BidMyListing User Agreement
Updated January 12, 2023.
We are Bid My Listing, Inc. (“BML”). Welcome, and thank you for choosing us!
WHAT WE DO
We use patent pending matching technology to unite home sellers (“Sellers”) and real estate agents (“Agents”), and deliver the most efficient and economically aligned win-win:
We empower and reward Sellers – Prior to BML, Sellers were the product in an industry built around Seller “leads” consisting of information about them and their likelihood to buy or sell. With BML, Sellers are no longer the product – their listing is – and they own it!
We make Agents more efficient – Prior to BML, Agents hunted (and paid) for leads, which are speculative and fruitful only 1.5-2% of the time. With BML, Agents acquire listings instead of leads. This allows them to have certain inventory at a predictable cost and spend more of their time selling.
Join us at BML where everyone wins because Sellers get paid for their asset while Agents get the exclusive right to list instead of mere leads.
WHAT WE DON’T DO
We provide a marketing service only. We do not provide auction services, real estate brokerage services or sell real property leads.
ACCEPT OUR TERMS OR DO NOT USE OUR SERVICE
This User Agreement describes our publicly accessible properties and our rules for using them. By using any of our properties and services, including our website at www.bidmylisting.com and any other branded properties (the “Services”), you agree to abide by these rules and expressly agree that you are entering into a legally binding agreement with us. Please read our User Agreement carefully, as it is a binding agreement between you and BML.
If you do not want to abide by our rules, including the arbitration clause and class action waiver included below, you may not use our Services.
Agents currently spend billions annually to buy listing leads, which they only close at a 1.5-2% rate. When Agents create an account with BML they receive notifications when a listing is available in their area. Agents who purchase the exclusive right to list these listings on our platform can spend more of their time selling listings and far less hunting for leads.
OUR RULES FOR AGENTS
You agree to all rules: You agree that when you create an account you will abide by this Agreement and all laws, regulations and professional obligations that apply to your profession.
You agree to our simple process: You agree to create an account and opt-in to receive notifications (through SMS, email, and push notifications) when exclusive listings are available in your area. You may then purchase the exclusive right to list and that right becomes a listing once you and the Seller execute a listing agreement. Your purchase consists of 4 elements:
The listing agreement duration
Your commission rate
Your cash offer to the Seller
Your payment of the BML SmartMatch Premium, which is derived in each case by market supply and demand and disclosed to you before you make an offer
If the Seller selects you as their Agent, we will pre-authorize your credit card for the cash offer amount plus the BML Smart Match Premium, and we will hold that amount on your credit card. After that, you have 5 days to meet the Seller, conduct a walk through and execute a listing agreement. Once you and the Seller confirm that you have executed the listing agreement, we will process your credit card payment to us for the total amount and will pass your cash offer to the Seller. If you do not execute a listing agreement within 5 days, the Seller may cancel the transaction and we will refer them to the Agent with the next best offer. Once the Seller does so we will release the hold on your credit card.
You agree to our proprietary methodology: You agree that your offer to buy a given listing will consist of your proposed cash payment to the Seller, the duration of your proposed listing term, and your proposed commission rate. These elements underlie our patent pending matching technology. You recognize that this is our intellectual property and agree that you will not take steps to subvert or replicate it on your or any third-party platform.
You understand our role: You agree that we are a marketing platform that alerts you to ready-to-sell listings. As such, once you have purchased an exclusive right to list, existing market mechanics and rules take over. After all, without us you would have spent marketing dollars to find this right to list, but you would never ask your marketing channels to mediate a dispute with a Seller you found through them. Our platform is here to match you and the Seller, but once you have executed a listing agreement and paid for the cash component plus BML Smart Match Premium, existing market regulation controls your duties, obligations, and relationship to the Seller. This means that if any of the following things happen after executing a listing agreement, among other things that may occur during an Agent/Seller relationship, your remedy is found within the terms of your listing agreement, not with us:
The home does not sell
Your relationship with the Seller deteriorates
The Seller fails to perform in a manner that meets your expectations
The Seller disagrees with your advice or strategy
The Seller refuses a bona fide offer
You and the Seller disagree on service providers (title, escrow, etc.)
You and the Seller disagree on home value
You agree not to steal from us: You agree that the exclusive listings found on our platform are our intellectual property. We paid to acquire those exclusive listings so that we could deliver the opportunity to purchase them to you via our efficient platform. As such, you agree that you will not attempt to contact the homeowner off-platform, negotiate a different set of economics off-platform, or in any way attempt to create an off-platform relationship with the Seller or acquire the exclusive right to sell that you found on our platform. We have invested significant resources in creating a set of safeguards to police this rule. If we believe you have violated this rule, we reserve the right to all legal remedies, including reporting you to authorities and your professional regulators, as well as to commence litigation for the damages you have caused.
Your “lead farm” does not apply here: You agree that your lead “farm” is inapplicable to our Services. We are aware that Agents may have been nurturing a particular listing in the hopes of acquiring it, but that the Seller may instead decide to list on our platform. In that event, the listing becomes our intellectual property, regardless of whether you feel that you earned it or have some right to it because it was previously in your pipeline. A Seller’s decision to list with us is theirs and theirs alone, and we operate this platform to give them the freedom to monetize their listing. We will not entertain your complaints if you disagree with a Seller’s decision to list on our platform.
You agree to where our service ends and the market takes over: You agree that we do not intermediate or otherwise have a role in the following issues, among others:
Your relationship with your brokerage and their control over your use of our platform
Whether you double-end a deal by representing both Seller and buyer of a home
Whether other agents have more resources to buy more exclusive rights to list than you
Whether the price of an offering exceeds your expectations or ability to compete
Your belief that you “own” an area, address, zip code, etc.
The number of exclusive rights to list you are or are not able to purchase
You agree to provide truthful, accurate information: You agree to provide only truthful, accurate information in your profile and communications.
For the first time, our platform allows Sellers to monetize the asset value that lies within their home listings. Simply put, instead of being the product Sellers now own the product. They can receive value for their listing while being matched with a qualified Agent of their choosing.
OUR RULES FOR SELLERS
You agree to provide truthful, accurate information: You agree that for you to monetize your asset, you must be completely truthful; this is a simple matter of ethics. For our platform to work best for you, Agents need to have faith in it and in the information you provide. This means that your home description, photos, etc., must accurately reflect your home and its condition. If you misrepresent these things, we have no liability to you or the Agent, and we reserve the right to edit or remove your listing.
You have honest intent: You agree that if you accept money for your listing you intend to go through with a sale. We have multiple fraud detection systems and, if we receive a report of fraud, are willing to cooperate with law enforcement.
You confirm that you own the home you are listing: You agree that you obviously cannot monetize an asset that does not belong to you, so do not attempt to do so on our platform. We use several methods to confirm your home ownership. Do us both a favor and do not attempt to lie about your home ownership.
You agree to remain on-platform: We are aware that Agents may attempt to circumvent our platform and negotiate with you over your listing. You agree not to engage in this and to report any attempts by agents to us at email@example.com. Our platform is designed to maximize your opportunity, so that you gain the type of value that matters most to you. We believe it is very unlikely that you will maximize your value if an Agent approaches you off-platform.
You recognize and agree to our role: We exist to help you monetize your listing and be matched with the appropriate Agent for your home. Once you execute a listing agreement, your rights vis a vis your Agent are governed by that agreement, your local laws and the Agent’s local regulations. This means that, once you have executed a listing agreement, we cannot mediate disputes between you and your Agent. If you have an unsatisfactory experience let us know at firstname.lastname@example.org. If you believe you have a legal or ethical claim against your Agent, please contact your local Board of Realtors or the state agency that governs real estate licensure.
You agree to only list your home when you are ready to sell: For our platform to best serve both Sellers and Agents, Sellers must have made the decision to sell. If listings are posted and then retracted, it undermines the confidence in our system. If you are exploring the idea of selling but are not yet ready, please contact us at email@example.com, and we will have a dedicated teammate work with you until you are ready to sell.
You agree to understand and abide by your listing agreement: We cannot mediate most disputes between you and your Agent. Your listing agreement, as well as your local laws, will govern your rights and duties vis a vis your Agent. Please make sure you understand your listing agreement, and seek professional advice in that regard, if necessary, as it is the cornerstone agreement that governs how you and your Agent relate to one another. This means that unless your listing agreement permits otherwise, you cannot unilaterally cancel a listing or deviate from your obligations under the listing agreement just because you selected your Agent through our platform.
You have no interest in our Smart Match Premium: We are compensated for providing a match between you and your Agent. You agree that you have no right to or interest in the amount we are compensated.
Your tax obligations are your responsibility: You agree that, where applicable, BML will provide you with a 1099 for your income received from transactions on our platform. Other than providing you with a 1099, we have no further tax obligation to you.
OUR FEES AND HOW THEY WORK
We charge a Smart Match Premium for our service. This is based upon market supply and demand. Our platform clearly discloses the Smart Match Premium prior to an Agent making an offer to the Seller.
We reserve the right to change our fee structure at any time. You expressly acknowledge and agree to this.
Sellers who go off-platform to negotiate with an Agent may be liable for a final value fee applicable to their listing, even if it does not sell, as that Seller would have used our platform to meet their Agent then avoided our marketing fee. In other words, they would have stolen our service. We carefully monitor this and reserve the right to enforce this policy by all legal means.
Agents who go off-platform to negotiate with a Seller may also be liable for a final value fee applicable to the listing, even if it does not sell, as that Agent would have used our platform to find the listing then avoided our marketing fee. In other words, they also would have stolen our service. We carefully monitor this and reserve the right to enforce this policy by all legal means.
You must have a payment method on file when buying through our platform, and you agree to pay all fees and applicable taxes associated with our Services in conjunction with the closing of the sale of the listing agreement. No terms or special payment arrangements will be made by BML. If your payment method fails or your account is past due, we may collect amounts owed by charging other payment methods on file with us, retain collection agencies and legal counsel.
If your account is over 60 days past due, we may request that your payment method deduct the amount owed from your account balance, if applicable. In addition, you will be subject to late fees. BML, or the collection agencies we retain, may also report information about your account to credit bureaus; as a result, late payments, missed payments or other defaults on your account may be reflected in your credit report. If you wish to dispute information BML reported to a credit bureau (i.e., Experian, Equifax, or TransUnion) please contact us at billing @bidmylisting.com. If you wish to dispute the information a collection agency reported to a credit bureau regarding your BML account, you must contact the collection agency directly.
WE RESERVE THE RIGHT TO AMEND THESE RULES
Like any good company, we learn as we grow. As we learn, we may need to amend this Agreement to make it fit our current understanding of our users or the market, or to reflect new laws and regulations. We expressly reserve the right to do so without notice. All publicly displayed versions of this Agreement will be versioned and/or dated, and we will push update notifications to our opted-in and registered users.
ELIGIBILITY AND CAPACITY
You agree that you are at least 18 years of age, or the age of majority (able to make legally binding decisions for yourself) where you reside. You also agree that you are of sound mind, free will and have the capacity to understand and agree to these rules.
RESPONSIBLE ACCOUNT CONTROL
Your account is serious business. For Sellers it represents a gateway to your valuable asset. For Agents it represents a gateway to your reputation and valuable business.
You recognize this and agree that if you create an account with us, you will provide a valid email address and create a conforming password. You further agree that any information you provide will be truthful, accurate, and complete, and that you will safeguard the confidentiality of your account information. You are fully responsible for any activity on our platform taken under your account and agree that we are in no way responsible or liable to you for activity taken by your account.
OUR INTELLECTUAL PROPERTY
All our Services are proprietary to us. That means they have value, and we own them, and you may not steal that value from us.
Our Services include the materials we have selected, arranged, and displayed on any of our properties or those we license or purchase from suppliers and make available to you. They are protected by copyright and other U.S. or international laws. You agree to follow all laws governing our ownership of this intellectual property. You further agree to follow all notices or restrictions we post in the Services.
By using the Services, you agree that you will not take any steps to diminish their value to us, which you recognize, or convert their value to you. This means you will not use any aspect of the Services to create the impression that you or someone other than us owns them. An example of this would be the use of frames, in which you frame our site to create the impression it is yours. You are not permitted to do this or take any similar action that yields the same result.
YOUR LICENSED USE OF OUR SERVICES
While we own our Services, we allow you to use them under a limited license that requires you to follow the rules in this Agreement. If you fail to do so, we will suspend your right to use our Services.
We grant you a limited, non-exclusive, non-transferable license to use our Services, but you may use them only as expressly permitted in this Agreement. You agree not to use, copy, modify, adapt, develop derivative works from, re-distribute, license, sell, transfer, publicly perform or display, transmit, broadcast, or otherwise attempt to derive value from our Services except as permitted in this Agreement. Should you do so, we reserve the right to immediately terminate your access to our Services and pursue all remedies available to us under applicable law.
In exchange for the license we grant you, you agree that we may contact you by any method for which you have provided us contact information, including email, telephone, and SMS/messaging.
SERVICE RULES YOU AGREE TO FOLLOW
For all our users to derive maximum utility from our Services, each of our users must follow the rules in our Agreement so that everyone can enjoy the Services free from harassment, harm, or loss of value. Among others, you expressly agree that you will not use our Services in any way that:
Allows you to use technological means to steal from the Services, including scraping, monitoring, or copying, particularly using automated bots, etc.
Violates or bypasses any technological restrictions built into the Services
Creates derivative works from the Services or otherwise minimizes or steals their value
Harms or minimizes the value of our computer systems or transmits harmful files such as worms or viruses
Attempts to gain unauthorized access to the Services or circumvents any of our security features
Uses our Services or any part of them to send SPAM or unsolicited messages
Violates any third-party’s rights
Harasses others, including by threatening, stalking, harming misleading or deceiving them
Promotes hate through discrimination or is defamatory or negative
Promotes illegal activity
Violates any laws
Competes or attempts to compete with our business
YOUR CONTENT AND SUBMISSIONS
You will provide content to us through our Services. When you do so, you agree that we have no responsibility to post, display or retain any of that content in any particular manner, and that we have the right to display or share it how we see fit.
You are solely responsible for all content that you post, publish, transmit, upload, distribute or otherwise make available or submit to or through the Services. Your submissions may be identified by your actual name and/or your username. You acknowledge that once published, you cannot withdraw such submissions. Unless we indicate otherwise, you grant us, our subsidiaries, and affiliates a nonexclusive, transferrable, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, copy, and display any submissions throughout the world in any form.
You represent and warrant to us that you own or otherwise control all the rights to your submissions and that your submissions will not violate this Agreement or cause injury to any other person or entity. We take no responsibility and assume no liability for any material, content, opinion, recommendation, or advice provided by you in your Submissions or by any third party. We have no obligation to post any of your submissions and reserve the right to post our own versions of that content (including, but not limited to, photos of properties or property descriptions) instead of yours at our sole discretion.
You assign us the right to pursue enforcement of copyright and other intellectual property claims against third parties that have, without authorization, and in violation of this Agreement, scraped, copied, or distributed content from your submissions and for which you have not granted such third parties a separate license to use.
In addition to complying with the rules specified in this Agreement, you agree to comply with the following rules when making any submissions. This list is not meant to be exhaustive, and we reserve the right to determine what types of conduct we consider to be inappropriate use of the Services. In the case of inappropriate use, we may take such measures as we determine appropriate, in our sole discretion. You agree to abide by the following rules when making any submissions:
You will remain polite and civil to other users, even if you disagree with content that you come across through your use of the Services
Your submissions will not be off topic or contain promotions of or solicitations for other products, services, or fundraising activities
Your submissions will not infringe or violate our rights or the rights of a third party
You will not impersonate anyone else, misrepresent your identity or affiliation, or make submissions from fake or anonymous profile
You agree that we are not liable for submissions made by you or others
You agree that we have the right to remove or edit any content and any submissions in our sole discretion
Your submissions will not consist of any inappropriate content, including without limitation personal attacks, offensive remarks, obscenities, or any language that we consider foul, vulgar, or fraudulent
Your submissions will not contain images of any person, unless you have received their permission, or the permission of their parent or guardian if the person is under the age of 18 or unable to provide consent for any reason
You will not share viruses or files that have the capability of causing damage to another’s computer
You agree that we have the right to delete, modify or remove any submissions, at any time in our sole discretion and that you are solely responsible to backup any such content; and
You agree that when you use the Services you do so at your own risk and that you understand that submissions that you see may not be accurate. While we may monitor submissions, we are under no obligation to do so
HOW TO REPORT COPYRIGHT INFRINGEMENT CLAIMS
If you believe that material appearing within our Services infringes on a copyright you hold, follow this exact procedure so that we may address your concerns:
If you believe your copyright or the copyright of a person on whose behalf you are authorized to act has been infringed, you may provide our Copyright Agent with a written DMCA Notice of Alleged Infringement (“Notice”). You must do all the following in your written Notice for it to be valid:
Identify the copyrighted work that you claim has been infringed, or – if multiple copyrighted works are covered by this Notice – you may provide a representative list of the copyrighted works that you claim have been infringed.
Identify the material that you claim is infringing (or to be the subject of infringing activity) and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, including (if the Content is on our website) the URL of the link shown on the website where such material may be found.
Include your mailing address, telephone number, and, if available, email address.
Include both of the following statements in the body of the Notice (if these statements are untrue, you cannot submit the Notice): “I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use)” and “The information in this Notice is accurate and, under penalty of perjury, I affirm that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to our Copyright Agent by email to firstname.lastname@example.org and by mail to Bid My Listing Copyright Agent / 2549 Eastbluff Drive / Suite 320 / Newport Beach, CA 92660.
DISCLAIMER OF WARRANTIES
Your rights are limited to what we have expressly described in this Agreement. Sometimes users attempt to infer additional rights. To make clear that you may not infer additional rights, we make the following disclaimers:
YOU AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND ACKNOWLEDGE THAT ALL INFORMATION CONTAINED IN THE SERVICES IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND THAT WE DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. We make no representations or guarantees that the Services are compatible with your equipment or that the Services, or that any electronic communications sent by us or our affiliates, are error-free or will be free from loss, destruction, damage, interruption, corruption, attack, viruses, worms, or other harmful, invasive, or corrupted files, interference, hacking, or other security intrusion, and we disclaim any liability relating thereto. You agree that we have the right to change the content or technical specifications of any aspect of the Services at any time in our sole discretion. You further agree that such changes may result in your being unable to access the Services.
We make no guarantees, representations, or warranties that the Services or information available through the Services, or that the use of or result of the use of the Services, will be accurate, reliable, complete, current, uninterrupted, or without errors. Any documents, pictures, or other information available on the Services are for informational purposes only and may not represent the current condition of a property or the condition of the property at the time of sale. The posting of pictures on the Services does not constitute a guarantee that any items represented in the pictures will be present when a buyer takes possession of a property. You are encouraged to conduct your own due diligence and investigate all matters relating to any properties. It is recommended that you seek independent advice, including legal advice, to perform your due diligence and that you use good faith efforts in determining that the content of all information provided to or obtained by you is accurate.
You understand and acknowledge that the information provided through the Services is subject to change. You should check back frequently for updated information as to the properties and/or mortgage notes available, auction or other marketing events, times and locations, relevant terms, and other matters which may be made available by us or our clients.
Any use of available third-party content, services, and information shall be at your own risk and be used for internal valuation or management purposes usual and customary within the scope of your licensed or regular business activity. In no event shall the Company or any third-party provider of such content, services and/or information be liable to you or any third party for any losses, costs or damages arising from or relating to the misuse of, or any errors, omissions, or miscalculations of value contained in, the third-party content, services and information provided. Any of the Services such as valuation reports, AVMs, pricing, or property information shall not constitute an appraisal or broker price opinion of a subject property and shall be based on public records, market sources or other statistical calculations and is provided on an “as-is, as available” basis with all faults and defects. You are accessing any valuation reports, pricing or property information for your own individual property valuation or management. You shall not use any of the Services for reproduction, sale, distribution, publication, advertising or marketing, or any other commercial exploitation. You understand and acknowledge that you can evaluate the merits and risks of purchasing a property using the Services and are able to bear any such risks. You also acknowledge that you have consulted with, had the opportunity to consult with, or waive the right to consult with, legal and tax professionals relating to the legal and tax consequences of any documents used in connection with the Services.
LIMITATIONS ON LIABILITY
Our liability to you is limited to what we have expressly described in this Agreement. Sometimes users attempt to claim additional theories of liability. To make clear that you may not claim additional theories of liability, we make the following statement:
UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, SHALL WE, OUR SUBSIDIARIES, OR AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, ARISING FROM USE OF OR INABILITY TO USE THE SERVICES, INCLUDING THOSE CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OF TRANSMISSION, COMPUTER VIRUS, OR LINE FAILURE IN CONNECTION WITH YOUR USE OF THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY OR MAY NOT APPLY TO YOU. TO THE EXTENT PERMITTED BY LAW, OUR AGGREGATE LIABILITY IN CONNECTION WITH THE SERVICES FOR DAMAGES, WILL NOT BE GREATER THAN THE AMOUNT YOU PAID TO ACCESS THE SERVICES OR ONE HUNDRED DOLLARS ($100), WHICHEVER IS GREATER.
YOU AGREE TO INDEMNIFY US
In the event your use of the Services causes a third party to make a claim against us, you agree to defend us and hold us harmless for your actions.
Our use of your information is governed at all times by our Privacy Statement. Our Privacy Statement explains our practices relating to the collection and use of your information in connection with the Services and is incorporated into this Agreement. By using the Services, you consent to the collection and use of your information as set forth in the Privacy Statement.
TERMINATION OF USE OF SERVICES
You are free to stop using the Services anytime you want. Similarly, we are free to discontinue or change the Services, and we always have the right to control who may use the Services.
You can stop using the Services at any time and for any reason. Without prior notice, we may revoke your registration, suspend your ability to use certain parts of the Services, and/or terminate your access to the Services at any time at our discretion. We may also modify, suspend, or discontinue the Services.
If you breach or threaten to breach any provision of this Agreement, in addition to terminating your right to use the Services, we shall be entitled to seek injunctive relief to enforce the provisions hereof, but nothing herein shall preclude us from pursuing any action or other remedy for breach or threatened breach of this Agreement. If we prevail in such action, we shall be entitled to recover from you all reasonable costs, expenses, and attorneys’ fees we incur in doing so.
To protect the Services, we reserve the right at any time to block users from certain IP addresses from accessing and using the Services. We may also request that you stop accessing or permanently destroy certain content or information available through the Services.
YOU AGREE TO BINDING ARBITRATION AND WAIVE CLASS ACTION RIGHTS
To use the Services, you agree that any dispute with us will be decided by binding arbitration (not the courts), and that you may not bring, lead, or participate in a class action lawsuit against us. These are important rights, so make sure you understand the following:
By using the Services, you irrevocably agree: (a) to waive all rights to trial in a court before a judge or jury on any claim, action or dispute with us or relating in any way to your use of the Services or the interpretation, applicability, enforceability or formation of this Agreements of Use including, but not limited to, any claim that all or any part of this agreement is void or voidable (“Claims”); (b) that all Claims will be determined exclusively by final and binding arbitration in Orange County, California before one arbitrator; and (c) that the arbitrator will not have the authority to consolidate the Claims of other users of the Services (“Users”) and will not have the authority to fashion a proceeding as a class or collective action or to award relief to a group or class of Users in one arbitration proceeding.
The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Notwithstanding these rules, however, such proceeding shall be governed by the laws of the State of California, Orange County. All parties shall maintain the confidential nature of the arbitration proceeding and the award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.
The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any Claims. However, nothing in this section shall prevent us from enforcing our intellectual property rights and/or remedy unfair competition, misappropriation of trade secrets, unauthorized access, fraud or computer fraud, and/or industrial espionage in court.
Judgment on any arbitration award may be entered in any court having jurisdiction. In any arbitration arising out of or related to this Agreement, the arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator determines a party to be a prevailing party under circumstances where the prevailing party won on some but not all the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration.
OUR RIGHT TO POLICE OUR OWN SERVICES
To make sure that users comply with this Agreement and that we deliver the best experience to our users, we reserve the right to police our Services through auditing and monitoring.
You acknowledge, consent, and agree that we may access, preserve, and disclose information about your use of the Services, including your communications and content you submit, if required to do so by law or in a good faith believe that such access, preservation, or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce this Agreement; (iii) respond to claims that any content you submit violates the rights of third parties; (iv) respond to your requests for customer service; or (v) protect the rights, property or personal safety of us, our users and the public.
THINGS MAY HAPPEN OUTSIDE OUR CONTROL
While we do our best to comply with this Agreement and applicable law, and require our users to do the same, there is a concept in the law called “force majeure” which holds that no party shall be liable to the other party when circumstances occur that are beyond the parties’ reasonable control. Some examples (but not all) of force majeure events are wars, riots, and natural disasters. We expressly invoke our right to rely on force majeure should those events impact our relationship to our users or lead to claims against us.
YOU AGREE TO OUR NOTICES AND ELECTRONIC COMMUNICATIONS
We may provide you with notices, including those regarding changes to this Agreement by email, regular mail, telephone, or communications though the Services. When you use the Services, you consent to receive communications from us electronically and through each of the foregoing methods. By engaging in any telephone conversation with our agents or employees, you consent to our recording of such telephone calls.
You also consent to our use of an automatic telephone dialing system for telephone calls and texts (if you have opted-in to receive text message marketing). You may revoke this consent at any time through reasonable means.
You agree that all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You agree that you have the ability to store electronic communications such that they remain accessible to you in an unchanged form.
By providing your telephone number or texting JOIN to a number we give you, you are subscribing to receive communications from us by text message from us to the phone number you provide (and you confirm that you are the owner of that number). Your subscription authorizes us, to the extent permitted by applicable law, to send text messages with marketing messages, alerts and updates about properties you are interested in to the phone number you provide. The frequency of these text messages is recurring and on-going. Message and data rates may apply, which means you may incur charges from your carrier as a result of these messages. You are not required to subscribe or opt in (directly or indirectly) to receive text messages from us as a condition of purchasing any property, goods, or services from BML. At any time you may cancel your subscription and opt-out of receiving text messages from us by replying with the word “STOP” to a text message from us or calling us at (323) 515-0624.
COMPLIANCE WITH APPLICABLE LAWS
The Services are controlled within the United States of America and directed to individuals residing in the United States. We do not represent that the materials in the Services are appropriate or available for use in any particular location. Those who choose to access the Services do so on their own initiative and are responsible for compliance with all applicable laws. We reserve the right to limit the availability of the Services to any person, geographic area, or jurisdiction at any time at our sole discretion. You represent and warrant that: (a) you are not located in a country subject to trade sanctions or economic embargoes under the laws of the United States of America (“US Sanctioned Countries”); (b) none of you, your affiliates, members, directors or other equity owners (excluding holders of publicly traded shares), and none of their principal officers and employees are (i) listed on the list of Specially Designated Nationals and Blocked Persons published by the Office of Foreign Assets Control, U.S. Department of Treasury (“OFAC”) (available at http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx) (an “OFAC Listed Person”), (ii) an agent, department, or instrumentality of, or is otherwise beneficially owned by, controlled by or acting on behalf of, directly or indirectly, any OFAC Listed Person or US Sanctioned Country, or (iii) otherwise blocked, subject to sanctions under or engaged in any activity in violation of other U.S. economic sanctions; and (c) none of you, your affiliates, members, directors or other equity owners (excluding holders of publicly traded shares), and none of their principal officers and employees are in violation of (i) any applicable anti-money laundering laws, including those contained in the Bank Secrecy Act; (ii) any applicable economic sanctions laws administered by OFAC of the U.S. Department of State; or (iii) any applicable anti-drug trafficking, anti-terrorism, or anti-corruption laws, civil or criminal.