FLX Operating, LLC
Effective Date: May 14, 2018
In order to use the Website, You must be at least eighteen (18) years of age. By using the Website, You represent and warrant that (i) You have read and understood, and that You agree to be bound by, the FELIX Policies; (ii) You are at least eighteen (18) years old; and (iii) You are legally qualified to enter into contracts under applicable law.
IF YOU DO NOT AGREE WITH ANY ASPECT OF THE FELIX POLICIES, YOUR ONLY REMEDY IS TO DISCONTINUE ALL USE OF THE WEBSITE AND ANY SERVICES IMMEDIATELY.
FELIX MAY MODIFY AND/OR UPDATE ANY ASPECT OF THE FELIX POLICIES AT ANY TIME AND WITHOUT ADVANCE NOTICE TO YOU.
FELIX, in its sole discretion, may amend, modify and/or change any aspect of the FELIX Policies without any advance notice including, without limitation, any subscription fees and/or registration fees charged by FELIX in connection with the use of the Website and/or any services offered by FELIX. Any changes made to any of the FELIX Policies shall become effective immediately upon posting same. It is Your obligation to check the FELIX Policies periodically to review any updates to same. Your continued use of the Website and/or any services offered by the Website constitutes acceptance of those changes.
DISCLAIMER OF WARRANTIES
Some jurisdictions do not allow the exclusion of express or implied warranties so the above exclusions may not apply to You. In such event, such warranties are limited to the minimum permitted by law from the date of delivery of the Website. No warranties apply after that period.
FELIX wholly owns and operates several licensed real estate brokerages, including but not limited to FLX OPERATING, LLC.
YOUR REGISTRATION INFORMATION
FELIX may restrict access to certain additional features of the Website to approved registered users. In the event that any aspect of the Website requires You to register with the Website, You agree to provide truthful, accurate, up-to-date, and complete information including, without limitation, your name, email address, zip code, username, and password (collectively, the “Registration Information”). You shall not impersonate, imitate, or pretend to be somebody else when registering with the Website. If any of Your Registration Information changes, You must update it promptly by notifying FELIX and/or directly through the Website. FELIX is under no obligation to verify Your Registration Information and/or ensure it’s complete and up-to-date. FELIX reserves the right at any time, with or without notice, to change the access means or methods for portions of the Website. You are responsible for maintaining the confidentiality of Your Registration Information. You are responsible for all access or use of the Website under Your account. You shall not access restricted portions of the Website by using anyone else’s registration information.
ADVERTISING, THIRD PARTY LINKS & THIRD PARTY DISCLAIMERS
FELIX may provide blogs on the Website to give you general information including, without limitation, tips and information regarding the real estate market, selling your home, and purchasing a home. FELIX disclaims responsibility for any of the content or opinions expressed in any blog posts including, but not limited, to opinions regarding the location to purchase a home or how to structure the sale of your home as well as any products or services mentioned on any of the blog posts. FELIX disclaims liability for any damages or losses, direct or indirect, that may result from use of or reliance on information contained in any of the blog posts on the Website. The blog posts may contain links to other websites operated by third parties. These links are provided as a convenience to access the information contained therein. FELIX has not reviewed all of the information on the other websites and disclaims any responsibility for the content of any other websites or the products or services that be offered on or through those websites. Inclusion of a link to another website does not indicate an endorsement or approval of the website, its content, or any product or services offered on or through the website.
AUTHORIZATION TO CONTACT
By submitting information to FELIX through the Website or otherwise, You are making an inquiry as to the services offered by FELIX and give FELIX permission to contact You through any contact information that You provide to FELIX including, without limitation, through email or telephone, notwithstanding the fact that your telephone number may be on a “Do Not Call” registry.
You acknowledge that FELIX in its operation of the Website is simply serving as a passive conduit and does not control the quality, safety or legality of any information posted by third parties on the Website, nor does it endeavor to determine the truth or accuracy of any information posted by a third party. Accordingly, You acknowledge and agree that FELIX shall be entitled to the immunities afforded to an Interactive Computer Service under the Communications Decency Act, 47 USC § 230, as it may be amended. In no event shall FELIX be liable for damage to You directly or indirectly to information communicated by third parties.
YOU AGREE TO ABIDE BY THE BELOW RESTRICTIONS
By Using the Website, You agree to abide by the following restrictions, without limitation:
(a) You will only Use the Website in accordance with the FELIX Policies;
(b) You will not Use the Website in an unauthorized manner, or in a manner which violates any rights of FELIX and/or any other third parties, proprietary, intellectual property, or otherwise;
(c) You will not engage in spamming, flooding, mail bombing, harvesting of e-mail address or other personal information, spidering, screen scraping, database scraping, or other activity with the purpose of obtaining or collecting lists of users or other information, including, without limitation, property listings available through the Website;
(d) You will not upload viruses or other malicious code or engage in any conduct that may “crash” the Website;
(e) You will not utilize any information that You gained as a result of Using the Website to illegally or improperly violate another person’s or entity’s privacy rights;
(f) You will not utilize any of FELIX’s trademarks as metatags or metadata in connection with any other websites or otherwise use FELIX’s trademarks for Your own advertising or pecuniary gain;
(g) You will not restrict any other user from properly using the Website including, without limitation, by way of “computer hacking” or otherwise altering the software or functionality of the Website and its underlying programs;
(h) You will not use the Website if You have been temporarily or indefinitely suspended from the Website;
(i) You will not provide to FELIX any incomplete, false, or inaccurate information or information which does not belong to You;
(j) You will not revise, modify, reverse engineer, decompile, disassemble and/or attempt to decipher any of the software, underlying technology, or HTML code comprising or in any way making up a part of this Website;
(k) You will not “frame” or “mirror” any part of the Website;
(l) You will not use the Website in any manner that could damage, disable, overburden or impair the Website or interfere with any other party’s use and enjoyment of the Website.
(m) You will not utilize any device to circumvent the structure of the Website and/or spam or flood the Website; and/or
(n) You will not impersonate any other person and/or falsely state or otherwise misrepresent that You have an affiliation with any other person or entity, or otherwise mislead, deceive or defraud FELIX, another user, or any other party.
TERMINATION BY FELIX
FELIX may terminate, suspend, limit, and/or restrict Your use of and access to any parts of the Website without prior notice to You. Without limitation, FELIX may terminate, suspend, limit, and/or restrict such access and use if it determines, in its sole discretion, that (a) You are creating potential liabilities; (b) You are acting inconsistently with any of the FELIX Policies; (c) there are technical or security issues that may create liabilities; and/or (e) You are engaging in fraudulent or illegal activities. In addition, FELIX reserves the right at any time and from time-to-time to modify or discontinue temporarily or permanently, the Website with or without notice to You. You agree that FELIX shall not be liable to You or to any third party for the termination, suspension, limitation, restriction, modification, or discontinuance of the Website (or any part thereof).
FELIX INTELLECTUAL PROPERTY; RESTRICTIONS ON USE; LIMITED LICENSE
This Website is owned by FELIX and is protected by the United States copyright laws and international treaty provisions. In addition, any and all intellectual property contained within the Website including, without limitation, all trademarks, services marks, trade-names, and/or logos including, without limitation, the “Felix” mark are owned by, or licensed to, FELIX, its affiliates or its licensors. The content on the Website may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without the prior written permission of FELIX and its applicable licensors or as otherwise explicitly set forth herein.
You are granted a limited, non-exclusive license to Use the Website for your own personal and noncommercial use. You will not sublicense, assign or transfer the license granted to You hereunder. Any attempt to sublicense, assign or transfer any of the rights, duties, or obligations in violation of the provisions of this Agreement is void.
REPORTING COPYRIGHT INFRINGEMENT
FELIX will process and investigate notices of alleged infringement and will take appropriate action pursuant to the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. Section 512 et seq., and other applicable intellectual property laws. You covenant and agree to provide FELIX with any information that You have regarding potential copyright infringement of any material contained in the Website. The sole and exclusive protocol for notifying FELIX that its copyrighted work has been infringed upon is to provide written notice (“DMCA Notice”) to FELIX as set forth herein or otherwise provided by the DMCA, as it may be amended from time to time. The DMCA Notice must include (i) the signature of a person authorized to act on behalf of the owner of the copyright interest (“Copyright Owner”); (ii) a description of the copyrighted work that is believed to have been infringed upon; (iii) a description of precisely where the alleged infringing work is located on the Website; (iv) the Copyright Owner’s mailing address, telephone number, and email address; (v) a statement by the Copyright Owner that it has a good-faith belief that the disputed use is not authorized by the Copyright Owner, its agent, or the law, or is not otherwise being conducted by another authorized owner or licensee of the work; and (vi) a statement by the Copyright Owner, made under penalty of perjury, that the information set forth in the submitted written notice is accurate and that it is the Copyright Owner or is authorized to act on the Copyright Owner's behalf. The DMCA Notice should be immediately delivered to the FELIX by commercial carrier at the addresses set forth below in the “Notices” provision and directed to the attention of the “Copyright Agent.” Your failure to properly comply with the requirements of the law and/or this provision may make his DMCA Notice invalid.
INFORMATION, MATERIALS, COMMUNICATIONS & SUBMISISONS MADE TO FELIX
Any information and/or materials that You provide to FELIX including, without limitation, information and/or materials regarding Your home and/or any communication and/or submission You make to FELIX and/or any of its members, officers, employees, or agents, whether electronically or otherwise, including, without limitation, any property listing, testimonial, comment, review, suggestion, any work of authorship, pictures, photographs, images, graphics, videos and/or audio clips shall become FELIX’s property upon the transmission of same, and FELIX may use same in any manner it determines. FELIX MAKES NO GUARANTEE OF CONFIDENTIALITY OR PRIVACY WITH REGARD TO ANY INFORMATION, MATERIALS, COMMUNICATIONS, AND/OR SUBMISSIONS MADE TO FELIX. By providing any information, materials, communications, and/or submissions (collectively, “Submissions”) to FELIX, You: (i) represent and warrant that the Submissions are original to You, and that no other party has any rights thereto, and that any moral rights in such Submissions have been waived; and (ii) You grant a royalty-free, unrestricted, worldwide, perpetual, irrevocable, non-exclusive and fully transferable, assignable and sublicensable right and license to use, reproduce, publish, distribute, display, translate, summarize, modify and adapt such Submissions (in whole or in part) and/or to the incorporate it in other works in any form, media or technology now known or later developed, in our sole discretion, with or without Your name.
All notices or other communications to FELIX, if any, that are to be given under any of the FELIX Policies must be in writing, which shall be given by delivery to the address set forth below by way of either personal delivery, two-day mail, or overnight mail by a commercial carrier. Notices to FELIX shall be deemed given only upon receipt. Notices to FELIX may also be given by electronic mail, provided that it is followed by an exact copy by either regular mail, personal delivery, or two-day mail or overnight mail by a commercial carrier to the same addresses set forth above. Such notice shall be deemed effective twenty-four (24) hours after the message was sent if no “system error” message or other notice of non-delivery is generated. Notices to FELIX shall be addressed as set forth below unless it changes the address in writing by updating these Terms and Conditions. The address for giving notice to FELIX is as follows:FLX Operating, LLC
2550 Meridian Blvd, Suite 200
Franklin, TN 37067
Notices to You shall be provided by FELIX via email or any other address which FELIX reasonably believes to be associated with You. Notice shall be deemed effective upon delivery of the same by FELIX. Moreover, and without limiting the foregoing, by Using the Website, You acknowledge and agree that You are communicating with FELIX electronically, and consent to receive communications from FELIX electronically. FELIX may communicate, and provide effective notice to You, by sending You emails or by posting notices on the Website. You acknowledge and agree that all agreements, notices, disclosures, and other communications that FELIX may provide to You electronically are effective; satisfies any legal requirement that such communication be in writing, and shall be deemed delivered to You.
YOU AGREE TO INDEMNIFY FELIX FOR YOUR USE AND/OR MISUSE
You agree to indemnify, hold harmless and defend FELIX, its parent companies, subsidiaries, affiliates and other related entities and their respective owners, members, shareholders, directors, officers, employees, agents, attorneys, representatives, heirs, successors, and assigns (collectively, “FELIX Parties”) of any of the foregoing with respect to any claim, demand, cause of action, debt, liability, damages, costs or expenses, including reasonable attorneys’ fees and costs (including transcription, translation and expert witness fees) of the FELIX Parties’ selected attorney(s), arising from any third party claim relating to (i) any failure by You to comply with any of the terms set forth in the FELIX Policies; (ii) Your Use or misuse of the Website; (iii) any infringement by You of the copyright, intellectual property or other rights of any third party; and/or (iv) any act or omission or willful misconduct on Your part.
YOU AGREE TO REIMBURSE FELIX ITS ATTORNEYS’ FEES
You agree to reimburse FELIX its actual attorneys’ fees and costs, whether or not resulting in institution of proceedings, directly or indirectly relating to the enforcement of the FELIX Policies against You including, without limitation, both actual pre-judgment and post-judgment (including, without limitation, collection) attorneys’ fees and costs and attorneys’ fees and costs of settlement if no proceeding is instituted.
ACCESS TO WEBSITE BY MINORS IS PROHIBITED
No one under the age of eighteen (18) is permitted to Use the Website. If You are a parent and believe FELIX may have inadvertently collected such information from Your child, please notify FELIX immediately by sending an email to: firstname.lastname@example.org. Moreover, You should be aware of the fact that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist You in limiting access to material that it considers to be harmful to minors.
LIMITATION OF LIABILITY
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR SPECIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY OR OTHERWISE, WHICH ARISE OUT OF OR ARE IN ANY WAY CONNECTED WITH (I) ANY USE OF THE WEBSITE AND/OR ANY OF THE SERVICES OFFERED THROUGH THE WEBSITE; AND/OR (II) ANY FAILURE OR DELAY INCLUDING, BUT NOT LIMITED TO, THE USE OF OR INABILITY TO USE ANY COMPONENT OF THE WEBSITE.
IF NOTWITHSTANDING THE FOREGOING, FELIX SHOULD BE FOUND LIABLE FOR ANY LOSS OR DAMAGE WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH ANY OF THE ABOVE-DESCRIBED FUNCTIONS OR USES OF THE WEBSITE, FELIX’S LIABILITY SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE GREATER OF (I) ANY FEES PROVIDED BY YOU TO FELIX IN CONNECTION WITH USE OF THE WEBSITE; OR (II) US $100.00.
THIS WEBSITE MAY BE TEMPORARILY UNAVAILABLE FROM TIME TO TIME
This Website may be temporarily unavailable from time to time for maintenance, system upgrades, or other reasons. FELIX 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, user communications. FELIX will not be liable for any loss or damage that results from: (i) the failure of electronic or mechanical equipment or communications lines; (ii) telephone network issues; (iii) viruses, bugs, errors or configuration problems or the incompatibility of computer hardware or software; (iv) the failure or unavailability of Internet access; (v) problems with Internet service providers or other equipment or services relating to Your compute or network; (vi) problems with data transmission facilities or your telephone, cable or wireless service; or (vii) unauthorized access, theft, operator error, severe weather, earthquakes or other natural disasters or labor disputes.
AUTHORIZED PERMISSION FOR USE
If You are an individual accessing the Website on behalf of an entity, You, on the entity’s behalf, make the following material representation upon which You wish FELIX to reasonably rely upon that You are authorized to bind the entity to the FELIX Policies.
NEW YORK LAW GOVERNS
The FELIX Policies shall be governed by and construed in accordance with the laws of the State of New York (without giving effect to principles of conflicts of laws of the State of New York or any other state). Any dispute relating to the FELIX Policies, the Website and/or any of service(s) provided by Felix shall be exclusively heard in the state courts of New York, with venue in New York County or if jurisdiction exists, the United States District Court for the Southern District of New York.
REDUCTION IN STATUTE OF LIMITATIONS
You agree that regardless of any statute or law to the contrary, any claim or cause of action by You arising out of or related directly or indirectly to use of the Website and/or any services offered or sold by the FELIX must be filed within one (1) year after such claim or cause of action arose or be forever barred and therefore the statute of limitations is limited to one (1) year.
FELIX may freely assign its rights and obligations in and to the FELIX Policies. You acknowledge that You may not assign, transfer or sell your rights or obligations under any of the FELIX Policies without FELIX’s advance written consent, which may be unreasonably withheld. Any purported assignment without FELIX’s consent shall be deemed null and void.
One or more provisions of any of the FELIX Policies may be legally prohibited or otherwise unenforceable in certain jurisdictions and not others. In such event, the FELIX Policies shall be construed in a manner that is consistent with prevailing law in the jurisdiction in which it is enforced. Therefore, if any provision of the FELIX Policies is prohibited or otherwise unenforceable in a jurisdiction where it is being enforced, (a) it shall nevertheless be enforced to the fullest extent allowed by that prevailing law and (b) all other provisions of the FELIX Policies shall remain in full force and effect and shall not be invalidated or rendered unenforceable.
NO THIRD PARTY BENEFICIARIES
The FELIX Policies are not intended to be for the benefit of, and shall not be enforceable by any unaffiliated third party, except as may be specifically provided herein such as, without limitation, FELIX Parties and as it pertains to Your indemnification obligations as set forth herein. Nothing herein, express or implied, is intended to or shall confer on any third party any rights (including third-party beneficiary rights), remedies, obligations, or liabilities under or by reason of any of the FELIX Policies or otherwise set forth in the Website, except as may be specifically provided herein. The FELIX Policies shall not provide third parties with any remedy, claim, liability, reimbursement, cause of action, or other right in excess of those existing without reference to the terms herein. No third party shall have any right, independent of any right that exists irrespective of the FELIX Policies, to bring any suit at law or equity for any matter governed by or subject to the provisions herein.
PROHIBITED BY LAW
FELIX does not represent that the Website is appropriate or available for use in any particular geographic location. You are Using the Website on Your own initiative. In the event that any aspect of the Website and/or the FELIX Policies are prohibited by law in Your jurisdiction, You agree not to Use the Website. It is solely Your responsibility to determine whether You are allowed by law to participate in the Website. Without limitation, You release FELIX from all liability that could arise from Your Use of the Website. Moreover, and without limiting the indemnification otherwise provided herein, You shall indemnify, defend and hold FELIX and all FELIX Parties harmless for any and all damages relating to a violation of this paragraph or any violation of the law by You.
FELIX shall not be held liable for any delay or default in performing its obligations if such delay or default is caused by an event beyond its reasonable control, including without limitation, acts of nature, war, terror or insurrection, civil commotion, earthquake, fire, storm, hurricane or flood, labor disturbances, riot, epidemic or other similar event(s).
BUYERS SAVINGS PROGRAM
The buyer savings program offered by FELIX does not guarantee savings. The savings calculations displayed on the website and social media outlets are estimates based on the default savings rate equal to 1.5% of the sales price of the subject property. Actual savings may vary and are dependent on the purchase price, cooperating compensation offered to the selling broker, prevailing market conditions, and other factors. The estimates are not a guarantee or an offer from FELIX or an assigned Buying Agent/Broker to provide savings on a specific property. The actual savings received may be limited, prohibited, or reduced pursuant to the terms of service, the purchase agreement, lender restrictions, seller restrictions, federal Veterans Administration, Federal Housing Administration, and the United States Department of Agriculture loan programs, or other state or federal rules, laws, or regulations. If the transaction includes a short sale, additional restrictions may apply. FELIX cannot guarantee that lenders will allow buyers to receive 100% or a portion of the savings.
The buyer savings amount is subject to a minimum amount retained by FELIX or the assigned Buying Agent/Broker of $4,000. Broker Compensation may change during the closing process due to changes in the terms of sale, and will be finalized only at closing. Therefore, neither FELIX nor the assigned Buying Agent/Broker makes any warranties prior to the close of escrow as to the precise amount of savings that the buyer may receive. The buyer savings program is eligible to clients who have scheduled no more than 14 in-person and/or virtual home tours with FELIX or an assigned Buying Agent/Broker. Once You have viewed more than 14 in-person and/or virtual home tours, FELIX at their sole discretion and without notice may choose to receive the full cooperating compensation being offered by the listing broker.
Unless subject to any of the aforementioned limitations or otherwise specified by the buyer or lender, the buyer savings is applied as part of the purchase agreement prior to the beginning of escrow as a reduction in the sales price or a contribution by the seller towards the buyer’s closing costs. FELIX reserves the right to make changes to the buyer savings program and savings calculations at any time. Posting revisions of these Terms and Conditions to the FELIX website, without more, serves as notice to buyers of changes to these Terms and Conditions.
FELIX’s failure to enforce any term, provision, or condition of any of the FELIX Policies, including the breach or default thereof, by conduct, course of dealing, or otherwise, in one or more instances shall not be deemed a waiver. You specifically acknowledge that You have not accepted the FELIX Policies on reliance of any representations or other promises of FELIX, which are not specifically included herein. You specifically stipulate that the FELIX Policies do not constitute a contract of adhesion. The headings in the FELIX Policies shall have no force and effect. You acknowledge and agree that the FELIX Policies, as revised from time to time, constitute the entire agreement of the parties hereto relating to the subject matter hereof, and any prior agreements, understandings, representatives, and commitments concerning such subject matter, whether oral or written, are hereby superseded and terminated in their entirety and are of no further force or effect. The FELIX Policies shall be read together, in pari materia, to constitute one agreement.