PLEASE READ THESE TERMS CAREFULLY, ASTHEY CONTAIN AN ARBITRATION AGREEMENT AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE ARBITRATION AGREEMENT LIMITS DEFERRED’S LIABILITY TO YOU AND REQUIRES INDIVIDUAL ARBITRATION FOR LEGAL DISPUTES BETWEEN YOU AND DEFERRED.
Deferred, Inc. (“Deferred”) is qaqualified intermediary that facilities Internal Revenue Code Section 1031 tax-deferred exchanges.
These Terms of Service outline the terms and conditions governing your use of Deferred’s website available at https://www.deferred.com (the "Site"). Your use of the Website, and the Services, as defined below, are subject to your compliance with these terms and conditions of service (the “Terms”). Please carefully read these Terms, including theDeferred Privacy Policy available at https://www.deferred.com/privacy before you use the Services or access the Website. If you do not agree with these Terms, you must not use any part of the Website.
We may update or amend these Terms from time to time without notice to you by posting a revised version of the Terms in the footer of our Site. Any changes will be effective prospectively as of the date noted when the updated Terms are posted. It is your responsibility to periodically review these Terms in case of any such updates or amendments. Your continued use of the Services will constitute an agreement to any revised or updated Terms.If you do not agree to any updates or amendments, you must stop using theServices.
We recommend that you print a copy of these Terms for your records.
1. Acceptance and ServicesOverview.
These Terms constitute a legally binding agreement made between Deferred and its affiliated, agents, service providers, and assigns (“we”, “our”, or “us”) and you, whether personally or on behalf ofan entity (“you or “your”). These Terms govern your use of the services, products, features, functions, technologies, Site, or content offered on theSite or through the services, and all related sites, regardless of how accessed, including by computer, mobile phone, tablet or any other device(collectively, the “Services”).
By signing up for the Service, using the Site, or by clicking a button or checking a box marked “I Agree” (or something similar), you understand and agree to comply with these Terms, and all applicable local, state, national and international laws and regulations. Do not use the Services if you do not agree to and accept the Terms.
2. Services with AdditionalTerms; Business Days.
Some of our Services may be subject to our additional terms, conditions, agreements, policies, guidelines, rules and schedules, which will be posted or made available separately from these Terms when the Services is offered (“Additional Terms”), including our PrivacyPolicy, located at https://www.deferred.com/privacy and the AAA Rules (described in Section 21.) Such Additional Terms are incorporated into and form a part of these Terms. If there is a conflict between these Terms and the Additional Terms, the Additional Terms will control.
3. Changes to These Terms;Modifications to Services; Corrections.
We may change these Terms from time to time. For example, we might change these Terms if there are changes to our Services, our technology, applicable laws, or for other reasons.If we do that, we will give you notice by posting the updated Terms on the Site. Any changes will become effective immediately after they are posted and will apply to your use of our Services after the changes become effective, except that changes addressing modifications to our Services or new functions or changes made for legal reasons may be effective immediately, with or without notice to you. Your continued use of our Services after these Terms have changed means that you accept those changes. If you do not agree to any changes, your only recourse is to stop using our Services. We may discontinue, temporarily or permanently, our Services or any part of our Services, or otherwise change our Services with or without notice. You agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuance of our Services.
There may be information on the Services that contains typographical errors, inaccuracies, or omissions, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Services at any time, without prior notice.
4. Eligibility.
You may use the Services only if you can form a binding contract with us. You must be eighteen (18) years or older and a resident of the United States in order to create an account with Deferred(“Account”). You may use the Services only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. The Services are not available to any person previously removed from the Services for any reason. Deferred reserves the right to deny the Services to any person for any reason in its sole discretion to the full extent permitted under applicable law.
5. Account Registration; Security.
When you create an Account, you may be required to pick a username, password, and/or other access credentials. Registration data and certain other information about you are governed by our Privacy Policy. You are solely responsible for the use of the Services under your Account, for maintaining the confidentiality of your Account and access credentials, and for restricting access to your computer and any other devices you use to access your Account, and you agree to accept responsibility for all activities that occur under your Account or access credentials. You may not assign or otherwise transfer your Account to any other person. You acknowledge that we are not responsible for third-party access to your Account, including access that results from theft or misappropriation of your Account or access credentials. We reserve the right, in our sole discretion, to refuse or cancel Services or terminate Accounts. You agree to (a) provide us with complete, accurate and up-to-date information for your Account and you agree to update such information and keep it accurate, complete and up-to-date; if you don’t, we might have to suspend or terminate yourAccount; (b) immediately notify us of any unauthorized use of your access credentials or Account or any other breach of security; and (c) ensure that you exit from your Account at the end of each session when accessing our Services. We will not be liable for any loss or damage arising from your failure to comply with this Section 5.
6. Our Services.
Qualified Intermediary
As a qualified intermediary, we help real estate investors complete like-kind exchanges for the purpose of deferring capital gains taxes.
ARTE: AI Tax Assistant (“ARTE”)
When you use the Services, you may choose to use or interact with our experimental tax research chatbot, ARTE, which is powered by generative artificial intelligence (“GenAI”). Tax information generated by ARTE should be used for informational purposes only. While ARTE is supported by information from across the Internet including, but not limited to, the Internal Revenue Code, Code of Federal Regulations, IRS documentation, and tax court rulings, we cannot guarantee the accuracy, completeness, or timeliness of the information ARTE provides. Use of ARTE does not create a client relationship and neither we nor ARTE provide tax advice. We recommend you seek professional tax guidance before making any decisions. Any actions taken based on the content generated by ARTE are at your own risk.
7. Purchases and Payment
You agree to provide current, complete, and accurate purchase and Account information for all purchases made via the Services. You further agree to promptly update Account and payment information, including email address, payment method, and payment card expiration date, so that we can complete your transactions and contact you as needed. Sales tax will be added to the price of purchases as deemed required by us. We may change prices at any time. All payments shall be in US dollars.
You agree to pay all charges at the prices then in effect for your purchases and any applicable shipping fees, and you authorize us to charge your chosen payment provider for any such amounts upon placing your order. We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment.
We reserve the right to refuse any order placed through the Services. We may, in our sole discretion, limit or cancel quantities purchased per person, per household, or per order. These restrictions may include orders placed by or under the same Account, the same payment method, and/or orders that use the same billing or shipping address. Were serve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers, or distributors.
8. Refunds
All sales are final and no refund will be issued.
9. Prohibited Activities
You may not access or use the Services for any purpose other than that for which we make the Services available. The Services may not be used in connection with any commercial endeavors except those specifically endorsed or approved by us.
As a user of the Services, you agree not to:
· Systematically retrieve data or other content from the Services to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us.
· Trick, defraud, or mislead us and other users, especially in any attempt to learn sensitive Account information such as user passwords.
· Circumvent, disable, or otherwise interfere with security-related features of the Services, including features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the Services and/or the Content contained therein.
· Disparage, tarnish, or otherwise harm, in our opinion, us and/or the Services.
· Use any information obtained from the Services to harass, abuse, or harm another person.
· Make improper use of our support services or submit false reports of abuse or misconduct.
· Use the Services in a manner inconsistent with any applicable laws or regulations.
· Engage in unauthorized framing of or linking to the Services.
· Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party's uninterrupted use and enjoyment of the Services or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of theServices.
· Engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools.
· Delete the copyright or other proprietary rights notice from any Content.
· Attempt t oimpersonate another user or person or use the username of another user. Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats ("gifs"), 1×1pixels, web bugs, cookies, or other similar devices (sometimes referred to as"spyware" or "passive collection mechanisms" or"pcms").
· Interfere with, disrupt, or create an undue burden on the Services or the networks or services connected to the Services.
· Harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Services to you.
· Attempt to bypass any measures of the Services designed to prevent or restrict access to theServices, or any portion of the Services.
· Copy or adapt theServices' software, including but not limited to Flash, PHP, HTML, JavaScript, or other code.
· Except as permitted by applicable law, decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of theServices.
· Except as may bethe result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, anyspider, robot, cheat utility, scraper, or offline reader that accesses theServices, or use or launch any unauthorized script or other software.
· Use a buying agent or purchasing agent to make purchases on the Services.
· Make any unauthorized use of the Services, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating Accounts by automated means or under false pretenses.
Use the Services as part of any effort to compete with us or otherwise use the Services and/or the Content for any revenue-generating endeavor or commercial enterprise.
10. Territorial Restrictions.
Software (as defined in Section 11) available in connection with ourServices and the transmission of applicable data, if any, is subject to UnitedStates export controls. No Software may be downloaded from our Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using our Services is at your sole risk. Recognizing the global nature ofthe Internet, you agree to comply with all domestic and foreign laws regarding your use of our Services.
11. Intellectual Property Rights
Services Content, Software, and Trademarks.
You acknowledge and agree that our Services may contain content or features (“Services Content”) that are protected by copyright, patent, trademark, trade secret, or other proprietary rights and laws. Except as expressly authorized by us, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute, or create derivative works based on thePlatform, our Services or the Services Content, in whole or in part. In connection with your use of our Services you will not engage in or use any data mining, robots, scraping, or similar data gathering or extraction methods. If you are blocked by us from accessing our Services (including by blocking yourIP address), you agree not to implement any measures to circumvent such blocking (for example, by masking your IP address or using a proxy IP address).Any use of the Website, our Services or the Services Content other than as specifically authorized in these Terms is strictly prohibited. The technology and software underlying our Services or distributed in connection with ourServices are the property of Deferred and our affiliates (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted in these Terms are reserved by us. Our respective names and logos are our trademarks and service marks (collectively, the“Trademarks”). Other product and service names and logos used and displayed via our Services may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to us. Nothing in these Terms, any Additional Terms or our Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the Trademarks displayed on our Services, without our prior written permission in each instance. All goodwill generated from the use of theTrademarks will inure to our exclusive benefit.
The Content and Marks are provided in or through the Services "AS IS" for your personal, non-commercial use or internal business purpose only.
Subject to your compliance with theseTerms, including Section 9 (Prohibited Activities), we grant you anon-exclusive, non-transferable, revocable license to: (a) access the Services;and (b) download or print a copy of any portion of the Content to which you have properly gained access, solely for your personal, noncommercial use or internal business purpose.
If you wish to make any use of theServices, Content, or Marks other than as set out in this section or else wherein our Terms, please address your request to: legal@deferred.com. If we ever grant you the permission to post, reproduce, or publicly display any part of our Services or Content, you must: (a) identify us as the owners or licensors of the Services, Content, or Marks, (b) ensure that any copyright or proprietary notice appears or is visible on posting, reproducing, or displaying our Content, (c) immediately cease using the Services, Content, or Marks uponDeferred’s written request.
Any breach of these IntellectualProperty Rights will constitute a material breach of our Terms and your rightto use our Services will terminate immediately.
Third-Party Material.
Under no circumstances will we be liable in any way for any materials of any third parties, including for any errors or omissions in any third-party’s material, or for any loss or damage of any kind incurred as a result of the use of any third party’s material. From time to time, theServices may contain references or links to third-party materials not controlled by Deferred or its suppliers or licensors. Deferred provides such information and links as a convenience to you and should not be considered endorsements of such sites or any content, products or information offered on such sites.
Feedback.
You may from time to time identify problems, solutions to identified problems, provide suggestions, comments or other feedback related to our Services or otherwise relating to Deferred(“Feedback”) to Deferred. You acknowledge and agree that all Feedback is and shall be given entirely voluntarily and Deferred is free to use or disclose such Feedback for any purpose. You further acknowledge and agree that yourFeedback does not contain confidential or proprietary information, and you are not entitled to any compensation or reimbursement of any kind from Deferred under any circumstances relating to such Feedback.
12. User Content; Reviews
ARTE Inputs/Outputs
You may provide input to ARTE (“Input”), and receive output generated and returned by ARTE based on the Input (“Output”). Input and Output are collectively “ARTE Content”. As between the parties and to the extent permitted by applicable law, you own all Input. Subject to your compliance with these Terms and applicable law, Deferred hereby assigns you all its right, title and interest in and to Output. Deferred may use ARTE Content, and you hereby grant Deferred all necessary rights with respect to ARTE Content, to provide and maintain the Services, comply with applicable law, and enforce our policies. You are responsible for your Input, including for ensuring that it does not violate any applicable law or these Terms.
Due to the nature of machine learning, Output may not be unique across users and ARTE may generate the same or similar Output for Deferred or a third party. Other users may also ask similar questions and received the same response. Responses that are requested by and generated for other user are not considered your ARTE Content. Accordingly, to the fullest extent permitted by applicable law, you hereby waive and agree to never assert against Deferred any and all rights you may have in or with respect to any Output, during or after the term of these Terms.
We may use ARTE Content to help develop and improve our Services.
Artificial intelligence and machine learning are rapidly evolving fields of study. We are constantly working to improve ARTE to make it more accurate, reliable, safe and beneficial. Given the probabilistic nature of machine learning, use of ARTE may in some situations result in incorrect Output that does not accurately reflect real people, places, or facts. You should evaluate the accuracy of any Output as appropriate for your use case, including by using human review of the Output.
User Contributions
The Services may invite you to chat, contribute to, or participate in blogs, message boards, online forums, and other functionality, and may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute, or broadcast (“Upload”)content and materials to us or on the Services, including but not limited to text, writings, video, audio, photographs, graphics, comments, User Reviews (as defined below), rating suggestions, or personal information or other material(collectively, "Contributions"). Contributions may be viewable by other users of the Services and through third-party websites. As such, any Contributions you transmit may be treated as non-confidential and non-proprietary. When you create or make available any Contributions, you thereby represent and warrant that:
· The Uploading, accessing, downloading, or copying of your Contributions do not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret, or moral rights of any third party.
· You are the creator and owner of or have the necessary licenses, rights, consents, releases, and permissions to use and to authorize us, the Services, and other users of the Services to use your Contributions in any manner contemplated by the Services and these Terms.
· You have the written consent, release, and/or permission of each and every identifiable individual person in your Contributions to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of yourContributions in any manner contemplated by the Services and these Terms.
· Your Contributions are not false, inaccurate, or misleading.
· Your Contributions are not unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation.
· Your Contributions are not obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous, or otherwise objectionable (as determined by us).
· Your Contributions do not ridicule, mock, disparage, intimidate, or abuse anyone.
· Your Contributions are not used to harass or threaten (in the legal sense of those terms) any other person and to promote violence against a specific person or class of people.
· Your Contributions do not violate any applicable law, regulation, or rule.
· Your Contributions do not violate the privacy or publicity rights of any third party.
· Your Contributions do not violate any applicable law concerning child pornography, or otherwise intended to protect the health or well-being of minors.
· Your Contributions do not include any offensive comments that are connected to race, national origin, gender, sexual preference, or physical handicap.
· Your Contributions do not otherwise violate, or link to material that violates, any provision of these Terms, or any applicable law or regulation.
Any use of the Services in violation of the foregoing violates these Terms and may result in, among other things, termination or suspension of your rights to use the Services.
When you Upload Contributions, you grant us an unrestricted, unlimited, irrevocable, perpetual, non-exclusive, transferable, royalty-free, fully-paid, worldwide right, and license to: use, copy, reproduce, distribute, sell, resell, publish, broadcast, retitle, store, publicly perform, publicly display, reformat, translate, excerpt (in whole orin part), and exploit your Contributions (including, without limitation, your image, name, and voice) for any purpose, commercial, advertising, or otherwise, to prepare derivative works of, or incorporate into other works, yourContributions, and to sublicense the licenses granted in this section. Our use and distribution may occur in any media formats now known or hereinafter developed and through any media channels.
This license includes our use of your name, company name, and franchise name, as applicable, and any of the trademarks, service marks, trade names, logos, and personal and commercial images you provide.
You are solely responsible for your Contributions and you expressly agree to reimburse us for any and all losses that we may suffer because of your breach of (a) this section, (b) any third party's intellectual property rights, or (c) applicable law.
We have the right to remove or edit any Contributions at any time without notice if in our reasonable opinion we consider such Contributions harmful or in breach of theseTerms. If we remove or edit any such Contributions, we may also suspend or disable your Account and report you to the authorities.
User Reviews
Deferred may provide you areas on the Services to Upload reviews or ratings (“User Reviews”). User Reviews are not endorsed by us, and do not necessarily represent our opinions or the views of any of our affiliates or partners. We do not assume liability for any review or for any claims, liabilities, or losses resulting from any review.
Deferred encourages each user to give an objective, constructive and honest User Review about with whom they have transacted. You agree that User Reviews enable users to Upload and other users to read about a user’s expression of their experiences and that you will not complain or take any action merely because you happen to disagree with such User Review.
Deferred is not obligated to investigate any User Reviews posted by users for accuracy or reliability or to consider any statements or materials Uploaded by users in any User Review but may do so at its discretion. We may accept, reject, or remove reviews in our sole discretion; however, we have absolutely no obligation to delete reviews, even if anyone considers reviews objectionable or inaccurate
A user may request removal of a User Review that violates these Terms by contacting Deferred at legal@deferred.com.
When posting a review, you must comply with the following criteria:
1. You should have firsthand experience with the person/entity being reviewed.
2. Your reviews must not contain offensive profanity, or abusive, racist, offensive, or hateful language.
3. Your reviews must not contain discriminatory references based on religion, race, gender, national origin, age, marital status, sexual orientation, or disability.
4. Your reviews must not contain references to illegal activity.
5. You should not be affiliated with competitors if posting negative reviews.
6. You should not make any conclusions as to the legality of conduct.
7. You must not post any false or misleading statements.
8. You must not organize a campaign encouraging others to post reviews, whether positive or negative.
13. Copyright Complaints.
We respect the intellectual property rights of others. If you believe that any material available on or through theServices infringes upon any copyright you own or control, please immediately notify us using the contact information provided below (a "Notification"). A copy of your Notification will be sent to the person who posted or stored the material addressed in the Notification. Please be advised that pursuant to applicable law you may be held liable for damages if you make material misrepresentations in a Notification. Thus, if you are not sure that material located on or linked to by the Services infringes your copyright, you should consider first contacting an attorney.
14. Termination.
You agree that we, in our sole discretion, may suspend, restrict access to, or terminate your Account or use of our Services, including but not limited to canceling or suspending certain transactions, for any reason, including for lack of use orif we believe that you have violated or acted inconsistently with the letter or spirit of these Terms. Engaging in any suspected fraudulent, abusive, orProhibited Activity may be grounds for termination of your use of our Services may be referred to appropriate law enforcement authorities. You agree that any termination of your access to our Services under any provision of these Terms may be effected without prior notice and acknowledge and agree that we may immediately deactivate or delete your Account and all related information and files in your Account and/or bar any further access to such files or ourServices, subject to applicable law. Further, you agree that we will not be liable to you or any third party for any termination of your access to ourServices.
If we terminate or suspend your Account for any reason, you are prohibited from registering and creating a new Account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your Account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
15. Disclaimer of Warranties.
THE SERVICES ARE PROVIDED ON AN AS-ISAND AS-AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES,EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND YOUR USE THEREOF,INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICES' CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THE SERVICES AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER,RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES, (5) ANY BUGS, VIRUSES, TROJAN HORSES, ORTHE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY, AND/OR (6) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FORANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT ORS ERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
16. Limitation of Liability.
IN NO EVENT WILL WE OR OUR DIRECTORS,EMPLOYEES, OR AGENTS AND ANY THIRD PARTY SERVICE PROVIDERS BE LIABLE TO YOU ORANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL,SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OFDATA, OR OTHER DAMAGES ARISING FROM YOUR USE OF THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TOTHE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US DURING THE SIX (6) MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING. CERTAIN US STATE LAWS AND INTERNATIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
17. Indemnification.
You agree to release, indemnify, and hold us, our third-party product providers, our and their affiliates, officers, employees, directors, shareholders, and agents harmless from any and all losses, damages, judgments, settlements, fines, penalties, fees, costs and expenses, including reasonable attorneys’ fees, claims, actions of any kind, proceedings, and injury (including death) arising out of or relating to your use of our Services, any Services Content, your connection to our Services, your violation of these Terms, or your violation of any rights of another.
If you are a California resident, you waive California Civil Code Section 1542, which says: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defense of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
18. User Data
We will maintain certain data that youtransmit to the Services for the purpose of managing the performance of theServices, as well as data relating to your use of the Services. Although weperform regular routine backups of data, you are solely responsible for alldata that you transmit or that relates to any activity you have undertakenusing the Services. You agree that we shall have no liability to you for anyloss or corruption of any such data, and you hereby waive any right of actionagainst us arising from any such loss or corruption of such data.
19. California Users and Residents.
If any complaint with us is not satisfactorily resolved, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
20. Governing Law; Venue.
These Terms will be governed by the laws of the State of Delaware without regard to its conflict of law provisions. With respect to any disputes or claims notsubject to arbitration, as set forth below, you and we agree to submit to the personal and exclusive jurisdiction of the State and federal courts located within Kent County, Delaware . If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of our Services or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of these Terms and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
21. Dispute Resolution by Binding Arbitration; Class Action Waiver.
YOU MUST READ THIS SECTION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US. YOU UNDERSTAND THAT YOU HAVE THE RIGHT TO REJECT THIS SECTION AS PROVIDED IN SECTION 21 BELOW.
Election to Arbitrate; NoJury Trial.
This Section 21 is referred to in these Terms as the “Arbitration Provision.” You agree that any and all disputes or that have arisen or may arise between you and us, whether arising out of or relating to these Terms (including any alleged breach), ourServices, any advertising, any aspect of the relationship, or transactions between us, will be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this ArbitrationProvision, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Provision does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf.
You agree that, by entering into these Terms, you and we are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not by a judge or jury.
Applicability of FederalArbitration Act; Arbitrator’s Powers.
This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed and enforceable under the Federal Arbitration Act (“FAA”).The arbitrator will apply substantive law consistent with the FAA and applicable statutes of limitations. The arbitrator may award damages or other types of relief permitted by applicable substantive law, subject to the limitations set forth in this Arbitration Provision. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court. The arbitrator shall take steps to reasonably protect confidential information.
Opt-Out of ArbitrationProvision.
You may opt-out of this Arbitration Provision for all purposes by sending an arbitration opt-out notice to legal@deferred.com within 60 days of the date of your electronic acceptance of these Terms. The opt-out notice must clearly state that you are rejecting arbitration; identify these Terms to which it applies by date; provide your name, address, and social security number; and be signed by you. You may send an opt-out notice in any manner you see fit as long as it is received at the specified address within the specified time. No other methods can be used to opt-out of this Arbitration Provision. If the opt-out notice is sent on your behalf by a third party, such third party must include evidence of his or her authority to submit the opt-out notice on your behalf.
Class Action Waiver.
YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS ANDNOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAYNOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY,INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATE DBY THAT PARTY’S INDIVIDUAL CLAIMS.
Pre-Arbitration DisputeResolution; Required Notice to Us.
We are always interested in resolving disputes amicably and efficiently, and most user concerns can be resolved quickly and to the user’s satisfaction by emailing customer support at legal@deferred.com . If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other a written Notice ofDispute (“Notice”). The Notice to us should be sent legal@deferred.com (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If you and we do not resolve the claim within sixty (60) calendar days after the Notice is received, you or we may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by us or you will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or we are entitled.
Arbitration Procedure.
Arbitration will be conducted by a neutral arbitrator in accordance with the American ArbitrationAssociation’s (“AAA”) rules and procedures, including the AAA’s ConsumerArbitration Rules (collectively, the “AAA Rules”), as modified by thisArbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would. All issues are for the arbitrator to decide, including issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms and applicable law.Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Any arbitration hearings will take place in California at a reasonably convenient location for both parties with due consideration of each’s ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by AAA. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Costs of Arbitration.
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. Any payment of attorneys’ fees will be governed by the AAA Rules.
Confidentiality.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator will be strictly confidential for the benefit of all parties.
Survival and Severabilityof Arbitration Provision.
This Arbitration Provision shall survive the termination of these Terms.
If a court or the arbitrator decides that any term or section of this Provision is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Provision will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of Section 21 are invalid or unenforceable, then the entirety of this Arbitration Provision will be null and void, unless such sections are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of theseTerms will continue to apply.
Future Changes to Arbitration Agreement.
Notwithstanding any provision in these Terms to the contrary, we agree that if we make any future change to this Arbitration Agreement (other than a change to the NoticeAddress) while you are a user of our Services, you may reject any such change by sending us written notice within 30 calendar days of the change to theNotice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
22. General.
Entire Agreement. These Terms and any AdditionalTerms constitute the entire agreement between you and us and govern your use of our Services, superseding any prior agreements between you and us with respect to our Services. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third party content, or third-party software.
Assignment; Waiver. These Terms are specific to the relationship between you and us. You may not assign these Terms without our prior written consent, but we may assignor transfer these Terms, in whole or in part, without restriction. Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If we decide to make a special exception and waive your obligation to follow any part of these Terms, we will notify you in writing.
Section Headings. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
Notices. Any written notice you give us is effective when we actually receive it, and it must be given to us according to the specific delivery instructions provided, if any. If no delivery instruction is provided, notice must be given by emailing us at legal@deferred.com. We must receive it in time to have a reasonable opportunity to act on it. Written notice we give you is effective when it is deposited in the U.S. mail with proper postage and addressed to your mailing address associated with your Account or emailed to you at the email address we have on file for you. The Services may also provide notices to you of changes to these Terms or other matters by displaying notices or links to notices generally on the Services.
Survival.Those individual provisions that by their nature should survive in order to effectuate the purpose of these Terms shall survive any termination of theseTerms.
Force Majeure. We shall not be liable for any delays in performance nor be deemed to have defaulted or breached these Terms of Service for causes beyond our control, including without limitation, an act of God, an act of the public enemy, acts of declared or undeclared war (including acts of terrorism), public disorder, rebellion, sabotage, fire, flood, landslide, earthquake, epidemic, pandemic, government declarations or orders, unusually severe weather, strike, restriction by civil or military authority in their sovereign or contractual capacities, transportation failure, loss or malfunctions of communications or computer (software and hardware) services, power line or other utility failures or interruptions, inability to obtain labor or any other.
Relationship of Parties. These Terms do not constitute, and no express or implied term hereof, shall be construed to constitute a joint venture, association, or partnership between you and us.
23. Contact Us.
In order to resolve a complaint regarding the Services or to receive further information regarding use of the Services, please contact using this form: deferred.com/contact.
