Terms of Service
These Terms of Service (“Terms“) are a binding agreement between you, a real estate agent, and Ocusell, Inc. (“Ocusell“). Please read these Terms carefully before using the Service. If you do not agree to these Terms, please do not use the Service or access our website. These Terms are effective on the date that you first access the Service (the “Effective Date“).
WE RESERVE THE RIGHT TO MODIFY OR AMEND THESE TERMS FROM TIME TO TIME, AND YOUR CONTINUED USE OF THE SERVICE FOLLOWING THE POSTING OF CHANGES TO THESE TERMS MEANS YOU ACCEPT THOSE CHANGES. YOU ACKNOWLEDGE AND AGREE THAT OCUSELL IS NOT A PARTY TO ANY REAL ESTATE TRANSACTIONS, HAS NO CONTROL OVER THE CONDUCT OF REALTORS OR THEIR SERVICES, AND DISCLAIMS ANY AND ALL LIABILITY ASSOCIATED THEREWITH. OCUSELL IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL LISTINGS AND YOUR REAL ESTATE SERVICES.
1. The Service. Ocusell makes available an online platform (the “Service“) to list and manage real estate property listings (“Listings“). 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 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 of the content featured or displayed on the Service, including without limitation text, graphics, photographs, images, sound, and illustrations, and excluding Realtor Data, defined in Section 5 (“Content“), is owned by Ocusell or its licensors, vendors, agents or its Content providers. All elements of the Service, including without limitation the general design and the 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 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 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
operations@ocusell.com
3.3 All trademarks, service marks and trade names of Ocusell used in the Service (including but not limited to: Ocusell’s name and logo; the Service’s name, design, and any logos) (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 name 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 our prior written permission 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 we nor any of our respective affiliates are responsible for any content, materials or other information located on or accessible from any other website. We do not 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.
4.3 You agree that you will not use any robot, spider, scraper 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; or (iii) bypass any measures we may use to prevent or restrict access to the Service. 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 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; or (g) promotes illegal or harmful activities or substances. In addition to any other remedies, Ocusell may immediately suspend or terminate your access to the Service in the event you violate these restrictions.
4.5 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, its affiliates, 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 infringes, misappropriates, or otherwise violates any intellectual property rights, proprietary rights, or applicable laws.
5. Data Privacy; Security.
5.1 Data collection and use, including the collection and use of personal information, is governed by Ocusell’s Privacy Policy, which is incorporated into and is a part of these Terms.
5.2 Ocusell implements and maintains commercially reasonable technical, physical and organizational security measures intended to protect and safeguard the data that is provided to Ocusell by or on behalf of you under these Terms (“Realtor Data“). In the event that Ocusell becomes aware of any breach of security with respect to Realtor Data, Ocusell shall: (i) provide notice of the security breach to you; (ii) conduct an investigation to learn the cause of such security breach; and (iii) take all steps reasonably necessary to remedy the event and to prevent such security breach from reoccurring.
5.3 You are the sole and exclusive owner of your Realtor Data. Ocusell may de-identify and/or aggregate Realtor Data so that it does not contain personal information (“De-Identified Data“). Ocusell may collect, store and process analytics data about the Service and your use of the Service, that does not contain personal information, such as machine data, technical data, usage data, systems data, data gathered via cookies and other online tracking mechanisms, and other similar types of data (“Analytics Data“). Ocusell is the sole and exclusive owner of all rights, title and interest in and to Analytics Data and De-Identified Data, which Ocusell may use and share for any business purpose in compliance with applicable laws. Without limiting the foregoing, De-Identified Data and Analytics Data may be aggregated with other data by Ocusell and used for benchmarking and Service improvement purposes.
5.4 You are solely responsible for all Realtor Data input into the Service, including its legality and accuracy and the resulting output. You are responsible for backing up any Realtor Data input into the Service.
6. Right to Cancel, Error, Mistakes. The Service may contain technical inaccuracies and typographical or other errors in connection with information displayed. Ocusell assumes no responsibility or liability for such errors, inaccuracies, or omissions. Ocusell has the right to make changes, corrections or cancellations to such information at any time. Ocusell is not 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 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, and will provide you with notice before changes take effect. Features and capabilities may be different depending on how you receive access to the service.
8. Modules and Third-party Integrations. Depending on your system access, Ocusell may provide modules or third-party integrations (“Marketplace Vendors”). These integrations are available within Ocusell but are not Ocusell Services. Use of any Marketplace Vendor(s) is solely between you and the third-party provider and subject to their terms. By enabling an integration, you authorize Ocusell to share Customer Data as necessary for interoperability. Ocusell makes no warranties or guarantees regarding third-party integrations, is not responsible for their handling of Customer Data, and may suspend or discontinue integrations at any time without notice or refund.
9. Disclaimers.
9.1 YOUR USE OF THE SERVICE IS AT YOUR RISK. THE 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, SUPPLIERS, SERVICE SUPPLIERS OR LICENSORS WARRANT THE ACCURACY OR COMPLETENESS OF THE 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. WE MAY MAKE CHANGES TO THE CONTENT AND SERVICE, INCLUDING THE PRICES AND DESCRIPTIONS OF ANY SERVICES, 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, CONTENT AND SERVICE WILL NOT CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOU REPRESENT AND WARRANT THAT AT ALL TIMES DURING YOUR USE OF THE SERVICE YOU ARE AND WILL REMAIN IN GOOD STANDING WITH YOUR MLS MULTIPLE LISTING SERVICE.
9.2 YOU ARE NOT AN AGENT OR EMPLOYEE OF OCUSELL. OCUSELL IS NOT 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. OCUSELL HAS NO LIABILITY AND WILL MAKE NO REFUND IN THE EVENT OF ANY DELAY, CANCELLATION, STRIKE, FORCE MAJEURE OR OTHER CAUSES BEYOND OCUSELL’S DIRECT CONTROL, AND OCUSELL HAS NO RESPONSIBILITY FOR ANY ADDITIONAL EXPENSE, OMISSIONS, DELAYS, RE-ROUTING OR ACTS OF ANY GOVERNMENT OR AUTHORITY. OCUSELL MAKES NO GUARANTEES ABOUT THE AVAILABILITY OF SPECIFIC SERVICES.
10. Limitations of Liability.
10.1 OCUSELL DOES NOT ASSUME ANY RESPONSIBILITY FOR AND IS NOT 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. OCUSELL DOES NOT ASSUME ANY RESPONSIBILITY AND IS NOT LIABLE FOR ANY ACTS ANDS OMISSIONS OF MARKETPLACE VENDORS. IN NO EVENT WILL OCUSELL, OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, 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, OCUSELL’S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
10.2 IN NO EVENT SHALL OCUSELL’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE EXCEED THE FEES YOU PAID TO OCUSELL HEREUNDER IN THE SIX-MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED.
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.
11. Indemnification. You agree to defend, indemnify and hold Ocusell and its directors, officers, employees 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; or (v) any claim or damages that arise as a result of any information or Realtor Data that you provide to Ocusell or to a third-party via Ocusell.
12. Term; Termination; Survival.
12.1 The term of this agreement will be concurrent with the applicable List or List Plus subscription plan provided by your MLS or brokerage. Accordingly, for as long as you have access to the system 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 our Service in the event that (a) you breach these Terms; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause financial loss or legal liability for you, our users, or us.
12.2 Upon termination, you will have a period of thirty (30) days from the date of the Notice of Termination or termination date to request access to your Realtor Data maintained by Ocusell (“Transition Period“). Upon expiration of the Transition Period, Ocusell shall permanently delete all Realtor Data.
12.3 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.
13. Miscellaneous.
13.1 Governing Law and Venue. These Terms, along with the corresponding Service Order Form, shall be construed and interpreted pursuant to the laws of the State of Ohio, without regard to the conflict of law rules or principles thereof. Customer agrees to exclusive jurisdiction and venue in the state and federal courts having jurisdiction in Cincinnati, Ohio, U.S., and irrevocably consents to personal jurisdiction in such courts. The parties specifically exclude application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (UCITA) to these Terms.
13.2 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 Independent Contractors. Both parties shall be, and shall act as, independent contractors. Neither party shall have authority to create any obligation or make any commitments on the other party’s behalf.
13.4 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.
13.5 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.
13.6 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.
13.7 Force Majeure. No delay, failure, or default by Ocusell, will constitute a breach of these Terms to the extent it results of causes beyond the reasonable control of Ocusell, 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.
13.8 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.
13.9 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.
13.10 Entire Agreement. These Terms constitute the entire agreement between the parties with regard to the subject matter herein and supersede all prior or contemporaneous negotiations, discussions, understandings or agreements between the parties. Neither party has relied upon any such prior or contemporaneous communications. Any amendment or modification to these Terms must be in writing and signed by the authorized representatives of both parties to be effective.