1. Acceptance of the Terms of Use
1.1 These terms and conditions constitute a legal agreement (collectively, the “Terms of Use”) between you (“You”) and Fyve, Inc, a Delaware company and all of its subsidiaries (“Fyve” or the “Company”). In order to access or use FYVE’s Services (defined below) and the associated Application (defined below) You must agree to the terms and conditions set forth herein. By downloading, installing or using any associated mobile application or web service supplied by FYVE (collectively, the “Application”) which purpose is to enable You to use property management, real estate services or ancillary services provided by FYVE (collectively, “Services”), You hereby expressly acknowledge and agree to be bound by these Terms of Use and our Privacy Policy, found at fyve.com/terms_of_use/, fyve.com/privacy_policy/ and incorporated herein by reference. If You do not want to agree to these Terms of Use You must not access or use the Application and must delete the Application and all copies thereof.
1.2 Please carefully review the arbitration agreement set forth in Section 18 below, as it impacts the legal rights of the parties and will require You to resolve disputes with FYVE on an individual basis through final and binding arbitration.
2. Changes to the Terms of Use.
2.1 FYVE reserves the right to modify or amend these Terms of Use or its policies relating to the Application in its sole discretion at any time, such amendment or modification to be effective upon posting or publication of an updated version of these Terms of Use on the Application.
2.2 You are responsible for regularly reviewing these Terms of Use. Your continued use of the Service or Application after any such changes shall constitute your consent to be bound by the amended or modified Terms of Use.
3. Key Content-Related Terms.
3.1 FYVE Content. Means texts, graphics, images, music, software (excluding the Application), audio, video, information or other materials (“Content”) that FYVE makes available through the Services or Application, including any Content licensed from a third party, but excluding User Content (defined below).
3.2 User Content. Means Content that a person who accesses or uses the Services or Application (“User”) posts, uploads, publishes, submits or transmits to be made available through the Services or Application (collectively with FYVE Content, “Collective Content”).
4. Accessing the Application and Account Security.
4.1 By using the Applications, You expressly represent and warrant that You are legally entitled to and have the right, authority and capacity to enter into and to abide by these Terms of Use.
4.2 If You reside in a jurisdiction that restricts the use of the Application because of age or restricts the ability to enter into agreements such as this one due to age, You must abide by such age limits and You must not use the Application. Without limiting the foregoing, the Application is not available for use by children (persons under the age of 18) without adult supervision.
4.3 By using the Application or Service, You represent and warrant that You are at least 18 years old or will use the Service or Application under adult supervision. Your participation in using the Service and/or Application is exclusively for your sole, personal and non-commercial use. You may not authorize others to use your profile, user status or credentials, and You may not assign or otherwise lend, transfer, lease or sell (directly or indirectly) your user account to any other person or entity.
4.4 You may only access the Service using the Application or other means expressly authorized by FYVE. It is your responsibility to check to ensure You download the correct version of the Application for your device. FYVE is not liable if You do not have a compatible handset or if You have downloaded the wrong version of the Application. FYVE reserves the right to terminate these Terms of Use and take any further action necessary to remedy your use of the Application with an incompatible or unauthorized device.
4.5 By using the Application, You agree that you:
4.5.1 Will only use the Application for lawful purposes; You will not use the Application for sending or storing any unlawful material or for fraudulent purposes.
4.5.2 Will not use the Application to cause nuisance, annoyance or inconvenience.
4.5.3 Will not impair the proper operation of the network.
4.5.4 Will not harm or attempt to harm the Application in any way whatsoever.
4.5.5 Will not copy or distribute the Application or any content provided via the Application or as a result of your use of Services without prior written permission from FYVE.
4.5.6 Will not only use the Application for your own use and will not resell it, directly or indirectly, to any third party.
4.5.7 Will keep secure the confidential information regarding your account, which allows access to the Service through the Application.
4.5.8 Will provide us with whatever proof of identity we may reasonably request.
4.5.9 Will only use an access point or 3G data account (AP) which You are authorized to use.
4.5.10 Will comply with all applicable laws from your home nation and the country, state and city in which You are present while using the Application.
4.5.11 Are aware that when requesting services by SMS, standard messaging charges will apply.
4.6 Export Control. You agree not to use the Application in any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries, including but not limited to the Export Control Reform Act and its associated regulations).
5. Application and Copyright License Grant and User Content.
5.1 Application License. Subject to your compliance with these Terms of Use, FYVE grants You a limited, non-exclusive, non-sublicensable, revocable, non-transferrable license to: (i) download, install and use the Application on a single mobile cellular device and personal computer devices owned or otherwise controlled by You solely in connection with your personal, non-commercial use of the Services, and (ii) view, stream, download and print any Collective Content, information and related materials made available through the Application, in each case solely for your personal, noncommercial use.
5.2 Copyright License. We may in our sole discretion, permit Users to post, upload, publish, submit or transmit User Content. By making available any User Content on or through the Application, You hereby grant to FYVE a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Content only on, through or by means of the Services or Application. FYVE does not claim any ownership rights in any User Content and nothing in these Terms of Use will be deemed to restrict any rights that You may have to use and exploit any User Content.
5.3 User Content. You acknowledge and agree that You are solely responsible for all User Content that You make available through the Application. Accordingly, You represent and warrant that: (i) You either are the sole and exclusive owner of all User Content that you make available through the Application or You have all rights, licenses, consents and releases that are necessary to grant to FYVE and to the rights in such User Content, as contemplated under these Terms of Use; and (ii) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or FYVE’s use of the User Content (or any portion thereof) on, through or by means of the Service or Application will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
6. Reservation of Rights.
You acknowledge and agree that the Application is provided under license, and not sold to You. Any rights not expressly granted to You under these Terms of Use are reserved by FYVE. No licenses or rights are granted to You by implication or otherwise under any intellectual property rights owned or controlled by FYVE or its licensors, except for the licenses and rights expressly granted in these Terms of Use.
7. License Restrictions.
7.1 You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Application in any way; (ii) modify or make derivative works based upon the Application; (iii) create Internet “links” to the Service or “frame” or “mirror” any Application on any other server or wireless or Internet-based device; (iv) reverse engineer or access the Application in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service or Application, or (c) copy any ideas, features, functions or graphics of the Application, or (v) launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the Application.
7.2 You shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Application or Service or the data contained therein; or (v) attempt to gain unauthorized access to the Application or Service or its related systems or networks.
8. Violations.
FYVE will have the right to investigate and prosecute violations of these Terms of Use to the fullest extent of the law. FYVE may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms of Use. You acknowledge that FYVE has no obligation to monitor your access to or use of the Service, Application or Collective Content or to review or edit any Collective Content, but has the right to do so for the purpose of providing the Services and operating and Application, to ensure your compliance with these Terms of Use, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. FYVE reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that FYVE, at its sole discretion, considers to be in violation of these Terms of Use or otherwise harmful to the Service or Application.
9. Copyright Policy.
FYVE respects copyright law and expects its users to do the same. It is FYVE’s policy to terminate in appropriate circumstances Users or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see FYVE’s Copyright Policy at fyve.com/copyright_policy/ for further information.
10. SMS Messaging.
If You select this feature and have SMS service from one of the supported Carriers, You can receive notifications via SMS. Messaging and data rates may apply. If You change your mobile phone service provider, the service may be deactivated and You will need to re-enroll in the notification service. FYVE reserves the right to cancel and/or reinstate the notification service at any time.
11. Intellectual Property Ownership.
FYVE alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Application and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Application or the Service. These Terms of Use are not a sale and does not convey to you any rights of ownership in or related to the Application or the Service, or any intellectual property rights owned by FYVE. The FYVE name, FYVE logo, and the product names associated with the Application and Service are trademarks of FYVE or third parties, and no right or license is granted to use them.
12. Third Party Interactions.
12.1 During use of the Application and Service, You may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third-party service providers, advertisers or sponsors showing their goods and/or services through the Application. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. FYVE and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase, transaction or promotion between you and any such third-party. FYVE does not endorse any sites on the Internet that are linked through the Services or Application, and in no event shall FYVE or its licensors be responsible for any content, products, services or other materials on or available from such sites or third-party providers. FYVE provides the Application and Services to you pursuant to the terms and conditions of these Terms of Use. You recognize, however, that certain third-party providers of goods and/or services may require your agreement to additional or different terms and conditions prior to your use of or access to such goods or services, and FYVE disclaims any and all responsibility or liability arising from such agreements between you and the third-party providers.
12.2 FYVE may rely on third party advertising and marketing supplied through the Application or Service and other mechanisms to subsidize the Application. By agreeing to these terms and conditions you agree to receive such advertising and marketing. If You do not want to receive such advertising, you should notify us in writing. FYVE reserves the right to charge you a higher fee for the Application should you choose not to receive these advertising services. This higher fee, if applicable, will be posted on FYVE’s website located at www.fyve.com FYVE may compile and release information regarding you and your use of the Application or Service on an anonymous basis as part of a customer profile or similar report or analysis. You agree that it is your responsibility to take reasonable precautions in all actions and interactions with any third party you interact with through the Service.
13. Indemnification.
13.1 By entering into these Terms of Use and using the Application, You agree that you shall defend, indemnify and hold FYVE, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, Users, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (a) your violation or breach of any term of these Terms of Use or any applicable law or regulation, whether or not referenced herein; (b) your violation of any rights of any third party, including providers of transportation services arranged via the Application, or (c) your use or misuse of the Application.
14. Disclaimer of Warranties.
14.1 THE COMPANY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR APPLICATION. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE OR APPLICATION WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, APPLICATION, SYSTEM OR DATA, (B) THE SERVICE OR APPLICATION WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS IN THE SERVICE OR APPLICATION WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND APPLICATION IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY THE COMPANY. THE COMPANY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, SAFETY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF ANY SERVICES, PRODUCTS OR GOODS OBTAINED BY THIRD PARTIES THROUGH THE USE OF THE SERVICE OR APPLICATION. YOU ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE APPLICATION AND SERVICE, AND ANY THIRD-PARTY SERVICES OR PRODUCTS REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
15. Internet Delays.
THE COMPANY’S SERVICE AND APPLICATION MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. THE COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
16. Limitation of Liability.
16.1 IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL THE COMPANY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE). THE COMPANY AND/OR ITS LICENSORS SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY WHICH MAY BE INCURRED BY YOU, INCLUDING BY NOT LIMITED TO LOSS, DAMAGE OR INJURY ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE OR APPLICATION, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE OR APPLICATION, ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY THIRD PARTY SERVICE PROVIDER, ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE WEBSITE OR IS REFERRED BY THE SERVICE OR APPLICATION, EVEN IF THE COMPANY AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
17. Notices.
FYVE may give notice by means of a general notice on the Application, electronic mail to your email address on record with FYVE, or by written communication sent by first class mail or pre-paid post to your address on record with FYVE. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or immediately upon receipt (if sent by email). You may give notice to FYVE (such notice shall be deemed given when received by FYVE) at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to FYVE at the following address: 501 E. Las Olas Blvd., Ste 319, Fort Lauderdale, FL 33301 addressed to the attention of: Legal Department.
18. Assignment.
These Terms of Use may not be assigned by You without the prior written approval of FYVE but may be assigned without your consent by FYVE to (i) a parent, subsidiary, or affiliate (ii) an acquirer of equity or assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.
19. Governing Law.
These Terms of Use shall be governed by and construed in accordance with the laws of the State of Florida without regard to any conflict of law principles.
20. Dispute Resolution.
20.1 Arbitration. Any claim or dispute arising out of or relating to these Terms of Use or the breach, termination, enforcement, interpretation or validity thereof or the use of the Service or Application (collectively, “Disputes”) between the Parties and/or against any agent, employee, successor, or assign of the other, whether related to this agreement or the relationship or duties contemplated herein, including the validity of this clause, shall be resolved exclusively by binding arbitration by the American Arbitration Association by a sole arbitrator, under the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes then in effect, which are deemed to be incorporated herein by reference. The place of arbitration shall be Broward County, Florida. Except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. The existence and content of the arbitration proceedings and any rulings or award shall be kept confidential except (i) to the extent that disclosure may be required of a party to fulfill a legal duty, protect or pursue a legal right, or enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority, or (ii) with the written consent of all parties. Notwithstanding anything to the contrary, either party may disclose matters relating to the arbitration or the arbitration proceedings where necessary for the preparation or presentation of a claim or defense in such arbitration.
20.2 CLASS ACTION WAIVER. ARBITRATION SHALL PROCEED SOLELY ON AN INDIVIDUAL BASIS WITHOUT THE RIGHT FOR ANY CLAIMS TO BE ARBITRATED ON A CLASS ACTION BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF OTHERS. THE ARBITRATOR’S AUTHORITY TO RESOLVE AND MAKE WRITTEN AWARDS IS LIMITED TO CLAIMS BETWEEN MEMBER AND FYVE ALONE. CLAIMS MAY NOT BE JOINED OR CONSOLIDATED UNLESS AGREED TO IN WRITING BY ALL PARTIES. NO ARBITRATION AWARD OR DECISION WILL HAVE ANY PRECLUSIVE EFFECT AS TO ISSUES OR CLAIMS IN ANY DISPUTE WITH ANYONE WHO IS NOT A NAMED PARTY TO THE ARBITRATION. NOTWITHSTANDING ANY OTHER PROVISION IN THESE TERMS AND CONDITIONS AND WITHOUT WAIVING EITHER PARTY’S RIGHT OF APPEAL, IF ANY PORTION OF THIS PROVISION IS DEEMED INVALID OR UNENFORCEABLE, THEN THE REMAINING PORTIONS OF THE ARBITRATION PROVISION SHALL REMAIN IN FULL FORCE AND EFFECT.
21. General.
21.1 Relationship of the Parties. No joint venture, partnership, employment, or agency relationship exists between you, FYVE or any third-party provider as a result of these Terms of Use or your use of the Application, except as expressly provided in these Terms.
21.2 Severability. If any provision of these Terms of Use is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law.
21.3 No Waiver. FYVE’s failure to enforce any right or provision in these Terms of Use shall not constitute a waiver of such right or provision, unless acknowledged and expressly agreed to by FYVE in writing.
21.4 Entire Agreement. These Terms comprise the entire agreement between you and FYVE and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding your access to and use of the Application.