Last Updated: October 24, 2017
BY ACCESSING OR USING THE WEBSITE YOU ARE INDICATING THAT YOU HAVE READ AND UNDERSTAND THE TERMS, AND THAT YOU AGREE TO COMPLY WITH AND BE LEGALLY BOUND BY THE TERMS.
IF YOU DO NOT AGREE TO THE TERMS, YOU MAY NOT ACCESS OR USE THE WEBSITE.
1. IMPORTANT INFORMATION ABOUT THE WEBSITE
THE INFORMATION WE PROVIDE IN CONNECTION WITH AN OFFER, OR OTHERWISE IN CONNECTION WITH YOUR USE OF THIS WEBSITE IS NOT INTENDED TO SUBSTITUTE FOR PROFESSIONAL LEGAL, FINANCIAL, TAX, OR REAL ESTATE ADVICE. YOU SHOULD ALWAYS CONSULT PROFESSIONAL ADVISORS BEFORE MAKING REAL ESTATE DECISIONS.
UNLESS OTHERWISE SET FORTH IN A WRITTEN DOCUMENT SIGNED BY OFFERPAD, OFFERPAD IS ACTING AS A PRINCIPAL ON ITS OWN BEHALF AS A POTENTIAL BUYER. IT IS REPRESENTING ITS OWN INTERESTS AND DOES NOT REPRESENT YOU IN ANY SALE TRANSACTION. ALL INFORMATION PROVIDED ON OR THROUGH THE WEBSITE, INCLUDING, WITHOUT LIMITATION, THE ESTIMATED VALUE OF YOUR PROPERTY, IS FOR CONVENIENCE ONLY AND WITHOUT EXPRESS OR IMPLIED WARRANTY AS TO ITS ACCURACY OR VALIDITY. RELIANCE ON SUCH INFORMATION TO ENTER INTO ANY REAL ESTATE TRANSACTION IS SOLELY AT YOUR OWN RISK. WE RECOMMEND THAT YOU CONSULT RELIABLE, INDEPENDENT INFORMATION SOURCES TO PROVIDE YOU INFORMATION ON WHICH TO RELY. IF YOU HAVE ANY QUESTIONS IN THIS REGARD, YOU SHOULD CONSULT YOUR LEGAL OR OTHER PROFESSIONAL ADVISORS.
2. ABOUT THE TERMS
2.1 Website Rules, Offer Terms and PSA
If you request and receive an offer, that offer may be subject to certain terms and conditions (the “Offer Terms”). Further, if you accept an offer, you will be asked to agree to a purchase agreement (the “PSA”), which, once executed by the parties, will govern the sale of your house. The terms of the PSA may be subsequently amended to include differing or supplemental terms (the “Supplemental Terms”). If you choose to accept the Offer Terms and PSA (as amended by any Supplemental Terms), they will be incorporated and deemed part of these TOU. In the event of a conflict between these TOU and any Offer Terms, and PSA (as amended by any Supplemental Terms), the PSA will govern and control.
- YOUR OBLIGATION TO COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS;
- LIMITATIONS OF OUR LIABILITY TO YOU; AND
- A REQUIREMENT THAT YOU PURSUE CLAIMS OR SEEK RELIEF AGAINST US (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, RATHER THAN AS A PARTICIPANT IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.
IF YOU HAVE ANY QUESTIONS REGARDING TERMS, YOU SHOULD CONSULT YOUR LEGAL OR OTHER PROFESSIONAL ADVISORS.
If you are accepting or agreeing to the Terms on behalf of another person or on behalf of any company or other legal entity, you represent and warrant that you have the authority to act on behalf of and bind that person or entity to the Terms.
2.2 Amendment of Terms
No other modification, amendment, supplement of or to the Terms will be binding on Offerpad unless it is in writing and signed by an authorized representative of Offerpad.
2.3 International Users
The Website is operated within the United States and is not intended for use outside of the United States. If you access the Website from a location outside the United States, you do so at your own risk and you are solely responsible for compliance with applicable laws, rules and regulations, including export laws and any regulations and local laws regarding online conduct and content.
3. OFFER & PURCHASE PROCESS
You may not request an offer:
- if you are not able to form legally binding contracts (for example, if you are under the age of 18); or
- if you are barred or prohibited from entering into contracts or conducting real estate transactions under the laws of the United States or other applicable jurisdiction.
As of the date of these TOU, we are currently buying homes only in the metro areas specified on our website. However, we are under no obligation to make an offer for any property, including any property within those areas.
Once a request for an offer is submitted, we will typically send you an email within 24 hours notifying you of whether we wish to make an offer for your property. If so, the email will contain a link to your online offer. Offers generally expire 48 hours after receipt, regardless of whether or when you open the email. Each offer will identify its actual expiration date. We also reserve the right to revoke any offer at our discretion, prior to it being accepted, by notifying you of the revocation by an e-mail which shall be deemed delivered at the time sent by Offerpad to your e-mail address. Once an offer expires or is revoked, you will not be able to accept the offer.
3.2 Purchase Price, Credits, Costs and Fees
If we elect to make an offer for your property, the offer will identify the purchase price that we are willing to pay and the credits that will be deducted from that price at closing, as set forth in the offer.
Please note that we determine the offer price and credits by analyzing various data sources, including information provided by you. We reserve the right to change the price and/or credits if we discover that the condition of the house is not consistent with your description, or that the information provided by you is otherwise incomplete or inaccurate. Any such change will require your approval, but if you disapprove, Offerpad may terminate the PSA.
Offerpad makes no representations or warranties that the purchase price we offer will equal or exceed the fair market value or the price you would obtain by listing your house with a real estate agent. Also, while we attempt to keep our credits as close to the same percentages as you would typically pay at closing during a traditional real estate transaction, we make no representations or warranties regarding credits, including how our credits will compare to credits at a traditional closing.
3.3 Closing Costs, Taxes and Fees
You will be responsible to pay any title search, title insurance and escrow fees, and any other additional closing costs, in a manner customary in the county where the property is located, as determined by the escrow company or closing attorney, as applicable. Examples of such costs include (but are not limited to) loan payoff costs, transfer taxes, recording fees, attorney fees, liens or judgments against your property, prorated homeowner association dues and/or property taxes due through the closing date. In addition, if you have an existing listing agreement with a real estate agent, you will be responsible for determining any amount due to your agent and deducting their commission from your net proceeds after you close. Offerpad does not pay or accept commissions, except as disclosed in writing prior to your acceptance of the PSA that it is acting as a real estate broker in the sale and for whom it is acting as an agent in the transaction.
3.4 Purchase Agreement
Once you have reviewed and accepted the terms of the offer, you will be directed to a web page (the “Offer Acceptance Page”) where you will be required to select the day you would like to close and move. Your closing date can be anywhere from 5 days to 90 days after your acceptance of the offer, and you can elect to move up to 3 days after the closing date. After you have selected closing and moving dates on the Offer Acceptance Page, you will receive your PSA via e-mail within approximately 24-hours. The e-mail will come from DocuSign, a third-party electronic signature technology provider, on behalf of Offerpad. To be clear, the offer does not constitute the PSA or contain all of terms and conditions of the sale. You must accept the PSA in order to proceed with the sale.
After you have reviewed and accepted the terms of the PSA in the manner directed in the e-mail, Offerpad will deposit the earnest money as more fully set forth in the Terms of the PSA. The escrow agent or closing attorney, as applicable, will then send you a receipt confirming the deposit, and we will contact you to schedule your home inspection.
We reserve the right to terminate the PSA during the inspection period set forth below in our sole discretion for any discoveries made during the inspection period including, but not limited to, the condition of the house being inconsistent with your description, or that the information provided by you is otherwise inaccurate.
The inspection period begins the day after the contract has been signed by both parties and continues for the period set forth in the PSA, unless otherwise agreed in writing by the parties.
The inspection will be conducted by a third party inspector engaged by Offerpad. You must be home during the inspection, which typically takes less than 2 hours.
Once the inspection is completed, the inspector will issue an inspection report to Offerpad. Offerpad will review the inspection report and provide you a complete list of the items that are a concern to us. Such items may include (but are not limited to) code violations, defects, damage or other deficiencies relating to A/C, electrical, foundation, roof, flooring, windows, cabinets, appliances, drywall, insulation, plumbing, pool, spa and interior and exterior paint. In addition, non-standard colored walls, materials, and carpet may also require removal and/or replacement. Non-standard colors include any colors other than white, light beige and light grey. Non-standard materials include (but are not limited to) wall paper, stickers, wall borders and faux finishes. Non-standard carpet includes (but are not limited to) outdoor carpet used indoors, bright colors, neon colors, irregular patterns, and visual wear patterns. For simplicity, we will refer, collectively, to repair, removal, replacement and other remediation as “repair.”
During the inspection period, Offerpad may provide to you the list of items Offerpad determines require repair and you will have the option, within the period set forth in the PSA, to elect to (1) have the items on the list repaired prior to closing, (2) provide Offerpad an additional credit against the purchase price (based on Offerpad’s estimate of the cost to the repair the identified items), or (3) cancel the purchase agreement with no further obligation, except, if necessary, to sign escrow termination instructions and instructions to release the deposit back to Offerpad.
If you elect to have the items repaired, all repairs must be made by a licensed contractor and all items must be brought into compliance with applicable building codes. You will be required to provide proof of the completion of the work, including the contractors' name(s) and license number(s), before and after pictures, and receipts. Repairs must also be approved by Offerpad during the final walk-through.
Whether you elect to have the items repaired or to provide Offerpad a credit for their repair, you will be required to sign a repair credit addendum to the purchase agreement. Depending on the option that you have elected, the addendum will list the required repairs (and may provide certain additional detail, as necessary), or the credit to be provided.
One or 2 days prior to the closing date, Offerpad will conduct a final walk-through to verify that the required repairs have been adequately made, and that the property is otherwise still in the same condition it was during the inspection. If the walk-through reveals that required repairs have not been adequately completed or the property is not otherwise still in the same condition it was during the inspection, additional repairs may be required and the closing may be delayed.
Closing will be scheduled for the date that you selected when you accepted our offer. If you subsequently need to change to your closing date, you must notify us in writing as soon as reasonably possible. We will accommodate change requests, when reasonably practicable to do so as determined by us in our sole discretion. You will receive a check for the purchase price (less any agreed upon credits and any applicable fees) at closing.
3.8 Moving Out
You are responsible to leave the property in the same condition it was in during the walk-through. You are also required, as a general rule, to leave any built-in appliances and other fixtures (items that are attached in some way to the property) unless otherwise agreed in writing. These include (but are not limited to) your dishwasher, built-in microwave, stove, oven, cooktops, ice machines, trash compactors, water softeners, built-in refrigerator, R/O systems, window treatments, central vacuum and central vacuum hoses, garage door openers and remotes, pool equipment, built-in BBQ’s, built-in fire pits, ceiling fans, light fixtures (including, but not limited to, chandeliers), pool fencing, pool cleaning systems, exterior landscape lighting and surround sound speakers.
Depending on the location of your property, there may be some appliances that you are entitled to take when you move. For example, as of the date of these TOU, you are entitled to take the follow appliances in the following states: in Florida, the washer and dryer; in Arizona, Utah and Nevada, the washer, dryer and refrigerator. YOU SHOULD CONSULT YOUR LEGAL OR OTHER PROFESSIONAL ADVISORS TO ENSURE THAT YOU HAVE A CURRENT AND COMPLETE LIST.
You will be responsible for the cost to repair any damage caused after the walk-through and replace any appliances and other fixtures that you are not entitled to take.
4. TEXT MESSAGES
You may have the opportunity to opt in to receiving certain information, updates and/or offers from us via text communications (for example, when you sign up for instant access to selected properties) by texting us and/or otherwise providing us your mobile telephone number. Consent to receiving text messages is not required as a condition of purchasing any goods or services. If you elect to opt in to receive such communications, you can opt out of receiving text messages at any time by texting STOP to 844-461-3863.
By providing a mobile telephone number and requesting to receive communications via text message, you represent that you have the necessary authority to allow Offerpad to collect and use the number identified. You agree that you will be solely liable for any violation of the terms of this Section 4.1, and indemnify Offerpad against any and all Losses (as defined in Section 8.6 below) arising out of or related to a breach of the representations contained herein. You acknowledge that Offerpad retains the right, but not the obligation, to confirm the consent of the owner of the telephone number at any time. In the event that Offer Pad is unable to confirm such consent, we may refuse to send text messages to the requested telephone number.
4.2 Third-Party Costs
You acknowledge that data and messaging plans are required in order to receive Offerpad text alerts, and that standard data, messaging and other charges, fees, and taxes from your carrier may apply. You agree that you are solely responsible for such charges, fees and taxes that may result from your receipt of such text alerts, and that Offerpad has no liability therefor.
5. USER CONDUCT GUIDELINES
5.1 Users may not:
- access, copy, store or use any aspect of the Website for any purpose other than your own personal use;
- access, search, collect information from, or otherwise interact with the Website or whether by manual methods or by use of any software, device, script or robot, or by any other means (automated or otherwise), including by “scraping,” “crawling” or “spidering” the Website, to systematically retrieve information in order to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like (except that crawling is permissible without further authorization if done in accordance with the provisions of the robots .txt file only);
- access the Website other than through the currently available, published interfaces that are provided by Offerpad, unless you have been specifically authorized to do so in a separate agreement with Offerpad;
- mirror or frame the Website any page, feature, functionality, tool or content of the Website, copy any aspect of the Website, or use or display Offerpad's name or any of Offerpad's other trademarks, logos or proprietary materials, without Offerpad's express written consent;
- interfere with, disrupt, damage or compromise the Website or our systems or the access of any User, host or network in any way, including through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology or by overloading, flooding, spamming, mail-bombing the Website or otherwise imposing an unreasonable or disproportionately large load on the Website;
- access, tamper with or use non-public areas of the Website, Offerpad's computer systems, or the technical delivery systems of Offerpad's providers;
- probe, scan, or test the vulnerability of any system or network of Offerpad or its providers, or breach or circumvent any security or authentication measures of such system or network;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Offerpad or any of Offerpad's providers or any other third party to protect the Website;
- forge any TCP/IP packet header or any part of the header information in any e-mail or posting, or in any way use the Website to send altered, deceptive or false source-identifying information;
- attempt to decipher, decompile, disassemble or reverse engineer any of the code, software or algorithms used to provide the Website;
- export or re-export the Website, except in compliance with the export control laws and regulations of any relevant jurisdictions;
- otherwise abuse the Website or breach the Terms; or
- attempt to do any of the foregoing, or advocate, encourage, assist or permit any third party to do any of the foregoing.
Offerpad reserves the right to monitor access and use of the Website, and investigate and prosecute violations of any and all reports, complaints and claims, or otherwise suspected misconduct or violations of the law or the Terms to the fullest extent of the law.
6. INTELLECTUAL PROPERTY RIGHTS & LICENSES
6.1 The Website
The Website, including any and all features, functionality, tools and content thereof, is protected by copyright, trademark, patent and other laws of the United States and foreign countries. You acknowledge and agree that the Website, and all intellectual property rights therein are the exclusive property of Offerpad. You agree not to remove, alter or obscure any copyright, trademark, service mark, patent marking, or other proprietary rights notices incorporated in or accompanying the Website.
Subject to your compliance with the Terms, Offerpad grants you a limited non-exclusive, non-transferable, non-assignable and non-sublicensable license to access and use the Website.
You may not use, copy, reproduce, distribute, license, sell, transfer, publish, post, publicly display, publicly perform, transmit, broadcast, adapt, modify, prepare derivative works based upon, or otherwise exploit any features, functionality, tools or content of the Website in any form or by any means, or sublicense the rights granted in the Terms, except as expressly permitted herein, without the prior written permission of Offerpad.
This foregoing license is subject to modification or revocation at any time at Offerpad's sole discretion.
No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Offerpad or its licensors, except for the licenses and rights expressly granted in the Terms. All rights not expressly granted to you by the Terms are hereby reserved.
6.2 Your Photos and Information
By uploading photographs of your house (your “Photos”), you hereby grant Offerpad a non-exclusive, transferable, sublicensable, royalty-free right and license to use, copy, reproduce, process, adapt, modify, distribute, post, broadcast, publicly perform, publish and display your Photos worldwide, in perpetuity, in any and all media, (i) to operate and improve the Website, and (ii) to market, promote, and advertise your house, the Website, and Offerpad, in general.
You agree that this license includes the right for Offerpad to make your Photos available to other companies, organizations and individuals who have a business relationship with Offerpad (“partner”) for syndication, broadcast, distribution and publication on other websites and services. Such additional uses by Offerpad, and by the companies, organizations and individuals who partner with us, will not require the payment of any money or other compensation to you.
You acknowledge and agree that we may reformat, modify or adapt your Photos in order to transmit, display or distribute it and/or as are necessary to conform and adapt to any requirements or limitations of any networks, devices, services or media. You further grant us the right to use, copy, distribute, post, publish and display your city, state and other relevant information about your house in connection with your Photos.
You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to your Photos, and that neither your Photos, nor our use of your Photos (or any portion thereof) on or through the Website or in connection with the rights granted will infringe, misappropriate or violate the rights of any person or entity, including patent, copyright, trademark, trade secret, moral rights, industrial rights, database rights or other proprietary or intellectual property rights, rights of publicity or privacy or data protection or contractual rights, or result in the violation of any applicable law or regulation.
You acknowledge and agree that you are solely responsible for your Photos and information about your house, and for any consequences of the use of your Photos by our third-party partners. You understand that our Content may be syndicated, broadcast, distributed, or published by our partners and if you do not have the right to submit your Photos for such use, it may subject you to liability. Offerpad will not be responsible or liable for any use of your Photos by Offerpad or any third party in accordance with the Terms.
We welcome and encourage you to provide feedback, comments, ideas and suggestions for improvements, enhancements and modifications to the Website (“Feedback”). You may submit Feedback by e-mailing us, at Info@Offerpad.com. You acknowledge and agree that any and all Feedback you give us (i) will be treated as non-confidential, and (ii) will be the sole and exclusive property of Offerpad. Without limiting the foregoing, you acknowledge that your Feedback may be disseminated or used by Offerpad or its affiliates for any purpose whatsoever, including developing, improving and/or marketing products. You hereby irrevocably transfer and assign to Offerpad all of your right, title, and interest in and to all Feedback, including all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have in such Feedback.
You agree to sign and deliver such documents, and otherwise provide such assistance, as may reasonably be required from time to time to perfect Offerpad’s rights in such improvements, enhancements and modifications.
7. NO ENDORSEMENTS
The Website may provide links to third-party websites, resources or services. You acknowledge and agree that Offerpad is not responsible or liable for (i) the availability, terms or practices of such websites, resources or services, or (ii) the content, products or services available on or through such websites, resources or services, including that any information provided is complete, accurate or up-to-date. Links to such websites, resources or services do not imply any endorsement by Offerpad of such websites, resources or services or the content, products or services available on or through such websites, resources or services. You acknowledge that you have sole responsibility for and assume all risk arising from your use of any such websites, resources or services or the content, products or services available on or through such websites or services.
We will not be responsible or liable for any damage or harm resulting from your interactions with such websites or services, or the content, products or services available on or through such websites or services.
8. WARRANTIES, DISCLAIMERS, LIMITATION OF LIABILITY & INDEMNIFICATION
8.1 Warranties by Users
You represent and warrant to Offerpad that:
- you have the power and authority to accept and agree to the Terms,
- you have the right to provide the information that you provide to Offerpad and to grant the rights and licenses granted,
- the exercise by Offerpad of the rights granted by you will not cause Offerpad to violate any applicable laws, rules or regulations, to infringe the rights of any third party, and
- all information provided by you will be complete, accurate and up-to-date when provided, and updated by you as necessary to ensure that it remains complete, accurate and up-to-date.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE WEBSITE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, OFFERPAD EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE OR RIGHTFUL CLAIM, WARRANTIES AS TO THE RELIABILITY OR AVAILABILITY OF THE WEBSITE, OR THAT USE OF THE WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE, WARRANTIES AS TO THE COMPLETENESS, ACCURACY OR TIMELINESS OF ANY WEBSITE CONTENT.
8.3 Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW:
- INFORMATION PROVIDED ON OR THROUGH THIS WEBSITE DOES NOT CONSTITUTE LEGAL, FINANCIAL, TAX, OR REAL ESTATE ADVICE, NOR IS IT INTENDED TO REPLACE THE NECESSITY OF CONSULTATION WITH YOUR LEGAL OR OTHER PROFESSIONAL ADVISORS.
- THE ENTIRE RISK ARISING OUT OF OR RELATING TO YOUR USE OF THE WEBSITE AND ANY TRANSACTION CONDUCTED BETWEEN YOU AND OFFERPAD IS AND REMAINS WITH YOU.
- YOU HEREBY RELEASE OFFERPAD FROM AND WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGES CAUSED BY ANY OF THE FOREGOING.
- IN NO EVENT WILL OFFERPAD BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR DAMAGES FOR LOST REVENUES OR PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH ANY OF THE FOREGOING, WHETHER BASED IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT OFFERPAD HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
- IN THE CASE OF THE UNITED STATES, CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES AS SET FORTH IN THIS SECTION 8, SO THESE LIMITATIONS AND EXCLUSIONS APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. IN THE EVENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, OFFERPAD'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY AND ALL OF THE FOREGOING, SHALL BE LIMITED TO ONE HUNDRED U.S. DOLLARS (US$100).
8.4 Basis of the Bargain
YOU ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN OFFERPAD AND YOU, AND WILL SURVIVE AND APPLY EVEN IF YOUR REMEDIES ARE FOUND OR ALLEGED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
NOTHING IN THE TERMS IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE FROM DEATH OR PERSONAL INJURY. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS IN THIS SECTION 8 THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU, AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW.
To the maximum extent not prohibited by applicable law, you agree to release, indemnify, and hold Offerpad, its parent, subsidiaries, affiliates, licensors and service providers, and its and their officers, directors, shareholders, agents, employees and representatives, harmless from and against any claims, liabilities, damages, losses, costs and expenses, including, any bodily injury, illness, death or damage to any real or personal property, or any other injuries, losses, or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind, and including reasonable legal fees and litigation expenses and costs (“Losses”) arising out of or relating to or in any way connected with (i) your access to or use of the Website, including any and all features, functionality, tools, content and promotions available on and through the Website, (ii) your breach of the Terms, including any violation of federal, state or local or other applicable laws, rules or regulations or any infringement or misappropriation of the rights of any third party, and (iii) your gross negligence or willful misconduct.
8.7 Obligation to Defend
You agree that, at Offerpad's option, you will conduct the defense of any such claim or action; provided that, notwithstanding our election that you conduct the defense, (i) Offerpad may nevertheless participate in such defense or settlement negotiations and pay its own costs associated therewith, and (ii) you will not enter into any settlement or other compromise without the prior written approval of Offerpad (which approval shall not be unreasonably withheld), unless such settlement or other compromise includes a full and unconditional release of the relevant parties from all liabilities and other obligations in respect of such claim or action.
8.8 No Implied Indemnity
No person or entity shall be entitled to any form of equitable or implied indemnification at any time, except as provided by the Terms.
9. GOVERNING LAW & DISPUTE RESOLUTION
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND OFFERPAD HAVE AGAINST EACH OTHER ARE RESOLVED.
9.1 Governing Law
The Terms shall be governed by and interpreted in accordance with the laws of the State of Arizona without regard to conflict of law principles.
9.2 Arbitration and Class Action Waiver
All disputes, claims, controversies and matters arising out of or relating to or in connection with these TOU or the breach, termination, enforcement, interpretation or validity hereof, or to the use of the Website, including any Website (collectively, “Disputes”) shall be exclusively settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules (“AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place in Phoenix, AZ, USA before a single neutral arbitrator appointed in accordance with the AAA Rules and shall be conducted in the English language. You acknowledge that by agreeing to arbitration as the exclusive forum for the resolution of all Disputes, you are waiving the right to a trial by jury.
All arbitrations shall be conducted and resolved on an individual basis and not a class-wide, multiple plaintiff or similar basis. No arbitration shall be consolidated with any other arbitration proceeding involving any other person or entity.
9.3 Jurisdiction and Venue
In the event that arbitration is not available, you and Offerpad agree that any and all Disputes will be brought in the federal or state courts located in Phoenix, Arizona, and each agrees that such courts shall have exclusive jurisdiction and venue for any such actions. Further, either party may also seek injunctive or other equitable relief for breach of the Terms in any court of competent jurisdiction wherever located. Each party consents to the jurisdiction of and venue in such courts and waives any objection as to inconvenient forum.
9.4 Fees and Costs
The prevailing party in any suit, action or proceeding, including any arbitration proceeding, will be entitled to recover its reasonable legal fees and costs and expenses from the other party.
9.5 Future Amendments to this Section
In the event that we amend this “Governing Law & Dispute Resolution” section (other than an amendment to any notice address or site link provided herein) in the future, the amendment will not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the amendment. However, the amendment will apply to all other disputes or claims governed by this section that have arisen or may arise between you and Offerpad. We will notify you of amendments to this section by posting the amended Terms on www.Offerpad.com/Terms-of-Use. If you do not agree to the amended terms, you may close your account within 30 days and you will not be bound by the amended dispute resolution terms. If you do not have an account (or once you have closed your account, if applicable), you must cease using the Website immediately. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Offerpad in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted the Terms (or accepted any subsequent changes to the Terms).
10.2 Entire Agreement
You may not assign, transfer, delegate or sublicense any of your rights or obligations under the Terms, including by operation of law or merger or consolidation, without our express prior written consent, which may be granted or withheld in our sole discretion. Any attempted assignment, transfer, delegation or sublicense without the foregoing consent will be null and void. Offerpad may assign, transfer, delegate and/or sublicense our rights and obligations under the Terms, in whole or in part, in its sole discretion, without restriction.
Subject to the foregoing, the Terms will bind and inure to the benefit of the parties, their successors and assigns.
10.4 No Agency
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these TOU.
10.5 Survival of Terms
Any provisions of the Terms that contemplate performance or observance subsequent to the expiration or termination of this Agreement shall survive such expiration or termination.
Any notices or other communications permitted or required hereunder, including those regarding modifications to the Terms, will be in writing and given by Offerpad (i) via e-mail (in each case to the address that you provide), or (ii) by posting to the Website. For notices made by e-mail, the date on which such notice is transmitted will be deemed the date of receipt.
Our failure to exercise any right or enforce any obligation under the Terms or to take action with respect to a breach by you or others will not constitute a waiver of such right, obligation or breach. The waiver of any right, obligation or breach will be effective only if in writing and signed by a duly authorized representative of Offerpad. In addition, no waiver granted in any instance shall constitute a waiver in any other instance.
Except as expressly set forth in the Terms, the exercise by either party of any of its remedies under the Terms will be without prejudice to its other remedies available under contract, at law, in equity or otherwise.
Except as otherwise provided in the Terms, if an arbitrator or a court of competent jurisdiction finds any provision of the Terms to be invalid, void or unenforceable, in whole or in part, for any reason, the offending provision will be enforced to the maximum extent permissible and will not affect the validity or enforceability of the remaining provisions, which will remain in full force and effect.
The headings in the Terms are for reference purposes only and do not limit or otherwise affect the meaning or interpretation of any of the provisions hereof.
10.11 Third Party Beneficiaries
Except as otherwise expressly set forth herein, the Terms do not and are not intended to confer any rights or remedies upon any person other than the parties hereto.
In the Terms, unless the context requires otherwise: (i) “herein,” “hereof,” “hereunder,” “hereto,” and similar terms refer to the Terms collectively and as a whole, and not merely to the specific section, paragraph or clause in which the term appears, (ii) “or” connotes any combination of all or any of the items listed, and (iii) “including” (and any of its derivative forms) means “including but not limited to.”
10.13 Contact Us
If you have any questions or concerns, please contact us at Info@Offerpad.com.
You can also write to us at:Support
2212 East Williams Field Road, Building 11, Suite 215
Gilbert, Arizona 85295
10.14 California Residents
Pursuant to California Civil Code §1789.3, California residents are also entitled to the following specific consumer rights notice:
The name, and address of the provider of this Website is:Offerpad, LLC
2212 East Williams Field Road, Building 11, Suite 215
Gilbert, Arizona 85295
Complaints regarding the Website or requests to receive further information regarding use of the Website may be sent to the above address or to Info@Offerpad.com.
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N112, Sacramento, CA 95834 or by telephone at (916) 445-1245 or (800) 952-5210. Hearing impaired persons may call TDD (800)-326-2297 or TDD (916)-928-1227, see www.dca.ca.gov for additional information.
Copyright © 2017 Offerpad, LLC, an Arizona limited liability company with offices located at 2212 East Williams Field Road, Building 11, Suite 215, Gilbert, Arizona 85295. All rights reserved.