Using the Services and Materials – FOR BUSINESS USE ONLY
Certain information, features, and applications provided on and through this Sites, including text, content, data, information, advertising, logos, graphics, images and any other content and materials that are not Submissions (as defined below) (together, the “Materials”) are provided to you by Us and are the copyrighted and/or trademarked work of Ours or Our licensors.
We grant you a limited, individual, non-exclusive, non-transferable and completely revocable license to use the Services and Materials, subject to your compliance with the terms of this Agreement and the “Activities That Are Not Allowed” below. Services 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. Services and Materials are provided for your informational purposes only. You have no other rights on the Sites or any Materials. You agree to cooperate and comply with all investigations of abuse, complaints, third party infringement or any other unauthorized use of the Services and/or Materials. You agree to use the Services and all data, information, and other Materials in compliance with all applicable privacy, data protection, credit, and other laws, statutes, and governmental regulations.
Activities That Are Not Allowed
Unauthorized use of the Services may result in the violation of various United States and international copyright laws or other laws. You are not authorized to use the Services in any of the following ways (these are examples only and the list below is not a complete list of everything that you are not permitted to do):
-To 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;
-To impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity;
-Use the Services: (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. § 1681 et seq. or similar statute, or by any other authority having jurisdiction over the parties;
-Use the appended phone and email address data that We make available to you (“Appended Data”) 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, obscene, or illegal in the United States or other countries to which an Advertisment is being sent;
-Use the Appended Data for any purposes other than for your own marketing and management purposes, or to transfer possession, right or title of or to the Appended Data to any person or entity, or for any other purposes whatsoever;
-To use any data mining, scraping, robots, or similar data gathering or extraction methods in connection with this Site;
-Share the Services with any end user, parent, subsidiary, affiliate or other third party, including any third parties involved in any joint venture or joint marketing arrangements;
-Disclose, use, disseminate, reproduce, publish, copy, transfer, merge, sell, transmit, email, convey, assign, sublicense, extract, distribute, redistribute, repost, display, reformat, or combined for any purpose in any medium, form or manner, any portion of the Services in any manner or permit the same, including but not limited to for any commercial purpose ;
-Process or combine any portion of the Services or permit any portion of the Services to be processed or combined with other data or software from any other source;
-Use the Services to create, enhance or structure any database for resale or distribution;
-Use the Services to create derivative products;
-Copy, modify, adapt any application programming interface (“API”s) provided by Us or any code that comprises the Sites’ software, or to reverse engineer, alter, enhance, decompile, reverse assemble, modify or attempt to discover any source code used to generate the Sites or provide the Services, or to insert any code or product to manipulate the content on the Sites in any way that affects any user’s experience;
-Disassemble, decompile, or reverse engineer any portion of the Services.
-For any public or commercial purpose which includes use of this Site on another site or through a networked computer environment;
-In a manner that modifies, publicly displays, publicly performs, reproduces or distributes any of this Site;
-To interfere with or disrupt this Site or servers or networks connected to this Site; or
-Attempt to gain unauthorized access to any portion of this Site or any other accounts, computer systems, or networks connected to this Site, whether through hacking, password mining, or any other means.
-When using the Services and/or the Materials, you must comply with applicable laws, including without limitation the Telephone Consumer Protection Act (TCPA), Telemarketing Sales Rule (TSR), and the Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM), and analogous state laws. Phone numbers provided by Us may be subject to state and federal do not call regulations depending on your use and compliance with those regulations is solely your responsibility.
We may report to law enforcement authorities any actions that may be illegal, and investigate any reports it receives of such conduct. When legally required or at Our discretion, We will cooperate with law enforcement agencies in any investigation of alleged illegal activity arising from use of the Site or Services.
We Do Not Offer Personal or Professional Advice
These Sites and the Materials, Submissions and Third-Party Content (all as defined below) contained on this Site are available just for the purpose of providing general information on properties, property owners, property occupants, and other related issues. You should not rely on these Sites and the information and resources contained on these Sites as a replacement or substitute for any professional, financial, legal or other advice or counsel. We make no representations and warranties, and expressly disclaims any and all liability, concerning actions taken by a user following the information or using the resources offered or provided on or through these Sites. We will not be responsible for any actions taken or not taken based on the information or resources provided on these Sites.
If you have a situation that requires professional advice, you should consult a qualified specialist. Do not disregard, avoid or delay obtaining professional advice from a qualified specialist because of information or resources that are provided on these Sites, however, provided.
We may alter the Materials and Services we offer you and/or choose to modify, suspend or discontinue the Sites at any time and without notifying you. We may also change, update, add or remove provisions (collectively, “modifications”) of the terms of this Agreement from time to time. We will inform you of any modifications to this Agreement by posting them on this Site and for users where a login is required, We will ask you to accept the modifications to this Agreement when you next log into your account.
Password Areas of this Site
If you want an account with Us, you must submit the following information through the account registration page on this Site: First and last name; A working email address;
We may, in Our sole discretion, also require additional information to validate your account. You may also provide additional, optional information. In order to sign up for a Free Trial (as defined in the “Subscription” section), you must also provide valid credit card information and enter a valid verification code to confirm your account. Please see the “Subscription” section for additional information on Free Trials. Once you submit the required registration information, we alone will determine whether or not to approve your proposed account. For so long as you use the account, you agree to provide true, accurate, current, and complete information which can be accomplished by logging into your account and making relevant changes directly, or by contacting us. If you forget your password, We will send a password update to your provided email address, upon your request. You are responsible for complying with this Agreement when you access this Site, whether directly or through any account that you may setup through or on this Site. Because it is your account, it is your job to obtain and maintain all equipment and services needed for access to and use of this Site as well as paying related charges. It is also your responsibility to maintain the confidentiality of your password(s), including any password of a third-party site that We may allow you to use to access this Site. Should you believe your password or security for This Site has been breached in any way, you must immediately notify Us.
By registering for an account with Us, you become a “Subscriber” with access to certain password-restricted areas of the Site and certain Services and Materials offered on and through the Site (a “Subscription”). Each Subscription, and the rights and privileges provided to a Subscriber, is personal and non-transferable. All sales and payments of Subscription fees will be in US Dollars.
We offer different Subscription options. We reserve the right to change prices, and features for Subscriptions (but not the price in effect for your then-current Subscription term) at any time, upon notice, and do not provide price protection or refunds in the event of promotions or price decreases.
For any Service that requires registration, you additionally agree to the following terms:
Free Trial— Certain Services may be offered on a free trial basis (a “Free Trial”). You may cancel your Subscription for any reason during the Free Trial period. After the Free Trial period has expired, you will be charged without further notice in full for the selected term, and those charges are non-refundable. You are entitled to no more than one Free Trial and agree not to seek additional Free Trials through multiple or successive registrations, use of aliases or changes in account information, or otherwise. Any use, or attempt to use, the Services through multiple or successive registrations for Free Trials will result in your credit card being immediately charged for said Service. IF YOU SIGN UP FOR A SUBSCRIPTION THAT INCLUDES A FREE-TRIAL PERIOD, UNLESS YOU HAVE CANCELED YOUR SUBSCRIPTION PRIOR TO THE EXPIRATION OF THE FREE TRIAL PERIOD, WE WILL, AUTOMATICALLY CHARGE YOU THE SUBSCRIPTION FEE UPON THE EXPIRATION OF THE FREE TRIAL PERIOD. FREE TRIAL SUBSCRIPTIONS WILL BE CHARGED AT THE REGULAR PRICE IN EFFECT ON THE DATE THE FREE TRIAL PERIOD ENDS.
Auto Renewal— This Agreement commences upon registration and continues initially for one month, or the length of the term selected by you during the registration or order process. We will charge you for your first Subscription fee on the date that We process your order for your Subscription (or if you sign-up for a Free Trial, We will charge you for your first Subscription fee upon the expiration date of the applicable Fee Trial period). UPON COMPLETION OF THE INITIAL TERM, AND UNLESS CANCELED BY YOU PRIOR TO COMPLETION OF THE INITIAL TERM, YOUR ACCOUNT WILL AUTOMATICALLY RENEW WITHOUT NOTICE FOR A TERM EQUAL TO THE INITIAL TERM. IF YOU DO NOT WISH TO RENEW, THEN YOU MUST CANCEL PRIOR TO THE EXPIRATION OF THE INITIAL TERM OR THEN-CURRENT TERM USING ONE OF THE CANCELATION METHODS SET FORTH BELOW. IF YOU CHOOSE TO CANCEL YOUR ACCOUNT AFTER IT HAS AUTOMATICALLY RENEWED FOR AN ADDITIONAL TERM (I.E., YOU DO NOT CANCEL YOUR ACCOUNT PRIOR TO THE EXPIRATION OF THE INITIAL TERM OR THEN-CURRENT TERM), YOU WILL NOT RECEIVE A REFUND FOR THE PRE-PAID SUBSCRIPTION FEE PAID FOR THE TERM, PROVIDED THAT YOU WILL CONTINUE TO HAVE ACCESS TO THE SITE AND THE SERVICES, SUBJECT TO THE TERMS OF THIS AGREEMENT, FOR THE REMAINDER OF THAT THEN-CURRENT TERM. We may change the fees and charges for Services or add new fees and charges from time to time, but will provide advance notice by e-mail, on the Site or in-app message of these changes prior to charging the new fees.
Cancelation— YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME. ALL FEES DUE FROM YOU TO US UP TO THE END OF THE THEN-CURRENT SUBSCRIPTION PERIOD AT THE TIME OF TERMINATION SHALL REMAIN PAYABLE TO US UNLESS OTHERWISE SPECIFIED. YOU MAY CANCEL YOUR SUBSCRIPTION BY EMAILING A CANCELATION REQUEST TO [email protected], PROVIDED THAT CANCELATION MAY NOT BE EFFECTIVE UNTIL ONE (1) BUSINESS DAY AFTER WE RECEIVE YOUR REQUEST.
Termination— We reserve the right to terminate your subscription or your access to the Services at any time or to discontinue or modify any Services, portion or attribute thereof, for any or no reason and with or without notice in Our sole discretion. You agree that your sole remedy for such termination of your access to the Services is to receive a pro-rated refund of the pre-paid subscription fee paid to Us for the then-current term. If you breach any of the terms of this Agreement, any and all license granted under this Agreement will terminate automatically and you must immediately destroy any downloaded or printed Materials (and any copies thereof). We may pursue any and all claims and causes of action it may have against you for violation of this Agreement, including, without limitation, any monetary damages, injunctive relief, court costs and attorneys’ fees.
Payment of Fees— You agree to pay all fees on time and by providing credit card transaction information, you consent to subsequent recurring billing for Services provided by Us on an ongoing basis until canceled. All payments are non-refundable and there are no refunds or credits for partial use of subscription term. You must include your complete billing ZIP code, credit/debit card number, and telephone number in order to process payments. We accept major credit cards, including Visa, MasterCard, American Express and Discover Card. If your credit card expires, is otherwise declined for payment or you otherwise fail to pay Us in a timely manner, access to Services may be terminated or suspended. In the event of termination or suspension, you shall remain responsible for any uncollected amounts.
Consent to Contact— You agree that We may contact you by telephone or email as provided during registration regarding the Services during the term of this Agreement.
Our Role as a Service Provider
FirmCloud is acting as a service provider to you when it provides the Services and Materials. To the extent the Services or Materials involve FirmCloud processing personal information on your behalf, FirmCloud agrees:
-To only process personal information for the purposes of providing the Services and will not retain, use, or disclose personal information for any other purpose or otherwise outside of the direct business relationship between us; and
-Not to sell, rent, release, disclose, disseminate, make available, transfer, or otherwise communicate personal information to any third party for monetary or other valuable consideration (excluding our service providers who are providing services to us).
-We certify that we understand the requirements set forth above.
Not withstanding the foregoing, we may combine personal information received from you with personal information received from other entities to the extent necessary to detect security incidents or protect against fraudulent or illegal activity
unless prohibited by applicable law, de-identify and/or anonymize personal information (with the resulting de-identified or anonymized data (“De identified Data”) and may (subject to any restrictions under applicable law) aggregate such De identified Data, including without limitation aggregation with other information received by us from other customers and from other data sources (collectively, “Aggregated Data”) for the purpose of providing the Services and enhancing the features, functions, and performance of the Services. All De-identified Data and Aggregated Data shall be owned solely and exclusively by us, and you acknowledge and agree that De-identified Data and Aggregated Data cease to be personal information, including without limitation for purposes of this Agreement, and Supplier may, during and after the term of this Agreement, use, reproduce, distribute, sell and otherwise commercialize such De-identified Data and Aggregated Data.
Third Party Content
Certain information and content that are not your Submissions (as defined below) may be provided by third party licensors to Us (“Third Party Content”). The Third Party Content is, in each case, the copyrighted and/or trademarked work of the creator/licensor. Unless you have permission from the owner of the Third Party Content, you agree to only display the Third Party Content on your personal computer solely for your own personal business use. You acknowledge and agree that you acquire no proprietary rights in or to the Third Party Content (which rights remain with Us and Our licensors) and have no right to download, cache, reproduce, sell, publish, use in connection with any product or service of yours, modify, display (except as set forth in this paragraph), edit, alter or enhance any of the Third Party Content in any manner unless you have permission from the owner of the Third Party Content. The Third Party Content is provided on an “as is, as available” basis with all faults and defects. WE, ON BEHALF OF OUR SELF AND OUR LICENSORS DISCLAIMS AND EXCLUDES ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES AND CONDITIONS WITH REGARD TO THIRD PARTY CONTENT, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
Links to Third Party Web Sites
The Sites may be linked to other websites that are not Our Sites (“Third Party Web Sites”) and certain areas of the Sites may allow you to conduct transactions or purchase goods or services from or through such Third Party Web Sites. We are providing these links to you as a convenience, and We do not verify, make any representations or take any responsibility for such linked to Third Party Web Sites, including, without limitation, the truthfulness, accuracy, quality or completeness of the content, links displayed or activities conducted on such Third Party Web Sites. The Third Party Web Sites may have different privacy policies and terms and conditions and business practices than Us. Your dealings and communications through the Sites with any party other than Us are solely between you and such third party. Any complaints, concerns or questions you have relating to materials provided by third parties should be forwarded directly to the applicable third party. YOU AGREE THAT WE WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, RESOURCES OR CONTENT AVAILABLE THROUGH ANY THIRD PARTY WEB SITES AND/OR THIRD PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT, ADVERTISING OR BUSINESS PRACTICES OF ANY THIRD PARTY. Any reference on the Sites to any product, process, publication or service of any third party, by trade name, domain name, trademark, trade identity, service mark, logo, manufacturer or otherwise does not constitute or imply Our endorsement or recommendation.
FirmCloud is a trademark of Us in the United States. Other trademarks, names, and logos on these Sites are the property of their respective owners.
Unless otherwise specified in this Agreement, all information and screens appearing on these Sites, including documents, services, site design, text, graphics, logos, images, and icons, as well as the arrangement thereof, are the sole property of FirmCloud, Copyright © 2022 FirmCloud, Inc. All rights not expressly granted herein are reserved. There are no implied rights. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
You acknowledge and agree that any and all intellectual property rights (“IP Rights”) in and to the Sites, Services, Materials and Third Party Content are and shall remain the exclusive property of Us and Our licensors, as applicable. You are entitled only to limited use of the IP Rights as expressly granted in this Agreement. You will not take any action to jeopardize, limit or interfere with the IP Rights. You acknowledge and agree that any unauthorized use of the IP Rights is a violation of this Agreement and is a violation of intellectual property laws, including, without limitation, copyright laws and trademark laws.
You further acknowledge that the Sites, Services, the Application, Materials, and Third Party Content, including, without limitation, the data provided through the Service, are valuable commercial products, the development of which has involved the expenditure of substantial time and money.
Disclaimer of Warranties
The Services are made available for informational purposes only and not intended to provide commercial, legal, investment or financial advice. The Services (including, without limitation, Third Party Content provided through the Service and that which is available through the use of the Application) may be based upon data that is collected, computed and or modeled from a number of sources, including public records and documents and statistical calculations, and may not be free from inaccuracies, errors or defects. The Services may not take into account such important factors as the condition of the property, current market conditions, title defects or other factors that may significantly affect or impair the quality of information available. Neighborhood and census data, estimated values, loan balances, rent and property data and all other data provided by Us may be subject to errors and omissions and are provided for informational purposes only. The Services may include content supplied by third parties that contain advice, opinions, statements or offers over which We may have no editorial control and do not endorse. We and Our licensors do not guarantee the accuracy, timeliness, availability, reliability, adequacy or completeness of any information, facts, views, opinions, statements or recommendations contained on the Sites or in the Submissions or Third Party Content and are not responsible for any errors, omissions, miscalculations or misrepresentations of value in the information provided through the Service.
NO WARRANTY. WE AND OUR SUPPLIERS PROVIDE THE SITES, THE SERVICES, THE APPLICATION, ANY MATERIALS, SUBMISSIONS OR THIRD PARTY CONTENT OR OTHER INFORMATION PRESENTED ON THE SITES “AS IS,” “WITH ALL FAULTS AND DEFECTS” AND “AS AVAILABLE,” AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND USE IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR SUPPLIERS MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY. WE AND OUR SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, (A) THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, AND QUIET ENJOYMENT (B) WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE, AND (C) WARRANTIES OR CONDITIONS OF UNINTERRUPTED OR ERROR-FREE ACCESS OR USE. WE DO NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.
Limitation of Liability
IN NO EVENT WILL WE OR ANY SUPPLIER BE LIABLE TO YOU FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF, BASED ON, OR RESULTING FROM THIS AGREEMENT, YOUR USE OF SERVICES OR THE APPLICATION OR YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS, THIRD PARTY CONTENT OR SUBMISSIONS TO OR FROM THESE SITES OR THE APPLICATION, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, DATA, REVENUE, USE OR OTHER ECONOMIC ADVANTAGE, WHETHER ARISING FROM CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER CAUSE OF ACTION, EVEN IF WE OR ANY OF OUR SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some states and jurisdictions do not allow the exclusion or limitation of liability, so the above limitations may not apply to you.
THIS LIMITATION IS SEPARATE AND INDEPENDENT OF ANY OTHER REMEDY LIMITATIONS AND SHALL NOT FAIL IF SUCH OTHER LIMITATION ON REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED UNENFORCEABLE.
IN NO EVENT SHALL OUR TOTAL, AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED, WITH RESPECT TO THE SERVICE, THE TOTAL AMOUNT OF SUBSCRIPTION FEES PAID BY YOU TO US IN THE SIX-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM, AND, WITH RESPECT TO THE APPLICATION, THE FEES PAID BY YOU FOR THE APPLICATION, IF ANY.
You agree to fully indemnify and hold Us and any of its officers, directors, employees, affiliates, agents, licensors, business partners or suppliers harmless from and against any and all claims, liabilities, costs, damages and expenses (including attorneys’ fees and costs of defense) that We or any other indemnified party suffers arising out of or relating to your use of the Sites and/or the Services.
Local Laws; Export Control
We control and operate this Site from Our headquarters in the United States of America and the entirety of this Site may not be appropriate or available for use in other locations. If you use this Site outside the United States of America, you are solely responsible for following applicable local laws. The Services are not intended for European Union residents.
Feedback is Welcome
Any submissions by you to Us (e.g., comments, questions, suggestions, materials – collectively, “Feedback”) through any communication whatsoever (e.g., call, fax, email, social media) will be treated as both non-confidential and non-proprietary. Except as prohibited by applicable law, you hereby assign all right, title, and interest in, and We are free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. Where the foregoing assignment is prohibited by law, you hereby grant Us an exclusive, transferable, worldwide, royalty-free, fully paid license (including the right to sublicense) to use and exploit all Feedback as We may determine in our sole discretion. Notwithstanding the foregoing, you understand and agree that We are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
Dispute Resolution and Arbitration; Class Action Waiver
This Provision facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between you and Us. Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to you (such as Our licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against Us in the same proceeding.
This Provision provides that all disputes between you and Us shall be resolved by binding arbitration because acceptance of this Agreement constitutes a waiver of your right to litigation claims and all opportunity to be heard by a judge or jury. We prefer this because We believe arbitration is less drama-filled than litigation. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees). you may, however, opt-out of this Provision which means you would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). THE PARTIES AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give Us an opportunity to resolve the Dispute which is first done by emailing to Us at [email protected] the following information: (1)your name, (2) your address, (3) A written description of your Claim, and (4) A description of the specific relief you seek. If We do not resolve the Dispute within 45 days after receiving your notification, then you may pursue your Dispute in arbitration. you may pursue your dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, your or We may choose to pursue a Dispute in court and not by arbitration if: (a) The dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). you may opt-out of this Provision by emailing Us at [email protected] the following information: (1) your name; (2) your address; (3) A clear statement that you do not wish to resolve disputes with Us through arbitration. Either way, We will not take any decision you make personally. In fact, We promise that your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with Us. But, We do have to enforce the Opt-Out Deadline so keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your dispute in arbitration or small claims court.
If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or We may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because this Site and this Agreement concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – you or We may initiate arbitration in either Sacramento or the federal judicial district that includes your billing address. In the event that you select the latter, We may transfer the arbitration to Sacramento so long as We agree to pay any additional fees or costs which the arbitrator determines you incur as a result of the transfer.
Payment of Arbitration Fees and Costs – So long as you place a request in writing prior to commencement of the arbitration, We will pay all arbitration fees and associated costs and expenses. But, you will still be responsible for all additional fees and costs that you incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if you provide notice and negotiate in good faith with Us as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and We specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of this Site can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
you understand and agree that by accepting this Provision in this Agreement, you and We are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and We might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court.
This Provision shall survive the termination of your account with Us or Our affiliates and your discontinued use of this Site. Notwithstanding any provision in this Agreement to the contrary, We agree that if We make any change to this Provision (other than a change to the Notice Address), you may reject any such change and require Us to adhere to the language in this Provision if a dispute between Us arises.
Local Laws; Export Control
We control and operate these Sites from its headquarters in the United States of America and the Materials, Submissions and/or Third Party Content may not be appropriate or available for use in other locations. If you use these Sites outside the United States of America, you are responsible for following applicable local laws.
Terms which Survive
The proprietary rights, disclaimer of warranties, representations made by you, limitations of liability, assignment, governing law and venue, severability; waiver, and entire agreement provisions shall survive any termination of this Agreement, together with all other terms that by their nature continue and survive.
You may not assign this Agreement or any rights hereunder. We may at its sole discretion assign this Agreement or any rights hereunder to any Affiliate, or any third party, without giving prior notice. Any purported assignment in violation of this restriction is void.
Governing Law and Venue
This Agreement shall be subject to and construed in accordance with the laws of the State of California, excluding its conflict of laws provisions.
If for any reason any provision of this Agreement is determined to be invalid or unenforceable under applicable law, then the unenforceable or invalid provision of the Terms will be superseded by a valid and enforceable provision that most closely matches the intent of the original provision. The remainder of the Terms shall remain in full effect. Our failure to enforce any term of this Agreement is not a waiver of that term. A waiver must be in writing to be effective.
Our suppliers and their suppliers are intended third-party beneficiaries of this Agreement with respect to the use of their data and information and are entitled to directly enforce in their own names the rights and obligations of you and seek all legal and equitable remedies as they or we may have.
The terms and conditions of this Agreement constitute the entire agreement between you and Us with respect to the subject matter hereof and supersede and replace all prior or contemporaneous understandings and agreements, written or oral, regarding the subject matter, including any prior versions of this Agreement.