Applicability of these Terms and Conditions: These are the terms and conditions (“Terms and Conditions”) applicable to all Smarter Agent applications and websites (each referred to as an “Application”), and professional services (“Professional Services”) purchased or licensed under an “Order Form” executed (either in writing or online) with Smarter Agent that incorporate these terms and conditions by reference. These Terms and Conditions, together with each Order Form, are collectively referred to as the “Agreement”. These Terms and Conditions are equally applicable and enforceable as if fully stated with each Order Form in the same document. The Agreement provides the company, broker or agent (a “Customer”) with the right to use an Application and/or obtain Professional Services and is expressly conditioned and subject to Customer’s acceptance of these Terms and Conditions. Customer may execute multiple Order Forms with Smarter Agent, and each such Order Form shall also become part of the Agreement which incorporates these Terms and Conditions.
Fees and Term: The “Fees” for such use of the Application are set forth in the Order Form and are payable without set-off, deduction or counterclaim. The “Term” of this Agreement shall commence on the date of the completed Order Form and shall continue for one year and thereafter shall automatically renew for successive one-year periods, except for those individuals that purchase a single agent branded app version of an Application which shall be on a month to month. Cancellations: either party may terminate the Agreement by providing 30 days advance written notice to the other party prior to the end of any term. Customer agrees to pay all charges due through the end of the 30 day cancellation notice period. Should a cancellation occur, the customer app will redirect users to the Smarter Agent app which is made of up live brokerage applications. This is so users do not receive a poor experience, such as a deadend or error message, which reflects poorly on the Smarter Agent platform and the Customer. There is no fee for this. The Customer also has the option to redirect their app to a specific URL for a period of time prior to Smarter Agent removing their app from the Apple and Google stores and should discuss this customization with their Account Manager. The fee to redirect to another URL can be done during the notice period for which they are already paying and can also be extended for a fee past the cancelation date. Notwithstanding the foregoing notice period, Smarter Agent may terminate this Agreement and disable use of the Application if the Customer breaches any term of this Agreement and fails to cure such breach within 10 business days after notice from Smarter Agent.
Payment Terms: Customer shall make all payments due under this Agreement via credit card in advance of services being provided. Customer has provided Smarter Agent with complete and valid credit card information to enable prompt and full payment of the Fees and shall promptly notify Smarter Agent should the credit card become invalid. Customer is responsible for any sales, use, value-added and other similar taxes. Smarter Agent may charge interest on all unpaid amounts due at a rate equal to 1.5% per month or the highest rate permitted by applicable law, whichever is lower. Set-up, implementation and other development fees in all instances are not refundable.
Listings: If applicable in the Agreement, Customer and Smarter Agent will jointly apply for approval to receive data feeds from all Multiple Listing Services (MLS) where Customer is a member for purposes of providing the services. If at any time Smarter Agent is notified by an MLS that Customer is no longer a member of that MLS, Smarter Agent may terminate the services until such time as the Customer is once again authorized to receive data from the MLS.
Advertising and Marketing: Currently Smarter Agent does not place advertising in primary apps of customers consisting of their paid White Label app in App Stores, but reserves the right to do so under certain conditions. Specifically, Smarter Agent may, in its sole discretion, place advertisements in the Smarter Agent app. However, if advertising is not specified in the Customer’s Order Form and customer does not want advertising customer may cancel their app. Customer shall not be entitled to any compensation or revenue sharing from any such advertising except and to the extent expressly set forth in an Order Form. Customer shall market the Application in Customer’s trade area to make consumers aware of the Application, that it is available for download on the Customer’s website and in the app stores, and where appropriate in the Customer’s media advertising.
Use of Marks: Smarter Agent hereby grants to Customer a limited license to the trademarks owned by Smarter Agent (“Smarter Agent Marks”) solely to identify Customer as having a business relationship with Smarter Agent. Customer shall use its reasonable commercial efforts to comply in all material respects with the marketing guidelines Smarter Agent publishes from time-to-time. Customer hereby grants to Smarter Agent a limited license to use the trademarks owned by Customer (the “Customer Marks”) solely to provide the Application and to identify Smarter Agent as having a business relationship with Customer. Should either party notify the other in writing that their use of such party’s Marks does not conform to their trademark usage guidelines, such party shall immediately cease such nonconforming use and shall bring such use into conformance with said trademark usage guidelines and provide specimens of such conforming use within 20 days of receipt of notice of non-compliance. Each party understands and agrees that its use of the other party’s Marks as authorized here under does not create any right, title or interest in or to such Marks and that all such use and any goodwill associated with such Marks will inure solely to the benefit of the other party.
Ownership: As between Smarter Agent and Customer and any User, the Application and all related software, and all patent rights (including patent applications and disclosures), copyrights, trade secrets, know-how, and any other intellectual property rights therein or relating thereto (including derivative works), are and shall remain the exclusive property of Smarter Agent or its licensors. The performance of Professional Services shall not alter the provisions of the forgoing sentence, and no such Professional Services shall be performed on a “work-made-for-hire” or similar basis that would provide ownership to Customer.
Hosting & Maintenance: Smarter Agent hosts the data and software for the Application. Smarter Agent is not responsible for any outages or service interruptions that occur from time-to-time when using the Applications, including those due to software, hardware or power failures, or issues at the wireless carrier level. In addition, Smarter Agent is not responsible for the products and services provided by others, including any User’s mobile handsets or wireless data networks. Smarter Agent, in its sole discretion, reserves the right to add or remove operating systems based on commercial factors it deems relevant such as use, adoption and appeal of the operating system.
Adherence to Real Estate Laws: Each party will be responsible for ensuring their conformance to the appropriate MLS, state, local or Federal laws relating to the sale of real estate and for alerting the other to any business practice that must be instituted to meet any law or regulation.
Mutual Representations: Each of Smarter Agent and Customer hereby represents and warrants to the other that (i) it has the requisite right, power, and authority to enter into this Agreement and to perform its obligations hereunder, (ii) it knows of no law or regulation that would prohibit it from entering into and performing this Agreement, or that would conflict with this Agreement, and (iii) this Agreement has been executed by its duly authorized representative.
Disclaimer of Warranties: THE APPLICATION IS PROVIDED TO CUSTOMER AND ALL OTHERS ON AN “AS IS,” “WITH ALL FAULTS” BASIS. NO PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SMARTER AGENT SERVICE OR ANY OTHER MATTER COVERED BY THIS AGREEMENT. ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES, EXPRESS OR IMPLIED, RELATING TO ACCURACY, FREEDOM FROM INTERFERENCE WITH ENJOYMENT, OR FITNESS OF RESULTING WORK PRODUCT, ARE HEREBY DISCLAIMED.
Limitation of Liability: NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS OR LOSS OF GOODWILL) SUFFERED OR INCURRED IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS OR LICENSES GRANTED HEREUNDER, OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY OBLIGATIONS IMPOSED HEREUNDER, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
Confidentiality: All Information about the pricing and other economic terms of this Agreement (collectively, “Information”) provided by one party to the other pursuant to this Agreement shall be regarded as confidential and proprietary. Information shall not be (1) used for any purpose other than as contemplated in this Agreement or (2) disclosed in any manner to any third party, without the prior written consent of the party disclosing the Confidential Information. However, in a Merger or Sale, any third party that acquires Smarter Agent, whether through a sale of stock, sale of assets or statutory merger, will obtain access to information as part of the overall business transaction.
Governing Law and Venue: This Agreement shall be governed by, and construed in accordance with the laws of the State of New Jersey, without regard to any conflict of law principles. The state courts located in Camden County, New Jersey and federal courts located in Camden, New Jersey shall have exclusive jurisdiction to adjudicate any dispute arising out of our relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts and waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
Force Majeure: Except for payments due under this Agreement, neither party shall be responsible for any failure to perform its obligations hereunder to the extent such failure is due to causes beyond its reasonable control (each a “Force Majeure”), including, without limitation, acts of God, terrorism, war, riot, embargoes, acts of civil or military authorities, denial of or delays in processing of export license applications, fire, floods, earthquakes, accidents, strikes, or fuel crises, provided that such party gives prompt written notice thereof to the other party. The time for performance shall be extended for a period equal to the duration of the Force Majeure.
Severability, Enforcement: If any provision of this Agreement is held by a tribunal of competent jurisdiction to be illegal, invalid, or otherwise unenforceable in any jurisdiction, then to the fullest extent permitted by law (i) the same shall not affect the other provisions of this Agreement, (ii) such provision shall be deemed modified to the extent necessary in the tribunal’s opinion to render such provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest extent the intent of the parties as set forth herein, and (iii) such finding of invalidity, illegality, or unenforceability shall not affect the validity, legality, or enforceability of such provision in any other jurisdiction. Notwithstanding the foregoing, the disclaimers of warranties and limitations of liability in Sections 9 and 10 are considered by the parties to be integral to this Agreement and shall not be modified or severed from this Agreement.
Notice: Except as otherwise expressly provided herein, any notice, request, consent, demand or other communication required or permitted to be given by this Agreement must be in writing and must be personally served, commercial courier service or prepaid registered or certified mail to the address of the party set forth in the Agreement, and with respect to Smarter Agent, specifically addressed to Legal Department.
Other Terms: This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements, oral or written, and all other prior or contemporaneous communications between the parties. Except as expressly set forth herein, this Agreement may not be amended, modified, or supplemented except under the execution and delivery of a written agreement executed by the parties hereto. No term or provision of this Agreement shall be deemed waived and no breach excused unless such waiver or consent is in writing and signed by the party claimed to have waived or consented. This Agreement may not be assigned by Customer without the prior written consent of Smarter Agent and any such purported assignment shall be null and void; provided, however, that Customer may assign this Agreement to an affiliate or in connection with a consolidation, merger, or sale of substantially all of its assets to which this Agreement relates, without the consent of Smarter Agent. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. Each party is an independent contractor. Nothing herein shall be construed as creating any agency, partnership, or other form of joint enterprise between Smarter Agent and Customer. Neither party shall disclose any of the terms, conditions, or provisions of this Agreement without the prior written consent of the other party. The section and paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
Patents, Copyright & Trademark Notice
Smarter Agent holds four United States patents and other pending patents that govern the use of wireless location-detection (such as GPS and timing-triangulation, WiFi hotspot detection, etc.) to provide descriptive real estate information about a property or landmark to wireless devices such as a mobile phone or PDA. U.S. Patent Numbers: 6,385,541, 6,496,776, 7,072,665, 7,457,628, 7,599,795, 7,987,113, 8,442,550, 8,473,199, 8,731,581, 9,002,371, 9,122,704, 9,183,584, 9,754,333, 9,754,317
All contents of an Application are copyright protected by Smarter Agent. All rights reserved. “Smarter Agent” and other trademarks found on the USPTO site held by Smarter Agent. Other product and company names mentioned herein, including the names of real estate professionals, may be the trademark of their respective owners.
Delivering Information. The types of information that we collect from you has an impact on the quality and type of Services that we are able to deliver to you. We deliver information to you via: 1) The internet, Your mobile device, email, certain 3rd party vendors, partners of APIs that we have informal business or contractual relationships with ( “3rd-party Business Partner”) or via telephone or in person at our offices.
Information we collect: These are the types of information we may seek to collect from you, and many of these information points are part of the mobile app functionality or to help agents do business with consumer users:
Location Information — We collect location information associated with the use of an Application either (i) through the real time longitude and latitude from your GPS-enabled wireless device or (ii) based on location information you enter into your mobile device.
Activity Information We collect information from your usage of the Services, including any advertising you may have specifically viewed.
Property Information. We collect information about the types of properties that you have viewed.
Personal Information We collect certain information about you when your register for an Application or to use certain advanced features. This information includes name, address, email, other you share the app with and preferences.
How we collect information. We collect information from you in the following manner:
Registration. You voluntarily provide certain personal information when you register to use Applications and access advanced features at the Websites.
Usage logs. Your mobile devices and computers communicate a variety of information about how you use the Services, and a record of what information you have reviewed including real estate properties, web pages and advertisements.
Web Beacons. Web beacons are electronic files that are used to count users who have visited our Services or to identify certain cookies on the computers accessing our Services.
You may restrict the information provided to Smarter Agent. For example, you may decline to provide us with your personal information, disable cookies and use security software to prevent the storage of cookies. Restricting information will however materially reduce and diminish the value of the Services we provide to you.
How we use Information. The primary reason Smarter Agent collects information is to enable it to provide the essential and enhanced elements of the Services. Smarter Agent also collects information to enable its 3rd-party Business Partners to provide services to you, such as Real Estate Brokers who provide brokerage services. For example:
Location Information is used to provide relevant information about the properties you are in front of or in proximity with. We could not provide this information to you in the absence of this location information.
Activity Information. We attach your activity information to your user profile, and this information is used by Smarter Agent to provide you with useful information and relevant advertising.
Property Information. Knowing what type of property you are interested in is important to a REALTOR® providing brokerage services to you in tandem with Smarter Agent, or if receiving financial information or a mortgage pre-approval from a lender. Once again, this information is vital to our 3rd-party Business Partners to help you with your real estate needs.
Personal Information. We are legally required to know your identity to make certain information available to you such as MLS data
We recognize that maintaining the privacy of your personal information is important, and for this reason we do not share any of your personal information with third parties without your consent. We will not sell your personal information to any third-party or share your information with telemarketing companies or direct mail companies, and adhere to principles of mutual respect.
Compensation between parties. Smarter Agent may be compensated by its 3rd-party Business Partners if you purchase or lease a property through them.
Advertising. Our business model is not fully supported by advertising and should we work with advertiser or advertising technology we would do this to provide high quality Services to you. We would seek to make advertising relevant to you, which we are able to do this based on the information we collect during your use of our Services.
Scheduling an Appointment. When you schedule an appointment, or want to talk to a REALTOR®, or get more information:
When viewing “For Sale Properties”, we note the properties that you’ve viewed. If you request more information or request a call back to schedule an appointment to view a property, you give Smarter Agent permission to share this information within its 3rd-party Business Partners.
At the time you decide you are ready, or need to ask specific property questions, these questions by law, must be handled by a licensed REALTOR®. By law we must give you all necessary disclosures, as the buying and selling of real estate is a highly regulated industry. For example, you will be required to consent to the state mandated Consumer Information Statement, before you receive detailed property information from us. Please recognize Smarter Agent is a licensed REALTOR® and is required to meet all local, MLS, state and federal rules and regulations and laws as relates to the buying, selling and financing of real estate.
About Broker Reciprocity/VOW technology. Broker Reciprocity, or IDX/Internet Display as it is sometimes called, is a service mandated by the National Association of REALTORS®, which allows any real estate broker in an area to post listings on their website, no matter what REALTOR® actually has the listing. VOW, or Virtual Office Sites, are sites run by REALTORS® that mirror the information one could obtain if you were in their physical office. Smarter Agent provides you with IDX data, and in some instances VOW and third party data only if you are a registered user for the Services.
Security. Personally identifiable information collected by Smarter Agent is stored in operating environments that are not available to the public. This information is not stored on the Internet but on a Smarter Agent secure server. We take reasonable steps to protect this data.
Other Registration, Unsubscribe and Update Issues. Personally identifiable information may be required to receive certain products or services. Smarter Agent may disclose personally identifiable information if required to do so by law or in the good-faith belief that such action is necessary to: (a) conform to the edicts of the law or comply with legal process served on Smarter Agent; (b) protect and defend the rights or property of Smarter Agent, the Services or the users of Smarter Agent, and (c) act under exigent circumstances to protect the personal safety of users of Smarter Agent or the public.
Summary Info. Smarter Agent may share non-personal aggregate or summary information about our visitors with our 3rd-party Business Partners or other third parties, which is a customary practice on the Internet. For example, we might provide a count of our users from a particular ZIP code.
Other Sites. Smarter Agent may present advertisements or links to third parties such as our 3rd-party Business Partners. When you click on these links or enter information, you may be transferred to an advertiser or third-party’s Web site. Smarter Agent has no control over the privacy practices or information that these sites may request of you. We are not and cannot be held responsible for the privacy practices or content by these entities.
Merger or Sale of Smarter Agent. Any third party that acquires Smarter Agent, whether through a sale of stock, sale of assets or statutory merger, will obtain access to personal information as part of the overall business transaction.