Homes By SMS™ Terms and Conditions
DESCRIPTION OF SERVICE. REALBIRD Inc. (“REALBIRD”) provides a web-based application called Homes By SMS (the “Service”) for managing mobile real estate marketing campaigns including mobile messaging capabilities. Homes By SMS is for real estate professionals.
Unless explicitly stated otherwise, any new features that augment or enhance the current Service shall be subject to this Agreement. You understand and agree that the Service is provided to you on an “AS-IS” basis and that REALBIRD assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings. You are responsible for obtaining access to the Service and that access and subsequent usage may involve third party fees (such as Internet access fees to use the Service).
You agree that RealBird is not liable for any losses that you may incur if RealBird has to replace your texting phone number with a different number if it is released during your non-payment of the Service for any period of time, or because you are receiving spam text messages that cannot be blocked with means provided by Twilio.com, or any other reason for which RealBird is not solely responsible. Examples of such losses are your costs with promoting your Service (printed signage, flyers, advertising, loss of potential leads, etc.)
YOUR REGISTRATION OBLIGATIONS. In consideration of your use of the Service, you represent that you are of legal age to form a binding contract and are not a person barred from receiving the Service under the laws of the United States or other applicable jurisdiction. You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or REALBIRD has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, REALBIRD has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof). Children under the age of 13 may not sign up for an Homes-By-SMS account or use any REALBIRD services.
PAYMENT AND FEES
Payment by Credit Card / Paypal. You hereby authorize REALBIRD to charge your credit card as set forth in the Payment Method section of the Registration Form for a monthly Service fee, and overage fees at the rates set forth below. Setup fees are for labor and non-refundable. You also agree to pay to REALBIRD any MLS fees charged for your use of the IDX data feed.
Setup fee (non-refundable): $200
Monthly fee*: $45
* Monthly fee includes up to 100 texting leads per month, after which you agree to pay $0.08 per lead, in batches of 100 leads, for $8.00 per batch.
MEMBER ACCOUNT, PASSWORD AND SECURITY. You are responsible for maintaining the confidentiality of the account password and are fully responsible for all activities that occur under your password or account designation. You agree to (a) immediately notify REALBIRD of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. REALBIRD cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.
A. You understand that all information, data, text, software, music, sound, photographs, graphics, audio, video, messages or other materials (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated via their MLS. REALBIRD does not control the Content posted via the Service and, as such, does not and cannot guarantee the accuracy, integrity or quality of such Content. Under no circumstances will REALBIRD be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.
REALBIRD is solely a facilitator of the message traffic and has no visibility into or control over the content of individual Messages as they are transmitted through the Service and has no responsibility or liability with respect to the content of any individual Message. Except that REALBIRD may use programmatic means to filter (pre-screen) your messages and block your campaigns or account due to message keywords that REALBIRD has determined, in its sole discretion, may violate an applicable rule, regulation, or law. Without limiting the foregoing, REALBIRD, and its designees shall have the right to remove any Content that violates this Agreement or is otherwise objectionable.
B. You acknowledge, consent and agree that REALBIRD may access, preserve, and disclose your account information and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with any subpoena or other legal process; (b) enforce this Agreement; (c) respond to claims that any Content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of REALBIRD, its users and the public.
DOWNTIME & REFUND Policy
A. For purposes of this Agreement, a Unit of Downtime is one period of at least 1 day during which access to the Service is unavailable because of problems with hardware or system software. Downtime does not include:
- problems caused by factors outside of our reasonable control
- problems resulting from any actions or inactions by you or any third party
- problems resulting from your equipment and/or third party equipment not within our sole control, or
- network unavailability during scheduled maintenance of our network and/or web servers.
B. In any calendar month, we guarantee that Downtime will not exceed 1 Unit of Downtime excluding, however, regularly scheduled maintenance. Any regularly scheduled maintenance will be performed during the hours of 6pm and 8am. We work to ensure the functioning of all web servers through continuous monitoring by our staff.
C. If Downtime exceeds 1 Units of Downtime in any calendar month, we will, upon your written request, credit your account (a “Downtime Credit”) in an amount equal to the pro-rata price for one (1) day of service, for each instance of Downtime as that term is defined herein.
D. To receive Downtime Credit, you must request such credit by sending an email to [email protected]realbird.com within seven (7) days after the occurrence of Downtime. The aggregate maximum number of Downtime Credits to be issued for any and all instances of Downtime occurring in a single calendar month will not exceed seven (7). Downtime Credits will be applied upon issue of the first invoice following the request for Downtime Credit, unless the Downtime occurs in your final month of service. In such case, a refund for the dollar value of the Downtime Credit will be mailed to you within thirty (30) days of the expiration of your service agreement.
E. If you are unhappy with any aspect of our service, please contact us and we will attempt to rectify the situation. Because we are providing a service, which starts when you create the account, we can not provide a refund except when the service has not been acceptable. This is at our discretion only. No refunds will be made if we terminate your account due to violation of our Acceptable Use Policy or any other violation of our Terms and Conditions, except as may be provided therein. This does not affect your statutory rights. No bill credit will be given for a period of suspension.
INDEMNITY. You agree to indemnify and hold REALBIRD, and its subsidiaries, affiliates, officers, agents, attorneys, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Content you submit, post, transmit or make available through the Service, your use of the Service, your connection to the Service, your violation of this Agreement, your violation of any rights of another, or your violation of any law.
GENERAL PRACTICES REGARDING USE AND STORAGE. You acknowledge that REALBIRD may establish general practices and limits concerning use of the Service but that REALBIRD has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Service.
MODIFICATIONS TO SERVICE. REALBIRD reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that REALBIRD shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
TERMINATION. You agree that REALBIRD may, under certain circumstances and without prior notice, immediately terminate your Service account, any associated text message address and/or email address, and access to the Service. Cause for such termination shall include, but not be limited to, (a) breaches or violations of this Agreement or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Service (or any part thereof), (e) unexpected technical or security issues or problems, (g) your engagement in fraudulent, illegal or improper activities, (h) third party operator requirement, and/or (i) nonpayment of any fees owed by you in connection with the Services. You may terminate your access and use of the Service with written notice to REALBIRD sent at least 10 days prior to the end of the then current billing cycle. In no event shall you be entitled to a refund of any fees paid to REALBIRD hereunder.
REALBIRD’S PROPRIETARY RIGHTS. Title, ownership rights and all intellectual property rights in and to the Services shall remain the sole and exclusive property of REALBIRD. REALBIRD retains all rights not expressly granted to you in this Agreement. You are prohibited from attempting, or knowingly permitting or encouraging others to attempt, to reverse engineer, decompile, disassemble, or otherwise attempt to determine source code or protocols from the Services except and only to the extent permissible by applicable law despite such prohibition. You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose, any portion of the Service (including your Service I.D., account, account designation, password and other Service information), use of the Service, or access to the Service.
DISCLAIMER OF WARRANTIES.YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
a. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. REALBIRD EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
b. REALBIRD MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR THAT YOU WILL GET ANY LEADS AT ALL FROM USING THIS SERVICE (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED (VI) THAT THE INTERNET WILL BE AVAILABLE AND WILL PERFORM.
c. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM REALBIRD OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TOS.
LIMITATION OF LIABILITY.YOU EXPRESSLY UNDERSTAND AND AGREE THAT REALBIRD SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF HOMES BY SMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SERVICE; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; OR (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT.
EXCLUSIONS AND LIMITATIONS.SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 18 AND 19 MAY NOT APPLY TO YOU.
NOTICE.Homes By SMS may provide you with notices, including those regarding changes to the Agreement, by either text message, e-mail, regular mail, or postings on the Service.
TRADEMARK INFORMATION. The trademarks, service marks, logos and product and service names of Homes By SMS are trademarks of REALBIRD Inc. (the “Homes By SMS Marks”).You agree not to display or use in any manner, the Homes By SMS Marks without REALBIRD’s express prior written consent.
NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT. REALBIRD respects the intellectual property of others, and we ask our users to do the same. REALBIRD may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide the following information to REALBIRD:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the site;
- your address, telephone number, and email address;
- 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;
- a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Notice of claims of copyright or other intellectual property infringement should be addressed to::
101 Cooper St.
Santa Cruz, CA 95060
Choice of Law and Forum. This Agreement and the relationship between you and REALBIRD shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and REALBIRD agree to submit to the personal and exclusive jurisdiction of the courts located within Santa Clara County, Ca.
Any dispute or claim arising under or in connection with this Agreement or relating in any way to the Site, Your Information, or any Service, Content or REALBIRD Information, will be resolved by binding arbitration, rather than in court. The Federal Arbitration Act and federal arbitration law apply to this agreement. Arbitration will be conducted on a confidential basis, and the results of arbitration will also be confidential except to the limited extent required to enforce an award.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. An award of arbitration may be confirmed or enforced in any court of competent jurisdiction.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to us at:
101 Cooper Street
Santa Cruz, CA 95060
The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including, to the extent applicable, the AAA’s Supplementary Procedures for Consumer-Related Disputes. Any such arbitration shall be conducted by an arbitrator experienced with claims involving internet services. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. Any decision or award as a result of any such arbitration proceeding will be in writing and, if a claim is for more than $5000, will provide an explanation for all conclusions of law and fact. The decision or award may include an assessment of costs, expenses, and reasonable attorneys’ fees if, and solely to the extent that, a claim or defense is judged frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in San Mateo County California or at another mutually agreed location.
We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. We also both agree that notwithstanding this Section, you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights, or to enforce a party’s rights or obligations Sections 7.4 (Indemnity) or 4.4 (Use of Software, Prohibitions) of this Agreement.
Waiver and Severability of Terms. The failure of REALBIRD to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
Non-Transferability. You agree that your Homes By SMS account is non-transferable, and this Agreement may not be assigned by you without REALBIRD’s prior written consent.
Entire Agreement. This Agreement constitutes the entire agreement between you and REALBIRD and governs your use of this Service, superseding any prior agreements between you and REALBIRD with respect to this Service. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other services from REALBIRD.