Terms and Conditions
Updated: Oct. 6, 2016
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE WEBSITE, APPLICATION OR SERVICES, WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THESE TERMS.
1.Service as a Venue Only.
a.General. The Site, Application and Services (collectively, the “LoftSmart Properties”) enable potential Renters to browse Listings, and connect with the third parties who have created such Listings (“Landlords”) regarding potential transactions involving the rental of real property, and if they choose, to arrange transactions with one another. THE SERVICE ACTS AS A VENUE ONLY THROUGH WHICH LANDLORDS MAY CREATE LISTINGS AND RENTERS MAY BROWSE AND CONNECT WITH LANDLORDS SUCH LISTINGS. WE URGE ALL USERS TO BE RESPONSIBLE ABOUT THEIR USE OF THE SERVICE AND ANY TRANSACTION ENTERED INTO AS A RESULT OF EITHER LISTING THEIR PROPERTY OR RENTING PROPERTY. YOU UNDERSTAND AND AGREE THAT LOFTSMART IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN LANDLORDS AND RENTERS, NOR IS LOFTSMART A REAL ESTATE BROKER, AGENT OR INSURER. LOFTSMART HAS NO CONTROL OVER THE CONDUCT OF LANDLORDS, RENTERS AND OTHER USERS OF THE SITE, APPLICATION AND SERVICES OR ANY ACCOMMODATIONS, AND DISCLAIMS ALL LIABILITY IN THIS REGARD.
LOFTSMART CANNOT AND DOES NOT CONTROL THE CONTENT CONTAINED IN ANY LISTINGS AND THE CONDITION, LEGALITY OR SUITABILITY OF ANY LISTINGS. LOFTSMART IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL LISTINGS. ACCORDINGLY, ANY CONTACT BETWEEN LANDLORDS AND RENTERS WILL BE MADE AT EACH PARTY'S OWN RISK.
b.No Advice; Not a Party. LoftSmart does not counsel parties to real estate transactions, assess the qualifications of potential tenants, show properties or negotiate rental or sales agreements. No brokerage relationship or any agency or fiduciary relationship is intended to be or shall be deemed to have been created between LoftSmart and any user. You acknowledge and agree that LoftSmart is a not a party to any rental, lease or other agreement between users, and that LoftSmart does not own, sell, resell, furnish, provide, rent, re-rent, manage or control any properties appearing in any Listing. As a result, any part of an actual or potential transaction between a Landlord and a Renter, including the quality, condition, safety, or legality of the Listings advertised (or the properties appearing therein), the truth and accuracy of the Listings (including the content thereof or any property or review), the ability of Landlords to rent property or the ability of Renters to pay for certain property are solely the responsibility of each user.
c.Background and Credit Checks. Our Services may enable Renters to obtain a background and credit check (each, a “Background Check Report”) from third party background check and credit reporting agencies (each a “Background Check Agency”), which they can share with Landlords. The ultimate decision as to whether to rent to any individual is solely within the discretion of the applicable Landlord, and Landlords are under no obligation to rent, or provide preference, to any individual who has obtained a Background Check Report from a Background Check Agency via the Services. If you obtain a Background Check Report, you acknowledge and agree that, as between LoftSmart and the Background Check Agency, the Background Check Agency is solely responsible for each Background Check Report and the content thereof, including the accuracy, completeness, timeliness and reliability thereof. LOFTSMART DOES NOT PROVIDE AND THEREFORE IS NOT RESPONSIBLE FOR ANY BACKGROUND CHECK REPORTS ISSUED OR GENERATED BY ANY THIRD PARTY BACKGROUND CHECK AGENCY, INCLUDING THE ACCURACY, COMPLETENESS, TIMELINEES AND RELIABILITY THEREOF. ALL BACKGROUND CHECK REPORTS PROVIDED BY BACKGROUND CHECK AGENCIES ARE MADE AVAILABLE TO YOU VIA THE SERVICES AS A CONVENIENCE ONLY.
2.Fees and Payments
a.General. Joining the Services and searching for Listings is free. We do, however, charge fees for using other services, such as paying your first month’s rent and security deposit via the Services (“Paid Services”). The fees we do charge for using our Paid Services are listed on our Fee Schedule [INSERT LINK], which we may change from time to time. Changes to that schedule are effective after we provide you with at least thirty (30) days’ notice by posting the changes on the Services. We may choose to temporarily change the fees for our Services for promotional events or new services, and such changes are effective when we post the temporary promotional event or new service on the Services. You agree to pay all charges incurred by you or any users of your LoftSmart Account and payment card (or other applicable payment mechanism) at the prices in effect when such charges are incurred. You must provide LoftSmart with a valid credit or debit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”) or bank account/ACH information, as a condition to signing up for the Paid Services. Your Payment Provider agreement governs your use of the designated credit or debit card, and you must refer to that agreement and not the Terms to determine your rights and liabilities. By providing LoftSmart with your credit or debit card number and associated payment information, you agree that LoftSmart and its third party payment processor is authorized to immediately invoice your LoftSmart Account for all fees and charges due and payable to LoftSmart hereunder and that no additional notice or consent is required. You also agree that you are: (i) making a bona fide rent payment (including the applicable security deposit) (ii) authorized to use your payment card used to make a rent payment (including the applicable security deposit), (iii) adhering to the rules established by your Payment Provider in connection with the use of the card, and (iv) not knowingly engaging in any transaction that is illegal or that you should have known was illegal.
b.Changes to your Billing Information; Disclaimers. You agree to immediately notify LoftSmart of any change in your zip code or the credit or debit card account used for payment hereunder. LoftSmart reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Services or by e-mail delivery to you. All information that you provide to us or our third party payment processor must be accurate, current and complete. LoftSmart and LoftSmart’s third party processor may receive updated credit card information from your credit card issuer. The disbursement of the updated credit card information is provided to LoftSmart and LoftSmart’s third party payment processor at the election of your credit card issuer. NEITHER LOFTSMART NOR LOFTSMART’S THIRD PARTY PAYMENT PROCESSOR ARE RESPONSIBLE FOR THE DISTRIBUTION OF YOUR CREDIT CARD INFORMATION. IT IS AT THE SOLE ELECTION OF YOUR CREDIT CARD ISSUER. YOUR CREDIT CARD ISSUER MAY GIVE YOU THE RIGHT TO OPT OUT OF THE UPDATE SERVICE. IT IS YOUR RESPONSIBILITY TO CONTACT YOUR CREDIT CARD ISSUER WITH REGARDS TO YOUR RIGHT TO OPT OUT OF THE UPDATE SERVICE. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY PAYMENT CARD(S) OR OTHER PAYMENT MEANS USED TO INITIATE ANY TRANSACTION. You will also be responsible for paying any applicable taxes relating to your purchases. Verification of information applicable to a purchase may be required prior to our acceptance of any order.
c.Cost of Background Check Reports. Landlords are under no obligation to rent their properties to you (even if you have obtained a Background Check Report) or accept any Background Check Report obtained from a Background Check Agency. All payments made by you for any Background Check Reports are non-refundable, and LoftSmart will not reimburse you for any fees, costs or other expenses incurred by you in obtaining any Background Check Reports. You acknowledge and agree that LoftSmart is not responsible for, and will have no liability to you, for any Background Check Reports, including accuracy, completeness, timeliness or reliability thereof, or the decision of any Landlord to accept any Background Check Report, or to require you to obtain a separate Background Check Report outside of the Services.
3.Responsibility for Content.
a.No Obligation to Pre-Screen Content. You acknowledge that LoftSmart has no obligation to pre-screen text, images, information, works of authorship, content or other materials (“Content”) uploaded to the LoftSmart Properties by third parties, although LoftSmart reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of any Content you upload, transmit, distribute, post, email or otherwise make available (“Make Available”) to LoftSmart (“Your Content”), including without limitation chat, text, or voice communications. In the event that LoftSmart pre-screens, refuses or removes any Content, you acknowledge that LoftSmart will do so for LoftSmart’s benefit, not yours. Without limiting the foregoing, LoftSmart shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
b.No Endorsement. LoftSmart does not endorse any Landlords, Renters or any Rentals. In addition, although these Terms require users to provide accurate information, we do not attempt to confirm, and do not confirm, any user’s purported identity, or the accuracy of any Listing. You are responsible for determining the identity and suitability of others who you contact via the LoftSmart Properties.
a.General. In order to access certain features of the LoftSmart Properties, you must register to create an account (a “LoftSmart Account”) and become a registered user. You may register to join the Services directly via the Site or Application or as described in this section.
b.Social Networking Accounts. You can also register to join by logging into your account with certain third party social networking sites (“SNS”) (including, but not limited to, Facebook); each such account, a “Third Party Account”, via our Site or Application, as described below. As part of the functionality of the Site, Application and Services, you may link your LoftSmart Account with Third Party Accounts, by either: (i) providing your Third Party Account login information to LoftSmart through the LoftSmart Properties; or (ii) allowing LoftSmart to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to LoftSmart and/or grant LoftSmart access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating LoftSmart to pay any fees or making LoftSmart subject to any usage limitations imposed by such third party service providers. By granting LoftSmart access to any Third Party Accounts, you understand that LoftSmart will access, make available and store (if applicable) any Content that you have provided to and stored in your Third Party Account (“SNS Content”) so that it is available on and through the LoftSmart Properties via your LoftSmart Account and LoftSmart Account profile page. Unless otherwise specified in these Terms, all SNS Content, if any, will be considered to be user Content for all purposes of these Terms. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts will be available on and through your LoftSmart Account on the Site, Services and Application. Please note that if a Third Party Account or associated service becomes unavailable or LoftSmart's access to such Third Party Account is terminated by the third party service provider, then SNS Content will no longer be available on and through the Site, Services and Application. You have the ability to disable the connection between your LoftSmart Account and your Third Party Accounts, at any time, by accessing the “Settings” section of the Site and Application. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. LoftSmart makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement and LoftSmart is not responsible for any SNS Content.
c.Registration Data. You may not have more than one (1) active LoftSmart Account. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. LoftSmart reserves the right to suspend or terminate your LoftSmart Account and your access to the Site, Application and Services if you create more than one (1) LoftSmart Account or if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your LoftSmart Account, whether or not you have authorized such activities or actions. You will immediately notify LoftSmart of any unauthorized use of your LoftSmart Account.
5.User Conduct. You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and tax obligations that may apply to your use of the LoftSmart Properties. In connection with your use of the LoftSmart Properties or Services, you agree that in making a payment: you are authorized to use the payment card used to make the payment; you are adhering to the rules established by the Payment Provider in connection with the use of the card, the LoftSmart Properties and the Services; that the Payment Provider may terminate your ability to make the payment with that Payment Provider’s payment card; and that the payment is for a bona fide rent payment transaction. You also agree that you may not and you agree that you will not:
a.violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, zoning restrictions and tax laws, rules or regulations nor knowingly engage in any transaction that is illegal or that you should have known was illegal;
b.use manual or automated software, devices, scripts robots, other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the LoftSmart Properties;
c.copy, store or otherwise access any information contained on the LoftSmart Properties for purposes not expressly permitted by these Terms;
d.interfere with or damage our LoftSmart Properties, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
e.use our LoftSmart Properties to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
f.use our LoftSmart Properties in connection with the distribution of unsolicited commercial email ("spam") or advertisements unrelated to rentals in a private residence;
g."stalk" or harass any other user of our LoftSmart Properties or collect or store any personally identifiable information about any other user other than for purposes of transacting as a LoftSmart Renter or Landlord;
h.contact, any other user of the LoftSmart Properties for any purpose other than asking and answering question(s) related to Listings and Rentals;
i.recruit or otherwise solicit any user to join third party services or websites that are competitive to LoftSmart, without LoftSmart's prior written approval;
j.impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity;
k.use automated scripts to collect information or otherwise interact with the LoftSmart Properties;
l.Make Available any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances;
m.use, display, mirror or frame the Site or Application, or any individual element within the LoftSmart Properties, LoftSmart's name, any LoftSmart trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without LoftSmart's express written consent;
n.attempt to probe, scan, or test the vulnerability of any LoftSmart system or network or breach any security or authentication measures;
o.avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by LoftSmart or any of LoftSmart's providers or any other third party (including another user) to protect the LoftSmart Properties;
p.attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the LoftSmart Properties; or
q.advocate, encourage, or assist any third party in doing any of the foregoing.
6.Investigations. LoftSmart will have the right to investigate and prosecute violations of these Terms to the fullest extent of the law. LoftSmart may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that LoftSmart has no obligation to monitor your access to or use of the LoftSmart Properties or to review or edit any user’s Content, shall have the right to do so, in its sole discretion, and to remove or disable access to any user’s Content or Your Content for any reason (or no reason), including if such Content violates these Terms or otherwise harmful to the LoftSmart Properties.
7.Interactions with Other Users
a.User Responsibility. You are solely responsible for your interactions with other users of the Services and any other parties with whom you interact through the Services; provided, however, that LoftSmart reserves the right, but has no obligation, to intercede in such disputes. You agree that LoftSmart will not be responsible for any liability incurred as the result of such interactions.
b.Renting Decisions. Landlords are under no obligation to rent to you or any individual. If you obtain a Background Check Report, any Landlord to whom you provide such Background Check Report is under no obligation to accept any such Background Check Report or to rent to you by virtue of your Background Check Report or the content thereof. You acknowledge and agree that all renting decisions are within the sole discretion of the applicable Landlord and landlord, and LoftSmart has no control of any Landlord, including their decisions whether to rent to any person or accept any Background Check Report.
8.Ownership and Licenses
a.Ownership. The LoftSmart Properties are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the LoftSmart Properties, including all associated intellectual property rights are the exclusive property of LoftSmart and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the LoftSmart Properties.
b.Application License. Subject to your compliance with these Terms, LoftSmart grants you a limited non-exclusive, non-transferable license to download and install a copy of the Application on a mobile device or computer that you own or control and run such copy of the Application solely for your own personal use. Furthermore, with respect to any App Store Sourced Application (defined below), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple Inc.’s proprietary operating system), or (ii) on devices that run the Android (Google Inc.’s proprietary operating system). Furthermore, with respect to any App Store Sourced Application accessed through or downloaded from the Apple App Store, Google Chrome Web Store, Google Play marketplace or any similar store or marketplace (each, an “App Store” and references to an App Store include the corporate entity and its subsidiaries making such App Store available to you), you agree to comply with all applicable third party terms of the relevant App Store (e.g., Apple App Store’s “Usage Rules”) (the “Usage Rules”) when using the App Store Sourced Application. LoftSmart reserves all rights in the Application not expressly granted to you by these Terms.
c.Your Content. LoftSmart does not claim ownership of Your Content. However, when you post or publish Your Content on the LoftSmart Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or incorporate it in other words in any form, media, or technology now known or later developed. You hereby grant to LoftSmart a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense through multiple tiers of sublicenses, to use, copy, modify, distribute, publicly display, publicly perform, digitally transmit, and otherwise exploit such Your Content on, through, or by means of the LoftSmart Properties.
d.Proprietary Rights Notices. All trademarks, service marks, logos, trade names and any other proprietary designations of LoftSmart used herein are trademarks or registered trademarks of LoftSmart. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
e.Updates. You understand that the LoftSmart Properties are evolving. As a result, LoftSmart may require you to accept updates to the LoftSmart Properties that you have installed on your computer or mobile device. You acknowledge and agree that LoftSmart may update the LoftSmart Properties with or without notifying you. You may need to update third-party software from time to time in order to use the LoftSmart Properties.
f.Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to LoftSmart through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that LoftSmart has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to LoftSmart a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the LoftSmart Properties.
9.Copyright Policy. LoftSmart respects copyright law and expects its users to do the same. It is LoftSmart's policy to terminate in appropriate circumstances the LoftSmart Accounts of users or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. As such, LoftSmart adheres to the following notice and take down policy, in full compliance with Section 512(c)(3) of the DMCA (17 U.S.C. § 512 et seq.). If you believe any user’s Content infringes upon your intellectual property rights, please submit a notification alleging such infringement (hereafter a “DMCA Takedown Notice”). To be valid, a DMCA Takedown Notice must (i) be provided to LoftSmart’s designated agent (“Copyright Agent”), as set forth below, and (ii) include the following:
oA physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
oIdentification of the copyrighted work claimed to be infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works;
oIdentification of the material claimed to be infringed or to be the subject of infringing activity and that is to be removed or access disabled and information reasonably sufficient to permit the service provider to locate the material;
oInformation reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail address;
oA 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; and
oA statement that, under penalty of perjury, the information in the notification is accurate and that you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
LoftSmart’s Copyright Agent to receive DMCA Takedown Notices is: firstname.lastname@example.org. For clarity, only DMCA Takedown Notices should go to the Copyright Agent; any other feedback, comments, online purchases or other communications should be directed to the applicable customer service links posted on the Services. You acknowledge that for LoftSmart to be authorized to takedown any content, your DMCA Takedown Notice must comply with all of the requirements of this Section.
10.Termination and LoftSmart Account Cancellation. We may, in our discretion and without liability to you, with or without cause, with or without prior notice and at any time: (a) terminate these Terms or your access to our LoftSmart Services, and (b) deactivate or cancel your LoftSmart Account. You may cancel your LoftSmart Account at any time by sending an email to email@example.com that includes your full name and account sign up email address. Termination of any of the Services includes removal of access to such Services and barring of further use of the Services. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your LoftSmart Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. LoftSmart will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
11.Indemnification. You agree to release, defend, indemnify, and hold LoftSmart and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of the LoftSmart Properties or your violation of these Terms; (b) Your Content; or (c) your interaction with any user of the Services, including any Landlord with who you enter into a lease agreement. This provision does not require you to indemnify LoftSmart for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Site, Application or any Services provided hereunder.
a.As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE LOFTSMART PROPERTIES IS AT YOUR SOLE RISK, AND THE LOFTSMART PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. YOU ACKNOWLEDGE AND AGREE THAT LOFTSMART DOES NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND CHECKS ON ANY USER, INCLUDING, BUT NOT LIMITED TO, LANDLORDS, BUT MAY CONDUCT SUCH BACKGROUND CHECKS IN ITS SOLE DISCRETION. LOFTSMART EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE OR NON-INFRINGEMENT. LOFTSMART MAKES NO WARRANTY THAT THE LOFTSMART PROPERTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. LOFTSMART MAKES NO WARRANTY REGARDING THE QUALITY OF ANY LISTINGS, THE SERVICES OR CONTENT OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SITE, APPLICATION OR SERVICES.
b.No Advice. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM LOFTSMART OR THROUGH THE LOFTSMART PROPERTIES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
c.Interactions with Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE LOFTSMART PROPERTIES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE LOFTSMART PROPERTIES, INCLUDING, BUT NOT LIMITED TO, ANY LANDLORDS. YOU UNDERSTAND THAT LOFTSMART DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE LOFTSMART PROPERTIES OR TO REVIEW OR VISIT ANY RENTALS TO VERIFY THE ACCURACY OF THE LISTING, ITS CONDITION OR SUITABILITY FOR HUMAN INHABITATION. LOFTSMART MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE LOFTSMART PROPERTIES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE LOFTSMART PROPERTIES. LOFTSMART EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY LANDLORD OR OTHER THIRD PARTY.
13.Limitation of Liability.
a.Disclaimer of Certain Damages. NEITHER LOFTSMART NOR ANY OF ITS SUPPLIERS WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE LOFTSMART PROPERTIES, INCLUDING LOST PROFITS, LOSS OF DATA OR ANY DAMAGES OR COSTS DUE TO LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS (EXCLUDING LOFTSMART’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT), FROM THE USE OF OR INABILITY TO USE THE LOFTSMART PROPERTIES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE LOFTSMART PROPERTIES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE LOFTSMART PROPERTIES FROM YOUR LISTING OF ANY RENTAL VIA THE LOFTSMART PROPERTIES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, WHETHER OR NOT LOFTSMART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. NOTWITHSTANDING THE FOREGOING, LOFTSMART DOES NOT IN ANY WAY SEEK TO EXCLUDE OR LIMIT LIABILITY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A LOFTSMART’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A LOFTSMART’S FRAUD OR FRAUDULENT MISREPRESENTATION.
b.Cap on Liability. IN NO EVENT WILL LOFTSMART'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE LOFTSMART PROPERTIES , EXCEED: (A) THE AMOUNTS YOU HAVE PAID TO LOFTSMART AS A RESULT OF YOUR USE OF THE LOFTSMART PROPERTIES AS A RENTER IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT(S) GIVING RISE TO THE LIABILITY; OR (B) IN THE EVENT YOU HAVE NOT PAID LOFTSMART AND LOFTSMART HAS NOT PAID YOU, ANY AMOUNTS DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT(S) GIVING RISE TO LIABILITY, ONE HUNDRED DOLLARS ($100). NOTWITHSTANDING THE FOREGOING, LOFTSMART DOES NOT IN ANY WAY SEEK TO EXCLUDE OR LIMIT LIABILITY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A LOFTSMART’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A LOFTSMART’S FRAUD OR FRAUDULENT MISREPRESENTATION. THE LIMITATIONS ON DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN LOFTSMART AND YOU.
14.App Stores. You acknowledge and agree that the availability of the Application is dependent on the third party from which you received the App license, e.g., the Apple iPhone, Android, Windows phone app stores (“App Store”). You acknowledge that the Terms are between you and LoftSmart and not with the App Store. LoftSmart, not the App Store, is solely responsible for the LoftSmart Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the LoftSmart Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the LoftSmart Properties, including the App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
a.Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between LoftSmart and you regarding the LoftSmart Properties, and these Terms supersede and replace any and all prior oral or written understandings or agreements between the parties with respect to such subject matter.
b.Assignment. You may not assign or transfer these Terms, by operation of law or otherwise, without LoftSmart's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. LoftSmart may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
c.Notices. Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by LoftSmart (i) via email (in each case to the address that you provide) or (ii) by posting to the Site or via the Application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. You may give notice to LoftSmart at the following address: firstname.lastname@example.org
d.Electronic Communications. The communications between you and the LoftSmart use electronic means, whether you visit the LoftSmart Properties or send the LoftSmart e-mails, or whether the LoftSmart posts notices on the LoftSmart Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from LoftSmart in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that LoftSmart provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
e.Controlling Law and Jurisdiction. These Terms will be interpreted in accordance with the laws of the State of New York and the United States of America, without regard to its conflict-of-law provisions except where federal law including the Federal Arbitration Act apply. In any circumstances where the Arbitration Agreement stated in the next section permits the parties to litigate in court, you and we agree to submit to the personal jurisdiction of a state and federal courts located in New York, New York.
f.Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this Arbitration Agreement carefully. It is part of your contract with LoftSmart and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
i.Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use or operation of any product or service provided by LoftSmart that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and LoftSmart, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
ii.Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to LoftSmart should be sent to: [524 Broadway, New York, New York, 10013]. After the Notice is received, you and LoftSmart may attempt to resolve the claim or dispute informally. If you and LoftSmart do not resolve the claim or dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
iii.Arbitration Rules. To begin an arbitration proceeding, you must send a letter requesting arbitration and describe your claim to [524 Broadway, New York, New York, 10013. Arbitration shall be initiated through JAMS, an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If JAMS is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00 ) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If you initiate an arbitration in which you seek less than $500 in damages and comply with the Terms, including the Notice Requirement, LoftSmart shall reimburse you for your JAMS filing fee, and shall pay all administration and arbitrator fees up to a total amount of $500.
iv.Additional Rules for Non-appearance Based Arbitration: If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
v.Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and LoftSmart, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the JAMS Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and LoftSmart.
vi.Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and LoftSmart in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND LOFTSMART WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
vii.Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR REPRESENTATIVE BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, then notwithstanding anything to the contrary in this Arbitration Agreement or Terms, neither you or LoftSmart is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 15(e).
viii.Severability. Subject to section 15(f)(vii), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
ix.Right to Waive. Any or all of the rights and limitations set forth in this Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Agreement.
x.Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with LoftSmart.
xi.Small Claims Court. Notwithstanding the foregoing, either you or LoftSmart may bring an individual action in small claims court so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis.
xii.Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
xiii.Courts. In any circumstances where the foregoing Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within New York, New York, for such purpose.
g.Waiver; Severability. The failure of LoftSmart to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of LoftSmart. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
h.Contacting LoftSmart. If you have any questions about these Terms or any App Store Sourced Application, please contact LoftSmart at email@example.com.
i.Export Control. You may not use, export, import, or transfer the LoftSmart Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the LoftSmart Properties, and any other applicable laws. In particular, but without limitation, the LoftSmart Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the LoftSmart Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You acknowledge and agree that products, services or technology provided by LoftSmart are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer LoftSmart products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
j.Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
k.Force Majeure. LoftSmart shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
16. Plaid Payment Services
a. Documentation: https://plaid.com/docs/quickstart/
b. Demo: https://demo.plaid.com/longtail