Asset Record Company®
U.S. Terms of Service Agreement
Last Modified: November 8, 2013
PLEASE CAREFULLY READ THIS TERMS OF SERVICE AGREEMENT ("AGREEMENT"). IT CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS DISCLOSURES OF THE LIMITED OBLIGATIONS OF ASSET RECORD COMPANY® ("COMPANY"). BY USING THIS WEBSITE AND ANY APPLICATION, COMPONENT, FIRMWARE, FUNCTIONALITY, PLUG-IN, PROGRAM, SERVICE OR SOFTWARE CREATED BY ASSET RECORD COMPANY® ("SERVICE"), YOU ARE AGREEING TO THE TERMS AND CONDITIONS OF USE CONTAINED HEREIN. THESE TERMS AND CONDITIONS, IN ADDITION TO OTHER POLICIES AND GUIDELINES CONTAINED HEREIN AND/OR POSTED TO THIS WEBSITE ("USE POLICIES"), SHALL GOVERN YOUR USE OF THE SERVICE, WHETHER DIRECTLY OR INDIRECTLY THROUGH A THIRD-PARTY WEBSITE.
BY USING THIS WEBSITE AND/OR BY COMPLETING THE REGISTRATION PROCESS FOR THE SERVICE, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST EIGHTEEN (18) YEARS OF AGE, OR OLDER, HAVE READ AND UNDERSTOOD THESE TERMS AND CONDITIONS, HAVE THE LEGAL CAPACITY TO ENTER INTO THIS AGREEMENT AND HEREBY AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF ANOTHER INDIVIDUAL OR ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE REQUISITE AUTHORITY TO FULLY BIND THAT INDIVIDUAL AND/OR ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT HAVE THE AUTHORITY TO BIND SUCH INDIVIDUAL OR ENTITY, OR YOU DO NOT AGREE TO ANY OF THE TERMS AND CONDITIONS SET FORTH HEREIN, THE COMPANY IS UNWILLING TO PROVIDE YOU THE SERVICE OR TO BE BOUND BY THIS AGREEMENT, AND YOU SHOULD NOT CLICK ON ANY BUTTON AFFIRMING YOUR CONSENT TO THE TERMS OF THIS AGREEMENT.
THIS AGREEMENT IS PREPARED USING THE ENGLISH LANGUAGE COMMON TO THE UNITED STATES OF AMERICA. YOUR ACT OF CLICKING ON ANY BUTTON MANIFESTING YOUR INTENTION TO BE LEGALLY-BOUND TO THE TERMS OF THIS AGREEMENT SHALL BE REASONABLY INTERPRETED BY THE COMPANY TO MEAN THAT YOU HAVE A WORKING COMPREHENSION OF THE ENGLISH LANGUAGE, BOTH AS WRITTEN AND VERBAL, AND THAT THE TERMS OF THIS AGREEMENT HAVE BEEN NEGOTIATED, IF AT ALL, IN THE ENGLISH LANGUAGE. IF THIS AGREEMENT IS PROVIDEDTO YOU IN A LANGUAGE OTHER THAN ENGLISH, THE COMPANY DOES SO SIMPLY AS AN ACCOMMODATION TO YOU FOR YOUR CONVENIENCE. IF A TRANSLATION OF THIS AGREEMENT INTO ANY OTHER LANGUAGE IS REQUIRED UNDER THE STATE OR FEDERAL LAWS OF THE UNITED STATES, THE ENGLISH VERSION SHALL CONTROL THE RESOLUTION OF ANY CONFLICT OR DISCREPANCY BETWEEN THE TWO VERSIONS.
IF YOU DO NOT UNDERSTAND ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE CONSULT YOUR OWN ATTORNEY OR OTHER TRUSTED ADVISOR FIRST AND DO NOT CLICK ON ANY BUTTON THAT SUGGESTS YOU UNDERSTAND AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
NOTICE TO CONSUMERS: IF YOU ARE A CONSUMER, YOU MAY HAVE CERTAIN LEGAL RIGHTS UNDER ONE OR MORE STATE OR FEDERAL LAWS THAT PROHIBIT MODIFICATIONS OF THOSE RIGHTS BY CONTRACT ("STATUTORY RIGHTS).
IN THE INTEREST OF CONVENIENCE TO USERS OF THE SERVICE, THE COMPANY HAS CREATED A SINGLE AGREEMENT SETTING FORTH THE TERMS AND CONDITIONS OF USE.
NO PROVISION IN THIS AGREEMENT IS INTENDED TO NOR SHALL ABRIDGE OR OTHERWISE LIMIT THE STATUTORY RIGHTS OF CONSUMERS TO THE EXTENT THAT SUCH LIMITATIONS ARE EXPRESSLY PROHIBITED BY LAW.
1. DEFINITIONS; RULES OF INTERPRETATION; GOOD FAITH AND FAIR DEALING
To enhance the user experience and reduce the likelihood of misunderstanding between the parties to this Agreement, the Company aims at establishing a common ground of definitions. All clauses, phrases and words used in this Agreement will be given their sometimes colloquial but always at least their customary usage unless specifically set forth herein. In addition to the capitalized terms defined in other provisions of this Agreement, as used in this Agreement, the following capitalized terms shall have the meanings described here. In the event of a conflict or inconsistency between the use of any term defined in this Section 1.1 and any term defined elsewhere within this Agreement or within any Use Policy, the definition in this Section 1.1 shall control.
· "Agreement" means this U.S. Terms of Service Agreement, as Last Revised.
· "Asset Record®" is a property-specific, uniquely identified record that allows users to store and share electronic records with other users and interested parties. "Asset Record®" is subject to the Intellectual Property Rights of the Company.
· "Asset Record® Service" or "Service" means the website and any application, component, firmware, functionality, plug-in, program, service or software created by the Company.
· “Commercial Property Owner” refers to the natural person or entity that purchases an Asset Record® for a commercial, multi-tenant residential, or industrial property in which that person or entity holds title.
· "Company" means the Asset Record Company®, a Delaware corporation, having it principal place of business at 1550 Utica Avenue S., Suite 460, St. Louis Park, Minnesota 55416, United States of America, as well as to the Company's affiliates or subsidiaries, when the affiliates or subsidiaries provide some, all or part of the Asset Record® Service.
· "Delegate" means those individuals granted permissions by You to access the Asset Record® Service and to interact with Asset Records®, including associates, colleagues, employees, family members, friends and trusted professionals, such as accountants, appraisers, architects, attorneys, contractors, engineers, lenders, property managers, real estate agents and brokers, suppliers, surveyors, title insurance underwriters and their agents, and trade vendors.
· "Intellectual Property Rights" means all confidentiality rights, copyrights, patent rights, trademark rights, trade name rights, and trade secret rights under U.S. law.
· "Malicious Code" refers to viruses, malware, spyware, time bombs, Trojan horses, crawlers, robots, spiders and other intelligent agents and any other malicious code, files, scripts, or programs not otherwise identified here.
· "Owner" means the natural person or entity that purchases an Asset Record® for a property in which that person holds title.
· "Party" or "Parties" refer to the Company and You.
· "Personally Identifiable Information ("PII")" means any information or combination of information that can be used to identify, contact, or locate a natural person.
· "Premium User" means the natural person or entity that purchases a “Premium” subscription to Asset Record® as a Real Estate Professional.
· “Residential Property Owner” means the natural person that purchases an Asset Record® for a non-commercial, owner-occupied residential property, or 2-4 unit multi-family property, or land in which that person holds title.
· "Subscription" means an agreement that allows You to access the Service for the specified period.
· "United States" and its convenient abbreviation, "U.S." means the United State of America, a constitutional union of 50 states and specifically the 48 continental states, Alaska and Hawaii, but expressly excludes any of the protectorates or other political subdivisions of the U.S.
· "Use Policies" means these terms and conditions, in addition to other policies and guidelines contained herein and/or posted to the Website.
· "User" or "Users" refer to the natural persons who have accepted this Agreement and who each have a unique ID and password.
· "User Content" means all data, documents and information you add, disclose, enter, upload or store on the Service.
· "Website" means the domain and website of the Asset Record Company®.
· "You" or "Your" means any natural person, affiliate, company, corporation, organization, partnership, subsidiary or other legal entity, of any kind or nature whatsoever, which accepts this Agreement.
1.2. Rules for Interpretation
To reduce the likelihood of misunderstanding between the Parties, the Company aims at establishing basic rules of interpretation. In interpreting this Agreement, except as otherwise indicated in this Agreement or as the context may otherwise require, (a) the words "include", "includes", and "including", are deemed to be followed by "without limitation" whether or not they are in fact followed by those words or words of similar import, (b) the words "hereof," "herein", "hereunder", and comparable terms refer to the entirety of this Agreement, including the Use Policies, Appendix or Exhibits, and not to any particular Article, Section, or other Subsection or Subdivision of this Agreement or Use Policy, Appendix or Exhibit to this Agreement, (c) any pronoun shall include the corresponding masculine, feminine, and neuter forms, (d) the singular includes the plural and vice versa, (e) references to any agreement (including this Agreement) or other document are to the agreement or document as amended, modified, supplemented, and restated now or from time to time in the future, (f) references to any Law are to it as amended, modified, supplemented, and restated now or from time to time in the future, and to any corresponding provisions of successor Laws, (g) except as otherwise expressly provided in this Agreement, references to an "Article", "Section", "preamble", "recital", or another subdivision, or to the "Appendix" or an "Exhibit", are to an Article, Section, preamble, recital or subdivision of this Agreement, or to the "Appendix" or an "Exhibit" to this Agreement, (h) references to any Person include the Person's respective successors and permitted assigns, (i) references to "dollars" or "$" shall mean the lawful currency of the United States of America, (j) references to a "day" or number of "days" (without the explicit qualification of "Business") refer to a calendar day or number of calendar days, (k) if interest is to be computed under this Agreement, it shall be computed on the basis of a 360-day year of twelve 30-day months, (l) if any action or notice is to be taken or given on or by a particular calendar day, and the calendar day is not a Business Day, then the action or notice may be taken or given on the next succeeding Business Day, and (m) any financial or accounting terms that are not otherwise defined herein shall have the meanings given under Generally Accepted Accounting Principles (GAAP).
1.3 Statement of Good Faith and Fair Dealing.
The Company does not intend for singular clauses, definitions, paragraphs, sections, sentences or subsections of this Agreement to be used in isolation tojustify or mask sharp practices or to obfuscate, or shift risk for, Company errors of omission or commission. The dynamic and demanding features of the Service require a form of user agreement containing terms and conditions that are adaptable and relevant to new situations as they occur. In this spirit, the Company expects, and You agree, that all provisions of this Agreement-to the extent they are in conflict, one with another and should be read in concert whenever practicable and in the mutual support and promotion of good faith and fair dealing between the Parties.
2. AGREEMENT; ELIGIBILITY; AUTHORITY; THIRD-PARTY COMMUNICATIONS
2.1 Agreement to Be Bound; Entire Understanding; No Modification
This Agreement is entered into by and between the Company and You and governs Your use of and access to the Service. The various promises and undertakings of the Company set forth herein are expressly conditioned upon Your prior acceptance of this Agreement. By acceptance of this Agreement, You acknowledge that this Agreement contains the entire understanding and agreement between the Parties. You further acknowledge that this Agreement supersedes and mergers any prior or contemporaneous agreements, understandings, discussions, negotiations and undertakings, whether written or verbal, between the Parties. Terms stipulated by You on any purchase of the Subscription -- however communicated to the Company -- by which You purport to vary the terms and conditions of this Agreement, shall be void and of no effect unless agreed to in a separate writing signed by an authorized representative of the Company.
The Company will only enter into this Agreement with natural persons recognized under applicable law as permitted to enter into binding contracts. By Your acceptance of this Agreement, You represent and acknowledge to the Company that You are at least eighteen (18) years of age, and that You have the capacity to form legally enforceable contracts.
If a natural person accepts this Agreement on behalf not of him or herself but for any other affiliate, association, company, corporation, firm, natural person, organization, partnership, subsidiary or other legal entity, of any kind or nature whatsoever (individually and collectively referred to hereafter as the "Third Party"), then the definitions for the words, "You" and "Your" in Section 1.1, above, are hereby modified to also include the Third Party. In this event, You are representing to the Company that You have the express or implied authority to bind the Third Party as if the Third Party was expressing his, her or its own mutual assent to the terms of this Agreement. If the Company learns after Your acceptance of this Agreement that You lack such requisite authority, then You will be personally liable for the obligations contained herein, including the payment obligations.
2.4 Third-Party Communications; Disclaimer
In no event shall the Company have an obligation to honor, in whole or in part, any written or verbal communication, document, instruction, notice or transaction that the Company in good faith believes may not be authorized by You or by any other person whose authorization the Company believes is required by this Agreement. If the Company reasonably questions the authenticity of any written or verbal communication, document, instruction, notice or transaction, the Company reserves the right -- but assumes no duty -- to require additional verification of authenticity from You and/or the other party, or both. The Company disclaims liability for any loss or damage resulting from its good faith reliance on any written or verbal communication, document, instruction, notice or transaction reasonably believed by the Company to be authentic, genuine and originating from one of Your authorized representatives.
3. LAWFUL USE ONLY; TRANSFER OF DATA ABROAD; UNITED STATES EXPORT CONTROLS ON INFORMATION AND TECHNOLOGY
3.1 Acknowledgements of Lawful and Intended Use; Disclaimer
You acknowledge and agree to comply with all applicable local, state, national and international laws and regulations governing use of the Service. You agree to restrict Your use, and that of Your Delegates, to lawful purposes only. By accepting this Agreement, You acknowledge and agree that You have not relied upon, nor in any way been induced by, any written, verbal or other representation or statement, whether in whole or in part, material or otherwise, by the Company, its officers, directors, shareholders, or employees, that Your acceptance of this Agreement and/or Your use of the Service satisfies any applicable law or regulation.
3.2 Transfer of Data Abroad; Foreign Jurisdictions; Disclaimer; European Union Notice
If You communicate with the Company and interact with the Service from a place other than the
U.S., or transmit User Content to a place other than the U.S, such communications and interactions may result in the transfer of Your Account Information and User Content across international boundaries. In this event, You hereby consent to such transfers by electronically communicating with the Company or interacting with the Service. The Company makes no representation that any use of the Service is appropriate, authorized, available or lawful for use from, in and to jurisdictions outside the U.S. By accepting this Agreement, You acknowledge and agree that neither the Company nor its officers, directors, shareholders or employees have made any written, verbal or other representations or statements, whether in whole or in part, material or otherwise, that Your communications with the Company and interactions with the Service from, in or to a place other than the U.S. is authorized by or in compliance with U.S. laws and regulations, as an inducement to enter into the Agreement.
3.3 United States Export Controls; Disclaimer
Complex laws and regulations of the U.S. restrict the distribution, export and re-export of certain goods, products, services and technology to promote the national security, foreign policy, nonproliferation and short supply interests of the U.S. and, in some cases, to carry out its international obligations ("U.S. Export Controls"), pursuant to the Export Administration Act of1979, as amended, 50 U.S.C. 2401-2420 ("EAA").The EAA is implemented and administered by theU.S. Department of Commerce, the U.S. Department of Treasury, Office of Foreign Assets Control and other agencies of the U.S. Government, pursuant to the Export Administration Regulations, 15 C.F.R., Chapter VII, Subchapter C ("EAR"), as well as certain Presidential executive orders under the International Emergency Economic Powers Act with respect to the EAR, 50 U.S.C.1701-1706 ("IEEPA"). You can review the EAA, EAR and IEEPA, and contact the various U.S.Government agencies involved in the administration of export controls, for authoritative detail.
This Section 3.3 provides merely an overview of U.S. Export Controls; for purposes of length and readability, a significant amount of detail has been omitted. Notwithstanding the foregoing, nothing in this Section 3.3 is intended to serve as, and should not be interpreted as providing, legal advice. A complete understanding of any provision of U.S. Export Controls requires reference to the text of the legislation itself. The Company encourages you to consult Your attorney or other trusted advisor if you need assistance in understanding how U.S. Export Controls may apply to You under this Agreement.
The Company is in the business of providing services, software and technology that may be subject to U.S. Export Controls. You acknowledge and agree to neither use nor transfer or otherwise export or re-export the Service, Account Information or User Content -- in the absence of license to do so -- to, in or from countries as to which the U.S. maintains an embargo or restriction("Embargoed Countries"), or to or by a national, organization or resident of Embargoed Countries, or any national, organization or person identified on the U.S. Department of Treasury's List of Specially Designated Nationals and Entities or the U.S. Department of Commerce's Table of Denial Orders ("U.S. Table of Denial Orders, the Entity List and the List of Specially Designated Nationals and Blocked Persons"). By using the Service, You represent and warrant to the Company that Youare not located in, under the control of, or a national, organization or resident of the Embargoed Countries or identified within, named or otherwise listed on the U.S. Table of Denial Orders, the Entity List and the List of Specially Designated Nationals and Blocked Persons. You agree to comply strictly with all U.S. Export Controls and to assume sole responsibility for obtaining licenses to export or re-export, as may be required thereby. The Embargoed Countries and U.S.Table of Denial Orders, the Entity List and the List of Specially Designated Nationals and Blocked Persons are subject to change by the U.S. Government without notice, so the Company encourages You to regularly monitor revisions to the EAA, EAR and IEEPA, and all other applicable law, and to consult Your attorney or other trusted advisor for assistance.Changes to U.S. Export Controls will be applicable to Your use of the Service even if such changes precede the lastrevision to this Agreement.
THE COMPANY MAKES NO REPRESENTATION OR WARRANTY THAT THE SERVICE IS APPROPRIATE, AVAILABLE ORLAWFUL FOR USE OUTSIDE THE UNITED STATES. YOU ASSUME ALL RISK AND LIABILITY FOR USING THE SERVICEIN, FROM, TO OR OUTSIDE OF THE UNITED STATES AND ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALLAPPLICABLE LAWS, INCLUDING WITHOUT LIMITATION, U.S. EXPORT CONTROLS AND THE EXPORT AND IMPORT LAWSAND REGULATIONS OF OTHER COUNTRIES. ANY DIVERSION OF THE SERVICE IN VIOLATION OF U.S. EXPORTCONTROLS IS STRICTLY PROHIBITED. NEITHER THE SERVICE NOR USER CONTENT MAY BE USED FOR NUCLEAR
ACTIVITIES, CHEMICAL OR BIOLOGICAL WEAPONS, OR MISSILE PROJECTS, UNLESS SPECIFICALLY AUTHORIZEDBY THE U.S. IN A WRITTEN AGREEMENT OR TREATY.
Notice to Users in The European Union:
The Company makes no representation or warranty that use of the Service from a member country of the European Union ("EU") complies with the EU Safe Harbor framework established by the U.S.Department of Commerce for the collection, retention and use of data, documents and information from persons located in EU member countries. Users in the EU assume all risk and liability for their interaction with the Service.
4. EFFECTIVE DATE; TERM; USE POLICIES; CURRENT VERSION OF AGREEMENT
4.1. Effective Date and Term of Agreement; Use Policies
This Agreement is made effective as of the date of electronic acceptance (the "Effective Date") and continues, except for those representations and warranties that shall survive the termination of this Agreement, as noted below, until all Subscriptions (defined below) have either expired of their own terms or have been suspended by the Company for violation of any term or condition of this Agreement, including failure to pay for the Service. By clicking a box indicating Your acceptance of this Agreement, You are representing and warranting to the Company that You have read, considered, understood, acknowledged and agreed to be bound by the terms contained herein, including the following policies pertaining to Your use of the (hereafter referred to individually and collectively as the "Use Policies"):
4.2 Amendments to Agreement and Use Policies; Last Revised to Govern
The Company anticipates the Service to evolve over time and therefore reserves the right to amend this Agreement and the Use Policies, at any time and without prior notice to You. Such amendments shall be effective immediately upon posting to the Website. The Company agrees to make You aware ofamendments to this Agreement by updating the "Last Revised" date at the top of this page. Therefore, in accepting the terms of this Agreement, You acknowledge that (i) the Company may notify You ofamendments to this Agreement by posting them to the Website and (ii) Your use of the Service after the Company has last revised this Agreement constitutes Your acceptance of this Agreement, as amended from time to time. If you do not agree to be bound by this Agreement as Last Revised, do not use (or continue to use) the Service. The terms and conditions of this Agreement as Last Revised shall govern any conflict between or among various versions of this Agreement and those contained herein.
5. LIMITED LICENSE; MUTUAL PROMISES; RESERVATIONS OF RIGHTS
5.1. Grant of License
Upon Your acceptance of this Agreement, the Company will grant You (and Your successors, assigns, and third-party service providers) a world-wide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sub-licensable, and transferable license to use and allow Your Delegates to use the Service electronically via the Internet ("License") for so long as You are in compliance with this Agreement, including the payment obligation.
5.2 Promises to You
Upon Your acceptance of this Agreement, the Company warrants that (a) the Company has validly entered into this Agreement with You and has the legal capacity to do so, (b) the Company will grant You the License, (c) the Company has entered into a binding, enforceable user agreement with Microsoft(R) Corporation for inclusion of Bing® Maps on the Service, (d) the Company willimplement and maintain industry-standard business practices to protect Your confidentiality andprivacy and will not communicate to third parties in any manner, without your prior written consent, except in connection with Your use of the License, or as may be required of the Company by law enforcement, court order or subpoena, any information which is individually addressed, requires a password to access or is otherwise restricted by You, (e) the Company will respect the Intellectual Property Rights of others, (f) the functionality of the Service will not be materially decreased during a Subscription Term (defined below), and (g) the Company will not transmit Malicious Code to You.
The Company's representation and warranty in Subsection (g) of this Section 5.2 excludes any transmission or re-transmission of Malicious Code if You, or any other User, first infects the Service or an Asset Record® by uploading a file containing Malicious Code and You, or any other User, later downloads that file containing Malicious Code.
5.3 Reservation of Rights; Proprietary and Confidential Information
5.3.1 Reservation of Rights in Intellectual Property; Confidentiality
By granting You the License, the Company does not transfer any ownership right, title or other interest in the Company's copyrighted, patented or trademarked materials, including the Service, and You obtain no such rights, titles or interests by downloading, copying, interacting with or otherwise using the Service or an Asset Record®. This Agreement does not grant you a license to copy or distribute in any medium, or to alter or modify any part of, the Service and its related technologies. You are strictly prohibited from displaying, distributing, providing access to, reproducing or using any portion of the Service in competition with the Company or on Third-Party websites. You agree to make reasonable efforts to advise all Your Delegates of the restrictions on use of, and the Company's rights in, the Service. As between the Parties, the Company shall retain all ownership rights in and to the Service, all updates and/or upgrades thereto and other derivative works of the Service and all Intellectual Property Rights incorporated into or related to the foregoing. All rights not expressly licensed by the Company under this Agreement are reserved.
The Service and all trade secret information incorporated therein or derived, directly or indirectly,there from are confidential information of the Company. You shall keep in confidence and trust and not disclose or disseminate, or permit any employee, agent or other party working under Your direction to disclose or disseminate, the substance of any such confidential information of the Company. The representations and warranties in this Section 5.3 will not impose any obligations on You with respect to any portion of the Company's confidential information which, as evidenced by independent documentation: (a) is now generally known or available or which hereafter, through no actor failure to act on Your part, becomes generally known or available, or (b) is rightfully known to You at the time of receiving such information. You acknowledge and agree that monetary damages may not alone be a sufficient remedy for unauthorized disclosure or use of the Company's confidential information and that the Company may seek, without waiving any other rights or remedies, such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
5.3.2 Company Right to Monitor Activity
The Company may monitor or review interactions with the Service and an Asset Record®, including User Content, (a) to ensure Your compliance, and that of Your Delegates, with this Agreement, the Use Policies and applicable law, or (b) in response to any complaints or requests from law enforcement. You acknowledge that the Service may allow the Company to prohibit unauthorized use and may require the installation and update of audit tools to verify compliance and that You will not prohibit the installation or use of those audit tools. The Company may, in its sole discretion, remove Account Information and User Content entered, posted or uploaded by You or Your Delegates at any time without notice and without liability You, Your Delegates or to any third party.
5.4 Your Promises to Us
You represent and warrant to the Company that You have validly entered into this Agreement and have the legal authority to do so. You represent and warrant that Your use of the Service is for internal purposes only and that You shall not use the Service or an Asset Record® for lease, rent, resale, sale, service bureau, time-sharing or any other similar purpose. You represent and warrant that You have secured third-party licenses or appropriate written approvals for all Account Information and User Content, including where applicable everything necessary to legally pass through to Your Delegates all required terms thereof. You acknowledge and agree that if You appoint other persons to use Your Account or to access Your Asset Record(s)®, You are representing and warranting to the Company that such persons will be acting on Your behalf with Your full authority, whether express or implied, and that they, too, shall be bound by this Agreement. You agree that all such persons are fully authorized by You to act based on the permissions You grant to them. These permissions may include the right to access, copy, delete, upload, replace, retrieve and store Your Account Information and/or User Content.
5.5 Design and Performance Constraints; Derivative Works Prohibited; Security
5.5.1 Design and Performance Constraints; Disclaimer
You acknowledge and agree that Your use of the License forms an integral part of Your unique hardware and software environment to deliver specific functionality and that the Service may not achieve the results You desire within Your unique design constraints.
You are responsible for (a) maintaining any equipment used by You or Your Delegates to interact with the Service and an Asset Record®, (b) ensuring the accuracy of data, documents and information input and output and (c) establishing, maintaining and operatinga means external to the Service and an Asset Record® for the reconstruction of any of your corrupted, lost or stolen data, documents and information.
The Service may be subject to delays, limitations and other problems inherent in the use of the Internet for electronic communications and transmissions. You acknowledge and agree that the Company is not responsible for any delays, delivery failures or other damage resulting from the use of the Internet for interacting with the Service and agree to hold the Company harmless from any such claims to the extent such delays, failures or other damages are beyond the Company’s reasonable control and are not the result of the Company's gross negligence or willful misconduct.
5.5.2 Limited Use of License; No Copyright Infringement
Subject to the restrictions set forth in the following paragraphs, you may copy information from the Service and an Asset Record® only as necessary for your internal use to (a) upload,(b) save, (c) view and (d) print, fax or email Your Account Information and User Content and to otherwise interact with other Users. You agree in all other respects not to abridge, decompile, disassemble, distribute, modify, pirate, reproduce or reverse engineer any portion of the Service or to create, or attempt to create, any derivative work thereof. Reference here is made to the U.S. Digital Millennium Copyright Act, 17 U.S.C. \A4\A41201-1205 ("DMCA"), and, where enacted by state legislatures of the U.S., the Uniform Computer Information Transaction Act ("UCITA"). The Company will not grant permission to reverse engineer the Service under Section 1201(f) of the DMCA, as amended from time to time, or by any other law or regulation. A complete understanding of any provision of federal copyright law requires reference to the text of the legislation itself. The Company encourages you to consultYour attorney or other trusted advisor(s) if you need assistance in understanding the protections granted to the Company under the DMCA and the risks inherent in any attempt to create a derivative work of, pirate, reproduce or reverse engineer computer hardware and software.
5.5.3 No Interference with Security Features
You agree not to circumvent, disable, interfere or otherwise workaround the security-related features of the Service, including such features designed to restrict copying or use of the Company's Intellectual Property Rights in the Service, or to enforce any limitations on functionality.
5.6 General Rules of Conduct; Acceptable Use Standards
Without limiting any representation and warranty set forth in one or more of the above clauses, definitions, paragraphs, sections, sentences or subsections of this Agreement, You also acknowledge and agree to abide by these additional, non-exclusive and generally-accepted rules of use, where each rule serves as an example, and not as a limitation, of acceptable use under this Agreement:
1. You shall not use the Service in any way that could be harmful to the rights, title and interest of the Company, its service providers, suppliers, trade vendors or other Users.
2. You shall not use the Service in any way that violates the terms and conditions of this Agreement, any Use Policy or any Legal Notice.
3. You shall not abridge or otherwise compromise the Company's Intellectual Property Rights.
4. You will not copy, download, restore, retrieve, upload, or use any data, document or information that will infringe upon the proprietary rights, including intellectual property rights, of any third party. You shall be solely responsible for the accuracy, integrity, legality and quality of Your data, documents and information and the means, where applicable, by which You acquired Your data, documents and information.
5. You will not copy, download, restore, retrieve, upload, or use any data, document or information that will violate the privacy or publicity rights of another person or entity or that which breaches any duty of confidentiality you owe to another person or entity.
6. You will not communicate, copy, download, make available, restore, retrieve, upload, or use any data, document or information, or use the Service in any respect, to encourage or promote activities that may be or perceived to be abusive, defamatory, harassing, hateful, hostile, illegal, libelous, pornographic, profane, obscene, terroristic, or violent. Without limiting the generality of the foregoing, You shall refrain from advancing, communicating, promoting or taking any action that encourages, exploits, promotes or suggests intolerance toward or harm to animals, children or any protected class. As to the latter, You shall refrain from promoting, posting, publishing or uploading any material that incites discrimination or violence towards one person or a group of persons because of their belonging to a particular nation, race or religion.
7. You will not copy, download, make available, restore, retrieve, upload, or use any data, document or information containing Malicious Code or any other code, files or programs designed to, or capable of, damaging, disrupting, interfering or limiting the functionality and/or the reliable and safe operation of the Service.
8. You will not collect or harvest or permit any other party to collect or harvest, whether for Your or their own use or for dissemination to others, by the use of robots, spiders or intelligent agents of any kind or nature whatsoever, to access, search or systematically download any non-public or personally identifiable data, documents or information about another person or entity.
9. You will not use the Service to conduct or forward surveys, contests, pyramid schemes or chain letters, to promote any social media or for gambling.
10. You will back-up all of Your data, documents and information and to continually provide security measures adequate to protect the confidentiality, integrity and privacy of Your data, documents and information and take all other reasonable steps to prevent the unauthorized access to or use of the Service.
11. You will not impersonate another person or entity.
12. In the absence of their prior consent, You will only associate Delegates with an Asset Record® with whom You had or continue to enjoy a genuine business relationship.
6. ACCOUNT; RESPONSIBILITIES AND RESERVATION OF RIGHTS; SUSPENSION, TERMINATION AND MATERIAL BREACH; ASSUMPTION OF RISK FOR OUTSIDE CONTENT; DISCLAIMER
6.1 Establishing an Account; Account Information; Notification of Changes; Security; Equipment
To use the Service, You are required to create an online account ("Account"). Your Account will include a username, your email address, first name, last name, password and the identification of your association to the property ("Account Information"). You agree to provide accurate information in the creation of Your Account and, in the act of doing so, You represent and warrant to the Company that all information You submit when creating Your Account is accurate, truthful and complete, and further that You will keep Your Account Information accurate, truthful and complete throughout the term of this Agreement. The Company may inform You electronically regarding new products, releases, services, upcoming events and changes to this Agreement and to the Use Policies. The Company shall not incur any liability or responsibility for Your failure to receive an email notification if such failure results from an inaccurate or out-of-date email address contained within Your Account Information. The Company's use of electronic means to notify You of changes or modifications to this Agreement does not abrogate Your responsibility to read, understand and acknowledge the terms of this Agreement, as Last Revised.
Your username and password will be used to access Your Account. Once Your account is created, the Service allows you to add the following information to Your Account: Title, Company, Mailing Address, City, State, Zip, Phone Number, Fax Number and Roles. Once established, Your Account allows you to update your password, add Asset Records®, connect professionals, share information with and request information from professionals and transfer your Asset Record(s)®. You will remain logged in until You log out, navigate away from the Website, close the browser or are inactive for 45 minutes. While logged in,You will be able to administer Your Account, Your Asset Records®, and all related information.
You are solely responsible for the activity that occurs on your Account, whether authorized by you or not, and You bear the risk for the security of Your Account Information. You must immediately notify the Company of any breach of security or unauthorized use of your Account. The Company will not be liable for any loss you incur due to any unauthorized use of Your Account. You may be liable for any loss the Company or others incurbecause of the use of your Account, whether caused by You, Your Delegate or other person authorized to act on your behalf or by an unauthorized person.
You must provide all hardware, software, Internet browsers and cable, satellite or other telecommunications services necessary to interact with the Service, all at Your own expense and risk.
6.2 Responsibility to Maintain the Service; Disclaimer; Exceptions
The Company will use industry-appropriate efforts to make the Service available to You on a 24 hours per day, 7 days per week, 365 days per year basis. The Company shall have no liability to You if the Service is unavailable for any of the following non-exclusive events:
1. Scheduled downtime.
2. Compliance with laws, regulations or requirements of state or federal governments of the United States, including directions or orders of public authorities acting with actual, apparent or implied authority.
3. Acts of commission or omission of any person or party other than the Company, its officers, directors, shareholders and employees.
4. Degradation, disruption or failure of communication systems, information systems, mechanical systems or utilities, including degradation, disruption or failure of the telecommunications infrastructure, degradation, disruption or failure of the information service infrastructure or degradation, disruption or failure of electrical power infrastructure, including backup electrical generating systems, due to events beyond the Company's control.
5. Acts of God, weather conditions, natural disasters, dangerous or environmental goods incidents, public enemies, including but not limited to, hackers, quarantine, riots, strikes, work stoppages or slowdowns, or other labor disputes or disturbances, civil commotions or hazards incident to a state of war or terroristic threat or action, local or national disruptions in ground or air transportation networks or systems, due to events beyond the Company's reasonable control and effort.
6. Your Use of the Service violates applicable law, regulation, or any of the terms and conditions of this Agreement.
7. The Subscription Period (defined below) has expired.
6.3 Mutual Right of Termination for Material Breach or Insolvency
6.3.1 Material Breach; Requirements of Notice of Default
Subject to the survival of certain representations and warranties within this Agreement, either Party may terminate this Agreement in the event of a material breach by the other Party that remains uncured thirty (30) days after the non-breaching party gives the Party in default written notice of such breach ("Notice of Default"). Notice of Default alleging a material breach of this Agreement must clearly state the nature of the claim, provide reasonably precise details and circumstances of the event or occurrence constituting the alleged breach, disclose the names of individuals and their contact information, where applicable, that were complicit in or involved with the event or occurrence constituting the alleged breach and the date(s) and time(s) of the event or occurrence constituting the alleged breach.
Notice of Default given by either Party shall be in writing and shall be delivered by registered or certified mail, return receipt requested, or by internationally recognized overnight courier, to the Party's last known street address. Any notice so delivered, given or made by mail or by overnight courier shall be deemed to have been duly delivered, given or made on the date the same is received, as established by the return receipt or delivery confirmation, as the case may be.
In the case of Company Notice of Default, the street address contained in Your Account Informationwill be deemed sufficient for delivery. In the case of Your Notice of Default, the following address will be deemed sufficient for delivery: Asset Record Company®, 1550 Utica Avenue S., Suite 460, St. Louis Park, Minnesota 55416 USA.
Either Party may terminate this Agreement in the event that the other Party becomes insolvent or bankrupt, becomes the subject of any proceedings under bankruptcy, insolvency or debtor's relief law, has a receiver or manager appointed, makes an assignment for the benefit of creditors, or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such Party's business, without notice.
6.3.3 Events Upon Termination
Upon termination of this Agreement, You will no longer have access to Your Asset Records®.The Asset Records® will be retained indefinitely and can be accessed by accepting the then-currentU.S. Terms of Service Agreement and paying any fees required by the Company.
6.4 Right to Suspend Your Account
The Company reserves the right to suspend Your Account for one or more of the following reasons:
1. We are acting in good faith upon the instructions or directives of a court of competent jurisdiction or law enforcement or in response to a disaster declaration of the U.S. President or Governor of the State in which the Company's principal place of business is located.
2. We have properly notified You of a material breach of this Agreement or have a reasonable basis on which to suspect that you are in material breach of this Agreement but have not yet had the reasonable opportunity to notify you of such breach in accordance with Section 6.3.1, above.
3. We have a reasonable basis on which to suspect that Your Account Information contains inaccuracies or falsehoods.
4. You fail to pay the Subscription Fee.
The suspension shall remain in effect until, in the case of a material breach of this Agreement, You have cured the material breach, the Company has concluded to its own satisfaction an investigation of the accuracy and truthfulness of Your Account Information, or You have paid for the Subscription(s). You shall not be entitled to a refund of any Subscription Fee during such suspension.
6.5 External Links and Content; Your Assumption of Risk; Disclaimer
To enhance the user experience, some pages of the Website contain clickable words, phrases or images that navigate to a new document, page or section within the Website ("Internal Hyperlinks") or to external, third-party websites or web pages ("External Hyperlinks"). While the Company creates and monitors the functionality of Internal Hyperlinks, the Company does not provide quality control of or otherwise monitor in any way the content on external, third-party websites orweb pages to which External Hyperlinks take You ("Outside Content"). For purposes of this Agreement, "Outside Content" also includes by implication the content of third-party websites orweb pages that link to the Website.
The Company has not reviewed, cannot be reasonably expected to review, and therefore does not assume any duty or obligation to review -- or otherwise screen -- Outside Content. Please be aware that the Company does not control, guarantee or influence the accuracy, appropriateness, availability, lawfulness, relevance, timeliness or thoroughness of Outside Content. Therefore, the Company disclaims any responsibility for Outside Content, including any commission, omission, submission, transmission or emission that may occur there, including matters that may be prohibited by law or that may infringe upon the rights of others. You are solely responsible for the consequences of, and assume all the risk for, interaction with Outside Content, being ever mindful that such content may violate the privacy or publicity rights, or infringe the proprietary, including intellectual property, rights of others and further that the act of copying, downloading, emailing or forwarding Outside Content may be subject to others' terms and conditions of use, stated or unstated, or readily available only upon Your request. When interacting with Outside Content, You are also solely responsible for taking necessary precautions to protect Your technology systems from Malicious Code and any other industry-related device, software or routine, including those that implement reverse look-ups or traces on any information of any visitor to websites or web pages.
You are advised to verify the privacy practices of all providers of Outside Content. The Company will not be responsible for the manner of use or misuse of information You specifically volunteer by entering data about Yourself while accessing Outside Content, and information generally made available by Your act of accessing Outside Content, including browser type and language, beacons,click stream data, cookies, date/time stamp, IP address, ISP information, GPS position and any other technologies that inventory, log, reveal or otherwise track Your interaction with Outside Content.The Company encourages You not to provide personal information at third-party websites andweb pages without first familiarizing Yourself with their privacy policies and taking such other action as You deem appropriate to prevent the accidental or unintentional disclosure of Your Information.
You should not construe the inclusion of any individual, company, legal entity or trade association as part of the Service or within the pages of the Website as a recommendation of that individual, company, legal entity or trade association or of their products or services. You should not consider any hyperlink to or from a third-party website or webpage as the Company’s endorsement of any such website or webpage unless the Company expressly states so, as such hyperlinks are only provided for your convenience and in a good faith effort to enhance the user experience of the Service. The Company neither endorses nor recommends any such products or services, and the Company does not have experience of or with all such individuals, companies, legal entities or trade associations or their products or services.
7. ASSET RECORDS® CONTENT YOU PROVIDE; REPRESENTATIONS AND WARRANTIES; YOUR LICENSE OF CONTENT TO COMPANY; TERMINATION OF ACCESS; ZERO TOLERANCE POLICY FOR INFRINGING MATERIALS; FEDERAL COPYRIGHT NOTICE
7.1 Creation of Asset Records®
Once You have accepted this Agreement and created Your Account, You may create one or more Asset Records®. The process for creating an Asset Record® is to find the property, identify your relationship with the property, identify property type, add salient data and information, associate other Users or add Delegates and upload documents. The data, documents and information contained within the Asset Record® are referred to in this Agreement as"User Content". The initial Subscription payment will grant you access to the Asset Record® for the term of Your Subscription. The Owner of an Asset Record® has the exclusive right to ownership of it while in compliance with all terms of this Agreement, including the payment obligation, untilthe Owner deletes the Asset Record®, sells the Asset Record® or terminates this Agreement.
Each Asset Record® is subject to this Agreement, the Use Policies and all applicable laws and regulations
7.2 Sale of Asset Records®
The Owner of an Asset Record has the exclusive right to sell their Asset Record®. To sell an Asset Record®, the seller first identifies the buyer and provides the buyer with an inspection period. After the seller puts forth the terms of transfer to the Company, the Asset Record® is placed in quarantine.
While in quarantine, the buyer has full access to review the Asset Record® with rights of refusal.
To complete the sale, the buyer must fulfill the seller's terms of transfer. Once both parties are satisfied and the buyer has accepted this Agreement, the Company will release title to the Asset Record® to the buyer, who then immediately becomes the new Owner with all rights of ownership.
7.3 Content You Provide; Representations and Warranties; Licenses to Company; Reservations of Rights; Disclaimer
7.3.1 Public Content
Upon purchase of the Subscription, You will submit data, documents and information to the Service in creating an Account and in populating an Asset Record® for which You intend to be generally available for use without restriction by the Company and other Users as You and by this Agreement ("Public Content"). You acknowledge and agree that the Company reserves the right to review and reject any Public Content and that the Company does not guarantee any confidentiality or privacy with respect to any Public Content. You shall be solely responsible for your own Public Content and the consequences of submitting and publishing your Public Content by means of the Service. Public Content includes any data or information you submit to the Asset Record’s® “Overview” or “Detail/Update” pages as part of the property’s factual details.
7.3.2 User Content
As to data, documents and information that You intend to be confined within an Asset Record’s® private Documents pages and not generally available for use by the Company or by other Users ("User Content"), You affirm, represent, and warrant that (a) you have all the rights and licenses necessary to use, reproduce, publish, display publicly, perform publicly, distribute or otherwise use such User Content in connection with the Asset Record® Service (and grant to the Company all of the license rights granted herein), (b) the User Content will not infringe or otherwise violate the privacy, publicity, copyright, trademark, or other intellectual property rights of any third party,(c) You have the prior written consent, release, and/or permission of any claimant or holder of any intellectual property right, including but not limited to copyrights, patents and trademarks, to include such claimant's or holder's intellectual property within and among Your User Content,(d) You have the prior written consent, release, and/or permission of each identifiable person depicted in Your User Content to publish and/or disseminate their name and/or likeness through the Asset Record® Service; and (e) You will not submit to the Asset Record® Service or to an Asset Record® any content or other material that violates any term or condition of this Agreement or that is contrary to applicable local, national, and international laws and regulations.
7.3.3 Grant of License for Public Content
With respect to Public Content, You grant to the Company (and it successors, assigns, and third-party service providers) a world-wide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sub-licensable, and transferable license to use, reproduce, modify, create derivative works from, distribute, publicly display, publicly perform, and otherwise exploit the Public Content on and in connection with the manufacture, sale, promotion, marketing, and distribution of products sold on, or in association with, the Service, or for purposes of providing You with the Service and promoting the same, by any medium and by any means currently existing or yet to be devised.
7.3.4 Grant of License for User Content
With respect to User Content, but solely for purposes of providing You the Service, You grant to the Company (and it successors, assigns, and third party service providers) a world-wide, on-exclusive, perpetual, irrevocable, royalty-free, fully paid, sub-licensable, and transferable license to use, reproduce, modify, create derivative works from, distribute, publicly display, publicly perform, and otherwise exploit User Content.
7.3.5 No Claim of Ownership
Without limiting the generality of the licenses granted in Sections 7.3.3 and 7.3.4, above, You retain all of Your ownership rights in Public Content and User Content and to copyrights, graphics, images, logos, patents, trade names, trademarks, service marks and any other brand features not specifically listed here that are included within or among Public Content and User Content. The Company asserts no claim to Your Intellectual Property.
7.3.6 Right to Withdraw User Content; Disclaimer
To promote the common good and enhance the user experience, the Company reserves the right in its sole and absolute discretion to withdraw from the Service or an Asset Record® content that the Company has reasonable, good faith grounds to believe is unlawful, harmful, false or infringing.
The Company may remove any content You provide at any time for violating any term or condition of this Agreement or upon receipt of claims or allegations from third parties, state or federal government agencies or from law enforcement authorities relating to any content (the "Offending Content"). At the Company's sole and absolute discretion, the Company may archive or purge the Offending Content if not otherwise directed by the above-referenced third parties, government agencies or law enforcement authorities. You acknowledge and agree that the Company shall not be liable or responsible to You or to any third party for the deletion or failure to preserve, process, service or store any Offending Content or for termination of your access to the Service because of the immediately foregoing.
You submit public Content and User Content entirely asYour free and voluntary act in making the most of the Service. Submission of Public Content or User Content therefore does not establish a confidential relationship between the Parties or create an obligation or duty upon the Company to treat such content as secret. You are not obligated to use the Service or place any Public or User Content on the Service. You reserve the right to remove all Public Content or User Content at Your sole discretion. The Company does not endorse any Public Content or User Content, or any advice, opinion or recommendation expressed therein. The Company disclaims all liability in connection with Public Content and User Content.
7.4 ZERO TOLERANCE POLICY FOR INFRINGING ACTIVITIES; DISCLAIMER; COPYRIGHT INFRINGEMENT NOTICE UNDER DIGITAL MILLENNIUM COPYRIGHT ACT ("DMCA"); TRADEMARK AND TRADE NAME INFRINGEMENT
7.4.1 Zero Tolerance Policy; No Contributory Copyright Infringement; DMCA Safe Harbor
The Company does not permit and will not tolerate copyright, patent, trademark, trade name or trade secret infringing activities, in particular, and infringement of any intellectual property rights, in general, on the Service ("Infringing Content"). The Company will promptly remove all Infringing Content if properly notified that such content infringes on the Intellectual Property Rights of others. To notify the Company of an alleged act of copyright or trademark violation, please refer to Section 7.4.2, below. As authorized by Section 512 of the DMCA, the Company reserves the right to, and may in fact, remove Infringing Content without prior notice to anyone.
7.4.2 DMCA Notice Procedure
If you are a copyright owner, or the agent of a copyright owner, and believe that content available by means of the Service or within an Asset Record® infringes one or more of your copyrights, please immediately notify the Company's Copyright Agent by means of emailed, mailed, or faxed notice ("DMCA Notice") and include the information described below. You can review 17 U.S.C. \A4512(c)(3) of the DMCA for authoritative detail, or consult your own attorney if you need assistance. If the Company takes action in response to a DMCA Notice, it will make a good faith attempt to contact the party that made such content available by means of the most recent email address, if any, provided by such party to the Company. You may be held liable for damages based on certain material misrepresentations contained in a DMCA Notice. Thus, if you are not sure content located on, or linked to by the Service, infringes your copyright, you should consider first contacting an attorney before notifying Us.
All DMCA Notices must include the following information, pursuant to Sections 512(c)(3)(A)(i)-(vi) of the DMCA (hereafter, the "Subsection A Requirements"):
· A signature, electronic or physical, of the owner, or a person authorized to act on behalf of the owner, of an exclusive copyright right that is being infringed;
· An identification of the copyrighted work or works that you claim have been infringed;
· A description of the nature and location of the material that you claim to infringe your copyright, in sufficient detail to permit the Company to find and positively identify that content, including the Asset Record® Serial Number;
· Your name, address, telephone number, and email address where the Company can contact you; and
· A statement by you: (i) that you believe in good faith that the use of the material that you claim infringes your copyright is not authorized by law, or by the copyright owner or such owner's agent; and, (ii) that all of the information contained in your DMCA Notice is accurate, and under penalty of perjury, that you are either the owner of, or a person authorized to act on behalf an owner of, the exclusive copyright right that is being infringed.
The Company's designated Copyright Agent to receive notifications of claimed infringement under the DMCA is, as follows:
Asset Record Company®
1550 Utica Avenue S., Suite 460
St. Louis Park, Minnesota 55416
United States of America
TEL: 1 + 952-232-0887
PLEASE BE ADVISED THAT THE COMPANY HAS THE LEGAL RIGHT TO FORWARD ANY DMCA NOTICES TO THIRD PARTIES, INCLUDING THE ACCUSED. IF YOU FAIL TO COMPLY WITH ALL OF THE "SUBSECTION A" REQUIREMENTS UNDER THE DMCA, THE COMPANY MAY NOT ACT UPON YOUR NOTICE. THE COMPANY WILL TERMINATE A USER'S ACCOUNT IF THEY ARE DETERMINED TO BE REPEAT OFFENDERS OF INFRINGING ACTIVITY AS AUTHORIZED BY THE DMCA.
7.4.3 DMCA Counter-Notice and Put-Back Procedure
If the Company removes any of Your content from the Service or an Asset Record® on the good faith, reasonable belief that such content infringes on the rights of others, You may have certain "Put-Back Rights" under Section 512(g) of the DMCA, provided you give the Company "Counter-Notice" that the content does not infringe copyrights of others. A proper Counter-Notice must contain the following information, pursuant to Section 512(g)(3)(A)-(D) of the DMCA:
1. The subscriber's name, address, phone number and physical or electronic signature.
2. Identification of the material and its location before removal.
3. A statement under penalty of perjury that the material was removed by mistake or misidentification.
4. Subscriber consent to local federal court jurisdiction, or if overseas, to an appropriate judicial body.
To file a Counter-Notice with the Company, please contact the Company's Copyright Agent by means of emailed, mailed or faxed notice as set forth in Section 7.4.2, above.
7.5 Trademark and Trade Name Infringement Claims
If you are the owner of a trademark or a trade name, or the agent of a trademark or trade name owner, and believe that content available by means of the Service or an Asset Record infringes one or more of your trademarks or trade names, please immediately notify the Company’s Copyright Agent by means of emailed, mailed, or faxed notice ("Trademark/Trade Name Notice") and include the information described above for DMCA notices respecting copyright infringement. The Company addresses alleged violations of trademarks and trade names in the same manner in which it does for copyright infringement claims. In addition to the DMCA Notice requirements, the Company requires that the entire Trademark/Trade Name Notice be made by the trademark or trade name owner, or his, her or its agent, under penalty of perjury. Please address your complaint as Trademark/Trade Name Notice to the Company's Copyright Agent, as noted above.
7.6 Mutual Indemnification; Duty to Defend/Hold Harmless for Claims of Infringement
The Company acknowledges and agrees that You shall have no liability and the Company shall indemnify, defend and hold You harmless against any loss, damage, costs, liability and expense (including reasonable attorneys' fees, court and arbitration filing fees and costs and other reasonable costs of defense) arising from any action or claim of a third party (hereafter, "Loss" and collectively, "Losses") that Your use of the Service in material conformity with the terms and conditions of this Agreement infringes the copyright or other intellectual property right of such third party ("Company Indemnification"). You agree that the Company shall have no liability and You shall indemnify, defend and hold the Company, its officers, directors, shareholders and employees, harmless against any Loss, except as to Losses covered by the Company Indemnification, arising from use of the Service by You or Your Delegates. The indemnified party shall: (1) give the indemnifying party prompt written notice of any Loss or threat of Loss; (2) cooperate fully with the indemnifying party, at the indemnifying party's expense, in the defense or settlement of any Loss or threat of Loss; and (3) give the indemnifying party sole and complete control over the defense or settlement of any Loss or threat of Loss. For purposes of providing notice of Loss or threat of Loss in this Section 7.6, the Parties agree to follow the Notice of Default procedures of alleged material breaches of this Agreement, as set forth in Section 6.3.1, above.
7.7. NOTICE APPLICABLE TO ALL PARTIES THAT CONTRIBUTE OR PROVIDE DATA, DOCUMENTS AND INFORMATION TO ASSET RECORDS®; WAIVER OF INTELLECTUAL PROPERTY RIGHTS AND CLAIMS AS AGAINST THE COMPANY PLEASE TAKE NOTICE THAT, IN THE ACT OF UPLOADING TO AN ASSET RECORD®, ANY DATA, DOCUMENTS OR INFORMATION ABOUT WHICH YOU CLAIM COPYRIGHT, PATENT, TRADEMARK, TRADE NAME, TRADE SECRET OR ANY OTHER INTELLECTUAL PROPERTY RIGHTS, YOU EXPRESSLY WAIVE ANY AND ALL CLAIMS OF INFRINGEMENT AS AGAINST THE COMPANY, ITS AGENTS AND SERVICE PROVIDERS. YOUR VOLUNTARY ACT OF CONTRIBUTION CONSTITUTES YOUR EXPRESS AND IMPLIED WAIVER OF ANY SUCH CLAIMS AS BETWEEN AND AMONG YOU AND THE COMPANY, ITS AGENTS AND SERVICE PROVIDERS. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION 7.7 IS INTENDED TO MISLEAD OWNERS OF INTELLECTUAL PROPERTY AS TO THEIR RIGHTS AGAINST THIRD PARTIES AND SHALL NOT BE INTENDED TO SUGGEST THAT THE COMPANY HEREBY SEEKS TO AFFECT RIGHTS, REMEDIES, LIMITATIONS OR DEFENSES TO COPYRIGHT INFRINGEMENT, INCLUDING FAIR USE, UNDER THE DIGITAL MILLENNIUM COPYRIGHT ACT, TITLE 17, UNITED STATES CODE.
SIMPLY PUT, THE ASSET RECORD COMPANY® CANNOT ACHIEVE ITS SOLUTION FOR OWNERS OF VALUABLE ASSETSWITHOUT THE UPLOADING OF DATA, DOCUMENTS AND INFORMATION TO AN ASSET RECORD®. AS A CONTRIBUTOR OF DATA, DOCUMENTS OR INFORMATION, PLEASE BE AWARE THAT YOUR CONTRIBUTED DOCUMENTS MAY BE VIEWED, PRINTED, FORWARDED OR OTHERWISE USED BY OTHER USERS OF THE ASSET RECORD® WHO YOU GRANT PERMISSION TO VIEW YOUR UPLOADED RECORDS.HOWEVER, THE COMPANY AGREES AND PROMISES NOT TO DISSEMINATE YOUR CONTRIBUTED DOCUMENTS OUTSIDE OF THE SERVICE.
THE COMPANY DOES NOT INTEND NOR SHALL IT BE REQUIRED OF THE COMPANY TO BE AN ARBITER OF COPYRIGHT INFRINGEMENT CLAIMS. FEDERAL COPYRIGHT LAW IMPOSES NO SUCH BURDEN OR REQUIREMENT UPON THE COMPANY. SECTION 512 OF THE DMCA (THE "ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION ACT") GRANTS CERTAIN SERVICE PROVIDERS A "SAFE HARBOR" FROM LIABILITY FOR INFORMATION POSTED OR TRANSMITTED BY SUBSCRIBERS IF THE SERVICE PROVIDERS QUICKLY REMOVE OR DISABLE ACCESS TO MATERIAL IDENTIFIED IN A COPYRIGHT HOLDER'S COMPLAINT. THE COMPANY SHALL ACT IN ACCORDANCE WITH THE PROVISIONS OF THE DMCA SAFE HARBOR. FOR YOUR REFERENCE ONLY, THE "FAIR USE" DOCTRINE IS CODIFIED AT SECTION 107 OF THE DMCA, PROVIDING A NON-EXCLUSIVE SET OF FOUR FACTORS COURTS WILL CONSIDER IN DECIDING WHETHER A USE IS FAIR OR NOT.
PLEASE CONSULT YOUR ATTORNEY OR OTHER TRUSTED ADVISOR FOR GUIDANCE.
8. ASSET RECORD® SUBSCRIPTIONS; TRIAL PERIOD; SUBSCRIPTION PERIOD; SUBSCRIPTION RENEWALS; REFUNDS; FORM OF PAYMENT
8.1 Asset Record® Subscription; Subscription Fee; Subscription Period; Initial and Renewal Terms
Commercial Property Owners acquire an Asset Record® by payment of the annual subscription fee ("Subscription Fee") within thirty (30) calendar days ("Subscription"). The Subscription shall be valid for one (1) year (the "Subscription Period) and be referred to as the Initial Term. Any renewal terms of Subscription shall commence on an anniversary of the Subscription Period ("Renewal Term(s)").
The Initial Term of a Commercial Property Owner’s Subscription will continue for one (1), two (2) or three (3) years from the Subscription Period, depending on the length of term which the Owner qualify, select and purchase.
Renewal Terms of a Commercial Property Owner’s Subscription will continue for one (1), two (2) or three (3) years from the anniversary of the Subscription Period immediately following the end of the Initial Term or the immediately preceding Renewal Term (as the case may be), depending on the length of Renewal Term that the Commercial Property Owner select and purchase. The Subscription Period does not include a "grace" period.
Residential Property Owners acquire an Asset Record® by payment of a Subscription Fee within thirty (30) calendar days of the creation of their Asset Record® (“Subscription”). The Residential Property Owner Subscription will be valid for ten (10) years (the “Subscription Period”). Any renewal terms of the Subscription will commence on the 10-year anniversary of the original Subscription Period.
Real Estate Professional Premium Users may create an Asset Record® by payment of the monthly subscription fee ("Subscription Fee") within thirty (30) calendar days ("Subscription"). The Subscription shall be valid for one (1) month (the "Subscription Period”) and be referred to as the Initial Term. Real Estate Professional Premium User Subscriptions will renew automatically each month, so long as payment is made.
8.2 Trial Period
Asset Record® Users may create and use Asset Records® and user accounts, without payment, for a thirty (30) day trial period (“Trial Period”). All Terms of this Agreement apply throughout that Trial Period.
Subscription payments made during the 30-day Trial Period will be refunded, in full, upon the cancellation of the User’s Subscription and account within the Trial Period, under the Terms of this Agreement. No refunds of Subscription payments will be made after the end of the Trial Period.
8.4 Automatic Renewals
Subscriptions may automatically renew beyond the Initial Term or Renewal Terms, as the case may be, if you have signed up for automatic renewals. If you do not renew prior to expiration of your Subscription Term, this Agreement shall no longer apply and if you wish to reinstate your expired Subscription, then you will be required to agree to the then-current Subscription terms and conditions and/or you may be subject to the payment of additional or other fees and expenses, but Your Subscriptions are still available for manual, subsequent renewal. The Company will endeavor to notify You via email thirty (30) days prior to the anniversary of the Initial Term or Renewal Term(s), as the case may be, that Your Subscription is nearing its end.
8.5 Mutual Right to Terminate Subscription
Each of the Company and You may immediately terminate Your Subscription if either Party fails to perform its obligations under the terms and conditions under this Agreement and such failure continues for thirty (30) days without cure after written notice by the non-defaulting party, as provided for above in Section 6.3.1, above.
8.6 Payment Methods; Company Right to Terminate Subscription for Nonpayment
Payment for each Subscription will be made by PayPal\A9, electronic funds transfer, personal/business bank draft or credit/debit card, unless the Company has agreed to provide You credit terms. The Company will endeavor to confirm your purchase within 48 hours after the Subscription Period or relevant anniversary of the Subscription Period (as the case may be). The Company may suspend or terminate Your Subscription if you fail to pay the Company for a Subscription or renewal in accordance with their terms.
You acknowledge and agree that Your purchases hereunder are not contingent upon Our future delivery of any new functionality or features of the Service or the delivery of any other services, notwithstanding that the Company may have made written or verbal public comments regarding future functionality or features of the Service or the delivery of any other services, alone or in partnership with others.
9.1 Protection and Security of Your Information
To prevent unauthorized access, maintain data accuracy and ensure the correct use of information, the Company deploys industry-appropriate physical, electronic, and managerial procedures to safeguard and secure the information the Company collects online by Your use of the Service and all Public Content and User Content. Because You will access, add, delete, copy, retrieve, replace, store, and upload Account Information and User Content via the Internet, the Company can neither represent nor guarantee the unauthorized access to Your Account Information and User Content.
The Company will implement industry-appropriate procedures to prevent unauthorized access to the Your Account Information and User Content and take industry-appropriate steps to prevent the accidental loss, corruption or destruction of Account Information and User Content, including all personally identifiable information (PII).
9.2 Company Initiatives; Education
The Company deploys industry-appropriate data collection, storage and processing practices and security measures, as well as physical security measures, to protect against unauthorized access, alteration, destruction or disclosure of your personal Information, username, password, transaction information and data stored in Your Account Information or User Content. Access to your name and email address is restricted to our employees who need to know such information in connection with providing the Service to You and are bound by confidentiality obligations. The Company fosters a culture of confidentiality with "top-down" initiatives to underscore the importance of keeping private the information of others.
The Company work toward this goal with education on business ethics, confidentiality and nondisclosure rules and regulations, internal policy manuals on these subjects, employee non-disclosure agreements and recurring training on these subjects. The Company exercises due diligence to prevent and detect wrongful conduct and otherwise promotes an organizational culture that encourages ethical conduct and a commitment to compliance with the law.
9.3 The Information the Company Collects
The Service is a web-based solution that requires You to be connected to the Internet. When You access the Service, the Company collects information revealing Your (a) email address, (b) IP address, (c) user name and (d) password. The Company also makes logs of all interactions with the Service, allowing You the ability to monitor activity within Your Asset Record(s)®. The Company use temporary and permanent cookies and web beacons to enhance the user experience of the Service.
Information gathered from cookies and web beacons helps the Company understand how the Service is performing and provides website usage information to support customizing and improving the Service.
The Company collects raw, technological information about Your use of the Service, such as call records, website visits, application and feature usage, network traffic data and other similar information. The Company may use this information to deliver and maintain products and services, or to help You with service-related issues or questions. Subject to any legal restrictions that may apply, the Company may also use this information to (1) manage and protect the Service and Users from abusive, fraudulent or unlawful uses and (2) subject to consent practices described in this Agreement, help the Company improve the Service, research and develop new products and offer other services. This type of information may be aggregated or made anonymous for business and marketing uses by the Company or by third parties.
10. LIMITATIONS ON WARRANTIES AND LIABILITIES OF THE COMPANY; ASSUMPTION OF RISK; LEGAL NOTICES
10.0 Non-Exclusivity and Non-Merger of Legal Disclaimers and Limitations of Company Liability
The Legal Disclaimers and Limitations expressed in this Section 10 are not mutually exclusive.
Other disclaimers and limitations of the Company's liability to You occur throughout this Agreement in one or more relevant sections or subsections of this Agreement. The expression of additional disclaimers and limitations of the Company's liability here do not modify, replace or supplant those contained in other sections or subsections of this Agreement, and all such disclaimers and limitations must be read together as a whole.
10.1 LIMITED WARRANTIES OF THE COMPANY; YOUR ASSUMPTION OF RISK; LEGAL NOTICE
10.1.1 DISCLAIMER OF WARRANTIES, EXPRESS OR IMPLIED
EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT OR IN A LICENSE OR OTHER AGREEMENT GOVERNING THE USE OF SPECIFIC CONTENT, THE SERVICE IS PROVIDED TO YOU ON AN "AS IS," "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY, ALONG WITH ITS AGENTS, CONTRACTORS, LICENSORS AND VENDORS, MAKE NO CONDITIONS, REPRESENTATIONS OR WARRANTIES ON ANY KIND REGARDING THE SERVICE, ANCILLARY PRODUCT, ANCILLARY SERVICES OR SUPPORT AND SPECIFICALLY DISCLAIM ALL EXPRESS, IMPLIED BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE AND ANY OTHER STATUTORY WARRANTIES, INCLUDING BUT NOT LIMITED TO THOSE CONCERNING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR TITLE OR NON-INFRINGEMENT OF PROPRIETARY RIGHTS.WITHOUT LIMITING THE FOREGOING, THE COMPANY, ALONG WITH ITS AGENTS, CONTRACTORS, LICENSORS AND VENDORS, DO NOT IMPLY, REPRESENT OR WARRANT THAT THE SERVICE IS FREE FROM ERROR OR BUGS, FREE FROM VIRUSES AND OTHER MALICIOUS CODE, WILL BE CONTINUOUS AND UNINTERRUPTED, OR SUITABLE FOR ANY PURPOSE, INCLUDING YOURS, OR THAT THE USE OF THE SERVICE WILL NOT INFRINGE UPON THIRD-PARTY COPYRIGHTS, PATENTS, TRADEMARKS, OR ANY OTHER INTELLECTUAL PROPERTY RIGHTS, WHETHER ISSUED, PENDING OR CONTEMPLATED.
10.1.2. YOUR ASSUMPTION OF RISK
YOU ACKNOWLEDGE AND AGREE THAT YOU USE THE SERVICE, DOWNLOAD OR OTHERWISE OBTAIN CONTENT BY USE OF THE SERVICE, AND/OR VIEW OUTSIDE CONTENT, WHETHER OR NOT YOU DOWNLOAD SUCH CONTENT, AT YOUR OWN RISK AND DISCRETION. YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY, ALONG WITH ITS AGENTS, CONTRACTORS, LICENSORS AND VENDORS, WILL NOT BE LIABLE FOR ANY LOSS OR LIABILITY YOU INCUR RESULTING IN WHOLE OR IN PART FROM ANY FAILURE OF YOUR COMPUTER SYSTEMS OR COMPUTER EQUIPMENT, CAUSED, DIRECTLY OR INDIRECTLY, BY A THIRD-PARTY PROVIDER OF SOFTWARE, AN INTERNET BROWSER PROVIDER, AN INTERNET SERVICE PROVIDER OR AN ONLINE SERVICE PROVIDER, OR ANY DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL, EXEMPLARY OR ECONOMIC DAMAGES ARISING FROM YOUR ACCESS TO OR USE OF, OR FAILURE TO OBTAIN ACCESS TO THE SERVICE. IN NO EVENT SHALL THE COMPANY BELIABLE FOR ANY DAMAGE TO OR FAILURE OF YOUR COMPUTER SYSTEMS, COMPUTER EQUIPMENT,TELECOMMUNICATIONS EQUIPMENT OR DATA, DOCUMENTS OR INFORMATION THAT RESULTS FROM YOUR USE OF THE SERVICE AND/OR DOWNLOAD OF CONTENT, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED FOR IN THIS AGREEMENT OR AS MAY BE REQUIRED OF THE COMPANY BY APPLICABLE LAW.
10.1.3. NOTICE OF YOUR LEGAL RIGHTS REGARDING IMPLIED WARRANTIES
NOTHING IN THESE TERMS AND CONDITIONS ARE SUGGESTED TO RESTRICT THE EFFECT OF CONDITIONS OR WARRANTIES THAT MAY BE IMPLIED BY LAW BUT WHICH CANNOT BE EXCLUDED, MODIFIED OR RESTRICTED.
SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN THIS AGREEMENT.
SPECIFICALLY, IF YOU ARE A RESIDENT OF A STATE THAT DOES NOT PERMIT THE COMPANY TO EXCLUDE IMPLIED WARRANTIES UNDER ITS APPLICABLE LAW, AND SUCH STATE WILL NOT APPLY THE LAW OF MINNESOTA TO THIS AGREEMENT, THEN THE LIMITATIONS SET FORTH IN SECTIONS 10.1.1 AND 10.1.2, ABOVE, DO NOT APPLY TO YOU.
NOTHING IN THIS AGREEMENT IS INTENDED TO NOR SHALL AFFECT THE STATUTORY RIGHTS OF A CONSUMER.
10.2 LIMITATION ON COMPANY LIABILITY; STATUTE OF LIMITATION; LEGAL NOTICE
10.2.1 LIMITED LIABILITY OF THE COMPANY
OUR TOTAL LIABILITY TO YOU UNDER THIS AGREEMENT IS STRICTLY LIMITED TO THE ACTUAL LOSS YOU INCUR OR THE LAST ANNUAL SUBSCRIPTION FEE YOU PAID FOR YOUR ASSET RECORD®, OR, IN THE EVENT YOU PURCHASED MORE THAN ONE ASSET RECORD®, THEN THE SUM TOTAL OF ALL SUBSCRIPTION FEES YOU PAID, WHICHEVER AMOUNT IS SMALLER. YOU ACKNOWLEDGE AND AGREE THAT THE SUBSCRIPTION FEE REFLECTS THIS ALLOCATION OF RISK AND THAT THE LIMITATION SET FORTH IN THIS SECTION 10.2.1 IS AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN THE PARTIES. THE COMPANY HAS PRICED THE SUBSCRIPTION FEE FOR AN ASSET RECORD® BASED ON THIS LIMITATION OF LIABILITY, FORMING A CRITICAL TERM OF THIS AGREEMENT ON WHICH THE COMPANY HAS REASONABLY RELIED IN AGREEING TO MAKE THE SERVICE AVAILABLE TO YOU.
THE COMPANY SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD-PARTY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING BUT NOT LIMITED TO ANY LIABILITY FOR ASSET RECORD® SERVICE NOT BEING AVAILABLE FOR USE, LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS, LOSS OF GOODWILL, LOST OR CORRUPTED DATA OR DOCUMENTS, THE COST OF REPLACING LOST OR CORRUPTED DATA OR DOCUMENTS, THE COST OF PROCURING SUBSTITUTE SERVICE OR THE PROVISION OF ANCILLARY SERVICES AND SUPPORT.THE COMPANY SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD-PARTY FOR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT,PUNITIVE, SPECIAL OR OTHER SIMILAR DAMAGES, WHETHER SUCH CLAIM IS BASED ON CONTRACT,TORT - INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY - OR OTHER LEGAL OR EQUITABLE THEORY OF RELIEF, RESULTING FROM ANY USE OF THE SERVICE OR OF ANY HYPERLINKED WEBSITE, OR THE CONTENTS THEREOF, OR THE INABILITY TO USE THE SERVICE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE REMEDIES SET FORTH IN THIS AGREEMENT SHALL APPLY EVEN IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
10.2.2 STATUTE OF LIMITATIONS
YOU ACKNOWLEDGE AND AGREE THAT ANY CAUSE OF ACTION OR CLAIM ARISING OUT OF, IN CONNECTION WITH OR RELATED TO THE SERVICE MUST BE COMMENCED BY THE PARTIES WITHIN ONE (1) YEAR AFTER SUCH CAUSE OF ACTION OR CLAIM ACCRUES, REGARDLESS OF ANY LAW OR STATUTE TO THE CONTRARY.
10.2.3 NOTICE OF YOUR LEGAL RIGHTS REGARDING EXCLUSION OR LIMITATION OF LIABILITY; CONTRACTUAL STATUTE OF LIMITATIONS
SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION FOR CERTAIN INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR A CONTRACTUAL LIMITATION ON THE LENGTH OF TIME BY WHICH YOU MUST COMMENCE A CAUSE OF ACTION OR CLAIM. SPECIFICALLY, IF YOU ARE A RESIDENT OF A STATE THAT DOES NOT PERMIT THE LIMITATION OF LIABILITY OR THE CONTRACTUAL STATUTE OF LIMITATION UNDER ITS APPLICABLE LAW, AND SUCH STATE WILL NOT APPLY THE LAW OF MINNESOTA TO THIS AGREEMENT, THEN THE LIMITATIONS SET FORTH IN SECTIONS 10.2.1 AND 10.2.2, ABOVE, DO NOT APPLY TO YOU.
NOTHING IN THIS AGREEMENT IS INTENDED TO OR SHALL AFFECT THE STATUTORY RIGHTS OF A CONSUMER.
10.3 SURVIVAL OF THESE TERMS
All of the terms of this Section 10 shall survive termination of this Agreement.
11. INDEMNIFICATION OF THE COMPANY; INJUNCTIVE RELIEF; SCOPE
11.1 Nature of Your Indemnity of the Company
Except with respect to the Parties agreement of mutual indemnification contained in Section 7.6, above, to the maximum extent permitted by law, You agree to defend, indemnify and hold harmless the Company, and its officers, directors, shareholders and employees, and each of them, from and against any and all third-party claims, causes of action, liabilities, losses, costs, damages or expenses, including attorneys' fees and courts costs incurred even as a result of only the threat of litigation ("Claims"), arising out of or resulting, directly or indirectly, from Your use of the Service, including but not limited to, (a) Claims that You violated any representation or warranty contained in this Agreement and/or the Use Policies, (b) Claims that You failed to comply with applicable law regarding such party's personally identifiable information, (c)Claims involving Your acts or omissions. Notwithstanding the foregoing, Your indemnification in this Section 11.1 shall not include Claims arising by reason of the Company's gross negligence or willful misconduct or by reason of any insolvency or bankruptcy proceeding involving the Company.
11.2 Injunctive Relief
You acknowledge and agree that the Company's confidential information and the Service are unique property, and the unauthorized use thereof will cause the Company irreparable harm that may not be adequately compensated by monetary damages alone. Accordingly, You agree that the Company will, in addition to other remedies available to it at law or in equity, be entitled to seek injunctive relief to enforce the terms of this Agreement, including preventing any actual or threatened unauthorized use or sublicensing of the Company's confidential information, the Service or any information or data contained therein.
11.3 Scope of Your Indemnity of the Company; Costs, Expenses and Fees
Your indemnity provided in Section 11.1, above, shall include all costs and reasonable fees of attorneys hired by the Company in its defense to the threat of a lawsuit, whether or not the Company actually becomes party to a lawsuit. Your defense of the Company pursuant to this Section 11 shall be by counsel selected by the Company, in its sole and absolute discretion. Covered costs shall also include duplication expenses and the actual cost for the time expended by any employee(s) or agent(s) of the Company (based on the Company's salary or fee to such employee(s) or agent) in preparation of any response to any summons, subpoena, judicial or administrative process, to any correspondence, to the drafting of answers, complaints, applications, discovery, motions, cross-complaints, or spent in negotiations toward settlement, or in traveling to or from and attending hearings, depositions or meetings related to matters indemnified against pursuant to this Agreement.
12. GENERAL REPRESENTATIONS OF THE PARTIES
12.1 No Conflict with Existing Contracts or Orders; No Creation of Lien
Each Party represents and warrants to the other that the act of entering into this Agreement and performing their respective obligations hereunder (i) does not conflict with or result in a breach of or constitute a default under any other agreement or instrument to which such party is a party or by which such party is bound or under any court order applicable to such party and such party has obtained all approvals, authorizations, consents or orders of any court or governmental agency or body, if any, required to enter in this Agreement and perform its obligations hereunder and (ii) will not result in the creation or imposition of any lien on any of such party's assets or property which would materially and adversely affect the ability of such party to perform its obligations hereunder.
12.2 No Relationship Created OtherThan as Independent Contractor
You acknowledge that neither Your act of entering into this Agreement nor use of the Service creates a fiduciary or employment relationship with the Company. The Company's performance of its obligations under this Agreement shall be that of an independent contractor, and nothing herein shall create or imply an agency relationship between the Parties, nor shall this Agreement be deemed to constitute a franchise, joint venture or partnership between the Parties.
12.3 Assignment; Modification; No Amendment; Non-Waiver
You may not assign any right, title or interest in an Asset Record® without the Company's prior written consent, unless you comply with the terms of this Agreement, including the payment obligation. The Company may assign or subcontract any of its rights or obligations hereunder. No modification of these terms and conditions or of a disclaimer, limitation or waiver of rights will be effective unless agreed to in a writing signed by the party to be charged. This Agreement may not be altered, supplemented or amended by the use of any other document(s) unless otherwise agreed to in a written agreement signed by the Parties or as otherwise provided herein. The failure of either party to require strict performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
Any provision hereof which is prohibited or unenforceable in a jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without affecting the validity or enforceability of the remainder of this Agreement, or the enforceability of such offending provision in any other jurisdiction. As to the prohibited or unenforceable provisions, the Parties desire that such provisions will be enforced as nearly as possible in accordance with their stated intentions.
12.5 No Third Party Beneficiaries
Nothing expressed or implied in this Agreement is intended to confer upon any person other than the Parties any liabilities, obligations remedies or rights of any kind or nature whatsoever.
12.5 Headings; Organization and Presentation
Headings are included for convenience of reference only and shall not constitute a substantive part hereof, and the Parties acknowledge and agree that headings shall be ignored in construing the terms and enforcing the obligations of this Agreement. No inference shall be drawn that the order in which terms and conditions in this Agreement are organized and presented reflect the level of importance or relevance attached to them by the Company.
Unless otherwise expressly stated to the contrary in any other Clause, Section or Subsection of this Agreement, the Company may give notice by means of a general notice on the Website, by electronic mail to your email address on record in Your Account Information, or by written communication sent by first class mail or pre-paid post to your address of record in Your Account Information.You may give the Company notice at any time by any of the following, unless otherwise expressly required of You in any other Clause, Section or Subsection of this Agreement: letter sent by confirmed facsimile to the following fax number: (952) 881-1210; letter delivered by an internationally-recognized overnight delivery service or registered, postage prepaid mail at the following addresses: Asset Record Company®, 1550 Utica Avenue S., Suite 460, St. Louis Park, Minnesota 55416 USA. Any such notice shall be deemed successfully given: (1) in the case of an internationally-recognized courier service, the date of delivery confirmation; (3) in the case of registered mail, five (5)days from the date of posting; or (3) in the case of email or facsimile, 12 hours after successful transmission.
12.7 Attorneys' Fees
Should any litigation arise between the Parties stemming from this Agreement, including, but not limited to, actions for damages, specific performance, declaratory, injunctive or other relief, and whether at law or in equity, and including appellate and bankruptcy proceedings as well as at arbitration or at the trial level, the prevailing party in any such litigation or proceeding shall be entitled to recover reasonable fees and costs of attorneys and legal assistants to the extent permitted by law.
12.8 GOVERNING LAW; PERSONAL JURISDICTION; VENUE & FORUM NON CONVENIENS; WAIVER OF TRIAL BY A JURY; AGREEMENT TO NEGOTIATE DISPUTES IN GOOD FAITH
12.8.1 GOVERNING LAW; PERSONAL JURISDICTION; VENUE &FORUM NON CONVENIENS; WAIVER OF TRIAL BY JURY; AGREEMENT TO NEGOTIATE DISPUTES IN GOOD FAITH
YOU AGREE THAT THE TERMS AND CONDITIONS OF THIS AGREEMENT, ANY SALES THEREUNDER, AND ANY CLAIM, DISPUTE OR CONTROVERSY OF ANY KIND OR NATURE WHATSOEVER WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING COMMON LAW, EQUITABLE AND STATUTORY CLAIMS BETWEEN YOU AND THE COMPANY, ARISING FROM OR RELATING TO THIS AGREEMENT, ITS INTERPRETATION, OR THE BREACH, TERMINATION OR VALIDITY THEREOF, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE UNITED STATES AND THE STATE OF MINNESOTA, WHICHEVER IS APPLICABLE, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.YOU ALSO AGREE THAT ANY ACTION RELATING TO OR ARISING OUT OF THIS AGREEMENT SHALL BE BROUGHT IN THE DISTRICT COURT OF THE STATE OF MINNESOTA, COUNTY OF HENNEPIN, OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA, IN MINNEAPOLIS, AND YOU HEREBY CONSENT TO -- AND WAIVE ALL DEFENSES OF LACK OF PERSONAL JURISDICTION AND FORUM NON CONVENIENS WITH RESPECT TO -- JURISDICTION AND VENUE IN THE STATE AND FEDERAL COURTS OF HENNEPIN COUNTY, MINNEAPOLIS, MINNESOTA. YOU AGREE TO WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BROUGHT PURSUANT TO OR UNDER, RELATING TO OR ARISING OUT OF, THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, THE PARTIES AGREE TO FIRST TRY IN GOOD FAITH TO SETTLE ANY DISPUTES UNDER THIS AGREEMENT PRIOR TO SUBMISSION OF SUCH DISPUTES TO ANY COURT OF COMPETENT JURISDICTION.
12.8.2 NOTICE OF YOUR LEGAL RIGHTS REGARDING WAIVER OF TRIAL BY JURY
SOME JURISDICTIONS MAY NOT ALLOW CERTAIN INDIVIDUALS TO WAIVE THE RIGHT TO TRIAL BY A JURY OF THEIR PEERS. SPECIFICALLY, IF YOU ARE A RESIDENT OF A STATE THAT DOES NOT PERMIT CERTAIN INDIVIDUALS FROM AGREEING TO WAIVE THEIR RIGHT TO A TRIAL UNDER ITS APPLICABLE LAW, AND SUCH STATE WILL NOT APPLY THE LAW OF MINNESOTA TO THIS AGREEMENT, THEN THE LIMITATION SET FORTHIN SECTION 9.1.3, ABOVE, DOES NOT APPLY TO YOU. NOTHING IN THIS SECTION
12.8 IS INTENDEDTO NOR SHALL AFFECT THE STATUTORY RIGHTS OF A CONSUMER.
All provisions of this Agreement, which by their nature should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers and limitations of liability.
BY ACCESSING, INTERACTING WITH OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THIS AGREEMENT.