Terms of Service
Last Revised: 11 September 2017
1. Introduction
(a) The website at http://www.mren.com, its successor website, beta versions, and any of its subpages, subdomains or desktop and mobile versions (the “Website“) is operated by MREN, Inc. (“MREN” “us“, “we” or ” our“).
(b) By using the Website, you agree to these Terms of Service (“Terms“) and acknowledge your acceptance of the Privacy Policy available here. These Terms also include by reference any additional terms and conditions applicable to the use of the Website that are posted by us from time to time through the Website, or otherwise made available to you by us.
(c) Please read these Terms carefully. You are entering into a legally binding agreement, even if you are using the Website on behalf of a company or organization. Your use of the Website constitutes your consent to these Terms.
2. Beta Version Disclaimer
(a) By using this Website you acknowledge and agree that you are aware that the services being provided are still in development and may change over time and that the Terms and fees charged for the service are also likely to change over time along with the features and functionality of the Website.
(b) Without limiting anything in these Terms, including the disclaimer of warranties in Section 14, you understand and acknowledge that the Website may be provided as a beta or other testing version, for the purpose of providing us with feedback on the quality and usability of the Website. The Website may accordingly contain errors or inaccuracies that could cause failures, corruption or loss of data or information from your computer and from peripherals (such as servers) connected thereto. We strongly encourage you to back-up all data and information on your computer and any peripherals prior to using the Website.
3. Eligibility
(a) The Website is controlled or operated from the United States, and is not intended to subject us to any non-U.S. jurisdiction or law. Any use of the Website outside the United States is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so.
(b) If you are utilizing the Website on behalf of a business entity or organization, you represent that you have the authority to bind the entity or organization to these Terms and to agree to all of the provisions of these Terms, and by utilizing the Website you legally bind the business entity or organization.
(c) If you are an employee, independent contractor, agent, or affiliate of a competing real estate technology platform, you may not access the Website without express written permission from us, and by registering for an account via the Website, you represent and warrant that you are not a competitor of us or acting on behalf of our competitor.
(d) You may only register an account via the Website and use the Website if: (i) you have personally been invited to do so by us; (ii) you are an actual or potential principal buyer or seller of commercial real estate, and you have a genuine intention to or an interest in, using the information services provided on the Website in order to facilitate your buying or selling commercial real estate; or (iii) you are a professional service provider contracted by the principal buyer or seller to assist them with the relevant real estate transaction and who has been invited to use the Website by relevant buyer or seller, (each such user, an “Eligible User“). In any transaction related to property registered with the Website, the Eligible User selling property they shall be referred to as “Seller” and the Eligible User purchasing the property shall be referred to as “Buyer”.
(e) By using the Website, you represent and warrant that you are an Eligible User. If you are not an Eligible User, you may not register an account via the Website or use the Website in any way. Without limiting the foregoing, you may not register an account via the Website or use the Website if you are a real estate broker or agent.
(f) We have the right to determine who is eligible to use the Website and can change our eligibility criteria at any time.
4. Changes to Terms and the Website
(a) We may change these Terms by notifying you of such changes by any reasonable means, including by posting revised terms through the Website, or, if we think the changes will be materially detrimental to you and we have your email address, then by emailing you via the email address you provided us.
(b) Your use of the Website following any changes to these Terms will constitute your acceptance of such changes. The “Last Revised” legend above indicates when these Terms were last changed.
(c) We may, at any time and without liability or providing notice to you, modify, suspend or discontinue the Website (including its functionalities and features), either temporarily or permanently. You acknowledge that we have no express or implied obligation to provide, or continue to provide, the Website, now or in the future; and in addition, we may at any time, upon prior notice as required by applicable law, institute charges or fees for the Website.
5. Your Account
(a) If you do not register an account on the Website, you will not be able to use certain features or functions available on the Website. If you do register, you agree to provide true, accurate and complete information about yourself and the entity you represent (if applicable). You also agree to update your information to maintain its accuracy and completeness.
(b) You agree that you are solely responsible for maintaining the confidentiality and security of your Website registration information (such as any username or password). We are not responsible for any unauthorized use of your registration information, and you must promptly notify us of any confidentiality breach or unauthorized use of your login information or your Website account.
(c) We may terminate or suspend your use of the Website at any time and without prior notice, including if we believe that you have breached these Terms or have acted inconsistently with your rights or obligations under these Terms. Cause for termination includes, but is not limited to, breaches or violations of the, requests by law enforcement, fraudulent or illegal activity by you, discontinuance or material modification of services provided by the Website, nonpayment of fees owed by you in connection with the services, account inactivity or technical or security issues. All provisions of these Terms survive termination, to the extent applicable and permitted by law. Upon any such termination or suspension, your right to use the Website will cease, and we may, without liability, immediately deactivate or delete your username, password and account, and all associated materials, without any obligation to provide any further access to such materials.
6. Use of the Website
(a) You are solely responsible for procuring, at your own expense, all equipment, systems and technology necessary to use the Website, including a web browser, computer, modem and Internet access. We are not required to provide any maintenance, technical or other support for the use of the Website.
(b) When using the Website, including its chat and communication features and functionalities, you agree not to (or attempt to):
(i) list anything other than commercial real estate for sale or lease and other Content (as defined in Section 8(a) below) relevant to the real estate transaction (for example, residential real estate, cars, car spaces, boats, caravans and portable homes are not acceptable listings on the Website);
(ii) advertise your business rather than advertising the real estate for sale or lease. Each real estate listing posted by you must be a bona fide listing of real estate for sale or lease;
(iii) misuse any fields provided on the Website. Placing irrelevant information in an information, description or picture field is not acceptable. You should only use the information, description or picture fields for inserting information that is intended for those fields;
(iv) display a photograph, drawing or other image that is not a photograph, drawing or image of the property being offered for sale or lease as the main image;
(v) use street names, cities or location names that are inaccurate or not officially recognized;
(vi) create more than one listing for the same property (for example, listing a single property more than once);
(vii) stalk or otherwise harass any other person;
(viii) interfere with or inhibit any others’ use or enjoyment of the Website;
(ix) engage in conduct that poses a risk of harm to or a threat to the personal safety of others or could create liability for us;
(x) upload, post, distribute or otherwise publish anything that contains viruses or other computer code, corrupt files or programs designed to interrupt, destroy or limit the functionality of or disrupt the Website or any software, hardware, telecommunications, networks, servers or other equipment;
(xi) upload, post, distribute or otherwise publish anything that constitutes or contains affiliate marketing, link referral code, junk mail, spam, chain letters, pyramid schemes or unsolicited commercial advertisement;
(xii) upload, post, distribute or otherwise publish anything private, personally identifiable, financial, confidential or proprietary information of another person without their written express permission;
(xiii) collect personal data about other users of the Website;
(xiv) use automated means, including scripts, spiders, robots, crawlers, data mining tools or the like to access, scrape or download data from the Website without specific written permission from us;
(xv) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person;
(xvi) upload, post, distribute or otherwise publish anything which is indecent, libelous, defamatory, obscene, profane (or partially obscured profanity), harmful of minors in any way, threatening, invasive of privacy or publicity rights, abusive, illegal, harassing, otherwise objectionable, contain expressions of hatred, bigotry, racism or pornography, or would constitute or encourage a criminal offense or other illegal activity, or violate the rights of any person or entity or any law;
(xvii) attempt to gain unauthorized access to our computer systems or engage in any activity that disrupts, diminishes the quality, interferes with the performance or impairs the functionality of the Website;
(xviii) remove or obscure any copyright, trademark or other proprietary notices from the Website;
(xix) sell, reproduce, transfer, copy, publish, distribute, modify, display, prepare derivative works based on or otherwise make unauthorized use of the Website;
(xx) access, use, modify, copy, decipher, decompile, disassemble, reverse engineer or otherwise derive the source code of any software associated with the Website;
(xxi) do anything that infringes or violates another person’s rights, violates the law or breaches any contract or legal duty you have toward anyone; or
(xxii) violate any applicable law.
(c) You agree that in using the Website you act on your own behalf. We do not play any role in identifying or connecting you with potential real estate buyers or sellers, and do not participate in any way in any negotiations that may occur.
(d) Notwithstanding the foregoing, and subject to compliance with any instructions posted in the [robots.txt] file located in the Website’s root directory, we grant to the operators of public search engines permission to use spiders to copy materials from the Website for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials, which may only be created with our written permission. We reserve the right to revoke such permission either generally or in specific cases, at any time and without notice.
(e) From time to time, we may impose certain limitations on the use of the Website, including limiting the amount of Content you can post or upload via the Website, or imposing restrictions on the type or format of Content you may post or upload. You agree to use the Website only for purposes as permitted by these Terms and any applicable law. We reserve the right to modify or impose any limitations on the use of the Website at any time, with or without notice to you.
(a) Through December 31, 2015 the use of the all services provided by Website will be free of charge for all Eligible Users.
(b) Beginning January 1, 2016, METIS shall be entitled to receive from each of Seller and Buyer a service fee equal to 0.25% of the total gross cash proceeds actually received by Seller from Buyer (“Service Fee”).
(c) No Service Fee will be due in the event a proposed purchase does not close for any reason. METIS agrees that Seller may not close a transaction and that as a result, METIS will not be entitled to any compensation in connection with the property registered by Seller on the Website.
(d) Upon withdrawal of the property from the Website by Seller, Seller and Buyer will continue to be obligated to pay the Service Fee, as per the terms hereof for a period of twelve (12) months (the “Tail Period”), if the property registered on the Website by Seller is purchased by Buyer within the Tail Period. The Service Fee will be earned and payable at the time of the final closing and funding by Buyer of the full cash purchase price.
(e) Other than the Service Fee, METIS shall not be entitled to any other compensation or remuneration of any kind from Seller and Buyer, unless otherwise agreed to in writing by and between the parties.
8. Your Content
(a) The Website may allow you to upload, display, post and/or distribute certain information, listings, property descriptions, financial, contact or other information, messages, text, data, photographs, audio, video, images, graphics, links, logos and other content or materials (“Content“) to the Website, including the Content you incorporate into your user profile, listings and teasers (” Your Content“).
(b) If you upload, display, post, view, copy or otherwise make Content available via the Website, you must do so in accordance with these Terms and all applicable laws.
(c) You will not submit, post, upload or otherwise make available any Content via the Website unless you have received all necessary and adequate rights, licenses, consents and authorizations, including from the property owner, photographer, videographer or copyright owner of the Content, as applicable.
(d) You will retain ownership of Your Content. However, by making Content available via the Website, in respect of Content that you make available:
(i) you hereby grant to us a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicenseable (through multiple tiers) license, without additional consideration to you or any third party, to host, reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify (except modifications in the meaning of your expression) and otherwise use and exploit Your Content, in any format or media now known or hereafter developed, for the purpose for which Your Content was submitted or made available, as long as such use is in accordance with our Privacy Policy to the extent applicable. The foregoing license will terminate within a commercially reasonable time after you or we remove such Content from the Website;
(ii) you hereby permit, but do not require, us to identify you as the provider or author of Your Content;
(iii) you represent and warrant that Your Content that is posted on the Website and that may be viewable by other users of the Website, will be accurate and up to date at all times;
(iv) if Your Content is a property listing: (1) you will not post the listing on the Website under a name other than the name of the property owner(s); and (2) you will comply with any direction we give to in relation to your listings, including amending or updating listings; and
(v) you agree that we have no liability or responsibility for the storage or deletion or other use of Your Content. All users of the Website must comply with these Terms, but if they access Your Content in violation of these Terms, you acknowledge and agree that we are not liable for their acts or omissions, and you will have no claim against us for other users’ acts or omissions, including their acts or omissions in respect of Your Content.
(e) By submitting or posting Your Content on areas of the Website that are accessible by the public, you are representing that you are the owner of such Content or have authorization to distribute and publish it.
(f) You acknowledge that we have no duty to pre-screen Content on the Website. However, we reserve the right at all times to determine whether any Content is appropriate and in compliance with these Terms, and may pre-screen, move, refuse, modify or remove Content at any time, without prior notice and in our sole discretion, if such Content is found to be in violation of these Terms or is otherwise objectionable. We may also may also modify or change Your Content to comply with technical requirements of connecting networks or devices. We may determine in our discretion the manner in which any property listing will be searched, displayed, accessed, downloaded, copied, and otherwise used on the Website.
(g) You acknowledge and agree that we may access, use, preserve and/or disclose your account information and Your Content if legally required to do so or if we have a good faith belief that such access, use, disclosure, or preservation is reasonably necessary to: (a) comply with legal process or request; (b) enforce these Terms, including investigation of any potential violation thereof; (c) detect, prevent or otherwise address security, fraud or technical issues; or (d) protect the rights, property or safety of us, our users or the public as required or permitted by law.
(h) As part of using the Website, we may provide you with the opportunity to submit comments, suggestions, or other feedback regarding your use of the Website. You agree that in the absence of a separate written agreement to the contrary, we will be free to use any feedback you provide for any purpose.
9. Rights in the Website
(a) Except for your rights in Your Content as set forth in Section 7, you acknowledge and agree that we retain all right, title and interest in and to the Website, including all Content, products, features, applications, functionality and services made available on the Website and any software provided by us to you as a part of or in connection with the Website, and all intellectual property rights therein.
(b) Your right to the Website is limited to accessing the Website as an Eligible User, in accordance with these Terms. Any rights in or to the Website not expressly granted to you in these Terms are reserved by us.
10. Copyright Complaints
(a) The Digital Millennium Copyright Act of 1998 (the “DMCA“) provides recourse for copyright owners who believe that Content appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that Content available on the Website infringes your copyright, you (or your agent) may send us a written notice by mail, e-mail or fax, requesting that we remove such Content or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send us a counter-notice.
(b) Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Any notice submitted must include the following:
(i) your physical or electronic signature;
(ii) identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Website, a representative list of such works;
(iii) identification of the Content you believe to be infringing in a sufficiently precise manner to allow us to locate that Content;
(iv) adequate information by which we can contact you (including your name, postal address, telephone number and, if available, e-mail address);
(v) a statement that you have a good faith belief that use of the copyrighted Content is not authorized by the copyright owner, its agent or the law;
(vi) a statement that the information in the written notice is accurate; and
(vii) a statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
(c) Any notice that fails to comply with the above requirements will not be considered to either provide us with actual knowledge of infringement or make us aware of facts or circumstances from which infringing Content or acts are apparent. Notices and counter-notices must be sent in writing to the Copyright Department as follows:
By mail to Copyright Officer, MREN, Inc., 12335 World Trade Drive, Suite 1A, San Diego, CA 92128 or by e-mail to info@mren.com.
(d) We suggest that you consult your legal advisor before filing a DMCA notice or counter-notice.
11. Third Party Content and/or Links
(a) You may have access to certain Content made available by third parties via the Website, including Content contained within others’ property listings, teasers or Website user profiles or Content made available to you via the Website’s communication or chat features (“Third Party Content “). The Website may also allow for the routing or transmission of such Third Party Content, including via hyperlinks or third-party websites incorporated into the Website via encapsulation or “iframes”. By using such functionality, you are directing us to access, route and transmit to you the applicable Third Party Content.
(b) YOUR USE OF OR ACCESS TO THIRD PARTY CONTENT IS AT YOUR OWN RISK. We are not liable for any Third Party Content. We neither control nor endorse, nor are we responsible for, any Third Party Content, including the accuracy, integrity, quality, legality, usefulness or safety of Third Party Content, or any intellectual property rights or other rights therein. Hyperlinks or websites incorporated via encapsulation or “iframes” on the Website do not reflect our views and we are not liable for any such Content.
(c) We are not responsible for external websites linked to, from or incorporated within the Website. Users should read and rely on the terms of use/service and privacy policy (and any other terms) associated with any such external websites.
(d) Certain Third Party Content may, among other things, be offensive, objectionable, unlawful, indecent, inaccurate, misleading or deceptive. Nothing in these Terms will be deemed to be a representation or warranty by us with respect to any Third Party Content. We have no obligation to pre-screen or monitor Third Party Content, and we may block or disable access to any Third Party Content at any time. In addition, the availability of any Third Party Content through the Website or our failure to block or remove any Third Party Content does not imply our endorsement of, or our affiliation with, such Third Party Content or any provider of such Third Party Content.
12. Release
In the event of a dispute between you and any organizations and/or individual found on or through the Website or with whom you have made contact via or in connection with the Website, including other principal buyers or sellers or other professional service providers or third parties, you release us, and our affiliates, officers, employees, contractors, agents, successors, and assigns (“Related Entities“) from claims, damages, liabilities and demands of every kind, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
13. Indemnity
Except to the extent prohibited under applicable law, you agree to defend, indemnify and hold us, our employees, officers, contractors and our affiliates harmless from and against all claims, causes of action, losses, costs and expenses (including attorneys’ fees) in connection with:
(a) your use of, or activities in connection with, the Website (including Your Content);
(b) any violation or breach or alleged violation or breach of these Terms by you or any person who has used your Website account credentials; or
(c) any allegation that Your Content or our use of Your Content in accordance with these Terms, violates or breaches any applicable law or a person’s rights, including their intellectual property rights, rights of confidentiality or privacy or rights under law or contract,
except to the extent such claims, losses, costs or expenses are caused by our negligent or intentional wrongful acts or omissions or breach of these Terms.
14. Disclaimer of Warranties
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, AS SUCH, TO THE EXTENT SUCH EXCLUSIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THE EXCLUSIONS SET FORTH BELOW MAY NOT APPLY TO YOU.
TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, THE WEBSITE, INCLUDING ALL CONTENT AND THIRD PARTY CONTENT, IS MADE AVAILABLE TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OR GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. WE DISCLAIM ALL WARRANTIES AND GUARANTEES WITH RESPECT TO THE WEBSITE TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, INCLUDING ANY WARRANTIES OR GUARANTEES OF MERCHANTABILITY, ACCURACY, COMPLETENESS, USABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE.
WE MAKE NO REPRESENTATIONS OR WARRANTIES AND ARE NOT LIABLE FOR THE CONDITION OF ANY PROPERTY PRESENTED FOR LEASE OR SALE BY OTHER USERS OF THE WEBSITE. FURTHER, WE DO NOT GUARANTEE THAT SELLERS OR BUYERS WILL COMPLETE THE TRANSACTION RELATING TO A PROPERTY. INDIVIDUAL BUYERS AND SELLERS ACCEPT THE RISK THAT A TRANSACTION MAY NOT CLOSE.
15. Limitation of Liability
(a) TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, WE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, OR ANY DAMAGES FOR LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITY, USE OR DATA OR CONTENT, BREACH OF SECURITY (INCLUDING UNAUTHORIZED INTERCEPTION BY THIRD PARTIES OF YOUR CONTENT), EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE WEBSITE IS TO STOP USING THE WEBSITE.
(b) TO THE EXTENT OUR LIABILITY HAS NOT BEEN EXCLUDED OR LIMITED UNDER These terms, OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH these terms, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL NOT EXCEED AN AMOUNT EQUAL TO the greater of (1) $100; or (2) the total amount you paid us under these terms in the 6 month period preceding the first claim, SPECIFICALLY EXCLUDING ANY FEES OWED BUT NOT YET PAID.
(c) WE ARE NOT ENGAGED IN THE PROVISION OF LEGAL, TAX OR OTHER PROFESSIONAL ADVICE OR SERVICES AND YOU AGREE THAT THE WEBSITE DOES NOT CONTAIN ANY LEGAL, TAX OR OTHER PROFESSIONAL ADVICE. IF YOU REQUIRE SUCH SERVICES, YOU SHOULD CONTACT THE APPROPRIATE LICENSED AND QUALIFIED PROFESSIONALS.
(d) WE ARE NOT INVOLVED WITH THE NEGOTIATION, PROCESSING OR EXCHANGE OF ANY TRANSACTIONS, INCLUDING BUT NOT LIMITED TO REAL ESTATE TRANSACTIONS, THAT MAY BE ARRANGED BETWEEN YOU AND OTHERS, OR BETWEEN THIRD PARTIES VIA OR IN CONNECTION WITH THE WEBSITE. ALL NEGOTIATIONS AND TRANSACTIONS BETWEEN USERS OF THE WEBSITE ARE SOLELY THE BUSINESS AND RESPONSIBILITY OF THE RESPECTIVE PARTIES AND WE DO NOT REPRESENT THE INTERESTS OF ANY WEBSITE USERS OR THIRD PARTIES. THEREFORE, WE ARE NOT RESPONSIBLE FOR ANY NEGOTIATIONS OR TRANSACTIONS ASSOCIATED WITH LEASING, SALE, TRANSFER OR CONDITION OF ANY PROPERTY, PROMISED OR OTHERWISE IN CONNECTION WITH THE WEBSITE.
16. General
(a) These Terms will be governed by the laws of California without regard to its conflict of law provisions.
(b) In the event of any controversy or claim arising out of or relating to these Terms or the Website, including the validity of any part of these Terms or a breach of these Terms (“Dispute”), the parties hereto will consult and negotiate with each other and, recognizing their mutual interests, will attempt to reach a satisfactory solution. If the parties do not resolve the Dispute within a period of twenty one (21) days after written notice of the dispute by either party to the other party, any unresolved controversy or claim will be settled by arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules. If the amount in controversy in the Dispute is One Million U.S. Dollars ($1,000,000) or less, it will be decided by a sole arbitrator, and the parties will attempt to jointly appoint that sole arbitrator. If the parties fail to jointly appoint the sole arbitrator within fifteen (15) days of the arbitration being initiated, the appointment will be made by the AAA. If the amount in controversy in the Dispute is greater than One Million U.S. Dollars ($1,000,000), it will be decided by a tribunal of three (3) arbitrators, and each party will appoint one (1) arbitrator. If a party fails to appoint an arbitrator within fifteen (15) days of the arbitration being initiated, such appointment will be made by the AAA. The two (2) arbitrators appointed in accordance with the preceding sentences will appoint the third arbitrator, who will be the chairman of the tribunal. If the two (2) arbitrators fail to appoint the third arbitrator within fifteen (15) days of the appointment of the second of the arbitrators, the appointment of the third arbitrator will be made by the AAA. Location. Unless otherwise agreed by the parties, arbitrations will be held at the AAA office in San Diego California. In addition to the authority conferred upon the arbitrator(s) by the above-designated rules, and without prejudice to any provisional measures that may be available from a court of competent jurisdiction, the arbitrator(s) will have the power to grant any provisional measure deemed appropriate, including, but not limited to, provisional injunctive relief. Any provisional measures ordered by the arbitrator(s) may, to the extent permitted by applicable law, be deemed to be a final award on the subject matter of the measures and will be enforceable as such. The arbitrator(s) will provide a reasoned award and may award to the prevailing party, if any, as determined by the arbitrator(s), its costs and expenses, including attorneys’ fees. The arbitrator(s) will not award punitive or exemplary damages of any kind. Judgment upon any award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction.
(c) Any claims brought in an arbitration commenced pursuant to these Terms must be brought in the claimant’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. The arbitrator(s) will not be permitted to hold class arbitration of any kind and may only entertain claims between the parties to these Terms.
(d) We may assign any of our rights or obligations under these Terms to another party for any reason, without notice to or consent from you. You may not assign, sublicense or otherwise transfer any right or obligation under these Terms without our prior written consent.
(e) These Terms do not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and us.
(f) If any provision of these Terms is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions.
(g) No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default.
(h) These Terms, including any terms and conditions incorporated herein, represent the entire agreement between you and us relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and us relating to such subject matter.
(i) Notices to you (including notices of changes to these Terms) may be made via posting to the Website or by e-mail (including in each case via links), or by regular mail.
(j) Without limitation, a printed version of these Terms and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
(k) In these Terms: headings are for convenience only and do not affect the interpretation of these Terms; the singular includes the plural and vice versa; words that are gender neutral or gender specific include each gender; where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings; the words “such as,” “including,” “particularly” and similar expressions are not used as, nor are intended to be, interpreted as words of limitation; and no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of these Terms.
(l) In these Terms, a reference to: (a) a person includes a natural person, partnership, joint venture, governmental agency, association, corporation, formal or informal organization or other body corporate; (b) a thing (including a chose in action or other right and the “Website”) includes a part of that thing; (c) a party includes its successors and permitted assigns; (d) a document includes all amendments or supplements to that document; (e) a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgment or rule of common law and is a reference to that law as amended, consolidated or replaced; (f) an agreement other than these Terms includes an undertaking, or legally enforceable arrangement or understanding, whether or not in writing; and (g) a monetary amount is in U.S. dollars.
Electronic Acceptance:
You acknowledge that You are executing this Agreement by accepting the terms by hitting the “ACCEPT” button. You acknowledge that such form of
acceptance shall be binding and enforceable pursuant to Electronic Signatures in Global and National Commerce Act (“E-Sign Act”), Title 15, United
States Code, Sections 7001 et seq., the Uniform Electronic Transaction Act (“UETA”), and applicable state laws.