Of Northeastern Realtors, LLC (NER), regarding the software NER Cloud Office
1. Subject Matter
1.1 The subject matter of this Agreement is the use of the software NER Cloud Office by the Customer. This Agreement regulates all relations between NER and the Customer regarding the use of the Software. Conflicting, supplementary or deviating terms of the Customer shall not become an integral part of the agreement unless this is explicitly agreed between NER and the Customer in written form.
1.2 The Software is multi-tenancy web-based real estate transaction platform that may be used by real estate brokerage firms to electronically edit form, eSign, collaborate and automate compliance on a single, streamlined platform.
2. Scope of Services
2.1 NER provides the Software as a service. This means that the Software may be used over the Internet only. The Software will be operated by NER on servers and be made available to the Customer via the Internet.
2.2 The service of NER includes the use of the Software, support, updates and providing the server infrastructure (hereinafter: the Services). NER will take reasonable measures to protect the Services against denial of service attacks and other hacker attacks from outside; given the accessibility of the Services via the Internet it cannot be guaranteed however that these or similar fraudulent actions by third parties will never occur.
2.3 Unless otherwise agreed no consultancy or training is within the scope of the services offered by NER under this Agreement.
3. Concluding of the Agreement
3.1 Using the Services requires the opening of an Account via NER’s website at platform.nercloudoffice.com by registering the Customer with its name,phone number, e-mail address and a valid credit card. In addition the Customer needs to choose a web address name for its own NER access at the website of the Services (hereinafter: the Website). The Account and the Services will be available under this Website.
3.2 The opening of an Account by the Customer is deemed an offer to conclude this Agreement. NER may at its own discretion accept this offer by explicitly accepting it or rendering services under this Agreement. The same applies to the issue of a purchase order by the Customer, a purchase request sent by the Customer via letter, email or fax or the renewal of a contract when registering payment details within the Customer’s Account or at platform.nercloudoffice.com.
3.3 The person opening the account represents that he/she has got the legal authority to bind the legal entity he/she acts for to this Agreement, with respect to NER.
3.4 The Customer gains access to its Account and the Services by logging in at the Website using its password and e-mail address (hereinafter: the Account Data). Once the Customer opened an Account and logged in, it is possible to add further users and set a User Account for each user. This agreement with the Customer applies for each activation of a User Account and the Customer is responsible for any obligations resulting from such activation under this agreement. Each User Account shall be used only by one single person and the Customer is obliged to activate a new User Account for every staff using the Services of NER.
3.5 In connection with the registration the Customer is obliged to
- make precise and correct allegations and to correct the data if changes accrue;
- keep any Account Data and User Account login information confidential at all times and to do everything to avoid any third party getting hold of this information. In this respect ‘third party’ also includes all employees of the Customer that are not designated to use the Services;
- immediately inform NEr and Internal Revenue Service (IRS) in case of loss, theft or other disclosure of the Account Data to a third party or in a suspicion of misuse of the Account Data and to immediately change the password;
- allow the use of the Account Data only designated users added or invited to the Account.
4. Free Trial Period
4.1 If the Customer is explicitly granted a Trial Period for a number of days after the registration NER will provide the Services without any remuneration for the duration of the Trial Period. The Customer shall use the Services during the Trial Period only for the purposes of trying its functionalities and not for operational use. NER may limit the functionality of the Services or restrict provided resources during the Trial Period at its sole discretion.
4.2 After the termination of Trial Period the Services will be disrupted and the Customer’s Account deactivated unless the Customer chooses to continue using the Services for a monthly subscription fee based on a package plan. If the Customer does not submit valid credit card details or arrange for an alternate payment method with NER within three month after the termination of the Trial Period this contract automatically terminates after the Trial Period ends.
5. Obligations of the Customer
5.1 The Customer is obliged to make agreed payments in due time.
5.2 The Customer has to submit valid credit card details or arrange for an alternate payment method with NER.
5.3 To use the Services the customer must use a Web browser NER recommends on its website.
5.4 To use the Services the customer must have a valid real estate license.
5.5 The Customer must not interfere or intent to interfere in any manner with the functionality or proper working of the Services. This includes but is not limited to taking any action that imposes an unreasonable or disproportionately large load on the server infrastructure, e.g. unreasonable amount of server requests or upload of unreasonable volume of data.
5.6 The Customer will indemnify and hold harmless NER, its officers and directors, employees and agents from any and all third party claims, damages, costs and (including reasonable attorney fees) arising out of the Customer’s use of the Services in a manner not authorized by this Agreement, and/or applicable law, or the Customer’s or its employees’ or personnel’s negligence or wilful misconduct.
5.7 In order to limit data loss the Customer is obliged to download backups in regular intervals by using the provided export and backup mechanisms.
5.8 The Customer grants NER the right to include the Customer’s organization name and logo as a customer’s reference on NER’s website and other promotional and advertising materials. Within 10 business days after written request, NER will remove the Customer’s organization name and logo from NER’s website and will cease to include the Customer’s organization name and logo in NER’s other promotional and advertising materials.
5.9 The Customer shall inform NER without delay in case of any occurring fault when using the Services of NER.
6. Downtime, Updates and Services Suspensions
6.1 NER will make every reasonable effort to provide an uninterrupted operation of the Services on a continuous basis. This is naturally confined to services which NER can influence. The Customer recognises that complete, uninterrupted availability of the Services cannot be achieved for technical reasons. Therefore NER reserves the right to limit access to the Services in full or partly due to maintenance work, capacity matters or due to other occurrences that are beyond its control.
6.2 Adjustments, changes and updates of the Services may lead to temporary service suspensions. NER may at its own discretion upgrade the Software to new versions without prior notification of the Customer. When upgrading or updating the Software NER will make sure that the essential functions of the Software do not cease to exist in future versions of the Software.
6.3 The Customer is aware that the Services rely on a working Internet infrastructure. Downtime of the Services can also occur if the website is not available and at any other time with restrictive access to the Internet.
6.4 NER will try to achieve an availability of the Services and its accessibility of 98 per cent in the annual average. Scheduled maintenance times do not count as downtime and are not to be taken into account when measuring availability.
7. Rights to Use
7.1 The Customer is granted a limited, non-exclusive, non-transferable, non-sublicenseable right to use the Software as a service on the Website under the conditions set out in this agreement.
7.2 The Customer is not granted any additional right to the Software or any other intellectual property of NER. This especially means that the Customer shall not be entitled to make copies of the Software. The Customer shall not translate the program code into other forms of code (decompilation) or employ other methods aimed at revealing the Software’s code in the various stages of its development (reverse engineering).
7.3 The Customer is not entitled to remove or make alterations to copyright notices, serial numbers or other features which serve to identify the Software.
7.4 The use of the Services does not result in any loss of ownership of the Customer’s rights on uploaded data. The Customer grants NER a limited and non-exclusive right, which is revocable by the Customer at any time, to use such data for the purpose to provide the Services to the Customer pursuant to this Agreement and within the scope of the Services offered.
8. Billing and Payment
8.1 The Customer will pay to NER the service fees for the Services in the manner set forth in the Order Form.
8.2 NER may alter the current price list and/or the structuring of prices. NER will inform the Customer via email about the price change. If the Customer does not expressly disagree in writing within two weeks from the notification of change this is deemed to be his acceptance of the change. The Customer will be informed about this circumstance in the notification of change.
8.3 The Service Fees do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority with respect to the Services or any software provided hereunder (excluding any tax on NER’s net income). All such taxes will be added to NER’s invoices for the fees as separate charges to be paid by Customer. All fees are fully earned when due and non-refundable when paid.
8.4 If NER collects any payment due at law or through an attorney at law or under advice therefrom or through a collection agency, or if NER prevails in any action to which the Customer and NER are parties, Customer will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and NER’s reasonable attorneys’ fees.
8.5 If any check is returned for insufficient funds Company may impose a minimum processing charge of $25.00.
8.6 In the event that any amount due to NER remains unpaid seven (7) days after such payment is due,NER, in its sole discretion, may immediately terminate this Agreement, and/or withhold or suspend Services.
8.7 There may be a minimum $50.00 charge to reinstate accounts that have been suspended or terminated.
8.8 There may be a minimum $35.00 charge for all credit card chargebacks.
8.9 Customer acknowledges and agrees that NER may pre-charge Customer’s fees for the Services to its credit card supplied by Customer during registration for the Initial Term.
8.10 You acknowledge, agree and authorize company to automatically bill and/or charge your credit card additional service in 12 month increments, unless terminated or cancelled by either party as provided in section 12.
9. Warranty
9.1 Defects in the Services which have a substantial effect on the ability to run the Software shall be remediated within a reasonable time following a detailed notification of such defect that allows NER to reproduce the defect being given to NER by the Customer.
9.2 For the purpose of remedying defects, NER may choose to replace the defective Software with a version of the Software which is free of defects.
9.3 Unless NER fails to repair or replace the Software, the right of the Customer to terminate the contract due to an inability to use the Software shall be excluded.
9.4 The limitation period for all warranty claims shall be 12 months commencing with the first coming to show of the defect.
9.5 If the availability mentioned in section 6.4 is not met in the average of one calendar year the Customer may as a sole remedy deduct an accordant amount from the remuneration. The proportionate deduction maybe withheld from the next payment due.
10. Liability
10.1 The pre-contractual, contractual and non-contractual liability of NER is limited to cases of intent and gross negligence.
10.2 In cases of ordinary negligence NER’s liability shall be limited to the breach of contractual obligations which are cardinal obligations. Cardinal obligations are those obligations for which due fulfilment is essential to the proper implementation of the contract as a whole, and the contractual partner may depend upon their fulfilment.
10.3 Furthermore, the amount of damages shall be limited to those losses which are generally foreseeable in connection with providing the Services. The amount of damages to be claimed from NER is capped at the amount paid by the Customer for the Service offered by NER within the last 12 month before the damage occurred.
10.4 The liability for loss of data shall be restricted to typical recovery expenses which would have arisen if regular backup copies had been made by the Customer commensurate with the risks associated with the loss of such data.
10.5 The above limitations of liability shall also apply where NER is vicariously responsible for its employees and agents.
10.6 The limitations of liability in this section 10 shall not apply to liability resulting from injury to the life, body or health of a person or under the Massachusetts Law.
10.7 Any claims for damages by the Customer relating to defects in the supplied Software shall be subject to a limitation period of 12 months. This does not apply to defects which have been intentionally concealed by NER.
10.8 NER is not liable for damages resulting from defects of server infrastructure, hardware failure, network outages or any other circumstances out of NER’s control and not directly caused by NER or its employees.
10.9 The liability during the Trial Period is in any case limited to intent and gross negligence.
11. Processing of Data
11.1 If the Customer processes tax returns,the Customer is responsible to create a data security plan using IRS Publication 4557. NER will only process the data transmitted by the Customer as directed by the Customer.
11.2 The Customer agrees to only upload real estate documents when using the Software. The Customer explicitly guarantees not to upload any personal data. NER rules out any and all liability with respect of the disclosure of personal data. The Customer agrees to hold NER harmless from all costs and damages NER may have in connection with the upload of personal data.
12. Term and Termination
12.1 The Agreement runs for an indefinite time and will remain in effect until terminated by one of Parties in accordance with this section 12.
12.2 The Parties may terminate this Agreement for any or no reason at all at their convenience with at least one day notice to the end of each month. Termination must be issued in text form (e.g. letter, email or fax) or by using the provided account closing mechanism, if NER provides one.
12.3 In addition each Party’s right to terminate this Agreement for a good cause remains unaffected. A good cause for termination of the Agreement by NER shall include, but is not limited to, the following:
- a serious breach of the obligations arising from this Agreement by the Customer;
- a default in payment of the Customer with an amount that equals at least the compensation of two months;
- including, but not limited to, the failure to settle outstanding invoices;
- a serious breach of contract leading to the loss of mutual trust or renders the continuation of this Agreement in consideration of the purpose of the Agreement unreasonable;
- an attempt of a denial of service attack on any of the Services by the Customer or any attempt to hack or break any security mechanism on any of the Services;
- determination that the Customer’s use of the Services imposes a security or service risk to NER, or to any user of services offered by NER;
- an application for the initiation of insolvency proceedings concerning the Customer, as well as the refusal to open insolvency proceedings for lack of assets, or the issue of a declaration in lieu of an oath, or any similar proceedings.
12.4 NER may at its own discretion instead also temporarily quit providing the Services until the cause has been remedied by the Customer. In this case the contract shall be deemed on hold until the Customer makes the necessary payments or the contract is terminated. If the Customer does not make payments or enters (new) payment details when explicitly requested to do so this is deemed a termination of the contract by the Customer.
13. Disputes, Applicable Law, Notices
13.1 Most concerns can be resolved quickly and to your satisfaction by emailing our support team at support@nercloudoffice.com. In the unlikely event that our support team is unable to resolve a complaint to your satisfaction after attempting to do so informally, or if we have not been able to resolve a dispute after attempting to do so informally, the only option is to seek settlement of that dispute through mediation. The two parties agree that mediation proceedings are confidential and non binding. The two parties will agree on the mediator that is chosen and this mediator will decide who will be responsible for the mediation costs.
13.2 If the dispute is not settled through mediation within thirty (30) days of the commencement of the mediation proceedings (or such further period as the parties shall agree in writing), the only option is to refer the dispute to and finally resolve the dispute through binding arbitration, instead of in courts. Any arbitration under this agreement will take place on an individual basis; you agree with the Company that class arbitrations and class actions are not permitted. For any non frivolous claim that does not exceed the limits within the Massachusetts Arbitration Limits, the Company will pay American Arbitration Association (AAA) filing, administrative, and arbitrator costs totaling less than $3,000. Moreover, for any non-frivolous claim disputed through arbitration, you are entitled to recover attorneys’ fees from the Company totaling less than $3,000.
13.4 The Federal Arbitration Act governs the interpretation and enforcement of this provision. To all other matters, the arbitrator shall apply Massachusetts laws. We each agree that any and all disputes must be brought in the parties’ individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. By entering into this agreement, you agree to arbitration for dispute resolution, and you therefore agree that you and the Company are each waiving the right to file a lawsuit and the right to a trial by jury. In addition, you agree with the Company to waive the right to participate in a class action or litigate on a class-wide basis. You agree with the Company that you have expressly and knowingly waived these rights.
13.5 Arbitration will be conducted by the American Arbitration Association (AAA) before a single AAA arbitrator under the AAA’s rules. You agree that the two parties will agree on the arbitrator that is chosen. Payment of all filing, administration, and arbitrator fees and costs will be governed by the AAA’s rules, except as expressly stated otherwise in this Agreement. If the filing, administration, and arbitrator fees and costs total less than $3,000, the Company will reimburse those fees and costs for claims, unless the arbitrator determines the claims are frivolous. Likewise, the Company will not seek its attorneys’ fees or costs in arbitration unless the arbitrator determines the claims or defenses are frivolous. You agree that you or the Company may choose to have the arbitration conducted by telephone or based on written submissions. You agree with the Company that in-person arbitration will be conducted at a mutually agreeable location. You agree not to conduct arbitration via any payment providers or other third parties. If you go outside the aforementioned process for arbitration (including, but not limited to, by using a payment provider for arbitration), all costs incurred are your responsibility. You agree that the decision of the arbitrator shall be final and not subject to an appeal, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. You agree that the U.S. Dispute Resolution Process shall survive expiration, termination, or rescission of this Agreement.
13.6 If you wish to resolve a dispute through mediation, send a letter requesting mediation and describing your claim to: Northeastern Realtors LLC, Attention: Legal Department, 520 Blue Hill Ave, Milton, MA 02186.
13.7 Notices made by NER to the Customer may be posted on the Website, at nercloudoffice.com and/or sent to the email address specified by the Customer when registering or to any updated email address the Customer provides. Notices to TaxTC must be directed to security@nercloudoffice.com and/or Northeastern Realtors, LLC, 55 M Street NE #1114, Washington, DC 20002.
13.8 The official text of this Agreement and any annexes attached here to and any notices given here shall be in English.
14. Final Provisions
14.1 This agreement, together with any documents referred to in it, or expressed to be entered into in connection with it, constitutes the whole agreement between the Parties concerning the subject matter of this Agreement.
14.2 The Customer may set off only legally, binding and recognized claims. The rights and obligations arising from this Agreement are generally not transferable. However NER may transfer this Agreement with all rights and obligations to a company of its choice. If the Customer does not expressly disagree with this in writing within one month from a corresponding notice this is deemed to be his acceptance.
14.3 If any provision of this agreement is or later becomes invalid, or contains omissions, the validity of the other provisions shall remain unaffected. The parties shall agree upon a new provision, which shall resemble the invalid provision as closely as possible in purpose and meaning, to replace the invalid provision. In the event of an omission in the agreement, a provision shall be agreed upon which shall correspond with that which would have been agreed, pursuant to the purpose and meaning of the agreement, if the matter had been considered by the parties when the agreement was formed.
14.4 These Terms of Service may be modified by NER at any time. NER will inform the Customer via email that these Terms of Service have altered without necessarily including the new version or alteration in this email. If the Customer does not expressly disagree in writing within a month from the notification of change this is deemed to be his acceptance of the change. The Customer will be informed about this circumstance in the notification of change.