THIS WEB SITE TERMS OF USE (“AGREEMENT”) IS A LEGAL DOCUMENT BETWEEN YOU (“CUSTOMER”) AND PAD4PAD, LLC (“Pad4Pad”). THIS AGREEMENT STATES THE TERMS AND CONDITIONS UNDER WHICH YOU MAY ACCESS AND ADVERTISE REAL ESTATE ON THE Pad4Pad WEB SITE (“the Site”). PLEASE READ THIS AGREEMENT CAREFULLY BEFORE AGREEING TO ACCESSING AND ADVERTISING ON THE SITE. BY CLICKING THE ACCEPT BUTTON AND ACCESSING AND USING THE Site, YOU INDICATE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, USER SHALL CLICK THE REJECT BUTTON AND SHALL NOT USE OR ADVERTISE REAL ESTATE ON THE Site.

WEB SITE TERMS OF USE

This Web Site Terms of Use ("Agreement") is made as of the Effective Date, by and between Pad4Pad, a Colorado limited liability company (“Pad4Pad”) and you, the party identified as Customer (“Customer”).

RECITALS

 

            WHEREAS, Pad4Pad is in the business of offering individuals and entities a fee-based opportunity to advertise real estate on the Pad4Pad website (the “Site”);

 

            WHEREAS, the Site’s advertising focuses on individuals from different locales who desire to “swap” their advertised real estate with a third party who also advertises their real estate on the Site;

 

WHEREAS, the Site permits the general public to view all real estate advertisements;   

 

WHEREAS, the website increases the likelihood that advertised real estate will be swapped or purchased by a visitor of the Site;  

 

WHEREAS, in light of the foregoing, the Customer desires to pay Pad4Pad to advertise real estate on the Site subject to the provisions herein;

 

            NOW THEREFORE, in consideration of the recital, covenants and consideration set forth herein, the receipt and adequacy of which are hereby acknowledged, Pad4Pad and Customer hereby agree as follows:

 

AGREEMENT

 

            1.         Definitions. 

 

                        The following definitions shall apply to this Agreement:

 

                        a)         "Account." Customer identifier created and maintained in the Pad4Pad system to enable Customer's use of the Services.

 

                        b)         “Intellectual Property.”  All (i) copyrights (including, without limitation, the right to reproduce, distribute copies of, display and perform the copyrighted work and to prepare derivative works), copyright registrations and applications, trademark rights (including, without limitation, registrations and applications), patent rights, trade names, trade secrets, moral rights, author's rights, privacy rights, publicity rights, algorithms, rights in packaging, goodwill and other proprietary rights, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or any other state, country or jurisdiction; (ii) intangible legal rights or interests evidenced by or embodied in any idea, design, concept, technique, invention, discovery, enhancement or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; and (iii) all derivatives of any of the foregoing.

 

                        c)         "Products." Those real estate products or advertisements that Customer purports to sell or trade, for which the Services (as defined below) will be rendered under this Agreement.

 

                        d)         "Services.”  Those Internet real estate advertising services (and other services which may be offered by Pad4Pad in the future) to be provided to Customer which includes the advertisement and display of information on the Pad4Pad website (the “Site”) whereby such information advertised is solely provided by Customer (each a "Service" and collectively the "Services").

 

            2.         Services and Fees.

 

                        a)         Customer may add (an) additional Service(s) or Product(s) by contacting Pad4Pad and such request shall be incorporated into this Agreement. Any Service or Product added subsequently to the execution of this Agreement will be provided to Customer at the then current price or at a price mutually agreed upon by the Parties.  Additionally, Customer shall be granted the option to modify or delete or modify any information relating to any Product via the Site by accessing the Customer’s account via the Password provided to Customer by Pad4Pad.  The Effective Date shall be the first date by which a Password is assigned to Customer by Pad4Pad.

 

b)                  Customer agrees to purchase a Service or Product for the fees set forth on the Site (the “Fees”) and that any subsequent variations in fees offered by Pad4Pad to any third party shall not affect Customer’s obligations set forth herein. 

 

c)                  Customer agrees that in the event Customer renews any Service or Product set forth herein, Customer shall pay the then current Fee for such Service or Product.

 

d)                 Customer agrees to receive and accept emails from Pad4Pad and other third parties via the Site.

3.              License.  Agreement, Pad4Pad grants to Customer a personal, non-exclusive non-transferable license, without the right to sublicense, to access and use the Site.  Customer’s access and use is limited to Customer’s duplication and display of the Site for Customer’s own use.  Customer agrees that it will not, and will not allow, its directors, officers, business partners, or employees or agents to:

 

a)                   Copy, reproduce, modify, sell, lease, sub-license, market or commercially exploit in any way the Site or any component thereof (including the further distribution or blank forms or templates) other than as expressly agreed to in this Agreement;

 

b)                  Use, or permit the use of, the Site except for Customer’s internal purposes.  Customer agrees that it shall not provide access to or perform services for third parties using the Site including, but not limited to, any service bureau, time-sharing, lease, distribution or re-sale, rental, application service provider arrangement, or any other arrangement; or

 

c)                  Disclose or grant access to an access code to the Site or any component thereof to any third party.

 

4.              Term and Termination.

 

                        a)         The term of this Agreement shall be the term for which the Fees were paid via the Site.

 

                        b)         In the event that Pad4Pad reasonably believes that Customer's conduct (including, without limitation, intentionally transmitting inaccurate data to Pad4Pad for display on the Site) or its Products (collectively, the “Content”) violate applicable law or pose a threat to Pad4Pad's systems, equipment, processes, or Intellectual Property (the "Threatening Condition"), Pad4Pad will provide Customer with notice of the Threatening Condition, upon receipt of which Customer agrees to exercise best efforts to cure said Threatening Condition. If in the reasonable and good faith determination of Pad4Pad, the Threatening Condition poses an imminent or actual threat to Pad4Pad's systems, equipment, processes, or Intellectual Property, Customer agrees to suspend any and all activity on Customer's Account until such threat is cured; but, Pad4Pad may suspend the Account until the threat is cured if Customer does not suspend activity on the Account. In any event, Pad4Pad may terminate this Agreement without further requirement of notice if the Threatening Condition remains uncured more than five (5) calendar days after Customer is notified of the Threatening Condition.

5.              Intellectual Property. As between Customer and Pad4Pad, Pad4Pad Intellectual Property shall remain the sole and exclusive property of Pad4Pad, which includes, but is not limited to, all copyrights, trademarks, patents, trade secrets and any other proprietary rights. 

6.              Site Maintenance.  Pad4Pad shall operate and maintain the Site server (“Server”) in good working order. 

7.              User Responsibilities, Password Protection.  As part of the registration and account creation process Customer will need a Login ID and a Password.  Customer may not select a Login ID which is identical to that used by another person.  Customer shall be solely responsible for maintaining the confidentiality of Customer’s Password.  Customer is solely responsible for all usage or activity on Customer’s Pad4Pad account, including but not limited to use of Customer’s Login ID and Password by any third party.   Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of Customer’s account, in Pad4Pad's sole discretion, and Pad4Pad may refer Customer to appropriate law enforcement agencies.

8.              Customer Hardware and Software.  Customer is responsible for obtaining all hardware, software and services which are necessary to connect to the Site including without limitation, all computers, web browsers, and services provided by an Internet service provider. 

9.              Provision of Releases.  At its sole option, Pad4Pad shall be entitled to prepare new versions of the Site or additional Services (“Update Releases”).  In the event Services are added, Customer shall pay for such Services at the then current fee.

10.          Right to Modify the Site.  Pad4Pad may from time to time, in its sole discretion, change some or all of the functionality or any component of the Site or make any modification for the purpose of improving the performance, service quality, error correction or to maintain the competitiveness of the Service. 

11.          Pad4Pad Warranties and Liability Limits.

 

a)           Limited Warranty.  PAD4PAD WARRANTS THAT THE SITE AND ANY SERVICES PROVIDED UNDER THIS AGREEMENT WILL SUBSTANTIALLY CONFORM TO ANY SITE DOCUMENTATION. 

 

           b)         Warranty Disclaimer.   EXCEPT AS SET FORTH HEREIN, PAD4PAD HEREBY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND INFRINGEMENT.

 

           c)         Exclusive Remedy.  EXCEPT AS PROVIDED IN SECTION 4 AND 14 OF THIS AGREEMENT, CUSTOMER’S EXCLUSIVE REMEDY FOR A BREACH OF THIS AGREEMENT SHALL BE FOR PAD4PAD TO REPERFORM THE DEFECTIVE SERVICE(S) OR AT PAD4PAD’S ELECTION, TO REFUND THE PRICE PAID FOR THE PORTION OF PAD4PAD SERVICE THAT IS DEFECTIVE.

 

           d)         Limitation of Damages.  PAD4PAD AND ITS SUPPLIERS SHALL HAVE NO LIABILITY WHATSOEVER TO CUSTOMER OR ANY OTHER PERSON FOR OR ON ACCOUNT OF ANY LOST DATA, LOST PROFITS, INJURY, LOSS, OR DAMAGE, OF ANY KIND OR NATURE, INCLUDING INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES.

 

e)         Limitation of Liability. 

 

i)         FOR ANY BREACH OR DEFAULT BY PAD4PAD OF ANY OF THE PROVISIONS OF THIS AGREEMENT, OR WITH RESPECT TO ANY CLAIM ARISING HEREFROM OR RELATED HERETO, PAD4PAD AND ITS LICENSORS’ ENTIRE LIABILITY, IF ANY, SHALL IN NO EVENT EXCEED THE FEES PAID TO PAD4PAD BY CUSTOMERS PURSUANT TO THIS AGREEMENT IN THE CALENDAR YEAR IN RESPECT OF WHICH THE CAUSE OF ACTION FIRST AROSE EVEN IF THE CAUSE OF ACTION IS A CONTINUING ONE.  CUSTOMER ACKNOWLEDGES THAT THE PRICES QUOTED HEREIN ARE CONSIDERATION FOR THE STATED LIMITS OF LIABILITY IN THIS PARAGRAPH 12.

 

ii)         NO PARTY MAY BRING AN ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATED TO THIS AGREEMENT (OTHER THAN TO RECOVER FEES OR EXPENSES DUE TO PAD4PAD) MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION HAS ARISEN OR THE DATE OF DISCOVERY OF SUCH CAUSE, WHICHEVER IS LATER.

 

           iii)        BOTH PARTIES AGREE THAT PAD4PAD HAS NO OBLIGATION TO MONITOR OR REGULATE THE CONTENT OF THE SITE OR THE RIGHT TO ASCERTAIN CUSTOMER’S RIGHT TO HAVE PAD4PAD PERFORM THE SERVICES WITH RESPECT TO THE PRODUCTS UNDER THIS AGREEMENT.

12.          Customer Indemnity.  Customer agrees to indemnify and hold Pad4Pad, its affiliates, employees, officers, directors and shareholders harmless from and against any claims, suits, actions or proceedings (a “Claim”) brought and damages, costs (including attorney’s fees) or judgments awarded against Pad4Pad that arise from or in connection with: (i) claims by any person or entity to the extent that such Claims are based upon or arise out of the Customer’s acts or omissions; (ii) breach by the Customer of this Agreement, (iii) the Customer’s failure to comply with all applicable laws; and (iv) unauthorized use of the Site by Customer, its employees or agents. Additionally, Customer hereby agrees to indemnify, defend and hold harmless Pad4Pad from and against any claims for a commission or other compensation made by a broker, brokerage firm, listing agent or finder with whom it has dealt or allegedly dealt. The provisions of this Section 13 shall survive the termination of this Agreement.

13.          Pad4Pad shall give Customer prompt written notice of such claims, permit the Customer to defend and/or settle such claims, and give Customer all information and assistance reasonably requested by Customer in connection with such Claims.

14.          Pad4Pad Intellectual Property Indemnity and Exclusive Remedies For Infringement.  Pad4Pad warrants that the Site and Service provided hereunder does not and will not infringe upon or violate any patent, copyright, trade secret, or other proprietary or property right of any person or entity.  In the event of a claim against Customer asserting or involving such an allegation, as Customer’s exclusive remedy, Pad4Pad will defend, at Pad4Pad’s expense, and will indemnify Customer and hold Customer harmless against any loss, cost, expense (including attorneys’ fees), or liability arising out of such claim, whether or not such claim is successful.  In the event an injunction or order should be obtained against use of the Site by reason of the allegations, or if in Pad4Pad’s opinion the Site is likely to become the subject of such a claim of infringement, Pad4Pad will, at its option and in its expense, and as Customer’s exclusive remedy,  (a) procure for the Customer the right to continue using the Site; (b) replace or modify the same so that it becomes noninfringing (such modification or replacement shall be functionally equivalent to the original); or (c) if neither (a) nor (b) is practicable, for all prepaid licensee fees, repurchase the Services from Licensee on a depreciated basis utilizing a straight line (number) year period, commencing on the date of acceptance (or, if no license fees were prepaid, terminate the agreement).

15.          Assignment by Pad4Pad.  Customer acknowledges that Pad4Pad may assign some or all of its duties under this Agreement including to those entities that perform services related to this Agreement.  Customer shall not voluntarily or by operation of law assign, hypothecate, give, transfer, mortgage, sublet, license, or otherwise transfer or encumber all or any part of its rights, duties, or other interests in this Agreement or the proceeds thereof (collectively, “Assignment”), without Pad4Pad’s written consent, which consent shall not be unreasonably withheld or delayed.  Any attempt to make an Assignment in violation of this provision shall be a material default under this Agreement and any Assignment in violation of this provision shall be null and void.

16.          Independent Contractors.  The Parties to this Agreement are independent contractors.  Neither Party is an agent, representative or employee of the other Party.  Neither Party will have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party.  This Agreement will not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.

17.          Amendments and Modifications.  No amendment, modification, or supplement to this Agreement shall be binding on any of the Parties unless it is in writing and signed by the Parties in interest at the time of the modification.

18.          Integration. This Agreement constitutes the entire agreement between the Parties with regard to the subject matter hereof and thereof.  This Agreement supersedes all previous agreements between or among the Parties.  There are no agreements, representations, or warranties between or among the Parties other than those set forth in this Agreement or the documents and agreements referred to in this Agreement.

19.          Severability.  If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such illegal, unenforceable, or invalid provisions or part thereof shall be stricken from this Agreement, and such provision shall not affect the legality, enforceability, or validity of the remainder of this Agreement.  If any provision or part thereof of this Agreement is stricken in accordance with the provisions of this section, then this stricken provision shall be replaced, to the extent possible, with a legal, enforceable, and valid provision that is as similar in tenor to the stricken provision as is legally possible.

20.          Consent to Jurisdiction.  The Parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the State and Federal courts located in the State of Colorado.

21.          Choice of Law.  This Agreement shall be governed by and construed under the laws of the State of Colorado without consideration of its conflict of laws provisions.

22.          General Interpretation.  The terms of this Agreement have been negotiated by the Parties hereto and the language used in this Agreement shall be deemed to be the language chosen by the Parties hereto to express their mutual intent.  This Agreement shall be construed without regard to any presumption or rule requiring construction against the Party causing such instrument or any portion thereof to be drafted, or in favor of the Party receiving a particular benefit under the agreement.  No rule of strict construction will be applied against any person.