This FMLS RELEASE OF LIABILITY, WAIVER OF CLAIMS AND INDEMNITY AGREEMENT
will replace the Database Access and License Agreement Provisions in the
original End User License Agreement agreed upon by designated broker.
FMLS RELEASE OF LIABILITY, WAIVER OF CLAIMS AND INDEMNITY AGREEMENT
Use of Member Property
Listing Content From FMLS Compilation
First Multiple Listing Service, Inc. ("FMLS") desires to
make available to its Principal Members (as that term is defined in Section
1.11 of the FMLS Rules and Regulations) access to the FMLS computer system
("System") for the purpose of allowing that Principal Member to access the
individual property listings of that Principal Member (its "Member Listings").
In consideration of FMLS providing the undersigned Principal
Member with access to and use of its Member Listings as provided herein,
Principal Member hereby acknowledges and agrees to the following terms and
conditions:
1). Principal Member shall have the limited, non-exclusive,
revocable right to access the System as authorized by FMLS solely to obtain its
Member Listings from the System and to use those Member Listings solely in the
form provided by FMLS for that Principal Member's own business purposes. Principal Member acknowledges and agrees
that it shall not have the right to access or use any other information,
including, without limitation, any listings of any other members pursuant to
this Release.
2). THE SYSTEM AND MEMBER LISTINGS
ARE PROVIDED TO PRINCIPAL MEMBER ON AN "AS IS" BASIS AND "WITH ALL FAULTS." FMLS MAKES NO REPRESENTATIONS, GUARANTEES OR
WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED STATUTORY OR OTHERWISE WITH
RESPECT TO ACCESS TO OR USE OF THE SYSTEM OR ANY MEMBER LISTINGS, INCLUDING,
WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF CONDITION, MERCHANTABILITY, OR
SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR
ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, AND
FMLS EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES TO THE FULLEST EXTENT PERMITTED BY LAW. FMLS MAKES NO
WARRANTY OR GUARANTEE WITH RESPECT TO THE ACCURACY OR COMPLETENESS OF THE
MEMBER LISTINGS. FMLS DOES NOT WARRANT
THAT THE SYSTEM WILL BE ERROR FREE AND DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED,
OR SECURE ACCESS TO THE SYSTEM.
3). IN NO EVENT SHALL THE FMLS PARTIES be liable for, any damages to, or viruses that
may infect, PRINCIPAL MEMBER'S computer, telecommunication equipment, or other
property caused by or arising from access to, use of, the SYSTEM or downloading
OF, ACCESS TO, OR USE of any MEMBER LISTINGS. IN NO EVENT WILL THE FMLS
PARTIES BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE,
INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE
RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF
THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE SYSTEM OR THE MEMBER
LISTINGS, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY
AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Principal Member
hereby releases and discharges and agrees not to sue FMLS, its officers,
directors, employees, representatives, agents, successors and/or any assignees
("FMLS Parties") and waives any claims, liabilities or causes of action that
Principal Member, its employees, representatives, agents, successors or assigns
may now or in the future have for injury or damages arising from access or use
of the System or any Member Listings. By executing this Release, Principal
Member agrees to defend, indemnify and hold the FMLS Parties harmless from any
claims, causes of action, losses, injuries or damages that any FMLS Party may
incur as a result of use by Principal Member of any Member Listings that are
obtained from FMLS and that is the subject of this Agreement.
4). FMLS reserves the rights to change, suspend or terminate
access to the System and the Member Listings, in whole or in part, at any
time. Principal Member acknowledges and
agrees that its access and use of the System shall be subject to the terms and
conditions provided by FMLS. FMLS shall
have no obligation to support, upgrade or update the information made available
on the System or to correct any errors with the System.
5). Principal Member
hereby acknowledges and agrees that the FMLS real estate listings and
associated information, data, content, text, images, photographs, audio, video
and other content provided by FMLS are proprietary to FMLS and FMLS retains all
right, title and interest in and to the foregoing. Member Listings provided to
a principal member are made available to that principal member by FMLS strictly
as a convenience and only for use by the individual principal member that
originally entered the property listing into the FMLS System.
6). By entering into this Release, Principal Member is not
relying on any oral or written representation or statements made by FMLS and/or
its assignees. Principal Member further agrees that this Release shall be
governed by and interpreted in accordance with the laws of the State of Georgia. If any provision, section, subsection,
clause or phrase of this Release is found to be unenforceable or invalid, that
portion shall be severed from this Release. The remainder of this Release will
then be construed as though the unenforceable portion had never been contained
in this Release.
7). This Release contains the entire agreement between the
FMLS and the undersigned Principal Member concerning the subject matter
hereof. Nothing in this Release is
intended to limit or modify the terms and conditions of any other agreement
between Principal Member and FMLS and all the terms and conditions of those
agreements and the FMLS Rules and Regulations shall continue to apply in full
force and effect.
I HAVE READ THIS RELEASE, I UNDERSTAND IT, AND I AGREE TO BE
BOUND BY IT. I REPRESENT AND WARRANT THAT I AM AUTHORIZED BY THE PRINCIPAL
MEMBER TO EXECUTE THIS RELEASE ON BEHALF OF THE PRINCIPAL MEMBER AND TO BIND
THE PRINCIPAL MEMBER TO THE TERMS AND CONDITIONS PROVIDED IN THIS RELEASE