Updated July 30, 2018
Please read these Terms of Service carefully as they contain important information about your legal rights, remedies and obligations. By accessing or using the SmartRE Platform, you agree to comply with and be bound by these Terms of Service.
Please note: Section 18 of these Terms of Service contains an arbitration clause and class action waiver that applies to all SmartRE users. If your Country of Residence (as defined below) is the United States, this provision applies to all disputes with SmartRE. If your Country of Residence is outside of the United States, this provision applies to any action you bring against SmartRE in the United States. It affects how disputes with SmartRE are resolved. By accepting these Terms of Service, you agree to be bound by this arbitration clause and class action waiver. Please read it carefully.
These Terms of Service (“Terms“) constitute a legally binding agreement (“Agreement“) between you and SmartRE (as defined below) governing your access to and use of the SmartRE website, including any subdomains thereof, and any other websites through which SmartRE makes its services available (collectively, “Site“), our mobile, tablet and other smart device applications, and application program interfaces (collectively, “Application“) and all associated services (collectively, “SmartRE Services“). The Site, Application and SmartRE Services together are hereinafter collectively referred to as the “SmartRE Platform”.
When these Terms mention “SmartRE,” “we,” “us,” or “our,” it refers to the SmartRE company you are contracting with. Your contracting entity will generally be determined based on your Country of Residence. Your “Country of Residence” is the jurisdiction associated with your SmartRE Account as determined by either your express selection or by SmartRE’s assessment of your residence using various data attributes associated with your SmartRE Account.
You are contracting with SmartRE, Inc., 969-G Edgewater Blvd., Foster City, CA 94404, United States.
Homeowners alone are responsible for identifying, understanding, and complying with all laws, rules and regulations that apply to their listings and advertisements. Penalties may include fines or other enforcement by the government or private entities to which they are beholden. If you have questions about how laws or rules apply to your listing(s) on SmartRE, you should always seek legal guidance.
1. Scope of SmartRE Services
1.1 The SmartRE Platform is an online marketplace that enables registered users (“Members”) and certain third parties who offer assignment (“Assignment”) of forward contracts on the percentage sales proceeds of their properties (Members and third parties who offer Assignments are “Homeowners”) to publish such Assignments on the SmartRE Platform (“Listings”) and to communicate and transact directly with Members that are seeking to purchase such Assignments (Members buying Assignments are “Buyers”).
1.2 As the provider of the SmartRE Platform, Homeowners alone are responsible for the information provided to SmartRE for the Listings. When Members make or accept Assignments they are entering into a contract directly with each other with SmartRE as their signatory proxy for document recording and document representational purposes; the benefits of the transactions accrue to Members on both sides of the transaction. SmartRE is not and does not become a beneficial party in any contractual relationship between Members, nor is SmartRE a real estate broker or insurer. Homeowners and other sellers of Assignments hereby appoint SmartRE as their agent solely for the limited purpose of accepting funds from Buyers and remitting the funds to them.
1.3 While we may help facilitate the resolution of disputes, SmartRE has no control over and does not guarantee (i) the quality, safety, suitability, or legality of any Listings, (ii) the truth or accuracy of any Listing descriptions, Ratings, Reviews, or other Member Content (as defined below), or (iii) the performance or conduct of any Member or third party. SmartRE does not endorse any Member or Listing. Any references to a Member being “verified” (or similar language) only indicate that the Member has completed a relevant verification or identification process and nothing else. Any such description is not an endorsement, certification or guarantee by SmartRE about any Member, including of the Member’s identity or background or whether the Member is trustworthy, safe or suitable.
1.4 If you choose to use the SmartRE Platform as a Homeowner, your relationship with SmartRE is limited to being an independent, third-party provider, and not an employee, agent, joint venturer or partner of SmartRE for any reason, except as specified above, and you act exclusively on your own behalf and for your own benefit, and not on behalf, or for the benefit, of SmartRE. SmartRE does not, and shall not be deemed to, direct or control you generally or in your performance under these Terms specifically, including in connection with your provision of the Listings. You acknowledge and agree that you have complete discretion to list Assignments.
1.5 To promote the SmartRE Platform and to increase the exposure of Listings to potential Buyers, Listings and other Member Content may be displayed on other websites, in applications, within emails, and in online and offline advertisements. To assist Members who speak different languages, Listings and other Member Content may be translated, in whole or in part, into other languages. SmartRE cannot guarantee the accuracy or quality of such translations and Members are responsible for reviewing and verifying the accuracy of such translations. The SmartRE Platform may contain translations powered by Google. Google disclaims all warranties related to the translations, express or implied, including any warranties of accuracy, reliability, and any implied warranties for merchantability, fitness for a particular purpose and non-infringement.
1.6 The SmartRE Platform may contain links to third-party websites or resources (“Third-Party Services”). Such Third-Party Services may be subject to different terms and conditions and privacy practices. SmartRE is not responsible or liable for the availability or accuracy of such Third-Party Services, or the content, products, or services available from such Third-Party Services. Links to such Third-Party Services are not an endorsement by SmartRE of such Third-Party Services.
1.7 Due to the nature of the Internet, SmartRE cannot guarantee the continuous and uninterrupted availability and accessibility of the SmartRE Platform. SmartRE may restrict the availability of the SmartRE Platform or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of our servers, or to carry out maintenance measures that ensure the proper or improved functioning of the SmartRE Platform. SmartRE may improve, enhance and modify the SmartRE Platform and introduce new SmartRE Services from time to time.
2. Eligibility, Using the SmartRE Platform, Member Verification
2.1 You must be at least 18 years old and able to enter into legally binding contracts to access and use the SmartRE Platform or register a SmartRE Account. By accessing or using the SmartRE Platform you represent and warrant that you are 18 or older and have the legal capacity and authority to enter into a contract.
2.2 You will comply with any applicable export control laws in your local jurisdiction. You also represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
2.3 SmartRE may make access to and use of the SmartRE Platform, or certain areas or features of the SmartRE Platform, subject to certain conditions or requirements, such as completing a verification process, meeting specific quality or eligibility criteria, meeting Ratings or Reviews thresholds, or a Member’s purchasing and cancellation history.
2.4 User verification on the Internet is difficult and we do not assume any responsibility for the confirmation of any Member’s identity. Notwithstanding the above, for transparency and fraud prevention purposes, and as permitted by applicable laws, we may, but have no obligation to (i) ask Members to provide a form of government identification or other information or undertake additional checks designed to help verify the identities or backgrounds of Members, (ii) screen Members against third party databases or other sources and request reports from service providers, and (iii) where we have sufficient information to identify a Member, obtain reports from public records of criminal convictions or sex offender registrations or an equivalent version of background or registered sex offender checks in your local jurisdiction (if available).
2.5 The access to or use of certain areas and features of the SmartRE Platform may be subject to separate policies, standards or guidelines, or may require that you accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions applicable to a specific area or feature of the SmartRE Platform, the latter terms and conditions will take precedence with respect to your access to or use of that area or feature, unless specified otherwise.
2.6 Some areas of the SmartRE Platform implement Google Maps/Earth mapping services, including Google Maps API(s). Your use of Google Maps/Earth is subject to the Google Maps/Google Earth Additional Terms of Service.
3. Modification of these Terms
SmartRE reserves the right to modify these Terms at any time in accordance with this provision. If we make changes to these Terms, we will post the revised Terms on the SmartRE Platform and update the “Last Updated” date at the top of these Terms. We will also provide you with notice of the modifications by email at least thirty (30) days before the date they become effective. If you disagree with the revised Terms, you may terminate this Agreement with immediate effect. We will inform you about your right to terminate the Agreement in the notification email. If you do not terminate your Agreement before the date the revised Terms become effective, your continued access to or use of the SmartRE Platform will constitute acceptance of the revised Terms.
4. Account Registration
4.1 You must register an account (“SmartRE Account“) to access and use certain features of the SmartRE Platform, such as publishing or purchasing an Assignment. If you are registering a SmartRE Account for a company or other legal entity, you represent and warrant that you have the authority to legally bind that entity and grant us all permissions and licenses provided in these Terms.
4.2 You can register an SmartRE Account using an email address and creating a password, or through your account with certain third-party social networking services, such as Facebook or Google (“SNS Account“).
4.3 You must provide accurate, current and complete information during the registration process and keep your SmartRE Account and public SmartRE Account profile page information up-to-date at all times.
4.4 You may not register more than one (1) SmartRE Account unless SmartRE authorizes you to do so. You may not assign or otherwise transfer your SmartRE Account to another party.
4.5 You are responsible for maintaining the confidentiality and security of your SmartRE Account credentials and may not disclose your credentials to any third party. You must immediately notify SmartRE if you know or have any reason to suspect that your credentials have been lost, stolen, misappropriated, or otherwise compromised or in case of any actual or suspected unauthorized use of your SmartRE Account. You are liable for any and all activities conducted through your SmartRE Account, unless such activities are not authorized by you and you are not otherwise negligent (such as failing to report the unauthorized use or loss of your credentials).
5.1 SmartRE may, at its sole discretion, enable Members to (i) create, upload, post, send, receive and store content, such as text, photos, audio, video, or other materials and information on or through the SmartRE Platform (“Member Content“); and (ii) access and view Member Content and any content that SmartRE itself makes available on or through the SmartRE Platform, including proprietary SmartRE content and any content licensed or authorized for use by or through SmartRE from a third party (“SmartRE Content” and together with Member Content, “Collective Content“).
5.2 The SmartRE Platform, SmartRE Content, and Member Content may in its entirety or in part be protected by copyright, trademark, and/or other laws of the United States and other countries. You acknowledge and agree that the SmartRE Platform and SmartRE Content, including all associated intellectual property rights, are the exclusive property of SmartRE and/or its licensors or authorizing third-parties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the SmartRE Platform, SmartRE Content or Member Content. All trademarks, service marks, logos, trade names, and any other source identifiers of SmartRE used on or in connection with the SmartRE Platform and SmartRE Content are trademarks or registered trademarks of SmartRE in the United States and abroad. Trademarks, service marks, logos, trade names and any other proprietary designations of third parties used on or in connection with the SmartRE Platform, SmartRE Content, and/or Collective Content are used for identification purposes only and may be the property of their respective owners.
5.3 You will not use, copy, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the SmartRE Platform or Collective Content, except to the extent you are the legal owner of certain Member Content or as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by SmartRE or its licensors, except for the licenses and rights expressly granted in these Terms.
5.4 Subject to your compliance with these Terms, SmartRE grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to (i) download and use the Application on your personal device(s); and (ii) access and view any Collective Content made available on or through the SmartRE Platform and accessible to you, solely for your personal and non-commercial use.
5.5 By creating, uploading, posting, sending, receiving, storing, or otherwise making available any Member Content on or through the SmartRE Platform, you grant to SmartRE a non-exclusive, worldwide, royalty-free, irrevocable, perpetual (or for the term of the protection), sub-licensable and transferable license to such Member Content to access, use, store, copy, modify, prepare derivative works of, distribute, publish, transmit, stream, broadcast, and otherwise exploit in any manner such Member Content to provide and/or promote the SmartRE Platform, in any media or platform. Unless you provide specific consent, SmartRE does not claim any ownership rights in any Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use or exploit your Member Content.
5.6 SmartRE may offer Homeowners the option of having professional photographers take photographs of their properties, which are made available by the photographer to Homeowners to include in their Listings with or without a watermark or tag bearing the words “SmartRE Verified Photo” or similar wording (“Verified Images“). You are responsible for ensuring that your property is accurately represented in the Verified Images and you will stop using the Verified Images on or through the SmartRE Platform if they no longer accurately represent your Listing, if you stop hosting the Host Service featured, or if your SmartRE Account is terminated or suspended for any reason. You acknowledge and agree that SmartRE shall have the right to use any Verified Images for advertising, marketing and/or any other business purposes in any media or platform, whether in relation to your Listing or otherwise, without further notice or compensation to you. Where SmartRE is not the exclusive owner of Verified Images, by using such Verified Images on or through the SmartRE Platform, you grant to SmartRE an exclusive, worldwide, royalty-free, irrevocable, perpetual (or for the term of the protection), sub-licensable and transferable license to use such Verified Images for advertising, marketing and/or any other business purposes in any media or platform, whether in relation to your Listing or otherwise, without further notice or compensation to you. SmartRE in turn grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to use Verified Images outside of the SmartRE Platform solely for your personal and non-commercial use.
5.7 You are solely responsible for all Member Content that you make available on or through the SmartRE Platform. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available on or through the SmartRE Platform or you have all rights, licenses, consents and releases that are necessary to grant to SmartRE the rights in and to such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or SmartRE’s use of the Member Content (or any portion thereof) will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
5.8 You will not post, upload, publish, submit or transmit any Member Content that: (i) is fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive; (ii) is defamatory, libelous, obscene, pornographic, vulgar or offensive; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening or promotes violence or actions that are threatening to any other person or animal; (v) promotes illegal or harmful activities or substances; or (vi) violates any other SmartRE policy. SmartRE may, without prior notice, remove or disable access to any Member Content that SmartRE finds to be in violation of these Terms, or otherwise may be harmful or objectionable to SmartRE, its Members, third parties, or property.
5.9 SmartRE respects copyright law and expects its Members to do the same. If you believe that any content on the SmartRE Platform infringes copyrights you own, please notify us.
6. Service Fees
6.1 SmartRE may charge fees to Homeowners (“Homeowner Fees“) and/or Buyers (“Buyer Fees“) (collectively, “Service Fees“) in consideration for the use of the SmartRE Platform.
6.2 Any applicable Service Fees (including any applicable Taxes) will be displayed to a Homeowner or Buyer. SmartRE reserves the right to change the Service Fees at any time, and will provide Members adequate notice of any fee changes before they become effective.
6.3 You are responsible for paying any Service Fees that you owe to SmartRE. The applicable Service Fees (including any applicable Taxes) are collected by SmartRE. SmartRE will deduct any Homeowner Fees from the Listing Fee before remitting the payout to the Homeowner. Any Buyer Fees are included in the Total Fees collected by SmartRE. Except as otherwise provided on the SmartRE Platform, Service Fees are non-refundable.
7. Terms specific for Homeowners
7.1 When creating a Listing for the SmartRE Platform you must (i) provide complete and accurate information about your Assignment (such as listing description and location), and (ii) provide any other pertinent information requested by SmartRE. You are responsible for keeping your Listing information up-to-date at all times.
7.2 You are solely responsible for setting a price for your Listing (“Listing Fee”). Once a Buyer requests a purchase of your Listing, you may not request that the Buyer pay a higher price than in the Listing.
7.3 Any terms and conditions included in your Listing must not conflict with these.
7.4 Pictures, animations or videos (collectively, “Images“) used in your Listings must accurately reflect the quality and condition of your Listing. SmartRE reserves the right to require that Listings have a minimum number of Images of a certain format, size and resolution.
7.5 The placement and ranking of Listings in search results on the SmartRE Platform may vary and depend on a variety of factors, such as Buyer search parameters and preferences, Homeowner requirements, price, number and quality of Images, customer service, Reviews and Ratings, and/or ease of purchasing.
7.6 You represent and warrant that your Listing will (i) not breach any agreements you have entered into with any third parties, such as homeowners association, condominium, or other agreements, and (ii) comply with all applicable laws, tax requirements, and other rules and regulations. As a Homeowner, you are responsible for your own acts and omissions.
8. Terms specific for Buyers
8.1 Subject to meeting any requirements (such as completing any verification processes) set by SmartRE, you can book a purchase of an Assignment available on the SmartRE Platform by following the respective booking process. All applicable fees, including the Listing Fee, security deposit, and any applicable Taxes (collectively, “Total Fees”) will be presented to you prior to booking a Listing. You agree to pay the Total Fees for any booking requested in connection with your SmartRE Account.
8.2 Upon receipt of a booking confirmation from SmartRE, a legally binding agreement is formed between you and the Homeowner, subject to any additional terms and conditions specified in the Listing. SmartRE will collect the Total Fees at the time of the booking request. For certain bookings, Buyers may be required to pay or have the option to pay in multiple installments.
8.3 For Homeowner privacy, the Buyer cannot visit the property without the express written consent of the Homeowner nor can the Buyer loiter around the property. The Buyer also cannot ask or pay someone else to visit or loiter around the property.
9. Booking Modifications, Cancellations and Refunds, Resolution Center
9.1 If a Homeowner cancels a confirmed purchase booking, the Buyer will receive a full refund of the Total Fees for such booking within a commercially reasonable time of the cancellation. In some instances, SmartRE may allow the Buyer to apply the refund to a new booking, in which case SmartRE will credit the amount against the Buyer’s subsequent booking at the Buyer’s direction. Further, SmartRE may publish an automated review on the Listing cancelled by the Homeowner indicating that a booking was cancelled. In addition, SmartRE may impose a cancellation fee if the Homeowner is perceived as abusing the SmartRE Platform.
9.2 In certain circumstances, SmartRE may decide, in its sole discretion, that it is necessary to cancel a confirmed purchase booking and make appropriate refund and payout decisions. This may be for reasons (i) where SmartRE believes in good faith, while taking the legitimate interests of both parties into account, this is necessary to avoid significant harm to SmartRE, other Members, third parties or property, or (ii) for any of the reasons set out in these Terms.
10. Ratings and Reviews
10.1 Within a certain timeframe after completing a purchase booking, Buyers and Homeowners can leave a public review (“Review”) and submit a star rating (“Rating”) about each other or the Listing. Ratings or Reviews reflect the opinions of individual Members and do not reflect the opinion of SmartRE. Ratings and Reviews are not verified by SmartRE for accuracy and may be incorrect or misleading.
10.2 Ratings and Reviews by Buyers and Homeowners must be accurate and may not contain any offensive or defamatory language. Ratings and Reviews are subject to Section 5 and these Terms.
10.3 Members are prohibited from manipulating the Ratings and Reviews system in any manner, such as instructing a third party to write a positive or negative Review about another Member.
10.4 Ratings and Reviews are part of a Member’s public profile and may also be surfaced elsewhere on the SmartRE Platform (such as the Listing page) together with other relevant information such as number of bookings, number of cancellations, average response time and other information.
11. Rounding off
SmartRE generally supports payment amounts that are payable from or to Buyers or Homeowners to the smallest unit supported by a given currency (i.e., U.S. cents, Euro cents or other supported currencies). Where SmartRE’s third-party payment services provider does not support payments in the smaller unit supported by a given currency, SmartRE may, in its sole discretion, round up or round down amounts that are payable from or to Buyers or Homeowners to the nearest whole functional base unit in which the currency is denominated (i.e. to the nearest dollar, Euro or other supported currency); for example, SmartRE may round up an amount of $11.75 to $12.00, and round down an amount of $11.37 to $11.00.
12.1 As a Member you are solely responsible for determining your obligations to report and remit your taxes (“Taxes“).
12.2 Tax regulations may require us to collect appropriate Tax information from Homeowners, or to withhold Taxes from payouts to Homeowners, or both. If a Homeowner fails to provide us with documentation that we determine to be sufficient to alleviate our obligation (if any) to withhold Taxes from payouts to you, we reserve the right to freeze all payouts, withhold such amounts as required by law, or to do both, until resolution.
13. Prohibited Activities
13.1 You are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the SmartRE Platform. In connection with your use of the SmartRE Platform, you will not and will not assist or enable others to:
- breach or circumvent any applicable laws or regulations, agreements with third-parties, third-party rights, or our Terms or policies;
- use the SmartRE Platform or Collective Content for any commercial or other purposes that are not expressly permitted by these Terms or in a manner that falsely implies SmartRE endorsement, partnership or otherwise misleads others as to your affiliation with SmartRE;
- use the SmartRE Platform in connection with the distribution of unsolicited commercial messages (“spam”);
- offer, as a Homeowner, any property that you do not yourself own or have permission to make available as a residential or other property through the SmartRE Platform;
- contact another Member for any purpose other than asking a question related to a Listing or the Member’s use of the SmartRE Platform, including, but not limited to, recruiting or otherwise soliciting any Member to join third-party services, applications or websites, without our prior written approval;
- use the SmartRE Platform to request, make or accept a booking independent of the SmartRE Platform, to circumvent any Service Fees or for any other reason, as that will void any protection SmartRE may provide Members;
- request, accept or make any payment for Listing Fees outside of the SmartRE Platform. If you do so, you acknowledge and agree that you: (i) would be in breach of these Terms; (ii) accept all risks and responsibility for such payment, and (iii) hold SmartRE harmless from any liability for such payment;
- discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or otherwise engage in any violent, harmful, abusive or disruptive behavior;
- use, display, mirror or frame the SmartRE Platform or Collective Content, or any individual element within the SmartRE Platform, SmartRE’s name, any SmartRE trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page in the SmartRE Platform, without SmartRE’s express written consent;
- dilute, tarnish or otherwise harm the SmartRE brand in any way, including through unauthorized use of Collective Content, registering and/or using SmartRE or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering and/or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to SmartRE domains, trademarks, taglines, promotional campaigns or Collective Content;
- use any robots, spider, crawler, scraper or other automated means or processes to access, collect data or other content from or otherwise interact with the SmartRE Platform for any purpose;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise attempt to circumvent any technological measure implemented by SmartRE or any of SmartRE’s providers or any other third party to protect the SmartRE Platform;
- attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the SmartRE Platform;
- take any action that damages or adversely affects, or could damage or adversely affect the performance or proper functioning of the SmartRE Platform;
- export, re-export, import, or transfer the Application except as authorized by United States law, the export control laws of your jurisdiction, and any other applicable laws; or
- violate or infringe anyone else’s rights or otherwise cause harm to anyone.
13.2 You acknowledge that SmartRE has no obligation to monitor the access to or use of the SmartRE Platform by any Member or to review, disable access to, or edit any Member Content, but has the right to do so to (i) operate, secure and improve the SmartRE Platform (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes); (ii) ensure Members’ compliance with these Terms; (iii) comply with applicable law or the order or requirement of a court, law enforcement or other administrative agency or governmental body; (iv) respond to Member Content that it determines is harmful or objectionable; or (v) as otherwise set forth in these Terms. Members agree to cooperate with and assist SmartRE in good faith, and to provide SmartRE with such information and take such actions as may be reasonably requested by SmartRE with respect to any investigation undertaken by SmartRE or a representative of SmartRE regarding the use or abuse of the SmartRE Platform.
13.3 If you feel that any Member you interact with, whether online or in person, is acting or has acted inappropriately, including but not limited to anyone who (i) engages in offensive, violent or sexually inappropriate behavior, (ii) you suspect of stealing from you, or (iii) engages in any other disturbing conduct, you should immediately report such person to the appropriate authorities and then to SmartRE by contacting us with your police station and report number (if available). You agree that any report you make will not obligate us to take any action (beyond that required by law, if any).
14. Term and Termination, Suspension and other Measures
14.1 This Agreement shall be effective for a 30-day term, at the end of which it will automatically and continuously renew for subsequent 30-day terms until such time when you or SmartRE terminate the Agreement in accordance with this provision.
14.2 You may terminate this Agreement at any time by sending us an email. If you cancel your SmartRE Account as a Homeowner, any confirmed booking(s) will be automatically cancelled and your Buyers will receive a full refund. If you cancel your SmartRE Account as a Buyer, any confirmed booking(s) will be automatically cancelled and any refund will depend upon the terms of the Listing’s cancellation policy.
14.3 Unless your Country of Residence is the United States, without limiting our rights specified below, SmartRE may terminate this Agreement for convenience at any time by giving you thirty (30) days’ notice via email to your registered email address.
14.4 SmartRE may immediately, without notice, terminate this Agreement and/or stop providing access to the SmartRE Platform if (i) you have materially breached your obligations under these Terms and our policies, (ii) you have violated applicable laws, regulations or third party rights, or (iii) SmartRE believes in good faith that such action is reasonably necessary to protect the personal safety or property of SmartRE, its Members, or third parties (for example in the case of fraudulent behavior of a Member).
14.5 In addition, SmartRE may take any of the following measures (i) to comply with applicable law, or the order or request of a court, law enforcement or other administrative agency or governmental body, or if (ii) you have breached these Terms, applicable laws, regulations, or third party rights, (iii) you have provided inaccurate, fraudulent, outdated or incomplete information during the SmartRE Account registration, Listing process or thereafter, (iv) you and/or your Listings at any time fail to meet any applicable quality or eligibility criteria, (v) you have repeatedly received poor Ratings or Reviews or SmartRE otherwise becomes aware of or has received complaints about your performance or conduct, (vi) you have repeatedly cancelled confirmed bookings or failed to respond to booking requests without a valid reason, or (vii) SmartRE believes in good faith that such action is reasonably necessary to protect the personal safety or property of SmartRE, its Members, or third parties, or to prevent fraud or other illegal activity:
- refuse to surface, delete or delay any Listings, Ratings, Reviews, or other Member Content;
- cancel any pending or confirmed bookings;
- limit your access to or use of the SmartRE Platform;
- temporarily or permanently revoke any special status associated with your SmartRE Account;
- temporarily or in case of severe or repeated offenses permanently suspend your SmartRE Account and stop providing access to the SmartRE Platform.
In case of non-material breaches and where appropriate, you will be given notice of any intended measure by SmartRE and an opportunity to resolve the issue to SmartRE’s reasonable satisfaction.
14.6 If we take any of the measures described above (i) we may refund your Buyers in full for any and all confirmed bookings that have been cancelled, irrespective of preexisting cancellation policies, and (ii) you will not be entitled to any compensation for pending or confirmed bookings that were cancelled.
14.7 When this Agreement has been terminated, you are not entitled to a restoration of your SmartRE Account or any of your Member Content. If your access to or use of the SmartRE Platform has been limited or your SmartRE Account has been suspended or this Agreement has been terminated by us, you may not register a new SmartRE Account or access and use the SmartRE Platform through an SmartRE Account of another Member.
14.8 Unless you reside in Germany, if you or we terminate this Agreement, the clauses of these Terms that reasonably should survive termination of the Agreement will remain in effect.
If you choose to use the SmartRE Platform or Collective Content, you do so voluntarily and at your sole risk. The SmartRE Platform and Collective Content is provided “as is”, without warranty of any kind, either express or implied.
You agree that you have had whatever opportunity you deem necessary to investigate the SmartRE Services, laws, rules, or regulations that may be applicable to your Listings you are receiving and that you are not relying upon any statement of law or fact made by SmartRE relating to a Listing.
If we choose to conduct identity verification or background checks on any Member, to the extent permitted by applicable law, we disclaim warranties of any kind, either express or implied, that such checks will identify prior misconduct by a Member or guarantee that a Member will not engage in misconduct in the future.
You agree that Listings and Assignments may carry inherent risk, and by participating on the SmartRE Platform, you choose to assume those risks voluntarily. You assume full responsibility for the choices you make before, during and after your participation in a Assignment.
The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights. However, the duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by law.
You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the SmartRE Platform and Collective Content, your publishing or booking of any Listing via the SmartRE Platform, your participation in any Assignment, or any other interaction you have with other Members whether in person or online remains with you. Neither SmartRE nor any other party involved in creating, producing, or delivering the SmartRE Platform or Collective Content will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with (i) these Terms, (ii) from the use of or inability to use the SmartRE Platform or Collective Content, (iii) from any communications, interactions or meetings with other Members or other persons with whom you communicate, interact or meet with as a result of your use of the SmartRE Platform, or (iv) from your Listing, booking of a Listing, or participation in an Assignment, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not SmartRE has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose. Except for our obligations to pay amounts to applicable Homeowners pursuant to these Terms, in no event will SmartRE’s aggregate liability arising out of or in connection with these Terms and your use of the SmartRE Platform including, but not limited to, from your Listing, booking of any Listings, or participation in any Assignment via the SmartRE Platform, or from the use of or inability to use the SmartRE Platform or Collective Content, Service, or interactions with any other Members, exceed the amounts you have paid or owe for bookings via the SmartRE Platform as a Guest in the three (3) month period prior to the event giving rise to the liability, or if you are a Homeowner, the amounts paid by SmartRE to you in the three (3) month period prior to the event giving rise to the liability, or one hundred U.S. dollars (US$100), if no such payments have been made, as applicable. The limitations of damages set forth above are fundamental elements of the basis of the bargain between SmartRE and you. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you. If you reside outside of the U.S., this does not affect SmartRE’s liability for death or personal injury arising from its negligence, nor for fraudulent misrepresentation, misrepresentation as to a fundamental matter or any other liability which cannot be excluded or limited under applicable law.
You agree to release, defend (at SmartRE’s option), indemnify, and hold SmartRE and its affiliates and subsidiaries harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your breach of these Terms or our policies, (ii) your improper use of the SmartRE Platform or any SmartRE Services, (iii) your interaction with any Member or participation in any Assignment, including without limitation any injuries, losses or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of such interaction, participation or use, or (iv) your breach of any laws, regulations or third party rights.
18. Dispute Resolution and Arbitration Agreement
18.1 This Dispute Resolution and Arbitration Agreement shall apply if your (i) Country of Residence is in the United States; or (ii) your Country of Residence is not in the United States, but bring any claim against SmartRE in the United States.
18.2 Overview of Dispute Resolution Process. SmartRE is committed to participating in a consumer-friendly dispute resolution process. To that end, these Terms provide for a two-part process for individuals to whom Section 18.1 applies: (1) an informal negotiation directly with SmartRE’s customer service team, and (2) a binding arbitration administered by the American Arbitration Association (“AAA”) using its specially designed Consumer Arbitration Rules (as modified by this Section 18 and except as provided in Section 18.6). Specifically, the Consumer Arbitration Rules provide:
- Claims can be filed with AAA online (www.adr.org);
- Arbitrators must be neutral and no party may unilaterally select an arbitrator;
- Arbitrators must disclose any bias, interest in the result of the arbitration, or relationship with any party;
- Parties retain the right to seek relief in small claims court for certain claims, at their option;
- The consumer gets to elect the hearing location and can elect to participate live, by phone, video conference, or, for claims under $25,000, by the submission of documents;
- The arbitrator can grant any remedy that the parties could have received in court to resolve the party’s individual claim.
18.3 Pre-Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, you and SmartRE each agree to notify the other party of the dispute and attempt to negotiate an informal resolution to it first. We will contact you at the email address you have provided to us; you can contact SmartRE’s customer service team by emailing us. If after a good faith effort to negotiate one of us feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the AAA and the written Demand for Arbitration (available at www.adr.org) provided to the other party, as specified in the AAA Rules.
18.4 Agreement to Arbitrate. You and SmartRE mutually agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement or interpretation thereof, or to the use of the SmartRE Platform, the participation of the Assignments, or use of the Collective Content (collectively, “Disputes”) will be settled by binding arbitration (the “Arbitration Agreement”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our Dispute, you and SmartRE agree that the arbitrator will decide that issue.
18.5 Exceptions to Arbitration Agreement. You and SmartRE each agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).
18.6 Arbitration Rules and Governing Law. This Arbitration Agreement evidences a transaction in interstate commerce and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration will be administered by AAA in accordance with the Consumer Arbitration Rules and/or other AAA arbitration rules determined to be applicable by the AAA (the “AAA Rules“) then in effect, except as modified here. The AAA Rules are available at www.adr.org or by calling the AAA at 1–800–778–7879.
18.7 Modification to AAA Rules – Arbitration Hearing/Location. In order to make the arbitration most convenient to you, SmartRE agrees that any required arbitration hearing may be conducted, at your option, (a) in San Mateo County; (b) in any other location to which you and SmartRE both agree; (c) via phone or video conference; or (d) for any claim or counterclaim under $10,000, by solely the submission of documents to the arbitrator.
18.8 Modification of AAA Rules – Attorney’s Fees and Costs. You may be entitled to seek an award of attorney fees and expenses if you prevail in arbitration, to the extent provided under applicable law and the AAA rules.
18.9 Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
18.10 Jury Trial Waiver. You and SmartRE acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable Disputes.
18.11 No Class Actions or Representative Proceedings. You and SmartRE acknowledge and agree that we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding as to all Disputes. Further, unless you and SmartRE both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative 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 a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
18.12 Severability. In the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
18.13 Changes. Notwithstanding the provisions of Section 3 (“Modification of these Terms”), if SmartRE changes this Section 18 (“Dispute Resolution and Arbitration Agreement”) after the date you last accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email) within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of SmartRE’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and SmartRE in accordance with the provisions of the “Dispute Resolution and Arbitration Agreement” section as of the date you last accepted these Terms (or accepted any subsequent changes to these Terms).
18.14 Survival. Except as provided in Section 18.12 and subject to Section 14.8, this Section 18 will survive any termination of these Terms and will continue to apply even if you stop using the SmartRE Platform or terminate your SmartRE Account.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the SmartRE Platform (“Feedback“). You may submit Feedback by emailing us or by other means of communication. Any Feedback you submit to us will be considered non-confidential and non-proprietary to you. By submitting Feedback to us, you grant us a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and publish those ideas and materials for any purpose, without compensation to you.
20. Applicable Law and Jurisdiction
These Terms will be interpreted in accordance with the laws of the State of California and the United States of America, without regard to conflict-of-law provisions. Judicial proceedings (other than small claims actions) that are excluded from the Arbitration Agreement in Section 18 must be brought in state or federal court in San Mateo, California, unless we both agree to some other location. You and we both consent to venue and personal jurisdiction in San Mateo, California.
21. Electronic Signature and Electronic Delivery of Disclosures and Notices
21.1 When using SmartRE, you consent to use electronic communications, electronic records, and electronic signatures rather than paper documents for the forms provided on this web site. Those forms include:
- Account applications
- Account related documents
- Selling or buying of Assignments and their agreements
- All updates and details concerning your account
- Responses to communications from you
- All disclosures required by law and other information about your legal right and duties
- All changes and updates to these disclosures, notices, and documents
21.2 You agree that your electronic signature is legally binding, just as if you had signed a paper document. When we provide you an electronic notification indicating a document is available electronically and we do in fact make it available online, that shall have the same meaning and effect as if we provided a paper document to you, whether or not you choose to view it. Your consent to use electronic signatures and documents applies to materials related to your purchases and sales as well.
21.3 In order to use electronic signatures and to receive electronic communications, you must have
- a personal computer, mobile phone, or other device that connects to the Internet
- an email address
- a web browser
- software that enables you to receive and view Portable Document Format (PDF) files, such as Adobe Acrobat Reader
21.4 You also confirm that you have the hardware and software described above, that you are able to receive and review electronic records, and that you have an active email account. You must keep your email or electronic address current with us. You must promptly notify us of any change in your email or other electronic address. You may change the email address on record for you through our website or emailing us at [email protected] We may provide you with separate instructions to update your email address from time to time. You agree that if we send an email message to you regarding any electronic communication or send any electronic communication to the email address you have provided us and such email message is returned as undeliverable, we will be deemed to have provided such electronic communication to you.
22. General Provisions
22.1 Except as they may be supplemented by additional terms and conditions, policies, guidelines or standards, these Terms constitute the entire Agreement between SmartRE and you pertaining to the subject matter hereof, and supersede any and all prior oral or written understandings or agreements between SmartRE and you in relation to the access to and use of the SmartRE Platform.
22.2 No joint venture, partnership, employment, or agency relationship exists between you and SmartRE as a result of this Agreement or your use of the SmartRE Platform unless otherwise specified.
22.3 These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties.
22.4 If any provision of these Terms is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions.
22.5 SmartRE’s failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise permitted under law.
22.6 You may not assign, transfer or delegate this Agreement and your rights and obligations hereunder without SmartRE’s prior written consent. SmartRE may without restriction assign, transfer or delegate this Agreement and any rights and obligations hereunder, at its sole discretion, with 30 days prior notice. Your right to terminate this Agreement at any time remains unaffected.
22.7 Unless specified otherwise, any notices or other communications to Members permitted or required under this Agreement, will be provided electronically and given by SmartRE via email, SmartRE Platform notification, or messaging service (including SMS and WeChat).
22.8 If you have any questions about these Terms please email us.