1. INTRODUCTION AND ACCEPTANCE
Welcome to thebreakchanger.com, an interactive online community service operated by National Fix and Flip Network, Inc., (referred to as “us”, “we”, or “our”). These “Terms & Conditions” apply to this site (however accessed and/or used, whether via personal computers, mobile devices or otherwise (collectively, “Computer”) and other interactive features, applications or downloads that are operated by us that are available through this site or that interact with this site and post these Terms & Conditions (collectively, “Website”).
PLEASE READ THESE TERMS & CONDITIONS AND APPLICABLE ADDITIONAL TERMS (DEFINED BELOW) CAREFULLY BEFORE USING THE WEBSITE, AS THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS. BY ACCESSING AND/OR USING THE WEBSITE (OTHER THAN TO READ THESE TERMS & CONDITIONS), YOU ARE AGREEING TO COMPLY WITH THESE TERMS & CONDITIONS, WHICH MAY CHANGE FROM TIME TO TIME AS SET FORTH IN SECTION 18 BELOW. THESE TERMS & CONDITIONS REQUIRE YOU TO AGREE TO ARBITRATE DISPUTES RATHER THAN GOING TO COURT, GRANT US CERTAIN RIGHTS AND LICENSES, PROVIDE US CERTAIN INDEMNITIES, WAIVE CERTAIN OF YOUR RIGHTS AND REMEDIES, AND LIMIT OUR LIABILITY AND OBLIGATIONS TO YOU. READ THEM CAREFULLY AND DO NOT USE THE WEBSITE OR PURCHASE OUR PRODUCTS OR SERVICES AVAILABLE VIA THE WEBSITE IF YOU DO NOT AGREE.
You agree that these Terms & Conditions are supported by good and valuable consideration the receipt and sufficiency of which you hereby acknowledge. Such consideration includes, without limitation, your use of the Website and the materials and information available on the same and the possibility of publication or publicity of your User Content (as defined in Section 6).
2. INTELLECTUAL PROPERTY
Unless otherwise explicitly specified, the Website (including past, present and future versions) and included content (and any derivative works or enhancements of the same), including, but not limited to, all layout, text, illustrations, instructions, files, images, designs, software, scripts, graphics, photos, sounds, music, videos, information, advertising copy, content, materials, products, services, URLs, technology, documentation, interactive features, the “look and feel” of the Website, the compilation, assembly and arrangement of the materials of the Website and any and all copyrightable material (including source and object code), (collectively, the “Website Content”) and all intellectual property rights to the same are owned or controlled by us, our licensors, or both. Additionally, all trademarks, service marks, trade names, trade identities and trade dress that may appear on the Website are owned by us, our partners, or both. Except for the limited use rights granted to you in these Terms & Conditions, you shall not acquire any right, title or interest in the Website or any Website Content. Any rights not expressly granted in these Terms & Conditions are expressly reserved.
3. WEBSITE ACCESS AND USE
- Access to the Website, including, without limitation, the Website Content, is provided for your information and personal, non-commercial use only. When using the Website, you agree to comply with all applicable federal, state, and local laws, including, without limitation, copyright law. Except as expressly permitted in these Terms & Conditions or applicable Additional Terms, you may not use, reproduce, distribute, create derivative works based upon, publicly display, publicly perform, publish, transmit, or otherwise exploit Website Content for any purpose whatsoever without obtaining prior written consent from us or, in the case of third-party content, its respective owner. In certain instances, we may permit you to download or print Website Content or both. In such a case, subject to your strict compliance with these Terms & Conditions, you may download (temporary storage only), display, view use, play and/or or print (as applicable) one (1) copy of the Website Content (excluding source and object code in raw form or otherwise, other than as made available to access and use via a standard web browser to enable display on your Computer) on any single Computer for your limited, personal, non-exclusive, non-commercial, revocable, non-assignable and non-transferable use only. In some instances, we may permit you to have greater access to and use of Website Content, subject to Additional Terms applicable thereto. You acknowledge that you do not acquire any ownership rights by downloading, printing or otherwise using or accessing the Website Content.
- Furthermore, except as expressly permitted in these Terms & Conditions or applicable Additional Terms, you may not:
(i) remove, alter, cover, or distort any copyright, trademark, or other proprietary rights notices on the Website or Website Content or on any copy you make of the Website Content;
(ii) circumvent, disable or otherwise interfere with security-related features of the Website, including, without limitation, any features that prevent or restrict use or copying of any content or enforce limitations on the use of the Website or Website Content;
(iii) use an automatic device (such as a robot or spider) or manual process to copy or “scrape” the Website or Website Content for any purpose without the express written permission of National Fix and Flip Network, frame the Website or Website Content except to the extent we have given you explicit permission to do so, or use any of our trademarks as meta tags. Notwithstanding the foregoing, National Fix and Flip Network grants public search engine operators permission to use automatic devices (such as robots or spiders) to copy Website Content from the Website for the sole purpose of creating (and only to the extent necessary to create) a searchable index of Website Content that is available to the public. We reserve the right to revoke this permission (generally or specifically) at any time;
(iv) collect or harvest any personally identifiable information from the Website, including, without limitation, user names, passwords, e-mail addresses;
(v) solicit other users to join or become members of any commercial online service or other organization without our prior written approval;
(vi) attempt to or interfere with the proper working of the Website or impair, overburden, or disable the same;
(vii) decompile, reverse engineer, disassemble, modify or attempt to discover any Website source or object code or any software or other products, services or processes accessible through any portion of the Website;
(viii) use network-monitoring software to determine architecture of or extract usage data from the Website;
(ix) encourage conduct that violates any local, state or federal law, either civil or criminal, or impersonate another user, person, or entity (e.g., using another person’s Membership (as defined in Section 5(B)) without permission, etc.);
(x) use the Website Content in a manner that suggests an association with any of our networks, products, services or brands;
(xi) violate U.S. export laws, including, without limitation, violations of the Export Administration Act and the Export Administration Regulations administered by the Department of Commerce; or
(xii) engage in any conduct that restricts or inhibits any other user from using or enjoying the Website or that violates these Terms & Conditions or applicable Additional Terms.
- You agree to cooperate fully with National Fix and Flip Network to investigate any suspected or actual activity that is in breach of these Terms & Conditions or applicable Additional Terms.
- You also agree that you will be responsible for obtaining and maintaining all Computer hardware and other equipment needed for access to and use of the Website and you will be responsible for all charges related thereto.
4. CONDITIONS FOR LINKING TO WEBSITE
We hereby grant you a non-exclusive, limited license, revocable at our discretion, for you to link to the Website home page from any site you own or control that is not commercially competitive with the Website and does not criticize or otherwise injure us, so long as the site where the link resides, and all other locations to which such site links, comply with all applicable laws and do not in any way abuse, defame, stalk, threaten or violate the rights of privacy, publicity, intellectual property or other legal rights of others or, in any way, post, publish, distribute, disseminate or facilitate any inappropriate, infringing, defamatory, profane, indecent, obscene or illegal/unlawful information, topic, name or other material or that violates the spirit of our mission. Such a link is not an endorsement of such other site(s) by us. All of our rights and remedies are expressly reserved. Notwithstanding anything to the contrary contained in these Terms & Conditions or applicable Additional Terms, we reserve the right to prohibit linking to the Website for any reason, in our sole and absolute discretion, even if the linking complies with the requirements described above.
5. USER REGISTRATION
- In order to access or use some (or potentially all) of the features of the Website, you may have to become a registered Member. If you are under the age of thirteen (13), then you are not permitted to register as a user or otherwise submit personal information to National Fix and Flip Network. For more information about Website Membership see our “Member Agreement”.
- ”) which may permit you access to certain areas of the Website not available to non-registered users. You are responsible for safeguarding and maintaining the confidentiality of your Membership and for restricting access to your Computer so that others may not access any password protected portion of the Website using your username in whole or in part. If you register with us, you agree to accept sole responsibility for all activities that occur under your Membership, whether or not you have authorized the activity. You agree you will not sell, transfer or assign your Membership or any Membership rights. You agree to notify us immediately at info @ fixandflipnetwork.com of any breach of security or unauthorized use of your Membership. We reserve the right to terminate your account or otherwise deny you access to the Website in our sole discretion for any or no reason without notice and without liability.
- By registering on our Website no Member will be considered an employee, agent, partner or joint venturer of National Fix and Flip Network and National Fix and Flip Network will not be considered the employer, agent, partner or joint venturer of you, your Personnel or any Member Representative. National Fix and Flip Network is not involved in your hiring, firing, discipline or employment or other decisions. If an arbitrator, mediator or a court determines, notwithstanding this provision, that a Member (or its Personnel) are agents of National Fix and Flip Network, then your release, waivers and indemnities and other obligations under both the Member Agreement and these Terms & Conditions will apply to the Member (and its Personnel).
- As used herein, the term “Personnel” means, you, your employees, Buyer or Provider Agents, other agents, and subcontractor(s), and as to National Fix and Flip Network its employees, agents and subcontractors.
- You are solely responsible for yourself and your Personnel’s interactions with other Website Members. You agree that National Fix and Flip Network is not obligated to screen (and may not screen) Members, nor does National Fix and Flip Network inquire into the backgrounds of Members; nor does National Fix and Flip Network undertake to verify (unless otherwise expressly stated on the Website) Members statements and documents (e.g., insured or licensed status), and National Fix and Flip Network is not responsible for the User Content on the Site.
- National Fix and Flip Network makes no representations, warranties or covenants as to: (a) the conduct of Members (and their Personnel), or (b) the number of Service Requests/Leads (if any) that each you may be offered via the Site. In no event will National Fix and Flip Network be liable for any damages whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental (including bodily injury, emotional distress and/or any other damage), arising out of or relating in any way to: (c) the conduct of, or communication with, any Member (including any Buyer or Provider Firm), Personnel of such Members, or anyone else, (d) the use of the Site, and (e) Service Requests/Leads transmitted by and/or accepted through the Site.
- Your decision to register for a Membership and/or your firm’s decision to register Buyers or Providers and use the Site is your personal decision for which you alone are responsible. You agree that National Fix and Flip Network does not make representations as to any Member that you may decide to accept a Service Request/Lead from.
- You are solely responsible for protecting yourself, your Providers and your/their personal and financial information and you agree that you are not entrusting that responsibility to National Fix and Flip Network by use of the Membership.
RELEASE AND WAIVER. YOU ACKNOWLEDGE THAT, IN CONSIDERATION OF YOUR MEMBERSHIP AND/OR YOUR OPPORTUNITY TO RECEIVE SERVICE ORDERS YOU AND EACH OF YOUR PERSONNEL HEREBY RELEASE NATIONAL FIX AND FLIP NETWORK AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, SUCCESSORS, ASSIGNS, INSURERS, AGENTS, LICENSEES, DISTRIBUTORS AND INDEPENDENT CONTRACTORS, (COLLECTIVELY, THE “NATIONAL FIX AND FLIP NETWORK COVERED PARTIES”), FROM ANY DAMAGES OR LIABILITY WHATSOEVER RELATED TO SERVICE REQUESTS/LEADS, THE OPERATON OF THE SITE, THE RATING SYSTEM, RECEIVING PAYMENT, YOUR ENGAGEMENT BY A BUYER AND ANY OF THE SERVICES, INCLUDING ANY INFORMATION PROCESSING SERVICES (COLLECTIVELY, THE “COVERED ITEMS”). YOU IRREVOCABLY WAIVE ANY CLAIMS THAT YOU OR YOUR PERSONNEL MAY HAVE IN CONNECTION WITH COVERED ITEMS (INCLUDING CLAIMS OF DEFAMATION, BAD FAITH, CONSPIRACY, TORTUOUS INTERFERENCE WITH CONTRACT, ETC.). YOU FURTHER AGREE TO INDEMNIFY THE NATIONAL FIX AND FLIP NETWORK COVERED PARTIES AGAINST ANY AND ALL DAMAGES OR LIABILITY THAT NATIONAL FIX AND FLIP NETWORK OR THE NATIONAL FIX AND FLIP NETWORK COVERED PARTIES MAY INCUR, INCLUDING ATTORNEYS FEES AND COSTS, IN CONNECTION WITH THE COVERED ITEMS.
6. USER CONTENT
- We permit users to post, upload, display, publish, distribute, transmit through, broadcast or otherwise make available on the Website (collectively, “submit”) messages, text, illustrations, files, images, graphics, photos, comments, sounds, music, videos, information, content, and/or other materials (“User Content”). Except for any Website Content included in your User Content we have given you permission to use, and subject to the rights and license you grant herein, you retain all right, title and interest in your User Content. It is solely your responsibility to monitor and protect any intellectual property rights that you may have in your User Content, and we do not accept any responsibility for same, but you grant us the right to protect and enforce our and our licensees’ licensed rights to your User Content, including, without limitation, by bringing and controlling actions in your name and on your behalf (at our cost and expense, to which you hereby consent and irrevocably appoint us as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).
You agree that you either:
- own the rights to the User Content you submit and the right to grant all of the rights and licenses in these Terms & Conditions or applicable Additional Terms; or
- you have all necessary rights and licenses from the owner(s) of these rights to enter into these Terms & Conditions and grant us these licenses.
- you will abide by any and all applicable licensing, permitting, employment, non-discrimination, tax and other federal, state and local laws, statutes, ordinances and regulations. You agree to hold harmless and indemnify thebreakchanger.com for any and all liability arising from a violation of any such laws, statutes, ordinances and/or regulations.
- Upon our request, you will furnish us with any documentation, substantiation or releases necessary to verify your compliance with these Terms & Conditions or applicable Additional Terms. You also acknowledge that the Internet may be subject to breaches of security and should be aware that submissions of User Content or other information may not be secure, and you should consider this before submitting any information to us. Subject to these Terms & Conditions and applicable Additional Terms, we grant you the limited, revocable, non-exclusive permission to use Website Content in your User Content as may from time to time be made available on the Website specifically for that purpose, but only for such purposes as may be explicitly stated at the time such Website Content is so made available on the Website; provided, however, we retain the ownership of such Website Content.
- You shall not submit any User Content protected by copyright, trademark, patent, trade secret, moral right, or other intellectual property, personal, contractual, proprietary or other third party right without the express permission of the owner of the respective right. You are solely liable for any damage resulting from your failure to obtain such permission or from any other harm resulting from User Content that you submit.
- You represent, warrant, and covenant that you will not submit any User Content that:
(i) violates or infringes in any way upon the rights of others, including, but not limited to, any copyright, trademark, patent, trade secret, moral right, or other intellectual property, personal, contractual, proprietary or other third party right of any person or entity;
(ii) impersonates another or is unlawful, threatening, abusive, libelous, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, pornographic, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable;
(iii) encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law;
(iv) is an advertisement for goods or services or a solicitation of funds;
(v) includes personal information such as messages which identify phone numbers, social security numbers, account numbers, addresses, or employer references unless specifically requested by us;
(vi) contains a formula, instruction, or advice that could cause harm or injury;
(vii) is a chain letter of any kind;
(viii) the licensed use by us hereunder would result in us having any obligation or liability to any party;
(ix) depicts any third party trademarks or products or services in any manner that violates their rights or could otherwise create liability; or
(x) violates these Terms & Conditions or applicable Member Agreement.
Moreover, any conduct by a user that in our sole discretion restricts or inhibits any other user from using or enjoying the Website will not be permitted.
F. By submitting User Content, you also grant us the right, but not the obligation to use your biographical information, including, without limitation, your name and geographical location in connection with broadcast, print, online, or other use or publication of your User Content. Notwithstanding the foregoing, you waive any and all claims you may now or later have in any jurisdiction to so-called “moral rights” or rights of “droit moral” with respect to the User Content.
G. We reserve the right to display advertisements in connection with your User Content and to use your User Content for advertising and promotional purposes. You acknowledge and agree that your User Content may be included on the websites and advertising networks of our distribution partners and third-party service providers (including their downstream users).
H. We have the right, but not the obligation, to monitor User Content. Please exercise caution and common sense when viewing User Content. We have no obligation to post, maintain, accept, display, exploit or otherwise make use of User Content, do not guarantee distribution of User Content and User Content will not be returned and you will not have the right, once posted, to access, archive, maintain or otherwise use such User Content on the Website. We may discontinue operation of the Website, or your use of the Website, in either case in whole or in part, in our sole discretion. You have no right to maintain or access your User Content on the Website and we have no obligation to return your User Content or otherwise make it available to you. We may, in our sole discretion, delete, move, re-format, edit, alter, distort, remove or refuse to exploit User Content without notice or liability; provided, however, that we reserve the right to treat User Content on the Website, or on certain portions of the Website, as content stored at the direction of users for which we will not exercise editorial control except to block or remove content that is obscene, lewd, lascivious, filthy, violent, harassing or otherwise objectionable or to enforce the rights of third parties.
I. The rights granted by you hereunder may not be terminated, revoked or rescinded and are not subject to reversion; provided, however, the rights granted by us may be terminated, revoked or rescinded and are subject to reversion. If you become aware that User Content you have submitted includes any material for which you lack the unrestricted right to grant us the rights set forth above without obligations or liability to any party, you agree to promptly provide us with detailed written notice thereof to National Fix and Flip Network, Inc., 500 W. Silver Spring Drive, Suite K200, Glendale, WI 53217
7. WEBSITE CONTENT & THIRD PARTY LINKS
- We provide the Website, including, without limitation, Website Content for entertainment, educational and promotional purposes only. You may not rely on any information and opinions expressed on the Website for any other purpose. In all instances, it is your responsibility to evaluate the accuracy, timeliness, completeness, or usefulness of Website Content. Under no circumstances will we be liable for any loss or damage caused by your reliance on any Website Content.
- In many instances, Website Content will include content posted by a third-party or will represent the opinions and judgments of a third-party. We do not endorse, warrant and are not responsible for the accuracy, timeliness, completeness, or reliability of any opinion, advice, or statement made on the Website by anyone other than authorized employees or spokespersons while acting in their official capacities.
- If there is a dispute between persons accessing the Website or between persons accessing the Website and any third party, you understand and agree that we are under no obligation to become involved. If there is such a dispute, you hereby release National Fix and Flip Network and its officers, directors, employees, parents, partners, successors, agents, affiliates, subsidiaries, and their related companies from claims, demands, and damages of every kind or nature arising out of, relating to, or in any way connected with such dispute.
- The Website may contain links to other websites maintained by third parties. We do not operate or control, in any respect, or necessarily endorse the content found on these third-party websites. You assume sole responsibility for your use of third-party links. We are not responsible for any content posted on third-party websites or liable to you for any loss or damage of any sort incurred as a result of your dealings with any third-party or their website.
- You agree that: National Fix and Flip Network may add, delete, or modify some or all of the Services at any time. From time to time, National Fix and Flip Network may provide features, products or Services which either are or will be set forth on the Site, which are subject to these Terms, but are also subject to the additional terms and pricing specified on the Site. With respect to these features and services provided on our Site, you will be charged, and you agree to pay National Fix and Flip Network any fees for such features, products and/or Services, as set forth on the Site.
The Website may include certain features and services that may be available via your mobile phone, including, without limitation: (a) the ability to upload to the Website via your mobile phone (Mobile Uploads), (b) the ability to receive and reply to messages and to send content and messages using text messaging (Mobile Texts), and (c) the ability to access the Website from your mobile phone (Mobile Web) (collectively, the “Mobile Services”). We typically do not charge for Mobile Services. Your carrier’s normal messaging, data and other rates and fees will, however, still apply. Your carrier may prohibit or restrict certain Mobile Services and certain Mobile Services may be incompatible with your carrier or mobile device. You should check with your carrier to find out what plans are available and how much they cost. By using the Mobile Services you agree that we may communicate with you regarding the Website and our partners by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services will be communicated to us.
You agree that in connection with the Mobile Services for which you are registered for, we may send communications to your mobile device regarding us or other parties. Further, we may collect information related to your use of the Mobile Services. If you have registered for Mobile Services, you agree to notify us of any changes to your mobile number and update your account(s) on the Website to reflect this change.
You agree to defend, indemnify and hold harmless National Fix and Flip Network and its officers, directors, employees, parents, partners, successors, agents, distribution partners, affiliates, subsidiaries, and their related companies from and against any and all claims, liabilities, losses, damages, obligations, costs and expenses (including reasonable attorneys’ fees and costs) arising out of, related to, or that may arise in connection with: (i) your access to or use of the Website; (ii) User Content provided by you or through use of your Membership; (iii) any actual or alleged violation or breach by you of these Terms & Conditions or applicable Member Agreement; (iv) any actual or alleged breach of any representation, warranty, or covenant that you have made to us; or (v) your acts or omissions. You agree to cooperate fully with us in the defense of any claim that is the subject of your obligations hereunder.
- Defense. To the fullest extent permitted by law, you will, at your own expense, defend the National Fix and Flip Network Covered Parties against any allegation (regardless of whether it is false, fraudulent or groundless, whether your obligations are applicable pursuant to the terms of Section 4.B below, or whether it alleges any negligence, willful misconduct or culpability by National Fix and Flip Network or any of the National Fix and Flip Network Covered Parties) in any claim, complaint, demand, investigation, suit, proceeding or cause of action that arises, directly or indirectly, from: (I) any act or omission related to the performance of (or failure to perform) Service Requests/Leads, including any actual or alleged defect or improper service by you or any of your Personnel, including Providers, (II) any breach or default under: (1) any covenant or provision of these Terms, or (2) any law, statute, or state ordinance or any governmental administrative order, rule or regulation, and (III) any claim by your Personnel, including Providers (collectively, “Claims”). You will use counsel reasonably satisfactory to National Fix and Flip Network in the defense of Claims against National Fix and Flip Network Covered Parties. National Fix and Flip Network may, at its election, take control of defense and investigation of Claims against National Fix and Flip Network Covered Parties, and may employ and engage attorneys of its own choice to manage such Claims, at your cost, risk and expense, provided that National Fix and Flip Network and its counsel will proceed with diligence and good faith with respect thereto.
- Indemnification. To the fullest extent permitted by law, you will, at your own expense, release, indemnify and hold harmless all National Fix and Flip Network Covered Parties from any and all loss, damage, cost, expense, fines, penalty, judgment, and any other liability, including reasonable attorneys’ fees and expenses and costs of investigation incurred by any National Fix and Flip Network Covered Parties arising out of any Claim. Your failure to secure and maintain required insurance coverage would not relieve you of your responsibilities under this Section to a National Fix and Flip Network Covered Party.
- In the event of a failure by you to fully perform in accordance with this Section 9, National Fix and Flip Network, at its option and without relieving you of your obligations hereunder, may so perform, but all costs and expenses so incurred by National Fix and Flip Network in that event will be reimbursed by you to National Fix and Flip Network, together with interest of the same from the date any such expense was paid by National Fix and Flip Network until reimbursed by you at maximum rate allowed by law.
NATIONAL FIX AND FLIP NETWORK WILL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY LOSS OF OR DAMAGE TO ANY OF YOUR OR YOUR PERSONNEL’S PROPERTY. NATIONAL FIX AND FLIP NETWORK WILL NOT BE RESPONSIBLE OR LIABLE TO YOU OR TO ANYONE CLAIMING BY, THROUGH, OR UNDER YOUR INCLUDING YOUR SHAREHOLDERS, DIRECTORS, OR PERSONNEL FOR ANY LOSS OR DAMAGE THAT MAY BE OCCASIONED BY OR THROUGH THE ACTS OR OMISSIONS OF ANY PERSON (INCLUDING ANY NATIONAL FIX AND FLIP NETWORK PERSONNEL, ANY BUYER, PROVIDER, OR ITS PERSONNEL, OR ANY PERSON AT A SERVICE LOCATION).
YOU EXPRESSLY AGREE THAT USE OF THE WEBSITE IS AT YOUR SOLE RISK. THE WEBSITE AND WEBSITE CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, “WITH ALL FAULTS,” AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY LAW, NATIONAL FIX and FLIP NETWORK AND ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, PARTNERS, SUCCESSORS, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES, AND THEIR RELATED COMPANIES DISCLAIM ANY AND ALL WARRANTIES INCLUDING ANY: (1) WARRANTIES THAT THE WEBSITE WILL MEET YOUR REQUIREMENTS; (2) WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, TIMELINESS, OR INFORMATIONAL CONTENT OF THE WEBSITE OR WEBSITE CONTENT; (3) WARRANTIES OF TITLE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, CUSTOM, TRADE, QUIET ENJOYMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (4) WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON OUR WEBSITE OR ACCESSED THROUGH THE WEBSITE; (5) WARRANTIES CONCERNING THE ACCURACY OR RELIABILITY OF THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE; (6) WARRANTIES THAT YOUR USE OF THE WEBSITE WILL BE SECURE OR UNINTERRUPTED, TIMELY OR ERROR-FREE; (7) WARRANTIES THAT DEFECTS OR ERRORS IN THE SOFTWARE WILL BE CORRECTED; AND (8) WARRANTIES THAT THE WEBSITE (OR THE SERVER THAT MAKES IT AVAILABLE) IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
11. LIMITATION ON LIABILITY
- UNDER NO CIRCUMSTANCES SHALL NATIONAL FIX AND FLIP NETWORK OR ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, PARTNERS, SUCCESSORS, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES, OR THEIR RELATED COMPANIES BE RESPONSIBLE OR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, ECONOMIC, PUNITIVE OR EXEMPLARY DAMAGES (EVEN IF FORSEEABLE OR IF NATIONAL FIX AND FLIP NETWORK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER THEORY, ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH THE WEBSITE, THESE TERMS & CONDITIONS OR APPLICABLE ADDITIONAL TERMS. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE WEBSITE, INCLUDING, WITHOUT LIMITATION, THE WEBSITE CONTENT IS TO STOP USING THE WEBSITE. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF SERVICES OR PRODUCTS RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE WEBSITE OR ANY LINKS ON THE WEBSITE, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE WEBSITE OR ANY LINKS ON THE WEBSITE. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY CONTENT POSTED BY A THIRD-PARTY OR CONDUCT OF A THIRD-PARTY ON THE WEBSITE.
- NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF NATIONAL FIX AND FLIP NETWORK AND ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, PARTNERS, SUCCESSORS, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES, AND THEIR RELATED COMPANIES EXCEED THE GREATER OF THE TOTAL PAYMENTS RECEIVED FROM YOU BY NATIONAL FIX AND FLIP NETWORK DURING THE PRECEDING TWELVE (12) MONTH PERIOD OR $25. FURTHERMORE, YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH THE WEBSITE, THESE TERMS & CONDITIONS OR APPLICABLE ADDITIONAL TERMS MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
- In some jurisdictions limitations of liability or of warranties are not permitted. In such jurisdictions, some of the foregoing limitations may not apply to you. These limitations shall apply to the fullest extent permitted by law.
- If you become a registered user, you may terminate your Membership at any time by sending an e-mail to firstname.lastname@example.org
- Any suspension or termination shall not affect your obligations to us under these Terms & Conditions. The provisions of these Terms & Conditions which by their nature should survive the suspension or termination of your Membership or these Terms & Conditions shall survive, including, but not limited to, the rights and licenses that you have granted hereunder, indemnities, releases, disclaimers, limitations on liability, provisions related to choice of law, dispute resolution, no class action, no trial by jury and all of the miscellaneous provisions in Section 20. Upon suspension or termination of your Account, you will immediately discontinue use of the Website Content and destroy any copies of Website Content in your possession, including deleting any downloaded Website Content from your Computer.
- If this Agreement is terminated, so are you and your Personnel’s right to use the Site. National Fix and Flip Network also reserves the right to suspend and/or terminate you and your Personnel’s use of the Site and/or Membership at any time, without prior notice. Termination of your Membership by National Fix and Flip Network also terminates the Member Agreement, without further liability or penalty to National Fix and Flip Network. National Fix and Flip Network reserves the right, at is sole discretion, to terminate all open Service Requests/Leads in the event National Fix and Flip Network suspends or terminates you. If for any reason, this Agreement is either terminated by you or by National Fix and Flip Network you are NOT entitled to any portion of your subscription payment. Your subscription will simply discontinue and your subscription will not be automatically renewed.
- Your liability for Service Requests/Leads that have been accepted, survives suspension or termination of these Terms and your right to use the Site. In such event, (I) your Membership will continue for a period necessary to complete any open Service Request(s) (and these Terms shall continue to apply to such Service Requests and your use of the Site, if such use is permitted by National Fix and Flip Network); (II) you will still be obligated to pay charges incurred under your Membership, (III) you will not accept any additional Service Requests/Leads and (IV) you will be deemed to have cancelled any open Service Requests/Leads unless otherwise directed by National Fix and Flip Network, in its sole discretion not to do so; in which case, you will complete those Service Requests you are directed by National Fix and Flip Network to complete and these Terms shall continue to apply to such Service Requests, your use of the Site. All Service Requests/Leads will cease immediately.
13. COPYRIGHT POLICY
- National Fix and Flip Network respects the intellectual property rights of others and expects its users to do the same. In appropriate circumstances and at its sole discretion, National Fix and Flip Network may terminate and/or disable the Membership of users who it suspects to be infringers of the copyrights (or other intellectual property rights) of others. Additionally, in appropriate circumstances and in its sole discretion, National Fix and Flip Network may remove or disable access to material on any of its websites or hosted on its systems that may be infringing or the subject of infringing activity.
- In accordance with the Digital Millennium Copyright Act of 1998, Title 17 of the United States Code, Section 512 (“DMCA”), we will respond promptly to claims of copyright infringement that are reported to the agent that we have designated to receive notifications of claims infringement (its “Designated Agent”). National Fix and Flip Network’ Designated Agent may be reached at:
National Fix and Flip Network, INC.
500 W. Silver Spring Drive
Suite K-200, Glendale, WI 53217
- If you are a copyright owner (or authorized to act on behalf of the copyright owner) and believe that your work’s copyright has been infringed, please report your notice of infringement to us by providing our Designated Agent with a written notification of claimed infringement that includes substantially the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material.
- Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
We will investigate notices of copyright infringement and take appropriate actions under the DMCA. Inquiries that do not follow this procedure may not receive a response. For more information on our DMCA policy, please click on this hyperlink: Infringements.
14. CHOICE OF LAW; JURISDICTION AND VENUE
These Terms & Conditions shall be construed in accordance with the laws of the State of Colorado without regard to its conflict of laws rules. Any legal proceedings against National Fix and Flip Network, Inc. that may arise out of, relate to, or be in any way connected with our Website, these Terms & Conditions or applicable Additional Terms, and which are not subject to the arbitration provisions of Section 15 below, shall be brought exclusively in the state and federal courts of Colorado located in Arapahoe county and you waive any jurisdictional, venue, or inconvenient forum objections to such courts.
15. DISPUTE RESOLUTION; BINDING ARBITRATION
In the Dispute Resolution Section only, “we” and “us” are used to refer to you and National Fix and Flip Network together.
- We each agree to first contact each other with any Disputes (defined below) and provide a written description of the problem and the proposed resolution. You agree to contact us with Disputes by contacting us at the address provided in Section 15(B)(ii) below. We will contact you based on the contact information you have provided us.
- We each agree to finally settle all Disputes (as defined and subject to any specific exceptions below) only by arbitration. In arbitration, there’s no judge or jury and review is limited. However, just as a court would, the arbitrator must honor the terms and limitations in the Terms & Conditions and can award the prevailing party(ies) damages and relief. The arbitrator’s decision and award is final and binding, with some exceptions under the Federal Arbitration Act (“FAA”), and judgment on the award may be entered in any court with jurisdiction. We each also agree as follows:
- “Disputes” are any claims or controversies against each other related in any way to the Website, Website Content or these Terms & Conditions – this includes claims you bring against our employees, agents, affiliates or other representatives, and claims National Fix and Flip Network may bring against you; provided, however, that any issues relating to National Fix and Flip Network’ intellectual property rights, including any such rights National Fix and Flip Network claims that may be in dispute, shall only be subject to arbitration if National Fix and Flip Network’ General Counsel agrees in writing to have such subject to arbitration.
- If either of us wants to arbitrate a Dispute, we agree to send written notice to the other providing a description of the Dispute and the proposed resolution. We will send notice to you based on the contact information you have provided us and notice to us must be sent to: National Fix and Flip Network, INC., ATTN: Legal Department, 500 W. Silver Spring Drive Suite K-200, Glendale, WI 53217. We agree to make attempts to resolve the Dispute. If the parties cannot resolve the Dispute within forty-five (45) days of receipt of the notice to arbitrate, then either of us may submit the Dispute to formal arbitration.
- The FAA applies to this Agreement and arbitration provision. We each agree the FAA’s provisions, not state law, govern all questions of whether a Dispute is subject to arbitration.
- ”) or any other mutually agreeable arbitration administration service. You can obtain procedures, rules, and fee information from the AAA at 1-800-778-7879 or www.adr.org. and from JAMS at (949) 224-1810 or http://www.jamsadr.com. If applicable law requires National Fix and Flip Network to pay a greater portion of the arbitration fees then provided under the applicable arbitration service’s rules in order for the arbitration provision to be enforceable, National Fix and Flip Network shall have the discretion to elect to pay such fees and proceed to arbitration. Discovery shall be permitted pursuant to the applicable arbitration rules. The arbitrator’s award will consist of a written statement stating the disposition of each claim and will provide a statement of the essential findings and conclusions on which the award is based. The award shall be enforceable by any court with jurisdiction over the parties.
- The arbitration will be conducted by a single neutral arbitrator who is a lawyer or a retired judge. If an in-person hearing is required, the arbitration hearing will be conducted in the metropolitan statistical area in which you are a resident at the time the Dispute is submitted for arbitration. The federal or state law that applies to these Terms & Conditions will also apply during the arbitration.
- We each agree not to pursue arbitration on a classwide basis. We each agree that any arbitration will be solely between you and us (not brought on behalf of or together with another individual’s claim). If for any reason any court or arbitrator holds that this restriction is unconscionable or unenforceable, then our agreement to arbitrate doesn’t apply and the Dispute must be brought in court. The provisions of this Section will not apply to any legal action taken by National Fix and Flip Network to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Website, any Website Content, your User Content and/or National Fix and Flip Network’ intellectual property rights.
- Except where prohibited or limited by applicable law, the prevailing party(ies) in the arbitration will be entitled to recover its costs and expenses, including reasonable attorneys’ fees and experts’ fees, which are incurred in connection with the arbitration.
- Notwithstanding the foregoing, either of us may bring qualifying claims in small claims court.
16. NO CLASS ACTIONS
TO THE EXTENT ALLOWED BY LAW, EACH OF YOU AND NATIONAL FIX AND FLIP NETWORK WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.
17. NO TRIAL BY JURY
TO THE EXTENT ALLOWED BY LAW, EACH OF YOU AND NATIONAL FIX AND FLIP NETWORK WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.
18. AMENDMENT; ADDITIONAL TERMS
- Updated Terms or Additional Terms will be effective immediately upon notice, either by posting on the Website so that they are accessible via a link on the homepage or by notification by e-mail or conventional mail. It is your responsibility to review the Terms & Conditions and the Website from time to time for any Updated Terms or Additional Terms. Your access and use of the Website after we have posted the Updated Terms (or engaged in such other conduct as we may reasonably specify) or applicable Additional Terms will signify your assent to and acceptance of the same, which will be effective as of the time of posting, or such later date as may be specified therein, and will apply to your use of the Website from that point forward. If you object to any Updated Terms or to any Additional Terms, you may terminate your Membership as provided in Section 12(B) herein or, if you do not have an Membership, your only recourse is to immediately discontinue use of the Website.
19. TERRITORIAL RESTRICTIONS
Software related to or made available by the Website and/or Website Content may be subject to United States export controls. Thus, no software from the Website and/or Website Content may be downloaded, exported or re-exported (a) into (or to a national or resident of) Cuba, North Korea, Iran, Syria or any other country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading any software related to the Website and/or Website Content, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list. The parties specifically disclaim application of the Convention on Contracts for the International Sale of Goods.
- Any delay or failure on the part of us to exercise or enforce any rights under these Terms & Conditions to which we may be entitled shall not, in any event, be construed as a waiver of the right and privilege to do so at any subsequent time. National Fix and Flip Network has the right to determine your compliance with these Terms & Conditions in our sole discretion. You irrevocably agree that you waive any and all rights to injunctive or other equitable relief. The section headings used herein are for convenience only and shall not be given any legal import. If any provision of these Terms & Conditions is held to be unlawful, void, or for any reason invalid or unenforceable, then that provision will be deemed severable from these Terms & Conditions and the invalidity of such provision shall not affect the validity of the remaining provisions of the Terms & Conditions, which shall remain in full force and effect.
- You may not assign these Terms & Conditions or assign any rights or delegate any obligations hereunder, in whole or in part, without our prior written consent. Any such purported assignment or delegation by you without the appropriate prior written consent will be null and void and of no force and effect. National Fix and Flip Network may assign these Terms & Conditions or any rights hereunder without your consent and without notice.