SMART Property Marketing, LLC (“SMART”) is a marketing tool designed to allow a motivated Seller to sell their home without using a real estate agent. By accessing or using the SMART website and other services you agree to be bound by the following terms of use. These Terms of Use constitute a binding contract between SMART and you. You are responsible for regularly reviewing the Terms of Use and making sure you understand them in their entirety. If you do not wish to be bound by these Terms of Use, including the binding arbitration clause and class action waiver contained herein below, you may not access or use any part of the SMART website, use the Services or create an account. SMART at it’s sole discretion can decide to modify or discontinue the any service, or any portion thereof, with or without notice, and without liability to you. “You” refers to any person accessing the SMART website or using SMART’s Marketing Services.

You must be at least Eighteen (18) years old to use the SMART website or any marketing services offered by SMART. You may choose to create an account and provide certain information. You agree that the information that you provide will be accurate and truthful information, and to keep it accurate and updated if any changes occur. It is your responsibility to maintain the confidentiality and security of your information. By providing your information, you consent to us or other third parties contacting you by email, phone or through any other contact information you have chosen to provide.

All parts of the Services, including, but not limited to, all applications, information, text, messages, images, photos, illustrations, designs, icons, video clips, sounds, files, trademarks, copyrighted material, trade dress, software, specifications, literature, technical information, advertisements, the selection, compilation, arrangement and presentation of all materials, and the websites, tools and all other content or materials, are owned by SMART. You agree to abide by all applicable copyright laws, and agree that the use of any of the above without our express prior written permission is strictly prohibited. You may not use any of our Content, trademarks, trade names, service marks, copyrights or logos in any manner which creates the impression that such items belong to or are associated with you unless you have our written consent and you acknowledge that you have no ownership rights in or to any of such items. You may not use your own web design skills to “frame” the Websites and pretend they are yours. You may link to the Websites, provided that you acknowledge the source and agree that you will not link the Websites to any website containing any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information, or that violates any intellectual property, proprietary, privacy or publicity rights.

You agree that the use of and reliance on any Content is at your own risk, and that under no circumstances shall SMART be liable for any Content or for any loss or damage of any kind incurred as a result of the use of any Content made available via the Services.

To the extent that you post, upload, input, submit or otherwise transmit (“Transmit”) items or content you agree to provide true, accurate and complete information, and to refrain from impersonating or falsely representing your affiliation with any person or entity. You are entirely responsible for all Content that you provide and agree that SMART has no liability for your content. Unless we indicate otherwise, you grant us, our subsidiaries and affiliates a nonexclusive, transferrable, royalty-free, perpetual, irrevocable and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, copy and display such Content throughout the world in any form. You also warrant and represent that you own or otherwise control all of the rights to such Content, including, without limitation, all the rights necessary for you to Transmit such Content and to transfer your or others’ interests in such Content to SMART, and you represent and warrant that the Content will not violate the Terms of Use or cause injury to any other person or entity and will not constitute material that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous or otherwise objectionable. We take no responsibility and assume no liability for any material, content, connections, or any opinions that may result as of your posting of content. We have no obligation to post any Content you provide, and reserve the right to post our own versions of that Content (including, but not limited to, photos of properties or property descriptions) instead of yours at our sole discretion. You assign us the right to pursue enforcement of copyright and other intellectual property claims against third parties that have, without authorization, and in violation of the Terms of Use, scraped, copied or distributed Content from the Services that has been provided to us by you and for which you have not granted such third parties a separate license to use. By Transmitting Content you grant, and you represent and warrant that you have the right to grant, to SMART an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display and distribute the Content, and to prepare derivative works of, or incorporate into other works, the Content, and to grant and authorize sublicenses (through multiple tiers) of the foregoing.

By using the Services, you irrevocably agree: (a) to waive all rights to trial in a court before a judge or jury on any claim, action or dispute with us or relating in any way to your use of the Services or the interpretation, applicability, enforceability or formation of these Terms of Use, including, but not limited to, any claim that all or any part of this agreement is void or voidable (“Claims”); (b) that all Claims will be determined exclusively by final and binding arbitration in the State of Texas, before one arbitrator; and (c) that the arbitrator will not have the authority to consolidate the Claims of other users of the Services (“Users”) and will not have the authority to fashion a proceeding as a class or collective action, or to award relief to a group or class of Users in one arbitration proceeding. The arbitration shall be governed by the laws in the State of Texas. All parties shall maintain the confidential nature of the arbitration proceeding and the award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve any Claims. However, nothing in this section shall prevent us from enforcing our intellectual property rights and/or remedy unfair competition, misappropriation of trade secrets, unauthorized access, fraud or computer fraud, and/or industrial espionage in court. Judgment on any arbitration award may be entered in any court having jurisdiction. In any arbitration arising out of or related to these Terms of Use, the arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator determines a party to be a prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration.

YOU AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND ACKNOWLEDGE THAT ALL INFORMATION CONTAINED IN THE SERVICES IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND THAT WE DISCLAIM ALL WARRANTIES OR GUARANTEES, EITHER EXPRESS OR IMPLIED, AS TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. We make no representations or guarantees that the Services are compatible with your equipment or that the Services, or that any electronic communications sent by us or our affiliates, are error-free or will be free from loss, destruction, damage, interruption, corruption, attack, viruses, worms or other harmful, invasive or corrupted files, interference, hacking or other security intrusion, and we disclaim any liability relating thereto. You agree that we have the right to change the Content or technical specifications of any aspect of the Services at any time at our sole discretion. You further agree that such changes may result in your being unable to access the Services. We make no guarantees, representations or warranties that the Services or information available through the Services, or that the use of or result of the use of the Services, will be accurate, reliable, complete, current, uninterrupted or without errors. Any documents, pictures or other information available on the Services are for informational purposes only and may not represent the current condition of a property or the condition of the property at the time of sale. The posting of pictures on the Services does not constitute a guarantee that any items represented in the pictures will be present when a buyer takes possession of a property. You are required to conduct your own due diligence and investigate all matters relating to any properties. It is recommended that you seek independent advice, including legal advice, to perform your due diligence and that you use good-faith efforts in determining that the content of all information provided to or obtained by you is accurate. SMART will not be held liable for any of the content on the website or services that SMART provides. Furthermore SMART does not: (a) make any warranty, express or implied, with respect to the use of the links provided on or to the Services; (b) guarantee the accuracy, completeness, usefulness or adequacy of any other websites, services or goods, that may be linked to or from the Services; or (c) make any endorsement of any other websites, services or goods that may be linked to or from the Services.

UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL SMART, ITS SUBSIDIARIES OR AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING FROM USE OF OR INABILITY TO USE THE SERVICES, INCLUDING THOSE CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OF TRANSMISSION, COMPUTER VIRUS OR LINE FAILURE ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THE SERVICES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF SMART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY SERVICES OR CONTENT MADE AVAILABLE OR OBTAINED THROUGH THE USE OF SMART, AND ALL OTHER USE OF SMART, IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS THAT RESULTS THEREFROM. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY OR MAY NOT APPLY TO YOU.

You agree to indemnify, defend and hold SMART, our subsidiaries, affiliates, third-party vendors, directors, officers, employees and agents harmless, including costs, liabilities and legal fees, from any and all claims or demands made by any third party arising out of or relating to: (i) your access to or use of the Services; (ii) your violation of any third-party right, including, without limitation, any copyright, property or privacy right; (iii) the content you submit to the Services; or (iv) any breach by you or your affiliates, employees, agents and representatives of the Terms of Services. We reserve the right, at your expense, to assume the exclusive defense and control of any matter subject to indemnification by you, and you agree to cooperate in such defense. You agree not to settle any matter in which you have indemnity obligations without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

You release SMART, its affiliates and their respective directors, officers, employees and agents from all liability related to any and all claims and demands you may assert against any third party arising out of the Services.