PropTech Holdings, LLC. dba BrokerRank (“BrokerRank“) provides a public web portal featuring profiles of a variety of service providers (collectively, “Service Providers“) to allow you, the user (“You”), the opportunity to read about the experiences other users have had with these Service Providers and to provide Your own reviews and ratings on the Service Providers You use. All products and services described in this Section, as well as any other products and services offered by BrokerRank at any time shall be defined herein as “Service” or “Services.” In order to use the Service, You must read and accept all of the terms and conditions in, and linked to, this Membership Agreement (this “Agreement“). This Agreement may be modified by BrokerRank from time to time at our sole discretion, and You will receive notice if modifications to the Agreement are made. We strongly recommend that, as You read this Agreement, You also access and read the linked information. By accepting this Agreement, You also agree that Your use of some BrokerRank-branded websites or other websites we operate may be governed by separate terms and conditions, agreements and privacy policies. BY ACCEPTING THE TERMS OF THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY ALL OF THE TERMS, CONDITIONS AND NOTICES CONTAINED IN THIS AGREEMENT JUST AS IF YOU HAD SIGNED THIS AGREEMENT.
- REGISTRATION INFORMATION
As a condition of Your use of the Service, You agree to: (a) provide BrokerRank with true, accurate, current and complete information as prompted by the BrokerRank’s registration forms, when registering for or using the Service; and (b) update and maintain the truthfulness, accuracy and completeness of such information.
- MINIMUM AGE
You must be 18 years of age or older to use or register for Services.
- USE VOID WHERE PROHIBITED
Membership in the Service is void where prohibited.
- SERVICE FEES AND BILLING METHODS; AUTOMATIC RENEWAL
BrokerRank will charge You a membership fee in order to provide the Service. Your membership fee is the amount You were charged for Your subscription or Plan, not including any promotions or discounts that may have been applied (the “Membership Fee”). For this or other reasons, the Membership Fee might be different than the amount paid by another new or existing member who purchased the same services in the same market. You may check Your account online or call an BrokerRank call center representative if You have any questions. You acknowledge that BrokerRank reserves the right, at any time, to modify its Membership Fees and billing methods. Membership Fees for access to the Service may be made either on a monthly or annual basis. Annual Membership Fees may be paid in advance by cash, check, credit card, debit card or PayPal. Monthly Membership Fees and Additional List Fees may only be paid in advance by credit card, debit card or PayPal. All membership subscriptions will be automatically renewed upon the terms set forth below, unless such membership subscription is cancelled or terminated as provided below or unless You opt out of the automatic renewal feature as provided below.
Monthly Payment Subscriptions:
If You currently have or select a monthly payment subscription, each month BrokerRank will automatically renew Your membership on a month-to-month basis at the Membership Fee (as such Membership Fee may be modified as provided above) using the credit card, debit card or other payment information on file with BrokerRank. Each monthly renewal payment will take place on or about Your expiration date. If the renewal of Your monthly membership fails for any reason, we will attempt to process Your renewal for a period up to one hundred eighty (180) days in accordance with our standard renewal practices then in effect (which may be modified from time to time by BrokerRank). Except as otherwise required by applicable law, You agree that BrokerRank will not provide You with any notices prior to each monthly renewal payment.
Annual Payment Subscriptions:
If You select an annual payment subscription, BrokerRank will automatically renew Your annual membership for one year at the Membership Fee for annual memberships (as such membership fee may be modified as provided above) using the credit card, debit card or other payment information on file with BrokerRank. Such annual renewal payment will take place on or about Your expiration date. If the renewal of Your annual membership fails for any reason, we will attempt to process Your renewal for a period up to one hundred eighty (180) days in accordance with our standard renewal practices then in effect (which may be modified from time to time by BrokerRank). Except as otherwise required by applicable law, You agree that BrokerRank will not provide You with any notices prior to each annual renewal payment.
Additional List Subscription:
If You purchased a subscription other than a membership plan, the initial subscription selected by You is considered Your “primary” subscription. You formerly had to option to purchase access to additional subscriptions through Your membership by using the Additional List feature located on the Website.
If You received a free offer to access all subscriptions in the Service, BrokerRank will renew Your membership at the Membership Fee (as such Membership Fee may be modified as provided above) using the credit card, debit card or other payment information on file with BrokerRank. All existing memberships will be renewed at the Membership Fee (as such Membership Fee may be modified as provided above) and will include access to all purchased subscriptions unless You otherwise elect to cancel access to a particular subscription in accordance with the provisions set forth below.
If You received a free offer for Your Additional List subscription, BrokerRank will provide You notice via email prior to renewing the Additional List at the Membership Fee (as such Membership Fee may be modified as provided above) using the credit card, debit card or other payment information on file with BrokerRank.
Upgrading and Downgrading Plans:
If You upgrade Your Plan during the term, You will be purchasing an additional annual subscription. At the time of the upgrade, Your first subscription shall be upgraded to the new Plan, and You agree to pay for the new Plan at that time. Your second subscription shall begin at the expiration of the first subscription. For the sake of clarity, the fee will be the amount of the new Plan at the time You requested the upgrade.
If You downgrade Your Plan during the term, You shall receive a refund of the difference between Your current Plan and the new Plan. This applies only to downgrades, not to cancellations.
Switching from Paid Membership to Referral Membership:
If You change your plan from a paid membership to a referral membership, you referral membership will begin automatically, however, no refunds will be provided for any remaining balance due under your paid membership agreement.
Switching from Referral Membership to Paid Membership:
If You change your plan from a referral membership to a paid membership, any referral customers sent to you while your referral membership was active shall be paid according to the referral agreement. Switching plans doesn’t automatically void the referral agreement.
Canceling Your Subscription:
If you decide to cancel Your subscription, in order to avoid renewal, Your cancellation request must be received by no later than 5:00 p.m. Pacific Standard Time on the business day prior to Your scheduled renewal payment date. You may cancel Your subscription in the Edit Account section of your dashboard, or by contacting BrokerRank by first class certified mail at P.O. Box 601941, San Diego, CA 92160; or by email at firstname.lastname@example.org
BrokerRank may, from time to time and in its sole discretion, offer certain products or services as incentives (“Incentives”) to select one of the Membership Plans (e.g., a free Android tablet for members who select the Annual Membership Plan). BrokerRank is neither the seller nor manufacturer of the Incentives and disclaims any and all liability and warranties of any kind relating to the Incentives, the use of the Incentives, and the tax implications of receiving the Incentives. You agree that You shall not bring any action against BrokerRank relating in any way to the Incentives. In the event that an Incentive is lost, does not operate properly, or is otherwise incorrect, unfit, or unusable in any way, You agree that BrokerRank has no responsibility for replacing the Incentive.
- ACCOUNT SECURITY
BrokerRank will assign You a user ID and a password when You register. Your user ID and password may only be used by You. You are solely responsible for maintaining and protecting the confidentiality of Your user ID and password, and are fully responsible for all activities that occur under Your user ID and password.
- LIMITED LICENSE TO WEBSITE
By agreeing to the terms and conditions of this Agreement, BrokerRank grants You a limited license to access and use the profiles, reviews and ratings offered by the Service. You acknowledge and agree that You will not access, reproduce, duplicate, copy, sell, re-sell, visit or otherwise exploit for any commercial, educational, or any other non-personal purpose the reviews and ratings and any content, without the express written consent of BrokerRank.
- SUBMISSIONS OF REVIEWS
In order for You to submit Your own reviews and ratings on the Website, You acknowledge and agree that:
(a) all of Your reviews and ratings will either be based upon: (i) Your actual first-hand experiences with the Service Providers You are reviewing; or (ii) an individual and that individual’s actual first-hand experience with a provider whereby You have the legal authority to disclose such health information and experience of such individual;
(b) all of Your reviews and ratings of the Service Providers that You are rating will be accurate, truthful and complete in all respects;
(c) You do not work for, own any interest in, or serve on the board of directors of, any of the Service Providers for which You submit reviews and ratings;
(d) You do not work for, own any interest in or serve on the board of directors of any competitors of the Service Providers for which You submit reviews and ratings;
(e) You are not in any way related (by blood, adoption, marriage, or domestic partnership, if the Service Provider is an individual) to any of the Service Providers for which You submit reviews or ratings; and
(f) Your name and review information will be made available to the Service Providers on which You review.
- COMPLAINT RESOLUTION PROCESS
If You have a dispute with a Service Provider and an active, qualifying Plan, You may request BrokerRank’s assistance in communicating with that Service Provider about Your desired resolution (the “Complaint Resolution Process” or the “CRP”).
You may request to participate in the CRP through our Website or by contacting a member care representative. You then will be requested to complete and return to BrokerRank certain documentation relating to Your complaint. Shortly thereafter, a member of our Complaint Resolution Team will contact You to obtain additional information and understand Your desired resolution. The Complaint Resolution Team then will contact the Service Provider to explain Your complaint and desired resolution and to ask the Service Provider to respond in writing within a reasonable timeframe.
If the Service Provider agrees to Your desired resolution or supplies a counteroffer that You find acceptable, the case is considered resolved, Your review regarding the Service Provider will be removed, and You will have the opportunity to submit updated feedback about Your experience. If the Service Provider responds but does not resolve the matter as described above, Your feedback shall remain unchanged.
Your participation in the CRP is at BrokerRank’s sole discretion. We reserve the right to reject Your request to participate for any reason. By participating in the CRP, You consent to have Your complaint and a story about the circumstances relating to the CRP published in our online publications.
The CRP is not a legal forum and BrokerRank does not, at any time, become a party to Your dispute with the Service Provider. BrokerRank is neither a mediator nor an arbitrator and does not provide legal advice or assistance. If You believe legal services are necessary or would be helpful to resolve Your dispute with a Service Provider, BrokerRank encourages You to consult with an attorney. BrokerRank does not guarantee that Your participation in the CRP will result in a satisfactory outcome or Your desired resolution. You agree that, by offering the CRP, BrokerRank does not waive any of its disclaimers or limitations of liability, including without limitation those set forth under Sections 13 (Service Providers), 22 (Warranty Disclaimer), and 23 (Limitation of Liability).
- CONTENT LICENSE
Although BrokerRank does not claim ownership of any of the reviews, ratings, communications, information, data, text or other materials You give us (collectively, the “Content“), by providing Content for the Website, You automatically grant, and You represent and warrant that You have the right to grant, to BrokerRank an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, reproduce, adapt, modify and distribute such Content and to prepare derivative works of, or incorporate into other works, such Content, and to grant and to authorize sublicenses (through multiple tiers) of the foregoing. In addition, by providing BrokerRank with Content, You automatically grant us all rights necessary to prohibit the subsequent aggregation, display, copying, duplication, reproduction or exploitation of the Content on our Website or in the Magazine by any other party.
- PUBLICATION AND DISTRIBUTION OF CONTENT
BrokerRank does not guarantee the accuracy, integrity, quality or appropriateness of any Content transmitted to or through the Service. You acknowledge that BrokerRank simply acts as a passive conduit and an interactive computer service provider for the publication and distribution of Content and for the publication and distribution of any content posted by Service Providers in response to Content (“Service Provider Content”). You understand that all Content and Service Provider Content posted on, transmitted through or linked through the Service, are the sole responsibility of the person from whom such Content originated. You understand that BrokerRank does not control, and is not responsible for Content or Service Provider Content made available through the Service, and that by using the Service, You may be exposed to Content that is inaccurate, misleading, or offensive. You agree that You must evaluate and make Your own judgment, and bear all risks associated with, the use of any Content and Service Provider Content.
You further acknowledge that BrokerRank has no obligation to screen, preview, monitor or approve any Content or Service Provider Content, or Content posted or submitted by any other BrokerRank member or any Service Provider. However, BrokerRank reserves the right to review and delete any Content that, in its sole judgment, violates the terms and conditions of this Agreement. By using the Service, You agree that it is solely YOUR RESPONSIBILITY to evaluate Your risks to bear associated with the use, accuracy, usefulness, completeness or appropriateness of any Content that You submit, receive, access, transmit or otherwise convey through the Service. Under no circumstances will BrokerRank be liable in any way for any Content or Service Provider Content, including, but not limited to, any Content or Service Provider Content that contains any errors, omissions, defamatory statements, or confidential or private information or for any loss or damage of any kind incurred as a result of the use of any Content or Service Provider Content submitted, accessed, transmitted or otherwise conveyed via the Service. You waive the right to bring or assert any claim against BrokerRank relating to Content or Service Provider Content, and release BrokerRank from any and all liability for or relating to any Content or Service Provider Content.
- SERVICE PROVIDERS
BrokerRank does not endorse and is not responsible or liable for any Content, Service Provider Content, data, advertising, products, goods or services available or unavailable from, or through, any Service Providers (which includes, but is not limited to, health care and wellness providers). You agree that should You use or rely on such Content, Service Provider Content, data, advertisement, products, goods or services, available or unavailable from, or through any Service Provider, BrokerRank is not responsible or liable, indirectly or directly, for any damage or loss caused or alleged to be caused by or in connection with such use or reliance. Your dealings with, or participation in promotions of any Service Provider, and any other terms, conditions, representations or warranties associated with such dealings, are between You and such Service Provider exclusively and do not involve BrokerRank. You should make whatever investigation or other resources that You deem necessary or appropriate before hiring or engaging Service Providers.
You agree that BrokerRank is not responsible for the accessibility or unavailability of any Service Provider or for Your interactions and dealings with them, waive the right to bring or assert any claim against BrokerRank relating to any interactions or dealings with any Service Provider, and release BrokerRank from any and all liability for or relating to any interactions or dealings with Service Providers.
BrokerRank may, in its sole discretion, have criminal and/or financial background checks conducted on certain Service Providers. By having such background checks conducted, BROKERRANK DOES NOT WAIVE ANY OF ITS DISCLAIMER OR LIMITATIONS OF LIABILITY, INCLUDING WITHOUT LIMITATION, THOSE SET FORTH UNDER THIS SECTION, SECTION 24 (WARRANTY DISCLAIMER), OR SECTION 25 (LIMITATION OF LIABILITY).
- YOUR CONDUCT
In connection with Your use of the Service, You represent and warrant that You:
(a) are above the age of eighteen (18);
(b) will abide by the letter and spirit of the terms and conditions of this Agreement and all applicable local, state, national or international laws;
(c) will not submit any reviews that may be considered by BrokerRank to be unlawful, harassing, libelous, abusive, threatening, obscene, profane, hateful, offensive, harmful, vulgar, distasteful, defamatory, invasive of another person’s privacy or proprietary rights, or racially, ethnically or otherwise objectionable;
(d) will submit thorough and thoughtful reviews of the Service Providers You review (for example, submitting a review describing a service contractor as “He/She is great.” without additional commentary is not a thorough and thoughtful review);
(e) will not submit reviews that comment on other users or the reviews of other users;
(f) will not impersonate, or attempt to impersonate, any other person, falsify contact information, misrepresent a relationship with any person or entity, including misrepresenting a relationship with BrokerRank, or otherwise attempt to mislead others as to the identity of the sender or the origin of a review or rating;
(g) will not submit reviews that are encrypted or that contain viruses, Trojan horses, worms, time bombs, spiders, cancelbots or other computer programming routines that are intended to damage, interfere with, disrupt, impair, disable or otherwise overburden our Website;
(h) will not access, download or copy any information contained on our Website through artificial means (including but not limited to spiders, hacking devices, computer programs, bots or other such means);
(i) will not post non-local or otherwise irrelevant Content, repeatedly post the same or similar Content or otherwise impose an unreasonable or disproportionately large load on our infrastructure;
(j) will not take any action that would undermine the review and rating process under the Service;
(k) will not attempt to gain unauthorized access to the Service, other user accounts, or other computer systems or networks connected to the Service;
(l) will not use the Service in any manner that infringes, misappropriates or violates any third party’s rights, including, but not limited to, transmitting any material that may infringe, misappropriate or violate a third party’s rights of publicity, contractual rights, fiduciary rights or intellectual property rights;
(m) will not use the Service in any way that could interfere with the rights of BrokerRank or the rights of other users of the Service;
(n) have sufficient rights in and to all Content that You provide, transmit or otherwise convey to BrokerRank in connection with the Service;
(o) agree not to re-sell or assign Your rights or obligations under this Agreement;
(p) will not reproduce, duplicate, copy, sell, re-sell or exploit any Content;
(q) will not access any Content for any commercial, educational or other purposes not related to Your personal purchasing decisions, the express written consent of BrokerRank, which consent may be withheld by BrokerRank in our discretion;
(r) grant us an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, reproduce, adapt, modify and distribute the Content and to prepare derivative works of, or to incorporate such Content into other works, and to grant and to authorize sublicenses of the foregoing;
(s) agree not to create an account or use BrokerRank services if Your account previously has been terminated by BrokerRank or if You previously have been banned from using the services; and
(t) agree not to: (i) register for more than one account or register for an account on behalf of an individual other than yourself; (ii) impersonate any person or entity, including, but not limited to, BrokerRank personnel, or falsely state or otherwise misrepresent Your affiliation with a person or entity; or (iii) advocate, encourage or assist any third party in doing any of the foregoing activities in this subsection.
The reviews and ratings that You provide do not reflect the views of BrokerRank, its officers, managers, owners, employees, agents, designees or other users. In addition, BrokerRank retains the right, in its sole discretion, to determine whether or not Your use of the Service is consistent with the terms and conditions of this Agreement. BrokerRank may suspend, restrict or terminate Your use of the Service and to refuse any future use of all or portions of the Service if Your use breaches or fails to comply with any of the terms and conditions of this Agreement. Additionally, BrokerRank may seek any and all other remedies available to it, including: (a) seeking injunctive relief with any court of competent jurisdiction to enjoin any breach or failure to comply with any of the terms and conditions of this Agreement; and/or (b) if damages are ascertainable, seeking damages relating to any breach or failure to comply with any of the terms and conditions of this Agreement.
- DISCLOSURE OF INFORMATION
As BrokerRank continues to develop its business, it might sell or buy other companies or assets or be acquired or have substantially all of its assets acquired by a third party. In such transactions, customer information generally is one of the transferred business assets. You hereby consent to the transfer of Your information as one of the transferred assets and to be used for any purpose allowed under this Agreement.
- TERM AND TERMINATION
The initial term of this Agreement will be defined in Your membership Plan, and will continue for automatic subscription renewals thereafter until termination by either party in accordance with the terms of this Agreement.
BrokerRank may, for any reason in its sole discretion, immediately terminate this Agreement, Your account and Your access to the Service. If BrokerRank merely terminates Your account for its convenience and You are not in breach of this Agreement, BrokerRank will refund Your membership fees on a pro rata basis from the date of such termination to the end of the then current term.
Termination of Your account will include removal of Your access to all offerings of the Service, deletion of Your password, deletion of all related information and files, may include the deletion of the Content associated with Your account (or any part thereof), and barring Your further use of the Service.
- MODIFICATION OF TERMS AND CONDITIONS
BrokerRank will have the right to modify and restate the terms and conditions of this Agreement, and such modification(s) will be effective immediately upon being posted on our Website (www.brokerrank.com). You will receive notice if modifications to the Agreement are made. BrokerRank will make note of the date of the last update to the Agreement on the first page of this Agreement. You are responsible for reviewing these terms and conditions regularly. Your continued use of the Service after such modifications will be deemed to be Your conclusive acceptance of all modifications to this Agreement. If You are dissatisfied as a result of such modification(s), Your only recourse is to immediately discontinue use of the Service.
- MODIFICATION, LIMITATION AND DISCONTINUANCE OF SERVICE
BrokerRank reserves the right at any time to limit access to, modify, change or discontinue the Service with or without notice to You and we shall not be liable to You for any such modification, suspension or discontinuance of the Service. You agree that BrokerRank will not be liable to You or to any third party for any such limitation, modification, change, suspension or discontinuance of the Service. You agree that BrokerRank may establish general practices, policies and limits, which may or may not be published, concerning the use of the Service, including without limitation, the time that reviews and ratings will be retained, the maximum number of reviews and ratings that may be sent from an account, the length of reviews and ratings sent, and the maximum number of times and the maximum duration for which You may access the Service in a given period of time. You agree that BrokerRank has no responsibility or liability for the deletion or failure to store any reviews, ratings and other communications maintained or transmitted by or through the Service. You agree that BrokerRank has the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
The Service may be subject to limitations, delays and other problems inherent in the use of the Internet and electronic communications. BrokerRank is not responsible for any delays, failures or other damage resulting from such problems.
- USER FEEDBACK
BrokerRank appreciates hearing from You, as well as our other users, and welcomes Your comments regarding our Service. Please be advised, however, that our policy does not permit us to accept or consider creative ideas, suggestions, or materials other than those which we have specifically requested. Although we do value Your feedback on our Service, please be specific in Your comments regarding our services and do not submit creative ideas, suggestions or materials. If, despite our request, You send us creative suggestions, ideas, drawings, concepts or other information (collectively, the “Submissions“), such Submissions will be the property of BrokerRank. In addition, none of the Submissions will be subject to any obligations of confidentiality and BrokerRank will not be liable for any future use or disclosure of such Submissions.
- COPYRIGHT MATERIALS
Aside from user-submitted Content and Service Provider Content, all other materials and other information on the Website and the Magazine, including, but not limited to, all text, graphics, logos, icons, images, audio clips, downloads, data compilations and software (collectively, the “Copyright Materials”) are the exclusive property of BrokerRank and/or its licensors and are protected by all United States and international copyright laws.
- WARRANTY DISCLAIMER
You understand and agree that THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THAT BROKERRANK ASSUMES NO RESPONSIBILITY OR LIABILITY FOR THE TIMELINESS, DELETION OF CONTENT OR FAILURE BY THE SERVICE. BROKERRANK EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OR ANY WARRANTY THAT (A) THE SERVICE WILL MEET YOUR REQUIREMENTS, (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (D) ANY CONTENT OR INFORMATION YOU PROVIDE OR BROKERRANK COLLECTS WILL NOT BE DISCLOSED OR (E) ANY ERRORS IN ANY SERVICE WILL BE CORRECTED. YOU AGREE THAT USE OF THE SERVICE AND THE WEBSITE IS AT YOUR OWN RISK. In some jurisdictions, disclaimers of implied warranties are not permitted. In such jurisdictions, some of the foregoing disclaimers may not apply to You as they relate to implied warranties.
- LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT BROKERRANK WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COMPENSATORY, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF BROKERRANK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) (COLLECTIVELY, “DAMAGES“), RESULTING FROM: (A) THE USE OR INABILITY TO USE THE SERVICE; (B) THE COST OF ANY GOODS AND/OR SERVICES PURCHASED OR OBTAINED AS A RESULT OF THE USE OF THE SERVICE; (C) DISCLOSURE OF, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR INFORMATION OR CONTENT; (D) CONTENT YOU SUBMIT, RECEIVE, ACCESS, TRANSMIT OR OTHERWISE CONVEY THROUGH THE SERVICE; (E) STATEMENTS OR CONDUCT OF ANY SERVICE PROVIDERS OR OTHER THIRD PARTY THROUGH THE SERVICE; (F) ANY OTHER MATTER RELATING TO THE SERVICE; (G) ANY BREACH OF THIS AGREEMENT BY BROKERRANK OR THE FAILURE OF BROKERRANK TO PROVIDE THE SERVICE UNDER THIS AGREEMENT OR (H) ANY OTHER DEALINGS OR INTERACTIONS YOU HAVE WITH ANY SERVICE PROVIDERS (OR ANY OF THEIR REPRESENTATIVES OR AGENTS). THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. In some jurisdictions, limitations of liability are not permitted. In such jurisdictions, some of the foregoing limitations may not apply to You.
You understand and agree that Your unlimited access to the Content on the Website or in the Magazine represents a substantial portion of the value You receive from Your BrokerRank’s membership fee. THEREFORE, TO THE EXTENT BROKERRANK IS FOUND LIABLE FOR ANYTHING RELATED TO THIS AGREEMENT OR THE USE OF THE SERVICE, BROKERRANK’S LIABILITY FOR DAMAGES WILL NOT EXCEED THE EQUIVALENT OF ONE (1) MONTH OF MEMBERSHIP FEES (IF MEMBERSHIP FEES ARE PAID ON AN OTHER THAN MONTHLY BASIS IT WILL BE THE PRORATED VALUE OF MEMBERSHIP FEES OVER A ONE (1) MONTH PERIOD).
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT BROKERRANK CONTRACTS WITH A THIRD PARTY TO PROCESS YOUR PAYMENT OF MEMBERSHIP FEES TO BROKERRANK THROUGH THE USE OF A CREDIT CARD (A “CREDIT CARD PROCESSOR”). YOU UNDERSTAND AND AGREE THAT NEITHER A CREDIT CARD PROCESSOR NOR ANY OTHER PARTY INVOLVED IN THE CREDIT CARD PROCESSING PROCESS FOR BROKERRANK, INCLUDING, BUT NOT LIMITED TO, THE COMPANY ISSUING THE CREDIT CARD TO YOU AND THE MERCHANT BANK (COLLECTIVELY, THE “RELEASED PARTIES”) SHALL BE LIABLE FOR ANY DAMAGES (AS DEFINED HEREIN AND SUBJECT TO THE LIMITATIONS SET FORTH IN THIS SECTION SUFFERED BY YOU AS A RESULT OF THE FAILURE OF BROKERRANK TO PROVIDE SERVICES TO YOU UNDER THIS AGREEMENT OR ANY BREACH OF THIS AGREEMENT BY BROKERRANK. YOU HEREBY RELEASE EACH OF THE RELEASED PARTIES FROM ANY AND ALL DAMAGES YOU MAY SUFFER AS A RESULT OF THE FAILURE OF BROKERRANK TO PROVIDE SERVICES TO YOU UNDER THIS AGREEMENT OR ANY BREACH OF THIS AGREEMENT BY BROKERRANK. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS EACH OF THE RELEASED PARTIES FOR ANY AND ALL DAMAGES IT MAY SUFFER AS A RESULT OF YOUR BREACH OF THIS SECTION. YOU HEREBY UNDERSTAND AND AGREE THAT BROKERRANK SHALL BE SOLELY LIABLE FOR THE PAYMENT OF ANY DAMAGES TO YOU UNDER THIS AGREEMENT.
You agree to indemnify, defend and hold harmless BrokerRank, its officers, managers, owners, employees, agents, designees, users, successors, assigns, service providers and suppliers from and against all losses, liabilities, expenses, damages, claims, demands and costs, including reasonable attorneys’ fees and court costs due to or arising from: (a) any violation of this Agreement by You; (b) the inaccurate or untruthful Content or other information provided by You to BrokerRank or that You submit, transmit or otherwise make available through the Service; or (c) any intentional or willful violation of any rights of another or harm You may have caused to another. BrokerRank will have sole control of the defense of any such damage or claim.
- BREACH OF AGREEMENT AND LIQUIDATED DAMAGES
You understand and agree that, because damages are often difficult to calculate, if it becomes necessary for BrokerRank to pursue legal action to enforce the terms and conditions of this Agreement, You will be liable to pay us the following amounts as liquidated damages, which You accept as reasonable estimates of BrokerRank’s damages for the specified breaches of this Agreement:
(a) If You post Content in violation of this Agreement, You agree to promptly pay BrokerRank One Thousand Dollars ($1,000) for each item of Content posted in violation of this Agreement. We may (but shall not be required to) to issue You a warning before assessing damages.
(b) If You display, copy, duplicate, reproduce, sell, re-sell or exploit for any purpose any Content in violation of this Agreement, You agree to pay One Thousand Dollars ($1,000) for each item of Content displayed, copied, duplicated, reproduced, sold, re-sold or exploited in violation of this Agreement
(c) If You use computer programming routines that are intended to aggregate records or reviews from the Service or otherwise damage, interfere with, disrupt, impair, disable or otherwise overburden our Website, You agree to pay One Hundred Dollars ($100) for each review or record that is aggregated, disrupted, damaged or otherwise affected by You.
(d) Except as set forth in the foregoing subsections (a) through (c), inclusive, You agree to pay the actual damages suffered by BrokerRank, including, but not limited to attorneys’ fees and court costs, to the extent such actual damages can be reasonably calculated. Notwithstanding any other provision of this Agreement, we reserve the right to seek the remedy of specific performance of any term contained herein, or a preliminary or permanent injunction against the breach of any such term or in aid of the exercise of any power granted in this Agreement, or any combination thereof.
You agree that BrokerRank may communicate any notices to You under this Agreement, through electronic mail, regular mail or posting the notices on the Website. All notices to BrokerRank will be provided by either sending: (i) an email to email@example.com; or (ii) a letter, first class certified mail, to BrokerRank, P.O. Box 601941, San Diego, CA 92160, Attn: Member Services. Such notices will be deemed delivered upon the earlier of the verification of delivery or two (2) business days after being sent.
In accordance with the Digital Millennium Copyright Act of 1998, Title 17 of the United States Code, Section 512 (“DMCA”), BrokerRank will respond promptly to claims of copyright or trademark infringement that are reported to the agent that we have designated to receive notifications of claims infringement (its “Designated Agent”). Our Designated Agent is:
P.O. Box 601941
San Diego, CA 92160
Attn: Patrick Hale
If You are a copyright or trademark owner (or authorized to act on behalf of the copyright or trademark owner) and believe that Your work’s copyright or trademark has been infringed, please report Your notice of infringement to us by providing our Designated Agent with a written notification of claimed infringement that includes substantially the following:
- 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 trademark claimed to have been infringed, or, if multiple copyrighted works or trademarks at a single online site are covered by a single notification, a representative list of such works at that site;
- 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 information reasonably sufficient to permit us to locate the material;
- information reasonably sufficient to permit us to contact You, such as an address, telephone number, and, if available, an electronic mail address at which You may be contacted;
- 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 or trademark owner, its agent, or the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that You are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
BrokerRank will investigate notices of copyright and trademark infringement and take appropriate actions under the DMCA. Inquiries that do not follow this procedure may not receive a response.
- ENTIRE AGREEMENT
This Agreement governs Your use of the Service and constitutes the entire agreement between You and BrokerRank. It supersedes any prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between You and BrokerRank regarding the subject matter contained in this Agreement. Additional terms and conditions may exist between You and third parties, including but not limited to, Service Providers and others. You represent and warrant that those third party agreements do not interfere with Your obligations and duties to BrokerRank under this Agreement.
- GOVERNING LAW
This Agreement and the relationship between You and BrokerRank will be governed by the laws of the State of California, notwithstanding the choice of law provisions of the venue where any action is brought, where the violation occurred, where You may be located or any other jurisdiction. You agree and consent to the exclusive jurisdiction of the state or federal courts located in San Diego County, Indiana and waive any defense of lack of personal jurisdiction or improper venue or forum non conveniens to a claim brought in such court, except that BrokerRank may elect, in its sole discretion, to litigate the action in the county or state where any breach by You occurred or where You can be found. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out or related to Your use of the Service or this Agreement shall be filed within one (1) year after such claim or cause of action arose or will forever be barred.
- PROVISIONS REMAINING IN EFFECT
In the event Your membership with BrokerRank is terminated or lapses or You are no longer a user of BrokerRank, certain provisions of this Agreement will continue to remain in effect, including, but not limited to, Sections 11, 13, 14, 15 and 21 through 29.
This Agreement may not be re-sold or assigned by You. If You assign, or try to assign, this Agreement, such assignment or attempted assignment will be void and unenforceable. It will not be considered a waiver of BrokerRank’s rights if BrokerRank fails to enforce any of the terms or conditions of this Agreement against You. In the event a court finds a provision in this Agreement to not be valid, You and BrokerRank agree that such court should incorporate a similar provision that would be considered valid, with all other provisions remaining valid in the Agreement. No joint venture, partnership, employment or agency relationship exists between You and BrokerRank as a result of this Agreement or use of the Service. You acknowledge and agree that each of the Released Parties shall be an intended third party beneficiary of this Agreement.
IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT USE THE SERVICE. BY USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THE TERMS AND CONDITIONS OF THIS AGREEMENT AND YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.