The terms and conditions of this User Agreement (this “Agreement”) will govern the relationship between you and Austin Investor Interests, LLC, a Texas corporation (“Austin Investor Interests, LLC”), with respect to your use of and access to www.apartmenttrends.com (the “Site”) and any information or materials contained therein (collectively with the Site, the “Services”). You and each other recipient of any of the Services are sometimes collectively referred to herein as the “Customers.” PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING THE “I ACCEPT” BUTTON BELOW OR BY USING OR ACCESSING THE SERVICES OR THE SITE OR ANY PORTION OF EITHER, YOU ARE REPRESENTING THAT YOU ARE ELIGIBLE FOR AN ACCOUNT AND THAT YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT WITH THE SAME FORCE AND EFFECT AS IF YOU HAD ACTUALLY SIGNED THIS AGREEMENT. IF YOU ARE NOT SO ELIGIBLE OR DISAGREE WITH ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE NOT ENTITLED TO USE OR ACCESS ANY PORTION OF THE SERVICES OR THE SITE; IN THAT EVENT, CLICK ON THE "CANCEL" BUTTON BELOW TO EXIT.NOW, THEREFORE, in consideration of the mutual representations, warranties and covenants contained herein, the parties hereby agree as follows:
1. Access to Site and Services.
Austin Investor Interests, LLC hereby grants Customer a personal, single-user, limited, non-exclusive, non-transferable, revocable right to access and use the Services subject to the provisions of this Agreement. Customer shall provide Austin Investor Interests, LLC with an operational email address, and shall be solely responsible for updating Austin Investor Interests, LLC if such email address changes. Customer agrees to accept and read completely all communications sent by Austin Investor Interests, LLC to such email address. All notices provided to Customer using such email address shall be deemed immediately received by Customer.
2. Accuracy of Customer’s Information.
All of the information provided by Customer to Austin Investor Interests, LLC through or in connection with Customer’s registration to use the Site and Services shall be true, accurate, current and complete. Without limitation to the foregoing, Customer shall not attempt to impersonate any person or entity, misrepresent any affiliation with any person or entity, or attempt to conceal Customer’s identity from Austin Investor Interests, LLC.
4. Modification of this Agreement.
Austin Investor Interests, LLC reserves the right to change the terms of this Agreement from time to time upon 15 days’ prior written notice to Customer. After the conclusion of such notice period, if Customer uses the Site or the Services, then Customer shall be deemed to have accepted and agreed to such changes.
5. Reports and Services.
The Services provided include Customer’s ability to use the Site to generate reports on selected commercial real estate properties, trends, sales comparables, property management information and such other informational content as Austin Investor Interests, LLC may provide from time to time (collectively, the “Reports”). The Reports incorporate data, maps, statistics and other information obtained from Austin Investor Interests, LLC’s sources. The Reports and Services are provided strictly for Customer’s personal, noncommercial use.
(a) Upon registering to use the Site, Customer shall provide all requested billing information, including credit card information. Customer hereby represents and warrants to Austin Investor Interests, LLC that all such billing information shall be complete, current and accurate. In the event Austin Investor Interests, LLC is unable to charge Customer’s credit card account for fees incurred by Customer, Customer will remain responsible for and agree to pay such charges by other means acceptable to Austin Investor Interests, LLC in its sole discretion. Client expressly acknowledges and agrees that Austin Investor Interests, LLC may change its fees or add new fees at any time, effective when posted on the Site. Austin Investor Interests, LLC may, but shall have no obligation to, provide reasonable prior notice to Client of such fee changes. Customer shall pay any and all taxes incurred in connection herewith, including all sales and value-added taxes, but excluding taxes based on Austin Investor Interests, LLC’s income.
7. Proprietary Information.
As between Customer and Austin Investor Interests, LLC, Austin Investor Interests, LLC owns all right, title and interest in and to the Site, Services and Reports and all portions of any thereof. Except as specifically set forth in Section 1 above, this Agreement does not grant Customer any right, title, interest or license in or to any of the intellectual property rights of Austin Investor Interests, LLC with respect to the Site, Services and Reports and all portions of any thereof. As between Customer and Austin Investor Interests, LLC, all materials, information or content included on the Site, including, but not limited to the look and feel of the Site, is the property of Austin Investor Interests, LLC and is protected by U.S. and international copyright, trademark and other laws. Customer hereby agrees that it shall access and use the Site, Services and Reports solely for its personal benefit, and the reproduction, duplication, modification, distribution, transmission, replication, display or performance by any person or entity of such materials, information or content that constitutes the Site, Services and Reports and all portions of any thereof without the express written permission of Austin Investor Interests, LLC is strictly prohibited.
8. Termination or Interruptions.
Austin Investor Interests, LLC may at any time and from time to time in its sole discretion, interrupt, modify or discontinue, temporarily or permanently, the Services or the Site (or any portion of any thereof) for maintenance and other operational reasons. Austin Investor Interests, LLC will, however, endeavor to give Customer reasonable advance notice (by posting on the Site or otherwise) of any scheduled interruptions, if practicable. In no event shall Customer receive any compensation or refund for any of the matters described in this Section nor will Austin Investor Interests, LLC be liable to Customer or any other person or entity for any of such matters.
9. Compliance with Certain Security Precautions.
Customer acknowledges and agrees that electronic communications and Web sites are subject to errors, tampering and break-ins and that, notwithstanding Austin Investor Interests, LLC’s implementation of reasonable security precautions, including with respect to any Customer information, Austin Investor Interests, LLC does not guarantee or warrant that such events will not take place. Customer acknowledges and agrees that Austin Investor Interests, LLC has the right to employ such access and security procedures as Austin Investor Interests, LLC may from time to time determine, in its sole discretion, are necessary to the protection of the Site. Customer further agrees to follow all such access and security procedures, and shall not attempt, nor shall it permit its representatives to attempt, to circumvent or otherwise interfere in any way with any such security precautions or measures of Austin Investor Interests, LLC or the Site.
10. Term and Termination.
(a) This Agreement shall become effective as of the date when Customer registers to use the Site and/or Services and shall remain effective unless and until terminated by Customer or Austin Investor Interests, LLC as provided below. (b) Either party has the right to terminate this Agreement at any time by providing written notice of such termination to the other party. In the event of Customer’s termination of this Agreement, all non-used time in a subscription may be refunded on a pro rata basis and single-issue prices will be charged in lieu of the discounted subscription price for the allotted time used. Fees for single-use Reports are nonrefundable. (c) Neither termination nor expiration of this agreement or Customer’s user name and password shall affect any rights and obligations with respect to any breaches of this Agreement that occurred prior to such termination or expiration or that arise under Sections 3, 5-7 and 11-12, all of which survive termination or expiration.
11. Warranties, Disclaimers and Limitations of Liability.
(a) Customer represents and warrants to Austin Investor Interests, LLC that: (i) its use of the Site and the Services (including, without limitation, all Reports) shall not violate any agreement applicable to Customer or violate any applicable law or regulation; and (ii) Customer is over 18 years of age and and/or has the full power, authority and capacity to enter into and perform Customer’s obligations under this Agreement.(b) THE SITE AND ALL REPORTS AND OTHER SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY ARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, ANY WARRANTIES REGARDING TITLE OR AGAINST INFRINGEMENT OR ANY WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. AUSTIN INVEST OR INTERESTS DOES NOT GUARANTEE THE ACCURACY OR COMPLETENESS OF ANY REPORTS OR SERVICES. IN ADDITION, AUSTIN INVESTOR INTERESTS, LLC DOES NOT GUARANTEE THAT THE SITE OR ANY SERVICES SHALL BE ERROR-FREE OR UN-INTERRUPTED, NOR DOES AUSTIN INVESTOR INTERESTS, LLC MAKE ANY WARRANTIES REGARDING AVAILABILITY OF THE SITE OR ANY SERVICES OR REPORTS.(c) CUSTOMER EXPRESSLY ACKNOWLEDGES THAT THERE ARE SECURITY, PRIVACY AND CONFIDENTIALITY RISKS INHERENT IN THE USE OF THE INTERNET AND THAT AUSTIN INVESTOR INTERESTS, LLC DOES NOT GUARANTEE THE SAFETY OR INTEGRITY OF ANY SYSTEM CONNECTED TO THE SITE. THIS INCLUDES VIRUS AND/OR OTHER INFESTATION OF SUCH SYSTEMS, HACKER ACTIVITY AND EXPOSURE OF PERSONAL OR CONFIDENTIAL DATA. CUSTOMER AGREES TO BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM ANY OF THE FOREGOING. (d) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL AUSTIN INVESTOR INTERESTS, LLC BE LIABLE WITH RESPECT TO THIS AGREEMENT, THE SITE, THE SERVICES OR ANY REPORT FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, RELIANCE, PUNITIVE OR OTHER EXEMPLARY DAMAGES, INCLUDING ANY LOSS OF PROFITS, DATA, SAVINGS OR INTEREST, ANY PENALTIES OR ASSESSMENTS IMPOSED UNDER APPLICABLE TAX LAWS OR OTHERWISE, EVEN IF AUSTIN INVESTOR INTERESTS, LLC HAS BEEN ADVISED OF THE LIKELIHOOD THEREOF. IN NO EVENT SHALL AUSTIN INVESTOR INTERESTS, LLC’S AGGREGATE LIABILITY WITH RESPECT TO ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT, THE SITE, REPORTS AND OTHER SERVICES EXCEED THE AMOUNT OF THE SUBSCRIPTION FEES OR REPORT FEES ACTUALLY PAID BY CUSTOMER DURING THE THREE-MONTH PERIOD PRECEDING THE DATE WHEN THE FIRST CLAIM ARISES.
(a) Customer will indemnify, hold harmless and, at the request of Austin Investor Interests, LLC, defend (with counsel reasonably acceptable to Austin Investor Interests, LLC) Austin Investor Interests, LLC and its owners, officers, directors, employees, agents and representatives from and against any and all claims, demands, charges, losses, liabilities, obligations, costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) incurred by any of the same with respect to, as a result of, based on or in connection with (i) any breach of any provision of this Agreement, (ii) any claim that Customer (or any other user of Customer’s account) infringed or misappropriated any intellectual property, proprietary or other right of any person or entity, and/or (iii) Customer’s use of the Services, the Reports and/or the Site. Customer will be obligated to indemnify Austin Investor Interests, LLC and any other person or entity indemnified hereunder for any of the foregoing regardless of whether the Loss in question arises in whole or in part from any negligent act or omission of an indemnified person or entity, from strict liability in tort of an indemnified person or entity, or otherwise, but in such event Customer will not be responsible for that portion of the Loss that results from a negligent act or omission of an indemnified person or entity. (b) Austin Investor Interests, LLC will notify Customer of any matter in respect of which it or any other person or entity entitled to indemnification hereunder seeks indemnity from Customer promptly after it becomes aware of such matter; provided, however, that any failure to give prompt notice of such matter will not relieve Customer from any of Customer’s obligations hereunder with respect to such matter unless (and then only to the extent that) such failure materially and adversely affects Customer’s ability to defend any claim or action arising out of such matter. In the event that Austin Investor Interests, LLC requests that Customer defend it or any other person or entity indemnified hereunder with respect to any Loss, Customer will assume the defense of such matter, provided that Austin Investor Interests, LLC will have the right to participate in the defense with counsel of its own choice and to approve any settlement or compromise, or any consent to entry of any judgment, unless such settlement, compromise or consent includes as an unconditional term thereof the giving by the claimant or plaintiff to Austin Investor Interests, LLC and to any other person or entity indemnified hereunder of a release from all liability in respect to such matter and does not include any other material restrictions or affect Austin Investor Interests, LLC or any such other indemnified person or entity. In the event that Austin Investor Interests, LLC requests that Customer defend it with respect to any Loss, Customer will keep Austin Investor Interests, LLC informed at all times as to the status of your efforts and consult with Austin Investor Interests, LLC concerning the same.
(a) The Site may contain links to other third-party Internet sites (“Other Sites”). Links from the Site to Other Sites do not constitute an endorsement by Austin Investor Interests, LLC of such Other Sites, nor shall Austin Investor Interests, LLC have any liability or responsibility to Customer in connection with Customer’s use of such Other Sites. (b) No waiver of any breach of any provision of this Agreement will constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provision, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party. (c) Austin Investor Interests, LLC’s performance of this Agreement is subject to existing laws and legal process, and nothing contained in this Agreement is in derogation of Austin Investor Interests, LLC’s right to comply with governmental, court and law enforcement requests or requirements relating to Customer’s access and/or use of any Services, the Site or any Reports, or any other products or services provided or to be provided by or on behalf of Austin Investor Interests, LLC or any information provided by Customer or gathered by Austin Investor Interests, LLC with respect to such use. (d) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF, THE STATE OF TEXAS, EXCLUSIVE OF PRINCIPLES OF CONFLICTS OF LAWS. THE PARTIES HEREBY SUBMIT TO THE JURISDICTION OF ALL FEDERAL AND STATE COURTS OF TRAVIS COUNTY, TEXAS, U.S.A. AND HEREBY AGREE THAT ANY SUCH COURT SHALL BE A PROPER FORUM FOR THE DETERMINATION OF ANY DISPUTE ARISING HEREUNDER. (e) This Agreement constitutes the entire agreement between Austin Investor Interests, LLC and Customer concerning the subject matter of this Agreement and supersedes all prior agreements or understandings of the parties with respect to the same, whether communicated in written, oral, or electronic form. Any exhibits, schedules, addenda or attachments to this Agreement and any other terms or conditions incorporated by reference into this Agreement will constitute an integral part of this Agreement. (f) Customer may not transfer or assign any of Customer’s rights or obligations under this Agreement, in whole or in part, to any other person or entity without the prior written consent of Austin Investor Interests, LLC. Any attempted transfer or assignment in violation of the foregoing shall be void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective heirs, successors and permitted assigns. (g) Except to the extent that this Agreement specifically provides for other means of notice or communication, all notices and other communications hereunder must be in writing and either delivered in person (including delivery by courier, facsimile, telex or similar means) or sent by mail, postage prepaid, registered or certified, return receipt requested, and addressed to the party entitled to receive such notice or communication at the address for such party referred to below or at such other address as such party shall designate in a written notice sent to the other party. The initial address for notice to Austin Investor Interests, LLC is P.O. Box 340785, Austin, Texas 78734, Attention: President, and the initial address for notice to Customer is the address supplied by Customer in Customer’s most recent registration with respect to the Services. Except as may be specifically provided herein, any such notice will be deemed effective as of the date of delivery or, if mailed in the manner set forth above, three (3) days after the date of mailing. Austin Investor Interests, LLC may also provide notice to Customer by email or by posting notices or links to notices on the Site, and any such notice will be deemed effective as of the date of transmission or posting. (h) This Agreement will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party. As used in this Agreement, the term “including” means “including without limitation” and, unless otherwise specified, the term “days” means calendar days. (i) Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement, or the application thereof to any person or entity or under any circumstances, will be invalid or unenforceable to any extent under applicable law, and the extent of such invalidity or unenforceability does not cause substantial deviation from the underlying intent of the parties as expressed in this Agreement, then such provision will be deemed severed from this Agreement with respect to such person, entity or circumstance, without invalidating the remainder of this Agreement or the application of such provision to other persons, entities or circumstances, and a new provision will be deemed substituted in lieu of the provision so severed which new provision will, to the extent possible, accomplish the intent of the parties hereto as evidenced by the provision so severed. (j) Any cause of action that Customer may have arising out of or related to this Agreement, the Services, the Reports, the Site or any other products or services provided or to be provided by or on behalf of Austin Investor Interests, LLC hereunder or on the Site must be commenced by Customer within a one (1) year period after the cause of action arose; otherwise, such cause of action by Customer is permanently barred. (k) The rights and remedies of Austin Investor Interests, LLC hereunder, including its rights to terminate Customer’s account or this Agreement, are not exclusive, and Austin Investor Interests, LLC will be entitled alternatively or cumulatively to damages for breach of this Agreement, to an order requiring performance of the obligations of this Agreement, or to any other appropriate order or remedy available at law or in equity, including an injunction restraining Customer from breaching any of the provisions of this Agreement. In the event of a breach by Customer of any provision of this Agreement, Austin Investor Interests, LLC will be entitled to recover from Customer all costs and expenses, including attorneys fees, incurred by it in seeking any such remedies.