Terms and Conditions
Last Modified: February 12, 2020
Please read this agreement carefully to ensure that you understand each provision. These Terms contain a mandatory individual arbitration and class action/jury trial waiver provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions.
The biproxi Platform is a global online commercial real estate marketplace for Brokers and Buyers and Tenants that aggregates property listings listed for sale and for lease and connects interested Buyers and Tenants with Brokers. Brokers may use the biproxi Platform to add a listing detailing information about a property that is for sale or for lease (a “Listing”). Biproxi may, but is not obligated to, review any Listing uploaded to the Platform.
BIPROXI DOES NOT, AND THE SERVICE IS NOT INTENDED TO, PROVIDE FINANCIAL OR REAL ESTATE ADVICE. BIPROXI IS NOT A FINANCIAL OR REAL ESTATE BROKER OR LENDER. FOR ADDITIONAL INFORMATION, PLEASE SEE SECTION 11 (NO WARRANTY). IF YOU ARE A BUYER OR TENANT USER IT IS YOUR RESPONSIBILITY TO CONFIRM THE LICENSED STATUS OF ANY BROKER LISTED ON THE PLATFORM.
The biproxi Platform is a global online commercial real estate marketplace for Brokers and Buyers and Tenants that aggregates property listings listed for sale and for lease and connects interested Buyers and Tenants with Brokers. Brokers may use the biproxi Platform to add a listing detailing information about a property that is for sale or for lease (a “Listing”). Biproxi may, but is not obligated to, review any Listing uploaded to the Platform.
You may use the Service only if you can form a binding contract with biproxi, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 13 is strictly prohibited and in violation of these Terms. The Service is not available to any Users previously removed from the Service by biproxi.
Your biproxi account gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of accounts for different types of Users. If you open a biproxi account on behalf of a biproxi, organization, or other entity, then (i) “you” includes you and that entity, and (ii) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to these Terms, and that you agree to these Terms on the entity’s behalf.
If you are a User who identifies or purports to be a Broker you hereby represent and warrant that (i) you are validly licensed as a Broker and (ii) you are in compliance with applicable Broker requirements in all jurisdictions in which you are required to be licensed and/or where you have a Listing. Biproxi may, in its sole discretion, but without any obligation verify a Broker’s licensure, remove from the list of Brokers any User who biproxi believes is not a licensed Broker in any applicable jurisdiction. Biproxi may, in its sole discretion, terminate the accounts of, and refuse services to, any User who repeatedly or knowingly misrepresents its licensed Broker status or upon notification by any state agency or similar governmental authority that such User is not a licensed Broker.
You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information, and you must keep this information up to date. When you create an account and provide us with your information, we may verify your identity using a third party provider and you hereby agree to and provide your consent for such verification. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify biproxi immediately of any breach of security or unauthorized use of your account. Biproxi will not be liable for any losses caused by any unauthorized use of your account.
You may control your User profile and how you interact with the Service by changing the settings in your settings page. By providing biproxi your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences in your settings page. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the biproxi servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that biproxi grants the operators of public search engines revocable permission to use spiders to copy publically available materials from the biproxi Platform for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (ix) interfering with the proper working of the Service; (x) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xi) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
Accessing any audiovisual content that may be available on the Service for any purpose or in any manner other than Streaming (as defined below) is expressly prohibited unless explicitly permitted by the functionality of the Service.“Streaming” means a contemporaneous digital transmission of an audiovisual work via the Internet from the biproxi Service to a User’s device in such a manner that the data is intended for real-time viewing and not intended to be copied, stored, permanently downloaded, or redistributed by the User.
We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of these Terms, or for no reason. Upon termination for any reason or no reason, you continue to be bound by these Terms.
You are solely responsible for your interactions with other biproxi Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Biproxi shall have no liability for your interactions with other Users, or for any User’s action or inaction.
We do not claim ownership of user-generated content and material. Any and all photographs (except for Verified Images (defined below)), articles, images, graphics, videos, sounds, music, audio recordings, text, files, profiles, communications, comments, feedback, suggestions, ideas, concepts, questions, data or other content, including all Listings and Broker Confidential Information that you (i) submit or post on or through the Service, on any of our blogs, social media accounts or through tools or applications we provide for posting or sharing such content with us; or (ii) have posted or uploaded to your social media accounts, including but not limited to Instagram, Twitter, Facebook, Tumblr and Pinterest, which are tagged with any biproxi promoted hashtag (collectively “User Content”) shall be deemed nonconfidential and nonproprietary, except for Broker Confidential Information (defined below). Except with regards to any Broker Confidential Information in which case the license is set forth in Section 7 (Confidentiality), by submitting or posting any User Content, you grant to biproxi and its affiliates a perpetual, irrevocable, royalty-free, worldwide, sublicensable and transferable license to copy, publish, translate, modify, reformat, create derivative works from, distribute, reproduce, sell, display, transmit, publish, broadcast, host, archive, store, cache, use or otherwise exploit all or any portion of the User Content, as well as your name, persona and likeness included in any User Content and your social media account handle, username, real name, profile picture and/or any other information associated with the User Content, in any commercial or noncommercial manner whatsoever, in whole or in part, in any and all distribution channels, forms, media or technology, whether now known or hereafter developed, including but not limited to in stores, printed marketing materials, emails, web pages, social media accounts and for any other marketing, advertising, public relations, sales or promotional purposes with or without attribution and without further notice to you. Neither you, nor any other person or entity, will have the right to (i) receive any royalty or consideration of any kind for the use of the User Content pursuant to these Terms or (ii) inspect or approve the editorial copy or other material that may be used in connection with the User Content. Biproxi will be free to use any ideas, concepts, know-how or techniques contained in such User Content for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products that incorporate or otherwise rely upon such information. Biproxi shall have no obligation to monitor User Content, use or display User Content, compensate you for submitting User Content or respond to any User Content. Biproxi retains the right, in its sole discretion and without prior notice, to remove, revise or refuse to post any User Content for any reason or no reason. Subject to the licenses granted in these Terms, you retain ownership of any copyright and other rights you may have in the User Content.
By submitting or posting User Content on the Service, on your social media accounts or through any tools or applications we provide for posting or sharing your User Content with us, you represent and warrant that (i) you own or control any and all rights in and to the User Content, and the right to grant all of the rights and licenses in these Terms, and if you are not the holder of such rights, the holder of such rights has completely and effectively waived all such rights and irrevocably granted you the right to grant the licenses stated above without the need for payment to you or any other person or entity; (ii) you have obtained permission from any individuals that appear in the User Content to use, and grant others the right to use, their name, image, voice and/or likeness without the need for payment to you or any other person or entity; (iii) you are 18 years of age or older; and (iv) the User Content does not (a) contain false or misleading information, (b) infringe on the intellectual property, privacy, publicity, statutory, contractual or other rights of any third party, (c) contain any libelous, defamatory, obscene, offensive, threatening or otherwise harassing or hateful content, (d) contain any email addresses, phone numbers or any contact information, provided, however that a Listing may contain such contact information, or (e) contain computer viruses, worms or other harmful files. Upon request by biproxi, you will furnish biproxi any documentation, substantiation or releases necessary to verify your compliance with these Terms. You are solely responsible for the User Content and you hereby agree to indemnify and hold biproxi and its employees, agents, affiliates, assigns and licensees harmless from any and all damages, claims, expenses, costs or fees arising from or in connection with a breach of any of the foregoing representations or your violation of any law or rights of a third party.
1. Biproxi does not guarantee the truthfulness, accuracy or reliability of any User Content or endorse any opinions expressed by you or anyone else. By submitting or posting the User Content you fully and unconditionally release and forever discharge biproxi and its officers, directors, employees and agents from any and all claims, demands and damages (actual or consequential, direct or indirect), whether now known or unknown, of every kind and nature relating to, arising out of or in any way connected with: (i) disputes between you and one or more users or any other person or entity, or (ii) the use by biproxi or you of the User Content, including, without limitation, any and all claims that use of the User Content pursuant to these Terms violates any of your Intellectual Property Rights (defined below), copyrights, rights of publicity or privacy, “moral rights,” or rights of attribution and integrity. You acknowledge and agree that biproxi has no control over, and shall have no liability for any damages resulting from, the use (including, without limitation, re-publication) or misuse by you or any third party of any User Content. Biproxi acts as a passive conduit for User Content and has no obligation to screen or monitor User Content. If biproxi becomes aware of any User Content that allegedly may not conform to these Terms, biproxi may investigate the allegation and determine in its sole discretion whether to take action in accordance with these Terms. Biproxi has no liability or responsibility to Users for performance or nonperformance of such activities.
Biproxi has the absolute right to remove and/or delete without notice any User Content within its control that it deems objectionable. You consent to such removal and/or deletion and waive any claim against biproxi for such removal and/or deletion. Biproxi is not responsible or liable for failure to store posted content or other materials you transmit through the Service. You should take measures to preserve copies of any data, material, content or information you post on the Service or any other sites or platforms.
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “biproxi Content”), and all Intellectual Property Rights related thereto, are the exclusive property of biproxi and its licensors (including other Users who post User Content to the Service). Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any biproxi Content. Use of the biproxi Content for any purpose not expressly permitted by these Terms is strictly prohibited.
For the purposes of these Terms, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
1. Biproxi may offer Brokers the option of having a professional third-party photographer (“Third-Party Photographer”) take photographs of a Broker’s property per the fees set forth in Section 4 (Pricing and Payment Information). Such photos will be made available to the Broker to include in their Listing with or without a watermark or tag bearing the words “biproxi Verified Photo” or similar wording (“Verified Images”). Brokers are responsible for ensuring that your property is accurately represented in the Verified Images and the Broker must stop using the Verified Images on or through the biproxi Platform if they no longer accurately represent the Listing or if the Broker’s account is terminated or suspended for any reason.
You acknowledge and agree that the Third-Party Photographer owns and retains all copyrights for works created or produced by such third-party provider. Biproxi hereby grants Broker a worldwide, non-exclusive, fully-paid license to use, reproduce, distribute, copy, display, perform, modify and create derivative works of the Verified Images in electronic form, in any medium now existing or hereafter created, for use in connection with the marketing of a Listing on the biproxi Platform. No other rights or uses are permitted without the prior written consent of biproxi. Except as expressly set forth in these Terms, you may not sell, license or collect payment of any kind for the use or display of a Verified Image.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place biproxi under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Biproxi does not waive any rights to use similar or related ideas previously known to biproxi, or developed by its employees, or obtained from sources other than you.
A. General. We may charge for access to portions of the Service, including for our Subscription Services. You agree to the pricing and any additional payment terms made available to you at the time you select a particular Subscription Service from the marketplace link in your account.
B. Subscription Services. Access to some of the portions of the Service may be limited depending on whether you have purchased a Subscription Service. Users that sign up and register to participate in a Subscription Service agree to and are subject to the fees and any additional terms for such Subscription Service. If we change the fees or other charges associated with our various Subscription Service, we will provide you with notice of such changes, such as by email or a notice posted on our biproxi Platform. We use third party service providers, such as Braintree, to process all payments through our Service. Your use of the Braintree payment platform is subject to Braintree’s terms or service available at https://www.braintreepayments.com/legal.
C. AUTOMATIC RENEWAL OF SUBSCRIPTION SERVICE FEES. WHEN YOU REGISTER FOR A SUBSCRIPTION SERVICE THAT AUTOMATICALLY RENEWS, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT (I) BIPROXI (OR OUR THIRD-PARTY PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE YOU ON A MONTHLY BASIS FOR YOUR SUBSCRIPTION SERVICE (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR SUBSCRIPTION SERVICE CONTINUES, (II) THE AMOUNT YOU ARE CHARGED MAY VARY DEPENDING ON THE PREFERENCES YOU SELECT, AND (III) YOUR SUBSCRIPTION SERVICE IS CONTINUOUS AND WILL AUTOMATICALLY RENEW UNTIL YOU CANCEL IT OR WE SUSPEND OR STOP PROVIDING ACCESS TO THE PLATFORM OR SUBSCRIPTION SERVICES IN ACCORDANCE WITH THESE TERMS. YOU ACKNOWLEDGE THAT YOUR SUBSCRIPTION SERVICE IS SUBJECT TO AUTOMATIC RENEWALS AND YOU CONSENT TO AND ACCEPT RESPONSIBILITY FOR ALL RECURRING CHARGES TO YOUR CREDIT OR DEBIT CARD (OR OTHER PAYMENT METHOD, AS APPLICABLE) BASED ON THIS AUTOMATIC RENEWAL FEATURE WITHOUT FURTHER AUTHORIZATION FROM YOU AND WITHOUT FURTHER NOTICE EXCEPT AS REQUIRED BY LAW. YOU FURTHER ACKNOWLEDGE THAT THE AMOUNT OF THE RECURRING CHARGE MAY CHANGE IF THE APPLICABLE TAX RATES CHANGE OR IF YOU ARE NOTIFIED THAT THERE WILL BE AN INCREASE IN THE APPLICABLE SUBSCRIPTION FEES.
D. Cancellation Policy. YOU MAY CANCEL YOUR SUBSCRIPTION SERVICE AT ANY TIME BY CONTACTING CONTACT@BIPROXI.COM ANY NOTICE OF CANCELLATION MUST BE IN WRITING. SUCH CANCELLATION REQUEST WILL BE PROCESSED IN THE MONTH FOLLOWING BIPROXI’S RECEIPT OF YOUR NOTICE.
E. No Sales to Children. Biproxi does not sell products through its Service for or to children, but only to adults, who can purchase with a credit card or other permitted payment method. If you are under eighteen (18) years of age, you may use the Service only with involvement and consent of a parent or legal guardian.
F. No Refunds. You may cancel your account at any time; however, there are no refunds for cancellation, except as expressly set forth herein. In the event that biproxi suspends or terminates your account or these Terms, you understand and agree that you shall receive no refund for any unused time on a subscription or for anything else.
G. California Residents. The provider of services is set forth herein. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
6. Security Biproxi cares about the integrity and security of your personal information and User Content. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information or User Content for improper purposes. You acknowledge that you provide your personal information and User Content at your own risk.
7. Confidentiality If you are a Broker you may use the “Data Vault” feature of the Service to upload certain confidential information (“Broker Confidential Information”) pertaining to a Listing, such information will be deemed Broker Confidential Information provided that the information is identified as confidential. By uploading such Broker Confidential Information to the biproxi Service, you hereby grant to biproxi and its affiliates a perpetual, irrevocable, royalty-free, worldwide, sublicensable and transferable license to publish, reformat, distribute, reproduce, display, transmit, host, archive, store, cache, and use the Broker Confidential Information in order to provide the Service to you, which includes without limitation disclosing such information to Users who have agreed to the Confidentiality Agreement prior to accessing the Data Vault. BIPROXI DOES NOT REVIEW ANY BROKER CONFIDENTIAL INFORMATION THAT A BROKER UPLOADS TO THE DATA VAULT AND CANNOT CONFIRM THE ACCURACY OF SUCH BROKER CONFIDENTIAL INFORMATION. THE BROKER IS SOLELY RESPONSIBLE AND LIABLE FOR THE BROKER CONFIDENTIAL INFORMATION THAT IT UPLOADS TO THE DATA VAULT AND BIPROXI ASSUMES NO RESPONSIBILITY FOR ANY RESULT OR CONSEQUENCE RELATED DIRECTLY OR INDIRECTLY TO THE BROKER CONFIDENTIAL INFORMATION UPLOADED TO THE DATA VAULT.
It is our policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify biproxi’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
A. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
B. Identification of the copyrighted work that you claim has been infringed;
C. Identification of the material that is claimed to be infringing and where it is located on the Service;
D. Information reasonably sufficient to permit biproxi to contact you, such as your address, telephone number, and, email address;
E. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
F. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice
Address: 230 Park Ave
New York, NY 10169
Under federal law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys’ fees.
Please note that this procedure is exclusively for notifying biproxi and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with biproxi’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, biproxi has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Biproxi may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
You agree to defend, indemnify and hold harmless biproxi and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of these Terms, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) User Content or any content that is submitted via your account including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
biproxi does not: (I) act as a real estate agent for you or any other User; (II) represent you or another User in the purchase, sale, or exchange of real property, including any negotiation thereof; or (III) lease or rent, offer to lease or rent, or negotiate the lease of real property or otherwise aid or assist in the lease of real property. Biproxi assumes no responsibility for any result or consequence related directly or indirectly to any action or inaction that Users take based on the Service or any other information available through or in connection with the Service.
The Service is provided on an “as is” and “as available” basis. Use of the Service is at your own risk. To the maximum extent permitted by applicable law, the Service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from biproxi or through the Service will create any warranty not expressly stated herein. Without limiting the foregoing, biproxi, its subsidiaries, its affiliates, and its licensors do not warrant that the content is accurate, reliable or correct; that the Service will meet your requirements; that the Service will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the Service is free of viruses or other harmful components. Any content downloaded, uploaded or otherwise obtained through the use of the Service, including such broker confidential information available via the data vault, is downloaded or uploaded at your own risk and you will be solely responsible for any damage to your computer system or mobile device or loss of data that results from such download, upload or your use of the Service.
Biproxi does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Service or any hyperlinked website or service, and biproxi will not be a party to or in any way monitor any transaction between you and third-party providers of products or services.
Federal law, some states, provinces and other jurisdictions do not allow the exclusion and limitations of certain implied warranties, so the above exclusions may not apply to you. This agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers and exclusions under this agreement will not apply to the extent prohibited by applicable law.
To the maximum extent permitted by applicable law, in no event shall biproxi, its affiliates, agents, directors, employees, suppliers or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, this service. Under no circumstances will biproxi be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the Service or your account or the information contained therein.
To the maximum extent permitted by applicable law, biproxi assumes no liability or responsibility for any (i) errors, mistakes, or inaccuracies of content; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of our service; (iii) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (iv) any interruption or cessation of transmission to or from the Service; (v) any bugs, viruses, trojan horses, or the like that may be transmitted to or through our service by any third party; (vi) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the Service; and/or (vii) User Content or the defamatory, offensive, or illegal conduct of any third party. In no event shall biproxi, its affiliates, agents, directors, employees, suppliers, or licensors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding the amount you paid to biproxi hereunder or $100.00, whichever is greater.
This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if biproxi has been advised of the possibility of such damage. The foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. This agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers, exclusions, and limitations of liability under this agreement will not apply to the extent prohibited by applicable law.
The Service is controlled and operated from facilities in the United States. Biproxi makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
A. Governing Law. You agree that: (i) the Service shall be deemed solely based in New York; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than New York. These Terms shall be governed by the internal substantive laws of the State of New York, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of these Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in New York County, New York for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that New York County, New York is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
B. Arbitration. Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from biproxi. For any dispute with biproxi, you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. In the unlikely event that biproxi has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in New York County, New York, unless you and biproxi agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing biproxi from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
C. Class Action/Jury Trial Waiver. With respect to all persons and entities, regardless of whether they have obtained or used the Service for personal, commercial or other purposes, all claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s claims. You agree that, by entering into this agreement, you and biproxi are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
A. Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by biproxi without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
C. Entire Agreement/Severability. These Terms, together with any amendments and any additional agreements you may enter into with biproxi in connection with the Service, shall constitute the entire agreement between you and biproxi concerning the Service. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
D. No Waiver. No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and biproxi’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
E. Contact. Please contact us at firstname.lastname@example.org with any questions regarding these Terms.
These Biproxi Marketing Concierge Agreement Standard Terms (these “Standard Terms”) form a material part of the Biproxi Marketing Concierge Agreement (the “Agreement”) which references these Standard Terms. All capitalized terms not defined in these Standard Terms have the meanings set forth in the Agreement. Standard Terms shall be superseded by the terms outlined in the Agreement.
WE ARE NOT ACTING AS A REAL ESTATE BROKER OR AGENT. We provide no legal or tax advice. You acknowledge and agree that we have no control over: (i) your listing for sale of the Property, including, without limitation, the quality, truth, or completeness of any information provided therein; (ii) the legality of the Transaction; (iii) the ability of Sellers to sell the Property; (iv) the ability of Buyers to buy the Property; and (v) the negotiation of a purchase and sale agreement between Seller and Buyer.
Outline of Marketing Concierge Services Provided to Broker:
We agree to provide the following services to you (the “Marketing Concierge Services”) in connection with each Property:
(a) create and deploy a strategic marketing campaign for each Property approved by you (each, a “Marketing Campaign”) to assist you with marketing the sale of the Property;
(b) assign one of our Marketing Strategist to you as your primary contact, who will work with you to create the Marketing Campaign for each Property;
(c) deliver to you meaningful buyer leads for each Property as received by Biproxi;
(d) provide to you weekly reporting and updates on the Marketing Campaign for each Property; and
(e) adjust the Marketing Campaigns based upon your feedback.
Term: Unless otherwise stated in the Agreement, the term for Marketing Concierge Services shall commence upon the date of execution by both parties of the Agreement and continue for a period of 120 days the later of the Commencement Date or the last date of any “Amendment” (defined below) or until terminated in accordance herewith (the “Term”). The parties may add one or more Properties to this Agreement by executing one or more amendments in the form attached hereto and incorporated herein (each, an “Amendment”).
Sale During Marketing Concierge Period: If Seller enters into an agreement to sell a Property during the Marketing Period and the transaction closes with a prospect that was delivered via the Marketing Concierge Services, Biproxi shall be paid the Fee from the sale proceeds due to Seller upon closing, regardless of when closing occurs.
Sale During Tail Period: If Seller enters into an agreement to sell a Property during the Tail Period with a buyer who, during the Marketing Period, whether personally or through the buyer’s representatives, filled out any property information form, accessed the Due Diligence Materials for the Property, or submitted an offer or letter of intent for the Property, and that transaction closes, Biproxi shall be paid the Transaction Fee from the sale proceeds due Seller upon closing, regardless of when closing occurs. Defaults to 12 month period or agreed upon term in the signed agreement between Biproxi and Broker.
Costs and Expenses: Biproxi is solely responsible for advertising, marketing and promotion costs Biproxi incurs in performance of the Agreement.
BiSeller Broker Commission and Cooperation: Except as otherwise set forth in the Agreement, Seller is solely responsible for any compensation owed to the listing broker and any cooperating broker in connection with the Property.
Due Diligence Materials: Within 5 days after the start of the Marketing Period for a Property, Seller must provide to Biproxi (a) the third-party due diligence materials listed in the Agreement, (b) all existing agreements affecting the Property, and (c) all other materials reasonably requested by Biproxi or otherwise reasonably necessary to market and sell the Property (collectively, “Due Diligence Materials”). Biproxi may delay or suspend marketing the Property until all Due Diligence Materials have been received. The Due Diligence Materials will be made available to the escrow/closing agent, and to prospective buyers and lenders who agree to keep them confidential. Seller must promptly notify Biproxi if Seller learns that any of the Due Diligence Materials are or become inaccurate or incomplete in any material respect.
Termination: If (a) the Seller of the Property has decided to remove the Property from the market, (b) the Seller of the Property has contracted another broker to list the Property for sale, or (c) the Property has sold through a source other than the Marketing Campaign, then you may terminate this Agreement as to such Property by written notice to us, effective upon delivery of such notice. We may terminate this Agreement as to any one or more Properties or Sellers by delivery of advance written notice to you, effective fourteen (14) days following delivery of such notice. Upon termination of this Agreement by you or us as to any one or more Properties or Sellers, we will cease the Marketing Campaign and neither party shall have any further liability hereunder except as expressly set forth herein to survive termination.
Minimum Price: Seller may reduce the Minimum Price at any time in Seller’s sole discretion.
Indemnities: Each party (as applicable, the “Indemnifying Party”) agrees to indemnify, defend and hold harmless the other party, each person or entity deemed to control or to be controlled by such other party, and their respective affiliates, partners, members, shareholders, managers, directors, officers, employees, agents and representatives, against and from any and all losses, liabilities, and damages (including without limitation reasonable attorneys’ fees) arising in connection with any action, claim, controversy, proceeding, or investigation relating to this engagement, to the extent imposed or incurred by reason of the gross negligence or willful misconduct of the Indemnifying Party.
Seller agrees to defend, indemnify, and hold harmless Biproxi, each person or entity deemed to control or be controlled by Biproxi, and their respective partners, members, shareholders, managers, directors, officers, employees, agents and representatives, against and from any and all losses, liabilities, and damages (including without limitation reasonable attorneys’ fees) arising in connection with any action, claim, proceeding, or investigation related to (a) any agreement between Seller and a third party listing broker, or that listing broker’s acts or omissions in connection with the listing and sale of a Property, (b) any showings of a Property (except to the extent caused by the gross negligence or willful misconduct of Biproxi), (c) the content of any Due Diligence Materials or photographs provided by Seller and (d) any withdrawal of a Property by Seller or breach by Seller of any purchase agreement.
Notices: Any notice given under the Agreement must be in writing and be delivered to the applicable address listed in the Agreement by (a) personal delivery, (b) certified United States mail, return receipt requested, (c) a nationally recognized overnight courier service, or (d) electronic mail. All notices are deemed given upon receipt or upon the date receipt is refused by the recipient, except that notices delivered by electronic mail are not deemed given until acknowledged by the recipient.
Confidentiality: Each party to the Agreement (as applicable, the “Receiving Party”), for itself and its employees and agents, agrees not to disclose to others any confidential or proprietary information of the other party (as applicable, the “Disclosing Party“) which may become known to the Receiving Party under the Agreement, except to the extent the Disclosing Party specifically authorizes the disclosure, or the disclosure of Seller confidential information reasonably results from Biproxi’s performance of the Agreement. For purposes of this paragraph, information is not deemed confidential if (a) it is otherwise within the public domain, or (b) the Receiving Party obtained the information from a source (other than the Disclosing Party or its employees or agents) which, to the Receiving Party’s knowledge, does not have a duty of confidentiality to any person or entity. Despite the foregoing, the Receiving Party may disclose confidential information to the extent reasonably necessary to defend itself from any threatened or potential claim, or in response to legal process (and the Receiving Party will provide the Disclosing Party notice of the threatened or potential claim or legal process if legally permitted to do so).
Authority/No Conflicts: Each party represents and warrants that it is duly authorized to enter into the Agreement and perform its obligations under the Agreement. Each natural person signing the Agreement on behalf of an entity represents and warrants that he/she has the requisite authority to so bind the entity. Except as disclosed in the Agreement, Seller represents and warrants that there are no purchase agreements, purchase options, or rights of first refusal affecting the Property, or other agreements that could reasonably be expected to conflict with Seller’s ability to perform under the Agreement. Seller represents and warrants that publication of the Due Diligence Materials and photographs provided by Seller in connection with Biproxi’s marketing of each Property will not infringe any third party rights, and Seller grants Biproxi a non-exclusive, worldwide, perpetual, royalty-free license to use and modify the photographs for any purpose, including for purposes of marketing Biproxi.
Independent Contractors: The Agreement is intended to create an independent contractor relationship between Biproxi and Seller, and does not create an employer/employee, agency, or partnership relationship between the parties.
Complete Agreement/Amendments: The Agreement is the complete and exclusive agreement between the parties with respect to the subject matter in the Agreement, superseding and replacing any and all prior or contemporaneous communications regarding that subject matter. No modifications to the Agreement will be effective unless made in writing and signed by all parties to the Agreement.