Last Modified: November 1, 2018
These Customer Terms of Service (these “Customer Terms”) describe your rights and responsibilities when using the mobile and/or web-based software platform and related services (the “Services”) offered by Real Estimate, Inc. d/b/a CREZMA(or its successors or assigns) (“CREZMA”, “we”, “our”, or “us”). These Customer Terms and any Order Form(s) (defined below) together with all documents referenced herein form the “Agreement” between Customer and us.
Please read these terms carefully to ensure you understand each provision. These Customer Terms contain a jury trial waiver provision and a mandatory arbitration provision.
If you access or use the Services, or if you click a button or check a box titled “I Agree” or something similar, you acknowledge your understanding of the then-current Agreement and agree to the Agreement.
Plain language summaries have been provided throughout the Agreement for your convenience to help clarify certain terms. You acknowledge and agree that these plain language summaries are provided as a courtesy only and are not a substitute for reading the Agreement in its entirety.
1. How Our Services Work
The Services are a set of tools to assist stakeholders in the commercial real estate industry. Our stakeholders include commercial real estate brokers, buyers, sellers, lenders, etc. Key aspects of our offering include an online marketplace, property listing page, among others. Ultimately, however, all such transactions are themselves governed by purchase and sale agreements or other transaction documents between buyers, sellers, brokers, and other involved parties (“Transaction Documents”). From time to time we may also provide other paid products and services, such as comparison data reports.
1.2 Relationship between Users and Us
The Services simply offer tools to help you through the commercial real estate purchase/sale process; we are not a party to, nor are we responsible in any manner for, any such transaction, whether or not you use the Services, and we are not licensed real estate brokers.
We have no responsibility for any information provided by third-parties, including but not limited to buyers, sellers, brokers, and other involved parties. Without limiting the generality of the foregoing, each buyer is solely responsible for conducting all necessary due diligence activities regarding any property, which may include title and legal status, current and potential valuations, physical condition and aesthetic/tenant improvement attributes, environmental reports, encumbrances, rent roll and pending lease negotiations, tenant defaults or issues and any other pertinent information. Buyers are encouraged to consult with licensed professionals to review all relevant information, records, and reports. Buyers assume all risk and potential liability related to due diligence activities. We do not verify the completeness or accuracy of any information or materials provided by sellers or brokers.
Any disputes between users of the Services are solely between such users. You acknowledge and agree that we have no obligation or responsibility in connection with any such disputes.
2. General Provisions
2.1 Customers, Authorized Users, and Customer Content
“Customer” or “you” is you, the individual entering into the Agreement on your own behalf or the entity on whose behalf you are entering into this Agreement. If you have purchased a paid membership only you may use your account. You may submit content or information to the Services, which includes Personal Data (defined below) and User Content (defined below) (“Customer Content”). You are solely responsible for all of the acts and omissions of anyone using your account in relation to the Services and the Agreement, including without limitation any Customer Content submitted through such account. The Services are not intended for and should not be used by anyone under the age of 18.
A membership allows you to access the Services. Memberships may be free or paid depending on your relationship with us. Paid memberships allow you to access additional or different features and functionalities, while free memberships provide limited access to the Services. A membership may be procured through the Services interface, or in some cases. Paid memberships commence when we make them available to you. Paid memberships continue for the term specified in the Services or in the Order Form, as applicable (which term may be variable if the Order Form provides for one-time or other limited-time use), and free memberships continue until terminated (in each case, the “Membership Period”).
2.3 Beta Products
Occasionally, we look for beta testers to help us test our new features. These features will be identified as “beta” or “pre-release,” or words or phrases with similar meanings (each, a “Beta Product”). Beta Products are made available on an “as is,” and “as available" basis and, to the extent permitted under applicable law, without any warranties or contractual commitments we make for other Services.
You may choose to, or we may invite you to, submit comments or ideas about the Services, including without limitation about how to improve the Services or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place us under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation, whether to you or anyone else, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of the submission, we do not waive any rights to use similar or related ideas previously known to us, or developed by our personnel, or obtained from sources other than you. For purposes of clarity, we have no obligation to implement or make any changes to the Services based on any Ideas you provide us.
The protection of personal information (hereinafter, “Personal Data”) is important to us. Accordingly, we will maintain reasonable administrative, physical, and technical safeguards designed to protect Personal Data. Those safeguards will include measures for preventing unauthorized access, use, modification, deletion and disclosure of Personal Data by our personnel. Before sharing Personal Data with any of our third party service providers, we will ensure that the third party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of Personal Data and preventing unauthorized access.
We are custodians of Personal Data. During the Membership Period, you will be permitted to export or share certain Personal Data from the Services; provided, however, that Customer acknowledges and agrees that the ability to export or share Personal Data may be limited or unavailable depending on the type of Services plan in effect and the data retention settings enabled.
3. Services Usage and Restrictions
3.1 Our License to You
(a) Ownership of the Services, Documentation, and Company Data
We own and will continue to own our Services and Documentation, including all related intellectual property and other proprietary rights related thereto. Further, you acknowledge and agree that we may collect data relating to your usage of the Services (“Usage Data”) and collect, analyze, and use data derived from User Content that has been aggregated and/or anonymized such that it does not identify Customer or any identifiable individual person (“Derivative Data” and, collectively with Usage Data, “Company Data”). All Company Data will be owned solely and exclusively by us and, for purposes of clarity, you agree that we may use the Company Data in perpetuity for any purpose permitted by applicable law.
We may, from time to time, make available certain third-party products and services, including but not limited to open source software (“Third-Party Products”) for use in connection with the Services. Such Third-Party Products may be made available under separate or additional terms and conditions, including but not limited to open source licenses, which we will make available to you as necessary.
(b) Licenses to the Services and Documentation
During the Membership Period, we grant you a non-exclusive, non-transferable license to access and use the Services, in accordance with the Agreement, for your own internal business purposes.
To the extent that we may make downloadable software components available, via app stores or other channels, as part of the Services, during the Membership Period, we grant to you a non-sublicensable, non-transferable, non-exclusive, limited license for you to use the object code version of these components, but solely as necessary to use the Services. Minor updates, bug fixes, and the like to such downloadable software components will be included under this license during the Membership Period.
From time to time we may make available product documentation for the Services (the “Documentation”) via a method of our choosing (e.g., via the Services). During the Membership Period, we grant to you a non-sublicensable, non-transferable, non-exclusive, limited license for you to use the Documentation to support your use of the Services.
All rights and licenses granted herein are subject to your full compliance with all of the terms and conditions of the Agreement. All rights in the Services and Documentation not expressly granted herein are expressly reserved by us.
3.2 Customer’s Licenses to Us
(a) Ownership of Customer Content
As between us on the one hand, and you on the other, you will own all Customer Content, including, for purposes of clarity, Personal Data and User Content.
(b) License to Personal Data
Subject to the terms and conditions of the Agreement, you grant us a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Personal Data, only as reasonably necessary (a) to provide and maintain the Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law; and (d) as expressly permitted in writing by you.
Notwithstanding the foregoing, you agree that we may collect, analyze, use and disclose, during or after the Membership Period, data derived from Personal Data, which is anonymized and/or aggregated in a manner, that makes the identification of you or any third party impossible, for any business purpose, including without limitation, to operate, analyze, improve, and market the Services and our other products and services and share such anonymized data with our affiliates and business partners. You further agree that we will have the perpetual right to use, store, transmit, distribute, modify, copy, display, sublicense, and create derivative works of such derived data.
(c) License to User Content
With respect to that portion of Customer Content that consists of videos, images, music, comments, questions, documents, spreadsheets, and any other content submitted, posted, or otherwise made available by you through the Services (“User Content”), by submitting, posting, storing, or otherwise making such User Content available through the Services, you hereby grant, and represent and warrant that you have all rights necessary to grant (including without limitation any necessary consents and authorizations from individual persons identified in the User Content and licenses from third-parties whose content is included in the User Content), to us a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, host, store, reproduce, modify, publish, list information regarding, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content, and the names, voice, and/or likeness contained in the User Content, in whole or in part, and in any form, media, or technology, whether now known or hereafter developed, solely for use in connection with our provision of the Services as described in the Agreement and our product documentation. Further, and without limiting the generality of the foregoing, you hereby grant, and represent and warrant that you have all rights necessary to grant, to us a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, host, store, reproduce, modify, publish, list information regarding, translate, distribute, publicly perform, publicly display, and make derivative works of any User Content you provide consisting of information about individual properties, including but not limited to information regarding title and legal status, current and potential valuations, physical condition and aesthetic/tenant improvement attributes, environmental reports, encumbrances, rent roll and pending lease negotiations, and tenant defaults or issues (“Property Information”), and hereby expressly acknowledge and agree that we may sell, license, and otherwise distribute and commercialize such Property Information, whether alone or in combination with other information, to other users of the Services with no duty of any kind to account to you or any third-party for such sale, license, or other distribution or commercialization, and you agree that our making available of such Property Information to third-parties will not be a violation of our confidentiality obligations under Section 9.
To the extent permitted under applicable law, we take no responsibility and assume no liability for any User Content that you or any third-party submits, posts, or otherwise makes available through the Services. As between you and us, you shall be fully responsible for the User Content and the consequences of submitting, posting, or otherwise making it available via the Services, and you acknowledge and agree that we are acting only as a passive conduit for your online distribution of such User Content.
3.3 Responsibilities for Customer Content
We are not responsible for the content of any Customer Content or the way you choose to use the Services to store or process any Customer Content. You represent and agree that you are solely responsible for ensuring compliance with all laws in all jurisdictions that may apply to Customer Content provided hereunder, including but not limited to all applicable international, federal, state, provincial and local laws, rules, and regulations relating to data privacy and security. Unless otherwise agreed to in writing or as expressly permitted herein, you may not submit any Customer Content that includes a social security number, passport number, driver’s license number, or similar identifier, credit card or debit card number, or any other information which may be subject to specific data privacy and security laws including, but not limited to, the Gramm-Leach-Bliley Act (GLBA), the Health Insurance Portability and Accountability Act (HIPAA), the Health Information Technology for Economic and Clinical Health Act (HiTECH), the Family Educational Rights and Privacy Act of 1974 (FERPA), the Children's Online Privacy Protection Act (COPPA), or the GDPR or any other data which is considered to be sensitive or which could give rise to notification obligations under data breach notification laws. We do not make any representations as to the adequacy of the Services to process your Customer Content or to satisfy any legal or compliance requirements which may apply to your Customer Content, other than as described herein.
3.4 Use of the Services
You must comply with the Agreement. We may review conduct for compliance purposes, but we have no obligation to do so. If we believe there is a violation of the Agreement that can be remedied by your removal of certain Customer Content, we will, in most cases, ask you to take direct action rather than intervene. However, to the extent legally permissible, we reserve the right to take further appropriate action, when we deem it reasonably appropriate if you do not take appropriate action, or if we believe there is a credible risk of harm to us, the Services, our other users, or any third parties.
3.5 Acceptable Use
(a) Technical Restrictions
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services in a manner that sends more request messages to the servers hosting the Services than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Services; (vii) collecting or harvesting any personally identifiable information, including account names, from the Services; (viii) using the Services for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Services; (xi) accessing any content on the Services through any technology or means other than those provided or authorized by the Services; or (xii) bypassing the measures we may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein.
Accessing any audiovisual content that may be available on the Services for any purpose or in any manner other than Streaming is expressly prohibited unless explicitly permitted by the functionality of the Services. “Streaming” means a contemporaneous digital transmission of an audiovisual work via the Internet from the Services to your device in such a manner that the data is intended for real-time viewing and not intended to be copied, stored, permanently downloaded, or redistributed by you.
(b) Customer Content Restrictions
You are solely responsible for the content of any Customer Content you submit through the Services. You agree not to submit any Customer Content, including but not limited to any User Content, that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; (viii) contains any information or content that you know is not correct and current; or (ix) to the extent applicable, violates any school or other applicable policy, including those related to cheating or ethics.
You agree that any Customer Content that you submit does not and will not violate third-party rights of any kind, including without limitation any intellectual property rights or rights of privacy. To the extent that your User Content contains music, you hereby represent that you are the owner of all the copyright rights, including without limitation the performance, mechanical, and sound recordings rights, with respect to each and every musical composition (including lyrics) and sound recording contained in such User Content and have the power to grant the license granted below. To the extent legally permissible, we reserve the right, but are not obligated, to reject and/or remove any User Content that we believe, in our sole discretion, violates any of these provisions. You understand that publishing your User Content on the Services is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
4. Term and Termination
4.1 Agreement Term
As further described below, a free membership continues until terminated, while a paid membership has a Membership Period that may expire or be terminated. The Agreement remains effective until all memberships ordered under the Agreement have expired or been terminated or the Agreement itself terminates. Termination of the Agreement will terminate all memberships and all Order Forms.
4.2 Auto-Renewal Memberships and Cancellation
Certain aspects of our Services are available only through paid memberships that automatically renew. MEMBERSHIP RENEWAL FEES WILL BE AUTOMATICALLY CHARGED TO YOUR DESIGNATED PAYMENT METHOD AT THE FEE RATE AND BILLING CYCLE ON YOUR ORDER FORM, UNTIL YOU CANCEL. Unless otherwise set forth in an Order Form, (a) all memberships automatically renew for additional periods equal to one (1) year or the preceding Membership Period, whichever is shorter; and (b) the per-unit pricing during any automatic renewal Membership Period will be the then-current price communicated to you by us. Either party can give the other notice of non-renewal at least sixty (60) days before the end of a Membership Period to stop a membership from automatically renewing. You understand that you must cancel your membership at least sixty (60) days before the Initial Membership Period or then-current Renewal Membership Period, to avoid automatic renewal. You may cancel your membership by using our online cancellation mechanism or sending an email to email@example.com with the subject line “MEMBERSHIP CANCELLATION” and that cancellation will go into effect in at the completion of the Initial Membership Period or the then-current Renewal Membership Period. Prices are subject to change.
YOU HEREBY EXPRESSLY AGREE THAT WE MAY SUBMIT PERIODIC CHARGES WITHOUT FURTHER AUTHORIZATION FROM YOU UNTIL WE RECEIVE WRITTEN NOTICE FROM YOU THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE COULD REASONABLY ACT UPON SUCH NOTICE.
4.3 Free Trials
We may offer free trials of certain memberships for specified periods of time without payment. If we offer you a free trial, the specific terms of your free trial will be provided in the Order Form. ONCE YOUR FREE TRIAL ENDS, WE WILL BEGIN BILLING YOUR DESIGNATED PAYMENT METHOD ON A RECURRING BASIS FOR YOUR MEMBERSHIP (PLUS ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR MEMBERSHIP CONTINUES, UNLESS YOU CANCEL YOUR MEMBERSHIP PRIOR TO THE END OF YOUR FREE TRIAL. INSTRUCTIONS FOR CANCELING YOUR MEMBERSHIP ARE DESCRIBED IN SECTION 4.2 ABOVE. PLEASE NOTE THAT YOU WILL NOT RECEIVE A NOTICE FROM US THAT YOUR FREE TRIAL HAS ENDED OR THAT THE PAID PORTION OF YOUR MEMBERSHIP HAS BEGUN. WE RESERVE THE RIGHT TO MODIFY OR TERMINATE FREE TRIALS AT ANY TIME, WITHOUT NOTICE AND IN OUR SOLE DISCRETION.
4.4 Termination for Cause
We or you may terminate the Agreement on notice to the other party if the other party materially breaches the Agreement and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. We may terminate the Agreement immediately on notice to you if we reasonably believe that the Services are being used by you in violation of applicable law.
4.5 Termination Without Cause
We may terminate the Agreement without cause at any time and for any reason; provided that we will provide you with thirty (30) days prior written notice for paid memberships only. Either party may terminate a free membership at any time by providing the other party written notice.
4.6 Effect of Termination
Upon any termination for cause by you, we will refund Customer any prepaid fees covering the remainder of the Membership Period after the effective date of termination; you will not be entitled to any refund of prepaid fees in any other circumstance (although we may, in our sole discretion, choose to provide you a refund under certain circumstances). Upon any termination for cause by us, you will pay any unpaid fees covering the remainder of the Membership Period after the effective date of termination. In no event will any termination relieve you of the obligation to pay any fees payable to us for the period prior to the effective date of termination.
5. Copyright Policy
Since we respect artist and content owner rights, it is our policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Services, please notify our copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
2. Identification of the copyrighted work that you claim has been infringed;
3. Identification of the material that is claimed to be infringing and where it is located on the Service;
4. Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and,
5. A statement that you have a good faith belief that use of the material in the manner complained of is not
authorized by the copyright owner, its agent, or law; and
6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the
copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice
Real Estimate, Inc.
Addr.: 94 River Street, Hoboken NJ 07030
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying us and our affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with our rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, users who are deemed to be repeat infringers. We may also at our sole discretion limit access to the Services and/or terminate the membership of any user who infringes any intellectual property rights of others, whether or not there is any repeat infringement.
6. Representations; Disclaimer of Warranties
You represent and warrant that you have validly entered into the Agreement and have the legal power to do so, and that you will use the Services in compliance with all applicable laws, rules, and regulations, including without limitation any licensing requirements. ALL INFORMATION PROVIDED VIA THE SERVICES IS FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSTRUED AS PROFESSIONAL ADVICE. NO ACTION SHOULD BE TAKEN BASED UPON INFORMATION PROVIDED VIA THE SERVICES WITHOUT FIRST SEEKING INPUT FROM AN INDEPENDENT PROFESSIONAL WHO IS LICENSED AND/OR QUALIFIED IN THE APPLICABLE AREA. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN TYPES OF WARRANTIES, SO THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU. THE AGREEMENT GRANTS SPECIFIC LEGAL RIGHTS, AND CUSTOMER AND AUTHORIZED USERS MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
7. Limitation of Liability
IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE GREATER OF US $100 OR THE TOTAL AMOUNT PAID BY YOU HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER THE “PAYMENT TERMS” SECTION ABOVE.
IN NO EVENT WILL WE HAVE ANY LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
You are responsible for all login credentials, including usernames and passwords, for your account. We will not be responsible for any damages, losses or liability to you or anyone else, if such information is not kept confidential by you, or if such information is correctly provided by an unauthorized third party logging into and accessing the Services.
The limitations under this “Limitation of Liability” section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this “Limitation of Liability” section allocate the risks under the Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into the Agreement and the pricing for the Services.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, SUCH AS INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THE AGREEMENT GRANTS SPECIFIC LEGAL RIGHTS, AND CUSTOMER AND AUTHORIZED USERS MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING DISCLAIMERS AND LIMITATIONS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
You agree to defend, indemnify and hold harmless us and our affiliates, licensors, and suppliers, and our and their respective employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (a) your use of and access to the Services, including any Customer Content or other content transmitted or received by you; (b) your violation of any term of the Agreement, including without limitation any breach of your representations and warranties above; (c) your violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (d) your violation of any applicable law, rule or regulation; (e) Customer Content or any content that is submitted via your account, including without limitation misleading, false, or inaccurate information; (f) your gross negligence, fraud, or willful misconduct; (g) any other party’s access and use of the Services with your unique username, password or other appropriate security code (provided that such access and use was not our fault); or (h) any dispute between you and any other user of the Services, whether in relation to any Transaction Documents or otherwise.
Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with the Agreement, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including all Order Forms, as well as non-public business, product, technology and marketing information. Confidential Information of Customer includes Customer Content. If something is labeled “Confidential,” that’s a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
9.2 Protection and Use of Confidential Information
The Receiving Party will (a) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates and contractors who need to know such information in connection with the Agreement; and (b) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement. Nothing above will prevent either party from sharing Confidential Information with financial and legal advisors; provided, however, that the advisors are bound to confidentiality obligations at least as restrictive as those in the Agreement.
9.3 Compelled Access or Disclosure
The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the access or disclosure. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable cost for any support provided in connection with the Disclosing Party seeking a protective order or confidential treatment for the Confidential Information to be produced.
Neither party may publicly use the other party’s company name, logo, or other trademarks for any purpose without the other party’s prior written consent; provided that we may place your name and logo on our website and other marketing materials for the purpose of identifying you as a user of our products and services without such consent. All use of the other party’s trademarks, and all goodwill accruing therefrom, will inure to the sole and exclusive benefit of the owner of the trademarks. Such consent is revocable at the owner’s sole discretion.
10.2 Third Party Products, Links, and Information
10.3 Force Majeure
Neither us nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
10.4 Relationship of the Parties; No Third Party Beneficiaries
The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third party beneficiaries to the Agreement; a person who is not a party to the Agreement may not enforce any of its terms under any applicable law.
10.5 Email Communications
Except as otherwise set forth herein, all notices under the Agreement will be by email, although we may instead choose to provide notice to Customer through the Services. Notices to us must be sent to firstname.lastname@example.org. Notices will be deemed to have been duly given (a) the business day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Services.
We may change these Customer Terms and the other components of the Agreement (except any Order Forms) in accordance with this Section. If we make a material change to the Agreement, we will provide Customer with reasonable notice prior to the change taking effect, either by emailing the email address associated with Customer’s account or by messaging Customer through the Services. Customer can review the most current version of the Customer Terms at any time by visiting this page and by visiting the most current versions of the other pages that are referenced in the Agreement. The materially revised Agreement will become effective on the date set forth in our notice, and all other changes will become effective upon posting of the change. If Customer accesses or uses the Services after the effective date, that use will constitute Customer’s acceptance of any revised terms and conditions.
No failure or delay by either party in exercising any right under the Agreement will constitute a waiver of that right. No waiver under the Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
The Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement will remain in effect.
Neither party may assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, we may assign the Agreement in its entirety (including all Order Forms), without consent of Customer, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any purported assignment in violation of this section is void. Subject to the foregoing, the Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.10 Governing Law
The Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of New Jersey, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The parties acknowledge that the Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law of the Agreement, any arbitration conducted hereunder shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).
10.11 Venue; Waiver of Jury Trial; Fees
The state and federal courts located in New Jersey will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Agreement or its formation, interpretation or enforcement, including any appeal of an arbitration award or for trial court proceedings if the arbitration provision below is found to be unenforceable. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Agreement. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you may seek relief from us. For any dispute with us, you agree to first contact us at and attempt to resolve the dispute informally. If we have not been able to resolve a dispute within sixty (60) days of your first contact, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to the Agreement, or the breach or alleged breach thereof by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. The arbitration will be conducted Hudson County New Jersey, unless we agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Services for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing us from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights.
10.13 Entire Agreement
The Agreement, including these Customer Terms and all referenced pages and Order Forms, if applicable, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Without limiting the foregoing, the Agreement supersedes the terms of any online agreement electronically accepted by Customer. However, to the extent of any conflict or inconsistency between the provisions in these Customer Terms and any other documents or pages referenced in these Customer Terms, the following order of precedence will apply: (1) the terms of any Order Form (if any), (2) these Customer Terms; and (3) any other documents or pages referenced in these Customer Terms. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of the Agreement, and all such terms or conditions will be null and void.
Any section of the Agreement that, by its terms or its nature, should survive the termination or expiration of the Agreement shall so survive, including but not limited to Sections 2.4, 3.1(a), 3.2, 3.3, 3.5, 4.6, and 5 through 10.
10.15 Contacting Us
Please also feel free to contact us if you have any questions about the Customer Terms or any other part of the Agreement. You may contact us at or at our mailing address set forth in Section 5 above.