BUYER / SELLER TERMS OF SERVICE
LAST UPDATED: June 29, 2020
Welcome to Toura! This Terms of Service ("Terms" or "Agreement") constitutes a valid and binding agreement between Toura, LLC, a wholly-owned subsidiary of SimpleShowing, Inc. ("Toura," "we," or "us") and you ("you," or "your"). This Agreement explains the terms by which you may use our online and/or mobile services, application, website, and software provided by or in connection with the service (collectively the "Services").
By accessing or using the Services, you signify that you have read, understood, and agree to be bound by this Agreement and the terms herein which thereby becomes a binding contract between you and Toura. If you do not agree, you may not use the Services. If you accept or agree to these terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, "you" and "your" will refer and apply to that company or other legal entity. You may only access and use the Services in accordance with this Agreement. Toura’s acceptance is expressly conditioned upon your assent to all the terms and conditions of this Agreement, to the exclusion of all other terms. You will adhere to all laws, rules, and regulations applicable to your use of the Services.
You represent to us that you are lawfully able to enter into contracts. You must be at least 18 years of age (or the age of legal majority in your jurisdiction if different than 18) to be eligible to use the Services. In certain instances, Toura may require you to provide proof of identity to create your account, or to access or use the Services, and you acknowledge and agree that you may be denied access or use of the Services if you refuse to provide such proof. This Agreement applies to all visitors, users, agents, sellers, landlords, lessors, sublessors and prospective purchasers, tenants, lessees, and sublessees, and any others who access the Services ("Users").
a. Toura provides a platform for the various Users to communicate and meet virtually and arrange for tours of properties that are for rent or sale. For the purpose of clarity, Toura is not an owner, operator, broker, agent, manager or provider of properties. Toura does not own, sell, resell, furnish, provide, rent, manage and/or control properties. Toura’s role is simply to provide the platform, and facilitate the Services between the Users.
b. No Agency or Endorsement / Neutral Platform
i. You expressly acknowledge and agree that all Users are independent individuals and/or entities and not Toura’s contractors, agents or employees. We do not make any representations or warranties of any kind with respect to any User or services provided or requested by Users, nor shall Toura be deemed to endorse any User. We are not liable for the acts, errors, omissions, representations, warranties, breaches or negligence of any User or services provided or requested by Users, or for any personal injuries, death, property damage, or other damages or expenses resulting therefrom. We are not a party to any transaction with another User, and we are in no way responsible for the performance or non-performance of any User thereunder or the quality or lack thereof of any services provided by a User.
ii. The Services are provided and function solely as a neutral platform and are to be used as a general resource. Toura is not involved in or a party to any actual transactions between Users or between Users and other third parties, affiliates or independent partner agents, even if you are introduced or referred to, connect with, or link to them through the Services. As a result, Toura has no control over the quality, timeliness, and/or safety of the transactions between Users and is absolutely not responsible for the actions or inactions of a User. Any dispute between a User and another User is between the parties involved, and Toura will not, in any event, be a party to that dispute. However, we want to try to help if there are issues, so if you are unable to resolve a dispute, Toura may use commercially reasonable efforts to mediate and arrive at a mutually agreed upon resolution.
c. User-Specific Terms. In addition to these Terms, as a further condition to using the Services, if you are a seller or lessor of a property or properties, you agree to the Additional Terms – Sellers/Lessors, or if you are a prospective purchaser or lessee, you agree to the Additional Terms – Purchasers/Lessees.
i. Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Services as permitted by the features of the Services. Toura reserves all rights not expressly granted herein in the Services and the Toura Content (as defined below). Toura may terminate this license at any time for any reason or no reason.
ii. You acknowledge and agree that the Services are licensed solely for your own business or personal use and you may not use the Services for any other purposes, without prior written authorization from Toura. You agree to not (a) grant access to any third party for any purpose whatsoever without the prior written consent of Toura; (b) make the Services, in whole or in part, available to any other person, entity or business; (c) sell, sublicense, lease, permit, transfer, copy, reverse engineer, decompile or disassemble the Services, in whole or in part, or otherwise attempt to discover the source code to the software used in the Services; (d) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Services, features that prevent or restrict use or copying of any content accessible through the Services, or features that enforce limitations on use of the Services; (e) remove any proprietary notices from the software of elsewhere on the Services; or (d) modify, alter, integrate, combine the Services or associated software with any other software or services not provided or approved by us. You have and will obtain no rights to the Services except for the limited rights to use the Services expressly granted by this Agreement. Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Toura reserves all rights not expressly granted under this Agreement
iii. You acknowledge that Toura may from time to time issue upgraded versions of the Services, and may automatically electronically upgrade the version of the Services that you are using. You consent to such automatic upgrading, and agree that the terms and conditions of this Agreement will apply to all such upgrades.
i. In order to use the Services, you will be required to create an account and provide accurate, current and complete information in connection with your use of the Services (“Account”). You agree to maintain and promptly update your Account information as necessary to maintain its accuracy. Toura reserves the right to suspend or terminate access to and use of the Services, or any portion thereof, on the basis of inaccurate or incomplete Account information.
ii. Your Account gives you access to the Services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of accounts for different types of Users. If you open a Toura Account on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf.
iii. You are solely responsible for all activity that occurs when the Services are accessed through your Account, and you must keep your account password secure. You must notify Toura immediately of any breach of security or unauthorized use of your account. Toura will not be liable for any losses or damages arising from your failure to protect your password or Account information and/or caused by any unauthorized use of your Account.
iv. You may control your Account and how you interact with the Services by changing the settings in your Account. By setting up an Account, you consent to our using your phone number for text messages and/or email address to send you Services-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Services and special offers. If you do not want to receive such email messages, you may opt out or change your preferences in your Account settings page. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
f. Service Rules
i. You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Services; (vii) collecting or harvesting any personally identifiable information, including account names, from the Services; (viii) using the Services for any commercial solicitation purposes other than as explicitly permitted herein; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, stealing or assuming and person’s identity (whether a real identity or nickname or alias), conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Services; (xi) accessing any content on the Services through any technology or means other than those provided or authorized by the Services; or (xii) bypassing the measures we may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein.
ii. Furthermore, you may not use the Services to develop, generate, transmit or store information that: (A) infringes any third party’s intellectual property or other proprietary right; (B) is defamatory, harmful, abusive, obscene or hateful; (C) in any way obstructs or otherwise interferes with the normal performance of another User’s use of the Services, (D) performs any unsolicited commercial communication not permitted by applicable law; and (E) is harassment or a violation of privacy or threatens other people or groups of people.
iii. Toura has the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Toura may involve and cooperate with law enforcement authorities in prosecuting Users who violate these Terms. You acknowledge that Toura has no obligation to monitor your access to or use of the Services or to review or edit any User Materials, but has the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body.
iv. We may, without prior notice, change the Services; stop providing the Services or features of the Services, to you or to Users generally; or create usage limits for the Services. We may permanently or temporarily terminate or suspend your access to the Services without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
g. Availability of Services. Toura will use commercially reasonable efforts to make the Services available pursuant to this Agreement except for (a) planned downtime; (b) emergency downtime; and (c) any unavailability caused by circumstances beyond our reasonable control. Toura reserves the right to modify the Services from time to time and makes no guarantees as to the continuous availability of the Services or of any specific feature(s) or functionality(ies) of the Services.
a. Toura can refer you to an affiliated or independent third-party agent to show you agent-guided properties and/or that can represent you in your purchase or sale or rental (“Partner Agent”), and you may be eligible for promotions for working with that Partner Agent. Should you choose to work with that Partner Agent, Toura may receive a referral fee. However, we never require you to choose any particular agent to buy or sell or rent a home. For the purpose of clarity, we will only share information with a Partner Agent as needed to complete your request, and any representation you enter into will be separate from this Agreement, and under its own separate terms and conditions.
b. In our Atlanta, Orlando, or any other SimpleShowing service areas, Toura can also refer you to an affiliated SimpleShowing Agent to show you agent-guided properties and/or that can represent you in your purchase or sale or rental (a “SimpleShowing Agent”), and you may be eligible for promotions for working with that SimpleShowing Agent. Should you choose to work with that SimpleShowing Agent, Toura may receive a referral fee. However, we never require you to choose any particular agent to buy or sell or rent a home. For the purpose of clarity, we will only share information with a SimpleShowing Agent as needed to complete your request, and any representation you enter into will be separate from this Agreement, and under its own separate terms and conditions. Toura LLC is a wholly owned subsidiary of Simple Showing Inc.
3. Property Rights
a. The Services and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, and music (the “Toura Content”), and all intellectual property rights related thereto, are the exclusive property of Toura. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such intellectual property rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Toura Content. Use of the Toura Content for any purpose not expressly permitted by this Agreement is strictly prohibited. This Agreement does not provide you with title or ownership of any Services or Toura Content, but only a limited right to use the same solely upon the terms expressly set forth in this Agreement. For the purpose of clarity, nothing provided under this Agreement is to be considered a “work for hire” and Toura does not convey, transfer or assign to you any right, title and interest it may have now or in the future acquire, including but not limited to all intellectual property rights.
b. User materials. You will own and maintain ownership of all of your materials and information (“User Materials”). We do not claim any ownership of the User Materials that you submit, post, or display through the Services.
i. Subject to the terms and conditions of this Agreement, You grant Toura a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display User Materials, only as reasonably necessary (a) to provide, maintain and improve the Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law; and (d) as expressly permitted in writing by You.
ii. You represent and warrant that you have all rights in and to the User Materials as may be necessary to grant this license.
iii. The User Materials that you submit may be modified or adapted for purposes of transmission, display, or distribution over computer networks or any media formats, in order to conform to any requirements or limitations in working with such networks, services, devices or media. You retain any and all ownership rights to the User Materials that you submit and are responsible for protecting those rights. We reserve the right at all times to remove or refuse distribution of any User Materials on or through our Services.
a. Toura provides basic Account Services to general Users, other than Agents brokers and sellers who list without an Agent (i.e. for sale by owner), at no charge. Toura may add new Services for additional fees and charges, or add or amend fees and charges for existing Services, at any time in its sole discretion. The User may elect to pay for additional Services as they become available (“Fees”).
b. Payment Processor. Please note that any payment terms presented to you in the process of using or signing up for Services are deemed part of this Agreement. Toura uses a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your Account. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. We are not responsible for errors by the Payment Processor. By utilizing the Services, you agree to pay us, through the Payment Processor, in accordance with the applicable payment terms. Toura reserves the right to change its prices and to offer discounts and temporary promotions. You agree that it is your responsibility to maintain a valid, non-expired credit card on file with us while engaging in fee-based activities on our Services. You agree that if you do not maintain a valid, non-expired card on file with us during any billing attempt, you may be subject to interest and penalties. You irrevocably and expressly authorize Toura to withhold any monies and/or debit any monies from any account that you have identified to Toura for any chargebacks, fees, costs, deductions, adjustments and any other amounts owed to Toura.
c. California Residents. The provider of services is set forth herein. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
Toura cares about and takes very seriously the integrity and security of your personal information. We take commercially reasonable administrative, physical and electronic measures designed to safeguard and protect the Services, User Materials and content, information and data therein from unauthorized access, use, modification, deletion and/or disclosure by our personnel. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
7. Third-Party Links and Information
8. Representations and Warranties
a. You represent and warrant that: (i) You have the power, right and authority to enter into this Agreement, and are capable of forming a binding contract: (ii) you will use the Services for lawful purposes only and in accordance with this Agreement and all applicable laws, regulations and policies, including but not limited to laws governing sales and rentals of residential and other properties, (iii) you own or have sufficient rights in and to the User Materials you submit through the Services to grant the licenses set forth in this Agreement with respect to such content to Toura; (iv) User Materials will not include any false or misleading information; (v) and that any use by Toura of such User Materials as contemplated in this Agreement will not infringe on the rights of any third party or violate any applicable laws or regulations, and that such User Materials shall not (a) violate any laws or regulations or any rights of any third parties, including but not limited to, such violations as infringement or misappropriation of any copyright, patent, trademark, trade dress, trade secret, music, image or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or publicity rights, moral or otherwise, or rights of celebrity, or any other right of any person or entity; (b) contain any material that is unlawful, fraudulent, threatening, defamatory, obscene, profane or hateful, or promotes discrimination, bigotry, racism, hatred, violence, harassment or harm against any individual or group; or (c) contain any disabling codes or instructions, or any viruses, worms, Trojan horses or other contaminants.
b. Toura represents and warrants that: (i) the Services shall materially perform as set forth in any descriptions or specifications provided by Toura to you, and (ii) the Services will not infringe the intellectual property rights of third parties.
a. You agree to defend, indemnify and hold harmless Toura and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) (“Losses”) arising from: (i) your use of and access to the Services, including any User Materials transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or intellectual property rights,; (iv) your violation of any applicable law, rule or regulation; (v) any User Materials or content that is submitted via your account including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of the Services with your unique username, password or other appropriate security code.
b. Toura agrees to defend, indemnify and hold you harmless from third party claims arising out of (i) a breach of this Agreement by Toura, or (ii) claims that the Services infringe the intellectual property rights of third parties. If the Services become the subject of an intellectual property infringement claim, Toura may, at its sole option, (a) procure for you a license to continue using the Services in accordance with this Agreement; (b) replace or modify the allegedly infringing portion of the Services to avoid the infringement, or (iii) terminate this Agreement. This section sets forth your sole remedy in the event of any third party infringement claim regarding the Services.
10. No Warranty
a. AS STATED HEREIN, THE SERVICES ARE INTENDED TO BE USED TO FACILITATE THE VISITING OF PROPERTIES FOR SALE OR RENT. TOURA CANNOT AND DOES NOT CONTROL THE CONTENT CONTAINED IN ANY USER MATERIALS OR LISTINGS AND THE ACCURACY, CONDITION, LEGALITY OR SUITABILITY OF ANY LISTINGS. TOURA IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL USER MATERIALS, LISTINGS OR SHOWINGS.
b. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICES IS AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY AND ALL ACTS OR OMISSIONS TAKEN OR MADE IN RELIANCE ON THE SERVICES OR THE INFORMATION CONTAINED THEREIN, INCLUDING INACCURATE OR INCOMPLETE INFORMATION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. TOURA DOES NOT WARRANT THAT THE SERVICES ARE ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICES.
c. TOURA MAY, IN ITS SOLE DISCRETION, CONDUCT CERTAIN IDENTIFICATION VERIFICATION PROCEDURES WHICH MAY OR MAY NOT INCLUDE BACKGROUND CHECKS, BUT TOURA IS UNDER NO OBLIGATION TO DO SO. IF TOURA ELECTS IN ITS SOLE DISCRETION TO PROVIDE ANY SUCH PROCEDURES, TOURA DISCLAIMS ALL LIABILITY FOR THE ACCURACY OR INACCURACY, RESULTS, OR ACTIONS TAKEN BASED ON SUCH.
d. TOURA DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE, AND TOURA WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND PROVIDERS OF SUCH THIRD PARTY PRODUCTS OR SERVICES.
e. TOURA MAY ALTER, SUSPEND, ADD TO, OR DISCONTINUE THE SERVICES IN WHOLE OR IN PART AT ANY TIME FOR ANY REASON, WITHOUT NOTICE OR COST. TOURA ASSUMES NO RESPONSIBILITY FOR YOUR ABILITY TO (OR ANY COSTS OR FEES ASSOCIATED WITH YOUR ABILITY TO) OBTAIN ACCESS TO THE SERVICES. TOURA DOES NOT ASSUME ANY LIABILITY FOR THE FAILURE TO STORE OR MAINTAIN ANY USER MATERIALS, COMMUNICATIONS, ACCOUNT INFORMATION, OR PERSONAL SETTINGS. BY HAVING ACCESS TO THE SERVICES, YOU AGREE THAT TOURA AND PARTNERS MAY PLACE ADVERTISEMENTS ON THE SERVICES. THE TYPES OF ADVERTISEMENTS ARE SUBJECT TO CHANGE. THE SERVICES MAY BECOME UNAVAILABLE DUE TO MAINTENANCE OR MALFUNCTION OF COMPUTER EQUIPMENT, SERVERS, OR OTHER REASONS.
f. YOU agree that Toura has made no agreements, representations or warranties other than those expressly set forth in this Agreement, and that no future agreement, representation or warranty of Toura with regard to Services provided under this agreement shall be effective unless expressly stated in an amendment to this Agreement signed by both parties. You acknowledge and agree that TOURA is not engaged in rendering legal, tax or other professional services. If legal, tax or other professional assistance is required, the services of a competent professional should be sought.
g. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Limitation of Liability
a. IF YOU ARE DISSATISFIED WITH THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TOURA, ITS AFFILIATES, AGENTS, DIRECTORS OR EMPLOYEES, BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, even if Toura has been apprised of the possibility or likelihood of such damages occurring.
b. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TOURA ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICES; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY OTHER USER OR THIRD PARTY. You acknowledge and agree that the fees and other charges which Toura is charging under this Agreement do not include any consideration for assumption by Toura of the risk of your indirect, consequential or incidental damages or of unlimited direct damages. IN NO EVENT SHALL TOURA BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO TOURA HEREUNDER OR $100.00, WHICHEVER IS GREATER.
c. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Avoid Wire Fraud
a. TOURA CAUTIONS ALL USERS TO BE AWARE OF WIRE FRAUD IN REAL ESTATE TRANSACTIONS, ESPECIALLY USING EMAIL. TOURA DOES NOT ACT AS A FINANCIAL INTERMEDIARY IN THE SALE, PURCHASE, OR LEASE OF ANY PROPERTY. WE WILL NOT ASK FOR YOUR BANK ACCOUNT OR FINANCIAL INFORMATION FOR ANY REAL ESTATE TRANSACTION. WE WILL NEVER SEND YOU WIRE INSTRUCTIONS. SHOULD YOU RECEIVE AN EMAIL THAT APPEARS TO BE FROM TOURA WITH WIRE INSTRUCTIONS, CHANGING WIRE INSTRUCTIONS, CHANGING THE PROCESS FOR OBTAINING WIRE INSTRUCTIONS, OR ASKING FOR YOUR PERSONAL INFORMATION, DO NOT RESPOND. CALL YOUR TITLE AGENT USING A TRUSTED AND VERIFIED PHONE NUMBER, NOT A NUMBER THAT MAY APPEAR IN THE EMAIL.
Phone Calls and Text Messages
a. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Georgia as it applies to a contract made and to be performed in such state. You consent and agree that the state and federal courts of Fulton County shall have personal jurisdiction over you, as well as subject matter jurisdiction with respect to any provision of this Agreement, and shall be the exclusive forums for any litigation arising out of or relating to this Agreement. You also agree to and hereby waive your rights to a trial by jury and agree to accept service of process by mail.
b. Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM TOURA. For any dispute with Toura, you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. In the unlikely event that Toura has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Fulton County, Georgia, unless you and Toura agree otherwise. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Toura from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights.
c. Expenses and Attorneys’ Fees. In the event any action is brought to enforce any provision of the Agreement or to declare a breach of the Agreement, the prevailing party shall be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorney’s fees, incurred thereby.
a. Either party may terminate the Agreement upon written notice to the other party if the other party materially breaches the Agreement and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach.
b. We have the right to deny access to, and to suspend or terminate your access to, the Services, or to any features or portions of such, and to remove and discard any User Materials you have submitted, at any time and for any reason, including for any violation by you of this Agreement. In the event that we suspend or terminate your access to and/or use of the Services, you will continue to be bound by the Terms that were in effect as of the date of your suspension or termination.
We respect the intellectual property rights of others, and we prohibit the uploading, posting, transmitting, sharing, or otherwise making available any material that violates another party's intellectual property rights. When we receive proper notification of alleged copyright infringement, we may promptly remove or disable access to any allegedly infringing material and may terminate any Account of any repeat infringer, in accordance with the Digital Millennium Copyright Act ("DMCA"). If you believe that your own copyrighted work is accessible on the Services or any service in violation of your copyright, then You may provide our designated agent with a written communication as set forth in the DMCA, 17 U.S.C. Sec. 512(c)(3) that contains substantially the following information:
Identify in sufficient detail the copyrighted work or intellectual property that you claim has been infringed, so that we can locate the material.
Provide the electronic or physical signature of the owner of the copyright or a person authorized to act on the owner's behalf.
Include a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
Include a statement by you that the information contained in your notice is accurate and that you attest under the penalty of perjury that you are the copyright owner or that you are authorized to act on the copyright owner's behalf.
Include your name, mailing address, telephone number, and email address.
You may submit your notification of alleged Copyright Infringement by sending an email to our designated agent at firstname.lastname@example.org.
a. Independent Contractor. The parties to the Agreement are independent contractors and nothing in the Agreement shall be deemed to make either party an agent, employee, or partner of the other party. Neither party shall have any authority to bind, commit, or otherwise obligate the other party in any manner whatsoever.
b. Jurisdictional Issues. The Services are controlled and operated from facilities in the United States. Toura makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Services are solely directed to individuals, companies, or other entities located in the United States.
c. Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Toura without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
d. Notification Procedures and Changes to the Agreement. Toura may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Toura in our sole discretion. Toura reserves the right to determine the form and means of providing notifications to you, provided that you may opt out of certain means of notification as described in this Agreement. Toura is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Toura may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘last modified’ date at the top of this page. Your continued use of the Services after any such change constitutes your acceptance of the new Agreement. If you do not agree to any of these terms or any future terms, do not use or access (or continue to access) the Services.
e. Electronic Communications. For contractual purposes, you consent to receive communications from us in an electronic form, and you agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing.
f. Entire Agreement / Severability. This Agreement, together with any amendments and any additional agreements you may enter into with Toura in connection with the Services, shall constitute the entire agreement between you and Toura concerning the Services. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
g. No Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Toura’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
h. Feedback. We may use any reports, comments, ideas and suggestions in any form regarding the Services that you provide to us (collectively, the “Feedback”). You grant us a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate and use the Feedback in connection with any products and services, and to share such Feedback, as applicable with other Users.
i. Interpretation. Section headings are for reference only, and shall not be construed as substantive parts of this Agreement. Each capitalized term used in this Agreement (including any schedule or exhibit of this Agreement) shall have the meaning attributed to it in any part of this Agreement (including any such schedules or exhibits).
j. Survival. You acknowledge and agree that all indemnification, confidentiality, intellectual property, governing law, dispute resolution, enforceability/injunctive relief, limitation of liability and other clauses including those provisions which by their terms contemplate survival shall survive the termination or expiration of this Agreement regardless of the cause of such termination.
k. Force Majeure. Neither party shall be liable to the other party for any delay or failure of said party to perform its obligations hereunder (except for payment obligations) if such delay or failure arises from any cause or causes beyond the reasonable control of such party. Such causes shall include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delays by either party in providing required resources or support or performing any other requirements hereunder.
Contact Us: If you have any questions about this Agreement, please contact us at email@example.com.
LAST UPDATED: June 29, 2020
ADDITIONAL TERMS – SELLERS/LESSORS
LAST UPDATED: June 29, 2020
These Additional Terms – Sellers/Lessors are incorporated into and are part of the Agreement between you (as a seller/lessor) and Toura regarding your use of the Services.
1. In addition to the Services sections in the Terms, if you are a seller/lessor, Toura makes certain tools available to you to help you to make informed decisions about which Users you choose to confirm for tours of, or visits to, your property. However, these tools and any information provided through them are merely advisory. All decisions regarding who is granted access to the property are made by you and at your sole and exclusive risk. You understand that Toura is not responsible for the acts or omissions of any User you allow to visit or tour your property. In addition, you acknowledge and agree that, as a seller/lessor, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who reside at or are otherwise present at the property at your request or invitation. Toura recommends that sellers/licensors obtain appropriate insurance for their properties. Please review any insurance policy that you may have for your property carefully, and in particular please make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not your insurance policy will cover the actions or inactions of Users who are touring or visiting the property (and the individuals such User Visitor invites to the property, if applicable and permitted) while at your property.
2. In addition to your general Account information, Seller/Lessor will be required to input specific information related to the property to be shown through the Services, including but not limited to dates and times the property is available for showings. Seller/Lessor understands that your property will not be able to be shown, and you will not be able to utilize the Services, until you have created an Account and agreed to the Terms, even if your Agent has an Account and has listed the property. You agree that you will be solely responsible for any inaccurate, incorrect or outdated information you provide.
3. In addition to the representations and warranties in the Terms, you represent and warrant that the Account information and User Materials you provide are accurate (including the pricing), and belong to you, that you have the legal rights to sell or rent the property, and that you have the right to provide such information and User Materials to Toura. You further represent and warrant that you are the sole owner of the property, or if there are other owners, that you have their explicit permission to list and show the property. If requested by Toura, you will provide, as applicable, the names and contact information for any additional owners of the applicable property and hereby grant permission to Toura to contact such additional owners for any purpose related to the Services, including but not limited to, verifying the User Materials and Account information. In addition, Seller further represents and warrants and agrees that he or she will notify Toura immediately if Seller’s agreement with an agent is withdrawn, canceled, disputed, expires or if the property is otherwise taken off the market.
4. In addition to the warranty sections of the Terms, you understand and agree that Toura does not act as an insurer or as a contracting agent for, or representative of, you as a seller/lessor, and if a potential purchaser/lessee requests a visit to your property and purchases or leases your property, any agreement you enter into with such purchaser/lessee is between you and the purchaser/lessee and Toura is not a party thereto. Please note that Toura reserves the right, at any time and without prior notice, to remove or disable access to any User Materials, information or listings for any reason, including those that Toura, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Services.
ADDITIONAL TERMS – PURCHASERS/LESSEES
LAST UPDATED: June 29, 2020
These Additional Terms – Purchasers/Lessees are incorporated into and are part of the Agreement between you (as a prospective purchaser/lessee) and Toura regarding your use of the Services.
1. In addition to the Services sections in the Terms, if you are a purchaser/lessee, Toura makes certain tools available to you to help you to make informed decisions about which properties you elect to visit. However, these tools and any information provided through them are merely advisory. All decisions regarding which properties to visit are made by you and at your sole and exclusive risk. You understand that Toura is not responsible for the acts or omissions related to any other User or User’s property or of any individuals who reside at or may otherwise be present at the property during your visit or tour. In addition, you acknowledge and agree that, as a potential purchaser/lessee, you are responsible for your own acts and omissions. In addition, by accessing any property, you certify and agree you are entering the property with the express purpose of evaluating the property for potential purchase or lease. You acknowledge that your visit to any property is limited to a maximum of one hour, unless you have express permission from Toura for extended on-site presence. Your permission to access one or more properties may be revoked at any time.
2. In addition to your general Account information, you understand that you will not be able to utilize the Services, until you have created an Account and agreed to the Terms, even if your Agent has an Account. You agree that you will be solely responsible for any inaccurate, incorrect or outdated information you provide.
3. In addition to the referrals section of the Terms, at your request, Toura can refer you to a third-party lender (“Lender”), and you may be eligible for promotions for working with that Lender. Should you choose to work with that Lender, Toura may receive a referral fee. However, we never require you to choose any particular Lender. For the purpose of clarity, we will only share information with a Lender at your specific request (i.e. you request to be pre-approved for a mortgage), and any agreement or loan you enter into will be separate from this Agreement, and under its own separate terms and conditions.
4. In addition to the representations and warranties in the Terms, you represent and warrant that the Account information and User Materials you provide belongs to you and that you have the right to provide such information and User Materials to Toura. If, in accessing a property, you provide access to any individuals who have not expressly accepted this Agreement, you accept all responsibility for their behavior, including financial responsibility. By accessing any property, you accept responsibility for any damage you cause to the property and, to the fullest extent permitted by law, any bodily, mental, or personal injury, including death, relating to or arising from accessing or visiting the property. You also agree that you visit the properties at your own discretion and risk. You assume any and all risk for any damage or loss, or bodily, mental or personal injury, including death, relating to or arising from your (and any individuals who access the property with you) visitation of any properties.
You further agree when visiting properties that you will not:
a. attempt to breach or circumvent any applicable law, or these Terms;
b. access the home if you’re under the age of 18;
c. smoke, vape, consume alcohol, or use any illicit or illegal substances at the property;
d. abandon, leave behind, dump, or otherwise discard any materials including, but not limited to, flyers, pamphlets, marketing or promotional materials, trash, garbage, waste product, or any other type of personal property on the Premises without express written consent of Toura or the seller/lessor;
e. remove any property from the Premises other than marketing or promotional materials provided by Toura or the seller/lessor or agent for such use;
f. use any facilities in the home including, but not limited to, pools, showers, and appliances other than for the purpose of examining them in the course of reasonable evaluation;
g. enter the home other than through the front door;
h. bring any weapon including, but not limited to guns, knives, blunt-force objects, and projectiles into the home or surrounding yard;
i. avoid, bypass, remove, deactivate, impair, or otherwise attempt to circumvent any technological or security measure to protect the property and its contents and surroundings; or
j. violate or infringe anyone else’s rights or otherwise cause harm to anyone.
You further agree when visiting properties that you will:
a. Respect the property and leave it in the exact condition it was in prior to your visit;
b. Turn off lights, lock all doors, and make sure windows and entry points are secure;
c. Limit access to yourself and specific person(s) either involved in the potential purchase or sale, or acting as advisers on your behalf;
d. Promptly alert Toura if any issues.
5. In addition to the warranty sections of the Terms, you understand and agree that Toura does not act as an insurer or as a contracting agent for, or representative of, you as a purchaser/lessee, and if a seller/lessor agrees to sell or rent their property to you, any agreement you enter into with such seller/lessor is between you and the seller/lessor and Toura is not a party thereto. Please note that Toura reserves the right, at any time and without prior notice, to remove or disable access to any User Materials or information for any reason, including those that Toura, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Services.