Effective Start Date: August 2009
Amended: August 14th, 2014
Thank you for your interest in CityStumbler.com, an Internet platform (the “Website”) owned and operated by CityStumbler, Inc., a Delaware corporation (“CityStumbler,” “we,” or “us”). The Website is offered to you, your employees, agents and contractors, and any other entity whose behalf you accept these terms and conditions (collectively, “Consumers”, and individually, “Consumer” or “You”) conditioned on your acceptance without modification of the terms, conditions, and notices contained herein.
CityStumbler provides Consumers (collectively, “Consumers,” and individually, “Consumer” or “You”) an online environment to solicit services from real estate professionals (the “Pros” or “Pro”) to buy, sell, or rent properties including, but not limited to, single family residences, multifamily residences, apartments, condos, co-ops, industrial and warehouse properties, office buildings, retail units, and land. CityStumbler’s business model is to match willing Buyers and Sellers with compatible vetted Agents and Brokers.
By using the Website, either as a non-registered user or upon registration, You become a Consumer at no cost and may have the ability to request Pros’ services.
Any reference to the Website shall include, but are not limited to, any and all uses of CityStumbler.com via mobile applications, mobile devices, personal computers, email, telephone or other electronic devices.
1. ACKNOWLEDGEMENT AND ACCEPTANCE
If you do not agree to be bound by all of the terms and conditions of this Agreement, do not use or access this website or CityStumbler’s services.
1.2 Amendments. The Consumer acknowledges and agrees that CityStumbler, at its sole discretion, may amend or modify the Agreement at any time by posting a revised version of the Agreement on the Website, adding additional terms and conditions and registration requirements or by notifying Consumers directly. The Consumer’s continued use of the Website after any changes are made to the Agreement constitutes the Consumer’s consent to such amendments and modifications. CityStumbler does not and will not assume any obligation to notify Consumers in advance of any changes to this Agreement, or the creation or modification of any additional terms. The Consumers alone are charged with and responsible for periodic review of the Agreement.
2. USE AND AGE RESTRICTIONS
Use of the Website is permitted only by individuals who can form legally binding contracts under applicable Law. Without limiting the foregoing, use of the CityStumbler Website is not permitted by anyone under the age of 18. If the Consumer is under the age of 18, please do not use the Website.
Furthermore, You are utilizing the Website because of Your interest in Buying or Selling Your Home and have no intent to misrepresent your intentions or identity. Unless otherwise expressly provided in these terms, the content and services on this Website are for personal, informational, and non-commercial use.
3. SERVICE REQUESTS AND QUOTES
3.1 Service Request. Upon registration with CityStumbler, a Consumer may request through the Website real estate services from Pros (the “Service Request”). Consumers must provide required information (e.g., their destination city, desired neighborhoods, relocation goal, price range, and other optional criteria) to submit a valid Service Request. All Service Requests posted through the Website must be lawful and not in violation of any city ordinance, state, local or federal law. After submission of necessary search criteria, CityStumbler will display Pro profiles that match the criteria requested by Consumer. However, CityStumbler does not and cannot guarantee that there will be Pros who are capable of or willing to complete the requested services at the time and place requested or that Consumer will receive responses from Pro(s).
3.2 Intellectual Property. By submitting a Service Request the Consumer represents that the Service Request does not infringe on the intellectual property of any third party. The Consumer’s description of the Service Request must be truthful and accurate. Any Service Request posted through the Website: (a) shall not be fraudulent; (b) shall not violate any law, statute, ordinance or regulation (including without limitation those governing export control, Consumer protection, unfair competition, anti-discrimination or false advertising); (c) shall not be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (d) shall not be obscene, contain child pornography, or any other forms of pornography; and (e) shall not contain any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
CityStumbler requires Pros to submit their professional and/or personal profiles (“Pro Bio”) prior to acceptance to CityStumbler’s Network of Services and Website. CityStumbler does not review or verify the information or representations set forth in the Pro Bios, as they are self-reported by the Pros. Although CityStumbler may take certain steps to examine the credentials of Pros, CityStumbler makes no guarantees, promises, warranties or representations of any kind regarding the skills or representations provided in the Pro Bio.
4.1 Background Checks. Background checks are performed on the Pros during the Pro’s registration with CityStumbler before joining CityStumbler’s Pro network. During the background check, CityStumbler checks with the State’s Department of Real Estate verification when available. Background checks on the Pro reflect that individual’s relevant background information at the time of the search. CityStumbler is under no obligation to perform subsequent background checks after the Pro has been registered and accepted by CityStumbler into its network. Accordingly, CityStumbler does not and cannot warrant that the background check is up-to-date or current at the time of the Service Request. Additionally, background checks are not applicable to and not performed on anyone employed by or assisting Pro in rendering the service requested.
4.2 Licensing. Pros are requested to post licensing information in their Pro Bios. Different jurisdictions may require state and/or local (county or municipal) level licensing for certain services, work, and/or project amounts. Consumers are responsible for determining which licenses, if any, are required for their requested services. Before the Consumer proceeds with a transaction, the Consumer should confirm all licensing requirements with the Consumer’s state and local authorities and the Consumer’s selected Pro. CityStumbler always recommends that the Consumer ask the Pro to provide the Consumer with a copy of their license(s).
4.3 Insurance and Bonding. Pros may submit information and documents concerning insurance policies and/or bonds covering their operations. While CityStumbler does not verify this information, Pros are required to warrant that the information they submit is complete, accurate and current. Before the Consumer proceeds with a sale, listing, or buyer’s contract, the Consumer should confirm the Pro’s existing insurance coverage and limits.
4.4 Relationship between CityStumbler and Pro. CityStumbler and Pro are separate; the Pro is not an employee or agent of CityStumbler and therefore their respective employees are not the employees of the other. CityStumbler and its affiliated companies provide only a referral service to Pro. In no event will CityStumbler be considered a joint employer, joint venturer, or partner of Pro or any of Pro’s affiliates or their respective personnel. CityStumbler does not act in the capacity of a Brokerage or Agent and acts solely as a Marketing Firm to connect willing Buyers and Sellers with prospective Real Estate Professional.
4.5 Consumer Verification. THE CONSUMER SHOULD VERIFY THAT THE INFORMATION PRESENTED BY THE PRO, INCLUDING THE INFORMATION IN THE PRO’S BIO, IS ACCURATE. CITYSTUMBLER DOES NOT VERIFY ALL INFORMATION OR DOCUMENTS PROVIDED BY PROS AND EXPRESSLY DISCLAIMS ANY GUARANTEES OR WARRANTIES CONCERNING SUCH INFORMATION. CONSUMERS SHOULD CONDUCT THEIR OWN INVESTIGATION OF PROS TO INVESTIGATE AND TO DETERMINE, AMONG OTHER THINGS, WHETHER PROS ARE APPROPRIATELY LICENSED FOR THE REQUESTED SERVICES, FREE OF SIGNIFICANT STATE-LEVEL CIVIL LEGAL JUDGMENTS, AND CARRY APPROPRIATE INSURANCE OR BONDING AT APPROPRIATE LIMITS. CITYSTUMBLER DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION RECEIVED BY CONSUMER FROM STATE, PROVINCIAL OR OTHER GOVERNMENT AGENCIES OR FROM THIRD PARTY SOURCES IS ACCURATE, ERROR FREE, OR THAT IT IS UP TO DATE OR UPDATED AT THE TIME THAT CONSUMER CHECKS SUCH INFORMATION. MOST AGENCIES HAVE PERIODIC UPDATE CYCLES OR SCHEDULES AND THIS INFORMATION IS NOT UPDATED ON A REAL-TIME BASIS BY SUCH AGENCIES AND THIRD PARTY SOURCES.
4.6 No Warranty or Endorsement of Pro Services. CITYSTUMBLER DOES NOT ENDORSE OR RECOMMEND THE SERVICES OF ANY PARTICULAR PRO. THE DECISION TO ENTER INTO AN AGREEMENT FOR WORK BELONGS ENTIRELY TO THE CONSUMER. CITYSTUMBLER DOES NOT WARRANT THE PRO’S PERFORMANCE ON THE JOB OR THE QUALITY OF GOODS, MATERIALS, EQUIPMENT OR SERVICES UTILIZED BY PRO. CITYSTUMBLER DOES NOT CONTRACT FOR OR PERFORM, AND IS NOT RESPONSIBLE FOR, ANY OF THE SERVICES REQUESTED BY THE CONSUMER IN THE SERVICE REQUEST. THE CONSUMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE CONSUMER’S USE OF THE WEBSITE IS AT THE CONSUMER’S SOLE AND EXCLUSIVE RISK. CITYSTUMBLER MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF ANY PRO OR THE PRO’S ABILITY TO PROVIDE A SERVICE COMPLIANT WITH THE CONSUMER’S SERVICE REQUEST. THE CONSUMER EXPRESSLY ACKNOWLEDGES THAT CITYSTUMBLER MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, REGARDING THE QUALITY OF SERVICES RENDERED BY ANY SERVICE PROVIDER. CITYSTUMBLER HAS NO LIABILITY WHATSOVER FOR ANY DAMAGE TO OR LOST OF PERSONAL PROPERTY IN CONNECTION WITH THE PROVISION OF SERVICES BY PRO. CONSUMER ASSUMES THE RISKS OF SUCH LOST OR DAMAGE BY ENGAGING PRO.
5. CITYSTUMBLER PROMISE
5.1 A Referral Service Promise. CityStumbler does not, and cannot, guarantee the work or services rendered by Pro. CityStumbler has no obligation or relationship whatsoever to the Consumer with regard to the provision of work or services by the Pro. However, CityStumbler promises Consumers a Cash-Rebate formulated on the commission compensation and dollar amount of the transaction. The Consumer must abide by these rules to qualify for a Rebate.
5.2 Not Insurance or Security for Pro’s Performance. The CityStumbler Promise is not insurance against nor security for inadequate performance of work or services performed by Pro.
6. INTERACTIONS WITH PROS
6.1 Relationship Between Pro and Consumer. CONSUMER IS SOLELY RESPONSIBLE FOR THE INTERACTIONS WITH PRO. CONSUMER’S RIGHTS UNDER THE SPECIFIC CONTRACTS ENTERED INTO WITH PRO ARE GOVERNED BY THE TERMS OF SUCH CONTRACTS AND BY APPLICABLE FEDERAL, STATE, PROVINCIAL AND LOCAL LAWS. SHOULD THE CONSUMER HAVE A DISPUTE WITH ANY PRO, THE CONSUMER MUST ADDRESS ANY DISPUTES WITH THE PRO DIRECTLY BASED ON THE CONTRACT ENTERED INTO WITH PRO.
6.2 Pro Ratings. In the event of public Pro ratings or comments, CityStumbler reserves the right to monitor, modify, or eliminate Pro ratings by the Consumer that are misrepresented, fraudulent, or inaccurate. Such ratings are to be determined at CityStumbler’s sole and absolute discretion without notification thereof.
6.3 Contact. Consumer expressly consents to being contacted by Agents selected by CityStumbler or by us either by telephone, SMS text messaging, email ,or by other means and hereby waives any Do Not Call provisions You may have signed up for or had government issued.
IN EXCHANGE FOR THE SERVICES PROVIDED BY CITYSTUMBLER AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH IS ACKNOWLEDGED, THE CONSUMER EXPRESSLY AGREES TO RELEASE CITYSTUMBLER, ITS OFFICERS, DIRECTORS, AFFILIATES, PARENT COMPANIES, EMPLOYEES AND AGENTS FROM ANY CLAIMS, DEMANDS, CAUSES OF ACTION, LOSSES AND DAMAGES (DIRECT AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE RELATIONSHIP AND INTERACTION WITH PRO THROUGH THE CITYSTUMBLER NETWORK OF SERVICES.
FOR CALIFORNIA RESIDENTS, THE CONSUMER ACKNOWLEDGES THAT THE CONSUMER IS AWARE OF AND VOLUNTARILY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
8. NO WARRANTIES
CITYSTUMBLER MAKES NO REPRESENTATION ABOUT THE SUITABILITY OF THE CONTENT ON OR SERVICES OF THIS WEBSITE FOR ANY PURPOSE. CITYSTUMBLER DOES NOT PROMISE THAT THE WEBSITE WILL BE ERROR-FREE, UNINTERRUPTED, OR THAT IT WILL PROVIDE SPECIFIC RESULTS FROM USE OF THE WEBSITE OR ANY CONTENT, SEARCH OR LINK ON IT. THE WEBSITE AND ITS CONTENT ARE DELIVERED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. CITYSTUMBLER CANNOT ENSURE THAT ANY FILES THE CONSUMER DOWNLOADS FROM THE WEBSITE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. CITYSTUMBLER SHALL NOT HAVE ANY LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE CONTENT OF THIS WEBSITE, FOR THE CONSUMER’S ACTION OR INACTION IN CONNECTION WITH THIS WEBSITE OR FOR ANY DAMAGE TO THE CONSUMER’S COMPUTER OR DATA OR ANY OTHER DAMAGE THE CONSUMER MAY INCUR IN CONNECTION WITH THIS WEBSITE. CITYSTUMBLER SPECIFICALLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS ALLOWED BY LAW. CITYSTUMBLER MAKES NO GUARANTEES OF ANY SPECIFIC RESULT FROM USE OF THIS WEBSITE. THE CONSUMER’S USE OF THIS WEBSITE IS AT THE CONSUMER’S OWN RISK AND AT THE CONSUMER’S SOLE DISCRETION.
9. LIMITATIONS OF LIABILITY
IN NO EVENT SHALL CITYSTUMBLER, ITS OFFICERS, DIRECTORS, AFFILIATES, PARENT COMPANIES, EMPLOYEES AND/OR AGENTS BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, GENERAL, SPECIAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR RELATING TO (1) THE USE OF, CONTENT IN, DELAY OR INABLITY TO USE, OR OTHERWISE ARISING IN CONNECTION WITH THIS WEBSITE, (2) THE CONDUCT OF A CONSUMER, PRO OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE WEBSITE, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. CITYSTUMBLER IS NOT LIABLE FOR ANY LOST DATA RESULTING FROM THE OPERATION OF THE WEBSITE OR THE ENFORCEMENT OF THE TERMS. CITYSTUMBLER EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTY CONSUMERS, CITYSTUMBLER CONSUMERS, ADVERTISERS AND/OR SPONSORS ON THE WEBSITE, IN CONNECTION WITH THE WEBSITE OR OTHERWISE RELATED TO THE CONSUMER’S USE OF THE WEBSITE. BY USING THE WEBSITE, THE CONSUMER AGREES TO TAKE REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH OTHER CONSUMERS OF THE WEBSITE. TO THE EXTENT THE CONSUMER’S STATE DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE EXCLUSION MAY NOT APPLY TO THE CONSUMER.
10. CONTENT ON WEBSITE
10.1 Proprietary Rights. This Website and the material within it, with the exception of Consumer Content as defined below, are © 2009-2014 CityStumbler, Inc. (“CityStumbler”). Viewing this Website creates a copy of CityStumbler materials in the Consumer’s computer’s random access memory and/or the Consumer’s hard drive and/or in the Consumer’s proxy server. The Website contains the copyrighted material, trademarks, service marks, logos and other proprietary information (the “Intellectual Property”) of CityStumbler. Nothing on this Website should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Intellectual Property displayed on the Website without the prior written permission of the Intellectual Property owner. Other products and company names mentioned in this Website may be the Intellectual Property of their respective owners.
10.2 Copyright Policy. Except for that information which is in the public domain, the Consumer may not post, copy, modify, publish, transmit, distribute, perform, display, sell or reproduce in any way any Intellectual Property without obtaining the prior written consent of the owner of such Intellectual Property. CityStumbler can remove any Consumer Content the Consumer posts on the Website if it violates this statement. If the Consumer believes that the Consumer’s work has been copied and posted on the Website in a way that constitutes infringement, please provide CityStumbler with the following information: an electronic or physical signature of the person authorized to act on behalf of the owner of the interest; a description of the work that the Consumer claim has been infringed; a description of where the material that the Consumer claim is infringing is located on the Website; the Consumer’s address, telephone number, and email address; a written statement by the Consumer that the Consumer has a good faith belief that the disputed use is not authorized by the owner, its agent, or the law; a statement by the Consumer, made under penalty of perjury, that the above information in the Consumer’s notice is accurate and that the Consumer is the owner or authorized to act on the owner’s behalf. Notice of potential claim may be sent to the following: CityStumbler, Attention: Legal, 10877 Wilshire Blvd., STE 1406, Los Angeles, CA 90024.
10.3 Documents and Information Available on this Website. Use of documents (such as press releases, datasheets, content, informational items and FAQs) from the Website is granted only with the expressed written permission of CityStumbler. In requesting such use, please provide the purpose of the use. Permission will be granted provided that (1) the Copyright Policy above is complied with and (2) use of such documents from the Website is for informational and non-commercial or personal use only and will not be copied or posted on any network computer or broadcast in any media, and (3) no modifications of any documents are made. Use of the such documents for any other purpose is expressly prohibited and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible. Documents specified above do not include the design or layout of the CityStumbler Website or any other CityStumbler owned, operated, licensed or controlled site (the “CityStumbler Websites”). Elements of CityStumbler Websites are protected by trade dress, trademark, unfair competition laws and other laws and may not be copied or imitated in whole or in part. No logo, graphic, sound or image from any CityStumbler Website may be copied or retransmitted unless expressly permitted in writing by CityStumbler.
10.4 Information The Consumer Provides to CityStumbler. Upon using or registering for an account on the Website, the Consumer will be prompted to disclose certain information about themselves and their service requirements if the Consumer requests services. Some of this information will be sent to a Pro, who will need this information to respond to the Consumer or to other persons or entities in connection with the Website. By providing this information to CityStumbler, or by submitting a Service Request, the Consumer expressly consents to having details of the Consumer’s Service Request sent to Pros. The Consumer further consents to CityStumbler’s use and display on the Website of anonymous data records from information collected from the Consumer’s Service Request, including the Consumer’s first name and the nature of the services the Consumer requested in the Consumer’s city. Such information helps other Consumers and Pros evaluate and utilize CityStumbler’s services.
Consumer is responsible for maintaining the confidentiality of Consumer’s account password, if any. Consumer is also responsible for all activities that occur in connection with Consumer’s account. Consumer agrees to notify CityStumbler immediately of any unauthorized use of Consumer’s account.
In the event that Consumer provides CityStumbler with any feedback regarding the CityStumbler service or the Website, including without limitation, any flaws, errors, bugs, anomalies, problems with and/or suggestions for the service or the Website (“Feedback”), Consumer hereby assigns to CityStumbler all rights in the Feedback, including but not limited to, the right to use such Feedback and related information in any manner we deem appropriate.
10.5 Content Posted by Consumer on the Website. The Consumer understands and agrees that CityStumbler may review, edit, change and/or delete any Consumer Content in its sole discretion. By posting Consumer Content to any public area of the Website, the Consumer automatically grants, and the Consumer represents and warrants that the Consumer has the right to grant, to CityStumbler, its affiliates, licensees and successors, an irrevocable, perpetual, non-exclusive, royalty-free, fully paid, fully sublicensable, worldwide license to use, copy, perform, sell, rent, lease, display, reproduce, adapt, publish, translate, modify and distribute such information and Consumer Content and to prepare derivative works of, or incorporate into other works, such information and Consumer Content throughout the world in any media, and to grant and authorize sublicenses of the foregoing. The Consumer further represents and warrants that public posting and use of the Consumer’s Consumer Content by CityStumbler will not infringe or violate the rights of any third party. The Consumer grants CityStumbler and sublicensees the right to use the name that the Consumer submits in connection with such content, if they choose.
Opinions, advice, statements, reviews, offers, or other information or Consumer Content made available through the Website, but not directly by CityStumbler, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such Consumer Content. CityStumbler does not: (i) guarantee the accuracy, completeness, or usefulness of any information on the Website; or (ii) adopt, endorse or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by any party that appears on the Website. Under no circumstances will CityStumbler or its affiliates be responsible for any loss or damage resulting from the Consumer’s reliance on information or other content posted on the Website or transmitted to or by any Consumers.
The following is a partial list of the kind of Consumer Content that is illegal or prohibited on the Website. CityStumbler reserves the right to investigate and take appropriate legal action in its sole discretion against anyone who violates this provision, including without limitation, removing the offending communication from the Website and terminating the membership of such violators. It includes, but is not limited to, Consumer Content that:
is patently offensive to the online community, such as Consumer Content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
harasses or advocates harassment of another person;
involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing or “spamming”;
promotes information that the Consumer knows is false or misleading (including with respect to the identity of the Pro who renders to the Consumer their Services);
promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
promotes an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated images, audio or video, or links to pirated images, audio or video files;
contains restricted or password only access pages, or hidden pages or images (those not linked to or from another accessible page);
provides material that exploits people under the age of 18 in a sexual or violent manner, or solicits personal information from anyone under the age of 18;
provides instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses;
solicits passwords or personal identifying information for commercial or unlawful purposes from other Consumers;
engages in commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes; or
violates state and/or local Consumer protection laws.
The Consumer’s use of the Website, including but not limited to the Consumer Content the Consumer posts on the Website, must be in accordance with any and all applicable laws and regulations. All information the Consumer includes in the Consumer’s account information must be accurate, current and complete. CityStumbler reserves the right to investigate and terminate the Consumer’s membership if the Consumer has misused the Website, or behaved in a way which could be regarded as inappropriate or whose conduct is unlawful or illegal.
The Consumer acknowledges that a violation of the foregoing Consumer Content provisions could result in significant damages; the Consumer agrees that the Consumer is liable to CityStumbler for any such damages. We reserve the right to revoke the Consumer’s access to the Website and services at any time. With exception of information that is generally accessible to the public, all information about Pros is confidential and for the Consumer’s real estate use only. If it is determined or suspected by CityStumbler in its sole discretion that the Consumer is misusing or attempting to misuse or circumvent the CityStumbler services or system, or are using or attempting to use them for any inappropriate, non-personal, or commercial purposes, including but not limited to activities such as hacking, infiltrating, fraud, advertising, jamming or spamming, CityStumbler reserves the right, in its sole discretion, to immediately terminate the Consumer’s access without notice and to initiate without notice appropriate legal actions or proceedings to seek appropriate remedies and/or damages, including but not limited to lost revenue, repairs, legal fees, costs and expenses, and to seek injunctions or other equitable remedies.
10.6 Modifications to Website. CityStumbler reserves the right at any time to modify or discontinue, temporarily or permanently, the Website (or any part thereof) with or without notice. The Consumer agrees that CityStumbler shall not be liable to the Consumer or to any third party for any modification, suspension or discontinuance of the Website.
10.7 Blocking of IP Addresses. In order to protect the integrity of the Website, CityStumbler reserves the right at any time in its sole discretion to block Consumers from certain IP addresses from accessing the Website.
10.9 Disclaimers. CityStumbler is not responsible for any incorrect or inaccurate content posted on the Website or in connection with the Website, whether caused by Consumers of the Website, or by any of the equipment or programming associated with or utilized in the Website. CityStumbler is not responsible for the conduct, whether online or offline, of any Consumer, Pro or other third-party consumers of the Website. CityStumbler assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, Consumer communications. CityStumbler is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or at any Website or combination thereof, including injury or damage to Consumers or to any other person’s computer related to or resulting from participating or downloading materials in connection with the Web and/or in connection with the Website. Under no circumstances will CityStumbler or any of its affiliates, advertisers, promoters or distribution partners be responsible for any loss or damage, including personal injury or death, resulting from anyone’s use of the CityStumbler Websites, any content posted on the Website or transmitted to Consumers, or any interactions between Consumers of the Website, whether online or offline. The CityStumbler Websites are provided “AS-IS” and CityStumbler expressly disclaims any warranty of fitness for a particular purpose or non-infringement. CityStumbler cannot guarantee and does not promise any specific results from use of the CityStumbler Websites.
In addition to the preceding paragraph and other provisions of this Agreement, any advice that may be posted on the Website is for informational and entertainment purposes only and is not intended to replace or substitute for any professional financial, medical, legal, or other advice. CityStumbler makes no representations or warranties and expressly disclaims any and all liability concerning any treatment, action by, or effect on any person following the information offered or provided within or through the Website. If the Consumer has specific concerns or a situation arises in which the Consumer requires professional or medical advice, the Consumer should consult with an appropriately trained and qualified specialist
10.10 Links. The Website may provide, or third parties may provide, links to other World Wide Web sites or resources, including, by way of example, the placement of a widget or live feed from a customer ratings website. Because CityStumbler has no control over such sites and resources, the Consumer acknowledges and agrees that CityStumbler is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. The Consumer further acknowledge and agree that CityStumbler shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of, or reliance upon, any such content, goods or services available on or through any such site or resource.
Consumer agrees to indemnify, defend and hold harmless CityStumbler, its parents, subsidiaries, affiliates, officers, agents, and other partners and employees, from and against any loss, liability, claim, demand or suit, including reasonable attorney’s fees, resulting from or arising out of any act or omission of Consumer, except to the extent such loss is caused by CityStumbler’s gross negligence.
12. NO THIRD PARTY BENEFICIARIES
Except as otherwise set forth expressly herein, nothing contained in this Agreement, express or implied, is intended to confer upon any person or entity, other than CityStumbler and the Consumer, any benefit, right or remedy.
The following provisions shall survive termination of the Agreement: No Warranty or Endorsement, Interactions and Disputes with Pros, Release, No Warranties, Limitations of Liability, all provisions in the Content on Website section, Disclaimers, Jurisdiction and Choice of Law, Dispute Resolution, Indemnification, No Third Party Beneficiaries, and Survival.
14. ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE
Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between Consumer and CityStumbler or CityStumbler’s employees, agents, successors, or assigns, shall exclusively be settled through binding and confidential arbitration.
Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
You, as the Consumer, are thus GIVING UP THE CONSUMER’S RIGHT TO GO TO COURT to assert or defend the Consumer’s rights EXCEPT for matters that may be taken to small claims court. The Consumer’s rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. The Consumer is entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
Consumer and CityStumbler must abide by the following rules: (a) ANY CLAIMS BROUGHT BY CONSUMER OR CITYSTUMBLER MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (b) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (c) in the event that Consumer is able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, CityStumbler will pay as much of the Consumer’s filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (d) CityStumbler also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (e) the arbitrator shall honor claims of privilege and privacy recognized at law; (f)the arbitration shall be confidential, and neither Consumer nor CityStumbler may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (g) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (h) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by the applicable law.
Notwithstanding the foregoing, either Consumer or CityStumbler may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Los Angeles, California. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Los Angeles, California in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Los Angeles, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
With the exception of subparts (a) and (b) in the paragraph above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subpart (a) or (b) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither Consumer nor CityStumbler shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court located in Los Angeles, California.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, the Consumer may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
15. CHOICE OF LAW
The Agreement is made under and shall be governed by and construed in accordance with the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.
EXPECTATION OF PRIVACY ON CITYSTUMBLER WEBSITE
The Consumers of the Website should have NO EXPECTATION OF PRIVACY in the content of the information shared and transmitted through the Website. Notwithstanding the above, any information learned by CityStumbler shall be used for the purpose of enforcing its Terms and Conditions.
INFORMATION COLLECTION AND USE
Information Collected Upon Visiting. When you visit the Applications, our servers automatically record information that your browser sends whenever you visit a website (“Log Data”). This Log Data may include information such as your IP address, browser type or the domain from which you are visiting, the web-pages you visit, the search terms you use, and any advertisements or links on which you click. For most users accessing the Internet from an Internet service provider the IP address will be different every time you log on. Some Log Data is derived from our implementation of Google Analytics Demographics and Interests reporting based on Display Advertising. Using the Ads Settings, visitors can opt-out of Google Analytics for Display Advertising and customize Google Display Network ads. We use Log Data to monitor the use of the Applications and of our Service, and for the Applications’ technical administration.
Information Collected Upon Registration. If you desire to have access to certain restricted sections of the Applications, you will be required to become a registered user, and to submit certain personally identifiable information to CityStumbler. This happens in a number of instances, such as if you desire to receive marketing materials and information, and/or if you submit a Service Request. Personally identifiable information that we may collect in such instances may include, but are not limited to, your full name, password, email address, street address, time zone, telephone number, mobile phone number for text messages, photographs you upload, moving plans and/or target locations, mortgage prequalification status and other information that you decide to provide us with, or that you decide to include in your Service Request.
- We may also collect information if you participate in surveys conducted by or on behalf of us or our partner companies, including but not limited to questionnaires, telephone interview and/or discussion groups, and otherwise providing general information about the CityStumbler service.
Anonymous Data. We may create Anonymous Data records from information collected from you (such as information contained in a Service Request) by excluding information (such as your full name) that make the data personally identifiable to you. “Anonymous Data” means data that is not associated with or linked to your personal information; Anonymous Data does not permit the identification of individual persons. We reserve the right to use and disclose Anonymous Data to third parties in our discretion.
Use of Contact Information.
In general, we may use information that we collect about you to:
- deliver the services that you have requested;
- manage your account and provide you with customer support;
- perform research and analysis about your use of, or interest in, our products, services, or content, or products, services or content offered by others;
- communicate with you by e-mail, postal mail, telephone and/or mobile devices or send newsletters about products or services that may be of interest to you;
- communicate with you with regard to partially completed service requests or job offers;
- develop and display content and advertising tailored to your interests on our site and other sites;
- create Anonymous Data records from such information;
- verify your eligibility and deliver prizes in connection with contests and sweepstakes;
- enforce our terms and conditions;
- verify eligibility for and administer cash back
- manage our business; and
- perform functions as otherwise described to you at the time of collection.
In addition, we may use your contact information to market to you, and provide you with information about, our products and services, including but not limited to our service. If you decide at any time that you no longer wish to receive such information or communications from us, please follow the unsubscribe instructions provided in any of the communications.
INFORMATION SHARING AND DISCLOSURE
We want you to understand when and with whom we may share personal or other information we have collected about you or your activities on our web site or while using our services. We do not share your personal information with others except as indicated below or when we inform you and give you an opportunity to opt out of having your personal information shared. Under no circumstances, other than in the event of a Business Transfer (as discussed below) will CityStumbler sell, rent or lease its Consumer lists (or the Consumer list of any individual Service Provider) to a third party.
Circumstance under which we may share your personal information:
To Provide Information to Pros. We may share your personal information with Pros registered with CityStumbler that perform services on behalf of Consumers. Sharing this information with Pros allows them to perform necessary due diligence to complete their service. The information we share is generally the information contained in the Service Request, including the name of the consumer, the type of service needed, the location of the service, and a description of the service needed.
To Provide Information to Partner Companies. We may enter into agreements with one or more partner companies pursuant to which we provide a partner company with a URL and a user registration page co-branded with, or private labeled by, the partner company, and the partner company distributes and promotes the URL to its customers. A partner company may want to access personally identifiable information that we collect from its customers. As a result, if you register on our Website or other Application through a partner company, or if you are directed to or access our Website, Application or their features (such as but not limited to an embedded widget) through a partner company, we may provide your personally identifiable information to the partner company. Because we do not control the privacy practices of our partner company, you should read and understand its privacy policies.
To Facilitate CityStumbler’s Use of Third-Party Services. We engage certain trusted third parties to perform functions and provide services to us, including, without limitation, hosting and maintenance, customer relationship, database storage and management, and direct marketing campaigns. We will share your personally identifiable information with these third parties, but only to the extent necessary to perform these functions and provide such services, and only pursuant to binding contractual obligations requiring such third parties to maintain the privacy and security of your data.
To Comply with Laws and Law Enforcement. CityStumbler cooperates with government and law enforcement officials or private parties to enforce and comply with the law. We may disclose any information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims, legal process (including subpoenas), to protect the property and rights of CityStumbler or a third party, the safety of the public or any person, to prevent or stop any illegal, unethical, or legally actionable activity, or to comply with applicable law.
To Solicit or Provide Advice on Pro Selection. CityStumbler, with your explicit opt-in, may publish a message to your Facebook Wall, Twitter Timeline, Google +, or other available social media shares notifying your friends of your use of the Website or other Application. In addition, with your explicit opt-in, CityStumbler may publish a message to your Facebook Wall, Twitter Timeline, Google +, or other available social media shares if you provide input, recommendations, or advice on or satisfaction with a Pro used via the Website.
CityStumbler is very concerned about safeguarding the confidentiality of your personally identifiable information. We employ administrative, physical and electronic measures designed to protect your information from unauthorized access. However, we cannot guarantee that hackers or unauthorized personnel will not gain access to your personal information despite our efforts. You should note that in using the Website or other Application, your information will travel through third party infrastructures which are not under our control. By using the Website, you assume the risk that unauthorized third-parties may access your information and use for an improper or illegal purpose without your authorization.
LINKS TO OTHER WEBSITES
Our Applications contains links to other websites. The fact that we link to a website is not an endorsement, authorization or representation of our affiliation with that third party. We do not exercise control over third party websites. These other websites may place their own cookies or other files on your computer, collect data or solicit personally identifiable information from you. Other sites follow different rules regarding the use or disclosure of the personally identifiable information you submit to them. We encourage you to read the privacy policies or statements of the other websites you visit.
The Applications are not directed to persons under 18. If a parent or guardian becomes aware that his or her child has provided us with personally identifiable information without the parent or guardian’s consent, he or she should contact us at support@CityStumbler.com. We do not knowingly collect personally identifiable information from minors under 18. If we become aware that a minor under 18 has provided us with personal identifiable information, we will use reasonable commercial efforts to promptly delete such information from our files.