Effective: September 8th, 2021
This Terms of Service Agreement (the “Agreement”) governs the access and use of: (a) the Awning website located at www.awning.com (the “Site”), (b) the Awning proprietary software platform (the “Platform”) that assists prospective buyers to perform market analysis, identify, and purchase real estate investment properties listed through the Awning marketplace via the Platform (such properties, “Property” or “Properties”) and the marketplace, (the “Marketplace”), and (c) any related services, content, and/or materials provided and/or made available by Awning through or in connection with the Site and/or Platform (the “Services”). The “Awning Service” as used through this Agreement means, collectively, the Site, Platform, Marketplace, and Services.
IMPORTANT -- PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS GOVERNING ACCESS AND USE OF THE AWNING SERVICE. THIS AGREEMENT ALSO CONTAINS AN AGREEMENT TO ARBITRATE WHICH WILL REQUIRE YOU TO SUBMIT CLAIMS AGAINST AWNING TO BINDING AND FINAL ARBITRATION AND A WAIVER OF YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS AS SET FORTH IN, AND SUBJECT TO, SECTION 17.
BY CREATING AN ACCOUNT FOR SERVICES, AND/OR USING OR ACCESSING THE AWNING SERVICE (OR ANY PART THEREOF) IN ANY MANNER, INCLUDING, BUT NOT LIMITED TO, ACCESSING OR USING THE PLATFORM:
(1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW);
IF YOU ARE REGISTERING AN ACCOUNT FOR, AND/OR OTHERWISE ACCESSING OR USING, THE AWNING SERVICE, ON BEHALF OF ANY OTHER PERSON OR ENTITY (E.G., YOUR EMPLOYER, CORPORATION OR TRUST), YOU REPRESENT THAT YOU HAVE FULL LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH OTHER PERSON OR ENTITY (IN WHICH CASE, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH OTHER PERSON OR ENTITY);
YOU REPRESENT THAT YOU MEET THE ELIGIBILITY REQUIREMENT SET FORTH IN SECTION 1 BELOW; AND
YOU AGREE THAT YOU ARE ENTERING INTO THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW) WITH AWNING, INC., A DELAWARE CORPORATION (HEREINAFTER, “AWNING”).
IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR YOU DO NOT HAVE THE REQUISITE AUTHORITY OR MEET THE ELIGIBILITY REQUIREMENTS AS SET FORTH ABOVE, DO NOT CREATE AN ACCOUNT OR ACCESS OR USE THE AWNING SERVICE (OR ANY PART THEREOF).
You must be at least 18 years old or the age of majority in your jurisdiction in order to access and use the Awning Service, and you hereby affirm, represent, and warrant that you are (a) at least 18 years old or the age of majority in your jurisdiction, or are an authorized agent representing a person or an entity that is capable of forming a legally binding agreement in your jurisdiction and (b) fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement.
The use of certain services or materials available through or for use with the Awning Service, shall be subject to any posted rules applicable to such services or materials that may contain terms and conditions or other operating rules, policies, and procedures in addition to those in this Agreement (“Additional Terms”). All such Additional Terms are hereby incorporated by reference into this Agreement. In the event of any conflict with this Agreement and the Additional Terms, the Additional Terms shall control solely with respect to the subject matter covered by such Additional Terms.
Awning reserves the right to update or modify this Agreement at any time. The revised Agreement will be posted on the Site located at [link]. All updates and modifications to this Agreement will be effective from the time they are posted on the Site (except as otherwise stated in this Section 2.2). If Awning makes any material changes to this Agreement, Awning will notify you of these changes by sending a notification to the email address Awning has on file for you, or, if Awning does not have an email address on file, by posting a notice of the changes on the Site and through the user interface of the Platform. It is your responsibility to regularly visit and review this Agreement. If you do not agree to any updates or modifications to this Agreement, you must cease all access and use of the Awning Service. Your use of the Awning Service after the posting of an updated Agreement, or, in the event of material changes, ten (10) days following the date Awning first notified you of such material changes through email or the posting of a notice of such changes on the Site or through the user interface of the Platform, signifies your acknowledgment and agreement to be bound by the revised Agreement.
Any personally identifiable information provided or collected through or in connection with your use of the Awning Service shall only be used in accordance with this Agreement and the Awning Privacy Policy located at awning.com/privacy-policy.
Subject to the licenses you grant Awning in this Agreement, as between Awning and you, you will retain ownership of any messages, photos, video, audio, images, content, materials, data, and/or information that you post, submit, transmit, and/or upload, or otherwise provide Awning, in connection with the use of the Awning Service (collectively, “User Materials”). You grant to Awning a worldwide, irrevocable, perpetual, royalty free, fully-paid non-exclusive, sublicensable, and transferable license to use and process User Materials as reasonably necessary for Awning to provide you the Awning Service in accordance with this Agreement. You acknowledge and agree that as between you and Awning, you are the data controller and/or covered business and Awning is the data processor and/or service provider as such terms are defined pursuant to applicable data protection laws. For the avoidance of doubt, User Materials do not include any Analytics or Property Insights (as each term is defined in Section 9.2 below) or Projections (as defined in Section 12 below).
You understand that the Awning Service may contain message boards, chat rooms, company profiles, forums, bulletin boards, and/or other interactive features that allow users to post, submit, publish, display and/or transmit User Materials to, and otherwise interact with, Awning and/or other users of the Awning Service. You agree that any User Materials that you post to public forums, message boards, or other communication tools through the Awning Service are non-confidential and non-proprietary. You represent and warrant that, with respect to any User Materials (including, without limitation, any personally identifiable information), transmitted, hosted, stored or processed, or otherwise provided by you to Awning in connection with your use of the Awning Service: (a) you own or control all rights in and to the User Materials, and have the necessary rights to grant the licenses granted to Awning in Section 3.2 above; (b) all User Materials do and will comply with this Agreement and all applicable laws, and (c) you have obtained all permissions and/or approvals as may be necessary or required to transmit User Materials, or any personally identifiable information therein, in connection with the use of the Awning Service.
To access and use certain features of the Awning Service you may need to create and register an account (“Account”). You agree to provide and maintain up to date Account information that is true, accurate, current, up to date, and complete. In addition, you agree that you will not: (a) create an Account using a false identity or fictitious name or information; and/or (b) create an Account or use the Awning Service if you have been previously removed or banned by Awning from use of the Awning Service, or any part thereof. You understand and agree that you are solely responsible for maintaining the confidentiality of and protecting your password for the Account. You are solely responsible for any activity originating from the Account, regardless of whether such activity was authorized by you. You agree to notify Awning immediately of any unauthorized use of the Account. Awning reserves the right to limit the number of Accounts that can be created from a computer or mobile device and the number of computer or mobile devices that can access an individual Account.
Subject to the terms of this Agreement, Awning hereby grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable, limited right to: (a) access and use the Site and Platform, over the internet; and (b) access and view the Awning Content (defined in Section 9.1), made available through the Platform, in each case, solely for your internal business purposes and in accordance with the terms of this Agreement.
You agree that you will not and will not permit any third party to: (a) modify, adapt, translate or create derivative works based on the Awning Content, Awning Service (or any part thereof), or any related documentation; (b) reverse engineer, decompile, disassemble, or otherwise derive, determine, or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure, or organization) of the Platform; (c) distribute, license, sublicense, assign, transfer, or otherwise make the Awning Content, Awning Service (or any part thereof), or any related documentation available to any third party; (d) in any way remove, alter, or obscure any proprietary rights notices (including copyright notices) of Awning or its suppliers on or within the Awning Content, Awning Service, and/or any related documentation; (e) interfere with or disrupt the integrity or performance of the Awning Service (or any part therefor), or any system, or network on which the Awning Service operates; (f) cause, or aid in the causing of, the destruction, manipulation, removal, disabling, or impairment of any portion of the Awning Service; (g) attempt to gain unauthorized access to the Awning Service (or any part thereof), or related systems or networks; (h) frame, or utilize framing techniques to enclose, all or any part of the Awning Service; (i) use any meta tags, "hidden text", robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license, or download the Platform, any Awning Content, or the personal information of any third party without Awning’s prior written permission or authorization; (j) use the Awning Content and/or Awning Service (or any part thereof) to hack, spam, phish, or harass Awning or Awning’s users; (k) use the Awning Service to store or transmit any malicious or unsolicited code or software, or store, transmit, or upload any material and/or content that is false, inaccurate, illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, infringing, libelous, tortious, or otherwise objectionable in Awning’s reasonable opinion; or to store, transmit, or upload any material or content that violates any third party’s intellectual property rights and/or privacy rights; (l) impersonate any person or entity, use a fictitious name, or falsely state or otherwise misrepresent your affiliation with any person or entity; (m) access or use the Awning Content and/or Awning Service to design or build a product or service that is competitive with the Awning Service (or any part thereof); or (n) violate any applicable local, state, national, or international law (including, without limitation, U.S. and foreign export laws concerning the transmission of technical data and other regulated materials) in your use of the Awning Content and/or Awning Service.
(A) Electronic Communications. By using the Awning Service, you consent to receiving electronic communications from Awning. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to your use of the Awning Service. These electronic communications are part of your relationship with Awning and you receive them as part of your access and use of the Awning Service. You agree that any notices, agreements, disclosures, or other communications that Awning sends you electronically will satisfy any legal communication requirements, including that such communications be in writing.
(B)Telephone Communications. You expressly consent to be contacted by and receive SMS/MMS text messages and telephone calls (including voicemail messages if you cannot be reached) from Awning, and/or its agents, representatives, affiliates, or anyone calling on Awning’s behalf, including, without limitation, your designated Awning advisor, if applicable (all of the foregoing, collectively, “Awning Representatives”) at the telephone number(s) you have provided to Awning in connection with your use of the Awning Service. You certify, warrant, and represent that (i) the telephone and/or mobile numbers that you have provided to Awning are your numbers and not someone else's, and (ii) you are permitted to receive calls at each of those telephone and/or mobile numbers. You agree to immediately notify Awning in writing whenever you stop using a particular telephone number. You acknowledge that, for purposes of the Telephone Consumer Protection Act, you and Awning have a prior established business relationship and that the consent in this Section 4.4(b) constitutes your express written consent to the communications described above. You acknowledge and agree that communications via telephone and text messaging may make use of the data network operated by your telephone, internet, and/or wireless service provider to both send and receive data, and that you, and not Awning, are solely responsible for any fees or charges incurred in connection with your receipt of calls and/or text messages from any Awning Representative and/or any communications between you and any Awning Representative via telephone and/or text message, including, without limitation, any telephone and/or mobile phone provider charges for SMS, text, or data usage or services.
(C) Recording and Monitoring. You consent to the recording and monitoring, for quality assurance, training, risk management, and/or collection purposes, of any call that you place with any Awning Representative or that any Awning Representative places with you.
The Arrive Services may contain links to, or otherwise allow you to integrate with, connect to, and/or use certain third party products, services, or software (including, without limitation, data products and services), which are subject to separate terms and conditions (collectively, “Third Party Integrations”). If you decide to access or use such Third Party Integrations, your use of Third Party Integrations is governed solely by the terms and conditions of such Third Party Integrations, and Awning does not endorse, is not responsible for, and makes no representations as to such Third Party Integrations, their content, or the manner in which they handle your data. If you do not agree to the applicable terms and conditions of the Third Party Integrations, you may not access or use the Third Party Integrations. Awning is not liable for any damage or loss caused, or alleged to be caused, by or in connection with your access or use of any such Third Party Integrations, or your reliance on the privacy practices or other policies of such Third Party Integrations. AWNING DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY PRODUCTS OR SERVICES ADVERTISED OR OFFERED THROUGH, OR IN CONNECTION WITH, THE SERVICE (INCLUDING, BUT NOT LIMITED TO, THIRD-PARTY INTEGRATIONS), OR ANY HYPERLINKED WEBSITE OR AWNING SERVICE, AND AWNING WILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN YOU AND THE THIRD-PARTY PROVIDERS OF SUCH THIRD PARTY PRODUCTS OR SERVICES AND/OR THIRD PARTY INTEGRATIONS.
Awning reserves the rights to either temporarily or permanently modify, suspend, or discontinue the Awning Service (or any part thereof) with or without notice. You agree that Awning will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Awning Service (or any part thereof).
Awning does not conduct any verification of other users of the Awning Services, including, without limitation, any Buyers (defined below) or sellers of the Properties available through the Awning Service (hereinafter, “Sellers”). Awning does not represent, warrant, or guarantee the identity of any of its users and whether any of its users are trustworthy. You are solely responsible for making your own decisions about the suitability of others with whom you contact, communicate, transact, or interact in connection with your use of the Awning Service.
You understand and agree that your interactions and dealings with other users of the Awning Service, including, without limitation the purchase and/or sale of a Property, are solely between you and such other user and/or the Seller of the Property (as applicable), and that any problems or disputes between you and another user and/or Seller with respect to any such interactions, dealings, and/or communications must be resolved solely between you and the applicable user and/or Seller. Awning is not responsible for any loss, harm, or damage of any sort incurred as a result of any such interactions or dealings, and Awning has no obligation to become involved in any resulting dispute. YOU, ON BEHALF OF YOURSELF AND YOUR SUCCESSORS, ASSIGNS, REPRESENTATIVES, EMPLOYEES, AGENTS, CLIENTS, AND ANYONE ELSE CLAIMING BY OR THROUGH YOU, HEREBY EXPRESSLY RELEASE, DISCHARGE, AND HOLD AWNING AND ITS EMPLOYEES, AGENTS, REPRESENTATIVES, SHAREHOLDERS, OFFICERS, DIRECTORS, AFFILIATES, CONTRACTORS, SUCCESSORS, OR ASSIGNEES (THE “RELEASED PARTIES”) HARMLESS FROM, AND WAIVE ANY AND ALL CLAIMS (INCLUDING BUT NOT LIMITED TO CLAIMS FOR PROPERTY DAMAGE, PERSONAL INJURY, OR DEATH), DEMANDS, AND DAMAGES OF EVERY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATED TO SUCH DISPUTES.
IF YOU ARE A CALIFORNIA RESIDENT, YOU SHALL AND HEREBY DO WAIVE, ON BEHALF OF YOURSELF AND YOUR SUCCESSORS, ASSIGNS, REPRESENTATIVES, EMPLOYEES, AGENTS, CLIENTS, AND ANYONE ELSE CLAIMING BY OR THROUGH YOU, ANY AND ALL CLAIMS OR DEFENSES BASED ON OR RELATED TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
The terms and conditions set forth in this Section 6 shall apply to you if you are accessing and/or using the Awning Service as a buyer (or prospective buyer) of a Property (a “Buyer”).
By accessing and/or using the Awning Service (or any part thereof) to investigate, consider, and/or purchase any Property, Buyer agrees to enter into an exclusive broker agreement with Awning (an "AwningBroker Agreement") which, upon mutual written agreement will be binding upon Buyer and Awning and govern the terms of the real estate agent/broker relationship between, Buyer and Awning. The Awning Broker Agreement is a separate agreement between Buyer and Awning, which is in addition to and independent of this Agreement. In the event of any conflict or inconsistency between the terms and conditions of the Awning Broker Agreement and this Agreement, the Awning Broker Agreement will control with respect to such conflict or inconsistency.
Buyer acknowledges and agrees that Buyer’s communication with Awning through, or Buyer’s use of, the Awning Service alone in the absence of an Awning Broker Agreement, does not and shall not create any agency relationship between Buyer and Awning. An agency relationship between Buyer and Awning may only be established through an Awning Broker Agreement signed by Buyer and Awning. Buyer acknowledges and agrees that if Awning represents both the Buyer and the applicable Seller in a transaction with respect to a Property, all parties to the transaction shall receive a separate dual agency disclosure.
Buyer represents and warrants that Buyer will not contact, directly or indirectly, any Seller of any Property with which Buyer has been matched or made aware through Buyer’s access and/or use of the Awning Service, if such contact relates in any way to any purchase, lease or other transaction concerning or affecting the Property.
Buyer shall be solely responsible for performing Buyers' obligations under any agreement into which Buyer enters with the applicable Seller for the purchase or other transaction concerning a Property (a “Purchase Agreement”). Buyer further acknowledges and agrees that the Purchase Agreement shall be solely between Buyer and the applicable Seller and, except where Awning is the Seller and subject to the following sentence, Awning shall not be a party to the Purchase Agreement, or have any responsibility or liability thereunder. Notwithstanding the foregoing, if Awning is the Seller of any Property available through the Awning Service, Buyer acknowledges and agrees that any Purchase Agreement entered into in connection with such Property is a separate agreement between Buyer and Awning, which is in addition to and independent of this Agreement. In the event of any conflict or inconsistency between the terms and conditions of the Purchase Agreement with Awning and this Agreement, the Purchase Agreement will control with respect to such conflict or inconsistency.
(a) Awning may from time to time recommend, feature or refer Buyer to certain third-party property managers or management companies which are identified in the listing for a specific Property (each, a "Preferred Property Manager") for the management of the Property Buyer purchases. If Buyer decides to engage a Preferred Property Manager, Buyer acknowledges and agrees that the engagement and any agreement(s) entered into between Buyer and a Preferred Property Manager with respect to the engagement, shall be solely between Buyer and the applicable Preferred Property Manager, and, Awning shall not be a party to, or have any responsibility or liability for, such engagement and/or the performance of the Preferred Property Manager of its obligations under any such agreement(s).
(b) If Buyer engages a Preferred Property Manager, Buyer hereby consents and authorizes such Preferred Property Manager to provide Awning with all reports, materials, and information requested by Awning relating to Buyer’s Property for which the Preferred Property Manager is engaged, including monthly financial information and portfolio level data, and Buyer further consents to Awning’s use of such information and data to evaluate asset performance for Properties purchased via the Awning Service and to combine it with other data in an aggregate form maintained or used by Awning as set forth in this Agreement and the Awning Privacy Policy.
(c) NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, AWNING DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PREFERRED PROPERTY MANAGER AND/OR THE PERFORMANCE OF ANY SERVICES BY SUCH PREFERRED PROPERTY MANAGERS, AND AWNING WILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR, ANY TRANSACTION, ENGAGEMENT, AND/OR RELATIONSHIP BETWEEN BUYER AND ANY PREFERRED PROPERTY MANAGER. BUYER’S USE OF AND/OR ENGAGEMENT WITH ANY PREFERRED PROPERTY MANAGER SHALL BE AT BUYER’S SOLE AND ENTIRE RISK.
By accessing and/or using the Awning Service as a buyer, Buyer understands, acknowledges and agrees that: (a) investing in real estate is risky and unpredictable; (b) property values often rise and fall based on market conditions; (c) the Property or Properties Buyer purchases might not be able to be rented; (d) the value of any Property Buyer purchases may decline after Buyer’s purchase; (e) Buyer’s investment and/or purchase of any Property is at Buyer’s sole risk; and (f) Awning is not an investment or tax advisor and Buyer must make its own investment and tax decisions either alone or with the assistance of professional investment and tax advisors.
With respect to each Property which Buyer desires to purchase, Buyer represents and warrants that Buyer has reviewed and understands the Property Information and/or Projections may not be accurate or complete, and Buyer’s use and/or reliance on such Property Information and/or Projections is at Buyer’s sole and entire risk. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER ACKNOWLEDGES THAT WITH RESPECT TO THE PROJECTIONS NO ASSURANCE CAN BE GIVEN REGARDING THE ACCURACY OR APPROPRIATENESS OF THE PROJECTIONS, OR THE METHODOLOGIES USED TO PROVIDE SUCH PROJECTIONS, AND THE PROJECTIONS ARE FORWARD- LOOKING STATEMENTS AND INVOLVE RISKS AND UNCERTAINTIES THAT MAY CAUSE ACTUAL RESULTS TO BE MATERIALLY DIFFERENT FROM THE PROJECTIONS. ACCORDINGLY, BUYER SHOULD RELY AND DOES RELY ON PROJECTIONS AT ITS OWN RISK.
(a) For each Property Buyer purchases through the Marketplace, Buyer shall pay Awning the marketplace fee in effect at the time Buyer first selects a Property for purchase through the Awning Service (the “MarketplaceFee”). The Marketplace Fee is exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, property, value-added, sales, use, or withholding taxes, assessable by any jurisdiction, and you shall be and are responsible for payment of all such taxes (other than taxes based on Awning’s income), and any related penalties and interest, arising from the payment of the Marketplace Fee, the delivery of the Awning Service, or performance of any services by Awning hereunder.
(b) The Marketplace Fee shall be due and payable by Buyer to Awning as follows: (i) upon execution of the Purchase Agreement for a MLS Property, and (ii) upon Buyer’s submission of its intent to purchase the applicable Property through the Platform, with respect to a non-MLS Property. Buyer expressly agrees that Awning may bill and charge Buyer for the applicable Marketplace Fee(s) in accordance with the payment terms set forth in Section 7.1 below.
(c) If the Property has no contingencies, the Marketplace Fee paid by Buyer is final and non-refundable. If the Property is subject to contingencies, and Buyer cancels the transaction because: (i) a contingency is not satisfied by the Seller prior to closing or, (ii) the Seller is otherwise unable to fulfill Seller's obligations under the Purchase Agreement or other obligation required by applicable law, the Marketplace Fee will be refunded to Buyer.
(a) Definitions. For purposes of this Section 6.9, the following terms are defined as follows:
“Turn Key Property” means an Awning Property that (1) has been inspected by an inspection firm approved by Awning, (2) has passed Awning’s inspection and certification process within 4 months prior to the date the Awning Property was purchased; and (3) is expressly identified as a “turn key” Awning Property in the Marketplace
“Buyer" means the person or entity who signed the Purchase Agreement for the Turn Key Property, or the person or entity named on the title to the Turn Key Property by the original buyer immediately after the closing of the purchase of the Turn Key Property.
“Listing Period” means 180 days from the date Awning receives Buyer’s notice of dissatisfaction in accordance with Section 6.9(b) below.
“Material Adverse Change" means with respect to a Turn Key Property, any change, event, circumstance, development, or effect, including acts of god or terrorists and general economic or business conditions impacting the real estate industry where the Turn Key Property is located, (each a "Change") that individually or taken together with all other Changes, is reasonably likely to be, or becomes materially adverse to the condition (financial or otherwise), assets, or liabilities of the Turn Key Property.
“Purchase Price” means the original purchase price paid by Buyer for a Turn Key Property as set forth in the applicable Purchase Agreement. The Purchase Price does not include the Marketplace Fee.
(b) Purchase Guarantee. Subject to the terms of this Section 6.9, Awning guarantees that Buyer will be satisfied with the Turn Key Property purchased by Buyer (the “Purchase Guarantee”). If for any reason Buyer is unsatisfied with a Turn Key Property purchased by Buyer, and Buyer provides Awning written notice reasonably detailing Buyer’s dissatisfaction with such Turn Key Property within 30 days following the closing date of Buyer’s purchase of such Turn Key Property (as set forth in the applicable Purchase Agreement), Awning will relist the Turn Key Property for sale in the Marketplace and through any other channels determined by Awning in its sole discretion (the “Relisted Property”). If the Relisted Property is sold within the Listing Period, Awning will refund the Purchase Price within 45 days following Awning’s receipt of the purchase price from the subsequent buyer of the Relisted Property, even if the resale price is lower than the Purchase Price. If the Relisted Property does not sell within the Listing Period, Awning may, at its option and sole discretion, offer to purchase the Relisted Property from Buyer for an amount up to ninety percent (90%) of the Purchase Price.
(c) Buyer Obligations. Buyer acknowledges and agrees that Buyer, and not Awning, shall be responsible for all closing costs associated with the resale of the Relisted Property, whether to a third party or to Awning. The Purchase Guarantee is conditioned on Buyer’s performance of the following obligations: (a) there must be no material change to the condition of the Awning Property since the closing of Buyer’s purchase of the Turn Key Property, (b) there must have been no Material Adverse Changes since the closing of Buyer’s purchase of the Turn Key Property, and (c) Buyer must, at all times during the Listing Period, maintain the Turn Key Property in good working order and condition and pay all applicable property expenses as they become due, including, without limitation, typical costs of ownership, which may include insurance, upkeep, and property management fees.
(d) Limitations and Exclusions. Only one (1) Turn Key Property per Buyer is covered under the Purchase Guarantee at any given time. This means that if Buyer is dissatisfied with more than one (1) Turn Key Property purchased by Buyer at any given time, Buyer may only elect to receive the Purchase Guarantee for one (1) of such Turn Key Properties purchased. The Purchase Guarantee extends only to the Buyer (as defined in Section 6.9(a) above). The Purchase Guarantee is null and void if: (i) Buyer at any time fails to meet the conditions set forth in Section 6.9(c) above; and/or (ii) Buyer is in breach of the Purchase Agreement and/or any Awning Broker Agreement entered into with respect to the Turn Key Property.
(e) Sole and Exclusive Remedy. This Section 6.9 provides Buyer’s sole and exclusive remedy, and Awning’s sole and exclusive obligation and liability, for any breach of the Purchase Guarantee.
(a) Definitions. For purposes of this Section 6.10, the following terms are defined as follows:
“Buyer" means the person or entity who signed the Purchase Agreement for the Eligible Property or the person or entity named on the title to the Eligible Property by the original buyer immediately after the closing of the purchase of the Eligible Property.
“Eligible Property” means a Property purchased by Buyer that (1) is vacant at the time of closing for the Property, (2) is in rent ready condition as set forth in Section 6.10(c) below within 90 days from the close of escrow for the applicable Property, and (3) Buyer agrees to rent at a rate equal to or greater than 90% of the Estimated Market Rent Rate.
“Estimated Market Rent Rate” means the estimated market rent rate determined by Awning in its sole discretion, and which may include the use of various data sources and Awning’s analysis.
“Guarantee Period” means the period commencing 45 days following the date the Property is deemed an Eligible Property and terminating on the earlier to occur of (1) the date a lease is signed for the Eligible Property, or (2) one year after becoming effective.
“Rent Ready Condition” means the Property (1) can be rented at the Estimated Market Rent Rate, and (2) is in such a condition that a tenant could immediately move into the Property. The decision about whether a property is in rent-ready condition is made by the Preferred Property Manager at its sole discretion.
(b) Lease Up Guarantee. Subject to the terms of this Section 6.10, Awning guarantees that Buyer will secure a signed lease from a tenant for an Eligible Property, under commercially reasonable terms, within 45 days from the date such Property is deemed an Eligible Property (the “Lease Up Guarantee”). If Buyer is unable to secure a lease agreement for an Eligible Property within such 45-day period, Awning will pay Buyer an amount equal to 75% of the Estimated Market Rental Rate for each month during the Guarantee Period (“Lease Payments”). At the end of each month during the Guarantee Period, Awning will calculate any Lease Payments due and payable for the previous month. Any Lease Payments due to Buyer for a given month will be paid on the 15th day of the following month.
(c) Buyer Obligations. The Lease-Up Guarantee is conditioned on the following: (i) Buyer must engage and retain a Preferred Property Manager to manage the Property for the duration of the Guarantee Period, (ii) the Property must be in Rent Ready Condition, and (iii) Buyer must accept qualified applicants (in accordance with applicable law) that pass the screening guidelines of the Preferred Property Manager as long as the rental rate is equal to or greater than 90% of the applicable Estimated Market Rent Rate. If a Property is not in rent-ready condition at the time of purchase, the Lease Up Guarantee will only be available if Buyer (at its expense) brings the Property to rent-ready condition within 90 days after Buyer’s purchase of such Property.
(d) Limitations and Exclusions. The Lease Up Guarantee extends only to the Buyer (as defined in Section 6.10(a) above). The Lease -Up Guarantee is null and void if: (a) Buyer at any time fails to meet the conditions set forth in Section 6.10(c) above; and/or (b) Buyer is in breach of any agreement entered into with the applicable Preferred Property Manager for such Property.
(e) Sole and Exclusive Remedy. This Section 6.10 provides Buyer’s sole and exclusive remedy, and Awning’s sole and exclusive obligation and liability, for any breach of the Lease -Up Guarantee.
Subject to the procedures set forth in Section 11.2 below, Buyer shall indemnify, defend, and hold the Awning Indemnified Parties (defined below) harmless from and against any and all liability, losses, claims, expenses (including reasonable attorneys’ fees), demands, or damages of any kind, arising out of or related to (a) Buyer’s breach of the Awning Broker Agreement, any Purchase Agreement, and/or any agreement with a Preferred Property Manager, and (b) any acts or omissions on the part of Buyer in connection with the purchase of a Property.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT SHALL AWNING BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL, OR INCIDENTAL OR OTHER DAMAGES RESULTING FROM, ARISING OUT OF, OR IN CONNECTION WITH BUYER’S PURCHASE OF A PROPERTY THROUGH THE AWNING SERVICE, EVEN IF AWNING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) IN NO EVENT SHALL AWNING’S TOTAL CUMULATIVE LIABILITY TO BUYER OR ANY THIRD PARTY ARISING FROM OR RELATED TO BUYER’S PURCHASE OF PROPERTY THROUGH THE AWNING SERVICE, EXCEED THE MARKETPLACE FEE PAID OR PAYABLE BY BUYER TO AWNING FOR THE APPLICABLE PROPERTY GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATION SHALL NOT APPLY TO AWNING’S OBLIGATIONS PURSUANT TO THE AWNING PROPERTY GUARANTEES.
You may be required to pay fees to access certain features of the Awning Service. If you are required to pay such fees, you acknowledge and agree that all such fees are due and payable in advance or as otherwise set forth in an order form mutually agreed upon and entered into between you and Awning to access to the Awning Service. You agree to pay the fees, if any, for the access and use of the Awning Service. You expressly agree that Awning is permitted to bill you the applicable fees, any applicable tax, and any other charges you may incur with Awning in connection with your use of the Awning Service, and you hereby authorize Awning to charge the fees to the credit card, or other payment method, you provide at the time the Awning Service for which fees are due is purchased, in accordance with the billing terms in effect at the time a fee or charge is due and payable. If payment is not received or cannot be charged to you for any reason in advance, Awning reserves the right to suspend or terminate your access to the Awning Service, and/or terminate this Agreement. All fees are in U.S. Dollars and are non-refundable and non-cancellable.
The fees are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use, or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”), and you are and shall be responsible for payment of all such taxes (other than taxes based on Awning’s income), and any related penalties and interest, arising from the payment of the fees, the delivery of the Awning Service, or performance of any services by Awning hereunder.
This Agreement will remain in effect and continue to apply for as long as you access and/or use the Awning Service (or any part hereof), or until terminated in accordance with this Agreement (whichever is sooner).
You may terminate this Agreement at any time by providing Awning written notice of such termination to the email contact information provided below; subject line: “Notice of Termination”, and ceasing all access and use of the Awning Service. At any time, Awning may (a) suspend or terminate your right to access or use the Awning Service (or any part thereof), or (b) terminate this Agreement with respect to you if Awning, in good faith, believes that you have used the Awning Service (or any part thereof) in violation of this Agreement, including any incorporated guidelines, terms, or rules. In addition, if at Awning’s reasonable determination, you use the Awning Service, Awning Content or any other material or services provided by Awning to you in a manner that violates any applicable law or creates an excessive burden or potential adverse impact on Awning’s systems, Awning may, without liability to Awning, and in addition to any of its other rights or remedies, immediately suspend or terminate your access to the Awning Service.
Upon termination of this Agreement for any reason, all outstanding fees become immediately due and payable, and your right to access and use the Awning Service and Awning Content will automatically terminate. The following Sections will survive any termination or expiration of this Agreement: 2, 3, 4.1, 4.3, 4.4, 4.5, 5, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.7, 6.11, 6.12, 7, 8.3 and 9 through 18.
Awning and/or its licensors shall retain all rights, title, interest, in and to and ownership of (a) any and all text, graphics, images, music, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided, or otherwise made available through or in connection with the Awning Service, including, without limitation, Property Insights (defined in Section 9.2 below), and Projections and Property Information (defined in Section 12 below) (all of the foregoing, collectively, the “AwningContent”), but excluding your User Materials, (b) the Awning Service, and (c) any improvements, updates, modifications and/or enhancement to the Awning Service and/or Awning Content. All Awning trademarks are strictly owned by Awning, and nothing in this Agreement will be construed to transfer ownership rights or grant any permission, license, or other rights to any Awning trademark without written authorization from Awning. The trademarks, service marks, logos, and/or names of individuals, companies, and/or products mentioned through the Awning Service or within any Awning Content are the trademarks of their respective owners. All rights that are not explicitly granted in this Agreement are reserved by Awning and its licensors, and no implied license thereto is granted by Awning. The Awning Service (and its underlying technology) and Awning Content, are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries.
You acknowledge and agree that Awning may collect, analyze, and use anonymized information, metrics, analytics, and data in connection with your use of the Awning Service and/or derived from User Materials for its own business purposes, such as improving, testing, and maintaining the Awning Services, and for developing additional products and services (collectively, “Analytics”). You grant to Awning a worldwide, irrevocable, perpetual, royalty free, fully-paid, non-exclusive, sublicensable, and transferable license to collect, analyze and/or use Analytics relating to its delivery of the Services and/or derived from, or related to, the User Materials, including, the generation of Projections, market reports, and insights relating the commercial real estate industry (collectively, “Property Insights”) for internal, external, and public use. Awning shall retain all right, title, and interest in and to Property Insights.
To the extent that you provide or submit to Awning any ideas, suggestions, improvements, and/or other feedback regarding any aspect of the Awning Service and/or Awning Content including, without limitation, the functioning, features, and other characteristics thereof (collectively, “Feedback”), you hereby grant Awning, its subsidiaries, affiliates and partners a worldwide, irrevocable, perpetual, royalty free, fully-paid non-exclusive, sublicensable, and transferable license under all your intellectual property rights in the Feedback to exploit and use the Feedback for any purpose, without compensation or attribution.
If you believe that any Awning Content or any content or materials submitted, posted, or otherwise provided by other users of the Awning Service violates your copyright, trademark, or other intellectual property rights, please contact Awning through the contact information provided in the link below.
You shall indemnify, defend, and hold Awning and its affiliates and subsidiaries, and their respective officers, members, managers, directors, shareholders, employees, contractors, agents, successors, and assigns (collectively, “Awning Indemnified Parties”), harmless from and against any and all liability, losses, claims, expenses (including reasonable attorneys’ fees), demands, or damages of any kind, arising out of or related to: (a) your breach of this Agreement, including, without limitation, any Additional Terms that are applicable to you; (b) your breach of any license or other agreement applicable to any Third Party Integrations; (c) any disputes between you and another user; (d) any allegations that your User Materials and/or activities in connection with, or use of, the Awning Service (or any part thereof), violate any applicable laws, rules, or regulations (including, without limitation, any privacy law, rule, or regulation), or infringe or misappropriate the intellectual property rights of any third party; (e) your use of the Awning Service; and/or (f) your gross negligence, fraudulent misrepresentation, or willful misconduct.
Awning shall promptly notify you in writing of such action covered by the indemnity provisions set out in Section 11.1, give you sole control of the defense thereof, and any related settlement negotiations, and, at your reasonable request and expense, cooperate and assist in such defense. Under no circumstances shall you enter into any settlement that involves an admission of liability, negligence, or other culpability of any Awning Indemnified Party or requires any Awning Indemnified Party to contribute financially or otherwise to the settlement without Awning’s prior written consent. For any such actions Awning and any Awning Indemnified Party may participate and retain its own counsel at its own expense.
EXCEPT FOR THE AWNING PURCHASE AND LEASE UP GUARANTEES DESCRIBED IN SECTIONS 6.9 AND 6.10 ABOVE, THE AWNING SERVICE, AND ANY OTHER MATERIALS OR SERVICES PROVIDED BY AWNING, ARE PROVIDED "AS IS" AND "AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, AWNING AND ITS LICENSORS AND SUPPLIERS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, OR GUARANTEES OF ANY KIND, EXPRESS, STATUTORY, OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, SATISFACTORY PURPOSE, ACCURACY, NON-INFRINGEMENT, TITLE, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
AWNING AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT OR MAKE ANY GUARANTEE THAT THE AWNING SERVICE (OR ANY PART THEREOF), AWNING CONTENT, OR ANY OTHER MATERIALS, CONTENT, OR SERVICES PROVIDED OR MADE AVAILABLE BY AWNING THROUGH OR IN CONNECTION WITH THE AWNING SERVICE: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE COMPATIBLE WITH YOUR NETWORK, COMPUTER OR MOBILE DEVICE, OR ANY THIRD PARTY PRODUCTS OR SERVICES INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY INTEGRATIONS; (C) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (D) WILL BE ACCURATE, TRUTHFUL, COMPLETE OR RELIABLE.
EXCEPT FOR THE AWNING PURCHASE AND LEASE UP GUARANTEES DESCRIBED IN SECTIONS 6.9 AND 6.10 ABOVE, AWNING MAKES NO WARRANTY OR GUARANTEE REGARDING THE QUALITY OF THE PROPERTIES OR THAT THE PROPERTIES WILL MEET BUYER’S REQUIREMENTS.
AWNING MAKES NO WARRANTY AS TO THE IDENTITY, CHARACTER, TRUSTWORTHINESS, OR CONDUCT OF THE USERS OF THE AWNING SERVICE, INCLUDING, WITHOUT LIMITATION, BUYERS AND SELLERS, AND ASSUME NO RESPONSIBILITY FOR A BUYER'S OR SELLER'S COMPLIANCE WITH ANY APPLICABLE LAWS AND REGULATIONS. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH USERS WITH WHOM YOU COMMUNICATE OR INTERACT, AS A RESULT OF YOUR USE OF THE AWNING SERVICE - PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON. AWNING EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY BUYER, SELLER, OR OTHER THIRD PARTY.
ALL INFORMATION AND/OR MATERIALS PROVIDED AND/OR MADE AVAILABLE THROUGH THE AWNING SERVICE REGARDING A PROPERTY, INCLUDING WITHOUT LIMITATION, ANY INFORMATION INCLUDED IN PROPERTY LISTINGS (COLLECTIVELY, “PROPERTY INFORMATION”), ANY FINANCIAL AND/OR INVESTMENT RELATED ESTIMATES, FORECASTS, AND/OR PROJECTIONS FOR SUCH PROPERTY (COLLECTIVELY, “PROJECTIONS”), AND/OR PROPERTY INSIGHTS, IS PROVIDED FOR INFORMATIONAL PURPOSES AND PERSONAL USES ONLY. SUCH INFORMATION IS NOT INTENDED TO BE COMPREHENSIVE AND SHOULD NOT BE SUBSTITUTED FOR INFORMATION AVAILABLE FROM APPROPRIATE LEGAL, FINANCIAL, AND INVESTMENT ADVISORS. AWNING ASSUMES NO LIABILITY WHATSOEVER FOR INACCURACIES, MISSTATEMENTS, OR OMISSIONS RELATED TO ANY PROPERTY INFORMATION, PROJECTIONS, AND/OR PROPERTY INSIGHTS. YOUR USE OF OR RELIANCE UPON ANY PROPERTY INFORMATION, PROJECTIONS, AND/OR PROPERTY INSIGHTS IS ENTIRELY AT YOUR OWN RISK, FOR WHICH AWNING WILL NOT BE LIABLE.
CERTAIN PROPERTY INFORMATION MAY BE SUPPLIED BY ONE OR MORE MULTIPLE LISTING SERVICES (THE “MLS INFORMATION”), AND MAY BE PROVIDED TO THE AWNING SERVICE BY AN INTERNET DATA EXCHANGE. THE MLS INFORMATION IS FOR YOUR PERSONAL, NON-COMMERCIAL USE, AND MAY NTO BE USED FOR ANY PURPOSE OTHER THAN TO IDENTIFY PROSPECTIVE PROPERTIES YOU OR OTHER USERS MAY BE INTERESTED IN PURCHASING. MLS INFORMATION IS DEEMED RELIABLE BUT IS NOT GUARANTEED BY EITHER AWNING OR THE MULTIPLE LISTING SERVICE PROVIDING SUCH INFORMATION. YOU ACKNOWLEDGE THAT ALL INFORMATION SHOULD BE INDEPENDENTLY REVIEWED FOR ACCURACY. YOU ACKNOWLEDGE THAT THE MLS INFORMATION, AND ANY TRADEMARKS AND COPYRIGHTS RELATED THERETO, ARE VALIDLY OWNED BY THEIR RESPECTIVE PROVIDERS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE USE OF THE AWNING SERVICES, AND ANY INTERACTIONS AND/OR TRANSACTIONS WITH OTHER USERS (INCLUDING, WITHOUT LIMITATION, BUYERS AND SELLERS), AND ALL RESULTS OF SUCH USE IS SOLELY AT YOUR OWN RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM AWNING, ANY THIRD PARTY, OR THROUGH THE AWNING SERVICE, SHALL CREATE ANY WARRANTY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT SHALL AWNING BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL, INCIDENTAL, OR OTHER DAMAGES RESULTING FROM, ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT OR THE ACCESS, USE OF, OR INABILITY TO ACCESS OR USE THE AWNING SERVICE (OR ANY PART THEREOF), THE AWNING CONTENT, AND/OR ANY OTHER MATERIALS, OR SERVICES PROVIDED BY AWNING, EVEN IF AWNING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES EXCEPT TO THE EXTENT SUCH DAMAGES ARISE DIRECTLY AND SOLELY FROM WILLFUL MISCONDUCT OR GROSS NEGLIGENCE ON THE PART OF AWNING; AND (B) IN NO EVENT SHALL AWNING’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT OR THE ACCESS, USE OF, OR INABILITY TO ACCESS OR USE THE AWNING SERVICE (OR ANY PART THEREOF), THE AWNING CONTENT, AND/OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY AWNING EXCEED ONE HUNDRED DOLLARS ($100.00). AWNING DISCLAIMS ALL LIABILITY OF ANY KIND RELATING TO, OR ARISING FROM THE USE OF, AWNING’S AFFILIATES, LICENSORS AND SUPPLIERS.
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages with respect to consumers (i.e., a person acquiring goods otherwise than in the course of a business), so the exclusions set forth in this Agreement may not apply to you if you are a consumer. The limitations or exclusions of warranties and liability contained in this Agreement do not affect or prejudice the statutory rights of a consumer. The limitations or exclusions of warranties and remedies contained in this Agreement shall apply to you as a consumer only to the extent such limitations or exclusions and remedies are permitted under the laws of the jurisdiction where you are located.
The warranty disclaimer and limitation of liability set forth in this Agreement are fundamental elements of the basis of the agreement between Awning and you. Awning would not be able to provide the Awning Service on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of Awning’s affiliates, licensors and suppliers.
Information describing the Awning Service is accessible worldwide but this does not mean the Awning Service, or certain portions thereof, are available in your country. Awning may restrict access to the Awning Service, or portions thereof, in certain countries in its sole discretion. It is your responsibility to confirm your use of the Awning Service is legal in your jurisdiction and, if it is not legal in your jurisdiction. The Awning Service may not be available or accessible in all languages.
This Agreement will be governed by the laws of the State of Texas, United States of America without giving effect to any conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods in its entirety is expressly excluded from this Agreement, including, without limitation, application to the Platform or any software and services provided hereunder. Furthermore, this Agreement (including without limitation, the Platform and any software and services provided hereunder) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA.
Except as otherwise set forth in this Agreement, you agree that any dispute between you and Awning arising out of or relating to this Agreement the Awning Service (or any part thereof) (a “Dispute”) shall be governed by the provisions set forth in this Section 17.
Before resorting to formal dispute resolution in accordance with this Section 17, you agree to first contact Awning directly using the contact information provided below to seek an informal resolution of any Dispute. In the event a Dispute is not resolved within thirty (30) days after submission, you or Awning may institute arbitration in accordance with the procedures set forth in this Section 17.
Except as set forth in Sections 17.6 and 17.7 below, any Dispute that cannot be resolved through informal resolution in accordance with Section 17.3 above shall be resolved exclusively through final, binding, and confidential arbitration, which shall be subject to the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAARules”) as modified by this Section 17.4. The arbitration shall take place in Fort Worth, Texas, unless otherwise mutually agreed to by the parties You and Awning agree that the following rules will apply to the proceedings: (a) the arbitration will be heard and determined by a single, neutral arbitrator selected in accordance with the AAA Rules; (b) the arbitration will be conducted by telephone, online, or based solely on written submissions, in Awning’s sole discretion; (c) the arbitration must not involve any personal appearance by the parties or witnesses (unless Awning and you agree otherwise); and (d) any judgment on the arbitrator’s rendered award may be entered in any court with competent jurisdiction. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Awning must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Awning in settlement of the dispute prior to the award, Awning will pay to you the lower of: (i) the amount awarded by the arbitrator; or (ii) $1,000 USD.
A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice”). You may send notices to Awning using the contact information provided below. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). A party electing arbitration must initiate proceedings by filing an arbitration demand with the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Awning.
If you do not wish to resolve any Dispute by binding arbitration, you may opt out of the agreement to arbitrate within 30 days after the date that you agree to this Agreement by sending a letter to Awning using the contact information provided below with the subject line: Attention: Arbitration Opt-Out. The notice must include your full legal name, the email address used to register an Account (if applicable), and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Awning receives your Opt-Out Notice, the agreement to arbitrate will be void and the parties agree that the exclusive jurisdiction and venue described in Section 17.9 will govern any action arising out of or related to this Agreement. The remaining provisions of this Section 17 will not be affected by your Opt-Out Notice.
Notwithstanding anything in this Agreement to the contrary, to the extent you have in any manner violated or threatened to violate any of Awning’s intellectual property rights, Awning may seek injunctive or other appropriate relief in any state or federal court with competent jurisdiction in any country, including in the State of Texas, United States of America, without first engaging in arbitration or the informal dispute process set forth in this Section 17, and you hereby consent to the personal jurisdiction and exclusive venue in such courts.
YOU MAY ONLY RESOLVE A DISPUTE WITH AWNING ON AN INDIVIDUAL BASIS, AND MAY NOT BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS AREN'T ALLOWED UNDER THIS AGREEMENT.
If the agreement to arbitrate is found not to apply to your or Awning’s claim, you and Awning agree that any judicial proceeding will be brought in the federal or state courts located in Tarrant County, Texas. Both you and Awning consent to venue and personal jurisdiction there.
Notwithstanding any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Awning Service must be filed within one (1) year after such claim or cause of action arose, otherwise that claim or cause of action will be barred forever.
Neither the rights nor the obligations arising under this Agreement are assignable by you, and any such attempted assignment or transfer shall be void and without effect. Any waiver of any provision of this Agreement must be in writing and executed by both parties. The failure of either party to exercise any right provided for by this Agreement shall not be deemed a waiver of that right. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, that provision shall be stricken from this Agreement and shall not affect the legality, enforceability or validity of the remainder of the provisions set forth in this Agreement. The parties acknowledge and agree that they are dealing with each other as independent contractors and nothing in this Agreement and its performance shall be construed as creating a joint venture or agency between Awning and you. This Agreement is not intended to grant rights to anyone except you and Awning, and in no event shall this Agreement create any third party beneficiary rights except for the Awning Indemnified Parties. Awning may delegate the performance of any services hereunder to its affiliates and contractors. This Agreement, the Awning Privacy Policy, Additional Terms, and any other policies or terms and conditions referenced herein, constitute the entire agreement between you and Awning regarding the subject matter, and supersedes all prior oral or written agreements or communications with regard to the subject matter described. Any notice to you may be provided by email. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.” You agree that this Agreement will not be construed against Awning by virtue of having drafted it. The official text of this Agreement (and any notice submitted hereunder) will be in English. The parties acknowledge that they require that this Agreement be drawn up in the English language only. In the event of any dispute concerning the construction or meaning of this Agreement, reference will be made only to this Agreement as written in English and not to any translation into another language. Any delay in performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, telecommunications or Internet failure, or any other event beyond the reasonable control of such party.
Please feel free to contact Awning by email at shri@awning.com or by mail at Awning, Inc., 560 Haight St. Apt 106, San Francisco, CA 94117 if you have any questions about this Agreement.
Before we can show you pictures and prices of sold properties, or show you comments on active listings from Awning Agents, our MLS data providers require you to acknowledge that you're considering Awning as your real estate agent. We know that sounds sort of scary but remember: you have no obligation to work with an Awning Agent to buy or sell a property. You can choose to work with us or not. Before proceeding to view the content made available through the Services, you must acknowledge that: You are entering into a lawful consumer-broker relationship with Awning as defined by applicable state law. You have no obligation to work with Awning and you can terminate your account with Awning any time. Any information you obtain from the Awning website is intended for your personal, non-commercial use. You have a bona fide interest in the purchase, sale, or lease of real estate on the Awning website. You have complied with all relevant laws, regulations, and policies, including those overseen or enforced by the applicable real estate licensing regulatory authorities, the applicable MLS and/or Association of REALTORS©; You will not copy, redistribute, or retransmit any of the information provided except in connection with your consideration of the purchase or sale of an individual property. You acknowledge that the individual multiple listing service (MLS), which supplies the listing data, owns such data and you acknowledge the validity of the MLS's copyright to such data. Awning also explicitly authorizes MLS employees, MLS members, or their duly authorized representatives to access Awning's website for the purposes of verifying compliance with MLS rules and monitoring the display of Participants' listings on Awning's site. Information from MLS sources is deemed reliable but not guaranteed.
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Austin Board of Realtors
Listing Information © {2021}. Data courtesy of the Austin Board of REALTORS®. All Rights Reserved.
'The information is for consumers' personal, non-commercial use and may not be used for any purpose other than identifying properties which consumers may be interested in purchasing.
Updated at: 2021-05-20T23:51:30.152Z
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MLS Listings (CALRETS)
Listing Information © 2021 All Rights Reserved.
The data relating to real estate for sale on this website comes in part from the Internet Data Exchange program of the MLSListingsTM MLS system. Real estate listings held by brokerage firms other than the office represented by this website are marked with the Internet Data Exchange icon (a stylized house inside a circle) and detailed information about them includes the names of the listing brokers and listing agents. The broker providing this data believes the data to be correct, but advises interested parties to confirm all information before relying on it for a purchase decision. The information being provided is for consumers' personal, non-commercial use and may not be used for any purpose other than to identify prospective properties consumers may be interested in purchasing.
Updated at: 2021-05-20T23:51:30.152Z
Last Pulled: 2021-05-20T23:51:30.152Z
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San Antonio Board of Realtors
Listing Information © {2021} San Antonio Board of REALTORS®. All Rights Reserved.
Information herein is deemed reliable but not guaranteed and is provided exclusively for consumers personal, non-commercial use, and may not be used for any purpose other than to identify prospective properties consumers may be interested in purchasing.
Updated at: 2021-05-20T23:51:30.152Z
Last Pulled: 2021-05-20T23:51:30.152Z
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Bay East MLS
Listing Information © {2021} Bay East, CCAR, bridgeMLS. All Rights Reserved.
© {2021) Bay East. © {2021} CCAR. © {2021} bridgeMLS. Information Deemed Reliable But Not Guaranteed. This information is being provided by the Bay East MLS, or CCAR MLS, or bridgeMLS. The listings presented here may or may not be listed by the Broker/Agent operating this website. This information is intended for the personal use of consumers and may not be used for any purpose other than to identify prospective properties consumers may be interested in purchasing. Data last updated at {listings_last_updated}
Updated at: 2021-05-20T23:51:30.152Z
Last Pulled: 2021-05-20T23:51:30.152Z
Houston MLS
Listing Information © {2021} Houston REALTORS®
Information Service, Inc. All Rights Reserved.Information herein is deemed reliable but not guaranteed and is provided exclusively for consumers personal, non-commercial use, and may not be used for any purpose other than to identify prospective properties consumers may be interested in purchasing. All information should be independently verified.
Updated at: 2021-05-20T23:51:30.152Z
Last Pulled: 2021-05-20T23:51:30.152Z
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California Regional MLS
Listing Information © {2021} California Regional MLS. All Rights Reserved.
Based on information from California Regional Multiple Listing Service, Inc. as of {listing_last_updated} and/or other sources. All data, including all measurements and calculations of area, is obtained from various sources and has not been, and will not be, verified by broker or MLS. All information should be independently reviewed and verified for accuracy. Properties may or may not be listed by the office/agent presenting the information.
Updated at: 2021-05-20T23:51:30.152Z
Last Pulled: 2021-05-20T23:51:30.152Z
North Texas Real Estate Information Systems
Listing Information © {2021} North Texas Real Estate Information Systems. All Rights Reserved.
Information herein is deemed reliable but not guaranteed and is provided exclusively for consumers personal, non-commercial use, and may not be used for any purpose other than to identify prospective properties consumers may be interested in purchasing. All information should be independently verified.
Updated at: 2021-05-20T23:51:30.152Z
Last Pulled: 2021-05-20T23:51:30.152Z
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Bay Area Real Estate Information Services
Listing Information © {2021} Bay Area Real Estate Information Services, Inc. All Rights Reserved.
Information on this site is supplied by BAREIS MLS.'=
Updated at: 2021-05-20T23:51:30.152Z
Last Pulled: 2021-05-20T23:51:30.152Z
Metrolist California
Listing Information © {2021} MetroList Services, Inc. All Rights Reserved.
All measurements and all calculations of area are approximate. Information provided by Seller/Other sources, not verified by Broker. All interested persons should independently verify accuracy of information. Provided properties may or may not be listed by the office/agent presenting the information.
Updated at: 2021-05-20T23:51:30.152Z
Last Pulled: 2021-05-20T23:51:30.152Z
San Francisco Assoc. of Realtors
Listing Information © {2021} San Francisco Association of REALTORS®. All Rights Reserved.
All data, including all measurements and calculations of area, is obtained from various sources and has not been, and will not be, verified by broker or MLS. All information should be independently reviewed and verified for accuracy. Properties may or may not be listed by the office/agent presenting the information.
Updated at: 2021-05-20T23:51:30.152Z
Last Pulled: 2021-05-20T23:51:30.152Z
