Use Agreement and Disclaimer:
HOUSTON AREA ANTIQUES DEALERS For Sale By Owner Use Agreement and Disclaimer Our For Sale By Owner online advertising program (the "FSBO Program") is provided as a free service to sellers wishing to advertise their items for sale. As a seller, your use of the FSBO Program is upon and subject to the terms and conditions contained in the following FSBO Program Use Agreement and Disclaimer (this "Agreement"). Please read the Agreement and click "I agree" at the bottom of the Agreement if you agree to its terms and conditions. Otherwise, you will not be able to use the FSBO Program. When you click on an "I agree", "continue", "I consent" or other similarly worded "button" or entry field with your mouse, keystroke or other computer device to accept or agree to the Agreement or to accept or agree to any disclosures made in the course of using the FSBO Program, your agreement or consent will be legally binding and enforceable and the legal equivalent of your handwritten signature. When you click "I agree," you will be consenting to electronic delivery of the Agreement in HTML format and delivery of any subsequent disclosures or notices to you via electronic mail ("email") at the email address which you specify at the time you register with us and complete your item advertisement or any subsequent email address which you provide to us. You agree that your failure to maintain the email address you provide to us as a functioning address does not affect the validity of any notices we send to that address unless and until you give us notice of a new email address to which notices to you should be sent. To access and retain the Agreement and any future or other agreements, disclosures and documents for your records, you should use an Internet Explorer 6.0 browser or higher with Java Script and cookies enabled. You may print the Agreement before you click "I agree," and you should retain a copy. If you do not have a printer, you may call us for a free paper copy of the Agreement. By clicking "I agree," you will confirm your understanding, acceptance, and receipt of the Agreement and its terms and conditions, and you will acknowledge and demonstrate that you can access the Agreement and other HTML documents, agreements, disclosures and materials on our website. This is required in order to complete, review and submit an advertisement of your item online through our FSBO Program and to take advantage of other electronic services offered on our website. We will be creating an electronic record of your Agreement. Thank you for your time and cooperation. If a HADA member is interested in your item and decides to make an offer or purchase it, the dealer will ask you to show an ID (driver license) and a copy will be kept on file as part of the record of the transaction. All HADA members are driven by a strict ethical code and any suspicious item will be reported to the authorities. FSBO Program Use Agreement and Disclaimer Scope of the Agreement: This Use Agreement and Disclaimer (the "Agreement") between you and Houston Antiques Dealers Association ("HADA") states the terms and conditions that govern your use of HADAs FSBO Program. In addition, your use of our FSBO Program as well as the other features and services available on our web site is subject to and governed by the Terms and Conditions of Use applicable to the site. In the event of a conflict between the terms and conditions of this Agreement and the Terms and Conditions of Use, this Agreement shall control. The terms "we," "us," and "our" when used below, means HADA. The terms "you" and "your" means the item owner and advertiser entering into this Agreement with HADA. Representations, Warranties and Agreements of the User: By using the FSBO Program, you warrant and represent to us that you are at least 18 years of age, you are not a party to an exclusive sale agreement with any broker or firm, you are bona fide owner and seller of the item, your purpose in using this program is proper and your use of the FSBO Program will legitimately be for the purpose of advertising your item for sale by you as the legal owner thereof (or as the bona fide legal representative of the owner with full right power and authority to list same for sale), and that you are not impersonating, or falsely representing your affiliation with, any person. You acknowledge and agree that HADA is not representing you as a broker or providing any other services to you in connection with your advertisement through our FSBO Program, that use of the FSBO Program does not make you a customer of HADA and that no brokerage relationship will exist between you and HADA solely because of your use of the FSBO Program, that HADA is not advertising your item (you are), that HADA is not responsible in any way for the information you submit in your item advertisement or otherwise on its website (including, without limitation, the accuracy or completeness of such information), that HADA is not responsible in any way for selling or showing your item or providing information to any prospective buyer about your item, and that HADA does not represent, warrant or guarantee in any way that your item will sell or that you will receive any offers for your item as a result of using the FSBO Program. If you separately elect to obtain additional services from us, such as listing your item for sale through us, or representation as a buyer, then fees and charges applicable to those services, as specifically agreed when you contract with us to receive such services, will be payable. Registration: You must be a registered user of HADA's website to use the FSBO Program. Registration is free of charge and solely for the purpose of giving you access to the site and services, and does not create any kind of brokerage relationship between you and us. Personal information which you submit to us during registration is subject to our Privacy Policy. No Legal Advice: The FSBO Program is provided with the understanding that we cannot render legal advice, and we are not engaged in rendering legal advice. Prospective and actual sellers and others are advised that offers and agreements to buy and sell items have important legal consequences. If you do not understand any purchase agreement or other document you may be presented for signature, or have a question about the legal rights and obligations of the parties to a purchase contract, you should consult a competent attorney at law. Not Suitable for All Uses: The FSBO Program is intended for use with typical antiques and is not suitable for, and should not be used for, advertising other types of items. Further, by its nature, the program cannot cover every possible contingency or situation. If you require special terms and conditions in your advertisement, please contact us before proceeding. Access, Passwords and Security: You will be responsible for the confidentiality and use of your password(s). You agree not to hold HADA liable for any damages of any kind resulting from your decision to disclose your password(s) to any third party, including but not limited to, entities that aggregate account information or website content, or persons who are or claim to be acting as your agent, proxy, or representative. If you inform us or if we has reason to believe that the security of your access password may be or has been compromised, we have the right to terminate your use of our web site, including the FSBO Program. You will be responsible for all information provided and agreements entered into with us through and under your access password(s) and any information and agreements so received by HADA will be deemed to have been received from you. All agreements shall be deemed to be made at the time received by HADA and in the form received. You agree immediately to notify HADA if you become aware of: Any loss or theft of your password(s) or Any unauthorized use of any of your registration, account, email address, login name or password(s) or of the FSBO Program or any other electronic service or feature of the HADA web site. Data Transmission: You acknowledge that data, including email, electronic communications and personal data, may be accessed by unauthorized third parties when communicated between you and HADA, using the Internet, other network communications facilities, telephone or any other electronic means. You agree to use software produced by third parties, including, but not limited to, "browser" software that supports a data security protocol compatible with the protocol used by HADA. Until notified otherwise by HADA, you agree to use software that supports the Secure Socket Layer (SSL) protocol or other protocols accepted by HADA and follow HADA's log-on procedures for electronic services that support such protocols. You acknowledge that HADA is not responsible for notifying you of any upgrades, fixes or enhancements to any such software or for any compromise of data transmitted across computer networks or telecommunications facilities, including, but not limited to, the Internet. Use of Software, Programs, Applications or Other Devices to Access Electronic Services: With the exception of applications commonly known as web browser software, or other applications formally approved by HADA in writing, you agree not to use any software, program, application or any other device to access or log on to HADA's computer systems, website or proprietary software or to automate the process of obtaining, downloading, transferring or transmitting any content or information to or from HADA's computer systems, website or proprietary software. Rights Reserved to HADA: We reserve the right to collect and use information about your item or your advertisement, other than personally identifiable information about you, for any lawful business purpose, including, without limitation, statistical analysis. We reserve the right to remove your advertisement from our site and/or to terminate this Agreement at any time for any reason. By accepting this Agreement, you agree to these reservations of rights in our favor. Disclaimer and Exclusion of Warranty: THE FSBO PROGRAM IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY LEGAL OR IMPLIED WARRANTIES AGAINST REDHIBITORY VICES OR DEFECTS OR OF MERCHANTABILITY OR FITNESS FOR ANY ORDINARY OR PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND YOU HEREBY AGREE TO THE EXCLUSION OF ALL SUCH WARRANTIES. BY CLICKING "I AGREE" BELOW, YOU HEREBY ACKNOWLEDGE THAT THE FOREGOING DISCLAIMER AND EXCLUSION OF WARRANTY HAS BEEN BROUGHT TO YOUR ATTENTION. Limitation of Liability: YOU EXPRESSLY AGREE THAT HADA, AND ITS MEMBERS, EMPLOYEES, AGENTS, REPRESENTATIVES CONTRACTORS AND INSURERS (COLLECTIVELY, "THE HADA ENTITIES"), WILL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES OR LOSS SUFFERED OR INCURRED BY YOU EVEN IF YOU ADVISE THEM OF THE POSSIBILITY OF SUCH DAMAGES WITH REGARD TO ANY CLAIM OR ACTION OF ANY KIND ARISING OUT OF YOUR USE OF THE FSBO PROGRAM OR ANY OTHER FUNCTION, FEATURE OR SERVICE OF OUR WEB SITE. FURTHER, BY ACCESSING AND USING THE FSBO PROGRAM OR OTHER FEATURES OR RECEIVING INFORMATION FROM HADA'S WEB SITE, YOU AGREE THAT THE LIABILITY OF THE HADA ENTITIES ARISING OUT OF ANY LEGAL CLAIM (WHETHER IN CONTRACT, TORT OR OTHERWISE) IN ANY WAY CONNECTED WITH HADA'S FSBO PROGRAM OR OTHER ELECTRONIC SERVICES OR ONLINE INFORMATION WILL NOT EXCEED THE AMOUNT YOU ORIGINALLY PAID FOR THE SERVICE (IF ANYTHING) OR OTHER ELECTRONIC SERVICES RELATED TO YOUR CLAIM. You specifically agree that the HADA Entities will not be liable for any loss that results from a cause over which they do not have direct control. Such causes include, but are not limited to, (1) the failure of electronic or mechanical equipment or communication lines; (2) telephone or other interconnect problems; (3) bugs, errors, configuration problems or the incompatibility of computer hardware or software; (4) the failure or unavailability of Internet access; (5) problems with Internet service providers or other equipment or services relating to your computer or network; (6) problems with intermediate computer or communications networks or facilities; (7) problems with data transmission facilities or your telephone, cable or wireless service; or (8) unauthorized access, theft, operator errors, severe weather, earthquakes, other natural disasters or labor disputes. The HADA Entities are also not responsible for any damage to your computer, software, modem, telephone, wireless device or other property resulting in any way from your use of HADA's FSBO Program. You also specifically agree that the HADA Entities will not be liable for any loss that results from your actions or omissions, including, without limitation, your intentional acts, your negligence or gross negligence, any information included in your advertisement, your improper use of our FSBO Program, your failure to fully and completely disclose information about your item in your advertisement or any other document or in any statement or representation to any person, your inclusion of false, incorrect or misleading information about your item in your advertisement or in any other document or in any statement or representation made by you to any person, your execution of any contract or agreement relating to the sale of your item not prepared or completed by us, or your breach of any contract or agreement relating to the sale of your item or the breach of such contract agreement by any other party thereto (whether or not such contract or agreement was prepared or completed by us). Indemnity and Hold Harmless: You agree to defend, indemnify and hold harmless the DWA Entities from and against any and all liability, loss, damages, judgments, costs and expenses ("Liability"), including without limitation attorney's fees and costs of litigation, asserted against or incurred by them, or which they become obligated to pay, as a result, directly or indirectly, of your use of the FSBO Program, or any data or information submitted or uploaded by you about your item or any other information submitted by you through our website, or resulting, directly or indirectly, from your misuse or abuse of the FSBO Program, or any statements, warranties or representations about your item or any quality or characteristic of your item made by you or by anyone on your behalf to any person at any time through any means, or any breach of your warranties, representations or obligations in this Agreement or the Terms and Conditions of Use or any other agreement between HADA and you, except and only to the extent that such Liability results from the willful misconduct or gross negligence of HADA. Modifications of this Agreement: This Agreement may be modified by HADA at any time upon written notice to you provided that you confirm your acceptance of the modification by an affirmative consent (such as by specifically agreeing or consenting to such modification at the time you sign on to the website or access the FSBO Program) or by continuing to use the FSBO Program after such notice of modification is provided to you; if you elect not to accept such modification, HADA may terminate your use of the FSBO Program or your advertisement at any time after your non-acceptance or the time for acceptance of the modification expires. Discontinuance of FSBO Program: HADA reserves the right to discontinue the FSBO Program at any time for any reason. Partial Invalidity: In the event that any provision of this Agreement shall be held to be invalid or unenforceable, the remaining provisions of this Agreement shall be unaffected and shall remain in full force and effect. Governing Law: This Agreement, and all future agreements you shall enter into with HADA, unless otherwise indicated on such other agreement, shall be governed by the law of the State of Texas without reference to any choice of law or conflict of laws provisions, statutes, laws or doctrines. This is the case regardless of whether you reside or transact business with HADA in Texas or elsewhere. Any action arising out of this Agreement may be brought only in the state and federal courts located in the State of Texas which otherwise have jurisdiction over the action. If you agree to the foregoing, please press "I AGREE" below. Otherwise, please press "I DO NOT AGREE." [version 1.0] February 4, 2012, 10:36 am