THE FOLLOWING TERMS OF SERVICE AGREEMENT (THE “AGREEMENT”) DETAILS THE TERMS AND CONDITIONS FOR THE WEBSITE HOSTING, INTERNET MARKETING, IDX SOLUTIONS, EMAIL MARKETING AND LEAD MANAGEMENT SERVICES (THE “SERVICES”) PROVIDED AND ADMINISTERED BY CONSTELLATION WEB SOLUTIONS INC. D/B/A DIVERSE SOLUTIONS (REFERRED TO HEREIN AS “DIVERSE”, “DIVERSE SOLUTIONS” OR “WE”). THIS AGREEMENT CONSTITUTES A BINDING AGREEMENT BETWEEN DIVERSE AND THE DIVERSE MEMBER (“MEMBER”, “YOUR”, OR “YOU”). YOU MAY NOT ACCESS ANY OF OUR PRODUCTS UNLESS YOU FIRST REVIEW AND ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1. Term and Termination
1.1 This Agreement shall become effective upon your acceptance of the terms and conditions contained herein. For Mapping IDX Solutions and LeadManagement the agreement is for a period of one (1) year unless sooner terminated as provided below. For WordPress IDX Solutions where payment is made on a monthly basis the agreement is month to month unless sooner terminated as provided below. For WordPress IDX Solutions where payment is made as an annual amount the agreement is for a period of one (1) year unless sooner terminated as provided below. So there is not any interruption of service whether after the first month or one year period the clients’ services will continue and be charged monthly to their credit card until canceled in accordance with 1.3 below. After the first year of service, monthly renewal contracts are month to month and can be canceled in accordance with 1.3 below.
1.2 Diverse Solutions reserves the right to terminate this Agreement for any breach of the provisions in these Terms of Service, as determined by Diverse Solutions in its sole discretion. Diverse Solutions shall have no obligation to refund any of Member’s fees due to Diverse Solutions early termination of this Agreement.
1.3 If, in the first three (3) business days after your purchase of our Website Marketing, Mapping IDX Solutions, Mapping IDX Mobile, WordPress IDX Solutions, AgentReach Email Marketing or Lead Management Services, you are not satisfied for any reason with them, you may cancel this Agreement and receive a full refund minus a 10% cancellation fee. Note: There are no refunds on domain name registration or custom work/website maintenance that was done prior to canceling. Notice of such cancellation must be made by emailing Diverse Solutions’ business at [email protected] The notice must be made prior to 5 p.m. Pacific Standard Time on the third (3rd) business day after your purchase of our services. As an example, if you purchase a website on Monday, you will be eligible for a refund if you provide cancellation notification by 5 p.m. Pacific Standard Time on Thursday. After the three (3) day cancellation period described above, Members with month to month agreements may cancel the monthly service by providing us with 30 days prior notice by emailing Diverse Solutions’ business at [email protected] or using the Discontinue Services Form and then accepting a cancel notice sent to You via email. Cancellation is not effective until such cancel notice is accepted by You. You will be responsible for any charges incurred after the 30 day notice is given, including but not limited to, your final monthly charge.
2. Fees and Payments
2.1 You shall pay the fees and other charges for the Services as stated your invoice or in this Agreement. All fees are due immediately and, except as expressly provided herein, are non-refundable. By using the Services, you authorize Diverse Solutions to charge recurring fees to your credit card on file on a monthly or annual basis and in amounts based on the Services you purchase as set forth herein. You acknowledge that this authorization to Diverse Solutions is valid for as long as you receive the Services. Diverse Solutions reserves the right to change its fees at any time. You shall make all payments in U.S. currency. Your credit card will be billed in advance for any and all fees. In the event that the Account is over 90 days past due the total value of the contract will be due immediately and will be turned over a collection agency if not paid immediately. Diverse Solutions reserves the right to suspend or terminate your account if credit card charges are denied. Such suspension or termination shall not relieve you of the obligation to pay the fees due. You agree to pay Diverse Solutions its reasonable expenses, including attorneys’ and collection agency fees, incurred in enforcing its rights under this Agreement.
2.2 Clients that prepaid their Mapping IDX or WordPress IDX solution hosting for the year will continue after the first 12 months at a monthly rate no less than the rate stated on Diverse Solutions’ website. Monthly clients will continue as normal being charged at a monthly rate no less than the rate stated on Diverse Solutions’ website. All charges will be monthly and be charged to the credit card we have on file after the first year unless otherwise specified.
3. Mapping IDX Solutions
3.1 Diverse Solutions reserves all rights to provided design and proprietary programming for Mapping.
3.2 Set up times can vary depending on the MLS. Typical setup times are from 7 to 10 business days providing the customer correctly fills out and returns needed MLS paper work in one (1) business day. Additional delays by the MLS are not accounted for here and may happen.
3.3 Mapping IDX and its modules can only be used on one website. If you would like to use it on more than one website you must purchase additional licenses. In addition there is a 5000 monthly visitor maximum to the IDX solutions and modules. If you go over this maximum we congratulate you. You are getting a lot of traffic. However, you will need to buy another license to allow more monthly visitors to use your Mapping IDX solution. Please see your sales representative for more details.
3.4 Make sure you are versed on your MLS’s rules for IDX solutions. While we make every effort to keep up on rules for individually MLS’s regarding IDX solutions we cannot be responsible if your Mapping IDX solution is not compliant. You are completely responsible for all penalties and fees assessed by your association or MLS.
4. Mapping IDX Mobile Solutions
4.1 Diverse Solutions reserves all rights to provided design and proprietary programming for Mapping IDX Mobile.
4.2 Set up times can vary depending on the MLS. Typical setup times are from 7 to 10 business days providing the customer correctly fills out and returns needed MLS paper work in one (1) business day. Additional delays by the MLS are not accounted for here and may happen.
4.3 Mapping IDX Mobile can only be used on one website per license. If you would like to use it on more than one website you must purchase additional licenses. In addition there is a 5000 monthly visitor maximum to the IDX solutions and modules. If you go over this maximum we congratulate you. You are getting a lot of traffic. However, you will need to buy another license to allow more monthly visitors to use your Mapping IDX solution. Please see your sales representative for more details
4.4 Make sure you are versed on your MLS’s rules for IDX solutions. While we make every effort to keep up on rules for individually MLS’s regarding IDX solutions we can not be responsible if your Mapping IDX solution is not compliant. You are completely responsible for all penalties and fees assessed by your association or MLS.
5. WordPress IDX Plugin
5.1 Diverse Solutions reserves all rights to provided design and proprietary programming for WordPress IDX.
5.2 Set up times can vary depending on the MLS. Typical setup times are from 7 to 10 business days providing the customer correctly fills out and returns needed MLS paper work in one (1) business day. Additional delays by the MLS are not accounted for here and may happen.
5.3 Each WordPress license key can only be used on one domain name or WordPress site. If you would like to use it on more than one domain name or WordPress site you must purchase additional licenses. In addition there is a monthly 50,000 page request maximum to the WordPress IDX solution. If you go over this maximum we congratulate you. You are getting a lot of traffic. However, you will need to buy another license to allow more monthly page requests. Please see your sales representative for more details.
5.4 Make sure you are versed on your MLS’s rules for IDX solutions. While we make every effort to keep up on rules for individually MLS’s regarding IDX solutions we cannot be responsible if your WordPress IDX solution is not compliant. You are completely responsible for all penalties and fees assessed by your association or MLS.
5.5 Any modifications made to the WordPress plugin are strictly prohibited. Any unauthorized or unintended use of the WordPress IDX API is prohibited. Those that violate these rules are subject to service termination.
6. AgentReach, Envoy and Web Mail Acceptable Use Policy
6.1 Diverse Solutions has adopted the following Acceptable Use Policy in order to assure that its electronic messages are used in a lawful and appropriate manner. While Diverse Solutions does not ordinarily monitor the content of users’ messages, it reserves the right to investigate reports of misuse of its service and to protect its property and assets. The following conduct is prohibited on the service: (a) sending harassing, abusive, or threatening messages; (b) sending obscene or pornographic messages or images; (c) sending defamatory or libelous messages; (d) sending viruses or other harmful, disruptive, or destructive files; (e) attempting to steal passwords or credit card information; (f) sending messages in furtherance of unlawful, criminal, or fraudulent activity; or (g) attempting to conceal or misrepresent the identity of the sender.
6.2 Violations of the Diverse Solutions Acceptable Use Policy will not be tolerated and may result in termination of service. Diverse Solutions may disable the sender’s account without compensation or refund. DIVERSE RESERVES THE RIGHT IN ITS SOLE DISCRETION TO DISCLOSE TO THIRD PARTIES, INCLUDING MESSAGE RECIPIENTS, THEIR COUNSEL, AND/OR LAW ENFORCEMENT AUTHORITIES, RELEVANT INFORMATION ABOUT A COMMUNICATION, INCLUDING, BUT NOT LIMITED TO, THE SENDER NAME, ACCOUNT INFORMATION, MEMBER AND COOKIE NUMBERS, TRANSMISSION DATA, PAST AND SUBSEQUENT SERVICE USE, AND ANY OTHER INFORMATION DEEMED NECESSARY BY DIVERSE TO ADDRESS PAST VIOLATIONS OF THE ACCEPTABLE USE POLICY AND TO PREVENT FUTURE VIOLATIONS. THESE DISCLOSURES MAY BE MADE WITH OR WITHOUT PRIOR NOTICE TO YOU. BY USING THE SERVICE, YOU IRREVOCABLY CONSENT TO SUCH DISCLOSURES.
7. Technical Support, Maintenance and Training
7.1 Unlimited online and email technical support along with 1 hours of phone technical support is included with all services monthly.
7.2 Diverse Solutions will not tolerate rude behavior, abusive behavior or any type of threats by the client in any way. This will be considered a breach of agreement. Any client doing so is subject to contract termination at Diverse Solutions’ discretion.
7.3 Additional information can be found on our various community forums and wiki pages. Training can be found on one of our many webinars that we offer throughout the week.
7.4 If maintenance is required it will be billed at our hourly rate. Maintenance may include minor fixes (textual changes, logo change, new agent photo, building links, etc.). Change requests will normally be completed within (5) business days of receipt via email to your account manager.
8.1 Diverse Solutions is not responsible for the content of any web page hosted by Diverse Solutions. The opinions and views expressed in such web pages do not necessarily reflect those of Diverse Solutions. The contents of the web pages hosted by Diverse Solutions are not reviewed in any way before they appear on the web page. As the author of web pages hosted on Diverse Solutions websites, you take full responsibility for their contents. Do not use the web space provided by Diverse Solutions to provide material that is offensive to the web community including, but not limited, expressions of bigotry, racism, hatred or profanity or for promoting or providing instructional information about illegal activities or promoting physical harm or injury against any group or individual.
8.2 Your web pages cannot contain, or provide links to, materials that Diverse Solutions, in its sole discretion, may consider illegal or offensive including, but not limited to: (a) copyrighted material not belonging to you — for example, music, images, software or video — unless you have the prior consent of the copyright owner; (b) trademarked materials not belonging to you without the prior consent of the trademark owner; (c) pornography, nudity, sex or any other material that would commonly be considered “indecent” or “appealing to the prurient interest”; (d) gambling; (e) foul language; (f) pyramid or other illegal solicitation schemes; or (g) insults to other persons or businesses including, but not limited to, material that is obscene, threatening, harassing, defamatory or libelous.
8.3 You shall not use your web pages to conduct any of the following activities:
(a) send bulk/spam e-mail; (b) send mass/spam news postings; (c) disclose the trade secrets of any other person or entity; (d) use patented or trademarked materials without the prior consent of the patent or trademark owner; (e) rent, sell or otherwise distribute web space to third parties; or (f) conduct any other activity that Diverse Solutions determines, in its sole discretion, to be fraudulent, illegal or an unreasonable drain on system resources.
8.4 The financial calculators are made available to you “AS IS” for your independent use and are not intended to provide investment advice. We cannot and do not guarantee their applicability in regards to your individual circumstances. DIVERSE MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, REGARDING THE FINANCIAL CALCULATORS INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9. Member Communication
Diverse Solutions reserves the right to send Member service e-mails notifying Member of operational or other changes that may affect or change the Services offered by Diverse Solutions. Please note that you cannot opt out of such service e-mails because these service e-mails provide information critical for the operation of Member’s website. MEMBER HEREBY GRANTS DIVERSE EXPRESS WRITTEN PERMISSION TO SEND FAX AND OR EMAIL SOLICITATIONS OR ADVERTISEMENTS, THUS SATISFYING ANY EXPRESS WRITTEN PERMISSION REQUIREMENT
10. Amendments and Modifications
Diverse Solutions reserves the right to amend the Service offerings and add, delete, suspend or modify the terms and conditions of the Services at any time and to determine whether and when, at its sole discretion, any such changes apply to existing or future Members.
11.1 We take spam very seriously here. You may not use any of our products or services to send online messages or cards to mailing lists to which you do not have full rights or to send unsolicited bulk or commercial messages. In addition, the use of automated scripting-type programs that automate the process of sending or viewing any of the Materials is strictly prohibited. In addition you must comply with the Federal CAN-SPAM Act. Diverse Solutions reserves the right to limit, in its sole discretion and without prior notice to you, the number of cards or messages that you may send using any of our products or services and/or the number of recipients to which you send such cards or messages.
11.2 You are solely responsible for your actions and communications undertaken or transmitted using this Site. Neither we nor our affiliates exercise editorial control over your transmissions; however, we do reserve the right to review your uploads and transmissions in order to ensure compliance with these Terms.
12. Limitation of Liabilities
12.1 General. IN NO EVENT WILL DIVERSE BE LIABLE TO MEMBER FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, INDIRECT, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOST PROFITS OR LOSS OF BUSINESS) ARISING OUT OF OR RELATED TO (I) THE SERVICES, (II) YOUR USE OF ANY DATA, INFORMATION, SOFTWARE OR THIRD PARTY SOFTWARE AVAILABLE THROUGH DIVERSE, (III) THIS AGREEMENT OR (IV) MEMBER’S WEBSITE REGARDLESS OF THE NATURE OR BASIS OF THE CLAIM INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT OR STRICT LIABILITY CLAIMS. IN ADDITION, EXCEPT FOR THE SERVICE LEVEL WARRANTY SPECIFIED IN SECTION 16 HEREOF, DIVERSE SHALL HAVE NO LIABILITY OF ANY KIND OR NATURE TO MEMBER ARISING OUT OF OR RELATED TO MEMBER’S USE OF OR INABILITY TO USE MEMBER’S PURCHASED SERVICES. IN THE EVENT THAT DIVERSE IS LIABLE TO MEMBER FOR ANY LOSS ARISING OUT OF OR RELATED TO THE SERVICES, THIS AGREEMENT OR MEMBER’S WEBSITE, DIVERSE’S AGGREGATE LIABILITY TO MEMBER WILL IN NO EVENT EXCEED THE AMOUNT OF ANY ACTUAL MONETARY LOSS OR DAMAGES SUFFERED UP TO, AND NOT IN EXCESS OF, THE AGGREGATE FEES PAID, IF ANY, FOR THE SPECIFIC SERVICES WHICH GAVE RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CLAIM AROSE.
12.2 No Liability for Unauthorized Use or Access. Member is solely responsible for ensuring that each password for Member’s website is utilized only by Member or, if applicable, by Member’s authorized employees and agents. Diverse Solutions shall have no liability for any loss, claim, damage or other liability that may arise from the unauthorized use of a password. If a password is lost or stolen or if you have reason to believe that your website is no longer secure for any reason, it is your responsibility to notify Diverse Solutions of such loss or theft so that the password can be deactivated and a new password assigned. Diverse Solutions will use commercially reasonable efforts to effect password deactivation requests promptly.
13. Intellectual Property
Member acknowledges and agrees that AgentCast, Mapping IDX, Mapping IDX Mobile, WordPress IDX, Envoy and AgentReach are a valuable commercial product of Diverse Solutions, the development of which has involved expenditure by Diverse Solutions of substantial time and money. Member acknowledges and agrees that Member has no ownership rights to Mapping IDX, Mapping IDX Mobile, WordPress IDX, Envoy or AgentReach. Member further acknowledges and agrees that the name and mark, “Mapping IDX”, “Mapping IDX Mobile”, “WordPress IDX”, “AgentReach” and all associated names, marks and logos (collectively, the “Marks”) are the trademarks and/or service marks of Diverse Solutions or its affiliates, and that any trade dress, trademark, service mark or designs related to Mapping IDX, Mapping IDX Mobile, WordPress IDX, AgentReach and/or the Marks are the intellectual property of Diverse Solutions and are protected by United States copyright laws, trademark laws, trade secret laws, international treaties and applicable laws of the states and jurisdictions where they are used. This Agreement does not grant to Member any ownership right in the Marks or in any other intellectual property of Diverse Solutions. All material on Mapping IDX, Mapping IDX Mobile, WordPress IDX, Envoy and AgentReach including, but not limited to, images, illustrations and musical compositions is protected by copyrights that are owned or controlled by Diverse Solutions or by other parties that have licensed their material to Diverse Solutions. Except as otherwise provided in the following sentence, all right, title and interest in, and as to the Marks and any other intellectual property of Diverse Solutions shall remain with Diverse Solutions. Diverse Solutions grants a non-exclusive, revocable, non-transferable license to Member to use solely during the term of this Agreement the graphics, text, musical compositions, tools and modules provided by Diverse Solutions through Mapping IDX, Mapping IDX Mobile, WordPress IDX, Envoy and AgentReach; provided, however, that such graphics, text, musical compositions, tools, and modules may be used by Member only on Diverse Solutions’ server. Such license shall terminate upon the termination of this Agreement. Member shall not, under any circumstances, resell, distribute or allow any other entity or person to use any of Diverse Solutions’ products, modules, tools, scripts, graphics, text, database/programming code or object or source codes without Diverse Solutions’ prior written consent. As between Member and Diverse Solutions, the parties agree that Diverse Solutions shall own and retain all intellectual property rights, copyrights, patents and all rights, title and interest in and to all of the products, modules, tools, scripts, graphics, text, database/programming code and object or source codes provided or supplied by Diverse Solutions that are displayed on Member’s website or used in the development or the maintenance of Member’s website.
14. Domain Name
If Member wishes to register a custom domain name (“Domain Name”) for the Member’s website, Diverse Solutions will cooperate with Member in registering the Domain Name with the appropriate entity. As between Member and Diverse Solutions, Member shall own all right, title and interest in and to the Domain Name. Member shall be solely responsible for tracking and ensuring that all required renewals for Member Domain Names are made in a timely manner. Diverse Solutions will cooperate with Member to renew Domain Names. Diverse Solutions makes no representation or warranty of any kind concerning the registration of a Domain Name for Member, or concerning the automatic renewal of Domain Names on behalf of Member and under no circumstances shall Diverse Solutions be liable to Member or any other person or entity in the event that any Domain Name is either not registered or renewed in a timely manner. As part of the Services provided under this Agreement, Diverse Solutions will provide reasonable domain name server (“DNS”) assistance. If Member arranges for a third party to provide DNS and/or e-mail service, Member shall hold Diverse Solutions harmless from and against any errors made as a result of the third party’s management of Member’s DNS and/or e-mail service. If a third party provides DNS and/or e-mail service for Member, and Member requests additional services from Diverse Solutions concerning Member’s DNS and/or e-mail service, such additional services will be provided at Diverse Solutions’ then current hourly rate.
You agree that you will not attempt to compromise the security on the Diverse Solutions servers by any means including, but not limited to: (a) attempting to gain access to restricted information on the Diverse Solutions servers; (b) attempting to disable, cripple or modify Diverse Solutions servers or any service running on a Diverse Solutions server; or (c) attempting to access information in other Mapping IDX, Mapping IDX Mobile, WordPress IDX, Envoy or AgentReach accounts. Diverse Solutions reserves the right to prosecute any person or entity attempting to compromise the security of the Diverse Solutions servers to the fullest extent allowed by applicable law.
16. Links to Other Websites
As a convenience to Member, Diverse Solutions provides links to websites owned and operated by third parties not affiliated with Diverse Solutions. Member’s use of the services and products offered via any such linked website shall be at Member’s own risk and Diverse Solutions assumes no responsibility for the products and services offered via any such linked website, regardless of whether Diverse Solutions receives a referral fee for Member’s use of the linked website. Member acknowledges and agrees that Diverse Solutions shall not be held responsible for the legality, accuracy or inappropriate nature of any content, advertising, products, services or information located on or through any of the linked websites, nor for any losses or damages caused or alleged to have been caused by the use of or reliance on any content from any such linked website.
17. Disclaimer and Warranties
Member understands that the Internet and other various networking communication mediums are not secure, unless explicitly specified as such, and may be subject to interception or loss. Diverse Solutions makes no representations or warranties of any kind, either express, implied or statutory, concerning the data or information available through Mapping IDX, Mapping IDX Mobile, WordPress IDX, Envoy, AgentReach or the Internet. DIVERSE’S SERVICES ARE PROVIDED ON AN “AS IS” BASIS. DIVERSE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT; THAT THE SERVICES WILL MEET MEMBER’S REQUIREMENTS OR WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR; ANY IMPLIED WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE; REGARDING ANY THIRD PARTY SOFTWARE OR SERVICES; AND/OR ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF DIVERSE. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, DIVERSE DISCLAIMS ANY AND ALL SUCH REPRESENTATIONS AND WARRANTIES.
All of the Material available on Mapping IDX, Mapping IDX Mobile, WordPress IDX, Envoy and AgentReach, original Material residing on Mapping IDX, Mapping IDX Mobile, WordPress IDX, Envoy and AgentReach templates, and Material residing on Diverse Solutions’ client websites at the time of original creation are copyrighted © 2005-2018, Diverse Solutions or used under license. Diverse Solutions currently utilizes copyrighted materials from individuals and entities. The copyright information for each licensor is indicated on the applicable portion of the Site, and/or on the electronic messages incorporating their content.