We offer you the web sites, applications, software-as-a-service, databases, content and other services of VerticalCloud, LLC ("Services") provided that you agree to the following terms.
BY USING OUR SERVICES, YOU SIGNIFY YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS.
It is important that you read the entirety of and understand this document.
1. About these Terms.
These terms, including any purchase orders and supplemental terms provided to you for any of the Services offered, owned, or operated by VerticalCloud, LLC, serve as a contract between you and us (either the "Terms" or the "Agreement"). You agree that these terms are in electronic form and have the same effect as an agreement in writing. If you do not agree to these terms, do not use the Services.
The term "we" or "us" means VerticalCloud, LLC, its affiliates, subsidiaries and parent. The term "you" or "your" means you as an individual or the entity on whose behalf you are accepting these Terms.
3. Changes to these Terms.
We may change these Terms at any time. The changes take effect after we post notice of the changes. If you do not agree to the changes, you must cancel and discontinue your use of the Services before the new terms take effect. Otherwise, your ongoing use of the Services signifies your agreement to the new terms. If you are under a subscription plan or an agreement for a term that is greater than month-to-month period, the changes take effect upon any renewal term or new subscription.
4. The Services.
a. We serve as a passive intermediary in which prospective customers can submit applications for leasing or acquiring services and to process payments for such services. We also give providers of services, such as landlords, the ability to enter into transactions directly with customers and prospective customers such as tenants. You understand and agree that tenants and other customers are entering into contracts directly with landlords and other providers, and not with us. We are not a party to these transactions.
b. We may discontinue or change any aspect of the Services at any time and without liability to you. We operate our Services in the United States and we have not customized the Services for use in any other country. You are solely responsible for complying with all local, state and federal laws when you access and use the Services. We may link to other sites, but these links do not mean that we endorse the content of such sites or that we take responsibility for their content.
c. We offer the Services "AS IS" for general information. We do not promise that the content offered on the Services is verified or endorsed by us. We make no guarantee about the truthfulness, accuracy, reliability, completeness, timeliness, legality or applicability of any content or information submitted by our vendors, users or customers on the Services. We reserve the right, but we have no obligation to pre-screen, review, monitor or remove any content that violates these Terms.
d. We do not broker, lease, sublease or sell apartments, other property or services. We do not guarantee any results that you may have with a seller or landlord.
e. We may offer from time-to-time white label programs for our customers. Please visit http://www.verticalcloud.com for information and the program’s terms and conditions.
f. We may offer from time-to-time payment collection services, such as "online rent collection" services. If you elect to use this service, you must apply to the service and agree to the terms that apply to such service.
g. When you use the Services, you must comply with all applicable laws. Such laws include without limitation, and if applicable, regulations and laws pertaining to Specially Designated Nationals and Blocked Persons list published by the Office of Foreign Assets Control of the U.S. Department of the Treasury, Gramm-Leach Bliley Act, Fair Credit Reporting Act, Truth in Lending Act, Real Estate Settlement Procedures Act, Equal Credit Opportunity Act, and the Fair Housing Act.
If you register with us, you must be of legal age and legally capable to enter into a contract. You must provide us with true and accurate information about yourself or your business, and you agree to keep this information up to date. If you are registering on behalf of a company or other entity, you represent and warrant that have the authority to bind your principal or employer company. Your registration is subject to our approval.
6. Your Account.
If we accept your application and registration for the Services, you will select a User ID and password and we will open an account for you. You are responsible for all activities on your account, including the use of your account by others. You are responsible for all costs to access the Internet. You are responsible for keeping your account credentials confidential. We are not responsible if another person can compromise your account because you failed to keep your credentials confidential, such as, when you allow another to use your account or if your mobile or other computing device is lost or stolen. You are responsible for notifying us immediately if you believe your account is compromised.
7. Your Information.
8. Our Ownership Rights. We, our users and our licensors exclusively own all intellectual property rights, title and interest in the Services, including without limitation compilation of content and data, computer code, aggregate user review ratings, applications, Web site organization and designs, trademarks, trade names, logos and all other elements and components of the Services.
9. Limited License.The Services are licensed, not sold. We give you a personal, limited, non-transferable, non-assignable and non-exclusive license to access and use the Services for your personal or internal business use and subject to these Terms.
When using The Services, you may not, nor permit any other party to:
Copy, record, resell, retransmit, redistribute, modify, translate or otherwise create derivative works of the Services;
Export or re-export the Services or our technology and applications in violation of any United States export law or regulation;
Violate these Terms;
Violate intellectual property rights, privacy rights or the rights of others;
Frame our Web sites, pages or other content;
Scrape or use any manual or automated process to capture data or content from the Services;
Store or use our databases to create an archival, searchable database of our data and materials;
Sell, license or distribute any code or data from out databases to third parties;
Compile data in a manner that is used or usable by a competitive product or service;
Use our trademarks, trade names and logos in any solicitations or to suggest an affiliation between you and us unless we agree otherwise;
Take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on our infrastructure or otherwise make excessive traffic demands of our computer networks;
Attempt to gain unauthorized access, circumvent our registration process, or use any process to damage, disable, impair, or otherwise attack the Services or its network and computers;
Disclose anyone’s identification documents, sensitive financial information or other private or sensitive information;
Transmit unlawful, threatening, abusive, harassing, tortious or obscene content;
Publish falsehoods, misrepresentations or libelous content;
Publish content that harasses or disparages others on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
Impersonate any person, business or entity;
Violate any applicable local, state, federal, national or international law, statute, ordinance, or regulation including, without limitation, laws and regulations pertaining to consumer protection, unfair competition, antidiscrimination, false advertising, truth in lending, real estate settlement procedures, equal credit opportunity, fair housing or fair credit reporting; or
Transmit viruses or any other malicious computer code.
Invite yourself as a fictitious applicant (tenant) from VerticalRent with the intent of re-engineering our business processes.
You have no authority to attempt access to the Services that violate these Terms. We may take any legal and technical remedy to prevent the violation of these terms.
11. Your Content.
The Services may offer features where users may submit content, including without limitation, profiles, ratings, application information, financial information and comments on forums and discussion boards. We do not claim ownership of any content submitted by you or our other users, although we claim ownership of any compilation of content on the Services. By submitting Content to the Services:
a. You grant us, our affiliates, and distributors a perpetual, worldwide and royalty free right to use, copy, store, display, perform, distribute, redistribute, syndicate, transmit, adapt and promote your content, and any information contained within such content, in any medium including, without limitation, the use of your user name and alias associated with your content.
b. Submit any application or financial information that you authorize us to forward at your direction and on your behalf to any seller, landlord or potential customer.
c. If you participate in any feature on the Services that allows users to share, modify, or combine user content with other content, you grant us and our users an irrevocable, royalty free, fully paid up, perpetual, worldwide right and license to use, share, reproduce, modify, create derivative works, display, distribute and perform your content on the Services. Any suggestions or ideas that you submit to us become our property and can be used by us for any purpose. We will not pay you for your submissions. You represent and warrant to us that you have all rights necessary for you to grant the permissions in this section.
12. Payments & Fees.
a. You agree to pay the applicable fees and charges for purchases that you make from us and the Services. We may limit the number of promotions for which you may be eligible in a given period. When subscribing to our online rent collection or application fee payout feature, we make electronic transfers of money via the Automated Clearing House (‘ACH’) system. Payout time can take anywhere from 7 to 10 business days, and we make no guarantees of next day payout for applicant rent payment to your designated account.
b. You agree to give us accurate billing and payment information and keep this information up-to-date. Every time you make a purchase, you reaffirm that (i) we are authorized to charge your designated payment method; (ii) we may submit charges incurred under your account for payment; and (iii) you will be responsible for such charges.
c. YOU AGREE THAT WE MAY CHARGE YOUR PAYMENT METHOD FOR ALL AMOUNTS DUE TO US WITHOUT ADDITIONAL NOTICE OR CONSENT unless required otherwise by law. If we do not receive payment from your designated payment method, you agree to pay all amounts due upon demand by us. You are responsible for all charges incurred under your account made by you or anyone who uses your account. We may, in our discretion, post charges to your payment method individually or may aggregate your charges with other purchases you make on the Services. You agree that any submissions you make for electronic purchases constitute your intent and agreement to be bound by the terms of and pay for such purchases. All orders are final and non-refundable.
d. You will be required to enter into a separate agreement when signing up for online rent collection services through our Services.
e. We reserve the right to discard subscriber data without notice for non-payment of service fees. Further, we do not have an obligation to maintain or forward subscriber data upon termination of your Services. Your right to access your data will immediately cease on cancellation of the Services and/or violation of these Terms.
13. Billing & Charges.
We charge and collect fees in advance for use of the Services. We do not pro-rate for monthly subscription fees on the VerticalRent Professional or Premium plans. For example, if you upgrade from our Basic subscription plan to the Premium subscription ($10/month), you are charged $10.00 immediately and will be charged again on the 15th of the month automatically until you cancel.
There are no refunds or credits for partial months or years or service purchased in advance.
14. 15 Day Free Public Trial to Products.
We may offer from time-to-time a free 15-day trial period. The trial period begins immediately upon sign-up. The free trial period only applies to new customers and does not apply to existing customers that upgrade their subscription plan. We will also not honor a free trial period for customers who were once paying subscribers, cancelled, and then decided to re-instate their subscription to a Service.
In order to continue using the Services after the 15-day free trial period, you will be asked to upgrade to one of our monthly subscription plans or be automatically downgraded to the basic (free) subscription plan. You have the option of paying monthly, or receiving a discount by paying for a full year or two of service in advance (pre-pay).
15. Refund Policy.
You are not entitled to a refund for the Services we have delivered to you with the exception of consumers (tenants) who have attempted to obtain a credit report with dismal results on a per discretion basis of VerticalRent QA. Said refunds take anywhere from 7 to 10 business days to process (credit) back to a consumer's payment method.
All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities. , and the customer is responsible for payments of all such taxes, levies, or duties. Our fees for the monthly or yearly Services exclude taxes, phone, and internet access charges, as well as other data transmission charges. Any currency exchange settlements are based on your agreement with your payment method provider. To be clear: these taxes and charges are your responsibility.
IMPORTANT NOTICE:We have prepared a sales tax policy to explain to you when and why we collect sales taxes on your purchases. You can review our current policy at:https://www.appsingular.com/tax-policy
You understand and agree our policies may change from time-to-time as federal laws and the tax laws of each state change.
EVEN IF WE DO NOT COLLECT SALES TAX FROM YOU, YOU MAY OWE SALES TAX ON YOUR PURCHASES. WE DO NOT COLLECT SALES TAX IF WE HAVE YOUR EXEMPTION CERTIFICATE ON FILE. IT IS YOUR RESPONSIBILITY TO PROVIDE US AND UPDATE US WITH ANY TAX EXCEMPTION STATUS THAT YOU MAY HAVE. You agree to indemnify us for your obligations under this Section 16.
17. Non-Payment of Service Charges.
We may suspend and/or terminate this Agreement if you fail to make payment on the subscription price associated with your plan or if you violate this Agreement. You are fully responsible to pay us any balance of what you may owe. The balance will be charged to the credit card or bank account on file.
18. Digital Attack on the Services.
We will use commercially reasonable efforts to protect your information and the security of our systems; however, we cannot guarantee it. In the event of an attack on any of the Services, you understand and agree that your information may be compromised. All information that you provide to us is your responsibility. We will NOT be held liable for the loss of sensitive information if our Services come under digital attack from outside hackers; however, we will provide such notification and other measures are required by applicable laws in the event of a data breach on our systems.
19. Digital Communication.
We are not responsible for digital communication facilitated through the use of our Services through the Internet between two parties. We strongly encourage the subscribers of our Services to supplement digital communication with another form of official communication for legal documents, such as serving eviction notices. We are not responsible for digital communication facilitated through the Services that is not received by either party.
20. Disclaimer of Warranties. We provide the Services "as is", "with all faults" and "as available." We make no express or implied warranty of any kind. TO THE EXTENT PERMITTED BY LAW, WE DISCLAIM IMPLIED WARRANTIES THAT THE SERVICES ARE MERCHANTABLE, OF SATISFACTORY QUALITY, AVAILABILITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, TIMELY, NON-INFRINGING OR MEET YOUR REQUIREMENTS. WE DO NOT GUARANTEE ANY RESULTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OUR REPRESENTATIVES SHALL CREATE A WARRANTY.
21. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, OUR LIABILITY TO YOU SHALL BE LIMITED TO DIRECT, MEASURABLE DAMAGES, AND IN NO EVENT SHALL OUR CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SERVICES EXCEED THE TOTAL AMOUNT YOU PAID FOR THE PARTICULAR SERVICE WITHIN AN IMMEDIATE TWELVE-MONTH PERIOD.
NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES UNDER THIS AGREEMENT. THESE EXCLUSIONS APPLY TO ANY CLAIM FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN THE POSSIBILITY OF SUCH DAMAGES.
Upon a request by us, you agree to defend, indemnify, and hold harmless us and our employees, contractors, officers, and directors from all liabilities, claims, and expenses, including attorney's fees that arise from your use or misuse of the Services or breach of any term under this Agreement. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
23. Electronic Contracting and Notices.
You and we will transact electronically. We can send you electronic notices or terms (1) to the e-mail address that you provided to us during registration; (2) by telephone; or (2) by posting the Notice on the applicable web page of the Services.
In order to receive Notices electronically, you must have a personal computer with a modem connected to a communications source (telephone, wireless or broadband), and an operating system that can run a standard Internet browser. You will need a printer associated with your device to print any notices or terms. All contracts completed electronically will be deemed for all legal purposes to be in writing and legally enforceable as a signed writing. If you are an individual consumer and you no longer wish to transact electronically, your choice is to discontinue your use of the Services.
24. Entire Agreement.
This Agreement and any supplemental terms, policies, rules and guidelines posted on verticalrent.com constitute the entire agreement between you and us and supersede any other understandings. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. Sections 4, 6, 8, 10 – 12, 15 and 16 – 27survive expiration or termination of this Agreement.
25. Choice of Law and Location for Resolving Disputes.
You agree that the laws of the State of Ohio govern this contract and any claim or dispute that you may have against us, without regard to Ohio’s conflict of laws rules. You further agree that a court located in Franklin County, Ohio will resolve any disputes or claims that you may have against us.
We may assign this contract at any time without notice to you. You may not assign this contract to anyone else.
27. Force Majeure. Each party will be excused from performance under this Agreement for any cause beyond the reasonable control of such party, such as power outages or outages caused on the Internet by a third party, denial of service attacks, insurrections, acts of terrorism, wars, fires, floods, earthquakes, weather and other acts of God. A party affected by such force majeure effect shall use reasonable efforts to resume performance as soon as practical.
28. Copyright Protection
We respond to notices of alleged copyright infringement and terminate accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act.
If you believe that your work (or the work of a third party on whose behalf you are entitled to act) has been copied in a way that constitutes copyright infringement, please file a copyright infringement notice with us. The notice should be in writing and include, in the order set out below, the following:
A statement that you have identified material on a service that infringes your copyright (or infringes the copyright of a third party on whose behalf you are entitled to act);
A description of the copyrighted work that you claim has been infringed, which should include the type of work (such as a book or a sound recording) and any relevant further details (such as the title and date of publication, as applicable);
The country or countries to which your copyright applies;
A description of the way in which the copyright material has been infringed;
A description of where the material that you claim is infringing is located on our services (including a URL and screen shot);
Your address, telephone number, and email address so that we may get in contact with you;
A statement by you that you have a good faith belief that the disputed use of the copyrighted work is not authorized by the copyright owner (or by a third party who is legally entitled to do so on behalf of the copyright owner) and is not otherwise permitted by law;
A statement by you, made under penalty of perjury, that the notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf; and
An electronic or physical signature (which may be a scanned copy) of the copyright owner.
A complaint can be submitted by:
Sending a letter to our registered copyright agent. Attn: Copyright Infringement Notification, VerticalCloud, LLC, 1001 State Street, Suite 1419, Erie, PA 16501; or
Contacting us at firstname.lastname@example.org. Please be sure to include responses to items 1-9 above in your email.
29. Documents & Real Estate Forms
VerticalCloud LLC and its suite of Software-as-a-Service (SaaS) products, including VerticalRent, is not a law firm. The products and services offered are not a substitute for the advice of an attorney. We recommend that all end users of our SaaS products engage an attorney for legal questions regarding landlord-tenant law and legal questions. We also recommend that each end user contact an attorney in their specific jurisdiction of the United States.
We are not engaged in the practice of providing legal representation or legal advice. The sample real estate forms provided via VerticalRent and AppSingular are not to be substituted for legal advice from a licensed attorney in your State.
All sample real estate forms provided are without warranty. The completeness and legal effect of any sample real estate form provided express or implied, is without warranty. The sample forms provided can be used as a guide and customized to meet the local laws within your jurisdiction and according to State and Federal Law. The Landlord-Tenant Law in the United States varies by State, while also by Municipality. Use at your own risk.
VerticalCloud LLC collaborates with realtors, attorneys, and property managers through the United States. The attorneys, realtors, and property managers we have collaborated with to create state-specific sample lease agreements have provided their input as guiding principles and for educational purposes to create sample forms for you to use from our SaaS products. Your use of these sample forms is not warranted; neither does it create an Attorney-Client or Attorney-Attorney relationship by providing guiding principles to create the sample forms on our SaaS products for your use.
By using our free service to create sample real estate forms, you agree that it is for your personal use as a landlord or property manager, and that you will not re-sell or re-distribute without the written consent of VerticalCloud, LLC.
30. FCRA Notice
The Fair Credit Reporting Act allows me to obtain a disclosure from every credit reporting agency of the nature and substance of all information in my file at the time of the request. Full disclosure of information in your file at Experian must be obtained directly from Experian by calling 888-397-3742 or logging on to www.experian.com/consumer. The credit report you are requesting from VerticalCloud, LLC. is not intended to constitute the disclosure of Experian information required by the Fair Credit Reporting Act or similar state laws.
I am entitled to receive a disclosure directly from the consumer reporting agency free of charge under the following circumstances:
a. I have been denied credit, insurance or employment within the past sixty (60) days as a result of my credit report
b. I certify in writing that I am unemployed and intend to apply for employment in the 60-day period beginning on the date on which I made the certification
c. I am a recipient of public welfare assistance
d. I have reason to believe that my file at the agency contains inaccurate information due to fraud
e. Annually at www.annualcreditreport.com
Otherwise, the consumer reporting agency may impose a reasonable charge for the disclosure.
The Fair Credit Reporting Act permits me to dispute inaccurate or incomplete information in my credit file. I understand that accurate information cannot be changed.
I do not have to purchase my credit report or other information from VerticalCloud, LLC. to dispute inaccurate or incomplete information in my Experian file or to receive a copy of my Experian consumer credit report.
Experian's National Consumer Assistance Center provides a proprietary consumer disclosure that is different from the consumer credit report provided by VerticalCloud, LLC. The disclosure report must be obtained directly from Experian. Consumers residing in the States of Colorado, Massachusetts, Maryland, New Jersey, and Vermont may receive a free copy of their consumer credit report once per year and residents of the State of Georgia may receive two copies per year.
Fraud Alerts are available to any eligible consumers—free of charge—from a national consumer reporting agency.
31. VantageScore Notice
The Report and Score Services utilize the VantageScore® credit score. The VantageScore credit score may or may not be used by Report Subject’s lenders, and is not an endorsement or guarantee of Report Subject’s credit worthiness as seen by lenders.
Please be aware that there are many scoring models used in the marketplace. Each scoring model may have its own set of factors and scale. The information and credit scoring may be different than that used by a lender. The VantageScore credit score may not be identical in every respect to any other credit score produced by another company or used by Report Subject's lender.
Report Subject's VantageScore credit score is calculated using Report Subject's actual data from Report Subject's credit file on the day that the Report and Score Services are requested by VerticalCloud, LLC. Keep in mind, however, that other factors, such as length of employment and annual salary, are often taken into consideration by lenders when making decisions about Report Subject. How each lender weighs its chosen factors may vary, but the exact formula used to calculate Report Subject's score is proprietary.
Also note that each consumer reporting agency has its own set of data, resulting in a separate VantageScore credit score for each of Report Subject's credit files.
You agree to request VantageScore credit scores only for your use alone for the purposes certified to VerticalCloud, LLC. and for no other purpose or use. All VantageScore credit scores provided hereunder will be held in strict confidence and may never be sold, licensed, copied, reused, disclosed, reproduced, revealed or made accessible, in whole or in part, to any person except as required by law or as otherwise set forth in your agreement with VerticalCloud, LLC.
32. CLAIMS BY BINDING ARBITRATION
MOST CUSTOMER CONCERNS CAN BE RESOLVED QUICKLY AND TO THE CUSTOMER’S SATISFACTION BY CONTACTING VERTICALCLOUD’S CUSTOMER SERVICE DEPARTMENT AT CONNECT@VERTICALCLOUD.COM REGARDING THE SERVICE, SERVICE WEBSITE OR CONTENT. IN THE UNLIKELY EVENT THAT VERTICALCLOUD’S CUSTOMER SERVICE DEPARTMENT IS UNABLE TO RESOLVE A COMPLAINT YOU MAY HAVE TO YOUR SATISFACTION (OR IF VERTICALCLOUD HAS NOT BEEN ABLE TO RESOLVE A DISPUTE IT HAS WITH YOU AFTER ATTEMPTING TO DO SO INFORMALLY), WE EACH AGREE TO RESOLVE THOSE DISPUTES THROUGH BINDING ARBITRATION OR SMALL CLAIMS COURT INSTEAD OF IN COURTS OF GENERAL JURISDICTION. WE ALSO AGREE THAT ANY CONTROVERSY CONCERNING WHETHER A DISPUTE IS ARBITRABLE SHALL BE DETERMINED BY THE ARBITRATOR, NOT A COURT. ARBITRATION IS MORE INFORMAL THAN A LAWSUIT IN COURT. ARBITRATION USES A NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY, ALLOWS FOR MORE LIMITED DISCOVERY THAN IN COURT, AND IS SUBJECT TO VERY LIMITED REVIEW BY COURTS. ARBITRATORS CAN AWARD THE SAME DAMAGES AND RELIEF THAT A COURT CAN AWARD. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. VERTICALCLOUD WILL PAY ALL COSTS OF ARBITRATION, NO MATTER WHO WINS, SO LONG AS YOUR CLAIM IS NOT FRIVOLOUS. HOWEVER, IN ARBITRATION, BOTH YOU AND VERTICALCLOUD WOULD BE ENTITLED TO RECOVER ATTORNEYS’ FEES FROM THE OTHER PARTY TO THE SAME EXTENT AS YOU WOULD BE IN COURT.
(a) VERTICALCLOUD and you agree to arbitrate all disputes and claims between us, except any disputes or claims which under governing law are not subject to arbitration. This agreement to arbitrate is intended to be broadly interpreted and to make all disputes and claims subject to arbitration to the fullest extent permitted by law. It includes, but is not limited to: claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising); claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and claims that may arise after the termination of this Agreement.
We also agree that any controversy concerning whether a dispute or claim is arbitrable shall be determined by the arbitrator, not a court, including the scope, applicability, validity, enforceability, interpretation, or formation of this arbitration provision as well as the Agreement’s other terms and conditions, and any claim that all or any part of this arbitration provision or Agreement is void or voidable.
For purposes of this arbitration provision, references to "VERTICALCLOUD," "you," and "us" shall include our respective parent entities, subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns, websites of the foregoing, as well as all authorized or unauthorized users or beneficiaries of services, products or information under this or prior Agreements between us.
Notwithstanding the foregoing, either party may bring an individual action in small claims court. You agree that, by entering into this Agreement, you and VERTICALCLOUD are each waiving the right to a trial by jury and the right to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement.
(b) A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to VERTICALCLOUD should be addressed to: General Counsel, VERTICALCLOUD, 1001 State Street, Suite 1419, Erie PA ("Notice Address"). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If VERTICALCLOUD and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or VERTICALCLOUD may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by VERTICALCLOUD or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or VERTICALCLOUD is entitled.
(c) After VERTICALCLOUD receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee. (The filing fee currently is $125 for claims under $10,000, but is subject to change by the arbitration provider. If you are unable to pay this fee, VERTICALCLOUD will pay it directly upon receiving a written request at the Notice Address.) The arbitration will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. (You may obtain information that is designed for non-lawyers, about the arbitration process at www.VERTICALCLOUD.com/arbitration). The arbitrator shall be bound by the terms of this Agreement. Unless VERTICALCLOUD and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. 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. Except as otherwise provided for herein, VERTICALCLOUD will pay all AAA filing, administration and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse VERTICALCLOUD for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules.
(d) The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees and expenses at any time during the preceding or in the final award, pursuant to applicable law and the AAA Rules.
(e) Discovery and/or the exchange of non-privileged information relevant to the dispute will be governed by the AAA Rules.
(f) YOU AND VERTICALCLOUD AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and VERTICALCLOUD agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If this specific subparagraph (f) is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
(g) Notwithstanding any provision in this Agreement to the contrary, we agree that if VERTICALCLOUD makes any change to this arbitration provision (other than a change to the Notice Address) during your membership in VERTICALCLOUD's AppSingular, VerticalRent, or other service, you may reject any such change and require VERTICALCLOUD to adhere to the language in this provision if a dispute between us arises regarding such service.
Last Updated: 23 September 2014