Effective April 1, 2021
NOTICE OF ARBITRATION PROVISIONS:
- YOUR ACCEPTANCE OF THESE TERMS
We may post additional terms or agreements that apply to certain services, applications, activities and features we offer or provide at or through the Sites (collectively, “Additional Terms”), and you may be subject to such Additional Terms when you access those services, applications, activities and/or features. In the event of any conflict between the terms of the Additional Terms (on the one hand) and these Terms (on the other hand), these Terms shall prevail unless expressly otherwise stated in the Additional Terms, which are intended to supplement, but not replace, these Terms.
- CHANGES TO THESE TERMS
- RENTCafé WEBSITE HOSTING SERVICES
We utilize the website hosting services of RENTCafé to host one or more of the Sites. Owned and operated by Yardi Systems, Inc. (collectively with its affiliates, “Yardi”), RENTCafé is a technology platform that facilitates the development and delivery of innovative renter-related services, including by allowing us to advertise rental properties to prospective tenants, to assist prospective renters in their search for a new place to live, and to manage and facilitate various activities and transactions between us and Users (collectively, the “Services”). RENTCafé allows prospective and current residents of properties that use the Sites to take advantage of a range of services designed to make their relationship with the Company as pleasant as possible.
The Sites that are hosted by Yardi on our behalf serve as a platform for us to provide the Services to prospective and current tenants. Yardi does not own or manage the properties listed on such Sites and does not enter into rental contracts for those properties. Although such Sites may lead to certain business transactions expressly agreed to between Yardi and Users, Yardi is not a party to any transactions between us and Users other than hosting one or more of the Sites on our behalf.
- USER REPRESENTATIONS AND WARRANTIES
By using the Sites and Services, you represent, warrant and covenant that you: (a) have the power and authority to enter into the binding contract created by these Terms and be bound by these Terms; (b) shall use the Sites and Services only as permitted by these Terms and any applicable Additional Terms, and not for any unlawful purpose; and (c) are 18 years of age or older. If you are under the age of 18, you are not allowed to use the Sites or Services.
- USE OF THE SITES AND SERVICES
You agree to use the Sites and Services only for purposes that are permitted by these Terms and any Additional Terms and in compliance with all applicable federal, state, foreign and local law, rules and regulations. Subject to all of the provisions of these Terms, we hereby grant you a limited, terminable, non-transferable, non-assignable, personal, non-exclusive license to access and use the Sites and Services solely as provided herein. You may download material displayed on the Sites for your non-commercial, personal use only, provided you do not remove any copyright, trademark and other proprietary rights notices contained on the materials. You may not, however, distribute, reproduce, copy, display, store, broadcast, publicly perform, transmit, distribute, reuse, re-post, sell, offer for sale, license, modify, create derivative works or otherwise use the content of the Sites, including any data, text, images, graphics, software, audio and videos, for other than your own personal, non-commercial use, without our prior written permission. Notwithstanding anything to the contrary herein, all rights not specifically granted in the license set forth above shall be reserved and remain always with us. Your right to use the Sites and Services is not transferable. You acquire no rights or licenses in or to the Sites and information and materials contained therein other than the limited right to access and utilize the Sites and Services in accordance with these Terms. If you are accessing the Sites via any of our mobile applications available via third parties (collectively “Third-Party Outlets”), including, without limitation, Apple, Inc.’s “App Store” or Google LLC’s “Google Play” store (Google LLC, together with its affiliates and parent companies, including Alphabet Inc. are collectively referred to herein as “Google”), you acknowledge and agree that these Terms are entered into by and between you and us only, and that none of the Third-Party Outlets are party to these Terms. The Third-Party Outlets are not sponsors to, nor in any way affiliated with, any of the Sites or Services.
We have the right, but not the obligation, to take any of the following actions without providing any prior notice to you and without liability to you: (a) restrict, suspend or terminate access to all or any part of the Sites or Services to you or to Users generally; or (b) refuse, move or remove any content that is available on the Sites and any material that you submit to the Sites. Upon any termination of your access to the Sites or Services for any reason or no reason, you continue to be bound by these Terms.
In addition to any other restrictions contained in these Terms, you agree that you shall not (and shall not allow any third party to): (a) access or use any portion of the Sites if you are a direct or indirect competitor of the Company or Yardi, including, without limitation, companies involved in residential leasing, data research, Internet listing services, dissemination of residential property information or property management software; (b) provide, disclose or transmit any content from the Sites to any direct or indirect competitor of the Company or Yardi; (c) use or distribute any information from the Sites, including information that you or anyone else has verified, to directly or indirectly create or contribute to the development of any database or product; (d) use any robot, spider, site search/retrieval application or other automated device, process or means to access, retrieve, scrape or index any portion of the Sites or Services, including, but not limited to, for purposes of constructing or populating a searchable database or software that includes property information; (e) collect or harvest any information about other Users or third parties via the Sites or Services, including, but not limited to usernames and/or email addresses; (f) reformat or frame any portion of the webpages that are part of the Sites; (g) impersonate another person or otherwise misrepresenting your affiliation with a person or entity, conduct fraud, hide or attempt to hide your identity, or create user accounts by automated means or under false, misleading or fraudulent pretenses; (h) create or transmit unwanted electronic communications, such as “spam”, to other Users or otherwise interfere with other Users’ use and enjoyment of the Site or Services; (i) transmit any viruses, worms, defects, Trojan horses or other items of a destructive nature; (j) use the Site or Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material, including any material that may be deemed threatening or obscene; (k) copy or modify the HTML code used to generate webpages on the Sites; (l) use any device, software or procedure that interferes with the proper working of the Sites or Services, or otherwise attempt to interfere with the proper working of the Sites or Services; (m) take any action that imposes or may impose, as determined in our sole discretion, an unreasonable or disproportionately large load on our IT infrastructure; (n) modify, adapt, translate, or reverse engineer any portion of the Sites or the Services; (o) access (or attempt to access) any content on the Sites through any technology or means other than those provided or authorized by the Sites; (p) bypass the measures we may use to prevent or restrict access to the Sites, including without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Sites or the content therein, or (q) use the Sites or the Services, intentionally or unintentionally, to violate any applicable laws, rules or regulations, including, but not limited to, Fair Housing laws, rules and regulations.
- MODIFICATIONS TO SITES AND SERVICES
We reserve the right, at any time and from time to time, to modify, suspend or discontinue, temporarily or permanently, the Sites or any part thereof, or any or all of the Services, or any Site features, with or without notice and without liability to you. You agree that we have no responsibility or liability for the failure of the Sites and the deletion of any content maintained or transmitted by the Sites. You further agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Sites or the Services.
- ACCOUNT REGISTRATION AND USE
In order to use certain features of the Site or Services, you will have to register and create a password-protected account (your “Account”) and/or submit lease agreements, rental terms, postings, messages, text, voice commands, images, photos, files, videos and other information, materials or documents (collectively, your “User Materials”).
8.1 Your Account
By registering, creating and using your Account, you agree to: (a) provide true, accurate, current, and complete information as prompted by the registration form; and (b) maintain and update such information to keep it true, accurate, current, and complete at all times. We reserve the right to delete your Account and refuse any and all current or future use of the Sites (or any portion thereof) and/or the Services without notice if you are found to have misrepresented your age, identity, or any other information submitted in connection with your Account or if we have reasonable grounds to suspect that such information is untrue, inaccurate, incomplete or not current. You are responsible for maintaining the confidentiality of your password, your email address and your Account, and are fully responsible for all activities that occur under your password and your Account. You agree to: (i) immediately notify us of any unauthorized use, or suspected unauthorized use, of your password or Account, or any other breach of security, (ii) immediately change your password if you become aware that your Account has been compromised, (iii) ensure that you fully exit from your Account at the end of each session. You acknowledge and agree that you will not allow others to utilize your Account and that you will not disclose your password to anyone. You will be solely responsible for safeguarding your password and also for any actions under your password and Account, whether authorized by you or not. If you lose control of your password, you may lose substantial control of your personal information and could potentially be subject to legally binding actions taken on your behalf. You further agree not to use anyone else’s password on the Sites or attempt to gain access to the account of any other User. THE COMPANY WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM YOUR FAILURE TO COMPLY WITH THIS SUBSECTION.
8.2 Your User Materials
8.3 Renter Screening
You may be permitted to submit payments through the Sites, including, but not limited to, rental deposits, rental payments or payments for any other services or transactions. In addition, you may take advantage of certain Services that have a charge associated with them (such as screening services, lease execution fees and the like) that is imposed by Yardi or other third party. Yardi or such other third party may collect these fees directly from Users as provided by the Sites or the Services. You acknowledge these fees are subject to change.
Payments for services you submit through the Sites may be subject to additional services-specific terms and conditions (including in relation to refunds (if any), billing arrangements and any consequences of failing to make timely payments). Application fees are non-refundable, even if an application is denied, except to the extent otherwise required by applicable law. You must comply with all such terms in relation to such payments by you.
8.5 Rental Agreements
You may be permitted to enter into rental or lease agreements with us through the Sites (including, but not limited to, those agreements for which you electronically sign a lease or rental agreement). If you choose to use the electronic signature execution functionality of the Sites, you understand, acknowledge and agree that you have carefully reviewed the disclosure relating to use of your electronic signature to execute documents and will not execute such documents with your electronic signature without providing your consent to use your electronic signature. You agree that you will rely on your own legal counsel to determine the sufficiency of the electronic signature execution of the documents and their enforceability and that we make no warranty or other representation with respect to the sufficiency of the electronic signature execution of the documents under applicable federal, state, foreign or local laws, rules or regulations.
- OUR PROPRIETARY RIGHTS
The Sites and Services, and all materials and content contained therein or transferred thereby, including, without limitation, all documentation, data, text, images, graphics, illustrations, photographs, designs, floorplans, software, computer codes, ideas, know-how, compilations, audio, videos, music, site design, logos, button icons, trademarks, service marks and trade names (collectively, the “Company Content”), and all modifications and derivative works thereof and all intellectual property rights related thereto, are the exclusive property of the Company and its licensors and are protected by copyright, trademark and other intellectual property laws. Except as explicitly provided herein, nothing in these Terms shall be construed by implication, estoppel or otherwise as granting to any User an ownership interest in any copyright, trademark, patent or other intellectual property right of the Company or any third party. You agree not to reproduce, copy, display, publicly perform, broadcast, store, re-post, publish, transmit, distribute, sell, offer for sale, license, rent, modify, create derivative works or otherwise use or exploit for any commercial purposes any or all of the Company Content or the Sites or Services. Use of the Company Content for any purpose not expressly permitted by these Terms is strictly prohibited. You must abide by all copyright notices, information or restrictions contained in or attached to any Company Content.
You may choose to, or we may invite you to, submit comments or ideas about the Sites or Services, including, without limitation, about how to improve the Site or Services (collectively, “Feedback”). By submitting any Feedback, 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 Feedback without any additional compensation to you and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, we do not waive any rights to use similar or related feedback or other ideas previously known to us, or developed by our employees, or obtained from sources other than you.
- REPORTING INFRINGEMENTS
If you believe that any content found on or through the Sites and Services, including through a hyperlink, infringes on your copyright or trademark rights or your rights of publicity, please send a written notice by email to [email protected] or by mail to FCE Wilton, LLC, 7551 W. Sunset Blvd., Suite 203, Los Angeles, CA 90046, Attention: DMCA Notice, to request a review of the alleged infringement. The notice must include the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work or mark or publicity right claimed to have been infringed, or, if you believe that multiple works, marks or publicity rights have been infringed, a representative list of such works, marks or publicity rights;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and description of where the material that is claimed to be infringing or to be the subject of infringing activity is located on the Sites that is reasonably sufficient to enable us to identify and locate the material on the Sites (for example, a complete list of specific URLs);
- Your name, address, telephone number and e-mail address (if available);
- A statement by you affirming that you have a good faith belief that use of the material in the manner complained of is not authorized by the owner, its agent or the law; and
- A statement by you that the information provided in your notification is accurate and, under penalty of perjury, that you are the owner of an exclusive right that is allegedly infringed or that you are authorized to act on behalf of the owner of the right that is allegedly infringed.
We will process each written notice of alleged infringement that we receive and will take appropriate action in accordance with applicable intellectual property laws.
- THIRD-PARTY WEBSITES
The Sites may contain links or voice accessibility to third-party websites or resources, including, but not limited, to third-party websites with information about specific rental properties or to other products or services. Access to such third-party websites, resources, products or services (collectively, “Third-Party Websites”) are included solely for the convenience of Users, and do not constitute any endorsement or approval by us of the third-parties, anyone sponsoring such websites or their products or services, or the products or services themselves. We make no representations or warranties, express or implied, with respect to the information provided on any Third-Party Website that may be accessed from the Sites, including any representations or warranties as to accuracy or completeness. BECAUSE WE HAVE NO CONTROL OVER THE THIRD-PARTY WEBSITES, YOU ACKNOWLEDGE AND AGREE THAT WE ARE NOT RESPONSIBLE OR LIABLE FOR, AND DO NOT ENDORSE, THE AVAILABILITY, ACCURACY, COMPLETENESS OR AUTHENTICITY OF INFORMATION OR CONTENT AVAILABLE THROUGH SUCH THIRD-PARTY WEBSITES OR YOUR USE OR YOUR EXCHANGE OF ANY INFORMATION WITH SUCH THIRD-PARTY WEBSITES. YOU ACKNOWLEDGE AND AGREE THAT WE SHALL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED IN CONNECTION WITH YOUR USE OR RELIANCE ON ANY SUCH INFORMATION OR CONTENT AVAILABLE ON OR THROUGH ANY SUCH THIRD-PARTY WEBSITES. IF YOU DECIDE TO ACCESS ANY SUCH THIRD-PARTY WEBSITES OR TO TRANSACT WITH ANY SUCH THIRD-PARTY, YOU DO SO ENTIRELY AT YOUR OWN RISK. By leaving the Sites, you may be subject to the terms, agreements and privacy policies of such Third-Party Websites.
- INTERACTIVE AREAS
On the Sites and/or as part of the Services, we may provide areas that allow for User interaction, including, without limitation, bulletin boards, chat areas, forums, blogs, instant messaging, frequently asked questions, or other message and communications features (collectively, the “Interactive Areas”) for posting user feedback, comments, messages or other input (collectively, “Comments”). You acknowledge and agree that we may display your Comments on the Sites and use them for other marketing and business activities. In addition, we have no obligation to monitor the Interactive Areas but we may do so in our sole discretion and reserve the right to review Comments posted to the Interactive Areas and to remove any Comments, at any time, with or without notice for any reason, at our sole and absolute discretion. We may also terminate or suspend your access to any Interactive Area at any time, without notice, for any reason. You acknowledge that Comments posted by Users in the Interactive Areas are neither endorsed nor controlled by us, and these Comments should not be considered reviewed or approved by us. We will not under any circumstances be liable for any activity within Interactive Areas. You agree that all your Comments posted in the Interactive Areas are public, and thus you have no expectation of privacy regarding your use of the Interactive Areas. We are not responsible for information that you choose to share in the Interactive Areas, or for the actions of other Users. Additionally, you agree to post only Comments that are proper, lawful and related to the particular discussion or the Interactive Area itself. Without limitation of the foregoing, you may not post Comments or engage in any other activity on the Sites that:
- is libelous, defamatory or slanderous or threatens, abuses or otherwise violates the legal rights of others;
- is harmful to children, profane, obscene or sexually suggestive or contains explicit sexual content (including nudity);
- does or may denigrate or offend any individual or group on the basis of race, color, religion, sex, gender identity, sexual orientation, ethnicity, age or disability;
- infringes another’s publicity, privacy, copyright or other intellectual property rights;
- collects or stores personal information about other Users;
- constitutes unauthorized or unsolicited advertising, junk or bulk e-mail, chain letters, contests or surveys (unless you have our prior written consent to do so), any other form of unauthorized solicitation, or any form of lottery or gambling;
- contains, transmits or disseminates spam, chain letters or information intended to assist in the placement of a bet or wager;
- contains, transmits or disseminates viruses, corrupted files or any software, programs or other computer code that that is designed or intended to disrupt, damage, or limit the functioning of any software, hardware or telecommunications equipment, or to damage or obtain unauthorized access to any data or other information of any third party;
- disrupts or otherwise interferes with the Sites or the networks or servers we use;
- impersonates any person or entity or misrepresent your connection or affiliation with any person or entity; or
- violates any applicable law or these Terms.
You agree to indemnify, defend and hold the Company, and each of its officers, managers, members, shareholders, employees, agents, affiliates, representatives, suppliers, licensors, successors and assigns (collectively, the “Indemnified Parties”), harmless from and against any losses, liabilities, damages, costs or expenses (including reasonable attorneys’ fees and costs) (collectively, “Losses”), directly or indirectly, arising out of or in any way relating to: (a) your use of and access to the Sites and the Services; (b) your violation of any term of these Terms, including, without limitation, your breach of any of the representations and warranties herein; (c) your violation or infringement of any third-party right, including, without limitation, any right of privacy or intellectual property rights, or damage to a third party; (d) your information or materials contributed to or submitted through the Sites or the Services, including, without limitation, any User Materials and any information associated with your Account; (e) your violation of any applicable law, rule or regulation; (f) your gross negligence or willful misconduct; or (g) your use of the electronic signature lease execution functionality of the Sites, including without limitation, the sufficiency of an electronic signature or the enforceability of an electronically signed lease (collectively, “Claims”). You are solely responsible for defending any such Claims, and for payment of any Losses resulting from the foregoing to both a third party and to the Indemnified Parties. We shall have the right, in our sole discretion, to select our own legal counsel to defend the Indemnified Parties from any Claims (but by doing so shall not excuse your indemnity obligations) and to control the defense and disposition (including any possible settlement) of any Claims at your sole cost and expense. Without limitation of the foregoing, you shall not, without our prior written approval, settle, dispose or enter into any proposed settlement or resolution of any Claim (whether having been finally adjudicated or otherwise) brought against you, if such settlement or resolution results in any obligation or liability on the part of any of the Indemnified Parties. You agree to notify us immediately if you become aware of any actual or potential claims, suits, actions, allegations or charges that could affect your or our ability to fully perform your and our respective duties or to exercise your or our rights under these Terms.
- DISCLAIMER OF WARRANTIES
YOUR USE OF THE SITES AND THE SERVICES IS AT YOUR SOLE RISK. THE SITES AND SERVICES, AND ALL MATERIALS AND INFORMATION INCLUDED THEREIN, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND. THE COMPANY AND ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE FOREGOING, THE COMPANY AND ITS LICENSORS MAKE NO REPRESENTATION OR WARRANTY: (A) REGARDING THE SECURITY, ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS AND PERFORMANCE OF THE SITES OR SERVICES; (B) REGARDING THE SERVICES OR ANY ADVICE, INFORMATION OR LINKS OBTAINED THROUGH THE SITES; (C) THAT THE SITES OR SERVICES, OR ANY INFORMATION OR MATERIALS INCLUDED THEREIN, WILL MEET YOUR REQUIREMENTS; (D) THAT THE SITES OR SERVICES, OR ANY FUNCTIONS CONTAINED IN THE SITES, WILL BE ERROR-FREE, SECURE, TIMELY OR UNINTERRUPTED; (E) THAT THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SITES OR SERVICES, OR ANY INFORMATION OR MATERIALS INCLUDED THEREIN, WILL BE ACCURATE, RELIABLE OR AVAILABLE; (F) THAT ANY ERRORS IN THE SITES OR SERVICES, OR ANY INFORMATION OR MATERIALS INCLUDED THEREIN, WILL BE CORRECTED; OR (G) THAT THE SITES AND ITS CONTENTS, AND THE SERVERS THAT MAKE THE SITES AVAILABLE, ARE FREE OF ANY VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH YOUR USE OF THE SITES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT MAY RESULT FROM SUCH DOWNLOAD OR YOUR USE OF THE SITES OR SERVICES.
WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT, SERVICE OR WEBSITE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITES OR THROUGH ANY HYPERLINKED WEBSITE, AND, UNLESS WE OTHERWISE AGREE, WE WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, YARDI OR ANY OF OUR PROPERTY MANAGEMENT SERVICE PROVIDERS.
SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN REPRESENTATIONS OR WARRANTIES. ACCORDINGLY, SOME OF THE DISCLAIMERS SET FORTH ABOVE MAY NOT APPLY TO YOU.
- LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY, OR ITS OFFICERS, MANAGERS, MEMBERS, SHAREHOLDERS, EMPLOYEES, AGENTS, AFFILIATES, REPRESENTATIVES, SUPPLIERS, LICENSORS, SUCCESSORS OR ASSIGNS (COLLECTIVELY, THE “COMPANY ASSOCIATES”), BE LIABLE TO YOU OR ANY THIRD PARTY FOR:
(A) ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) OR ANY DAMAGES WHATSOEVER ARISING OUT OF OR RELATING TO (I) YOUR ACCESS AND USE OF, OR INABILITY TO ACCESS OR USE, THE SITES AND/OR ANY SERVICES OR (II) ANY CONTENT OR SERVICES AVAILABLE TO YOU FROM OR THROUGH THE SITES OR SERVICES;
(B) ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER OF THE SITES OR SERVICES. WITHOUT LIMITING THE FOREGOING, NONE OF THE COMPANY ASSOCIATES WILL BE LIABLE FOR ANY LOSS OR DAMAGE ARISING OUT OF (I) YOUR FAILURE TO COMPLY WITH SUBSECTION 8.1 (YOUR ACCOUNT) OR (II) ANY CONTENT POSTED TO THE SITE OR OTHER SERVICE BY YOU OR ANY THIRD PARTY;
(C) THE CONTENT OR SERVICES PROVIDED BY ANY WEBSITE PURPORTING TO BE OPERATED BY THE COMPANY, BUT NOT ACTUALLY AFFILIATED WITH, CONTROLLED, OWNED, OR OPERATED BY THE COMPANY;
(D) THE CONTENT OF ANY WEBSITE NOT CONTROLLED, OWNED OR OPERATED BY THE COMPANY THAT IS ACCESSED FROM OR LINKED TO THE SITES; OR
(E) ANY DAMAGES OR INJURY ARISING FROM BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, OR THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF OUR SERVERS AND/OR ANY PERSONAL, FINANCIAL OR OTHER INFORMATION STORED THEREIN.
THE FOREGOING LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY OR WHETHER THE DAMAGES ARE FORESEEABLE, AND EVEN IF THE COMPANY ASSOCIATES, OR ANY OF THEM, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
IF, NOTWITHSTANDING THE FOREGOING, LIABILITY CAN BE IMPOSED ON THE COMPANY OR ANY COMPANY ASSOCIATES, THEN IN NO EVENT WILL THE AGGREGATE LIABILITY OF THE COMPANY ASSOCIATES TO YOU FOR ANY AND ALL LOSSES, DAMAGES OR INJURIES ARISING OUT OF OR RELATING TO THE SITES OR SERVICES OR THESE TERMS EXCEED ONE HUNDRED U.S. DOLLARS ($100.00). REMEDIES UNDER THESE TERMS ARE EXCLUSIVE AND ARE LIMITED TO THOSE PROVIDED FOR HEREIN.
YOU ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH ABOVE ARE AN ESSENTIAL BASIS OF THE BARGAIN AND OF THE ALLOCATION OF RISKS BETWEEN YOU AND THE COMPANY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF DAMAGES, OUR LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY THE LAW OF SUCH JURISDICTION.
You acknowledge that we have the right to investigate and prosecute violations of these Terms, including, but not limited to, infringement of intellectual property, publicity and privacy rights and Site security issues, to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting Users who violate these Terms. You acknowledge that we have no obligation to monitor your access to or use of the Sites or the Services, but we have the right to do so for the purpose of operating the Sites and the Services, to ensure your compliance with these Terms or to comply with applicable law or the orders or requirements of a court, administrative agency or other governmental body. We do not assume responsibility to you or others for any failure on our part to enforce any of the provisions contained in these Terms.
You agree that we may, in our sole discretion and with or without notice, terminate your use of the Sites or any part thereof, or any or all of the Services, for any reason, including, but not limited to: (a) permitting another person or entity to use your user identification to access the Sites or Services; (b) any unauthorized access or use of the Sites or Services; (c) any violation of these Terms; (d) tampering with or alteration of any of the software and/or data files contained in, or accessed through, the Sites or Services; (e) failure to use the Services on a regular basis; or (f) abuse, deception or fraudulent behavior. We also may, in our sole discretion and at any time, discontinue providing the Sites, or any part thereof, or any or all of the Services with or without notice. You agree that any termination of your access to the Sites under any provision of the Terms may be effected without prior notice, and you acknowledge and agree that we may immediately bar any further access to the Sites. Further, you agree that we shall not be liable to you or any third party for any claims or damages arising out of any termination of your access to the Sites or Services.
- INTERNATIONAL USERS
The Sites are controlled and operated from facilities in the United States. The Company makes no representations that materials on the Sites are appropriate or available for use at locations outside of the United States and access to them from jurisdictions where the contents or services available through the Sites are illegal is prohibited. Those who access or use the Sites from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Sites or export the content or services available through the Sites in violation of U.S. export laws and regulations. You may not use the Sites if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials on the Sites are solely directed to individuals, companies or other entities located in the United States.
- BINDING ARBITRATION OF ALL DISPUTES
We believe that arbitration is a faster, more convenient and less expensive way to resolve any complaints, disputes or disagreements that you may have with us. Therefore, pursuant to these Terms, if you have any complaint, claim, dispute or disagreement (each, a “Dispute”) with us regarding or relating to (i) your use of or interaction with the Sites or Services, (ii) any transactions or relationships with us, or (iii) any data or information you may provide to us or that we may gather in connection with such use, interaction, transaction or relationship (collectively, “Company Transactions or Relationships”), you will not have the right to pursue a claim in court or have a jury decide the claim and you will not have the right to bring or participate in any class action or similar proceeding in court or in arbitration. By using or interacting with the Sites or Services, or engaging in any other Company Transactions or Relationships with us, you agree to binding arbitration as provided below.
- The Arbitration shall be conducted before a single arbitrator selected in accordance with the Applicable Rules or by mutual agreement between you and us (the “Arbitrator”).
- The Arbitrator, and not any federal, state or local court or agency, shall have the exclusive authority to resolve any dispute arising under or relating to the validity, interpretation, applicability, enforceability or formation of these Terms and/or these arbitration provisions hereof, including, but not limited to, any claim that all or any part of these Terms is void or voidable.
- The Arbitration shall be conducted in the English language and held either: (i) in Los Angeles County, State of California, United States; (ii) at such other location as may be mutually agreed upon by you and us; or (iii) at your election, if the only claims in the arbitration are asserted by you and are for less than $10,000 in aggregate, by telephone or by written submission.
- The Arbitrator (i) shall apply the internal laws of the State California consistent with the Federal Arbitration Act and applicable statutes of limitations or, to the extent (if any) that federal law prevails, shall apply the law of the United States, without regard to any conflict of law principles; (ii) shall entertain any motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication or any other dispositive motion consistent with California or federal rules of procedure, as applicable; (iii) shall honor claims of privilege recognized at law; and (iv) shall have authority to award any form of legal or equitable relief.
- The Arbitrator shall issue a written award supported by a statement of decision setting forth the Arbitrator’s complete determination of the dispute and the factual findings and legal conclusions relevant to it (an “Award”). Judgment upon the Award may be entered by any court of competent jurisdiction.
- Notwithstanding anything to the contrary contained in this Section 19, a party may seek equitable relief by court action before or after instituting arbitration, including, without limitation, seeking and obtaining temporary restraining orders, injunctions or other provisional, ancillary or equitable remedies, and the institution and maintenance of any such action shall not constitute a waiver of the right to arbitrate any controversy or claim.
- ANY ARBITRATION WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR REPRESENTATIVE BASIS. NEITHER YOU NOR THE COMPANY SHALL BE A MEMBER IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR PROCEEDING, AND THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL DISPUTE OR CLAIM.
- UNLESS BOTH YOU AND THE COMPANY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S DISPUTES OR CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
- THE COMPANY DOES NOT CONSENT TO CLASS ARBITRATION. ACCORDINGLY, IF A COURT REFUSES TO ENFORCE THE PROVISIONS IN SECTIONS (G) AND (H) ABOVE REGARDING CLASS, CONSOLIDATED OR REPRESENTATIVE PROCEEDINGS, THEN THESE ARBITRATION PROVISIONS SHALL BE UNENFORCEABLE AS TO YOU WITH RESPECT TO YOUR DISPUTE AND NEITHER YOU NOR THE COMPANY SHALL BE ENTITLED TO ARBITRATE THE DISPUTE AND MUST INSTEAD BRING ANY CLAIMS IN A COURT OF COMPETENT JURISDICTION. WHETHER A DISPUTE OR CLAIM PROCEEDS IN COURT OR IN ARBITRATION, YOU AND THE COMPANY HEREBY WAIVE ANY RIGHT TO A JURY TRIAL.
- We may make changes to this arbitration provision from time to time. You may reject any material changes by sending us a written objection within thirty (30) days of the change to FCE Wilton, LLC, 7551 W. Sunset Blvd., Suite 203, Los Angeles, CA 90046, Attention: Legal Department. By rejecting any future material change, you are agreeing to arbitrate in accordance with the language of these arbitration provisions. If you do not send written objection to any change as provided above, you are agreeing to arbitration in accordance with the changed language of these arbitration provision. To the extent that an arbitrator or court of applicable jurisdiction determines that applying any changes to this arbitration provision to any Disputes relating to prior events or circumstances would render this an illusory or unenforceable contract or otherwise violate your legal rights, such changes shall be applicable on a prospective basis only, with respect to events or circumstances occurring after the effective date of such changes, and in that case any Disputes relating to such prior events or circumstances shall be arbitrated in accordance with the language of these arbitration provision without such changes to the extent necessary to avoid these Terms being deemed illusory or unenforceable.
- Notwithstanding the foregoing arbitration provisions, at your option, you may bring any claim you have against us in small claims court rather than by arbitration if your claim qualifies for small claims court in a location where jurisdiction and venue over you and us are proper; provided that such court does not have the authority to entertain any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated in such proceeding.
- CONTACT US
If you have any questions or concerns regarding these Terms or your use of any Sites or Services, please contact us by using the “Contact Us” or similar contact link in the footer or on the homepage of any of the Sites, by email at [email protected] or in any one of the following ways:
FCE Wilton, LLC
Attn: Customer Service
7551 W. Sunset Blvd., Suite 203
Los Angeles, CA 90046
Phone: (323) 883-1800
TTY: Dial 7-1-1 to initiate a TTY relay service. You then will be connected with a communication assistant who will ask you for our number, please use (323) 883-1800.