BROKER TERMS AND CONDITIONS
These Broker Terms and Conditions ("Terms and Conditions") are incorporated into and are made a part of the Broker Agreement (the "Agreement") between you ("Broker") and The Society of Leisure Enthusiasts (the "Company") and apply to Broker's use of www.theSociety.com (the "Site") for the rental of certain residential properties (each a "Property") managed by Broker.
1) The Society is a Venue
1.1 The Company is not a party to the rental transaction. The Company does not own nor can it contract for any vacation rental property listed on the Site. Instead, the Site acts as a venue to allow Broker to offer for rent, or rent, in a variety of pricing formats, a specific vacation rental Property. The Company is not involved in the actual transaction between Broker and renter although the Company provides tools, such as direct booking, that enables a renter to enter into a rental transaction. As a result, the Company has no control over the ability of renters to pay for rentals and the Company cannot ensure that a renter will actually complete a transaction. Consequently, the Company does not make any representations regarding any transaction between Broker and the renter.
1.2 Identity Verification. The Company uses certain techniques to verify the accuracy of the information our registered users provide when they register on the Site. However, because user verification on the Internet is difficult, the Company cannot and does not confirm each user's purported identity or any of the information the user provides.
1.3 Release of Claims. Because the Site is a venue, in the event that Broker has a dispute with one or more renters, Broker hereby releases the Company and its officers, directors, agents, subsidiaries, joint ventures and employees from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any such disputes. If there are laws in existence that would attempt to establish that the Company is a party to any claim, demand or damages, Broker specifically agrees to waive its rights under such laws or statutes. If Broker is a California resident, Broker hereby waives California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
1.4 Information Control. The Company does not control all of the information provided by registered users that is made available on the Site, including reviews and comments regarding the condition and location of Properties. Broker hereby acknowledges that it may find information on the Site to be inaccurate or deceptive and agrees that the Company shall not have any liability based on the publication of any such content. By its execution hereof, Broker agrees to accept such risks and agrees that the Company is not responsible for the acts or omissions of its registered users or any information contained on the Site.
2) Listing a Property
2.1 Listing Description. Broker must be legally able to list the Property(ies) listed by Broker on the Site. Each Property must be available for rent, must be unique, and under management by Broker. Broker must describe the property, provide photographs that Broker has the right to provide and complete any tick boxes that will aid the Company's search engines to find Broker's Property(ies) when it meets the criteria of a potential renter. Broker's listings may only include text descriptions, graphics, pictures and other content relevant to the specific Property. Broker may not list a Property as a "sample" or "example" of its total inventory. The Site will assign a Property to a location that Broker requests UNLESS Broker is misrepresenting the location of the Property. In such case, the Site will list the Property as to its true location unless Broker decides to remove the Property from the Site's inventory. Broker shall establish its own policies regarding rates, deposits, payment schedules, check-in and check-out, etc. Broker shall have sole responsibility to keep all such information up to date on the Site.
2.2 Fraud. Without limiting any other remedies, the Company may suspend or terminate Broker's account if the Company suspects that Broker (by conviction, settlement, insurance or escrow investigation, or otherwise) has engaged in fraudulent activity in connection with the Site.
3) Broker's Information
3.1 Definition. "Broker's Information" is defined as any information Broker provides to the Company in the listing process, whether directly or through a third party. Broker is solely responsible for Broker's Information, and the Company shall act solely as a passive conduit for online distribution and publication of Broker's Information.
3.2 Restricted Activities. Broker represents and warrants that Broker's Information (or any items listed) shall not: (a) be false, inaccurate or misleading; (b) be fraudulent; (c) infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (d) violate any law, statute, ordinance or regulation (including, but not limited to, those governing consumer protection, antidiscrimination or false advertising); (e) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (f) be obscene or contain child pornography; (g) contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (h) create liability for the Company or cause the Company to lose (in whole or in part) the services of its internet service providers (ISPs) or other suppliers; and (i) link directly or indirectly to or include descriptions of goods or services that are prohibited under the Agreement or Broker does not have a right to link to or include.
3.3 License. Solely to enable the Company to use the Broker's Information, so that the Company is not violating any rights Broker may have in such information, Broker hereby grants to the Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise the copyright, publicity, and database rights (but no other rights) Broker has in Broker's Information, in any media now known or not currently known, with respect to Broker's Information.
4) Broker's Use of User Information
4.1 No Brokership. In order to facilitate interaction among renters and Broker, the Site may allow Broker limited access to information provided by the Company's registered users. As a listing party, Broker may gain access to the User ID, email address and other contact information of the renter. Broker acknowledges that its use of such information does not constitute transfer of any Brokership rights in such information to Broker.
4.2 Limitations of Use of Other User Information. Broker agrees that, with respect to users' personal information that Broker obtains through the Site, the Company has granted to Broker a limited license to use such information only for: (a) Company related communications that are not unsolicited commercial messages, (b) using services offered through the Site, and (c) facilitating a rental transaction between Broker and the renter. In all cases, Broker must give renters an opportunity to remove themselves from Broker's database (unless retention of information is otherwise required by law) and a chance to review what information Broker has collected about them. In addition, under no circumstances, except as defined in this Section, can Broker disclose personal information about a renter to any third party without the Company's consent and the consent of that renter.
4.3 Protection of User Information. Broker agrees that it shall protect the personal information of renters with the same degree of care that it protects its own confidential information, and with no less than reasonable care, and Broker assumes all liability for the misuse, loss, or unauthorized transfer of such information.
4.4 No Spam. The Company and its users do not tolerate spam. Therefore, without limiting the foregoing, Broker is not licensed to add a registered user of the Site, even if such person has rented a Property from Broker, to Broker's mail list (email or physical mail) without the person's express consent.
5) Access and Interference
Much of the information on the Site is updated on a real time basis and is proprietary or is licensed to the Company by our users or third parties. Broker agrees that it will not use any robot, spider, scraper or other automated means to access the Site for any purpose without the Company's express written permission. Additionally, Broker agrees that it will not: (i) copy, reproduce, modify, create derivative works from, distribute or publicly display any content (except for Broker's Information) from the Site without the prior expressed written permission of the Company and the appropriate third party, as applicable; or (ii) interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site.
6) Breach
Without limiting other remedies, the Company may limit the activity of Broker, immediately remove its listings, warn the Company's users of Broker's actions, issue a warning, temporarily suspend, indefinitely suspend or terminate the Agreement and refuse to provide the Company's services to Broker if: (a) Broker breaches any of the terms and conditions of the Agreement; (b) the Company is unable to verify or authenticate information Broker provides to the Company; or (c) the Company believes that Broker's actions may cause financial loss or legal liability for Broker, the Site's users or the Company.
7) No Warranty
THE COMPANY AND ITS SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND SUPPLIERS PROVIDE THE SITE AND SERVICES "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. THE COMPANY AND ITS SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8) Liability Limit
IN NO EVENT SHALL THE COMPANY OR ITS SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SITE, THE SERVICES OR THE AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE).
THE LIABILITY OF THE COMPANY, AND THE LIABILITY OF ITS SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO BROKER OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES PAID BY BROKER TO THE COMPANY IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, OR (B) $100.
9) Indemnity
Broker agrees to indemnify and hold the Company and its subsidiaries, affiliates, officers, directors, agents, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Broker's use of the Site, any rental or use of Broker's Property(ies), any content posted by Broker to the Site (including, without limitation, Broker's Information), breach of the Agreement or Broker's violation of any law or the rights of a third party.
10) Legal Compliance
Broker shall comply with all applicable laws, statutes, ordinances and regulations regarding Broker's use of the Site and its listing of Properties.
11) No Agency
Broker and the Company are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by the Agreement.
12) Notices
Except as explicitly stated otherwise, any notices shall be given to Broker at the e-mail address provided by Broker or to the Company at info@thesociety.com. Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, either party may give notice by certified mail, postage prepaid and return receipt requested, to the physical address set forth above (in the case of Broker) or to 3235 S Wadsworth, Lakewood, CO 80227, Attn: Legal Department (in the case of the Company). In such case, notice shall be deemed given 3 days after the date of mailing.
13) Jurisdiction and Venue
13.1 Law and Forum for Disputes. The Agreement shall be governed in all respects by the laws of the State of Colorado, without regard to its conflict of law provisions. Broker agrees that any claim or dispute Broker may have against the Company must be resolved by a court located in Denver, Colorado, except as otherwise agreed by the parties or as described in the Arbitration Option Section below. Broker hereby agrees to submit to the personal jurisdiction of the courts located within Denver, Colorado for the purpose of litigating all such claims or disputes.
13.2 Arbitration Option. For any claim or dispute (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
14) Records and Audits
Broker will maintain complete and accurate records relating to its rental of Properties reasonably necessary for verification of compliance with the Agreement, including, without limitation, compliance with Broker Agreement (Fees). The Company will have the right, during normal business hours and upon at least five (5) days prior notice, to have an independent audit firm selected by the Company audit the Broker's records relating to the Broker's activities pursuant to the Agreement in order to verify that the Broker has complied with the terms of the Agreement. The audit will be conducted at the Company's expense, unless the audit reveals that the Broker has underpaid the amounts owed to the Company by five percent (5%) or more in any quarter, in which case the Broker will reimburse the Company for all reasonable costs and expenses incurred by the Company in connection with such audit. The Broker will promptly pay to the Company any amounts owed plus interest as provided in Broker Agreement (Fees). Such audits will be conducted no more than once in any period of six (6) consecutive months.
15) General
(a) The Company does not guarantee continuous, uninterrupted or secure access to the Site or its services, and operation of the Site may be interfered with by numerous factors outside of the control of the Company.
(b) If any provision of the Agreement is held to be invalid or unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of the Agreement will continue in full force and effect.
(c) Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
(d) The Company's failure to act with respect to a breach by Broker does not waive its right to act with respect to subsequent or similar breaches.
(e) The Agreement and these Terms and Conditions, along with the Terms of Use, the Privacy Policy and any other terms and conditions posted on the Site (all of the foregoing, as modified from time to time, being incorporated herein by reference) sets forth the entire understanding and agreement between the Company and Broker with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. In the event of any conflict between the terms of the Agreement and these Terms and Conditions and any other terms and conditions posted on the Site, the Agreement and these Terms and Conditions shall prevail and control.
(f) The Agreement shall remain in effect unless written notice to terminate the Agreement is delivered in accordance with Section 12 hereof. Following a notice of termination, the Company will cease accepting rental reservations for the Property for any dates subsequent to the termination date. Broker Agreement (Fees), Sections 1.3 (Release), 3.2 (Restricted Activities), 3.3 (License), 4 (Broker's Use of User Information), 5 (Access and Interference), 7 (No Warranty), 8 (Liability Limit), 9 (Indemnity), 13 (Jurisdiction and Venue), 14 (Records and Audit) and 15 (General) of these Terms and Conditions will survive termination of the Agreement for any reason.
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