The Private List is a private website and its agent network (‘TPL”) exclusively designed and established for subscribing licensed real estate agents (“Member Agents”) that provides (a) a digital platform for Member Agents to share information about their luxury listings, including listings off-MLS; and (b) an exclusive networking forum for Member Agents . TPL also works with clients who are looking to buy or sell a luxury home, and facilitates introductions to Member Agents as well as other service providers (architects, builders, interior designers, landscape architects) who are invited into the network.
Only a duly licensed real estate broker or licensed real estate salesperson may be eligible to access TPL as a Member Agent. A Member Agent must be affiliated with a licensed real estate broker in order to be eligible for membership to TPL.
TPL is not a licensed real estate brokerage company. Authorized TPL personnel may act as referral agents or facilitators in a real estate transaction.
- “Member Agent” means a duly licensed real estate salesperson, in good standing, who is a subscribing member of The Private List.
- “Listing” means a real estate property listing posted by a Member Agent on TPL .
- “TPL” means the exclusive web site/network solely administered and owned by The Private List, LLC, a MA Limited Liability Company, the owner of the www.theprivatelist.com.
Acceptance of Terms
General Use of The Private List
- except with the express written permission of TPL, modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, frame in another Web page, use on any other Web site, transfer or sell any information, software, lists of users, databases or other lists, products or services provided through or obtained from the TPL, including without limitation, engaging in the practices of “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining lists of users or other information;
- damage, disable, overburden, or impair TPL or interfere with any other party’s use and enjoyment of TPL;
- obtain or attempt to obtain any materials or information through any means not made readily accessible by TPL through the Website.
If you choose to submit something (including any User generated content, ideas, concepts, techniques and data) to TPL, you grant by concluding this agreement, a nonexclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sublicenseable, fully paid up and royaltyfree right to us to copy, prepare derivative works of, improve, distribute, publish, remove, retain, add, and use and commercialize, in any way now known or in the future discovered, anything that you submit to us, without any further consent, notice and/or compensation to you or to any third parties.
By submitting any information to us, you represent and warrant that such submission is accurate, is not confidential, and is not in violation of any contractual restrictions, privacy requirements or other third party rights. You further agree to inform TPL in the event that any such information has changed since your registration with TPL and, if appropriate, you agree to make such modifications yourself to your profile.
TPL has no obligation to verify the identity of any users when they are connected to the site or to supervise the content which has been provided by users. Should you believe that someone is misusing or otherwise appropriating your information, you must immediately inform TPL
Except with the express written permission of TPL, you agree that you will not access or attempt to access password protected, secure or non-public areas of the TPL Website.
TPL shall in no way be responsible or liable for any claims, fees, expenses and/or damages, direct, consequential, punitive or special, whatsoever or any litigation involving you not complying with any of these Terms and Conditions or any terms and conditions, licensing requirements, rules, ethics, or regulations required by the local and/or state real estate boards, MLS services and/or agency laws of your jurisdiction.
Membership Privileges and Requirements
Membership privileges are by invitation only and are granted exclusively by TPL specifically to the Member Agent. Subscription privileges and/or membership rights cannot be assigned, sublicensed, distributed, shared, viewed, accessed, or otherwise transferred to anyone other than the Member Agent without the express written permission of TPL.
By registering on the Website, you represent and warrant that the information provided is true, accurate, complete and current. TPL requires that each registered user maintain a valid email address and a password, which shall be utilized for logging on to the system. Users are not permitted to share their individual login information with others.
You hereby acknowledge that prior to uploading any Listing on the Website you have secured a fully executed listing agreement for that property. You also acknowledge that you have filled out the appropriate MLS exclusion forms for any property you post that is off-MLS. Furthermore, you must abide by all rules and procedures of any brokerage, realtor association and/or Multiple Listing Service to which you belong. TPL shall not responsible for policing your actions relative to these rules and procedures.
You represent and warrant that (a) you own or have the full right, power and authority to grant to TPL use of and rights in and to all User Content that you upload, post, e-mail or otherwise transmit to TPL; (b) your license of such User Content to TPL hereunder does not, and the use or license of such User Content by TPL to third parties will not, infringe any right or interest owned or possessed by any third party; and (c) there are no claims, judgments or settlements to be paid by you, or pending claims or litigation, relating to such User Content; (d) the practice and promotion of “off-market listings” does not infringe on any state laws or MLS rules you as a user may be subject to.
You agree to allow Listing(s) and User Content, or any part therein, to be searched, displayed, accessed, downloaded, and otherwise referred to by users of the Website. TPL shall have the sole authority to choose the manner in which any property listing will be searched, displayed, accessed, downloaded, copied, and otherwise used on the Website and TPL shall have the right to modify the property listing in the exercise of its rights under this Agreement.
To the extent that you post, upload, input, submit or otherwise transmit (collectively, “Transmit” or “Transmitting” as appropriate) content on or through TPL, 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 or otherwise make available via TPL. 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 TPL as provided below. Specifically, you will not submit a photograph, floor plans or videos of a property if you received the material from a third party information provider under the terms of a license that does not allow posting of such material on the Website.
TPL reserves, in a manner consistent with reasonable commercial business practices, the right to remove all or any part of the property listings posted on the Website. You are entirely responsible, and TPL accepts no responsibility, for the User Content. While TPL shall take all reasonable efforts for data backup and business resumption, you will be solely responsible for retaining back-up copies of all information, photographs and other materials it provided to TPL.
You acknowledge that TPL shall have the right (but not the obligation) in its sole discretion to refuse, modify, delete or move any content that is available via TPL, for any reason. You agree that TPL content is reserved for members and will be maintained as confidential and shall be protected as a trade secret of TPL. TPL does not ensure the accuracy of, endorse or recommend any of TPL Content. Your use of TPL content is at your own risk.
You shall not use any robot, spider or other automated process to submit listings, monitor, data mine or copy TPL Content; or decompile, decode or reverse engineer TPL software; or use TPL products or services in an unlawful manner, such as for offensive, abusive, tortuous, libelous, defamatory or other illegal purposes.
TPL offers forums where you can post your observations and comments on designated topics. TPL cannot guarantee that other members will not use the ideas and information that you share. Therefore, if you have an idea or information that you would like to keep confidential and/or don’t want others to use, do not post it on TPL. TPL IS NOT RESPONSIBLE FOR A MEMBER’S MISUSE OR MISAPPROPRIATION OF ANY CONTENT OR INFORMATION YOU POST IN ANY WAY ON TPL.
While TPL works to protect the security of the Member Agent information and content and account, TPL cannot guarantee that unauthorized third parties will not be able to circumvent our security measures. Please notify us immediately of any compromise or unauthorized use of your account. You are also responsible for maintaining the confidentiality of your account information and for ensuring that only authorized individuals have access to your account.
Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: YOUR USE OF AND RELIANCE UPON ANY AND ALL OF TPL SERVICES AND/OR CONTENT IS AT YOUR SOLE RISK AND IS MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS. TPL MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, OR GUARANTEES WITH REGARD TO THE APPROPRIATENESS, ACCURACY, SUFFICIENCY, CORRECTNESS, VERACITY, VALUE, COMPLETENESS, OR TIMELINESS OF TPL, SERVICES AND/OR CONTENT. TPL 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.
Limitation of Liability
IN NO EVENT SHALL TPL BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF TPL, WITH THE DELAY OR INABILITY TO ACCESS OR USE TPL OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY CONTENT, SOFTWARE, PRODUCTS AND SERVICES MADE AVAILABLE OR OBTAINED THROUGH TPL, OR OTHERWISE ARISING OUT OF THE USE OF TPL, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF TPL HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. ANY SERVICES OR CONTENT MADE AVAILABLE OR OBTAINED THROUGH THE USE OF TPL, AND ALL OTHER USE OF TPL, IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS THEREFROM.
By becoming a Member Agent you agree hold TPL harmless and to fully indemnify TPL and its officers, directors, employees, agents and/or assigns from and against any loss, cost, liability, damage or claims for damages and/or suits, including reasonable attorneys’ fees arising from or in connection with Occupants’ use and occupation of the Premises, or (ii) and arising from or in connection with any act, omission, or failure by YOU to comply with any of these Terms and Conditions or your obligations hereunder and/or in connection with any , law, rule, requirement by any local and/or state real estate boards, MLS services and/or agency laws of your jurisdiction, , including, but not limited to, the failure to fully or properly perform an obligation which the TPL or any third party believes (however correctly or incorrectly) is owed to such third party or has caused harm to such third party.
If a claim is made against TPL by a person or entity other than you which:(i) claims, threatens or asserts that TPL is responsible or liable for damages, losses, obligations and/or liabilities suffered or supposedly suffered by such third party, regardless of the legitimacy of such claim, threat or assertion, and (ii) either (a) mentions you as being involved or responsible for the supposed harm suffered by the person or entity making the Claim or (b) is believed by us in good faith to be derived in any degree (1) from the actions or omissions of you and/or (2) from the inaccurate representations or misrepresentations which you have made to such other person or entity;
Then you shall:
(1). Defend the Claim at your sole expense.
(2). Indemnify and hold harmless TPL from and against the Claim (except to the extent that such Claim pertains to or is derived from the actions or omissions of TPL).
(3). Pay TPL on a current basis, all reasonable costs and expenses (including, without limitation, reasonable attorneys’, accountants’ and other professional fees and expenses) incurred by TPL in connection with the Claim, including without limitation such reasonable costs and expenses attendant to the Negotiations.
TPL shall give written notice to you of the claim. Such notice shall include a copy of the claim and shall constitute the assertion by TPL that both the defense of the Claim by you and the indemnity of TPL are being sought.
The defense of the Proceeding shall be conducted by legal counsel selected by the reasonable agreement of you and us. We shall be kept fully informed by you at all stages of the Proceeding.
You shall not make any settlement in or with respect to the Proceeding without our prior written consent of TPL. Nothing contained herein shall mean or be construed to mean that we shall not have the right to participate in the Proceeding represented by legal counsel unilaterally selected by us.
If you do not assume the defense of the claim, then we may defend against the claim, after giving notice of the same to you, on such terms as we may deem appropriate. In such case, (i) you shall be entitled to participate in (but not control) the defense of the claim and (ii) you shall pay TPL all reasonable costs and expenses (including, without limitation, reasonable attorneys’, accountants’ and other professional fees and expenses) incurred by TPL in connection with the claim.
If you thereafter seek to question the manner in which TPL defended the claim or the amount or nature of any such settlement pertaining to the Claim, then you shall have the burden to prove by a preponderance of the evidence that TPL did not defend or settle the Claim in a reasonably prudent manner.
The duty to defend as set forth herein applies even if the final result of the Proceeding is a determination that you were not responsible or liable for the harm or damages suffered by the person or entity who or which made the claim.
Your Exclusive Remedy
Your exclusive remedy, and TPL’s entire liability under this Agreement shall be a refund to you of the fees paid to TPL. IN NO EVENT WILL TPL’s LIABILITY EXCEED SUCH FEE.
Arbitration of Disputes
YOU HEREBY AGREE THAT ANY AND ALL DISPUTES OR CLAIMS THAT MAY ARISE BETWEEN YOU AND TPL SHALL BE RESOLVED EXCLUSIVELY THROUGH FINAL AND BINDING ARBITRATION, RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT IF YOUR CLAIMS QUALIFY. THE FEDERAL ARBITRATION ACT SHALL GOVERN THE INTERPRETATION AND ENFORCEMENT OF THIS PARAGRAPH. YOU AGREE THAT YOU AND TPL MAY BRING CLAIMS AGAINST EACH OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND TPL AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. FURTHER, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
THE ARBITRATION WILL BE CONDUCTED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) UNDER ITS RULES AND PROCEDURES, AS MODIFIED BY THIS PARAGRAPH. THE AAA’S RULES ARE AVAILABLE AT WWW.ADR.ORG. A FORM FOR INITIATING ARBITRATION PROCEEDINGS IS AVAILABLE ON THE AAA’S WEBSITE AT HTTP://WWW.ADR.ORG.
IF THE VALUE OF THE RELIEF SOUGHT IS $10,000 OR LESS, YOU OR TPL MAY ELECT TO HAVE THE ARBITRATION CONDUCTED BY TELEPHONE OR BASED SOLELY ON WRITTEN SUBMISSIONS, WHICH ELECTION SHALL BE BINDING ON YOU AND TPL SUBJECT TO THE ARBITRATOR’S DISCRETION TO REQUIRE AN IN-PERSON HEARING, IF THE CIRCUMSTANCES WARRANT. ATTENDANCE AT AN IN-PERSON HEARING MAY BE MADE BY TELEPHONE BY YOU AND/OR TPL, UNLESS THE ARBITRATOR REQUIRES OTHERWISE. THE ARBITRATOR’S AWARD SHALL BE FINAL AND BINDING AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. PAYMENT OF ALL FILING, ADMINISTRATION AND ARBITRATOR FEES WILL BE GOVERNED BY THE AAA’S RULES, UNLESS OTHERWISE STATED IN THIS PARAGRAPH. IF A COURT DECIDES THAT ANY PART OF THIS PARAGRAPH IS INVALID OR UNENFORCEABLE, THE OTHER PARTS OF THIS PARAGRAPH SHALL STILL APPLY. ACCESS OR USE OF TPL IS UNAUTHORIZED IN ANY JURISDICTION THAT DOES NOT GIVE EFFECT TO ALL PROVISIONS OF THESE TERMS AND CONDITIONS, INCLUDING WITHOUT LIMITATION THIS PARAGRAPH.
The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Massachusetts and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) business days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. You are specifically advised that the arbitrator will have wide the discretion in conducting the arbitration.
The arbitrator will render an award pursuant to the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof.
Unless otherwise agreed to us in writing, you will be responsible for the payment of any filing, administrative and arbitrator fees payable to the AAA.
The Arbitration described above shall be brought exclusively in Suffolk County, Massachusetts. This means that you are waiving any claim or defense that such forum is not convenient or proper. In addition, you are agreeing that a final judgment in any such arbitration shall be conclusive and may be enforced in Suffolk County, Massachusetts and in such other jurisdictions in the manner specified by law.
A. General. If any provision of these Terms and Conditions , as applied either to you or TPL or to any circumstance, shall be found to be void, invalid or unenforceable, such provision shall in no way affect any other provision of these Terms and Conditions , or the application of any such provision in any other circumstance, or the validity or enforceability of these Terms and Conditions. In addition, any provision which is found to be void, invalid or unenforceable shall be curtailed and limited only to the extent necessary to bring such provision within the requirements of the law.
B. Foreign Jurisdictions. Without limiting the generality of the foregoing immediately above, if any of the provisions of these Terms and Conditions is inconsistent with the law of any jurisdiction outside of the United States, then these Terms and Conditions shall be read and applied as if such provision is not a part of these Terms and Conditions .
Governing Law. These Terms and Conditions and the service provided hereunder and the actions taken hereunder shall be governed by, and construed in accordance with the laws of the Commonwealth Of Massachusetts applied without regard to conflict of law principles
Copyright and Intellectual Property
All materials on TPL (as well as the organization and layout of TPL) are owned and copyrighted or licensed by The Private List, its corporate affiliates or its third-party vendors. No reproduction, distribution, or transmission of the copyrighted materials on TPL is permitted without the written permission of TPL. Any rights not expressly granted herein are reserved.
As a Member Agent you also acknowledge and agree that any information provided to TPL may become the intellectual property of TPL. “Intellectual Property” means any and all intellectual property and tangible embodiments thereof, including without limitation inventions, discoveries, designs, specifications, developments, methods, modifications, improvements, processes, know-how, show-how, techniques, algorithms, databases, computer software and code (including software and firmware listings, assemblers, applets, compilers, source code, object code, net lists, design tools, user interfaces, application programming interfaces, protocols, formats, documentation, annotations, comments, data, data structures, databases, data collections, system build software and instructions), mask works, formulae, techniques, supplier and customer lists, trade secrets, graphics or images, text, audio or visual works, materials that document design or design processes, or that document research or testing, schematics, diagrams, product specifications and other works of authorship.
Pursuant to Title 17, United States Code, Section 512, notifications of claimed copyright infringement should be sent to TPL’s Designated Agent set forth below. All inquiries must be filed in accordance with Title 17, United States Code, Section 512.
All notices to TPL must be in writing and must be sent registered mail, certified mail, or overnight mail with a return receipt requested to The Private List, 2 Oliver Street, Suite 905, Boston MA 02109.
Contact Email: email@example.com
Last Updated: 1/26/2020
© The Private List, LLC 2020