Terms and Conditions
This Agreement was last revised on March 1, 2019.
Please read this page carefully, as it contains the terms of a legal agreement between you and ZestMLS.com that govern your access TO, use of, and purchase of services AND/OR GOODS made available on ZestMLS.COM. By accessing, USING, purchasing services OR GOODS MADE AVAILABLE ON, and/or otherwise utilizing ZestMLS.com you acknowledge that you have read, understood and agreed to be bound by the terms of this Agreement and to comply with all applicable laws and regulations. If you do not agree to all of these terms, you may not access, USE, purchase services AND/OR GOODS made available on and/or otherwise utilize ZestMLS.com.
1.The website ZestMLS.com is owned and operated by Ivy Harris LLC. (“Company”). The Company is primarily an Internet advertising service for real estate offered to off market properties. The Company is not a licensed real estate broker. The Company is not a member of any multiple listing service (MLS), and does not list real estate on any MLS. ZestMLS.com makes the following available to buyers and sellers of residential real estate and related service providers: (a) advertising off market properties (b) advertising of for-sale property listings and related service providers; (c) ‘for sale by owner’ products; (e) information pertaining to related service providers (including but not limited to legal, mortgages, valuations, moving, and ‘Contract to Closing’); (f) sample contracts, hyperlinks to industry websites, general advice for buyers and sellers, industry news, answers to frequently-asked questions; and (g) any other services or products made available on ZestMLS.com. References in this Agreement to the “Site” shall mean ZestMLS.com, including but not limited to all webpages appearing on the ZestMLS.com internet domain, and all services and products made available on ZestMLS.com, including but not limited to the services and products identified in this Section 1. References in this Agreement to“ZestMLS.com” shall mean any and all webpages or other content or information appearing on the ZestMLS.com internet domain or computer servers owned or utilized by the Company.
2. DISPUTE RESOLUTION: This Agreement shall be governed by and construed in accordance with the laws of the State of Maryland, notwithstanding the conflict of laws provisions of any state. You irrevocably and unconditionally (i) consent to submit to the exclusive jurisdiction of the state and federal courts in the County of Baltimore, Maryland (the “Maryland Courts”) for any litigation or dispute arising out of or relating to this Agreement or your performance or nonperformance hereunder (including but not limited to collection matters), (ii) agree not to commence any litigation arising out of or relating to this Agreement or the Company’s performance or nonperformance hereunder except in the Maryland Courts, (iii) agree not to plead or claim that such litigation brought therein has been brought in an inconvenient forum, and (iv) agree the Maryland Courts represent the exclusive jurisdiction for all disputes arising out of or relating to this Agreement, or either parties’ performance or nonperformance thereunder. Disputes arising out of or relating to this Agreement shall include but not be limited to disputes arising out of or relating to your access to, use of and/or purchase of services or goods made available on ZestMLS.com. You agree that regardless of any statute or law to the contrary, any claim or cause of action by you arising out of or related to your use of the Site, the Agreement, or the Company’s performance or nonperformance under the
Agreement, must be filed within one (1) year after such claim or cause of action arose, or it shall be forever barred.
3. ACCESS AND USE: a. Access. You shall be solely responsible for hardware, interconnections and telecommunications to access the Site. You agree that you will not use any robot, spider, other automatic device, or manual process to extract, “screen scrape, “monitor, “mine,” or copy any static or dynamic web page on the ZestMLS.com website or the content contained on any such web page for commercial use without the Company’s prior express written permission. You will not spam or send unsolicited e-mail or other messages to any other user of the Site for any reason, by means of ZestMLS.com or otherwise. You agree that you will not use any device, software or routine to interfere or attempt to interfere with the proper working of the Site. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on ZestMLS.com, the Company’s computer system, or other infrastructure. You agree not to modify, translate, reverse engineer, decompile, disassemble or create derivative works based upon, the Site or any software or programming related thereto. Any access or attempt to access any areas of the Company’s computer system, or information contained on the system, except for ZestMLS.com and information contained thereof, for any purposes, is strictly prohibited.
b. Use. The Site is for the exclusive use of buyers and sellers of real estate and related service providers. Subject to the terms contained herein, Company hereby grants to you a non-exclusive, non-transferable, non-sublicenseable, world-wide license to use the Site, which shall include the right to search, display and print the property listings appearing on ZestMLS.com for personal, noncommercial use only, provided you do not modify the materials and that you retain all copyright and other proprietary notices contained in the materials. Company reserves any rights not expressly granted herein. You may not search, display, print, distribute, copy, reproduce, publish, download, or transmit any material on the Site for commercial use without prior written approval of Company. You may not “mirror” or “frame” any material contained on this Site on any other server or website, regardless of means, without prior written permission from Company. The Company reserves the right to monitor your access and use of the Site and your compliance with the terms hereof without notice to you.
c. Use Restrictions. You agree not to post, transmit, e-mail, re-transmit or store material on, through or from the Site which, in the sole judgment of the Company:(1) is in violation of any local, state, federal or non-United States law or regulation, (2) is threatening, obscene, indecent, defamatory or that otherwise could adversely affect any individual, group or entity or (3) violates the rights of any individual, group or entity, including rights protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations including, but not limited to, the installation or distribution of "pirated" or other materials that are not appropriately licensed for use by you. You shall be responsible for determining what laws or regulations are applicable to your use of the Site. You may only use the Site in a manner that, in the Company's sole judgment, is consistent with the purposes of the Site. If you are unsure of whether any contemplated use or action is permitted, please contact the Company immediately at support@ZestMLS.com for clarification. By way of example, and not limitation, the following uses described below of the Site are expressly prohibited:
i. upload, post, e-mail or otherwise transmit any information, data, text, software, music, sound, photographs, graphics, video, messages or other materials that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable, or that could give rise to any civil or criminal
liability under both domestic and international law. Pornography and pornographic related merchandising are prohibited, including providing links to pornographic content elsewhere; ii. threaten to harm, attempt to harm or actually harm minors in any way;
iii. impersonate any person or entity, including, but not limited to, a Company employee or agent, or falsely state or otherwise misrepresent your affiliation with a person or entity, or misrepresent yourself as actual buyers or sellers of real estate;
iv. forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Site or develop restricted or password-only access pages, or hidden pages or images (those not linked to from another accessible page);
v. upload, post, e-mail or otherwise transmit any content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
vi. upload, post, e-mail or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
vii. upload, post, e-mail or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, or solicit any person or company using any telephone number, email address or other contact information found on the Site for any reason other than the purchase of real estate or related services advertised for sale on the Site;
viii. upload, post, e-mail or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
ix. interfere with or disrupt the Site or servers or networks connected to the Site, or disobey any requirements, procedures, policies or regulations of networks connected to the Site;
x. intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the Federal Communications Commission, U.S. Department of Housing, the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law; xi. “stalk" or otherwise harass another;
xii. promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, but is not limited to, providing instructions on how to assemble weapons or creating "Crush" sites;
xiii. effecting security breaches or disruptions of Internet communication. Security breaches include, but are not limited to, accessing data of which you are not an intended recipient or logging into a server or account that you are not expressly authorized to access; xix. rent, lease, transfer, resell and/or otherwise transfer rights to the Site; and
xx. delete or write over any portion of any listing or software appearing on or relating in any manner to the Site.
d. Hyperlinks. You are granted a limited, nonexclusive right to create a “hypertext” link to ZestMLS.com provided that such link does not portray the Company or the Site in a false, misleading, derogatory, or otherwise defamatory manner. This limited right may be revoked at any time for any reason whatsoever. You may not use framing techniques to display any content, information, layout, design, copyrighted works, trademark, logo or trade name appearing on ZestMLS.com. Links on the Site to third party websites are provided solely as a convenience to you. If you use these links, you will leave the Site. Company has not reviewed all of these third party websites and does not control and is not responsible for any of these sites, their content or their policies, including, without limitation, privacy policies or lack thereof. Except as expressly set forth on the Site, Company does not endorse or make any representations about third party websites or any information, software or other products or materials found there, or any results that may be obtained from using them. If you decide to access any of the third party websites linked to by this Site, you do so entirely at your own risk.
4. PROPRIETARY CONTENT: a. General. The Company’s Internet operations, design, hardware designs, algorithms, software (in source and object forms), user interface designs, other templates and designs, algorithms, architecture, class libraries, and documentation (both printed and electronic), know-how, good will, moral rights, trade secrets and any related intellectual property rights throughout the world, and any derivative works, improvements, modifications, enhancements or extensions thereof, shall remain the sole and exclusive property of Company, and you shall have and acquire no interest in them whatsoever.
b. Copyright and Trademark. All photographs, information, content and materials that appear on ZestMLS.com, including, without limitation, text, photographs, images, pictures, graphics and other files, and the selection and arrangement thereof, but excluding information, content and materials that are submitted to the Site by users thereof, are copyrighted materials of the Company (the “Copyrighted Works”). The trademarks, service marks, trade names, trade dress and logos used and displayed on this Site (including all page headers, custom graphics, button icons, and scripts), but excluding marks, names and logos submitted to the Site by users thereof, are registered and unregistered trademarks, service marks, trade names, trade dress and logos of the Company (the “Trademarks”).You acknowledge that the Copyrighted Works and Trademarks used and displayed on this Site are and shall remain the sole property of the Company. Nothing in this Agreement shall confer any right of ownership of any of the Copyrighted Works or Trademarks in you. Further, nothing in this Agreement shall be construed as granting, by implication, estoppel or otherwise any license or right to use any of the Copyrighted Works or Trademarks used or displayed on the Site, without the express written permission of the Company. Neither the Copyrighted Works nor the Trademarks may be copied, imitated or used, in whole or in part, without the prior written permission of Company.
c. Company as Intermediary. The Company does not create, make, author, write, print or otherwise produce any of the for-sale, bankruptcy or rental property listings that appear on ZestMLS.com, including but not limited to the text, photographs, images and links to third party websites contained therein. All such property listings are produced and submitted to ZestMLS.com by others.
5. DISCLAIMER OF WARRANTIES: The Site, including all content, services, goods, software, functions, materials, and information found or available thereon, is provided “as is” and “as available” without warranties of any kind, either express or implied. The Company disclaims all warranties, express or implied, of any kind, including, but not limited to, warranties of quiet enjoyment and non-infringement and implied warranties of merchantability, fitness for a particular purpose, non-infringement, title, quiet enjoyment, merchantability of computer programs, data accuracy, system integration, informational content, and others expressly disclaimed below in this Section 5. Company does not warrant or make any representations regarding the operation of the Site, the use, validity, applicability, propriety, accuracy or reliability of, or the results of the use of the Site or any other sites linked to from this Site. The Site materials may be out of date, and Company makes no commitment to update the Site materials or otherwise monitor same. Company does not and cannot guarantee or warrant that the files available for downloading from the Site, if any, will be free from infection, viruses, worms, Trojan horses, or other code that manifest contaminating or destructive properties. Company does not warrant that the Site, including any software, materials, products, or services, will be uninterrupted or error-free or that any defects in the Site, including any software, materials, products, or services will be corrected. Company assumes no responsibility for the alteration, deletion, mis-delivery or failure to deliver or store any of your communications, data, or personalization settings, including but not limited to messages sent or received by means of the Site. Company makes no warranty that the Site will meet your requirements, that the Site will be secure or error or virus free, or that defects in the software driving the Site will be corrected. You understand and agree that any material and/or data downloaded or otherwise obtained through the use of the Site is done at your own discretion and risk and that you will be solely responsible for any damage to a computer system or loss of data that results from the download of such material and/or data. No advice or information, whether oral or written, obtained by you through the Site shall create any warranty not expressly made herein. Company makes no warranties regarding the number or types of properties available for sale on the Site, or whether any property listed on the Site for sale or rental will ever be purchased or rented. Company makes no warranties regarding any of the terms a buyer or seller may or will obtain with respect to any property listed on the Site, the number of ‘hits’ or page views of any property listed on the Site, or the scope of dissemination of any property listed on the Site. Company makes no warranties whatsoever regarding the ownership, authority to sell or rent, or condition of any property listed on the Site, or the sincerity or ability to pay of any potential buyer or tenant. The Company makes no warranties regarding the quality or quantity of telephone calls, email or other inquiries received by users that advertise on the Site. Company makes no warranties regarding the appearance, alteration or removal of a property listing on third-party websites or the like. The Company makes no warranties that a property listing will appear anywhere in particular online or offline, or for any period of time, except as expressly set forth on the Site. The Company makes no warranties regarding the quality or quantity of properties listed on the Site for sale or rent. The Company makes no warranties regarding the quality of the service providers that advertise on the Site or regarding the services or goods provided by same. The Company makes no warranties regarding the ability of a Site user to access or use the Site, or purchase services or goods made available on the Site, at any particular time or times or from any particular geographic location, area, state or region.
6. LIMITATION OF COMPANY’S LIABILITY: In no event will Company, its parents, subsidiaries, shareholders, directors, affiliates, officers, employees, or agents be liable for any damages, losses, or liability, including, without limitation, (i) direct, indirect, special, incidental, or consequential damages, (ii) damages, losses or liability resulting from failure to sell, purchase or rent real property on certain terms or otherwise,(iii) damages, losses or liability resulting from lost profits, lost data (or other intangibles), or business interruption, either arising out of or relating to the use of the Site
(including the use of the services of any third parties that ZestMLS.com links to) and any information contained thereon, or the inability to use the Site, or(iv) resulting from your failure to comply with this Agreement, whether based on warranty, contracts, statutes, regulations, tort (including but not limited to, negligence) or any other legal theory and whether or not advised of the possibility of such damages. If your use of the materials or information from this Site results in the need for servicing, repair or correction of equipment or data, you are responsible for all costs thereof. Your sole and exclusive remedy under this Agreement is to discontinue use of the Site. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
7. Indemnification: You agree to immediately notify Company of and defend, indemnify and hold the Company and its shareholders, subsidiaries, affiliates, directors, officers, employees and agents harmless from, any claim, loss, or demand (including reasonable attorneys’ fees and costs) made by any third party arising out of or a result of (i) your use of the Site (including the unauthorized use of your account or any other breach of security known to you); (ii) the violation of any term of this Agreement by you; (iii) the direct or contributory infringement by you, or another user using your account, of any intellectual property any person or entity; or (iv) any information you obtained from the Site.
9. User Password/Security: You are fully responsible for maintaining the confidentiality of your password and all actions taken on the Site after access is obtained by means of your password. You agree to immediately notify Company by e-mail at Support@ZestMLS.com of any unauthorized use of your password or account or any other breach of security relating to the Site.
10. FEES, REFUNDS AND CANCELLATION
All charges shall be at the then-advertised price for the service(s) selected, and must be paid by direct charge to a credit card. You hereby authorize Company to charge such credit card to pay for any charges that you may incur in the future as they accrue. You must notify Company of any changes to your credit card account (including, without limitation, applicable account number or cancellation or expiration of the account), your billing address, or any information relating to the Company’s ability to charge your account. Once your property listing is posted on ZestMLS.com, you agree that all sales are final, and there are no credits or refunds whatsoever. You may alter or remove your property listing from ZestMLS.com by clicking on ‘Modify Your Listing’ and logging in. Failure to make any payment as set forth herein shall be deemed to be a material breach of this Agreement and shall be sufficient cause for the immediate termination of this Agreement by Company. In the event of collection enforcement, you will be liable for any costs associated with such collection, including, without limitation, reasonable attorneys' fees, court costs and collection agency fees. All charges shall be exclusive of any applicable taxes. You are responsible for the payment of all federal, state, and local sales, use, value added, excise, duty and any other taxes assessments, other than taxes based on Company’s net income
11. NO BROKERAGE SERVICES: You understand and agree that except as expressly provided for otherwise by the Site, the Company does not offer or provide any advice or assistance in connection with the sale, purchase or leasing of real estate, including but not limited to real estate brokerage services. You understand and agree that all real estate brokerage commissions are negotiable and that the Company does not set commission rates or provide any advice relating to commissions.
12. Property listings displayed on the Site’s homepage: The Company attempts to display the two to eight most recently submitted for-sale property listings (along with a single photograph of each property if one is provided by Seller), on the ZestMLS.com home page. These property listings must be submitted by means of the ZestMLS.com website, and must not contain any objectionable content. These listings will automatically be rotated off of the ZestMLS.com homepage in real time (and will not reappear on the ZestMLS.com homepage) as new for-sale property listings are submitted to the Site. Placement of your property listing on the ZestMLS.com homepage, or placement for any period of time or in any particular manner, is neither guaranteed nor available for purchase.
13. Termination: This Agreement may be terminated by any party immediately for any reason or no reason, including but not limited to your breach of this Agreement. Upon any termination of this Agreement, (i) your license and authorization to use the Site shall terminate immediately without notice; (ii) you must immediately discontinue use of the Site, including any hyperlinks to the Site; (iii) you must immediately destroy any downloaded or printed materials; and (iv) the Company will remove from the Site any listings or other materials you may have previously submitted. Sections 2, 4, 5, 6, 7, 10, 14, 16 and 17 of this Agreement shall survive any termination of this Agreement.
14. ALTERATIONS TO AGREEMENT/SITE: Company may alter or amend this Agreement at any time by revising the terms on this page and the “last revised” date displayed just above Section 1. By accessing, using or purchasing services or goods made available at ZestMLS.com, you agree to be bound by that version of the Agreement in effect at the time of such access, usage or purchase. Company encourages you to periodically visit this page to determine whether the terms and conditions have been altered or amended since your last visit. Company may alter or amend the content of ZestMLS.com, including the services and goods made available at ZestMLS.com, at any time and without notice. For example, the Company may, in its sole discretion and at any time, discontinue the Site, or any component thereof.
15. Notices: Notices given by Company to you will be sent to thee-mail address or conventional mailing address you provide to Company as part of the registration process, or to updated addresses which you provide to Company via notice consistent with this Section 16. Notices given by you to Company must be given by e-mail to Support@ZestMLS.com. Notwithstanding anything herein to the contrary, it is your sole responsibility to update your e-mail and mailing address for notices hereunder, and notice sent to the e-mail or conventional mailing address last provided by you to Company shall be valid and binding on you regardless of whether such address has been changed, canceled, has expired, has been terminated, or otherwise becomes inoperative.
16. MISCELLANEOUS: This Agreement shall be deemed to express, embody and supersede all previous understandings, agreements and commitments, whether written or oral, between you and the Company with regard to the subject matter hereof. If any provision(s) of this Agreement is held by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. Company’s failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Company in writing. The Section titles in this Agreement are solely used for the convenience of the parties and have no legal or contractual significance. This Agreement may be assigned in whole or in part by Company. Neither this Agreement, nor the rights and obligations contained herein, may be assigned in any manner by you without the prior express written permission of Company. These terms do not alter in any way the terms of any other separate agreement you may have with Company.
17. Due Diligence: ZestMLS does not verify all the property information on ZestMLS’s website, this information is provided by the Seller and not independently verified by ZestMLS. It is buyer’s responsibility to obtain and read the information regarding the Property available on ZestMLS’s website as well as any and all other information made available on ZestMLS’s website relating to the sale of the Property. Buyer acknowledges and represents that he/she has done so. Notwithstanding the foregoing, buyer also acknowledges and agrees that the Property being sold is on an “as-is, where-is” basis, “with all faults” and with no representations or warranties of any kind, expressed or implied, by the Seller and/or ZestMLS. All diligence related to the Property is the sole responsibility of the buyer. Therefore, buyer assumes all risk and it is buyer’s sole and exclusive responsibility to inspect the Property; review the documents relating to the Property; assess the accuracy and completeness of the information contained in the desceiption and any such other documents; and independently verify and confirm any estimates, projections, or assumptions relating thereto, none of which may be considered to be guaranties. In connection therewith, buyer has the sole and exclusive responsibility to select and consult with any and all professional advisors of buyer’s choosing in determining whether to make an offer. Buyer acknowledges that buyer has relied exclusively on its own investigation and determinations and the advice of its own professional advisors, and expressly represents that it has not relied upon any information provided by the Seller or ZestMLS in any way, whether through the description, through ZestMLS’s website, or by any oral, written or electronic communications with ZestMLS or the Seller, or otherwise. ZestMLS has no liability for the consequences to buyers or anyone else buying or selling a property on ZestMLS