represent and warrant that: (i) You are the sole author of the Listing and/or You have sufficient authority from the author or authors to grant Us the rights and licenses set above; and (ii) the Listing is a work original to the author (unless identified by You as containing original works of third parties) and that such Listing, including all third party works of authorship, does not infringe any copyright, trademark, tradename (or knowingly infringe any patent or any other proprietary right) of any third party. By completing a Listing Application, You grant Us a non-exclusive, irrevocable, perpetual (during the term of this Agreement) and royalty-free right and license to post the Listing in substantially the form and with substantially the appearance You provide. In posting the Listing, We shall not acquire through this Agreement any ownership interest in the Listing or in any of Your copyrights, trademarks, tradenames, trade dress, servicemarks or other identifying symbols. We reserve the right to edit any Listing and the right to refuse to post any Listing on the Website in our sole discretion.
5. Fees. As consideration for the Services, You shall pay Us a fee as set forth on the Website which is due and payable on the date You submit Your Listing Application, and on each renewal date thereafter if You elect to have Your Listing remain posted on the Website (the "Fee"). The Fee may not be offset by You for any reason and is NON-REFUNDABLE. The Fee may be increased by Us at any time. You shall remit payment to Us through credit card via the Website or at the address identified on the Website, and all payments shall be made in U.S. currency by means of a company check or credit card. Interest at the rate of one and one-half percent (1.5%) per month (18% per annum) or the maximum amount allowed by law, whichever is less, shall accrue on all Fees that are not paid when due. Unless You timely remit payment of any renewal Fee to maintain Your Listing on the Website, this Agreement shall automatically terminate and We shall remove Your Listing from the Website. In addition to any other remedy available to Us, if You should breach any provision of this Agreement We may immediately: (i) retain all Fees paid; (ii) terminate Your access rights to the Restricted Areas; and (iii) remove the Listing from the Website.
6. Terms of Use and Privacy Statement. The Website Terms of Use and Privacy Policy are posted on the Website (collectively, the "Website Policies"). The Website Policies, as modified from time to time, are adopted and incorporated into this Agreement by reference as if fully restated herein. The Website Policies shall apply to Your performance of this Agreement as well as Your access and use of the Website, to the extent not expressly contradicted herein.
7. Intellectual Property. The Website and all graphics, images, content, compilation, databases, layout and trademarks provided in connection with or related to the Website are solely owned by Us and Our licensors and are protected by applicable copyright, trademark, trade secret and other laws. Your right to access and use the Website and Our intellectual property constitutes a license only. Neither party has the right to use or display the trademarks or intellectual property of the other without prior written consent, and no such authorized use shall grant any right, title or interest in such property.
8. Term and Termination. This Agreement shall be effective beginning on the date You submit Your Listing Application and payment of the Fee in full, and it shall continue in effect through the earlier of the date on which either party terminates this Agreement as provided herein or Your failure to timely renew this Agreement for an additional term by submitting your renewal Fee on or before the renewal date of Your Listing Application. At any time during the initial term of this Agreement or any renewal term, either party may elect to terminate this Agreement for any or no reason by delivering to the other party written notice of termination at least seventy-two (72) hours days prior to the time termination is to be effective. Additionally, either party may terminate this Agreement upon the giving of written notice in the event that the other party materially fails to perform its obligations under this Agreement, provided that the party receiving the notice of default fails to cure the default within three (3) calendar days after the notice date. In any event, this Agreement shall terminate automatically without notice or a right to cure upon either party's assignment for the benefit of creditors or any commencement by or against a party of any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws or laws of debtor's moratorium.
9. Post-Termination Obligations. Upon any termination of this Agreement: (i) We shall remove the Listing from the Website; (ii) all rights and licenses granted hereunder shall immediately cease; (iii) You shall pay within three (3) business days all Fees due, if any, for Services provided by Us through the effective date of termination. Paragraphs 5 through and including 13 shall continue and survive any termination of this Agreement to the extent provided therein. Notwithstanding any termination of this Agreement, You shall remain liable for all transactions conducted and all information and Listings posted by You or any Authorized Person using the Website prior to termination. In the event that You decide to re-enroll on the Website after termination of Your Listing for any reason under Paragraph 8 above, upon Our acceptance of Your re-enrollment Listing Application You will be considered a new Website member from the date Your Listing Application is accepted, and You shall be liable for all applicable Services Fees at the rates in effect at the time of Your re-enrollment.
10. Indemnity. If You provide any Listing for the Website, or if You violate any provision of this Agreement or the Website Policies, You are liable to Us for Your actions, and in the event We are threatened with lawsuit or are sued by any person on account of Your activities or the activities of any Authorized Person, including but not limited to any claim of infringement of intellectual property rights (a "Claim"), You agree to indemnify, defend and hold harmless Us and our employees, directors, affiliates, users and customers, from and against all claims, demands, damages and losses claimed by such person, and You agree to and shall pay all related costs and expenses, including reasonable legal fees, that We incur. We reserve the right to remove any allegedly offending Listing from the Website upon Our receipt of notice of a Claim without liability to You.
11. Disclaimer. OTHER THAN AS EXPRESSLY SET FORTH HEREIN, WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND WHETHER ORAL OR WRITTEN, AND WE EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTY AGAINST INFRINGEMENT AND IMPLIED WARRANTIES ARISING UNDER SUBTITLE 4 OF TITLE 22 OF THE MARYLAND ANNOTATED CODE COMMERCIAL LAW ARTICLE. UNLESS THE WARRANTY IS EXPRESSLY STATED HEREIN, THERE IS NO WARRANTY THAT THE WEBSITE, THE SERVICES OR ANY INFORMATION OR EFFORTS PROVIDED BY US WILL FULFILL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS. EXCEPT AS SET FORTH EXPRESSLY IN THIS AGREEMENT, WE SHALL NOT BE LIABLE FOR THE QUALITY OR ACCURACY OF INFORMATION PROVIDED BY YOU, ANY AUTHORIZED PERSON OR THIRD PARTY FOR OR VIA THE WEBSITE, INCLUDING ALL LISTINGS. WE RESERVE ALL RIGHTS NOT EXPRESSLY GRANTED HEREIN. WEBSITE TECHNICAL SUPPORT AND OTHER STAFF SERVICES ARE PROVIDED ON A BEST EFFORTS BASIS AND ARE NOT WARRANTED FREE OF ERROR.
12. Limitations of Liability. YOUR SOLE REMEDY IN THE EVENT OF A CLAIM AGAINST US FOR BREACH OF ANY REPRESENTATION OR WARRANTY OR THIS AGREEMENT SHALL BE FOR US TO REPAIR, REPLACE OR OTHERWISE CORRECT THE WEBSITE AND/OR YOUR LISTINGS. IN NO EVENT WILL WE, OUR OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS BE LIABLE TO YOU, ANY AUTHORIZED PERSON, OR YOUR EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS OR STOCKHOLDERS, UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION: (i) IN AN AMOUNT THAT EXCEEDS ONE DOLLAR; AND/OR (ii) FOR SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR INDIRECT DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES), OR LOSS OF GOODWILL OR PROFIT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. THE LIMITATIONS ABOVE SHALL NOT APPLY IF WE ARE PROVEN BY CLEAR AND CONVINCING EVIDENCE TO HAVE ENGAGED IN WILLFUL MISCONDUCT OR ACTED WITH GROSS NEGLIGENCE. NO LIABILITY SHALL ARISE FOR FAILURE TO PROVIDE THE WEBSITE IF DUE TO ANY CAUSE BEYOND OUR CONTROL.
13. Miscellaneous. All services other than the Services identified herein shall be provided by Us pursuant to the terms of a separate written agreement executed by both parties. This Agreement and all documents referenced herein represent the entire understanding between the parties and supersede all prior written or oral agreements. Any waiver or modification of this Agreement will not be effective unless executed in writing and signed by the authorized representatives of the parties. In the event of any direct conflict between this Agreement and any document referenced herein, this Agreement shall control. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity and the remainder of that provision and all remaining provisions of this Agreement shall continue in full force and effect. All notices required or requested herein shall be delivered via electronic mail or regular mail and shall be effective the date on which receipt is confirmed. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Maryland excluding its conflicts of laws provisions. The parties consent to the sole and exclusive jurisdiction and venue of the Courts of Baltimore County, Maryland and to the jurisdiction and venue of the United States District Court for the District of Maryland located in Baltimore, Maryland. All parties WAIVE THE RIGHT TO A JURY TRIAL on all matters arising out of or relating to the construction, performance or breach of this Agreement. The prevailing party in any dispute shall be entitled to recover from the other party its costs, including reasonable attorneys' fees. In the event that We retain the services of an attorney to collect any monies due hereunder or to enforce any provision of this Agreement, We shall be entitled to collect from You our actual costs incurred, including all attorneys' fees. You may not assign this Agreement without our prior written consent, in our sole discretion. We may assign this Agreement at any time. No agency, partnership, joint venture or employment is created as a result of this Agreement. Except as expressly provided herein, neither party has any right or authority to assume or create any obligations of any kind or to make any representation or warranty on behalf of the other party or to bind the other party in any manner whatsoever. Except for the obligation to pay Fees which shall in no event be excused, no party shall be liable by reason of any failure or delay in the performance of its obligations due to strikes, riots, fires, explosions, acts of God, war, terrorist act, governmental action or any other cause which is beyond its reasonable control, provided that the affected party addresses the matter with reasonable diligence and speed. Other than the parties to this Agreement (and any permitted successors or assigns), there are no other intended beneficiaries of this Agreement and no third parties shall have the right to sue on or enforce this Agreement.
14. Questions and More Information. If You have any questions regarding this Agreement or the matters addressed in it, You may contact Us. We may be reached care of: Richard Darnell, Authorized Member, The J Xander Group, LLC t/a JX Group, Baltimore, Maryland , 21222, 800.359.1320 (phone), 800.359.1320 (fax), thejxandergroup@comcast.net.
Effective: February 24, 2005