Chas Everitt - Plettenberg Bay Sales Data License, Indexing & Submission Agreement

This agreement entitles you, upon payment of the relevant fees, where applicable, to submit listings or information to www.everitt-plett.co.za/, and or any of its versions hereafter referred to as Chas Everitt - Plettenberg Bay Sales, provided that you abide by the terms and conditions as set out below.

"You" or "Your" means the person accepting this Agreement by clicking the check box and/or "SUBMIT," and/or any company or entity which has authorised that person to do so. By clicking the check box and/or "SUBMIT," You agree to bind Yourself and Your Company to the terms and conditions of this Agreement. This is an Agreement between You and www.everitt-plett.co.za/.

This Agreement is effective as of the date You click on the check box and/or "SUBMIT."

Important clauses that limit our responsibility or involve some risk for you may be in bold.
You must pay special attention to these clauses.

DISCLOSURES REQUIRED BY SECTION 43 OF THE ELECTRONIC COMMINICATION AND TRANSACTIONS ACT 25 OF 2002 (“ECTA”). You have the rights detailed in Chapter 7 of the ECTA.

Chas Everitt - Plettenberg Bay Sales discloses the following information:

- Company Name: Chas Everitt - Plettenberg Bay Sales
- Telephone number: 0445335250
- Website address: www.everitt-plett.co.za/
- Physical address for receipt of legal service: 26 Main Street Plettenberg Bay 6600
- Main business: Real Estate Agency
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RECITALS

WHEREAS, Chas Everitt - Plettenberg Bay Sales operates an online real estate website that, among other things, enables end users to search for real estate information about properties for sale or rent, or that have been sold or rented ("Listing Content"), and where available, connect via hypertext links to websites of real estate agencies, or, to the extent permitted herein, to websites owned or operated by real estate multiple listing services, and/or other websites authorized to display real estate information.

WHEREAS, the Listing Content received and displayed by Chas Everitt - Plettenberg Bay Sales on its website includes text, data and images about individual real estate property for sale, for rent or that has been sold or rented. The Listing Content is provided to Chas Everitt - Plettenberg Bay Sales directly from users or real estate agencies or website operators via a direct data feed or manual submission. Chas Everitt - Plettenberg Bay Sales may also obtain the Listing Content by using Web Crawling software programs to index publicly accessible websites that have granted Chas Everitt - Plettenberg Bay Sales permission to do so. Chas Everitt - Plettenberg Bay Sales displays and delivers the Listing Content, together with other content and functionality derived from third party sources, to end users at Chas Everitt - Plettenberg Bay Sales to assist them in their search for property to purchase or rent.

WHEREAS, You maintain, distribute, or aggregate Listing Content ("Your Listing Content") about properties listed for sale or rent with real estate companies, newly constructed housing offered for sale by home builders and or developers or by private individuals or through real estate agencies and properties available for rent or lease from property owners or management companies.

WHEREAS, You permit Chas Everitt - Plettenberg Bay Sales to display Your Listing Content and to redistribute or syndicate Your Listing Content to other websites.

AGREEMENT

NOW THEREFORE, You and Chas Everitt - Plettenberg Bay Sales (the "Parties") agree that the foregoing Recitals are incorporated herein by reference and made a part of this Agreement, and You and Chas Everitt - Plettenberg Bay Sales further agree as follows:

1. License Grant from You to Chas Everitt - Plettenberg Bay Sales. By submitting Your Listing Content to Chas Everitt - Plettenberg Bay Sales, or by permitting Chas Everitt - Plettenberg Bay Sales to index Your Listing Content on Your website, You grant to Chas Everitt - Plettenberg Bay Sales a limited, non-exclusive, worldwide, sub licensable, royalty-free license and right (but not the obligation) to display, distribute, reproduce, modify, store, deliver and otherwise use Your Listing Content, and any updates, additions, changes or modifications thereto, provided by You, other persons affiliated with Your Company, or directly by owners, builders, or managers of the real estate parcels included in Your Listing Content in Chas Everitt - Plettenberg Bay Sales 's services, and create derivate works based upon Your Licensed Content, which may be accessed by end users through Chas Everitt - Plettenberg Bay Sales or any version of such, including mobile or wireless formats or applications.

Website to retrieve Your Listing Content. Chas Everitt - Plettenberg Bay Sales is further authorized to

  1. Display or deliver Your Listing Content to end users in conjunction with such other content or functionality supplied by Chas Everitt - Plettenberg Bay Sales or procured by Chas Everitt - Plettenberg Bay Sales from third parties,
  2. Permit operators of websites displaying real estate listing information to include functionality on such sites that enables visitors to those sites to conduct searches for, and view, Your Listing Content that appears on Chas Everitt - Plettenberg Bay Sales, including co-branded and mobile versions of Chas Everitt - Plettenberg Bay Sales, or websites of Chas Everitt - Plettenberg Bay Sales 's marketing partners that frame, or are framed by other websites,
  3. At Chas Everitt - Plettenberg Bay Sales’s discretion, redistribute or syndicate Your Listing Content to other websites,
  4. Otherwise use Your Listing Content to promote, improve, or modify Chas Everitt - Plettenberg Bay Sales and for such other lawful purposes as Chas Everitt - Plettenberg Bay Sales deems appropriate and
  5. Continue to use Your Listing Content, including any of Your Listing Content pertaining to properties that have been sold or rented after the termination or expiration of this Agreement for, among other things, real estate analytics and research purposes.

2. Chas Everitt - Plettenberg Bay Sales's Services to You. In consideration for the License granted in Section 1 above, Chas Everitt - Plettenberg Bay Sales agrees to provide end users who view Your Listing Content on Chas Everitt - Plettenberg Bay Sales or other sites as set forth in Section 1, with the ability to contact You or Your company representatives, or connect via a hypertext link to the page of Your website on which the Your Listing Content appears, if You provide such a hypertext link to Chas Everitt - Plettenberg Bay Sales.

[NOTE; Please ensure that the manner of payment return and refund policy is set out.]

3. Ownership of Chas Everitt - Plettenberg Bay Sales Site Materials. As between Chas Everitt - Plettenberg Bay Sales and You, You acknowledge and agree that Chas Everitt - Plettenberg Bay Sales owns all rights, title and interest in Chas Everitt - Plettenberg Bay Sales. This includes any and all software, programs, logos, trademarks, codes, processes, and any functionality contained in or on Chas Everitt - Plettenberg Bay Sales, and all of the content accessible on Chas Everitt - Plettenberg Bay Sales, with the exception of Your Listing Content and Chas Everitt - Plettenberg Bay Sales newsletter content supplied by third-parties. You agree not to contest Chas Everitt - Plettenberg Bay Sales's ownership claims, or disassemble, reverse engineer, license, sub-license, or re-license any of Chas Everitt - Plettenberg Bay Sales at any time, or assist or enable any other person to do so, without Chas Everitt - Plettenberg Bay Sales's express prior written consent, which Chas Everitt - Plettenberg Bay Sales may withhold in its sole discretion.

4. Your Representations and Warranties. You represent and warrant to Chas Everitt - Plettenberg Bay Sales that

  1. You are either a private individual or a licensed real estate sales agent affiliated with Your company or that You are an operator of a website, multiple listing service or company that displays or distributes information about real property for sale or rent,
  2. You have all necessary power and authority to enter into this Agreement and perform all of Your duties and obligations as set forth herein, and to bind Yourself and/or Your company to the terms of this Agreement,
  3. If You are affiliated with a real estate company, You are and will remain through the Term, duly licensed in good standing in the state in which Your principal office is located; and You are a party to a valid listing agreement with the owners of the properties that are included in Your Listing Content;
  4. Chas Everitt - Plettenberg Bay Sales 's indexing of the Listing Content appearing on Your website through the use of Chas Everitt - Plettenberg Bay Sales's "Web Crawling" software programs or Chas Everitt - Plettenberg Bay Sales's receipt of a direct data feed containing Your Listing Content does not infringe upon the intellectual or proprietary rights or trade secrets of any third party,
  5. Your Listing Content does not contain any libellous material or invade any person's personal privacy rights, or violate any contracts, or rules or regulations to which You are a party, or are required to adhere, including but not limited to the Rules and Regulations of any Multiple Listing Service,
  6. You own, or have secured all necessary licenses to, the intellectual property rights in and to Your Listing Content that is licensed to Chas Everitt - Plettenberg Bay Sales pursuant to this Agreement and Chas Everitt - Plettenberg Bay Sales 's use of Your Listing Content as permitted by You pursuant to this Agreement does not and will not infringe upon the intellectual property rights of any third party, and
  7. the Listing Content provided or made available by You to Chas Everitt - Plettenberg Bay Sales does not contain any viruses, bugs, or corruptions.

5. Limitation of Liability. Subject to the provisions of the Consumer Protection Act (“CPA”) or ECTA, as applicable, IVVIT shall not be liable to You for damages of any kind based upon the display, redistribution or syndication of Your Listing Content as permitted by this Agreement, whether in contact or tort, and whether or not Chas Everitt - Plettenberg Bay Sales has been advised of the likelihood of any such damages. Your sole remedy for Chas Everitt - Plettenberg Bay Sales's breach of its obligations under this Agreement is termination of this Agreement pursuant to Section 7 below.

6. Disclaimers. Subject to the provisions of the Consumer Protection Act and/or ECTA, as applicable, Chas Everitt - Plettenberg Bay Sales does not make any warranties, express or implied, including any warranties of merchantability or fitness for a particular purpose concerning the operation of Chas Everitt - Plettenberg Bay Sales, or any other websites or pages on which Your Listing Content may appear or are accessible to end users by reason of the rights granted to Chas Everitt - Plettenberg Bay Sales in Section 1 above. Without limiting the generality of the foregoing, Chas Everitt - Plettenberg Bay Sales does not warrant that Chas Everitt - Plettenberg Bay Sales or any other websites or pages to which Chas Everitt - Plettenberg Bay Sales may redistribute or syndicate Your Listing Content will be free of errors or operate without interruption. Chas Everitt - Plettenberg Bay Sales and the other websites or pages on which Your Listing Content may appear by reason of the rights granted to Chas Everitt - Plettenberg Bay Sales in Section 1 are operated on an "as is" and "as available" basis and Chas Everitt - Plettenberg Bay Sales does not make any warranties that the display of Your Listing Content on Chas Everitt - Plettenberg Bay Sales, or any other website or page pursuant the license granted to Chas Everitt - Plettenberg Bay Sales in Section 1 will result in the actual or potential sale or rental of any particular parcel of property. Chas Everitt - Plettenberg Bay Sales does not have any control over, and disclaims any responsibility or liability for, the operation of any websites that frame or are framed by Chas Everitt - Plettenberg Bay Sales, or to which Your Listing Content may be redistributed or syndicated by Chas Everitt - Plettenberg Bay Sales pursuant to this Agreement. The content of any terms of use agreements or privacy policies governing such other sites are determined by the operators of such websites and not by Chas Everitt - Plettenberg Bay Sales. Chas Everitt - Plettenberg Bay Sales shall retrieve Your Listing Content from Your website, or receive such Content through a data feed, in an "as is" condition and Chas Everitt - Plettenberg Bay Sales disclaims any duty or responsibility to You for the accuracy or timeliness of Your Listing Content as it appears on Chas Everitt - Plettenberg Bay Sales, or on any other site on which Your Listing Content is permitted to be displayed pursuant to this Agreement.

7. Term and Termination. Either Party may terminate this Agreement immediately upon written notice to the other Party in the event the other Party breaches any of its obligations, representations, or warranties under this Agreement. Upon termination of this Agreement for any reason, the License granted in Section 1 shall terminate immediate subject to Chas Everitt - Plettenberg Bay Sales's right to continue to use Your Licensed Content provided to, or indexed by, Chas Everitt - Plettenberg Bay Sales prior to the date of termination as provided in Section 1.

Should section 44 of the ECT Act be applicable, or should section 16 of the CPA apply, you are entitled to cancel without reason and without penalty this agreement, within 5 (five) business days after the date of the conclusion of the agreement, subject to the exclusions in section 42 (2) of the ECT Act and the CPA.

8. Indemnity. You agree to defend, indemnify, and hold harmless Chas Everitt - Plettenberg Bay Sales from any damages of any type, equitable or legal remedies, judgments, fines, or penalties, including reasonable attorney’s fees and litigation costs and expenses, asserted against Chas Everitt - Plettenberg Bay Sales by a third party based upon allegations that if proven to be true would constitute a breach by You of any of Your representations, warranties, or obligations under this Agreement. In the event of such a claim or demand subject to this Section, Chas Everitt - Plettenberg Bay Sales shall provide You with prompt written notice of such a claim or demand, and shall reasonably cooperate with You in the defence or settlement of any claim. You shall have the right to select and retain legal counsel, at Your sole expense, to defend or settle and claim or demand subject to this Section, provided that Chas Everitt - Plettenberg Bay Sales shall have the right to retain its own counsel, at its sole expense, to monitor the defence or settlement of any claim. You shall have the sole right to settle and compromise any claim or demand, provided that Chas Everitt - Plettenberg Bay Sales shall have the right to consent to any settlement or compromise that materially alters Chas Everitt - Plettenberg Bay Sales’s rights under this Agreement.

9. Assignment. You shall not have any right to assign this Agreement to any third party without the prior written consent of Chas Everitt - Plettenberg Bay Sales. Chas Everitt - Plettenberg Bay Sales shall have the right to assign this Agreement without Your consent to (1) a subsidiary, parent or related company of Chas Everitt - Plettenberg Bay Sales, (2) as part of the sale of all or substantially all of Chas Everitt - Plettenberg Bay Sales's assets to a third party, or (3) as part of a merger or acquisition of Chas Everitt - Plettenberg Bay Sales by a third party.

10. Independent Contractor. The Parties agree that the relationship between them is an independent contractor relationship, and neither Party shall be deemed to be an employee of the other Party.

11. Governing Law; Jurisdiction; Venue; Attorney’s Fees. The Parties agree that this Agreement shall be governed by the laws of the Republic of South Africa without regard to any choice of law rules, and that the Parties duties and obligations under this Agreement may be carried out using electronic media and electronic stored information. The Parties agree that any suit or petition filed by one Party against the other Party to enforce or interpret this Agreement shall be filed in the South Gauteng High Court in the Republic of South Africa, and the Parties agree to waive any objection to the exclusive jurisdiction of such court. The prevailing Party in such action or petition shall be entitled, in addition to any other relief deemed appropriate by the court, to an award of its reasonable attorneys' fees, costs, and litigation expenses incurred in the prosecution or defence of such action.

12. Confidential Information. You and Chas Everitt - Plettenberg Bay Sales agree that "Confidential Information" shall mean any and all information identified in writing by the other as "Confidential" or "Proprietary." Confidential Information shall also include any information about a Party's financial status or condition, its technology, software applications, source code and object code, actual or potential customers, clients, or subscribers, present or future business strategies or plans, or actual or potential business partners, licensors, licensees, or joint venturers, whether or not such information is specifically is designated as Confidential Information by a Party. A Party shall not disclose the Confidential Information of another Party to any third person or entity without the express written consent of the other Party, for so long as this Agreement is in effect and for an additional two year period following termination of this Agreement. Neither Party will make use of the other Party's Confidential Information except as permitted under the terms of this Agreement. Each Party shall take steps to protect the Confidential Information of the other party that are at least equivalent to the steps taken by that Party to protect its own Confidential Information but in any case not less than reasonable care.

These confidentiality obligations shall not apply to any information which:

(i) is or becomes available to the general public other than through a breach by the receiving Party;
(ii) is already known to the receiving Party before disclosure by the disclosing Party;
(iii) is developed through the independent efforts of the receiving Party;
(iv) the receiving Party rightfully receives from a third Party without restriction as to confidentiality or use, or
(v) is required to be disclosed by operation of law, or pursuant to a subpoena issued by a court, governmental agency, or duly authorized dispute resolution entity.

13. Force Majeure. Neither Party shall be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance or interruption of service, resulting directly or indirectly from acts of God, acts of civil or military authorities, civil disturbances, terrorism, wars, strikes or other labour disputes, fires, transportation contingencies, interruptions in telecommunications or Internet services or network provider services, failure of equipment and/or software, other catastrophes or any other occurrences which are beyond such party's reasonable control.

14. Prior Agreements Superseded. This Agreement supersedes any prior agreement between the Parties, which prior agreement shall be deemed null and void upon Your acceptance of this Agreement. [Note: Is this clause applicable?]

15. Description and Delivery of Listing Content. If You are a private individual or estate agency or franchise group and agree to provide Chas Everitt - Plettenberg Bay Sales with a data feed containing Your Listing Content, Your Listing Content shall consist of the fields of data available to You on the website.

In addition, all information fields that You permit any other person or entity to use or publish via the Internet or other electronic delivery system shall be provided under this Agreement along with permission to use and publish under the terms of the Agreement.

You shall deliver Your Listing Content in the following manner:

Your Listing Content file may be compressed using the ZIP data compression format where appropriate. In addition, Chas Everitt - Plettenberg Bay Sales has the right to index Your website in a manner amenable to the technical departments of both Parties to obtain some or all of the required Listing data, such as thumbnail images.

You shall deliver Your Listing Content according to the following delivery schedule: You shall deliver an update of Your Listing Content as frequently as possible and at least on a daily basis, a minimum of six (6) days and preferably seven (7) days per week except on national holidays. The delivery must be completed before 8:00 AM each day. Photos should be delivered daily with Your Listing Content, and must be delivered/updated at a minimum of once weekly.

The delivery schedule may be modified from time to time as required by Chas Everitt - Plettenberg Bay Sales on prior written notice to You.

If You are not able to comply with the Listing Content format, delivery mechanism, or delivery frequency as set forth above, You shall immediately notify Chas Everitt - Plettenberg Bay Sales (or its designee) to arrange alternative methods for delivery of Your Listing Content.

You will provide Chas Everitt - Plettenberg Bay Sales with a technical contact that can be reached via e-mail and telephone to resolve issues as they arise.

In the event that You wish to add or remove fields, change the format or possible values of a field, or change the way that data that is delivered, Your technical contact will notify Chas Everitt - Plettenberg Bay Sales's technical contact to discuss such proposed changes. The proposed changes shall be made upon mutual agreement of the Parties.

Chas Everitt - Plettenberg Bay Sales shall replace or update Your existing Listing Content with Your most recent Listing Content at least every forty-eight (48) hours.

You further agree to update each of Your listings at least once every thirty (30) days, failing which, the listing will be deleted from Chas Everitt - Plettenberg Bay Sales and its affiliated websites.

16. Modification Provision- Chas Everitt - Plettenberg Bay Sales reserves the right to change or modify any provisions of this Agreement, at any time in our sole discretion and without liability to you. Any such changes or modifications will be effective immediately upon posting of revisions Chas Everitt - Plettenberg Bay Sales. By continuing to (1) submit Your Listing Content to Chas Everitt - Plettenberg Bay Sales or (2) permit Chas Everitt - Plettenberg Bay Sales to index Your Listing Content, following the posting of such changes or modifications, constitutes your acceptance thereof. Therefore, you should frequently review this Agreement on Chas Everitt - Plettenberg Bay Sales in order to understand the terms and conditions applicable to your submission of Your Listing Content to Chas Everitt - Plettenberg Bay Sales and your permission to allow Chas Everitt - Plettenberg Bay Sales to Index Your Listing Content. If you do not agree to any changes or modifications to this Agreement, your sole recourse is to stop submitting Your Listing Content to Chas Everitt - Plettenberg Bay Sales and/or permitting Chas Everitt - Plettenberg Bay Sales to index Your Listing Content.

17. Severability If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law all other provisions of this Agreement will nonetheless remain in full force and effect. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible.

Updated: 12 September 2012
Please direct enquiries with respect to these Terms & Conditions to plett@everitt.co.za