Transactly Terms of Service
PLEASE READ THIS TERMS OF SERVICE AGREEMENT CAREFULLY BEFORE USING ANY SOFTWARE AND SERVICES PROVIDED BY TRANSACTLY, INC.
You agree to the following Terms of Service (“Terms”), which govern your use of all Transactly software, applications, and services (collectively, the “Services”). As used herein, the terms “Transactly, Inc.”, “Transactly”, “us,” “we,” or “our” mean Transactly, Inc. , any subsidiary or affiliate of Transactly, Inc. that provides you any part of the Services, and any employee, agent, independent contractor, designee, or assignee of Transactly, Inc. that we may, at our sole discretion, choose to involve in the provision of the Service (collectively, the “Transactly Parties”).
Section 1: Agreement, Parties
Agreement to Terms. In consideration of the use of our Services and the mutual agreements contained herein, you agree to be bound by these Terms. If you do not agree to be bound by these Terms, you must not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity (an “Organization”), you represent and warrant that you have the authority to bind that Organization. If you are accepting these Terms on behalf of an Organization as an authorized administrator of the Services for the Organization (“Administrator”), you represent and warrant that you have the authority to manage your Organization’s use of the Services under these Terms. If you have purchased a specific plan of Services from Transactly, you acknowledge that these Terms govern the relationship of the parties with regard to any such subscription service and that the provisions hereof shall supersede any other agreement between the parties.
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND ANY OF THE TRANSACTLY PARTIES THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 17 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION (INCLUDING THE PROCEDURE TO OPT-OUT OF ARBITRATION).
Section 2: The Services
2.1 Description of Services.
- “Transaction Coordination” is defined as a service provided to assist with various facilitative and administrative aspects of real estate transactions (the sale or lease of real property), and which do not require any type of real estate license to perform. Transaction Coordination is part of Services and carried out by transaction coordinators affiliated with Transactly (referred to herein as a “Transaction Coordinator”).
- “Listing Coordination” is defined as a service provided to assist with various facilitative and administrative aspects of listing real estate for sale or lease, and which do not require a real estate license to perform. Listing Coordination is part of Services and carried out by transaction coordinators affiliated with Transactly (referred to herein as a “Transaction Coordinator”).
- Services further include any and all use of software made available at https://transactly.com and https://app.transactly.com/.
2.2 Service Limitations. You understand and acknowledge that the Transactly Parties will not, and are prohibited from acting in the capacity of a real estate licensed person or persons as associated with holding, having or attaining a real-estate license. You agree that you are responsible for supervision of all Transactly Services. You agree that you shall not request, expect , nor accept from us the performance of any service that requires any form of a real estate license, whether ministerial and/or non-ministerial in nature are established by the laws and regulations applicable to you, and that it is your responsibility to know, understand, and be up to date on all such laws, rules, and regulations.
Section 3: Subscription Plans, Payments, and Charges
3.1 Payment obligation. By initiating any of the Services, including through a Transaction Coordinator, you agree to pay the complete and full fee(s) associated with such Service according to the service performed for you and/or the Subscription Plan you are subscribed to. For Transaction Coordinator services, this fee is due upon the completion of the Transaction Coordinator’s tasks. By submitting a request for Services to us, whether in person, in writing, telephonically, or via any website or application, you acknowledge your obligation to pay the appropriate fee for such Service. You are required to maintain a current and valid payment method on file with Transactly at all times that Transactly is engaged to perform services for you whether under a Subscription Plan or order for Services. Unless otherwise agreed by Transactly in writing, all fees incurred will be automatically charged to your payment method as and when due. You may update or change your payment method at any time.
We will provide Services at the pricing available on our pricing page available at https://Transactly.com/pricing (“Pricing Page”), or as otherwise agreed to in writing. You will be responsible for paying us in accordance with the Subscription Plan(s) you select.
3.2 Subscription Plans. When you purchase a subscription (“Subscription Plan”), you expressly authorize us (via our third-party payment processor) to charge you for the term of your Subscription Plan each time your payment is due, as well as for each transaction that is coordinated by a Transaction Coordinator (“Transaction”) where there is not a prepaid credit available, in accordance with your Subscription Plan. We may ask you to supply additional information relevant to your Subscription Plan, including your credit card number (or other payment information), the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Subscription Plan and payment, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges).).
If all work required during a Transaction cannot be completed due to unforeseen circumstances as indicative of the real estate environment, such as cancellations, failed closings, etc. we may forgive the amount owed for a Transaction as you agree to and has been described in these Terms.
You will be charged the monthly, quarterly, or annually (as applicable) subscription fee, plus any applicable taxes, and other charges (“Subscription Fee”), at the beginning of your Subscription and each month or year (as applicable) thereafter, at the then-current Subscription Fee. Similarly, if you agree to a Subscription Fee, that will remain your price for the duration of the Subscription period; however, prices are subject to change at the end of a Subscription period. If you purchase a Subscription, we (or our third-party payment processor) will automatically charge you each month, quarter, or year on the anniversary of the commencement of your Subscription Plan, using the Payment Information you have provided until you cancel your Subscription. By agreeing to these Terms and electing to purchase a Subscription Plan, you acknowledge that your Subscription Plan has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or us. Your Subscription continues until canceled by you or we terminate your access to or use of the Services or Subscription Plan in accordance with these Terms. If you increase the number of authorized users (“Authorized Users”) by changing the number of Authorized Users under your Account, you expressly authorize us (or our third party processor) to charge your credit card on file for the pro-rated Subscription Fee corresponding to the additional Authorized Users for the remainder of your Subscription term. Subscriptions will automatically renew on conclusion of the term unless canceled.
3.3 Failed Payments. If any payment for your Subscription Plan and any of your Transactions provided as part of the Services fails as a result of insufficient funds or incorrect payment information, a failed payment fee of $35 shall be assessed, the resulting balance shall be paid in full within three business days before additional fees are assessed according to the Terms herein. You are required to maintain a valid credit card on account with us.
3.4 Non-Payment, Delinquent Balances, and Suspension. In addition to any other rights granted to us herein, we reserve the right to suspend or terminate your Subscription Plan and your access to the Services if your account and any amounts you owe us according to these Terms becomes delinquent (“Delinquent Balance”), and you fail to maintain a valid credit card on account. You acknowledge and understand that we reserve the right, in our sole discretion, to impose interest at a rate equal to the lesser of 10% per month, or the maximum amount permitted by applicable law for any Delinquent Balance(s), as well as all expenses of collection.
3.5 Effect of Subscription Plan Cancellation, or Termination. Our general policy is that YOUR PURCHASE IS FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND OF YOUR Subscription FEE AT ANY TIME. We reserve the right to cancel your Transaction or terminate your access to Services. If we cancel your Transaction or your access to Services, for any reason other than non-payment, we will refund any pro-rated payment you have already remitted to us for such Transaction or access to Services. Without limiting the foregoing, you may cancel your Subscription Plan by notifying us in writing, and following the instructions to cancel your Subscription Plan. Upon such cancellation, we will: (i) terminate your access to the Services and (ii) cease billing for all Subscription Fees, in each case at the end of the then-current Subscription period. EXCEPT AS SET FORTH ABOVE, YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION PLAN FEE PAID FOR THE THEN-CURRENT SUBSCRIPTION PLAN PERIOD AT THE TIME OF CANCELLATION. You will be responsible for all Subscription Fees and Transactions (plus any applicable taxes and other charges) incurred for the then-current Subscription Plan period.
You agree and acknowledge that we have no obligation to retain your data upon cancellation, suspension, or termination of a Subscription Plan and Services, and that such data may be irretrievably deleted.
3.6 Transaction Credits. Transaction credits accruing to your account whether through purchase in a subscription plan or otherwise, have no cash value and may be redeemed only for transaction services. We reserve the right to cancel transaction credits in the event an account is inactive for more than one year.
3.7 Transaction Terminations. We reserve the right to charge a full transaction fee for any transaction you cancel after initiating transaction services.
Section 4: Feedback, Surveys, and Evaluations
4.1 Feedback. We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You may submit Feedback by emailing us at support@Transactly.com. You grant to us a non-exclusive, transferable, worldwide, perpetual, irrevocable, fully-paid, royalty-free license, with the right to sublicense, under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
4.2 Surveys and Reviews. We may, from time to time, offer you the opportunity to participate in surveys and questionnaires (the “Surveys”) as part of our client ratings and review service. By participating in the Surveys, you represent and warrant that you are the sole author and owner of the intellectual property rights thereto, all content that you post is accurate, and that all rights that you may have in such content have been fully and voluntarily waived by you.
For any reviews, comments, or content that you submit via the Surveys, you grant us a perpetual, irrevocable, royalty-free, transferable right and license to use, copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from, and/or distribute such content, and/or incorporate such content into any form, medium or technology throughout the world without compensation to you. You further agree that we shall have the unrestricted right to use any ideas or information contained in any content that you submit, or materials or ideas similar to them, in any medium, now and in the future, without notice, compensation or other obligation to you or any other person. You further release and waive all claims against any Transactly Party with respect to any intellectual property or other proprietary rights, rights of publicity and privacy, rights of attribution, or any other liability under the governing law of the United States.
Any comments or content that you submit via the Surveys, including your identifying information, may be published or used by us as we see fit. We reserve the right to edit, condense, delete, or otherwise modify any submitted content that is ultimately posted on our website if we deem, in our sole discretion, that such content violates these Survey guidelines or any other provision of these Terms of Service. None of the content that you submit shall be subject to any obligation of confidentiality on the part of the Transactly Parties.
4.3 Evaluations, Trials, and Betas. We may offer certain services to you at no charge, including trial use and beta versions (“Beta Services”). Your use of Beta Services is subject to any additional terms that we specify and is only permitted during the term we designate (or, if not designated, until terminated in accordance with these Terms). These Terms fully apply to Beta Services, and we may modify or terminate your right to use Beta Services at any time and for any reason in our sole discretion, without liability to you. You understand that any Beta Services and their features and functionality are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Services. We make no promises that any Beta Services will ever be made generally available. All information regarding the characteristics, features or performance of any Beta Services, and any communication that we may engage in with you relating to the Beta Services, constitutes our Confidential Information, and may not be disclosed to any third party without our written permission. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to Beta Services.
Section 5: User Responsibilities
5.1 General User Responsibilities. You are solely responsible for all activity occurring with regard to your account(s).
- At all times, your use of the Services shall abide by and be in compliance with all applicable national, state, and local, state, laws, ordinances, and regulations, including those relating to real estate or other professional licensure and access to, storage of, and transmission of personally identifiable information or other sensitive data;
- You agree to notify us immediately of any unauthorized disclosure or use of any password or account or any other known or suspected breach of security; (ii) report to us immediately and use reasonable efforts to stop immediately any copying or distribution or redistribution of Content that is known or suspected by you; and (iii) not use the log in credentials of or impersonate another user or provide false identity information to gain access to or use the Service.
- You acknowledge that you are solely responsible for the content produced by you, as well as all visual, written or audible communications sent or posted by User. You agree that you will not use the Services to send unsolicited mailings outside of your company or organization. You further agree not to use the Services to communicate any message or material that is harassing, libelous, threatening, obscene, and indecent, would violate the intellectual property rights of any party or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation. Although we are not responsible for any such communications, we reserve the right, but shall not be obligated to, delete any such communications of which we become aware, at any time without notice to you.
- You shall not, directly or indirectly, and shall not permit any Authorized User or third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Services; (ii) modify, translate, or create derivative works based on any element of the Services or any related documentation; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer your rights to use the Services; (iv) use the Services for timesharing or service bureau purposes or otherwise for the benefit of any person or entity other than for your own benefit; (v) remove any proprietary notices from our materials furnished or made available to you; (vi) publish or disclose to third parties any evaluation or benchmarking of the Services without our prior written consent; or (vii) use the Services for any purpose other than its intended purpose. You agree that you will be directly responsible and liable to us for: (i) ensuring that your Authorized Users agree to, and comply with, our Terms, and (ii) any violation of these Terms or applicable law by any Authorized User.
- You will use a reasonable degree of care to protect the Confidential Information. You will not use any Confidential Information for any purpose outside the scope of these Terms or disclose Confidential Information to any third party. “Confidential Information” means all information disclosed by us to you, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the non-public nature of the information and the circumstances of disclosure. Our Confidential Information may include, but is not limited to, the Services, Transactly Content, and Beta Services (as defined below).
5.2 Registration and Account Creation. Prior to using our Services, you may be required to register and create an account (“Account”) at https://app.transactly.com/ (the “Site”). You can do this via the Site through our online registration procedures which we may update from time to time. Access to certain features of the Services will be limited to the number of Authorized Users allowed under your subscription plan.
5.3 Accuracy of Account Information. It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information to keep it accurate, complete and up-to-date. Each user identification number and password combination is a unique authentication credential to be used by only one Authorized User. You are responsible for maintaining the confidentiality of all user identifications and/or passwords and for ensuring that none of your Authorized Users share their identification number and/or password with any third party or with each other. You are solely responsible for any and all activities that occur under your Account. You will not (and will not allow any Authorized User to) share your username and password with anyone (including any (other) Authorized Users). You agree to immediately notify us of any unauthorized use of your Account, any user identification and/or password, or any other breach of security that comes to your knowledge. We will have no liability for any loss or damage arising from your failure to comply with the terms set forth in this Section.
Section 6: Content
6.1 Content Ownership, Responsibility and Removal. For purposes of these Terms: (i) “Content” means text, graphics, images, music, software, audio, video, designs, interactive features, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; (ii) “Transactly Content” means any Content that the Transactly Parties makes available through the Services (excluding User Content); and (iii) “User Content” means any Content that Account holders (including you and your Authorized Users) provide to be made available through the Services, including but not limited to identifying information (such as your email address or name) and Payment Information.
6.2 Ownership. We do not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content, subject to Section 8 below. Subject to the foregoing, we exclusively own all right, title and interest in and to the Services and Transactly Content, including all associated intellectual property rights. You acknowledge that the Services and Transactly Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Transactly Content. In addition, we may monitor your use of the Services and use data and information related to such User Content in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Services (“Aggregate Data”). As between us and you, all right, title and interest in the Aggregate Data and all intellectual property rights therein, belong to and are retained solely by us, and we may make such Aggregate Data publicly available, and use such information to the extent and in the manner it deems fit including without limitation, as required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement, service improvement, and marketing, provided that no such Aggregate Data identifies you or any Authorized User.
6.3 Rights in User Content Granted by You. By making any User Content available through the Services you hereby grant us a non-exclusive, transferable, worldwide, irrevocable, royalty-free license, with the right to sublicense, to use, copy, access, process, save, store, modify, create derivative works based upon, distribute, transmit, publicly display, and publicly perform your User Content solely in connection with operating and providing the Services and Content to you and to other Account holders during the term of you Subscription, including the provision of requested technical support, if any.
6.4 Your Responsibility for User Content. You are solely responsible for all your User Content. You represent and warrant that: (i) you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms; (ii) you have obtained all consents and permissions from all Authorized Users and others, for your collection of the User Content contributed by them, and transmission and use thereof to us as contemplated herein; and (iii) neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by us on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation (including, any applicable local, national and international laws).
6.5 Removal of User Content. You can remove your User Content by specifically deleting it or deleting your Account. However, in certain instances, some of your User Content may not be completely removed and copies of your User Content may continue to exist on the Services. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
6.6 Rights in Content Granted by Transactly. Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-transferable license, with no right to sublicense, to download, view, copy, display and print the Transactly Content solely in connection with your permitted use of the Services and solely for your personal and internal business purposes only.
6.7 Content and Use Managed by An Organization. If you have been added or invited to use the Services on behalf of an Organization, you acknowledge and agree that such Organization’s Administrator may manage your use of the Services or such Organization’s account, as applicable, including but not limited to, adding or removing you from the Services or such Organization’s Workspace, enabling or disabling third-party integrations, and managing permissions. Any User Content that you submit or upload to the Services on behalf of an Organization, or that you submit to an Organization’s account, may be monitored, retained, accessed, used, modified, shared, or removed by the Administrator on behalf of such Organization in order facilitate its access and use of the Services under these Terms. You further acknowledge that your Account or User Content can become managed by any Organization (including your employer) that: (i) owns or controls the email address associated with the proprietary registered domain with which your Account was created or registered; or (ii) pays the Subscription Fees for your Subscription. You also acknowledge that any User Content that you make available to a Workspace will become managed by the Organization that manages such Workspace. If you are an Administrator for your Organization’s Workspace, you acknowledge and agree that we may share your contact information with Authorized Users in your Organization in order to facilitate their use of the Services.
6.8. Storage. WE ARE NOT RESPONSIBLE FOR STORING ANY USER CONTENT, AND WE RECOMMEND THAT YOU APPROPRIATELY BACK-UP ALL YOUR USER CONTENT. IN THE EVENT OF ANY LOSS OR CORRUPTION OF USER CONTENT, WE WILL USE COMMERCIALLY REASONABLE EFFORTS TO RESTORE THE LOST OR CORRUPTED USER CONTENT FROM THE LATEST BACKUP OF SUCH USER CONTENT MAINTAINED BY US IN THE NORMAL COURSE OF BUSINESS USING ITS STANDARD ARCHIVAL PROCEDURES. WE WILL NOT BE RESPONSIBLE FOR ANY LOSS, DESTRUCTION, ALTERATION, UNAUTHORIZED DISCLOSURE OR CORRUPTION OF ANY USER CONTENT. OUR EFFORTS TO RESTORE LOST OR CORRUPTED USER CONTENT PURSUANT TO THIS SECTION 8 WILL CONSTITUTE OUR SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF USER CONTENT.
6.9 General Prohibitions and Our Enforcement Rights. You agree not to (and ensure that none of your Authorized Users) do any of the following:
- Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
- Use, display, mirror or frame the Services or any individual element within the Services, our name, any Transactly Party’s trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without our express written consent;
- Access, tamper with, or use non-public areas of the Services, our computer systems, or the technical delivery systems of our providers;
- Attempt to probe, scan or test the vulnerability of any of our system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by any Transactly Party or any other third party (including another user) to protect the Services or Content;
- Attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by us or other generally available third-party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a Transactly Party’s trademark, logo, URL or product name without our express written consent;
- Use the Services or Content, or any portion thereof, for the benefit of any third party or in any manner not permitted by these Terms;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
- Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
Although shall not be obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services and consult and cooperate with law enforcement authorities to prosecute users who violate the law.
6.10 Copyright Policy. In the event we deem it necessary to prevent infringement of intellectual property rights, including those of a third party, we may: 1) remove your User Content without liability, 2) suspend your access to the Services, or 3) terminate Account holders who repeatedly infringe or are reasonably believed to be repeatedly infringing the rights of copyright holders. Please see our Copyright and IP Policy at https://Transactly.io/copyright, for further information.
Section 7: Other Agreements
7.1 Changes to Terms or Services. We may update the Terms at any time, at our sole discretion. If we make material changes to the Terms, we will send an email notification and post a notice of the updated Terms on the Site . It’s important that you review the Terms whenever we update them as they govern your use of the Services. The changes will not be retroactive, and if you continue to use the Services after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you don’t agree to be bound by the updated Terms, then, except as otherwise provided herein, you must discontinue use of the Services. We may change or discontinue all or any part of the Services, including the types of Subscription plans we offer and the pricing for such plans and/or individual services, at any time, at our sole discretion.
7.2 Technical, Customer and Sales Support. Technical, customer and sales support may be provided via email, online resources and by phone during posted support hours. You acknowledge and agree that processing of your data is and may be required: (a) for the Services to function; (b) to conform to the technical requirements of connecting networks; (c) to conform to the technical requirements of the Services; or (d) to conform to other, similar technical requirements. You also acknowledge and agrees that we may access your account and data and its contents as necessary to identify or resolve technical problems, respond to complaints about the Service, or to improve the Services generally.
7.3 Non-Solicitation, Indirect Payment, and Liquidated Damages. You are not permitted to directly pay any Transaction Coordinator. If you directly pay a Transaction Coordinator, this will not satisfy,reduce or offset your payment obligations to us, all of which are and shall remain in place subject to the Terms herein. You are not permitted to directly hire any Transaction Coordinator(s) during the term of this Agreement and for a period of twenty-four (24) months thereafter. If you solicit or hire a Transaction Coordinator, whether directly or indirectly, you agree to pay Transactly liquidated damages in the amount of thirty-five thousand dollars ($35,000.00) (referred to herein as the “Liquidated Damages”). You agree that the Liquidated Damages is not a penalty but is instead agreed-upon damages that are difficult to ascertain at the time of entering into these Terms and are directly tied to our investment of time and money in hiring and training Transaction Coordinator(s), and lost income as a result of your breach of these Terms.
7.4 Third Party Interactions. During use of the Services, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors offering their goods and/or services through the Services. Any such activity, and any terms, condition, warranties or representations associated with such activity is solely between User and the applicable third party. We shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between User and any such third party. We do not endorse any sites on the Internet that are linked through the Services or Site. We provide these links and contacts to User only as a matter of convenience, and in no event shall we be responsible for any content, products, or other materials on or available from such sites. User recognizes, however, that certain third-party providers of ancillary software, hardware or services may require User’s agreement to additional or different license or other terms prior to User’s use of or access to such software, hardware or services.
7.5 Links to Third Party Websites or Technology. The Services may contain links to third-party websites or resources including without limitation, any third-party services that may be compatible with the Services, or plugins or extensions to the Services (collectively, “Third Party Technology”). We provide these links, plugins and extensions only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or for the functioning or failure to function of any such Third Party Technology. You and your Authorized Users are solely responsible for, and assume all risk arising from, the use of any Third Party Technology, including compliance with the terms and conditions governing the use of such Third Party Technology. ANY THIRD PARTY TECHNOLOGY DOWNLOADED OR OTHERWISE OBTAINED OR USED IN CONNECTION WITH THE SERVICES IS SO DOWNLOADED, OBTAINED OR USED AT YOUR AND YOUR AUTHORIZED USERS’ DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR AND YOU HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION AGAINST US WITH RESPECT TO SUCH USE, INCLUDING, BUT NOT LIMITED TO ANY DAMAGE TO COMPUTER SYSTEMS OR DISPLAY DEVICE, OR LOSS OF DATA, THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH THIRD PARTY TECHNOLOGY.
Section 8: General Provisions
8.1 Termination. We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you if you are reasonably believed to have breached these Terms. You may cancel your Subscription Plan according to the Terms herein.
8.2 Warranty Disclaimers. THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.
8.3 Indemnity. You will indemnify and hold harmless the Transactly Parties, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) you and your Authorized Users’ access to or use of the Services, Tools, or Content, (ii) your and any of your Authorized Users’ User Content, (iii) acts or omission of any of your Authorized Users, or (iv) your or your Authorized Users’ violation of these Terms or any applicable law.
8.4 Limitation of Liability. NEITHER THE TRANSACTLY PARTIES NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT WILL OUR TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TOUS FOR USE OF THE SERVICES OR CONTENT DURING THE THREE (3) MONTHS PRECEDING THE CLAIM FROM WHICH THE LIABILITY AROSE, OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO US AS APPLICABLE. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND US.
8.5 Governing Law and Forum Choice. These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of Missouri, without regard to its conflict of laws provisions. Except as otherwise expressly set forth herein the exclusive jurisdiction for all Disputes (defined below) that you and the Transactly Parties are not required to arbitrate will be the state and federal courts located in St. Louis County, Missouri and the Eastern District of Missouri, and you and the Transactly Parties waive any objection to jurisdiction and venue in such courts.
8.6 Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Transactly agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Transactly are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
8.7 Exceptions and Opt-out. You may seek to resolve a Dispute in small claims court if it qualifies. We each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
If your claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules.
If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in St. Louis County, Missouri we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
8.8 Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. You will pay for all filing, administration and arbitrator fees and expenses of your Dispute.
Class Action Waiver. YOU AND THE TRANSACTLY PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
8.9 Effect of Changes on Arbitration. Notwithstanding the provisions of Section 7.1 “Changes to Terms or Services” above, if we change any of the terms of this Section 8 “Dispute Resolution” after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to support@Transactly.com) within 30 days of the date such change became effective, as indicated in the “Effective Date” above or in the date of Transactly’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Transactly in accordance with the terms of this Section 8 as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
8.10 Severability. With the exception of any of the provisions in Section 8 of these Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
8.11 Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between us and you regarding the subjects hereof, and these Terms supersede and replace any and all prior oral or written understandings or agreements between us and you. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer your rights or obligations under these Terms, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and void. We may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
8.12 Publicity. You agree that we may identify you as a Transactly customer in our promotional materials. We will promptly stop doing so upon your request sent to support@Transactly.com.
8.13 Notices. Any notices or other communications provided by us under these Terms, including those regarding material modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. You agree to designate one or more points of contact for notices, billing, and privacy and security issues (“Designated POC”). Your default Designated POC is the billing contact email as entered in your Transactly Account. It is your responsibility to ensure this email address is accurate, current, and accessible by an Administrator or someone capable of administering your account.
8.14 Waiver of Rights. Our failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of the Transactly, Inc. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
These Terms are the complete agreement between you and the Transactly Parties, and they supersede and replace any previous agreements or verbal commitments.
8.15 Contact Information. If you have any questions about these Terms or the Services, please contact Transactly at support@Transactly.com.