XPLS Pro, Inc. websites (collectively, “Sites”) “We”, “Our” and “Us” currently refers to XPLS Pro, Inc. (“XPLS”) terms of service (“Agreement”) constitute a binding contract made by and between XPLS, and you (the “Subscriber”, the “Agent”). This Agreement describes your rights and responsibilities when using any of the Sites or any current and future services, products, information, applications, APIs (as defined below), software and/or data provided by Us on the Sites (collectively, “Services”) or downloading, installing or using Our iPhone or Android applications (the “Applications,” and together with the Sites, Services and Materials (as defined below), (the “XPLS Offerings”).
Subscriber/Agent hereby agrees to the following terms and conditions:
BY USING ANY OF THE XPLS OFFERINGS AND/OR BY CLICKING THE CHECK BOX INDICATING THAT YOU ACCEPT THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THE TERMS OF THIS AGREEMENT.
This Agreement forms a binding contract between you and Us and you must agree to this Agreement, in its entirety, in order to use the XPLS Offerings. The XPLS offerings are only available for use by valid business entities, including sole proprietorships. The terms “you” and “your” refer to the business entity that you represent. You represent and warrant that you have the authority to bind that entity
Non-Exclusive Software License
Upon receipt of the required monthly subscription fees, XPLS grants Subscriber a limited, revocable, non-exclusive license to use the XPLS Offerings subject to your compliance with the terms of this Agreement and the “Activities That Are Not Allowed” section below. XPLS Offerings which require registration must be used solely by the non-consumer institutional end-user named during the registration process for your own internal business use, and you will not permit any other party or entity, for any reason, to use said Services on your behalf. The XPLS Offerings are provided for your informational purposes only. You have no other rights in or to the XPLS Offerings. You agree to cooperate and comply with all investigations of abuse, complaints, third party infringement or any other unauthorized use of the XPLS Offerings. You agree to use the XPLS Offerings in compliance with all applicable privacy, data protection, credit and other laws, statutes, and governmental regulations. This Agreement shall commence on the date payment is made and continue for one calendar month, after which shall automatically renew for successive one-month renewal terms until terminated by either party.
Monthly subscription fees are to be paid in advance and are non-refundable, even if the Subscriber cancels mid-month or does not make use of the software. Subscriber alone is the authorized user of the software and Subscriber may not allow any other person or entity (“Unauthorized Users”) to make any use of the software, Subscribers own authorized sub-users who review and agree to these same terms. XPLS reserves the right to, at a later time, restrict the maximum number of Subscriber’s sub users.. Subscriber must immediately report to XPLS any use or attempted use of the software by any Unauthorized Users. Subscriber may not, at any time, resell or re-license the software to any Unauthorized User. Upon termination by either party, this license shall immediately terminate and Subscriber shall make no further use of the software
Activities That Are Not Allowed
Except as otherwise specifically permitted in this Agreement, Subscriber may not:
(a) modify or create any derivative works of any software, service or documentation, including translation or localization (code written to published APIs (application programming interfaces) for the software shall not be deemed derivative works);
(b) sublicense or permit simultaneous use of the software by more than one user;
(c) reverse engineer, decompile, or disassemble or otherwise attempt to derive the source code for any software related to the software (except to the extent applicable laws specifically prohibit such restriction);
(d) redistribute, encumber, sell, rent, lease, sublicense, use the software in a timesharing or service bureau arrangement, or otherwise transfer rights to any software; (e) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the software; (f) publish any results of benchmark tests run on any software to a third-party without prior express written consent from XPLS.
(g) stalk, harass, or harm another individual; In a manner that violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law;
(h) impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity;
(i) Use the XPLS
(i) as a factor in establishing an individual’s eligibility for credit, insurance, or employment;
(ii) in connection with a determination of an individual’s eligibility for a license or other benefit granted by a governmental authority;
(iii) in connection with underwriting individual insurance or coupled with alternative insurance approaches; or
(iv) in a way that would cause the Services to constitute a “consumer report” under the Fair Credit Reporting Act, 15 U.S.C. Â§ 1681 et seq. or similar statute, or by any other authority having jurisdiction over the parties.
(j) Use of the XPLS Offerings in any advertisements or marketing campaigns (“Advertisements”) that violate the proprietary or intellectual property rights of anyone or that contain any content, information or material which is discriminatory, profane or obscene or illegal in the United States or other countries to which an Advertisement is being sent;
(k) Use the XPLS Offerings for any purposes other than as stipulated in this agreement (l) Transfer possession, right or title of or to the XPLS Offerings to any person or entity and/or for any other purposes whatsoever;
(m) To use any data mining, scraping, robots, or similar data gathering or extraction methods in connection with the XPLS Offerings; (n) Share the XPLS Offerings with any end user, parent, subsidiary, affiliate or other third party, including any third parties involved in any joint venture or joint marketing arrangements;
The software license shall immediately and automatically be suspended if at any time, Subscriber defaults under its obligations under this Agreement or for nonpayment. XPLS also reserves the right to terminate Subscriber’s account at any time in its sole discretion if the company reasonably feels that the Subscriber’s account for any reason whatsoever.
XPLS will assume no obligation to maintain records related to the Subscriber’s campaign or this agreement.
Best Efforts of the Subscriber
Each Subscriber warrants to the business that at all times, he/she shall faithfully, honestly, competently, and diligently perform its obligations to pursuant to the agreement hereunder,. By agreeing to this statement, the Subscriber also avers that he/she maintains an undivided Fiduciary Duty of Loyalty to XPLS (“the business”). . Such an avowal by the Subscriber is material to business in agreeing to undertake the terms of the agreement contemplated hereunder.
- Duty to Devote Time
Each Subscriber will devote such time and attention to the business in order to promote the interests of XPLS, as XPLS and Subscriber both agree that they maintain a mutual interest in doing so.
- Monthly Quota
It is agreed upon by the parties that the Subscriber shall agree to sign up and/or close a minimum of three deals each month from the XPLS Offerings or the equivalent of $600,000 within a thirty calendar day period. XPLS defines a deal as one whose projected amount of preliminary surplus is not reduced, encumbered or in any way spoken for by any lienholder, successor in interest, or interested party in an amount not to exceed fifty per cent (50%) of the projected amount of surplus proceeds. Failure to maintain a monthly quota will result in a temporary suspension of website privileges and participation as Subscriber with XPLS for a period not to exceed fifteen days. In that time, XPLS by and through its representatives shall engage the subscriber in a meaningful meet and confer to identify the problem and discuss a constructive solution. If the source of the problem arises from the competency of Subscriber to perform its obligations, Subscriber shall take fifteen days to rehabilitate himself/herself so as to cure the default. At the expiration of the fifteen day period the Subscriber fails to prove his/her rehabilitation to the satisfaction of XPLS, XPLs shall reserve its rights to terminate the Subscription and revoke any and all privileges associated hereto.
- Equal Access to Leads
Each Subscriber shall have equal access to leads as well as an equal opportunity to compete for the leads so as to maximize its chances to achieve its goals. Each lead shall be posted on the website and timely distributed randomly amongst the Subscribers. Each Subscriber shall have a period of 24 hrs (8 am to 8 am the next day) to ‘close’ and sign up the lead after an initial consultation. Failure of the Subscriber to close the lead shall result in automatic forfeiture of that opportunity, and the lead shall be returned back to the XPLS Lead Portal and recirculated.
- Live Transfer. The Subscribers are strongly encouraged to reach out to XPLS Pro for guidance on files. Any deal that is transferred to XPLS Pro for purposes of closing by our staff shall be considered a Live Transfer. Any live transfer shall automatically be subject to the subscriber’s splitting of commissions subject to the terms of paragraph 5 of heading below.
- Commissions – If a subscriber closes one file in a calendar month, that person/entity shall be entitled to 18% commission. If the subscriber closes two files in a calendar month, that person/entity shall be entitled to 25% commission. If the subscriber closes three or more files in a calendar month, that person/entity shall be entitled to 50% commission.
No Refund Policy
Subscriber’s monthly subscription fees payment obligations, and any other fees associated with the services provided are not refundable.
Compensation for Files that Successfully Payout
The parties agree that for every file that is closed by the subscriber and successfully pays out, subscriber shall receive a commission of 50% of the net payout. Net payout shall be defined as percentage collected per the written agreement with client
Compliance with Law
XPLS is merely a passive technology provider and common carrier. Subscriber is required to use the software in full compliance with all applicable laws and regulations, including without limitation, all state, federal and international:
(1) Do-Not-Call & Do-Not-Text (“DNC”) registry prohibitions;
(2) licensing and bonding requirements;
(3) consumer cancellation rights;
(4) mandatory disclosures;
(5) cell phone restrictions;
(6) text messaging restrictions;
(7) opt-out rules;
(8) call recording laws;
(9) record retention requirements; and
(10) direct mail rules and best practices;
(11) Telephone Consumer Protection Act (TCPA);
(12) Federal Trade Commission (FCC);
(13) Applicable real estate professional licensee rules of conduct;
(14) all other applicable laws and regulations. All XPLS Offerings are void where prohibited by law. XPLS does not assume responsibility for ensuring that Subscriber’s campaigns meet applicable legal requirements. XPLS will not assume any liability if the Subscriber is ever held guilty or liable for any law violation. Notwithstanding the foregoing, Subscriber acknowledges that XPLS has and is taking active steps to ensure the compliance of its customers, including Subscriber agreeing to these terms.
The subscriber acknowledges and agrees that it must honor all opt-outs and consent revocations received and is solely responsible for doing so.
No Legal, Financial, or Tax Advice Provided
No financial, legal, or tax advice or counsel is given, or shall be deemed to have been given by XPLS or its affiliates and contractors, or by the software.
Subscriber shall assume, pay, indemnify, hold harmless, and reimburse XPLS and its owners, employees, agents, affiliates, contractors, successors and assigns for any and all liabilities, damages, claims, suits, settlements, judgments, costs, and expenses (including reasonable attorney’s fees and court costs) directly or indirectly incurred by XPLS to the extent the same are related in any way to Subscriber’s use of the software or which are primarily attributable to the negligence or intentional acts or omissions by Subscriber, Subscriber’s owners, officers, employees, agents and representatives, including any authorized or unauthorized users. Notwithstanding the foregoing, nothing contained herein shall release XPLS from any liability for its own gross negligence, except as allowed by law
Subscriber warrants that it shall keep and maintain all electronic records, detailed client notes, confidential client information, accurate, complete, and detailed books of the day to day operations under the terms of its license
1. XPLS Shall Retain Exclusive Control Over Handling of Client Files Once Closed
by the Subscriber
Subscriber further warrants that he/she shall use the exclusive support services, which include but are not limited to data entry, phone and messaging services, technical support, and document preparation of XPLS (its agents, successors, and assigns). Such a failure to use the exclusive services of XPLS (its agents, successors, and assigns) shall be deemed a Breach of Subscriber’s Fiduciary Duty of Loyalty and Competence; shall constitute a breach of the agreement, and be per se ground for termination of the agreement forthwith. Such an avowal by the Subscriber is material to XPLS in agreeing to undertake the Granting of a License contemplated hereunder.
All client funds, revenues, and/or profits generated shall be handled exclusively through the main office located at 201 N Brand Blvd Suite 200 Glendale, CA 91203. XPLS shall be responsible for all communications, notation of files, and discussions after the Subscriber closes the client lead.
2. Subscriber Shall Not Interfere Directly/Indirectly with Efforts of XPLS
Any attempt by the Subscriber to interfere with or divert for unauthorized use: clients; funds, revenues, and/or profits; the day-to-day operations of the business; electronic records, detailed client notes, confidential client information shall be deemed a Breach of Subscriber’s Fiduciary Duty of Loyalty and Competence; shall constitute a breach of the agreement, and be per se ground for termination of the agreement forthwith. Subscriber further avers that he shall subject himself without any delay, objection, or resistance to any periodic or random audits. Such a failure to submit to audit shall be deemed a Breach of Subscriber’s Fiduciary Duty of Loyalty and Competence; shall constitute a breach of the agreement, and be per se ground for termination of the agreement forthwith.
Limitation of Liability
- Neither party shall be liable for any consequential, incidental, special, or indirect
damages (including, but not limited to, loss of profits, goodwill, use, data, or other
intangible items) even if the other party has been advised of the possibility of
such damages or losses. With respect to any other damages, XPLS’ liability
hereunder shall in no event exceed an amount equal to the amount actually paid
by Subscriber to XPLS in the month prior to a claim being made, regardless of the
basis for the claim. Subscriber understands that this is a significant limitation on
Subscriber’s right to sue XPLS, and Subscriber should not proceed if Subscriber
does not agree. XPLS shall not be bound by any typographical or other error or
misprint in its marketing materials or online purchase websites so long XPLS
provides prompt notice of any such error and corrects the same
- Limitation of types of damages. XPLS and its parents, subsidiaries, affiliates,
licensors, and contractors and their respective officers, directors, employees,
shareholders, and agents will not be liable for any indirect, special, incidental,
punitive, or consequential damages, including but not limited to, lost profits, lost
time, lost data, lost use, or damages to goodwill, whether in contract, tort
(including negligence), strict liability, or otherwise, regardless of whether any
member of the XPLS was advised of the possibility of such losses or damages or
such losses or damages were otherwise foreseeable.
- Limitation of liability for the website and trials. With respect to your use of the
website or your engaging in a subscription you forever release and hold harmless
XPLS from any and all liability and responsibility for any amount or kind of loss or
damage that may result to you or a third party in connection with the website in
any way or in connection with the use, inability to use, or the results of use of the
website, any other websites linked to the website or the material on such other
websites, including but not limited to loss or damage due to viruses that may
infect your computer equipment, software, data, or other property on account of
your access to, use of, or browsing the website or your downloading of any
material from the website or any other websites linked to the website. You are
responsible for taking precautions to ensure that the process which you employ
for accessing the website does not expose you to the risk of viruses, malicious
computer code, or other forms of interference which may damage your own
Except as otherwise provided herein, THE SERVICES AND LICENSE ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. IN NO EVENT SHALL XPLS OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF XPLS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. XPLS cannot be responsible if Subscriber makes changes, misuses, or tampers with the software or hardware after Subscriber receives them. Any installation of other software or changes by Subscriber may void the warranty; any tech support required because of virus contamination will be at Subscriber’s expense at the rate of up to $500 per hour. This warranty and the obligations and liabilities of XPLS are in lieu of, and Subscriber waives, all other warranties, guarantees, conditions, or liabilities, expressed or implied, arising by law or otherwise, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, and further including without limitation consequential damages, whether or not caused by XPLS’ negligence. This warranty shall not be extended, altered, or varied except by a written agreement signed by XPLS and Subscriber. XPLS is not responsible for any failure of a DNC or wireless list provider to deliver its data accurately, completely, or in a timely way. XPLS is not responsible for damages resulting from improper or incomplete use by Subscriber of XPLS’s products and services.
“XPLS” and all related trade and service marks are and shall remain the exclusive intellectual property of XPLS and Subscriber specifically acknowledge that this Agreement does not confer upon the other party any interest in or right to use any trademark or service mark of the other party or its affiliates, unless the party wishing to use a trademark or service mark receives the prior written consent of the owning party, which the owning party may grant or withhold in its sole discretion. Subscriber acknowledges that the software is protected by state, federal, and international copyright laws and treaties, and Subscriber hereby prospectively waives any challenges to the existence, ownership and enforceability of the same.
By this Agreement, no partnership, joint venture, independent contractor, or ownership relationship is formed beyond that of a product Subscriber and Seller, and that of a software licensor and licensee.
Choice of Law
This Agreement shall be governed by and construed according to the laws of the State of California, without giving effect to normal choice-of-law and conflict-of-law principles. Except for a suit by XPLS to collect the purchase price or other fees owed by Subscriber pursuant to the Agreement, the parties agree that a party asserting any claim or dispute regarding this Agreement shall file and litigate such claim/dispute only in Superior Court of State of California – In and For County of Los Angeles – Stanley Mosk Courthouse – 111 N. Hill Street Los Angeles CA
Other Important Disclaimers
Subscriber is not purchasing a “franchise”, “business opportunity”, “strategic or targeted marketing plan”, or “exclusive territory” from XPLS. Subscriber understands that computers and telecommunications are complex, and that it may take time, effort, and skill to install, understand, and operate the same. Subscribers must allow ample time to receive, set up, test, and understand his/her system before advertising or going online to the public. Subscriber is aware that there is a wide variety of computer hardware and software, as well as telephone companies and equipment. For this reason, XPLS does not warrant that its products will function in every environment. It is the Subscriber’s responsibility to obtain the necessary computer equipment to operate these products. It is the Subscriber’s responsibility to become aware of the cost and availability of telephone and electrical requirements. Subscriber is responsible for any business and miscellaneous expenses necessary to operate these products, including telephone service, advertising, computers, etc. XPLS will not be liable for these expenses for any reason. Even though Subscriber’s system may be designed to operate 24 hours a day, Subscriber should be aware that the system may be out of service periodically for backups, maintenance, improvements, or difficulties such as power outages, telephone line problems, hardware/software malfunctions, carrier outages, etc. XPLS will not be liable for any lost revenue, lost profits, advertising, or additional expenses due to loss of data, hardware/software problems, failure of the system (or phone carriers) to successfully record calls, or for any reason. Subscriber is aware there will be limitations as to the size of the software applications and to the number of telephone lines that can be used, due to hardware and software limitations. XPLS does not make any claims or guarantees that Subscriber will bring in any revenue or operate any profitable services or businesses by using the software or hardware sold by XPLS. The success of the Subscriber will be affected by many factors, including, but not limited to, his or her efforts and competence. Subscriber is responsible for the security of its own systems and data and for obtaining its own applicable insurance.
The purchaser is required to obtain and maintain a sufficient browser and bandwidth in order to use the services. Subscriber must provide a high-speed internet connection for training, updates, and technical support. The Subscriber is responsible for Network Configuration, Antivirus, Router and Firewall, Installation, Configuration, and Setup. SIP Carrier testing is required. Minimum Requirements are subject to change at any time. XPLS cannot be responsible if Subscriber makes changes, misuses, or tampers with the software or hardware after Subscriber receives them.
The subscriber is responsible for paying all fees and applicable taxes associated with
the monthly subscription. If Subscriber’s payment method fails or the account is past
due, XPLS may collect fees owed using other payment methods on file, and add a
service fee of fifty dollars ($50) per month the fee remains unpaid. If at any time
Subscriber defaults under this agreement for non-payment or otherwise, the software
license shall immediately and automatically terminate until such time as Subscriber’s
account is current and all sums payable become immediately due.
Consent for Marketing-Related Contact
Further, Subscriber understands that by signing below, Subscriber is giving XPLS and its
employees permission to contact Subscriber at the telephone number and email
address Subscriber has provided, regardless of any registration with state or national
DNC lists. This includes the possible use of automated telemarketing systems, SMS
technology, emails, as well as prerecorded messages. Communications will be used for
informational and marketing purposes. Standard messaging rates apply. By signing
below, the Subscriber expressly and affirmatively consents to receive such contact.
Default and Termination
XPLS shall have the right, at its option, to terminate this Agreement and all rights
granted to the Franchise hereunder, without affording the Subscriber the opportunity to
cure any default (subject to any state laws to the contrary, where state law shall prevail)
effective upon receipt of by the Subscriber upon the occurrence of any one of the
- Failure to Meet Quota Requirements
- Interference (Negligent or Intentional) of the Contractual Relations of the
- Insubordination by the Subscriber to XPLS under the terms of this agreement
- Mismanagement of Funds /Attempts to Divert Funds of the Business or its
Clients (exclusively handled by the main office)
- Failure of the Subscriber to follow guidelines and directions concerning the XPLS’
- Unauthorized Disclosure
- Repeated Non-Compliance with the rules and Edicts of XPLS
- Failure to Maintain Books, Records, Client Notes, Client Information
- Failure to Submit to Audit
Subscriber recognizes that XPLS has, and will have information, and retain exclusive
ownership and control regarding the following:
- product design
- technical matters
- trade secrets
- customer lists
- business affairs
- future plans
Lastly, XPLS shall retain ownership and control over other vital information items
(collectively, “Information”) which are valuable, special and unique assets of XPLS.
Subscriber agrees that he/she will not at any time or in any manner, either directly or
indirectly, divulge, disclose, furnish make accessible or communicate any Information to any third party without the prior written consent of XPLS. Subscriber will protect the
Information and treat it as strictly confidential. A violation by Subscriber of this
paragraph shall be a material violation of this Agreement; shall be grounds for
termination of agreement, and will justify legal and/or equitable relief.
This Agreement is in compliance with the Defend Trade Secrets Act and provides civil or
criminal immunity to any individual for the disclosure of trade secrets: (i) made in
confidence to a federal, state, or local government official, or to an attorney when the
disclosure is to report suspected violations of the law; or (ii) in a complaint or other
document filed in a lawsuit if made under seal.
Unauthorized Disclosure of Information
If it appears that Subscriber has disclosed (or has threatened to disclose) Information in
violation of this Agreement, XPLS shall be entitled to an injunction to restrain Subscriber
from disclosing, in whole or in part, such Information, or from providing any services to
any party to whom such Information has been disclosed or may be disclosed. XPLS
shall not be prohibited by this provision from pursuing other remedies, including a claim
for losses and damages, attorneys’ fees and costs incurred while seeking to enforce