TERMS OF SERVICE
Please read these Terms of Service (collectively with The Encore Property Group’ Privacy Policy and DMCA Copyright Policy, the “Terms of Service“) fully and carefully before using www.theencorepropertygroup.com (the “Site”) and the services, features, content or Applications (as defined in Section 14 below) offered by The Encore Property Group LLC. d/b/a Encore and its affiliates (“we,” “us,” or “our”) (together with the Site, the “Services”). These Terms of Service set forth the legally binding terms and conditions for your use of the Services.
Acceptance of Terms of Service
BINDING CONTRACT. BY REGISTERING FOR AND/OR USING THE SERVICES IN ANY MANNER, INCLUDING, BUT NOT LIMITED TO, VISITING OR BROWSING THE SITE AND/OR THE APPLICATIONS, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE AND ALL OTHER TERMS AND CONDITIONS, OPERATING RULES, POLICIES, AND PROCEDURES THAT MAY BE PUBLISHED FROM TIME TO TIME THROUGH THE SERVICES BY US OR OTHERWISE PROVIDED TO YOU IN CONNECTION WITH THE SERVICES, EACH OF WHICH IS INCORPORATED BY REFERENCE INTO THESE TERMS OF SERVICE. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A COMPANY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO DO SO.
Applicability. These Terms of Service apply to all users of the Services, including, without limitation, users who seek rental or sales listings or seek to have rental or sales listings posted, and users who are contributors of comments, reviews, photos, video, content, information, and other materials or services, registered or otherwise.
Eligibility
Eligibility Requirements. You represent and warrant that you are at least eighteen (18) years of age and that you have the right, authority, and capacity to enter into, perform your obligations under, and abide by these Terms of Service. If you are under the age of 18, you may not, under any circumstances or for any reason, use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules, and regulations applicable to you. The right to access the Services is revoked where use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule, or regulation. Further, unless otherwise mutually agreed in writing, the Services are offered only for your use and not for the use or benefit of any third party; and in any event, each person receiving the benefit of the Services must agree to and abide by these Terms of Service as a condition to our obligations.
Non-U.S. Users. The Services are controlled and offered by us from our facilities in the United States of America. We make no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are responsible for compliance with local law. By providing information in connection with the Services, you consent to the transfer of your information to, and storage of your information in, the United States, the laws of which may not be as stringent as the laws of the country in which you reside.
What We Do
Our Services. In addition to the services we offer in person, the Services include online platforms on which people or entities that wish (and have the right) to rent, lease, or sublet their properties (“Landlords”) or sell their properties (“Sellers”) may propose to us property listings (“Listings”), and people who wish to rent, lease, or sublease (“Renters”) or buy (“Buyers”) such properties may search for, obtain information regarding, and potentially complete transactions with respect to, such properties. We do not own, operate, or have any control over the properties or Listings.
Please Be Smart. You understand and agree that we are not a party to any agreement you enter into with any other user, whether or not that agreement is provided through the Services, and you acknowledge that you are solely responsible for your interactions, correspondence, and transactions with other users of the Services, whether on the Site, the Applications, in person, or otherwise. Please exercise good judgment and common sense; conduct all necessary, appropriate, and prudent inquiries, investigations, research, and due diligence; and take all necessary precautions when interacting with others or publicly posting Content. For purposes of these Terms of Service, the term “Content” includes, without limitation, Listings, information, data, text, inquiries, photographs, videos, virtual tours, audio clips, written posts, reviews, feedback, comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services, as well as, all User Content (as defined in Section 8 below).
Advertising. Some Services may be supported by advertising revenue, and you hereby agree that we may display advertising, promotions, sponsored Listings, and the like in connection with the Services on, around, and in connection with your User Content.
Availability of Content. We do not guarantee that any Content will be made available through the Services. We reserve the right, but not the obligation, to (i) remove, edit, or modify any Content in our sole discretion, at any time, without notice to you, and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have violated these Terms of Service), or for no reason at all, and (ii) remove or block any Content from the Services.
Rules of Conduct
No Prohibited Use. As a condition of use, you shall not use the Services for any purpose that is prohibited by these Terms of Service. You are responsible for all of your activity in connection with the Services.
Don’t Abuse the Service. You shall not (i) manipulate the price or description of any Listing without proper authorization; (ii) interfere with other users’ Listings; (iii) recruit, solicit, or encourage any other user to use third party services or websites that are competitive to ours; (iv) use the Services to find a Listing, Landlord, Buyer, Seller, or Renter and then complete a transaction independent of the Services in order to circumvent the obligation to pay any fees related to our provision of the Services; (v) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure; (vi) interfere or attempt to interfere with the proper working of the Services or any activities conducted in connection with the Services; (vii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (viii) run any form of auto-responder or “spam” on the Services; (ix) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site; (x) harvest or scrape any Content from the Services; (xi) take any action in violation of our guidelines and policies; (xii) decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including, without limitation, any Application), except to the limited extent that applicable laws specifically prohibit such restriction; (xiii) modify, translate, or otherwise create derivative works of any part of the Services; or (xiv) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national, and international laws and regulations.
Our Additional Rights. We also reserve the right, without any obligation, to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request; (ii) enforce these Terms of Service, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security or technical issues; (iv) respond to user support requests; (v) fulfill your requests for services; or (vi) protect the rights, property or safety of us, our users, and the public. You acknowledge and agree that we may, but have no obligation to, conduct background checks, reference checks, and credit checks on any users of the Services.
Equal Housing Opportunity. We are pledged to the letter and spirit of United States policy for the achievement of equal housing opportunity. We encourage and support an affirmative advertising and marketing program in which there are no barriers to obtaining housing because of race, color, religion, sex, handicap, familial status, or national origin. We endeavor to treat all parties fairly and honestly and to support equal housing opportunities. We encourage our users to do so as well.
User Content
User Content. All Listing, rental, or sales information, and other content added, created, uploaded, submitted, distributed, or posted in connection with the Services or otherwise provided by users (collectively “User Content”), whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent that all User Content provided by you is accurate, complete, up-to- date, and in compliance with all applicable laws, rules, and regulations.
The following standards apply to any and all User Content. You must ensure that all User Content posted by you complies with all applicable laws and regulations. Without limiting the foregoing, you must not post User Content that: – infringes any patent, trademark, trade secret, copyright, right of publicity, or other right of any other person or entity or violates any law or contractual duty (see our DMCA Copyright Policy); – you know is false, misleading, untruthful, or inaccurate; is unlawful, threatening, discriminatory, hateful, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, or profane; contains or depicts nudity or sexual activity; promotes bigotry, racism, hatred, or harm against any individual or group; or is otherwise inappropriate as determined by us in our sole discretion; – constitutes unauthorized or unsolicited advertising, junk, or bulk e-mail (“spamming”); – contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit, or interfere with the proper function of any software, hardware, or telecommunications equipment, or to damage or obtain unauthorized access to any system, data, password, or other information of ours or of any third party; – impersonates, bullies, stalks, or intimidates any person or entity, including any of our employees or representatives, or falsifies or misrepresents yourself or your personal information; or – includes any confidential information, violates the rights (including, without limitation, the rights of publicity and privacy and rights under a contract) of others, or otherwise contains any material that could give rise to any civil or criminal liability under applicable laws or regulations, or that otherwise may be in conflict with these Terms of Service.
Intellectual Property Rights You acknowledge and agree that the Services and the Content, including User Content provided by others, features, and functionality (including, without limitation, all content, information, data, items, materials, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof), are owned by us, our licensors, or other providers of such material and are protected by United States and international intellectual property or proprietary rights laws. Our Site features Google Maps; please review Google’s privacy policy, legal notices, and terms of use.
No right, title, or interest in or to the Services or any Content provided in connection with the Services is transferred or otherwise granted to you under these Terms of Service. All right, title, or interest in or to the Services and the Content provided in connection with the Services (other than user contributions posted by you) are reserved by us. Any use of the Services not expressly permitted by these Terms of Service is a breach of these Terms of Service and may violate copyright, trademark, or other laws.
The names, logos, product and service names, designs, slogans, and other trademarks associated with the Services are ours and those of our licensors. You must not use any of the foregoing without our prior written permission. All other names, logos, product and service names, designs, slogans, and other trademarks used in connection with the Services are the trademarks of their respective owners.
Third Party Services
The Site and Applications may permit you to link to other websites, services, or resources on the Internet, and other websites, services, or resources may contain links to the Services. When you access third party resources on the Internet, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness, or any other aspect of such websites or resources. The inclusion of any such link does not imply our endorsement or any association between us and their operators. You further acknowledge and agree that we 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 on any such content, goods, or services available on or through any such website or resource.
Termination
We may terminate your access to all or any part of the Services at any time, with or without cause, with or without notice, and effective immediately, which may result in the forfeiture and destruction of all information associated with your membership. If you wish to terminate your Account, you may do so by following the instructions on the Site or through the Services. Any fees paid hereunder are non-refundable. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability, and arbitration.
Warranty Disclaimer
No Fiduciary Duty. Unless we have signed a state-mandated written agreement with you that states otherwise, we have no special relationship with or fiduciary duty to you. You acknowledge that we have no duty to take any action regarding: – which users gain access to the Services; – what Content you access via the Services; or – how you may interpret or use the Content.
No Responsibility. You acknowledge that all Content, including User Content, accessed by you using the Services is at your own risk and that you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not assume any responsibility or liability or make any warranties or guarantees that any Content you access on or through the Services is or will continue to be accurate, safe, or legal. All Content and information is subject to errors, omissions, changes in price, prior sale or rental, or withdrawal without notice. No representation, warranty, covenant, or guarantee is made as to the accuracy of any description. All measurements and square footages are approximate and may not be relied upon by you. All information should be confirmed by you.
DISCLAIMER. THE SERVICES AND CONTENT ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE, AND OUR DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS, AND CONTENT PROVIDERS DO NOT WARRANT THAT (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK.
Additional Disclaimers. We make no representations concerning any Content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, or legality of material or Content contained in or accessed through the Services or for any actions you may take as a result of having been exposed to the Services. If any sample or other contracts are provided or otherwise obtained through the Services, we do not warrant that such terms will sufficiently cover the relationship you seek to develop by entering into such terms, nor do we represent, warrant, or guarantee that such terms are legal, binding, adequate, complete or in any way appropriate for your intended purposes. It is your responsibility to consult with independent legal counsel prior to entering into any contract or agreement with a third party.
ADDITIONAL CONTENT DISCLAIMERS. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY LISTING, PROPERTY, CONTRACT, CONTENT, OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED SITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD PARTY PROVIDERS OF LISTING INFORMATION, PROPERTIES, CONTENT, OR SERVICES. You acknowledge and agree that we (i) do not decide what price is appropriate for the Listing; (ii) do not guarantee the condition of any properties or the performance, adequacy, or completeness of inspections, services, products, or repairs; (iii) do not have any obligation to conduct any inspections whatsoever, including, without limitation, of common areas, offsite areas, or other aspects of the properties; (iv) have no responsibility for identifying defects with the property or inspecting public records or permits regarding title or use of the properties; (v) are not responsible for verifying square footage, representations of others, or information contained in any property reports, Listings, or promotional materials; and (vi) are not responsible for providing legal or tax advice regarding any transactions. Listings and related information provided from third parties are provided solely as a convenience, and Encore has not reviewed or confirmed any information originating from sources other than Encore.
Indemnification. You shall defend, indemnify, and hold harmless us, our affiliates, and each of our and their respective employees, contractors, directors, suppliers, licensors, and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to (i) your use or misuse of, or access to, the Services, Listings, Content, or otherwise from your User Content; (ii) violation of these Terms of Service; (iii) breach of any contract, or other agreement you enter into; (iv) personal injury, property damage, or other claims or damages relating to property defects, conditions, legality, or suitability; (v) your interactions or transactions with any other user; or (vi) infringement by you, or any third party using your Account or identity in connection with the Services, of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
Limitation of Liability
LIABILITY LIMITS. IN NO EVENT SHALL WE, NOR OUR AFFILIATES AND EACH OF OUR AND THEIR RESPECTIVE EMPLOYEES, CONTRACTORS, DIRECTORS, SUPPLIERS, LICENSORS, AND REPRESENTATIVES, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS, ACCOMMODATIONS, RIGHTS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), OR FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE LESSER OF (A) FEES PAID TO US FOR THE PARTICULAR SERVICES DURING THE IMMEDIATELY PREVIOUS THREE (3) MONTH PERIOD OR (B) $100.00.
ACKNOWLEDGEMENT. YOU SPECIFICALLY ACKNOWLEDGE THAT WE SHALL NOT BE LIABLE FOR (I) USER CONTENT, (II) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, OR (III) THE CONDITION, LEGALITY, OR SUITABILITY OF ANY PROPERTY, AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS SOLELY AND ENTIRELY WITH YOU.
Releases. You shall and hereby do release us from all liability for you having acquired or not acquired housing through the Services. You hereby release us and our directors, officers, employees, agents, subsidiaries, affiliates, successors, predecessors, assigns, heirs, service providers, insurers, investors, attorneys, advisors, and suppliers from all claims, demands, and damages of every kind and nature, known and unknown, direct and indirect, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to content accessed through the Services, or any interactions with others arising out of or related thereto, and you expressly waive the provisions of any local law, which provides in substance: “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,” and all similar code provisions in any jurisdiction.
ARBITRATION CLAUSE AND CLASS ACTION WAIVER – IMPORTANT – PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS
ARBITRATION. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING, WITHOUT LIMITATION, DISPUTES RELATED TO THESE TERMS OF SERVICE, YOUR USE OF THE SERVICES, AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION’S RULES FOR ARBITRATION OF CONSUMER-RELATED DISPUTES, AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either we or you can elect to have the arbitration administered instead by the Judicial
Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies, or awards that conflict with these Terms of Service.
NO CLASS ACTION. NEITHER YOU NOR WE WILL PARTICIPATE IN A CLASS ACTION OR CLASS-WIDE ARBITRATION FOR ANY CLAIMS COVERED BY THESE TERMS OF SERVICE. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if we are a party to the proceeding.
Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration section will be null and void. This arbitration agreement will survive the termination of your relationship with us.
Governing Law and Jurisdiction. These Terms of Service shall be governed by and construed in accordance with the laws of the State of New York, including its conflicts of law rules, in the United States of America, and the United Nations Convention on Contracts for the International Sale of Goods shall not be applicable hereto. Without limiting the arbitration obligations set forth above, you agree to submit to the jurisdiction and venue of the state and Federal courts of New York County, New York for the purposes of these Terms of Service. YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES OR US MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
User Disputes. We reserve the right, without any obligation, to intervene in or monitor disputes between our users. You agree to cooperate with and assist us in good faith, and to provide us with such information and take such actions as we may reasonably request, in connection with any disputes involving you. Although we may moderate content or disputes in our discretion, we have no authority to legally bind third parties or force them to resolve complaints or disputes. Any efforts or statements made by us to intervene in or moderate disputes is superseded by this provision, which may not be modified, waived, or released except by a written agreement, dated and signed by our Chief Executive Officer and dated and signed by the individual or entity to whom the modification, waiver, or release is granted.
Export Control. By using the Services, you represent and warrant that (i) neither you nor any Listing proposed by you, if any, is 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. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture, or production of missiles or nuclear, chemical, or biological weapons. You may not use, export, re-export, import, or transfer the Services except as authorized by United States law, the laws of the jurisdiction in which you obtained the Application, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries; (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List; or (c) into any country or to any person or entity on any similar lists maintained in any applicable jurisdiction.
Feedback. Your feedback, comments and suggestions for improvements to the Services and our business generally (“Feedback”) are welcome. You may submit Feedback by emailing feedback info@theencorepropertygroup.com. You acknowledge and agree that all Feedback is and shall be our sole and exclusive property, and you shall and hereby do assign to us all right, title, and interest in and to all Feedback, including, without limitation, all worldwide patent, copyright, trade secret, moral, and other proprietary or intellectual property rights therein, notwithstanding anything else. You will execute documents and take such further acts as we may reasonably request to effectuate the foregoing ownership and rights.
Modification. We reserve the right, in our sole discretion, to modify or replace any of these Terms of Service (including, without limitation, Encore’s Privacy Policy, for the avoidance of doubt), or change, suspend, limit, or discontinue the Services (including, without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending you notice through the Services, via e-mail, or by another appropriate means of electronic communication. It is also your responsibility to check these Terms of Service periodically for changes. Your continued use of the Services following notification of any changes to these Terms of Service constitutes acceptance of those changes.
Miscellaneous
Entire Agreement and Severability. These Terms of Service, together with any state-mandated disclosure forms provided by us to you separately, are the entire agreement between you and us with respect to the Services and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services.
Severability. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
Force Majeure. We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic, or communications failure or degradation, or third party acts or omission.
Assignment. These Terms of Service are personal to you and are not assignable, transferable, or sublicensable by you except with our prior written consent. We may assign, transfer, or delegate any of our rights and obligations hereunder without consent.
Agency. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service, and neither party has any authority of any kind to bind the other in any respect.
Notices. Unless otherwise specified in these Term of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e- mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to info@theencorepropertygroup.com.
No Waiver. Our failure to enforce any part of these Terms of Service shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
Headings. The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation.
Third Party Rights. These Terms of Service are for the benefit of us and our affiliates, vendors, and suppliers, and our and their officers, directors, employees, affiliates, agents, licensors, and suppliers. Each of these entities and individuals shall have the right to assert and enforce these Terms of Service directly against you on its or their behalf.
Contact. If you have any questions, complaints, or claims with respect to the Services, you may contact us at The Encore Property Group. d/b/a Encore, 147 Prince Street, Brooklyn, NY 11201; info@theencorepropertygroup.com; 917-512-8443.
Notices and Restrictions
Copyrights. The Services may contain Content specifically provided by us, our partners, or our users, and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets, or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services.
Multiple Listing Service (“MLS”). If you are a consumer user of the Services, by registering for and/or using the Services in any manner, you acknowledge and agree that (i) you are entering into a lawful consumer-broker relationship with us; (ii) you have a bona fide interest in the purchase, sale, or lease of real estate of the type being offered through our Services; (iii) you will only use the information from the Services for your personal, non- commercial use, except in connection with your consideration of the purchase and sale of an individual property; and (iv) you will not copy, redistribute, or retransmit any of the data or information provided through the Services except in connection with your consideration of the purchase and sale of an individual property. You also acknowledge the MLS’s ownership of, and the validity of the MLS’s copyright in, the MLS database compilation, as well as the ownership and validity of copyright of the individual broker in specific listing content.
Reserved. The information provided is for consumers’ personal, non-commercial use and may not be used for any purpose other than to identify prospective properties consumers may be interested in purchasing. All properties are subject to prior sale or withdrawal. All information provided is deemed reliable but is not guaranteed accurate and should be independently verified.
New York Customers
Broker Restrictions in New York. Any real estate broker, salesperson, agent, or similar state licensed real estate professional (“Real Estate Agent”) who uses any Content for its customer must first enter into a co-brokerage agreement with Encore. We authorize the NEW YORK STATE DISCLOSURE FORM FOR BUYERS AND SELLERS
THIS IS NOT A CONTRACT
New York State law requires real estate licensees who are acting as agents of buyers or sellers of property to advise the potential buyers or sellers with whom they work of the nature of their agency relationship and the rights and obligations it creates. This disclosure will help you to make informed choices about your relationship with the real estate broker and its sales agents. Throughout the transaction you may receive more than one disclosure form. The law may require each agent assisting in the transaction to present you with this disclosure form. A real estate agent is a person qualified to advise about real estate. If you need legal, tax or other advice, consult with a professional in that field.
DISCLOSURE REGARDING REAL ESTATE AGENCY RELATIONSHIPS
SELLER’S AGENT
A seller’s agent is an agent who is engaged by a seller to represent the seller’s interests. The seller’s agent does this by securing a buyer for the seller’s home at a price and on terms acceptable to the seller. A seller’s agent has, without limitation, the following fiduciary duties to the seller: reasonable care, undivided loyalty, confidentiality, full disclosure, obedience and duty to account. A seller’s agent does not represent the interests of the buyer. The obligations of a seller’s agent are also subject to any specific provisions set forth in an agreement between the agent and the seller. In dealings with the buyer, a seller’s agent should (a) exercise reasonable skill and care in performance of the agent’s duties; (b) deal honestly, fairly and in good faith; and (c) disclose all facts known to the agent materially affecting the value or desirability of property, except as otherwise provided by law.
BUYER’S AGENT
A buyer’s agent is an agent who is engaged by a buyer to represent the buyer’s interests. The buyer’s agent does this by negotiating the purchase of a home at a price and on terms acceptable to the buyer. A buyer’s agent has, without limitation, the following fiduciary duties to the buyer: reasonable care, undivided loyalty, confidentiality, full disclosure, obedience and duty to account. A buyer’s agent does not represent the interest of the seller. The obligations of a buyer’s agent are also subject to any specific provisions set forth in an agreement between the agent and the buyer. In dealings with the seller, a buyer’s agent should (a) exercise reasonable skill and care in performance of the agent’s duties; (b) deal honestly, fairly and in good faith; and (c) disclose all facts known to the agent materially affecting the buyer’s ability and/or willingness to perform a contract to acquire seller’s property that are not inconsistent with the agent’s fiduciary duties to the buyer.
BROKER’S AGENT
A broker’s agent is an agent that cooperates or is engaged by a listing agent or a buyer’s agent (but does not work for the same firm as the listing agent or buyer’s agent) to assist the listing agent or buyer’s agent in locating a property to sell or buy, respectively, for the listing agent’s seller or the buyer agent’s buyer. The broker’s agent does not have a direct relationship with the buyer or seller and the buyer or seller can not provide instructions or direction directly to the broker’s agent. The buyer and the seller therefore do not have vicarious liability for the acts of the broker’s agent. The listing agent or buyer’s agent do provide direction and instruction to the broker’s agent and therefore the listing agent or buyer’s agent will have liability for the acts of the broker’s agent.
DUAL AGENT
A real estate broker may represent both the buyer and seller if both the buyer and seller give their informed consent in writing. In such a dual agency situation, the agent will not be able to provide the full range of fiduciary duties to the buyer and seller. The obligations of an agent are also subject to any specific provisions set forth in an agreement between the agent, and the buyer and seller. An agent acting as a dual agent must explain carefully to both the buyer and seller that the agent is acting for the other party as well. The agent should also explain the possible effects of dual representation, including that by consenting to the dual agency relationship the buyer and seller are giving up their right to undivided loyalty. A buyer or seller should carefully consider the possible consequences of a dual agency relationship before agreeing to such representation. A seller or buyer may provide advance informed consent to dual agency by indicating the same on this form.
DUAL AGENT WITH DESIGNATED SALES AGENTS
If the buyer and seller provide their informed consent in writing, the principals and the real estate broker who represents both parties as a dual agent may designate a sales agent to represent the buyer and another sales agent to represent the seller to negotiate the purchase and sale of real estate. A sales agent works under the supervision of the real estate broker. With the informed consent of the buyer and the seller in writing, the designated sales agent for the buyer will function as the buyer’s agent representing the interests of and advocating on behalf of the buyer and the designated sales agent for the seller will function as the seller’s agent representing the interests of and advocating on behalf of the seller in the negotiations between the buyer and seller. A designated sales agent cannot provide the full range of fiduciary duties to the buyer or seller. The designated sales agent must explain that like the dual agent under whose supervision they function, they cannot provide undivided loyalty. A buyer or seller should carefully consider the possible consequences of a dual agency relationship with designated sales agents before agreeing to such representation. A seller or buyer may provide advance informed consent to dual agency with designated sales agents by indicating the same on this form. This form was provided to me by Encore, a licensed real estate broker acting in the interest of the: ( ) Seller as a (check relationship below) (X) Buyer as a (check relationship below)
( ) Seller’s agent (X) Buyer’s agent
( ) Broker’s agent ( ) Broker’s agent
( ) Dual agent
( ) Dual agent with designated sales agent
If dual agent with designated sales agents is indicated above: ______ is appointed to represent the buyer; and ______ is appointed to represent the seller in this transaction.
I/We acknowledge receipt of a copy of this disclosure form:
Electronic signature of (X) Buyer(s) and/or ( ) Seller(s)
New York State Buyer and Seller Disclosure Form
NEW YORK STATE DISCLOSURE FORM FOR LANDLORD AND TENANT
THIS IS NOT A CONTRACT
New York State law requires real estate licensees who are acting as agents of landlords and tenants of real property to advise the potential landlords and tenants with whom they work of the nature of their agency relationship and the rights and obligations it creates. This disclosure will help you to make informed choices about your relationship with the real estate broker and its sales agents. Throughout the transaction you may receive more than one disclosure form. The law may require each agent assisting in the transaction to present you with this disclosure form. A real estate agent is a person qualified to advise about real estate. If you need legal, tax or other advice, consult with a professional in that field.
DISCLOSURE REGARDING REAL ESTATE AGENCY RELATIONSHIPS LANDLORD’S AGENT
A landlord’s agent is an agent who is engaged by a landlord to represent the landlord’s interest. The landlord’s agent does this by securing a tenant for the landlord’s apartment or house at a rent and on terms acceptable to the landlord. A landlord’s agent has, without limitation, the following fiduciary duties to the landlord: reasonable care, undivided loyalty, confidentiality, full disclosure, obedience and duty to account. A landlord’s agent does not represent the interests of the tenant. The obligations of a landlord’s agent are also subject to any specific provisions set forth in an agreement between the agent and the landlord. In dealings with the tenant, a landlord’s agent should (a) exercise reasonable skill and care in performance of the agent’s duties; (b) deal honestly, fairly and in good faith; and (c) disclose all facts known to the agent materially affecting the value or desirability of property, except as otherwise provided by law.
TENANT’S AGENT
A tenant’s agent is an agent who is engaged by a tenant to represent the tenant’s interest. The tenant’s agent does this by negotiating the rental or lease of an apartment or house at a rent and on terms acceptable to the tenant. A tenant’s agent has, without limitation, the following fiduciary duties to the tenant: reasonable care, undivided loyalty, confidentiality, full disclosure, obedience and duty to account. A tenant’s agent does not represent the interest of the landlord. The obligations of a tenant’s agent are also subject to any specific provisions set forth in an agreement between the agent and the tenant. In dealings with the landlord, a tenant’s agent should (a) exercise reasonable skill and care in performance of the agent’s duties; (b) deal honestly, fairly and in good faith; and (c) disclose all facts known to the tenant’s ability and/or willingness to perform a contract to rent or lease landlord’s property that are not consistent with the agent’s fiduciary duties to the buyer.
BROKER’S AGENT
A broker’s agent is an agent that cooperates or is engaged by a listing agent or a tenant’s agent (but does not work for the same firm as the listing agent or tenant’s agent) to assist the listing agent or tenant’s agent in locating a property to rent or lease for the listing agent’s landlord or the tenant agent’s tenant. The broker’s agent does not have a direct relationship with the tenant or landlord and the tenant or landlord can not provide instructions or direction directly to the broker’s agent. The tenant and the landlord therefore do not have vicarious liability for the acts of the broker’s agent. The listing agent or tenant’s agent do provide direction and instruction to the broker’s agent and therefore the listing agent or tenant’s agent will have liability for the acts of the broker’s agent.
DUAL AGENT
A real estate broker may represent both the tenant and the landlord if both the tenant and landlord give their informed consent in writing. In such a dual agency situation, the agent will not be able to provide the full range of fiduciary duties to the landlord and the tenant. The obligations of an agent are also subject to any specific provisions set forth in an agreement between the agent, and the tenant and landlord. An agent acting as a dual agent must explain carefully to both the landlord and tenant that the agent is acting for the other party as well. The agent should also explain the possible effects of dual representation, including that by consenting to the dual agency relationship the landlord and tenant are giving up their right to undivided loyalty. A landlord and tenant should carefully consider the possible consequences of a dual agency relationship before agreeing to such representation. A landlord or tenant may provide advance informed consent to dual agency by indicating the same on this form.
DUAL AGENT WITH DESIGNATED SALES AGENTS
If the tenant and the landlord provide their informed consent in writing, the principals and the real estate broker who represents both parties as a dual agent may designate a sales agent to represent the tenant and another sales agent to represent the landlord. A sales agent works under the supervision of the real estate broker. With the informed consent in writing of the tenant and the landlord, the designated sales agent for the tenant will function as the tenant’s agent representing the interests of and advocating on behalf of the tenant and the designated sales agent for the landlord will function as the landlord’s agent representing the interests of and advocating on behalf of the landlord in the negotiations between the tenant and the landlord. A designated sales agent cannot provide the full range of fiduciary duties to the landlord or tenant. The designated sales agent must explain that like the dual agent under whose supervision they function, they cannot provide undivided loyalty. A landlord or tenant should carefully consider the possible consequences of a dual agency relationship with designated sales agents before agreeing to such representation. A landlord or tenant may provide advance informed consent to dual agency with designated sales agents by indicating the same on this form. This form was provided to me by Encore, a licensed real estate broker acting in the interest of the:
( ) Landlord as a (check relationship below) ( ) Tenant as a (check relationship below)
( ) Landlord’s agent ( ) Tenant’s agent
( ) Broker’s agent ( ) Broker’s agent
( ) Dual agent
( ) Dual agent with designated sales agent
If dual agent with designated sales agents is indicated above:______ is appointed to represent the tenant; and ______ is appointed to represent the seller in this transaction.
I/We acknowledge receipt of a copy of this disclosure form:
Electronic signature of ( ) Landlord(s) and/or ( ) Tenant(s)
New York State Landlord and Tenant Disclosure Form
Date Terms of Service Last Modified: January 2, 2018