Terms of Service
These Terms of Service (“Terms”) are a binding agreement between you, a real estate agent or authorized user, and Ocusell, Inc. (“Ocusell,” “we,” “us,” or “our”). Ocusell is an affiliate of REharpoon LLC, a joint venture between Ocusell and Bright MLS (collectively with their families of companies, “Affiliates”), that provides listing management services to real estate brokerages. Your access to the Service is made available pursuant to a Listing Management Service agreement between your brokerage, MLS, or association (each a “Customer”) and Ocusell or its Affiliates. Please read these Terms carefully before using the Service. These Terms are effective as of the date you first access the Service and are incorporated into and supplement the Listing Management Service Terms between Customer and Ocusell or its Affiliates. If you do not agree to these Terms, please do not use the Service or access our website.
WE RESERVE THE RIGHT TO MODIFY OR AMEND THESE TERMS FROM TIME TO TIME. Any modifications will become effective 30 days after posting to the Service or our website, unless the modification is required by law or relates to a new feature, in which case it may be effective immediately. Your continued use of the Service following the effective date of any modifications means you accept those changes. If you do not agree to any modification, you should discontinue use of the Service. YOU ACKNOWLEDGE AND AGREE THAT OCUSELL AND ITS AFFILIATES, INCLUDING REHARPOON LLC AND BRIGHT MLS, ARE NOT PARTIES TO ANY REAL ESTATE TRANSACTIONS, HAVE NO CONTROL OVER THE CONDUCT OF REALTORS, BROKERS, OR THEIR SERVICES, AND DISCLAIM ANY AND ALL LIABILITY ASSOCIATED WITH THE BUSINESS OF REAL ESTATE, ALL LISTINGS AND YOUR REAL ESTATE SERVICES.
1.1 The Service. Ocusell and its Affiliates make available an online platform (the “Service”) selected by the Customer on the Service Order Form, to enable you to enter, list, and manage real estate property listings (“Listings”). The Service provides a single point of entry for listings that can then be distributed to destinations to which you or your brokerage direct Ocusell or its Affiliates. “Affiliates” means REharpoon LLC, Bright MLS, and any entities that directly or indirectly control, are controlled by, or are under common control with Ocusell, including but not limited to parent companies, subsidiaries, and joint venture partners. Ocusell does not own, operate, sell, furnish, provide, rent, manage, or control your Listings or your real estate services. You are solely responsible for determining the information to enter into the Service and the appropriateness and suitability of any prospective buyer or seller.
2. License. Subject to your compliance with these Terms, Ocusell grants you a limited, revocable, non-exclusive, non-transferable license to access and make use of the Service solely for your business purposes.
3. Intellectual Property.
3.1 The Service and all content featured or displayed on the Service, including without limitation text, graphics, photographs, images, sound, illustrations, software code, documentation, and the general design, but excluding User Data (defined in Section 5) (“Service Content”), is owned by Ocusell or its Affiliates, licensors, vendors, agents, or content providers. All elements of the Service, including without limitation the general design and the Service Content, are protected by trade dress, copyright, moral rights, trademark and other laws relating to intellectual property rights. You agree not to challenge Ocusell’s or its Affiliates’ ownership of all right, title, and interest in and to the Service (or any code underlying the Service). The Service may only be used for the intended purpose for which such Service is being made available. You may not modify any of the materials and you may not copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information or work contained on the Service. The Service, its Service Content and all related rights shall remain the exclusive property of Ocusell or its licensors unless otherwise expressly agreed. You will not remove any copyright, trademark or other proprietary notices from material found on the Service.
3.2 We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to Ocusell. We reserve the right to remove any material alleged to be infringing without prior notice and without liability to you. When appropriate, we may also terminate your account. If you believe that your copyrighted information has been used in a way that constitutes copyright infringement, please send a notice that complies with the requirements of the Digital Millennium Copyright Act to our designated agent at:
Ocusell, Inc.
1216 Central Parkway
Cincinnati, OH 45202
Attention: Operations
3.3 All trademarks, service marks and trade names of Ocusell and its Affiliates used in the Service (including but not limited to: Ocusell’s name and logo; the Service’s name, design, and any logos; “List Plus™,” “Rulesetta™,” and related marks) (collectively “Marks”) are trademarks of Ocusell or its Affiliates, partners, vendors or licensors. You may not use, copy, reproduce, republish, upload, post, transmit, distribute, or modify the Marks in any way, including in advertising or publicity pertaining to distribution of materials on the Service, without Ocusell’s prior written consent. Ocusell prohibits the use of the Marks as a “hot” link on or to any other website unless establishment of such a link is approved in advance. You may not use Ocusell’s or its Affiliates’ names or any language, pictures or symbols which could, in Ocusell’s judgment, imply Ocusell’s endorsement in any written or oral advertising, presentation, brochure, newsletter, book, or other written material of whatever nature, without prior written consent.
4. Use Restrictions.
4.1 You are prohibited from using the Service to post or send any unlawful, threatening, defamatory, libelous, obscene, pornographic or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense or give rise to civil liability, or otherwise violate any law. In addition to any remedies that we may have at law or in equity, if we determine, in our sole discretion, that you have violated or are likely to violate the foregoing prohibitions, we may take any action we deem necessary to cure or prevent the violation. We may fully cooperate with any law enforcement authorities or court order or subpoena requesting or directing us to disclose the identity of anyone inappropriately using the Service.
4.2 Running or displaying the Service or any information or material displayed on the Service in frames or through similar means on another website without prior written permission from Ocusell or its Affiliates is prohibited. From time to time, the Service may contain links to websites that are not owned, operated or controlled by Ocusell or its Affiliates. All such links are provided solely as a convenience to you. If you use these links, you will leave the Service. Neither Ocusell nor any of its Affiliates are responsible for any content, materials or other information located on or accessible from any other website. Neither Ocusell nor any of its Affiliates endorse, guarantee, or make any representations or warranties regarding any other websites, services, or any other information located or accessible from any other websites or services. If you decide to access any other websites, you do so entirely at your own risk.
4.2.1 Linking to the Service. You are permitted to establish a hyperlink to the Service for noncommercial purposes, provided such link does not portray Ocusell or any of its products and services in a false, misleading, derogatory or otherwise defamatory manner and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use an Ocusell logo or other proprietary graphic of Ocusell to link to the Service without the express written permission of Ocusell. Further, you may not use, frame or utilize framing techniques to enclose any Ocusell trademark, logo or any of the Content without Ocusell’s express written consent.
4.3 You agree that you will not use any robot, spider, scraper, crawler, interface, scripts, or other automated means to access the Service for any purpose without our express written permission. You agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (iii) bypass any measures we may use to prevent or restrict access to the Service; or (iv) attempt to probe, scan, or test the vulnerability of the Service or our network or to breach security or authentication measures without proper authorization. We retain the right at our sole discretion to deny access to anyone to this Service, at any time and for any reason, including, but not limited to, for violation of these Terms.
4.4 By using the Service, you may be required to create an account, which may require you to select a username and password. You agree (a) to provide accurate and complete information and (b) not to act in a false or misleading manner during the account creation process. Without limiting the preceding sentence, you agree not to adopt a username with the intention of imitating any other person or entity. You are solely responsible for maintaining the secrecy of your account credentials and other sensitive account information and for restricting access to your account. You are fully responsible for the acts and omissions of any person that uses the Service while logged into your account. If any portion of the Service requires you to open an account, you must complete the registration process by providing us with current, complete and accurate information as prompted by the applicable registration form. You are responsible for maintaining the security and confidentiality of your login credentials and you accept responsibility for all acts and omissions that occur under your account. You agree to notify Ocusell immediately of any unauthorized use of your account or any other breach of security. Ocusell will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you may be held liable for losses incurred by Ocusell or another party due to someone else using your account or password.
4.5 You may not post, upload, publish, submit or transmit any content (including but not limited to any text, graphics, images, music, software, audio, video, information or other material) via the Services that (a) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (b) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability; (c) is fraudulent, false, misleading or deceptive; (d) is defamatory, obscene, pornographic, vulgar or offensive as determined in Ocusell’s sole judgment; (e) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (f) is violent or threatening or promotes violence or actions that are threatening to any other person; (g) promotes illegal or harmful activities or substances; or (h) misrepresents the sender or the source of the communication (e.g., by forging any header information or using invalid or non-existent domain names). In addition to any other remedies, Ocusell may immediately suspend or terminate your access to the Service in the event you violate these restrictions.
4.6 Ocusell prohibits the use of the Service in any manner associated with the transmission, distribution or delivery of any unsolicited bulk or unsolicited commercial email (“SPAM”), phone calls, or text messages. You may not use the Service to send SPAM, or send SPAM to any Ocusell users or customers using information obtained from the Service. Prohibited activities include, by way of illustration, sending unsolicited commercial email, phone calls, or text messages, sending large volumes of unsolicited email (whether or not commercial), and facilitating such activities. You may not send or authorize to be sent via any Ocusell service any communication that: (a) misrepresents the sender or the source of the communication; (b) seeks to impersonate any person, or uses or contains invalid or non-existent domain names; (c) employs any technique to otherwise misrepresent, hide or obscure any source information; (d) constitutes deceptive addressing or uses or relays through a third party’s internet domain name without consent; (e) contains false or misleading information in the subject line or otherwise contains false or misleading content; or (f) is harmful, threatening, harassing, or that would reasonably be expected to be harmful to Ocusell or any of its customers or users.
4.7 By publishing a listing through the Services, you represent and warrant that you own, or have obtained all necessary rights, licenses, and permissions to use, display, reproduce, and distribute any and all media you upload, including but not limited to images, documents, drawings, graphics, blueprints, audio, and video files. You agree to defend, indemnify, and hold harmless Ocusell and its Affiliates, and their respective officers, directors, employees, and agents from and against any and all claims, liabilities, damages, losses, costs, or expenses (including reasonable attorneys’ fees) arising out of or related to any allegation that media uploaded and/or distributed by you via Ocusell or its Affiliates infringes, misappropriates, or otherwise violates any intellectual property rights, proprietary rights, or applicable laws.
4.8 Content License Grant. By publishing any content through the Service, you automatically grant, or warrant that you and/or the owner of such content has expressly granted, Ocusell and its Affiliates a revocable, worldwide, fully paid-up, royalty-free, and sublicensable license to access, use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, store, process, and otherwise exploit your content for the sole purpose of providing the Service and any additional services directed in writing by you or your brokerage. This license survives any termination or expiration of these Terms or your use of the Service solely to the extent necessary for Ocusell to complete any pending distributions, manage data internally for its internal confidential business purposes, or comply with legal obligations, and shall terminate upon the later of (i) completion of such activities, or (ii) 30 days following the effective date of termination. Ocusell and its Affiliates may sublicense these rights through multiple tiers of sublicenses. Any content you submit to Ocusell or its Affiliates, including any feedback, data, questions, comments, suggestions, or ideas, shall not be deemed confidential, and neither Ocusell nor its Affiliates will have any obligation to keep such information confidential and will be free to reproduce, use, disclose and distribute the information to others without limitation or liability.
5. Data Privacy; Security; Data Ownership.
5.1 Data collection and use, including the collection and use of personal information, is governed by Ocusell’s Privacy Policy available at https://ocusell.com/privacy-policy, which is incorporated into and is a part of these Terms.
5.2 Ocusell and its Affiliates implement and maintain commercially reasonable technical, physical, and organizational safeguards to protect data from unauthorized access, loss, or disclosure, appropriate to the nature of the data and in accordance with applicable industry standards. Those safeguards include industry-standard encryption and authentication measures for data in transit to MLS databases and other third-party systems. In the event of a data breach or security incident involving your data, Ocusell shall: (i) notify you within 72 hours of determining that your data was accessed by an unauthorized entity; (ii) investigate the cause; (iii) take reasonable steps to remediate the issue and mitigate harm; and (iv) cooperate with your brokerage in meeting any legal notification obligations.
5.3 You and your brokerage are the sole and exclusive owners of all data input into the Service by or on behalf of you, including without limitation listing information, client data, media assets, and other materials related to real estate services (“User Data”). Ocusell and its Affiliates will be deemed a data processor or service provider acting on behalf of you and your brokerage for all User Data. You authorize Ocusell and its Affiliates to distribute your User Data to various destinations through integrations established with third-party organizations, including MLSs to which you subscribe and that have contracted with Ocusell or its Affiliates, as well as your brokerage’s designated franchise systems, marketing partners, and other broker-approved databases. Ocusell may de-identify or aggregate User Data so that it does not contain personal information (“De-Identified Data”). Ocusell may also collect technical, usage, and performance-related data in connection with your use of the Service (“Analytics Data”). Ocusell is the sole and exclusive owner of all rights, title, and interest in and to De-Identified Data and Analytics Data, which Ocusell may use and share for any lawful business purpose in compliance with applicable laws, including benchmarking and Service improvement.
5.4 You are solely responsible for ensuring the accuracy, legality, and appropriateness of User Data entered into the Service. You are responsible for backing up any User Data input into the Service.
5.5 Monitoring and Enforcement. Ocusell and its Affiliates have the right, but not the obligation, to monitor the Service for the purpose of determining and enforcing compliance with these Terms. Ocusell and its Affiliates shall be free to delete, remove, modify, or refuse to post any content if they determine (a) that the content violates these Terms, (b) that the content is stale or off topic for the applicable portion of the Service, or (c) doing so is otherwise necessary or convenient in connection with administration of the Service. Ocusell and its Affiliates reserve the right to disclose any information, including your identity, account information, and information about your use of the Service, as deemed necessary to (a) enforce these Terms; (b) satisfy any applicable law, regulation, legal process, or governmental request; or (c) respond to claims that the Service or your activities in connection therewith violate the rights of third parties.
6. Right to Cancel, Error, Mistakes. The Service may contain technical inaccuracies and typographical or other errors in connection with information displayed. Neither Ocusell nor its Affiliates assume any responsibility or liability for such errors, inaccuracies, or omissions. Ocusell and its Affiliates have the right to make changes, corrections or cancellations to such information at any time. Neither Ocusell nor its Affiliates are responsible for communication failures, errors, difficulties, or other malfunctions or lost, stolen or misdirected transactions, transmissions, messages or entries on or in connection with the Service. The Service may not be continuously available due to maintenance or repairs or due to computer problems, disruptions in Internet service or other unforeseen circumstances.
7. Service Plans; Payment.
7.1 Ocusell offers two different service plans: List™ and List Plus™. Your service plan is determined by how you gain access to the system, whether as a subscriber benefit from your MLS or association, or a direct purchase from your brokerage. Payment depends on the terms of each service plan.
7.2 Ocusell reserves the right to change its subscription fees and service plans in its sole and absolute discretion. Ocusell will provide you with a minimum of 60 days’ notice for any price increases applicable to the Service. Features and capabilities may be different depending on how you receive access to the service.
8. Modules and Third-party Integrations. As part of the Service, Ocusell and its Affiliates may make available a marketplace for you to engage certain third-party vendors (“Marketplace Vendors”) for services or software that have varying degrees of integration with the Service. If you elect to use the services of any Marketplace Vendors, you will be responsible for all costs associated with Marketplace Vendors’ services. Any and all intellectual property rights, including copyrights, created by Marketplace Vendors in connection with their services and creation of media assets (“Assets”) will be owned exclusively by you or your brokerage. Where applicable, Assets are deemed a “Work Made For Hire” within the meaning of the United States Copyright Act, 17 U.S.C. § 101. Certain Marketplace Vendors may be disabled, removed, or turned-off at Ocusell’s or its Affiliates’ discretion and in coordination with its MLS and Brokerage users/customers. Ocusell will provide reasonable advance notice before disabling or removing any Marketplace Vendor that you are actively using. Neither Ocusell nor its Affiliates are responsible for and each disclaims any and all liability for any acts and omissions of Marketplace Vendors.
8.1 Chatbot and Artificial Intelligence. The Service may include a chatbot service and other tools to interact with our Service powered by generative artificial intelligence (the “Chatbot”). If you interact with the Chatbot, you are not communicating with a human representative of Ocusell; you are communicating with an automated software system that generates responses to your inputs (“Chatbot Output”). The Chatbot is provided for the limited purpose of providing information and responding to inquiries concerning the Service. Chatbot Output is provided for general informational purposes only. You should always verify Chatbot Output and should never rely solely on it. You agree that you are responsible for any decisions made or actions taken by you based, in whole or in part, on Chatbot Output. Unless we state otherwise in writing, any views or opinions expressed in Chatbot Output do not necessarily reflect those of Ocusell. You understand and agree that information that you share with the Chatbot might not be kept confidential. As such, you should not share any sensitive or personal data, or any proprietary or confidential information, with the Chatbot. Your interactions with the Chatbot may be recorded and retained by Ocusell for the purpose of addressing your inquiries and otherwise assisting you, improving the operation of the Chatbot, and for any other purposes described in our Privacy Policy.
9. Disclaimers.
9.1 YOUR USE OF THE SERVICE IS AT YOUR RISK. THE SERVICE CONTENT, MATERIALS AND SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. NEITHER OCUSELL, NOR ANY OF ITS AFFILIATES, INCLUDING REHARPOON LLC, BRIGHT MLS, AND OCUSELL, NOR THEIR RESPECTIVE SUPPLIERS, SERVICE SUPPLIERS OR LICENSORS WARRANT THE ACCURACY OR COMPLETENESS OF THE SERVICE CONTENT OR MATERIALS PROVIDED ON OR THROUGH THE SERVICE NOR THAT THE SERVICE WILL MEET YOUR REQUIREMENTS. THE SERVICE MAY INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS. OCUSELL MAY MAKE CHANGES TO THE SERVICE CONTENT AND SERVICE, INCLUDING THE PRICES AND DESCRIPTIONS OF ANY SERVICES, AT ANY TIME WITHOUT NOTICE. OCUSELL EXPRESSLY DISCLAIMS ANY DUTY TO UPDATE OR REVISE THE SERVICE, ALTHOUGH OCUSELL MAY MODIFY THE SERVICE AT ANY TIME WITHOUT NOTICE. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM OCUSELL OR THROUGH THE SERVICE, SERVICE CONTENT AND SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THESE TERMS. YOU REPRESENT AND WARRANT THAT AT ALL TIMES DURING YOUR USE OF THE SERVICE YOU ARE AND WILL REMAIN IN GOOD STANDING WITH EACH MLS TO WHICH OCUSELL MAINTAINS AN INTEGRATION ON YOUR BEHALF.
9.2 YOU ARE NOT AN AGENT OR EMPLOYEE OF OCUSELL OR ANY OF ITS AFFILIATES. NEITHER OCUSELL NOR ANY OF ITS AFFILIATES IS LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OF YOU OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM. NEITHER OCUSELL NOR ANY OF ITS AFFILIATES HAS ANY LIABILITY AND WILL MAKE NO REFUND IN THE EVENT OF ANY DELAY, CANCELLATION, STRIKE, FORCE MAJEURE OR OTHER CAUSES BEYOND OCUSELL’S OR ITS AFFILIATES’ DIRECT CONTROL, AND NEITHER OCUSELL NOR ANY OF ITS AFFILIATES HAS ANY RESPONSIBILITY FOR ANY ADDITIONAL EXPENSE, OMISSIONS, DELAYS, RE-ROUTING OR ACTS OF ANY GOVERNMENT OR AUTHORITY. NEITHER OCUSELL NOR ANY OF ITS AFFILIATES MAKES ANY GUARANTEES ABOUT THE AVAILABILITY OF SPECIFIC SERVICES.
10. Limitations of Liability.
10.1 NEITHER OCUSELL NOR ANY OF ITS AFFILIATES ASSUMES ANY RESPONSIBILITY FOR OR IS LIABLE FOR ANY DAMAGES TO YOUR COMPUTER, EQUIPMENT OR OTHER PROPERTY CAUSED BY OR ARISING FROM YOUR ACCESS TO, USE OF, OR BROWSING THE SERVICE, OR YOUR DOWNLOADING OF ANY INFORMATION OR MATERIALS FROM THE SERVICE. NEITHER OCUSELL NOR ANY OF ITS AFFILIATES ASSUMES ANY RESPONSIBILITY OR IS LIABLE FOR ANY ACTS AND OMISSIONS OF MARKETPLACE VENDORS OR OTHER THIRD-PARTY SERVICE PROVIDERS ACCESSIBLE THROUGH THE SERVICE. IN NO EVENT WILL OCUSELL OR ANY OF ITS AFFILIATES, INCLUDING REHARPOON LLC AND BRIGHT MLS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, MEMBERS, MANAGERS, AGENTS, SUCCESSORS OR ASSIGNS, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOSS OF GOODWILL, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USING THE SERVICE, ANY WEBSITES OR APPLICATIONS LINKED TO THE SERVICE, OR THE MATERIALS, INFORMATION OR OTHER CONTENT CONTAINED ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. IN JURISDICTIONS THAT DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE LIABILITY OF OCUSELL AND ITS AFFILIATES IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
10.2 IN NO EVENT SHALL THE TOTAL LIABILITY OF OCUSELL AND ITS AFFILIATES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE EXCEED THE GREATER OF (A) THE FEES PAID BY YOU OR YOUR BROKERAGE TO OCUSELL OR ITS AFFILIATES UNDER THESE TERMS OR THE LISTING MANAGEMENT SERVICE AGREEMENT IN THE SIX-MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED, OR (B) $5,000.
10.3 TO THE EXTENT ALLOWED BY APPLICABLE LAW, YOU AGREE THAT YOU WILL BRING ANY CLAIM OR CAUSE OF ACTION ARISING FROM OR RELATING TO YOUR ACCESS OR USE OF THIS SERVICE WITHIN ONE (1) YEAR FROM THE DATE ON WHICH SUCH CLAIM OR ACTION AROSE OR ACCRUED OR SUCH CLAIM OR CAUSE OF ACTION WILL BE IRREVOCABLY WAIVED.
10.4 IF YOU ARE A CALIFORNIA RESIDENT, WITH RESPECT TO ANY WARRANTY AND LIABILITY EXCLUSIONS IN THESE TERMS, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
11. Indemnification. You agree to defend, indemnify and hold Ocusell and its Affiliates, including REharpoon LLC and Bright MLS, and their respective directors, officers, employees, owners, managers, and agents, harmless from any and all liabilities, costs, and expenses, including reasonable attorneys’ fees, related to or in connection with (i) the use or misuse of the Service or your placement or transmission of any message or information on the Service; (ii) your violation of these Terms, including without limitation, your breach of any of the representations and warranties herein; (iii) your violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (iv) your violation of any law, rule or regulation of the United States or any other country, including data protection laws; (v) any claim or damages that arise as a result of any information or User Data that you provide to Ocusell or to a third-party via Ocusell; or (vi) your interaction with or reliance upon any Marketplace Vendor or other third-party service provider accessible through the Service.
12. Term; Termination; Survival.
12.1 The term of this agreement will be concurrent with the applicable List or List Plus subscription plan provided to your brokerage pursuant to the Listing Management Service agreement between the Customer and REharpoon LLC. Accordingly, for as long as you have access to the Service under such a subscription, these Terms of Service, including any modifications, updates, or amendments, will remain in full force and effect. We may suspend or terminate your access to the Service in the event that (a) you breach these Terms and fail to cure the breach within 30 days after receiving written notice specifying the nature of the breach; (b) we are unable to verify or authenticate any information you provide to us; (c) we believe that your actions may cause financial loss or legal liability for you, our users, or us; or (d) your brokerage’s agreement with REharpoon LLC is terminated.
12.2 All provisions of these Terms that by their nature are intended to extend beyond the termination of these Terms for any reason shall survive the termination of these Terms. The following provisions specifically survive the termination of these Terms: Sections 3 (Intellectual Property), 5 (Data Privacy; Security), 9 (Disclaimers), 10 (Limitations of Liability), 11 (Indemnification), 12 (Termination-related provisions), and 13 (Miscellaneous), as well as any other provisions of these Terms that, either explicitly or by their nature, must remain in effect even after termination of these Terms.
13. Miscellaneous.
13.1 Dispute Resolution; Arbitration. Before initiating any legal action or arbitration, you and Ocusell agree to first try in good faith to settle any controversy, claim, action, or dispute arising out of or related to your use of the Service, or the breach, enforcement, interpretation, or validity of these Terms or any part of them (“Dispute”), by providing written notice to the other party describing the facts and circumstances of the Dispute and allowing the receiving party 30 days in which to respond to or settle the Dispute. Both parties agree that this dispute resolution procedure is a condition precedent that must be satisfied before initiating any litigation or arbitration against the other party.
A. Informal Dispute Resolution. You and Ocusell agree to first attempt to resolve any Dispute informally. The party with the complaint shall send written notice to the other party describing the facts and circumstances of the Dispute. All notices must: (a) be personally signed by the complaining party; (b) include the party’s name, physical address, and email address; (c) describe with specificity the nature and basis of the Dispute in a manner sufficient for the receiving party to evaluate the merits of the claim; and (d) set forth the alleged damage and harm suffered and the specific relief sought. Notice to Ocusell must be sent to REharpoon LLC, by email to [email protected] and [email protected]. You and Ocusell will attempt to resolve the Dispute through informal negotiation within thirty (30) days. Both parties agree that this informal dispute resolution procedure is a condition precedent that must be satisfied before initiating any litigation or arbitration against the other party.
B. Individual Arbitration. IF ANY DISPUTE CANNOT BE RESOLVED THROUGH THE INFORMAL DISPUTE RESOLUTION PROCEDURE, YOU AGREE THAT SUCH DISPUTE WILL BE DECIDED BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT NEITHER PARTY WILL HAVE, AND YOU AND OCUSELL EACH HEREBY WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE ITS CLAIMS, AND THAT NEITHER PARTY IS PERMITTED TO PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY; CLASS ACTION ARBITRATION IS PROHIBITED. OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT WILL NOT BE AVAILABLE OR WILL BE MORE LIMITED IN ARBITRATION, INCLUDING DISCOVERY AND APPEAL RIGHTS. All such Disputes will be determined by arbitration under the American Arbitration Association’s Commercial Arbitration Rules, before a single arbitrator, in Washington, D.C., on an individual basis and not aggregated with the claims of any third party. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any Dispute arising under or relating to the interpretation, applicability, enforceability, or formation of these Terms, including any claim that all or any part of these Terms is void or voidable and the arbitrability of any dispute. The arbitrator’s decision will be final and binding, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. Each party will bear its own costs and attorneys’ fees in connection with any arbitration, provided that the prevailing party will be entitled to recover its reasonable attorneys’ fees and costs from the non-prevailing party.
C. Exceptions. In lieu of the dispute resolution procedures above, you or Ocusell may (a) bring a claim or elect to resolve a Dispute in small claims court consistent with any applicable jurisdictional and monetary limits, so long as the action is litigated exclusively in small claims court and is not removed or appealed to a court of general jurisdiction; and (b) file a claim in court to enjoin the infringement or other misuse of intellectual property rights or seek a declaration that the other party is in breach of these Terms. You and Ocusell agree that any claims referenced in the preceding paragraph must be brought and maintained on an individual basis.
13.2 Governing Law and Venue. These Terms will be construed and interpreted under the laws of the State of Delaware, without regard to the conflict of law rules or principles of Delaware. The parties hereby consent to service of process by registered mail, return receipt requested, or any other manner consistent with federal or State of Delaware laws. Except for disputes or claims properly lodged in a small claims court or subject to the arbitration provision above, any disputes or claims shall be resolved by a court located in the State of Delaware, and you agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action.
13.3 Compliance with Laws. Each party shall comply with all applicable laws, rules, and regulations relating to its performance under these Terms. Without limiting the generality of the foregoing, you shall comply with all applicable import and export laws and regulations related to the Service for the country where the Service is used by you, as well as with all applicable United States export laws (collectively, the “Export Laws”). You shall not, and shall not permit any third party to: (i) export or transmit the Service, directly or indirectly, in violation of Export Laws, including to a country subject to a U.S. embargo; (ii) access or use the Service in violation of any Export Laws; (iii) provide access to the Service across international boundaries except in compliance with any Export Laws, including those of the originating country.
13.3.1 You represent and warrant that at all times during your use of the Service you are and will remain in good standing with each MLS to which Ocusell maintains an integration on your behalf.
13.4 Relationship of the Parties. You and Ocusell are independent contractors. Nothing in these Terms creates a partnership, joint venture, agency, or employment relationship between you and Ocusell. For clarity, REharpoon LLC is a joint venture between Bright MLS and Ocusell, but you are not a party to or participant in that joint venture.
13.5 Notices. All notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Notices to Ocusell shall be sent to: Ocusell, Inc., 1216 Central Parkway, Cincinnati, OH 45202, Attention: Operations, or by email to [email protected]. Notices to you shall be sent to the email or physical address on file with Ocusell.
13.6 Use of Names. Neither party may use the names, trademarks, trade names, service marks, insignia, or logos (“Marks”) of the other party without such other party’s prior written consent. Notwithstanding the foregoing, Ocusell may publicly refer to you as a customer of Ocusell online, verbally, and in its marketing materials.
13.7 Assignment. These Terms are not assignable by you except with Ocusell’s prior written consent, and any such assignment in violation hereof is void. Ocusell may transfer and assign any of its rights and obligations under these Terms without consent, including to its Affiliates or in connection with a merger, acquisition, or sale of all or substantially all of Ocusell’s assets.
13.8 Force Majeure. Neither party will be liable for any delay or failure in performing its obligations under these Terms (other than payment obligations) to the extent the delay or failure results from causes beyond the party’s reasonable control, including acts of war, terrorism, weather, acts of God or nature, strikes, labor disputes, riots, civil disorder, embargo, internet outage, health crisis, pandemic, earthquake or the like. The affected party will provide prompt written notice to the other party and will use commercially reasonable efforts to mitigate the effects of the force majeure event.
13.9 Waiver. Neither party shall be deemed to have waived any of its rights under these Terms by lapse of time or by any statement or representation other than by an authorized representative in an explicitly signed, written waiver. No waiver of a breach of these Terms by either party will constitute a waiver of any other breach of these Terms.
13.10 Severability. In the event a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and if the foregoing is not possible, such provision shall be severed from the Terms. All remaining provisions shall continue in full force and effect.
13.11 Interpretation. In these Terms, the words “include,” “includes,” and “including” are used in an illustrative sense and shall be construed as if followed by “without limitation,” and the term “or” shall not be exclusive. Titles and headings to sections herein are included for convenience only and are not intended to affect the meaning or interpretation of these Terms. Any limited or specific disclaimers or limitations of liability found in these Terms shall not limit the effect, force, or breadth of any more general disclaimers or limitations of liability in these Terms.
13.12 Admissibility. You agree that all agreements, notices, disclosures, and other communications that Ocusell provides to you via a notice on the Service or an email to an address that we have on file for you will satisfy any legal requirement that such communications be in writing. You further agree that a printed version of these Terms and/or any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms or your use of the Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
13.13 Notice to California Residents. California residents may reach us at the contact information provided in these Terms and the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
13.14 Entire Agreement. These Terms, together with the Privacy Policy available at https://www.ocusell.com/privacy-policy, constitute the entire agreement between you and Ocusell with regard to your use of the Service. These Terms supplement and are subject to the contract between the Customer and REharpoon LLC. Where discrepancies may exist between these Terms and the Listing Management Service Terms, the Listing Management Service Terms will prevail. Neither party has relied upon any prior or contemporaneous communications. Any amendment or modification to these Terms must be in writing and signed by authorized representatives of both parties to be effective.