PRESTIGE MLS has developed a series of computing tools and services under the name of “Prestige MLS” which allow real estate agents to multi-list their luxury properties with other real estate agencies also using “Prestige MLS”, and to publish these listings on a specialist “luxury” property website at the address www.prestige-mls.com.
Subscribing to the “PRESTIGE MLS” offer entails the User’s agreement to these general terms and conditions of use. In particular subscription to PRESTIGE MLS requires the User to make an online application, via a dedicated and personalised page on the website: www.prestige-mls.com, or any other URL indicated by PRESTIGE MLS, allowing the user in particular to:
• Manage their User profile
• Manage and circulate their agency’s properties
• Access the shared file of properties for sale or rent
• Access the shared file of sold or rented properties
• Access the shared message handling service
• Access organisational and/or methodological documents and/or other support media.
These terms and conditions of use and any of their updates can be found at www.prestige-mls.com, in the section “General Terms and Conditions of Use”.
Fault: Any reproducible or repetitive malfunction of PRESTIGE MLS while being used for its correct purpose and in compliance with procedures of use.
Data base: A collection of information or other independent elements stored and organised in a systematic and methodical fashion that can be accessed individually using electronic means.
User(s): Professional property agent(s), belonging to a national Users club referred to as a PRESTIGE MLS Business Club, who has (have) subscribed to the “Prestige MLS” offer.
Associated services: Support and training services directly connected with the development and the promotion of the “Prestige MLS» offer to Users.
Professional property agents: Any individual or corporate body whose professional activity consists of acting as an intermediary in the purchase, rental and management of properties of all types.
Services: Service provision, methods, processes, knowledge and expertise, whatever from they take or whatever the type of media which constitute the standard organisational, operational or educational tools of the “Prestige MLS “offer.
System: The collection of software and/or software packages developed by PRESTIGE MLS or for which it has acquired rights of use, based on its technology platform, consisting of a website with points of entry, reception and deposit for authorised users and allowing information provided by Users to be processed. The functionalities of the System are described in the preamble to these general terms and conditions of use.
“Prestige MLS” offer: A package offer of services which constitutes the object of this contract.
PRESTIGE MLS Business Club: A group of real estate agency Users who have subscribed to the PRESTIGE MLS offer and have agreed to the PRESTIGE MLS Commitment Charter.
PRESTIGE MLS Commitment Charter: A document available on the www.prestige-mls.com platform, specifying the duties and obligations of members of the PRESTIGE MLS Business Club.
2. SUSBSCRIPTION TO AND USE OF THE PRESTIGE MLS OFFER
2-1. General obligations
2-1-1. PRESTIGE MLS undertakes to supply to the User the entire “Prestige MLS” offer, as described above. The User undertakes to use this offer in compliance with the rules and principles set out by PRESTIGE MLS, as described in the documents supplied by PRESTIGE MLS.
2-1-2. Subscription to the “Prestige MLS” offer entails the sharing of listings for multiple distribution secured by the User with all the members of the PRESTIGE MLS Business Club. The real estate agent Club members are instructed, by delegation, to sell the properties pooled in this way.
Each member of the Club is responsible for their own errors, while engaged in managing multiple distribution listings. In the event of the agent’s liability being invoked by their client, for whom they have sole responsibility, the agent may sue the delegate(s) who has (have) committed errors in the management of the multiple distribution listing concerned. The User undertakes to declare their participation in the PRESTIGE MLS offer to their insurance company.
2-2. Access to “Prestige MLS”
Each User is allocated only one username and an “administrator” password for their designated representatives, staff and sales personnel.
The “administrator” login ID authorises the User to create and modify several “user” passwords for the use of those mentioned above. The User can access the System following receipt of their Login details. PRESTIGE MLS reserves the right, for technical and security reasons, to alter the User’s Login details after having informed them of this.
The User is solely responsible for safeguarding their login details and for their correct use, and PRESTIGE MLS cannot be held responsible for any misuse of the above. Likewise the User undertakes not to reveal their login details to any person other than a member of their staff, their designated representatives and sales personnel, and risks the possibility of PRESTIGE MLS instituting judicial proceedings and actions for awards and damages against them in the event of the improper use of these login details. PRESTIGE MLS should be immediately informed in writing of any loss or unintentional revelation of an item likely to allow a third party to gain knowledge of the User’s login details, so that these can be changed.
2-3. Obligations of the User
The User undertakes, following activation of their access code, to use PRESTIGE MLS in accordance with the stipulated conditions, notably:
• To identify the staff of their agency by creating individual user accounts with a photo.
• To check the accuracy of the information entered in the data base and to comply with the standards for information input set out by PRESTIGE MLS, notably:
- To provide a minimum of 4 photos in a minimum format of 1024 x 768 pixels per property
- To provide presentation texts for properties in English
- To regularly update information on listed properties (price reductions, negotiations underway, properties withdrawn, properties sold, etc).
All data published on PRESTIGE MLS by Users is subject to moderation by PRESTIGE MLS, notably in relation to the observance of the above mentioned stipulations. PRESTIGE MLS reserves the right not to publish advertisements which do not comply.
The User also undertakes, following the signature of the contract, to provide PRESTIGE MLS with:
• Their agency’s logo in a minimum format of 200 x 150 pixels.
• A text describing and presenting the agency in English. (Word format, minimum of 250 characters)
• If the logo or the text describing the agency provided by the User does not correspond to the format or quality standards set out by PRESTIGE MLS, the latter reserves the right to refuse their publication.
• A record of properties sold by the agency during the past (2) years. This information is used by PRESTIGE MLS solely for the compilation of anonymous statistical surveys for distribution to members of PRESTIGE MLS Club.
Finally the user expressly undertakes to comply and to ensure that their employees comply with the stipulations and obligations of the PRESTIGE MLS Commitments Charter in its present and future forms.
2-4. Contractual modifications
The contractual documents, that is to say these general terms and conditions of use, are liable to be modified by PRESTIGE MLS at any moment. To come into effect, these contractual modifications must be accepted and agreed to on the online platform by the user. If the modifications are substantial, the User will have the option of terminating the contract with PRESTIGE MLS. To do this they must send PRESTIGE MLS a letter by registered post with request for acknowledgement of receipt in the 15 days following the online publication of the new contractual conditions.
2-5. Right to suspend the contract
In the event of non-observance by the User of any of their obligations, PRESTIGE MLS reserves the option to suspend all or part of the services or functionalities of PRESTIGE MLS until the User corrects the breach of contract. Notice of the suspension will be sent by registered letter with request for acknowledgement of receipt and will take effect ten (10) days after the said letter has been sent. The User acknowledges their obligation to accept the detrimental consequences of this situation.
3. LICENCE TO USE THE SYSTEM
PRESTIGE MLS grants the User non exclusive and non transferable right of use to PRESTIGE MLS and its updates for the benefit of their licensed representatives, their staff and their sales personnel, they are expressly forbidden from:
- The permanent or temporary reproduction of PRESTIGE MLS, either in whole or in part, in any shape or fashion, apart from eventualities provided for in law;
- Translating, adapting, correcting, exporting or merging PRESTIGE MLS with other computer applications.
- Copying PRESTIGE MLS in any way either in whole or in part.
The contract does not grant any intellectual property right over PRESTIGE MLS which remains the entire and exclusive property of PRESTIGE MLS. PRESTIGE MLS is likely to evolve and be improved, notably in regard to its functionalities and ergonomic qualities etc. The User will be informed online by email while they are using the platform of any updates to PRESTIGE MLS.
The User undertakes, during the performance of this contract and during the two (2) years following its expiration, to keep strictly confidential any information concerning PRESTIGE MLS and the expertise pertaining to it of which they have knowledge. Information in the public domain is excluded from this obligation.
Details of subscription fees to PRESTIGE MLS are given in the special conditions detailed on the subscription form signed by the User and/or in the profile in the User’s account.
The prices are subject to review at the beginning of every year in accordance with the INSEE consumer price index.
5. CONDITIONS AND TERMS OF PAYMENT
Payment should be made in the fifteen (15) days following the presentation by PRESTIGE MLS of the invoice in question, issued at least fifteen (15) days before the start of the period in question. Following payment of the first annual fee the User will be given their access code for PRESTIGE MLS. Where payment is made on a monthly basis, the amount of the monthly payment will correspond to one twelfth of the annual subscription, and must be paid electronically. Only one invoice will be issued annually. The same method applies to three monthly or deferred payments.
Any late payment will incur late payment interest equal to twice (2 times) the legal rate of interest. Moreover, in the event of a payment being more than thirty (30) days late, PRESTIGE MLS may suspend access to PRESTIGE MLS or terminate ipso jure this contract at the fault of the User (or apply the two measures successively) in accordance with the conditions set out in article 2 relative to suspension and article 8 regarding termination.
6. LENGTH OF THE AGREEMENT
This contract comes into effect on the date when the User is given the access code to PRESTIGE MLS. Without prejudice to the cancellation conditions set out elsewhere, it will be valid for a period of one (1) year, on the same day and month. It is tacitly renewable for one (1) year periods, unless one of the parties notifies the other party by registered letter with acknowledgment of receipt of its decision to terminate this contract at the end of the initial period or of a one year period at a later date on condition that three (3) months prior notice is given.
7. MAINTENANCE OF THE SYSTEM
Being bound to obligations of means and not of result, PRESTIGE MLS undertakes to provide access to PRESTIGE MLS seven (7) days per week and twenty-four (24) hours per day, except during periods of maintenance and any breakdowns which may occur.
The User will be informed by email twenty-four (24) hours in advance of any interruption for maintenance work which is likely to last longer than two (2) hours. In the event of a breakdown, PRESTIGE MLS undertakes to do its best to ensure that the maximum period of interruption is no greater than thirty (30) days.
During the period of the contract, PRESTIGE MLS will be responsible for the corrective maintenance of PRESTIGE MLS. In the event of a fault occurring in the functioning of PRESTIGE MLS, the User will inform PRESTIGE MLS of this, describing the fault in detail and indicating the circumstances in which it occurred, PRESTIGE MLS will do its best to correct faults within reasonable time periods.
PRESTIGE MLS also reserves the right to terminate ipso jure these terms and conditions, without indemnity, in the event of violation of any of the obligations set out in these terms and conditions, and in particular in the event of non-observance of the stipulations and obligations pertaining to the PRESTIGE MLS Commitments Charter. In this event, and after formal notice being given by registered letter with acknowledgement of receipt and remaining without effect fifteen (15) days after its receipt, access to PRESTIGE MLS will be severed without further notice or indemnity. In all cases, the sum for the period of subscription remains due.
9. RIGHTS RELATING TO INFORMATION AND THE DATA BASE
Except in the cases expressly set out hereafter, the User undertakes not to claim from PRESTIGE MLS any right to the information and data provided by them, even if they are extracts from a data base which belongs to them. As a consequence, PRESTIGE MLS may freely, for any purpose and without limitations as to time period or geographical area:
• Represent, reproduce, modify, adapt, circulate and/or distribute all or part of the Data Base, to which it holds the recognised rights of a data base producer within the meaning assigned by article L.341-1 of the Intellectual Property Code;
• Recognise or grant all or part of these same rights to any authorised third party, in particular to members of PRESTIGE MLS Business Club.
The discontinuance of these terms and conditions for whatever reason and without effect on the rights held by PRESTIGE MLS (and any third party appointed by PRESTIGE MLS) to the information, from the moment when they form part of the Data Base created by PRESTIGE MLS.
In respect of the content of the Data Base created by PRESTIGE MLS, the User benefits, during the period of the present contract, from extraction rights, as defined in article L. 342-1 of the French Intellectual Property Code, to the data of their colleagues. They are forbidden however from supplying this data to third parties other than members of the PRESTIGE MLS Business Club and/or third parties involved in the business of advertising property to the general public. The User will retain the right to use his own data as he wishes.
PRESTIGE MLS will not take responsibility for any immaterial damage which may be caused to the User following the non-execution or wrong execution of these general and particular conditions, such as notably: lost profit, loss of business, pecuniary loss or damage to commercial image. In addition, PRESTIGE MLS may not be held responsible for interruptions of access to PRESTIGE MLS or injuries linked to:
• An act of God;
• The absence or failure of electric power;
• Abnormal use or non observance of PRESTIGE MLS procedures of use;
• The intrusion or fraudulent maintenance by a third party of a virus in the system, despite the implementation of security measures compliant with the technology.
The User assumes sole responsibility for the direction and management of their company. As a consequence, they retain exclusive responsibility for the management and for the results of their business activities, for keeping accounts and for observing the legal and regulatory obligations incumbent on them, notably in fiscal matters.
As a consequence PRESTIGE MLS may in no event be held responsible in the event of failure on the part of the User to meet their legal and regulatory obligations.
In any event, the total and accumulated responsibility which PRESTIGE MLS is liable to incur as part of this contract is limited to a sum equal to the annual price excluding tax of the PRESTIGE MLS offer.
11. EVIDENCE – ASSIGNMENT OF JURISDICTION
11-1. Evidence: Pursuant to article 1316-1 of the French Civil Code, the files, data, messages and computerised registers stored in the computer systems of both parties will be accepted as evidence of communications and agreements made between the parties, on condition that the party from whom they originated can be identified and that they can be substantiated and stored in conditions of a nature to guarantee their integrity.
Storage will be presumed, in the absence of evidence to the contrary, to have taken place in conditions of reasonable security if the files, messages, data and documents are systematically saved on a durable and unalterable media.
11-2. Assignment of jurisdiction: The parties agree that any disputes which may arise between them relative to the formation, validity, execution and/or interpretation of these terms and conditions and of any possible amendments to them which cannot be resolved amicably will be brought before the Commercial Court of Nice (France) to whom the parties assign territorial jurisdiction whatever the place of enforcement or residence of the defendant. By the express agreement of the parties this clause also applies in the event of emergency interim proceedings, of multiple defendants or of third party complaint.