Smarter Choice Real Estate Website Terms of Use (T.O.U.) Agreement

By clicking the checkbox accompanying, "I agree to the Terms of Use", I agree, as good and adequate consideration for viewing access to and use of the services and information available to me at this website, to the following statements, and to abide and to be bound by the terms and conditions set forth in this Terms of Use (TOU) Agreement:

1. BROKERAGE RELATIONSHIP DISCLOSURE: I understand that by clicking "Agree" or "Decline" on the Disclosure of Brokerage Relationships in Real Estate Transactions (Agency Disclosure form) which follows this Agreement, that I am NOT entering into a contract or other obligation with Smarter Choice Real Estate. (The Agency Disclosure is required to comply with state law and other requirements which Smarter Choice Real Estate must meet to explain and offer agency choices before Smarter Choice Real Estate is allowed to share the Site Materials.)

2. BROKERAGE RELATIONSHIP ELECTION: If I click "Acknowledge" I am agreeing to be treated as a Buyer Client with Limited Buyer Agency or a Seller Client with Limited Seller Agency, as I select. By acknowledging the agency disclosure terms, Smarter Choice Real Estate and I will be forming a fiduciary or brokerage relationship by granting me access to, and use of, the Site Materials available on the Smarter Choice Real Estate website. Any form of fiduciary or brokerage relationship between Smarter Choice Real Estate and me shall not exist unless and until the earlier of the following events: (1) I click "Acknowledge" for the Agency Disclosure, or (2) A Smarter Choice Real Estate agent shows me property available for sale or lease, or I place real estate for sale withSmarter Choice Real Estate, or (3) I request a Smarter Choice Real Estate agent to assist me in procuring a real estate sales, purchase, or lease contract on terms acceptable to me for the listing, purchase, rental, or sale of a parcel of real estate, or (4) An occurrence of other substantial contact which would reasonably constitute a practical first contact opportunity to present and disclose agency relationship alternatives.

3. BROKERAGE RELATIONSHIP FORMATION: I understand that at the earlier of any of the four above stated events I will be entering into a brokerage relationship (but NOT a contract or obligation) with Smarter Choice Real Estate in which Smarter Choice Real Estate will be assuming certain duties and obligations relating to the services it will be rendering to me during the course of that relationship. Smarter Choice Real Estate will assign an agent to represent me as a buyer's agent if I choose to purchase a property through Smarter Choice Real Estate. The Brokerage Relationships in Real Estate Transactions discloses and explains the nature and extent of those duties and obligations of possible brokerage relationships with Smarter Choice Real Estate. If I have questions, I agree to contact Smarter Choice Real Estate at 402-432-0765. At any time, either I or Smarter Choice Real Estate may serve written notice on the other to terminate the agency and/or fiduciary relationship that is being created.

4. LEGAL AGE AND CAPACITY: I represent and warrant that I am over the age of majority in my legal state of residence, I am legally competent to make this Agreement, I am or soon plan to be a prospective buyer or seller of real estate, I am not a party to an exclusive brokerage services agreement with any other real estate broker or firm, and I am not an active real estate licensee.

5. PERMISSION TO CONTACT: I hereby grant Smarter Choice Real Estate my express written consent to engage in further unsolicited communications with me until I request otherwise in writing, sent via email to SmarterChoiceRealEstate@gmail.com.

6. PROPERTY SEARCH LIMITATIONS: When conducting a search for available properties for sale or rent, I agree to enter property search criteria (such as price range, location, and other features) that are a good faith representation of the types of properties that I am interested in purchasing, and financially capable of acquiring, or that represent properties similar to the property I have available for sale. I understand that Smarter Choice Real Estate will limit the number of properties displayed to me in response to my search requests based upon Smarter Choice Real Estate's sole determination of the reasonable number of properties appropriate to be displayed in response to a single search request, given existing market conditions, total number of matching listings in the MLS database compilation, and other "reasonable use" restrictions deemed appropriate by Smarter Choice Real Estate, and/or the Realtors Association of Lincoln. The number of listing accessible to me may vary from market to market and from time to time.

7. USE LIMITATIONS: I agree that any electronic or printed real estate listing data, or other content derived from the Smarter Choice Real Estate website ("Site Materials"), constitute the copyrighted and proprietary property of Smarter Choice Real Estate or third parties from whom Smarter Choice Real Estate has secured permission to display such Materials on Smarter Choice Real Estate's website. I will use these Site Materials solely for my private and non-commercial use in conjunction with my evaluation of a potential real estate transaction to which I may, in good faith, become a party. I will not copy, commercialize, sell, license, swap, or otherwise make the Site Materials available to any third party, nor will I assist others in doing so.

8. GOOD FAITH & COOPERATION: My agreement with the TOU Agreement are based on good faith and cooperation with Smarter Choice Real Estate, and as such I will use my best efforts to cooperate with Smarter Choice Real Estate on reasonable terms and conditions in the event Smarter Choice Real Estate deems it necessary to seek to enjoin or otherwise prohibit the unauthorized use of the Site Materials by a third party, which use may have resulted from my access to the Smarter Choice Real Estate website.

9. LIMITATION ON ACCURACY AND RELIABILITY OF INFORMATION: I understand and agree that Smarter Choice Real Estate expressly disclaims any warranties whatsoever concerning the accuracy or reliability of the listing data or any other Site Material accessible from the Smarter Choice Real Estate website, including but not limited to any warranty of merchantability, fitness for a particular purpose, or implied warranties of suitability of habitability. I agree that any and all Site Materials, including any listing data or third party data from other sources or via web links embedded in such data, is provided to me in an "as is" condition. I realize and agree that it is my responsibility to verify any data upon which I plan or may rely, or plan or may take action.

10. LIMITATION OF LIABILITIES: I agree that Smarter Choice Real Estate shall not be liable to me, my agents, assigns, vendors, or other third parties for any damages of any kind whatsoever by reason of my reliance upon, or use of the Site Materials, including any actual, compensatory, punitive, special, consequential, or exemplary damages, fines, assessments, or other costs.

11. HOLD HARMLESS AND INDEMNIFICATION: I agree to defend, indemnify, and hold harmless Smarter Choice Real Estate from any damages, costs, and expenses, including attorneys fees and litigation costs and expenses at trial or on appeal, arising from any claim by a third party based upon my use or display of the Site Materials.

12. UNAUTHORIZED USE: I agree that any unauthorized use of the Site Materials by myself or others whom I allow to use this Site Material may cause damages or other consequences to Smarter Choice Real Estate that cannot adequately be remedied by money damages, and that Smarter Choice Real Estate shall be entitled to preliminary or permanent injunctive relief to enjoin my unauthorized use or allowance of use by others of the Site Materials. Such injunctive relief shall be in addition to any other remedies available to Smarter Choice Real Estate at law or equity. If Smarter Choice Real Estate is successful in securing a preliminary injunction order against me, I waive any obligation of Smarter Choice Real Estate to post a financial security bond in conjunction therewith.

13. MISCELLANEOUS: Notwithstanding Paragraphs 11 and 12, I agree that by reason of my accessing the Site Materials available on the Smarter Choice Real Estate website, I have become a bona fide client of Smarter Choice Real Estate, but without obligation to purchase real estate, who is seeking information about real estate brokerage services relating to my potential purchase, lease, or sale of real estate of the type, location, and price range specified in any searches I have performed, or will perform, using the Site Materials and the functionality available to me at the Smarter Choice Real Estate website.

14. LAW AND JURISDICTION: I agree that this Terms of Use Agreement shall be governed by the laws of the State of Nebraska applicable to contracts made and performed entirely in the State. Any suit brought by either Party to enforce the terms and conditions of this Terms of Use Agreement shall be brought in the state or federal courts that have jurisdiction over the City of Lincoln, Nebraska. I agree not to contest the personal jurisdiction of such courts. If Smarter Choice Real Estate prevails in any suit against me to enforce its rights under this Terms of Use Agreement, I agree that the Court may enter an award on behalf of Smarter Choice Real Estate and against me for Smarter Choice Real Estate's reasonable attorney's fees, costs, and litigation expenses associated with such suit, or the appeal of any judgment or award rendered on behalf of Smarter Choice Real Estate.

15. SELLER CONTACT: I agree that I will not attempt to contact the seller of any property that I have identified by using Smarter Choice Real Estate's website and Site Materials, and that I will not attempt to enter onto the premises of any such property except through an appointment arranged by an agent or employee of Smarter Choice Real Estate or another licensed Realtor of my chosing.

16. SURVIVABILITY: If any portion of the items constituting this Terms of Use Agreement is judged to be inoperative or otherwise non-binding, the remainder of the Terms of Use Agreement shall survive and control. Termination of this Agreement shall not negate certain obligations which must survive to comply with Nebraska law and the regulations of the Nebraska Real Estate Commission.