This Terms of Use Agreement (“Agreement”), constitutes a legally
binding agreement made between you, whether personally or on
behalf of an entity (“user” or “you”) and DeferAlly Inc. and its
affiliated companies, Websites, applications and tools
(collectively, DeferAlly Inc. , “Company” or “we” or “us” or
“our”), concerning your access to and use of the www.deferally.com
Website(s) as well as any other media form, media channel, mobile
website or mobile application related or connected thereto
(collectively, the “Sites”). The Sites provide the following
service: DeferAlly makes it easy for you to perform a 1031
exchange with ease. Most importantly you’re able to defer taxes as
an investor. Qualified Intermediaries are able to use our platform
to help their clients as well. (“Company Services”). Supplemental
terms and conditions or documents that may be posted on the Sites
from time to time, are hereby expressly incorporated into this
Agreement by reference.
Company makes no representation that the Sites is appropriate or
available in other locations other than where it is operated by
Company. The information provided on the Sites is not intended for
distribution to or use by any person or entity in any jurisdiction
or country where such distribution or use would be contrary to law
or regulation or which would subject Company to any registration
requirement within such jurisdiction or country. Accordingly,
those persons who choose to access the Sites from other locations
do so on their own initiative and are solely responsible for
compliance with local laws, if and to the extent local laws are
applicable.
All users who are minors in the jurisdiction in which they reside
(generally under the age of 18) are not permitted to register for
the Sites or use the Company Services.
YOU ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT BY
ACKNOWLEDGING SUCH ACCEPTANCE DURING THE REGISTRATION PROCESS (IF
APPLICABLE) AND ALSO BY CONTINUING TO USE THE SITES. IF YOU DO NOT
AGREE TO ABIDE BY THIS AGREEMENT, OR TO MODIFICATIONS THAT COMPANY
MAY MAKE TO THIS AGREEMENT IN THE FUTURE, DO NOT USE OR ACCESS OR
CONTINUE TO USE OR ACCESS THE COMPANY SERVICES OR THE SITES.
DeferAlly Inc. may offer free trial or sample of our products or services. The duration of the free trial period and all other details of the offer will be posted on our Sites If you wish to try our free options please read through them carefully first. DeferAlly Inc. will bill you through an online billing account for our Services. By using our paid options you agree to pay DeferAlly Inc. all charges at the prices then in effect for the products or services you or other persons using your billing account may purchase, and you authorize DeferAlly Inc. to charge your chosen payment provider for any such purchases. You agree to make payment using that selected payment method. If you have ordered a product or service that is subject to recurring charges then you agree to us charging your payment method on a recurring basis, without requiring your prior approval from you for each recurring charge until such time as you cancel the applicable product or service. DeferAlly Inc. reserves the right to correct any errors or mistakes in pricing that it makes even if it has already requested or received payment. Sales tax will be added to the sales price of purchases as deemed required by Company. Company may change prices at any time. All payments shall be in U.S. dollars.
All sales are final and no refunds shall be issued.
Regarding Your Registration
By using the DeferAlly Inc. Services, you represent and warrant
that:
A. all registration information you submit is truthful and
accurate;
B. you will maintain the accuracy of such information;
C. you will keep your password confidential and will be
responsible for all use of your password and account;
D. you are not a minor in the jurisdiction in which you reside, or
if a minor, you have received parental permission to use our
Sites; and
E. your use of the Company Services does not violate any
applicable law or regulation.
You also agree to: (a) provide true, accurate, current and
complete information about yourself as prompted by the Sites’
registration form and (b) maintain and promptly update
registration data to keep it true, accurate, current and complete.
If you provide any information that is untrue, inaccurate, not
current or incomplete, or Company has reasonable grounds to
suspect that such information is untrue, inaccurate, not current
or incomplete, Company has the right to suspend or terminate your
account and refuse any and all current or future use of the Sites
(or any portion thereof).
We reserve the right to remove or reclaim or change a user name
you select if we determine appropriate in our discretion, such as
when the user name is obscene or otherwise objectionable or when a
trademark owner complains about a username that does not closely
relate to a user’s actual name.
We may invite you to chat or participate in blogs, message boards,
online forums and other functionality and may provide you with the
opportunity to create, submit, post, display, transmit, perform,
publish, distribute or broadcast content and materials to our
Sites and/or to or via the Sites’ forms, emails, chat agents,
popups, including, without limitation, text, writings, video,
audio, photographs, graphics, comments, suggestions or personally
identifiable information or other material (collectively
“Contributions”). Any Contributions you transmit to DeferAlly Inc.
will be treated as non-confidential and non-proprietary. When you
create or make available a Contribution, you thereby represent and
warrant that:
A. the creation, distribution, transmission, public display and
performance, accessing, downloading and copying of your
Contribution does not and will not infringe the proprietary
rights, including but not limited to the copyright, patent,
trademark, trade secret or moral rights of any third party;
B. you are the creator and owner of or have the necessary
licenses, rights, consents, releases and permissions to use and to
authorize DeferAlly Inc. and the Sites’ users to use your
Contributions as necessary to exercise the licenses granted by you
under this Agreement;
C. you have the written consent, release, and/or permission of
each and every identifiable individual person in the Contribution
to use the name or likeness of each and every such identifiable
individual person to enable inclusion and use of the Contribution
in the manner contemplated by our Sites;
D. your Contribution is not obscene, lewd, lascivious, filthy,
violent, harassing or otherwise objectionable (as determined by
DeferAlly Inc. ), libelous or slanderous, does not ridicule, mock,
disparage, intimidate or abuse anyone, does not advocate the
violent overthrow of any government, does not incite, encourage or
threaten physical harm against another, does not violate any
applicable law, regulation, or rule, and does not violate the
privacy or publicity rights of any third party;
E. your Contribution does not contain material that solicits
personal information from anyone under 18 or exploit people under
the age of 18 in a sexual or violent manner, and does not violate
any federal or state law concerning child pornography or otherwise
intended to protect the health or well-being of minors;
F. your Contribution does not include any offensive comments that
are connected to race, national origin, gender, sexual preference
or physical handicap;
G. your Contribution does not otherwise violate, or link to
material that violates, any provision of this Agreement or any
applicable law or regulation.
DeferAlly Inc. may accept, reject or remove reviews in its sole discretion. DeferAlly Inc. has absolutely no obligation to screen reviews or to delete reviews, even if anyone considers reviews objectionable or inaccurate. Those persons posting reviews should comply with the following criteria: (1) reviewers should have firsthand experience with the person/entity being reviewed; (2) reviews should not contain: offensive language, profanity, or abusive, racist, or hate language; discriminatory references based on religion, race, gender, national origin, age, marital status, sexual orientation or disability; or references to illegal activity; (3) reviewers should not be affiliated with competitors if posting negative reviews; (4) reviewers should not make any conclusions as to the legality of conduct; and (5) reviewers may not post any false statements or organize a campaign encouraging others to post reviews, whether positive or negative. Reviews are not endorsed by DeferAlly Inc. , and do not represent the views of DeferAlly Inc. or of any affiliate or partner of Company. DeferAlly Inc. does not assume liability for any review or for any claims, liabilities or losses resulting from any review. By posting a review, the reviewer hereby grants to DeferAlly Inc. a perpetual, non-exclusive, worldwide, royalty-free, fully-paid, assignable and sublicensable license to DeferAlly Inc. to reproduce, modify, translate, transmit by any means, display, perform and/or distribute all content relating to reviews.
By posting Contributions to any part of the Sites, or making them
accessible to the Sites by linking your account to any of your
social network accounts, you automatically grant, and you
represent and warrant that you have the right to grant, to
DeferAlly Inc. an unrestricted, unconditional, unlimited,
irrevocable, perpetual, non-exclusive, transferable, royalty-free,
fully-paid, worldwide right and license to host, use, copy,
reproduce, disclose, sell, resell, publish, broadcast, retitle,
archive, store, cache, publicly perform, publicly display,
reformat, translate, transmit, excerpt (in whole or in part) and
distribute such Contributions (including, without limitation, your
image and voice) for any purpose, commercial, advertising, or
otherwise, to prepare derivative works of, or incorporate into
other works, such Contributions, and to grant and authorize
sublicenses of the foregoing. The use and distribution may occur
in any media formats and through any media channels. Such use and
distribution license will apply to any form, media, or technology
now known or hereafter developed, and includes our use of your
name, company name, and franchise name, as applicable, and any of
the trademarks, service marks, trade names and logos, personal and
commercial images you provide. Company does not assert any
ownership over your Contributions; rather, as between us and you,
subject to the rights granted to us in this Agreement, you retain
full ownership of all of your Contributions and any intellectual
property rights or other proprietary rights associated with your
Contributions. We will not use your contribution in a way that
infringes on your rights and always process your personal
information lawfully and with your consent.
Company has the right, in our sole and absolute discretion, to (i)
edit, redact or otherwise change any Contributions, (ii)
re-categorize any Contributions to place them in more appropriate
locations or (iii) pre-screen or delete any Contributions that are
determined to be inappropriate or otherwise in violation of this
Agreement.
By uploading your Contributions to the Sites, you hereby authorize
Company to grant to each end user a personal, limited,
no-transferable, perpetual, non-exclusive, royalty-free,
fully-paid license to access, download, print and otherwise use
your Contributions for their internal purposes and not for
distribution, transfer, sale or commercial exploitation of any
kind.
If you are accessing the DeferAlly Inc. Services via a mobile application, then DeferAlly Inc. grants you a revocable, non-exclusive, non-transferable, limited right to install and use the application on wireless handsets owned and controlled by you, and to access and use the application on such devices strictly in accordance with the terms and conditions of this license. You shall use the application strictly in accordance with the terms of this license and shall not: (a) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the application; (b) make any modification, adaptation, improvement, enhancement, translation or derivative work from the application; (c) violate any applicable laws, rules or regulations in connection with your access or use of the application; (d) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of Company or its affiliates, partners, suppliers or the licensors of the application; (e) use the application for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended; (f) make the application available over a network or other environment permitting access or use by multiple devices or users at the same time; (g) use the application for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for the application; (h) use the application to send automated queries to any Sites or to send any unsolicited commercial e-mail; or (i) use any proprietary information or interfaces of DeferAlly Inc. or other intellectual property of DeferAlly Inc. in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the application.
The following terms apply when you use a mobile application obtained from either the Apple Store or Google Play to access the DeferAlly Inc. Services. You acknowledge that this Agreement is concluded between you and DeferAlly Inc. only, and not with Apple Inc. or Google, Inc. (each an “App Distributor”), and DeferAlly Inc. , not an App Distributor, is solely responsible for the DeferAlly Inc. application and the content thereof. (1) SCOPE OF LICENSE: The license granted to you for the DeferAlly Inc. application is limited to a non-transferable license to use the DeferAlly Inc. application on a device that utilizes the Apple iOS or Android operating system, as applicable, and in accordance with the usage rules set forth in the applicable App Distributor terms of service. (2) MAINTENANCE AND SUPPORT: DeferAlly Inc. is solely responsible for providing any maintenance and support services with respect to the DeferAlly Inc. application, as specified in this Agreement, or as required under applicable law. You acknowledge that each App Distributor has no obligation whatsoever to furnish any maintenance and support services with respect to the DeferAlly Inc. application. (3) WARRANTY: DeferAlly Inc. is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the DeferAlly Inc. application to conform to any applicable warranty, you may notify an App Distributor, and the App Distributor, in accordance with its terms and policies, may refund the purchase price, if any, paid for the DeferAlly Inc. application, and to the maximum extent permitted by applicable law, an App Distributor will have no other warranty obligation whatsoever with respect to the DeferAlly Inc. application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be DeferAlly Inc. sole responsibility. (4) PRODUCT CLAIMS: You acknowledge that DeferAlly Inc. , not an App Distributor, is responsible for addressing any claims of yours or any third party relating to the DeferAlly Inc. application or your possession and/or use of the DeferAlly Inc. application, including, but not limited to: (i) product liability claims; (ii) any claim that the DeferAlly Inc. application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. (5) INTELLECTUAL PROPERTY RIGHTS: You acknowledge that, in the event of any third party claim that the DeferAlly Inc. application or your possession and use of the DeferAlly Inc. application infringes a third party’s intellectual property rights, the App Distributor will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. (6) LEGAL COMPLIANCE: You represent and warrant that (i) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. government list of prohibited or restricted parties. (7) THIRD PARTY TERMS OF AGREEMENT: You must comply with applicable third party terms of agreement when using the DeferAlly Inc. application, e.g., if you have a VoIP application, then you must not be in violation of their wireless data service agreement when using the DeferAlly Inc. application. (8) THIRD PARTY BENEFICIARY: DeferAlly Inc. and you acknowledge and agree that the App Distributors, and their subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, each App Distributor will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
As part of the functionality of the Sites, you may link your account with online accounts you may have with third party service providers (each such account, a “Third Party Account”) by either: (i) providing your Third Party Account login information through the Sites; or (ii) allowing DeferAlly Inc. to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to DeferAlly Inc. and/or grant DeferAlly Inc. access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating DeferAlly Inc. to pay any fees or making DeferAlly Inc. subject to any usage limitations imposed by such third party service providers. By granting DeferAlly Inc. access to any Third Party Accounts, you understand that (i) DeferAlly Inc. may access, make available and store (if applicable) any content that you have provided to and stored in your Third Party Account (the “Social Network Content”) so that it is available on and through the Sites via your account, including without limitation any friend lists, and (ii) DeferAlly Inc. may submit and receive additional information to your Third Party Account to the extent you are notified when you link your account with the Third Party Account. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts may be available on and through your account on the Sites. Please note that if a Third Party Account or associated service becomes unavailable or DeferAlly Inc. access to such Third Party Account is terminated by the third party service provider, then Social Network Content may no longer be available on and through the Sites. You will have the ability to disable the connection between your account on the Sites and your Third Party Accounts at any time. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. DeferAlly Inc. makes no effort to review any Social Network Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and DeferAlly Inc. is not responsible for any Social Network Content. You acknowledge and agree that DeferAlly Inc. may access your e-mail address book associated with a Third Party Account and your contacts list stored on your mobile device or tablet computer solely for the purposes of identifying and informing you of those contacts who have also registered to use the Sites. At your request made via email to our email address listed below, or through your account settings (if applicable), DeferAlly Inc. will deactivate the connection between the Sites and your Third Party Account and delete any information stored on DeferAlly Inc. servers that was obtained through such Third Party Account, except the username and profile picture that become associated with your account.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Sites or the DeferAlly Inc. Services (“Submissions”) provided by you to DeferAlly Inc. are non-confidential and DeferAlly Inc. (as well as any designee of Company) shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You may not access or use the Sites for any other purpose other than that for which DeferAlly Inc. makes it available. The Sites may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by DeferAlly Inc.
The content on the Sites (“DeferAlly Inc. Content”) and the
trademarks, service marks and logos contained therein (“Marks”)
are owned by or licensed to DeferAlly Inc. , and are subject to
copyright and other intellectual property rights under United
States and foreign laws and international conventions. DeferAlly
Inc. Content, includes, without limitation, all source code,
databases, functionality, software, Sites’ designs, audio, video,
text, photographs and graphics. All DeferAlly Inc. graphics,
logos, designs, page headers, button icons, scripts and service
names are registered trademarks, common law trademarks or trade
dress of DeferAlly Inc. in the United States and/or other
countries. DeferAlly Inc. trademarks and trade dress may not be
used, including as part of trademarks and/or as part of domain
names, in connection with any product or service in any manner
that is likely to cause confusion and may not be copied, imitated,
or used, in whole or in part, without the prior written permission
of the DeferAlly Inc.
DeferAlly Inc. Content on the Sites is provided to you “AS IS” for
your information and personal use only and may not be used,
copied, reproduced, aggregated, distributed, transmitted,
broadcast, displayed, sold, licensed, or otherwise exploited for
any other purposes whatsoever without the prior written consent of
the respective owners. Provided that you are eligible to use the
Sites, you are granted a limited license to access and use the
Sites and the DeferAlly Inc. Content and to download or print a
copy of any portion of the DeferAlly Inc. Content to which you
have properly gained access solely for your personal,
non-commercial use. DeferAlly Inc. reserves all rights not
expressly granted to you in and to the Sites and DeferAlly Inc.
Content and Marks.
The Sites contains (or you may be sent through the Sites or the DeferAlly Inc. Services) links to other websites (“Third Party Websites”) as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software and other content or items belonging to or originating from third parties (the “Third Party Content”). Such Third Party Websites and Third Party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third Party accessed through the Sites or any Third Party Content posted on, available through or installed from the Sites, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Websites or the Third Party Content. Inclusion of, linking to or permitting the use or installation of any Third Party Websites or any Third Party Content does not imply approval or endorsement thereof by us. If you decide to leave the Sites and access the Third Party Websites or to use or install any Third Party Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any websites to which you navigate from the Sites or relating to any applications you use or install from the Sites. Any purchases you make through Third Party Websites will be through other websites and from other companies, and DeferAlly Inc. takes no responsibility whatsoever in relation to such purchases which are exclusively between you and the applicable third party.
DeferAlly Inc. reserves the right but does not have the obligation
to:
A. monitor the Sites for violations of this Agreement;
B. take appropriate legal action against anyone who, in DeferAlly
Inc. sole discretion, violates this Agreement, including without
limitation, reporting such user to law enforcement authorities;
C. in DeferAlly Inc. sole discretion and without limitation,
refuse, restrict access to or availability of, or disable (to the
extent technologically feasible) any user’s contribution or any
portion thereof that may violate this Agreement or any DeferAlly
Inc. policy;
D. in Company’s sole discretion and without limitation, notice or
liability to remove from the Sites or otherwise disable all files
and content that are excessive in size or are in any way
burdensome to DeferAlly Inc. ‘s systems;
E. otherwise manage the Sites in a manner designed to protect the
rights and property of DeferAlly Inc. and others and to facilitate
the proper functioning of the Sites.
This Agreement shall remain in full force and effect while you use
the Sites or are otherwise a user or member of the Sites, as
applicable. You may terminate your use or participation at any
time, for any reason, by following the instructions for
terminating user accounts in your account settings, if available,
or by contacting us using the contact information below.
WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, COMPANY
RESERVES THE RIGHT TO, IN COMPANY’S SOLE DISCRETION AND WITHOUT
NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SITES AND THE
COMPANY SERVICES, TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT
ALL, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY
REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THIS AGREEMENT,
OR OF ANY APPLICABLE LAW OR REGULATION, AND COMPANY MAY TERMINATE
YOUR USE OR PARTICIPATION IN THE SITES AND THE COMPANY SERVICES,
DELETE YOUR PROFILE AND ANY CONTENT OR INFORMATION THAT YOU HAVE
POSTED AT ANY TIME, WITHOUT WARNING, IN COMPANY’S SOLE
DISCRETION.
In order to protect the integrity of the Sites and Company
Services, Company reserves the right at any time in its sole
discretion to block certain IP addresses from accessing the Sites
and Company Services.
Any provisions of this Agreement that, in order to fulfill the
purposes of such provisions, need to survive the termination or
expiration of this Agreement, shall be deemed to survive for as
long as necessary to fulfill such purposes.
YOU UNDERSTAND THAT CERTAIN STATES ALLOW YOU TO CANCEL THIS
AGREEMENT, WITHOUT ANY PENALTY OR OBLIGATION, AT ANY TIME PRIOR TO
MIDNIGHT OF COMPANY’S THIRD BUSINESS DAY FOLLOWING THE DATE OF
THIS AGREEMENT, EXCLUDING SUNDAYS AND HOLIDAYS. TO CANCEL, CALL A
COMPANY CUSTOMER CARE REPRESENTATIVE DURING NORMAL BUSINESS HOURS
USING THE CONTACT INFORMATION LISTING BELOW IN THIS AGREEMENT OR
BY ACCESSING YOUR ACCOUNT SETTINGS. THIS SECTION APPLIES ONLY TO
INDIVIDUALS RESIDING IN STATES WITH SUCH LAWS.
If Company terminates or suspends your account for any reason, you
are prohibited from registering and creating a new account under
your name, a fake or borrowed name, or the name of any third
party, even if you may be acting on behalf of the third party. In
addition to terminating or suspending your account, Company
reserves the right to take appropriate legal action, including
without limitation pursuing civil, criminal, and injunctive
redress.
Company may modify this Agreement from time to time. Any and all changes to this Agreement will be posted on the Sites and revisions will be indicated by date. You agree to be bound to any changes to this Agreement when you use the Company Services after any such modification becomes effective. Company may also, in its discretion, choose to alert all users with whom it maintains email information of such modifications by means of an email to their most recently provided email address. It is therefore important that you regularly review this Agreement and keep your contact information current in your account settings to ensure you are informed of changes. You agree that you will periodically check the Sites for updates to this Agreement and you will read the messages we send you to inform you of any changes. Modifications to this Agreement shall be effective after posting.
Company reserves the right at any time to modify or discontinue, temporarily or permanently, the Company Services (or any part thereof) with or without notice. You agree that Company shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Company Services.
If there is a dispute between users of the Sites, or between users and any third party, you understand and agree that Company is under no obligation to become involved. In the event that you have a dispute with one or more other users, you hereby release Company, its officers, employees, agents and successors in rights from claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and/or the Company Services.
A. Governing Law; Jurisdiction. This Agreement and all aspects of
the Sites and Company Services shall be governed by and construed
in accordance with the internal laws of the State of Georgia,
without regard to conflict of law provisions. With respect to any
disputes or claims not subject to informal dispute resolution or
arbitration (as set forth below), you agree not to commence or
prosecute any action in connection therewith other than in the
state and federal courts located in Fulton County, State of
Georgia, and you hereby consent to, and waive all defenses of lack
of personal jurisdiction and forum non conveniens with respect to,
venue and jurisdiction in such state and federal courts.
Application of the United Nations Convention on Contracts for the
International Sale of Goods is excluded from this Agreement.
Additionally, application of the Uniform Computer Information
Transaction Act (UCITA) is excluded from this Agreement. In no
event shall any claim, action or proceeding by you related in any
way to the Sites or Company Services be instituted more than two
(2) years after the cause of action arose.
B. Informal Resolution. To expedite resolution and control the
cost of any dispute, controversy or claim related to this
Agreement (“Dispute”), you and Company agree to first attempt to
negotiate any Dispute (except those Disputes expressly provided
below) informally for at least __________ days before initiating
any arbitration or court proceeding. Such informal negotiations
commence upon written notice from one person to the other.
C. Binding Arbitration. If you and Company are unable to resolve a
Dispute through informal negotiations, either you or Company may
elect to have the Dispute (except those Disputes expressly
excluded below) finally and exclusively resolved by binding
arbitration. Any election to arbitrate by one party shall be final
and binding on the other. YOU UNDERSTAND THAT ABSENT THIS
PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A
JURY TRIAL. The arbitration shall be commenced and conducted under
the Commercial Arbitration Rules of the American Arbitration
Association (“AAA”) and, where appropriate, the AAA’s
Supplementary Procedures for Consumer Related Disputes (“AAA
Consumer Rules”), both of which are available at the AAA website
www.adr.org. The determination of whether a Dispute is subject to
arbitration shall be governed by the Federal Arbitration Act and
determined by a court rather than an arbitrator. Your arbitration
fees and your share of arbitrator compensation shall be governed
by the AAA Consumer Rules and, where appropriate, limited by the
AAA Consumer Rules. If such costs are determined by the arbitrator
to be excessive, Company will pay all arbitration fees and
expenses. The arbitration may be conducted in person, through the
submission of documents, by phone or online. The arbitrator will
make a decision in writing, but need not provide a statement of
reasons unless requested by a party. The arbitrator must follow
applicable law, and any award may be challenged if the arbitrator
fails to do so. Except where otherwise required by the applicable
AAA rules or applicable law, the arbitration will take place in
__________ County, State of __________. Except as otherwise
provided in this Agreement, you and Company may litigate in court
to compel arbitration, stay proceedings pending arbitration, or to
confirm, modify, vacate or enter judgment on the award entered by
the arbitrator.
D. Restrictions. You and Company agree that any arbitration shall
be limited to the Dispute between Company and you individually. To
the full extent permitted by law, (1) no arbitration shall be
joined with any other; (2) there is no right or authority for any
Dispute to be arbitrated on a class-action basis or to utilize
class action procedures; and (3) there is no right or authority
for any Dispute to be brought in a purported representative
capacity on behalf of the general public or any other persons.
E. Exceptions to Informal Negotiations and Arbitration. You and
Company agree that the following Disputes are not subject to the
above provisions concerning informal negotiations and binding
arbitration: (1) any Disputes seeking to enforce or protect, or
concerning the validity of any of your or Company’s intellectual
property rights; (2) any Dispute related to, or arising from,
allegations of theft, piracy, invasion of privacy or unauthorized
use; and (3) any claim for injunctive relief. If this Section is
found to be illegal or unenforceable then neither you nor Company
will elect to arbitrate any Dispute falling within that portion of
this Section found to be illegal or unenforceable and such Dispute
shall be decided by a court of competent jurisdiction within the
courts listed for jurisdiction above, and you and Company agree to
submit to the personal jurisdiction of that court.
Occasionally there may be information on the Sites that contains typographical errors, inaccuracies or omissions that may relate to service descriptions, pricing, availability, and various other information. Company reserves the right to correct any errors, inaccuracies or omissions and to change or update the information at any time, without prior notice.
Company cannot control the nature of all of the content available
on the Sites. By operating the Sites, Company does not represent
or imply that Company endorses any blogs, contributions or other
content available on or linked to by the Sites, including without
limitation content hosted on third party websites or provided by
third party applications, or that Company believes contributions,
blogs or other content to be accurate, useful or non-harmful. We
do not control and are not responsible for unlawful or otherwise
objectionable content you may encounter on the Sites or in
connection with any contributions. The Company is not responsible
for the conduct, whether online or offline, of any user of the
Sites or Company Services.
YOU AGREE THAT YOUR USE OF THE SITES AND COMPANY SERVICES WILL BE
AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW,
COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM
ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SITES
AND THE COMPANY SERVICES AND YOUR USE THEREOF, INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO
WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS
OF THE SITES CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO OUR
SITES AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A)
ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (B)
PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER,
RESULTING FROM YOUR ACCESS TO AND USE OF OUR SITES, (C) ANY
UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND
ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED
THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR
FROM THE SITES OR COMPANY SERVICES, (E) ANY BUGS, VIRUSES, TROJAN
HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR
SITES BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN
ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND
INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED,
TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITES. COMPANY
DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR
ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY
THROUGH THE SITES OR ANY HYPERLINKED SITES OR FEATURED IN ANY
BANNER OR OTHER ADVERTISING, AND COMPANY WILL NOT BE A PARTY TO OR
IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN
YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE
PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY
ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE
CAUTION WHERE APPROPRIATE.
IN NO EVENT SHALL COMPANY OR ITS DIRECTORS, EMPLOYEES, OR AGENTS
BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT,
CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES,
INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA OR OTHER DAMAGES
ARISING FROM YOUR USE OF THE SITES OR COMPANY SERVICES, EVEN IF
COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN,
COMPANY’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS
OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE
AMOUNT PAID, IF ANY, BY YOU TO COMPANY FOR THE COMPANY SERVICES
DURING THE PERIOD OF __________ PRIOR TO ANY CAUSE OF ACTION
ARISING.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES
OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS
APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS
MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE
SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
You agree to defend, indemnify and hold Company, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from and against, any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of your contributed content, use of the Company Services, and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth above. Notwithstanding the foregoing, Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Company, and you agree to cooperate, at your expense, with Company’s defense of such claims. Company will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
Except as explicitly stated otherwise, any notices given to Company shall be given by email to the address listed in the contact information below. Any notices given to you shall be given to the email address you provided during the registration process, or such other address as each party may specify. Notice shall be deemed to be given twenty-four (24) hours after the email is sent, unless the sending party is notified that the email address is invalid. We may also choose to send notices by regular mail.
Our Sites will maintain certain data that you transfer to the Sites for the purpose of the performance of the Company Services, as well as data relating to your use of the Company Services. Although we perform regular routine backups of data, you are primarily responsible for all data that you have transferred or that relates to any activity you have undertaken using the Company Services. You agree that Company shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against Company arising from any such loss or corruption of such data.
Your use of the Company Services includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO RELATING TO THE COMPANY SERVICES, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.
Users are allowed on DeferAlly to transmit and receive valid electronic signatures in the United States under the Electronic Signatures in Global and National Commerce Act (E-Sign Act) of 2000 and the Uniform Electronic Transactions Act (UETA) of 1999 as adopted by individual states. Users’ signatures and identities are not authenticated on DeferAlly.
This Agreement constitutes the entire agreement between you and Company regarding the use of the Company Services. The failure of Company to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement operates to the fullest extent permissible by law. This Agreement and your account may not be assigned by you without our express written consent. Company may assign any or all of its rights and obligations to others at any time. Company shall not be responsible or liable for any loss, damage, delay or failure to act caused by any cause beyond Company’s reasonable control. If any provision or part of a provision of this Agreement is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions. There is no joint venture, partnership, employment or agency relationship created between you and Company as a result of this Agreement or use of the Sites and Company Services. Upon Company’s request, you will furnish Company any documentation, substantiation or releases necessary to verify your compliance with this Agreement. You agree that this Agreement will not be construed against Company by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of this Agreement and the lack of signing by the parties hereto to execute this Agreement.
In order to resolve a complaint regarding the Company Services or
to receive further information regarding use of the Company
Services, please contact Company as set forth below or, if any
complaint with us is not satisfactorily resolved, and you are a
California resident, you can contact the Complaint Assistance Unit
of the Division of Consumer Services of the Department of Consumer
Affairs in writing at 400 “R” Street, Sacramento, California 95814
or by telephone at 1-916-445-1254.
DeferAlly Inc.
3423 Piedmont Rd NE
Atlanta, GA 30305
Email: info@deferally.com
Phone: __________