Terms of Service
Effective Date: May 29, 2019
These INSIGNIA Terms of Service (“Terms of Service”) apply when you access, use or visit the INSIGNIA Financial Services LLC (“INSIGNIA”) websites located at www.INSIGNIAfs.com, www.insigniacref.com (collectively, the “Sites”), any other website owned, operated or provided by INSIGNIA that provides a link to these Terms of Service, and any services, content or applications made available on the Sites or other applicable websites (the Sites, the applicable websites, and these services, content and applications collectively constituting, the “Service”). The Service is provided to you by INSIGNIA (referred to in these Terms of Service as “the Company,” “we,” “us” and “our”). We prepared these Terms of Service to help explain the terms that apply to your use of the Service. Please note that websites and services provided by any affiliates, subsidiaries, or divisions of INSIGNIA may be governed by separate terms and conditions, which will be provided to you at the time you access and use those websites and services.
BY ACCESSING OR OTHERWISE USING THE Service YOU AGREE TO THESE TERMS of Service. If at any time you do not accept the terms and conditions set forth in these Terms of Service, you must immediately stop using the Service.
Notice regarding arbitration and dispute resolution: you and the Company AGREE THAT Any future DISPUTES BETWEEN YOU AND the Company WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, unless you opt-out in accordance with Section 9.6. Unless you opt-out of arbitration, YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING, and you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis. IF YOU WISH TO OPT OUT OF ARBITRATION, FOLLOW THE OPT-OUT PROCEDURE SPECIFIED IN Section 9.6 BELOW.
- About INSIGNIA.INSIGNIA is a real estate lending, investment and advisory company with an established reputation in these sectors. Our range of services includes commercial lending across a variety of platforms such as Fannie Mae, Freddie Mac, CMBS, FHA, USDA, bridge and proprietary loan products. Loans are offered through INSIGNIA Financial Services LLC, and/or other INSIGNIA affiliates. Loans in California are made and arranged pursuant to a California Financing Law license.
- Updates to these Terms of Service. We may change, modify or amend these Terms of Service from time to time. We will notify you of material changes to these Terms of Service by posting the amended terms on the Service. If you do not agree with the proposed changes, you should discontinue your use of the Service prior to the time the new Terms of Service take effect. If you continue using the Service after the new Terms of Service take effect, you will be bound by the modified Terms of Service.
- Affirmative Representations Regarding Your Use of the Service. When you use the Service, you represent that: (A) the information you submit to the Service is truthful and accurate; (B) your use of the Service does not violate any applicable law or regulation; and (C) you are of sufficient legal age or otherwise have legal capacity to legally enter into these Terms of Service.
- Prohibited Activities. You agree that, in connection with your use of the Service, you will not:
- Use the Service for any unauthorized purpose, including collecting usernames and/or email addresses of other users by electronic or other means for the purpose of sending unsolicited email or other electronic communications, or engaging in unauthorized framing of, or linking to, the Service without our express written consent;
- Transmit chain letters, bulk or junk email or interfere with, disrupt, or create an undue burden on the Service or the networks or services connected to the Service, including without limitation, hacking into the Service;
- Impersonate any other person or entity, or invade the privacy, or violate the personal or proprietary rights, of any person or entity;
- Decompile, disassemble, modify, translate, adapt, reverse engineer, create derivative works from or sublicense the Service, or any portion thereof; or
- Circumvent, disable or otherwise interfere with security related features of the Service or features that prevent or restrict use or copying of any Content (as defined in Section 5) or enforce limitations on use of the Service or the Content on the Service.
6. Our Intellectual Property Rights.
6.1 Content. All content included on the Service such as text, graphics, logos, images, audio clips, video, data, music, software, and other material (collectively “Content”) is owned or licensed property of the Company or its licensors, and is protected by copyright, trademark, patent or other proprietary rights. The collection, arrangement and assembly of all Content on the Service is the exclusive property of the Company and its licensors and protected by U.S. and international copyright laws. The Company and its licensors expressly reserve all intellectual property rights in all Content and any rights not expressly granted herein are reserved.
6.2 License and Access. The Company grants you a limited license to access and make personal use of the Service and the Content, only to the extent your use does not violate these Terms of Service including, without limitation, the prohibitions listed in the “Prohibited Activities” section of these Terms of Service. You may download, print and copy Content for personal, noncommercial purposes only, provided you do not modify or alter the Content in any way, delete or change any copyright or trademark notice, or violate these Terms of Service. Accessing, downloading, printing, posting, storing or otherwise using the Service or any of the Content for any commercial purpose, whether on behalf of yourself or on behalf of any third party, constitutes a material breach of these Terms of Service.
6.3 Disclaimer of Software Warranties. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. THE SOFTWARE IS WARRANTED, IF AT ALL, ONLY ACCORDING TO THE TERMS OF THE applicable LICENSE AGREEMENT. EXCEPT AS WARRANTED IN THE applicable LICENSE AGREEMENT, INSIGNIA AND ITS SUPPLIERS and licensors HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
- Our Management of the Service; User Misconduct
7.1 Our Right to Manage the Service. We reserve the right, but do not undertake the obligation to: (A) monitor or review the Service for violations of these Terms of Service and for compliance with our policies; (B) report to law enforcement authorities and/or take legal action against anyone who violates these Terms of Service; (C) refuse, restrict access to or the availability of, or remove, delete, edit or disable (to the extent technologically feasible) any Content or Software, or any portion thereof; (D) manage the Service in a manner designed to protect our and third parties’ rights and property or to facilitate the proper functioning of the Service; and/or (E) terminate or block you your use of the Service for violating these Terms of Service.
7.2 Our Right to Terminate Users. WITHOUT LIMITING ANY OTHER PROVISION OF these Terms of Service or any remedy we may have under law or in equity, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION, AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF the Service TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN these Terms of Service, OR OF ANY APPLICABLE LAW OR REGULATION.
- Legal Disputes and Arbitration Agreement
Please Read This Following Clause Carefully – It May Significantly Affect Your Legal Rights, Including Your Right to File a Lawsuit in Court
9.1 Initial Dispute Resolution. We are available by email at [email protected] to address any concerns you may have regarding your use of the Service. Most concerns may be quickly resolved in this manner. Each of you and we agree to use best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
9.2 Agreement to Binding Arbitration. If we do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution is pursued pursuant to Section 9.1 above, then either party may initiate binding arbitration. All claims arising out of or relating to these Terms of Service (including their formation, performance and breach), the parties’ relationship with each other and/or your use of the Service shall be finally settled by binding arbitration administered by JAMS, in accordance with the JAMS Streamlined Arbitration Rules and Procedures, excluding any rules or procedures governing or permitting class actions. Each party will have the right to use legal counsel in connection with arbitration at its own expense. The parties shall select a single neutral arbitrator in accordance with the JAMS Streamlined Arbitration Rules and Procedures. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms of Service, including, but not limited to, any claim that all or any part of these Terms of Service is void or voidable. You or we may elect to appear at the arbitration by phone or, if you and we both agree, to conduct it online, in lieu of appearing live. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be in writing and provide a statement of the essential findings and conclusions, shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The interpretation and enforcement of these Terms of Service shall be subject to the Federal Arbitration Act.
The JAMS rules governing the arbitration may be accessed at https://www.jamsadr.com/adr-rules-procedures. If you initiate arbitration, to the extent the filing fee for the arbitration exceeds Two Hundred and Fifty U.S. Dollars ($250.00), we will pay the additional cost. If we are required to pay the additional cost of the filing fees, you should submit a request for payment of fees to JAMS along with your form for initiating the arbitration, and we will make arrangements to pay all necessary fees directly to JAMS. We will also be responsible for paying all other arbitration costs arising in connection with the arbitration, other than costs incurred by you for legal counsel, travel and other out-of-pocket costs and expenses not constituting fees or amounts payable to JAMS. You will not be required to pay fees and costs incurred by us if you do not prevail in arbitration. We will also pay JAMS to reimburse you for any portion of the $250 filing fee that is more than what you would otherwise have to pay to file suit in a court of law.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that the right to discovery may be more limited in arbitration than in court.
9.3 Class Action and Class Arbitration Waiver. You and we each further agree that any arbitration shall be conducted in our respective individual capacities only and not as a class action or other representative action, and you and we each expressly waive our respective right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above in Section 9.2 shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
9.4 Exception – Small Claims Court Claims. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
9.5 Exception – California Private Attorneys General Act (PAGA) Action. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a court of law for a claim arising under California’s Private Attorneys General Act.
9.6 30 Day Right to Opt-Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in Sections 9.2 and 9.3 by sending written notice of your decision to opt-out by emailing us at [email protected] The notice must be sent within thirty (30) days of commencing use of the Service, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, we also will not be bound by them.
9.7 Exclusive Venue for Litigation. To the extent that the arbitration provisions set forth in Section 9.2 do not apply, of if you want to pursue any legal remedies to which you would otherwise be entitled but that are not available to you pursuant to this Section 9, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in New Castle County, Delaware (except for small claims court actions which may be brought in the county where you reside). The parties expressly consent to exclusive jurisdiction in New Castle County, Delaware for any litigation other than small claims court actions. In the event of litigation relating to these Terms of Service or the Service, the parties agree to waive, to the maximum extent permitted by law, any right to a jury trial.
9.8 Applicable Law. You agree that federal laws and the laws of the State of Delaware, without regard to principles of conflict of laws, will govern these Terms of Service and any claim or dispute that has arisen or may arise between you and the Company.
- Warranty Disclaimer; Limitation on Liability
10.1 Disclaimer of Warranties
(A) to the extent permitted by applicable law, The Service, the Content, software, and ANY OTHER MATERIALs OR ITEMS PROVIDED THROUGH the Service ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OR CONDITIONS OF ANY KIND. BY OPERATING the Service, WE DO NOT REPRESENT OR IMPLY THAT WE ENDORSE Any of the Content, software, MATERIALs OR ITEMS AVAILABLE ON OR LINKED TO BY the Service, INCLUDING WITHOUT LIMITATION, CONTENT HOSTED ON THIRD PARTY SITES, OR THAT WE BELIEVE the Content OR ANY OTHER MATERIALs OR ITEMS TO BE ACCURATE, USEFUL OR NON-HARMFUL. WE CANNOT GUARANTEE AND DO NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF the Service. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN these Terms of Service. YOU AGREE THAT YOUR USE OF The Service WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE AND EACH OF OUR Affiliates, ADVERTISERS, LICENSORS, SUPPLIERS, OFFICERS, DIRECTORS, INVESTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS AND OTHER CONTRACTORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH the Service AND YOUR USE THEREOF.
(B) to the extent permitted by applicable law, WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF the Service, the Content, OR ANY OTHER MATERIALs OR ITEMS ON the service OR LINKED TO BY the Service. WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES OR INACCURACIES OF the CONTENT, MATERIAL OR ITEMS (for clarity, on or off the service), (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF the SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED on our service, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM the service, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH the service BY ANY THIRD PARTY, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY of the CONTENT, software, MATERIALs or items OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY of the CONTENT, Software, materials or items POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE through the Service.
10.2 Limited Liability. to the extent permitted by applicable law, IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF the Service, Content, software, OR ANY other materials or items on the Service. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN These Terms of Service, OUR LIABILITY TO YOU IN RESPECT OF ANY LOSS OR DAMAGE SUFFERED BY YOU AND ARISING OUT OF OR IN CONNECTION WITH These Terms of Service, WHETHER IN CONTRACT, TORT OR FOR BREACH OF STATUTORY DUTY OR IN ANY OTHER WAY SHALL NOT EXCEED $50.
- Notice to New Jersey Users. Notwithstanding any terms set forth in these Terms of Service, if any of the provisions set forth in Sections 9, 10, or 11 are held unenforceable, void or inapplicable under New Jersey law, then any applicable provision shall not apply to you but the rest of these Terms of Service shall remain binding on you and the Company. In addition, for New Jersey residents, the limitation on liability is inapplicable where attorneys’ fees, court costs, or other damages are mandated by statute. Notwithstanding any provision in these Terms of Service, nothing in these Terms of Service is intended to, nor shall it be deemed or construed to, limit any rights available to you under the Truth-in-Consumer Contract, Warranty and Notice Act.
- Notice to California Users. Under California Civil Code Section 1789.3, users located in California are entitled to the following consumer rights notice: If a user has a question or complaint regarding the Service, please send an email to [email protected] California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at +1 (916) 445-1254 or +1 (800) 952-5210.
- Independent Contractors. Nothing in these Terms of Service shall be deemed to create an agency, partnership, joint venture, employer-employee or franchisor-franchisee relationship of any kind between the Company and any user of the Service.
- Non-Waiver. Our failure to exercise or enforce any right or provision of these Terms of Service shall not operate as a waiver of the applicable right or provision.
- Severability. These Terms of Service operate to the fullest extent permissible by law. If any provision or part of a provision of these Terms of Service is unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms of Service and shall not affect the validity and enforceability of any remaining provisions.
- Entire Agreement. These Terms of Service constitute the entire agreement between you and INSIGNIA with respect to the Service and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and INSIGNIA with respect to the Service. A printed version of these Terms of Service and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
- Assignment. We may assign our rights under these Terms of Service without your approval and with or without notice to you.
- No Modifications by Our Employees. If any of our employees offers to modify the terms of these Terms of Service, he/she/they is not acting as an agent for us or speaking on our behalf. You may not rely, and should not act in reliance on, any statement or communication from our employees or anyone else purporting to act on our behalf.
- Contact Information. If you have any questions about these Terms of Service or the Company, please contact us at [email protected]