Individual User Terms of Service
Last Updated: December 15, 2022
1. IMPORTANT NOTICE REGARDING ARBITRATION FOR U.S. INDIVIDUAL USERS: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND APPRAISAL BUREAU THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 18 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION.
1. Application to Individual Users; Agreement to Terms; ABTkn Additional Terms.
(a) Individual User. If you are accessing and using the Services as an individual consumer (an “Individual User”) of the Services, these terms apply to you. If you are accessing and using the Services as a business or on behalf of a business (e.g., your employer), including without limitation, a custodian, an institutional client or technology company, then your use of the Services is subject to the Business User Terms of Services located at https://appraisalbureau.com/bterms-of-service/ , and these Terms do NOT apply.
(b) Agreement to Terms.By using our Services, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, do not use the Services.
(c) Appraisal Bureau Entity. In addition, if you are using the Services to obtain an appraisal of one or more works of art associated with a digital asset and/or non-fungible token (“NFT”), including art linked by an ABTkn (as defined below), the applicable Appraisal Bureau entity with which you are contracting via these Terms is Appraisal Bureau, LLC. If you are using the Services to obtain an appraisal of one or more tangible works of art, except for tangible works of arts that are associated with ABTkns, the applicable Appraisal Bureau entity with which you are contracting via these Terms is Appraisal Bureau FA, LLC. You agree that each Appraisal Bureau entity is individually liable where you are contracting with such entity and not jointly and severally liable. As used, herein, “Appraisal Bureau” refers to the applicable entity providing the appraisal Services as described above.
(d) ABTkn Terms. Please note that your creation or use of any ABTkn non-fungible token (“ABTkn”) is subject to additional terms and conditions located in the Rider titled “ABTkn Terms and Conditions” following Section 20 below, which is hereby incorporated herein. If there is any conflict or inconsistency between the ABTkn Terms and Conditions and these Terms with respect to the creation or use of ABTkns, the ABTkn Terms and Conditions will control.
3. Changes to these Terms or the Services. We may update the Terms from time to time in our sole discretion. If we do, we’ll let you know by posting the updated Terms on the Site, to the App and/or may also send other communications. It’s important that you review the Terms whenever we update them or you use the Services. If you continue to use the Services after we have posted updated Terms it means that you accept and agree to the changes. If you don’t agree to be bound by the changes, you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion. If we do, we will provide you with notice of such changes and your continued use of the Services signifies your acceptance of such changes. If you do not accept such changes, you may notify us of your rejection of such changes, discontinue your use of the Services, and request a refund for all prepaid unused Services hereunder.
4. Who May Use the Services?
2. You may use the Services only if you are 18 years or older and capable of forming a binding contract with Appraisal Bureau, and not otherwise barred from using the Services under applicable law.
5. Appraisal Services.
(a) Overview. Appraisal Bureau provides appraisal services for NFTs and other artworks through its proprietary appraisal methods utilized as part of the Services. You may purchase appraisal services from Appraisal Bureau through the App or Site. In rare situations, you may work with Appraisal Bureau to develop a bespoke appraisal plan for your specific needs; in such event, the appraisal plan and related payment details will be agreed in a separate written estimate letter, if applicable, which shall be expressly incorporated herein by reference and are made part of these Terms. Once you purchase appraisals and provide the required documentation, Appraisal Bureau will perform the appraisal and provide you with an appraisal report subject to and in accordance with the process set forth in these Terms.
(b) NFT Documentation and Works Documentation. You agree to provide Appraisal Bureau with the documentation with respect to the NFT(s) and/or work(s) required and requested by Appraisal Bureau to complete the appraisal. Delays in Appraisal Bureau’s receipt of requested documentation may result in Appraisal Bureau being unable to deliver the appraisal report on the agreed-upon delivery date.
(c) Appraisal Report; Statements and Conditions. The appraisal performed under these Terms will be subject to all statements, assumptions, limiting conditions and other conditions (collectively, “Appraisal Conditions”) set forth in the appraisal report. You agree that you will review the Appraisal Conditions upon receipt of the report and that your use of the appraisal report provided in connection with the Services will constitute acceptance of the Appraisal Conditions. The Appraisal Conditions will be considered as being incorporated into and forming part of these Terms with respect to the appraisal in which they are contained and to the services relating to that appraisal.
(d) When Appraisal Bureau’s Obligations Are Complete. Appraisal Bureau’s obligations under these Terms are complete when the appraisal report specified above has been delivered to you.
(e) Withdrawal of Appraisal Bureau prior to Completion of Assignment. Appraisal Bureau may withdraw without penalty or liability from the assignment contemplated under these Terms before completion or reporting of the appraisal in the event that Appraisal Bureau determines, in its sole discretion, that incomplete information was provided to Appraisal Bureau in connection with the Services, that you or other parties have not or cannot provide Appraisal Bureau with documentation or information necessary to Appraisal Bureau’s analysis or reporting, that conditions of the subject property render the original scope of work inappropriate, that Appraisal Bureau becomes aware that it is unable to provide the Services within the meaning of applicable professional standards, that a conflict of interest has arisen, or that you have not complied with your payment obligations under these Terms. Appraisal Bureau will notify you of such withdrawal in writing.
(f) Services Not Provided. The fees set forth in Section 6 of these Terms apply to the Services, including the appraisal services, rendered by Appraisal Bureau as set forth in these Terms. Unless otherwise specified herein, Appraisal Bureau’s services for which the fees in these Terms apply do not include meetings with persons other than you, your personnel or your agents or professional advisors; Appraisal Bureau’s deposition(s) or testimony before judicial, arbitration or administrative tribunals; or any preparation associated with such depositions or testimony. Any additional services performed by Appraisal Bureau not set forth in these Terms will be performed on terms and conditions set forth in an amendment to these Terms or in a separate written agreement.
(g) Testimony in Court or Other Proceedings. Unless otherwise stated in these Terms, you agree that Appraisal Bureau’s engagement pursuant to these Terms does not include Appraisal Bureau’s participation in or preparation for, whether voluntarily or pursuant to subpoena, any oral or written discovery; sworn testimony in a judicial, arbitration or administrative proceeding; or attendance at any judicial, arbitration or administrative proceeding relating to this assignment. Unless otherwise stated in these Terms, you will not designate or disclose Appraisal Bureau or any of your personnel as an expert witness in any court, arbitration or other proceeding without the prior written consent of Appraisal Bureau.
6. Payment. Appraisal Bureau requires payment of fees for use of the Services (or certain portions thereof) and you agree to pay such fees, as further described below. With respect to appraisals of NFTs, you must pay a semi-annual (i.e., every six months) fee under a subscription model (such model, a “Subscription” and such fee, a “Subscription Fee”). With respect to appraisals of fine art, whether as one appraisal or a bundle of appraisals, you must pay the one-time non-refundable payment that is described in the invoice link provided to you in full (“One-Time Payment”) and may elect to subscribe to an optional add-on Subscription for an annual, semi-annual, or quarterly fine art appraisal, with the applicable Subscription Fee to be paid annually, up-front. You acknowledge and agree that the One-Time Payment and Subscription Fee may include or reflect an additional payment processing fee, depending on the payment method you select.
(a) General. Whether you make a One-Time Payment or purchase a Subscription (each, a “Transaction”), you expressly authorize us (or our third-party payment processor) to charge you for such Transaction. We may ask you to supply additional information relevant to your Transaction, including your credit card number, 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 Transaction, 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). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). By initiating a Transaction, you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted or otherwise communicated to you. All payments for Transactions are non-refundable and non-transferable except as expressly provided in these Terms. All fees and applicable taxes, if any, are payable in United States dollars.
(b) Subscriptions. If you purchase a Subscription, you will be charged the applicable Subscription Fee, plus any applicable taxes, and other charges, at the beginning of your Subscription and each six (6) months thereafter (or 12 months thereafter, in the case of an annual add-on Subscription for fine art appraisals), at the then-current pricing. BY PURCHASING A SUBSCRIPTION, YOU AUTHORIZE APPRAISAL BUREAU TO INITIATE RECURRING NON-REFUNDABLE PAYMENTS AS SET FORTH BELOW. If you purchase a Subscription, we (or our third-party payment processor) will automatically charge you every six months from the commencement of your Subscription, using the Payment Information you have provided until you cancel your Subscription. No less than thirty (30) days and no more than sixty (60) days before your Subscription term ends, or otherwise in accordance with applicable law, Appraisal Bureau will send you a reminder with the then-current Subscription Fee. By agreeing to these Terms and electing to purchase a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or Appraisal Bureau. Your Subscription continues until cancelled by you or we terminate your access to or use of the Services or Subscription in accordance with these Terms.
(c) Cancelling One-Time Payment or Subscription. YOUR PURCHASE FOR EACH TRANSACTION IS FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND OF YOUR PAYMENT AT ANY TIME. But if something unexpected happens in the course of completing a Transaction, we reserve the right to cancel your Transaction for any reason; if we cancel your Transaction we’ll refund any payment you have already remitted to us for such Transaction. Without limiting the foregoing, you may cancel your Subscription at any time, but please note that such cancellation will be effective at the end of the then-current Subscription period. EXCEPT AS SET FORTH ABOVE WITH RESPECT TO YOUR INITIAL SUBSCRIPTION PURCHASE, YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. To cancel, you can send an email to email@example.com. You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If you cancel, your right to use the Services will continue until the end of your then current Subscription period and will then terminate without further charges.
7. Feedback. We appreciate feedback, comments, ideas, proposals and suggestions for improvements to the Services (“Feedback”). If you choose to submit Feedback, you agree that we are free to use it without any restriction or compensation to you.
8. Your Content.
(a) Posting Content. Our Services may allow you to store or share content such as text (in posts or communications with others), files, data, information, documents, NFTs, graphics, images, music, software, audio and video. Anything (other than Feedback) that you post or otherwise make available through the Services is referred to as “User Content”. Appraisal Bureau does 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 your User Content.
(b) Permissions to Your User Content. By making any User Content available through the Services you hereby grant to Appraisal Bureau a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform your User Content in connection with operating and providing the Services. The foregoing license grant includes the right for us to derive or aggregate data from any data you provide to us, and use such data for any lawful purpose, including, without limitation, any usage data or trends with respect to the Services and their component features and functionalities, in each case in anonymized form.
(c) Your Responsibility for User Content. You are solely responsible for all your User Content. You represent and warrant that you have (and will have) all rights that are necessary to grant us the license rights in your User Content under these Terms. You represent and warrant that 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 Appraisal Bureau 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.
(d) Removal of User Content. You can remove your User Content by specifically deleting it. You should know that in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. To the maximum extent permitted by law, we are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
(e) Appraisal Bureau’s Intellectual Property. We may make available through the Services content that is subject to intellectual property rights. We retain all rights to that content.
9. Rights and Terms for Apps.
(a) App License. If you comply with these Terms, Appraisal Bureau grants to you a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install the App on your personal computers, mobile handsets, tablets, wearable devices, and/or other devices and to run the App solely for your own personal non-commercial purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App (unless applicable law permits, despite this limitation); or (iv) make the functionality of the App available to multiple users through any means.
(b) Additional Information: Apple App Store. This Section 9(b) applies to any App that you acquire from the Apple App Store or use on an iOS device. Apple has no obligation to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the App purchase price to you (if applicable) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and use of it, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that your possession and use of the App infringe that third party’s intellectual property rights. Apple and its subsidiaries, are third-party beneficiaries of these Terms, and upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You must also comply with any applicable third-party terms of service when using the App.
10. General Prohibitions and Appraisal Bureau’s Enforcement Rights. You agree not to do any of the following:
(a) Post, upload, publish, submit or transmit any User 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;
(b) Use, display, mirror or frame the Services or any individual element within the Services, Appraisal Bureau’s name, any Appraisal Bureau trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Appraisal Bureau’s express written consent;
(c) Access, tamper with, or use non-public areas of the Services, Appraisal Bureau’s computer systems, or the technical delivery systems of Appraisal Bureau’s providers;
(d) Attempt to probe, scan or test the vulnerability of any Appraisal Bureau system or network or breach any security or authentication measures;
(e) Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Appraisal Bureau or any of Appraisal Bureau’s providers or any other third party (including another user) to protect the Services;
(f) Attempt to access or search the Services or download content from the Services using 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 Appraisal Bureau or other generally available third-party web browsers;
(g) Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
(h) Use any meta tags or other hidden text or metadata utilizing an Appraisal Bureau trademark, logo URL or product name without Appraisal Bureau’s express written consent;
(i) Use the Services, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
(j) 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 to send altered, deceptive or false source-identifying information;
(k) Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
(l) 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;
(m) Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
(n) Impersonate or misrepresent your affiliation with any person or entity;
(o) Violate any applicable law or regulation; or
(p) Encourage or enable any other individual to do any of the foregoing.
Appraisal Bureau is not obligated to monitor access to or use of the Services or to review or edit any content. However, 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, including User Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider it objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
11. Links to Third Party Websites or Resources. The Services (including the App) may allow you to access third-party websites or other resources. We provide access only as a convenience and are not responsible for the content, products or services on or available from those resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party resources.
12. Termination. We may suspend or terminate your access to and use of the Services, including suspending access to or terminating your account, at our sole discretion, at any time. If we suspend or terminate your account, we will provide notice to you and will return all materials you submitted for appraisal. You may cancel your account at any time by sending us an email at firstname.lastname@example.org. Upon any termination, discontinuation or cancellation of the Services or your account, the following Sections will survive: 6 (for payments due and owing to Appraisal Bureau prior to the termination), 8(b), 8(c), 8(e), 10, 12, 13 through 19.
13. Your Representations and Warranties. You represent and warrant to Appraisal Bureau that:
(a) The works provided to Appraisal Bureau and your duties and obligations under these Terms do not conflict with any other duties or obligations assumed by you under any agreement between you and any other party nor violate any third party intellectual property or other rights;
(b) You have not engaged Appraisal Bureau, nor will you use Appraisal Bureau’s appraisal report, any NFT, or any asset or property which is the subject of any appraisal for any purposes that violate any federal, state or local law, regulation or ordinance or common law or any fraudulent or other means that violate any third party rights.
(c) You will not use the value of any NFT for capital raising purposes.
(d) At no time will any of your services or marketing efforts violate any applicable securities or other laws, rules, or regulations including without limitation encouraging speculative behavior in connection with any NFT or indicating that the value of any NFT is derived from or linked to your efforts or labor. By engaging the appraisal services contemplated herein, you represent and warrant that you understand the inherent risks associated with using cryptographic and blockchain-based systems, and that you have a working knowledge of the usage and intricacies of digital assets such as bitcoin (BTC), ether (ETH), and other digital tokens such as those following the Ethereum Token Standard (ERC-20 or ERC-721).
(e) You further understand that the markets for these digital assets are highly volatile due to factors including (but not limited to) adoption, speculation, technology, security, and regulation. You acknowledge that the cost and speed of transacting with cryptographic and blockchain-based systems such as Ethereum are variable and may increase at any time. You further acknowledge the risk that your digital assets may lose some or all of their value while the assets are being appraised. You further acknowledge that Appraisal Bureau is not responsible for any of these variables or risks and cannot be held liable for any resulting losses that you experience.
14. Warranty; Disclaimers.
(a) Appraisal Bureau will provide all appraisals in accordance with the Uniform Standards of Professional Appraisal Practice (USPAP). EXCEPT AS EXPRESSLY SET FORTH IN THE FOREGOING SENTENCE, 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 information or content on the Services.
(b) YOU ACKNOWLEDGE THAT APPRAISAL BUREAU OFFERS SERVICES TO APPRAISE FINE ART AND NFTS, BUT APPRAISAL BUREAU IS NOT A BUYER, SELLER, CREATOR, CUSTODIAN OR INSURANCE BROKER WITH RESPECT TO SUCH FINE ART OR NFT.
(c) APPRAISAL BUREAU WILL NOT BE LIABLE FOR ANY LOSS OF ANY KIND FROM ANY ACTION TAKEN OR TAKEN IN RELIANCE ON MATERIAL OR INFORMATION CONTAINED IN THE SERVICES. YOU BEAR FULL RESPONSIBILITY FOR VERIFYING THE IDENTITY, LEGITIMACY, AND AUTHENTICITY OF ANY FINE ART OR NFTS.
(d) You acknowledge and agree that the Services do not guarantee your compliance with applicable laws or regulations.
(e) Without limiting the generality of the foregoing, you acknowledge that Appraisal Bureau does not and will not provide any legal advice, and that any feedback, content or materials provided by Appraisal Bureau as part of or in connection with the Services do not constitute legal advice, and that it is your sole responsibility for determining the legality, validity, and enforceability of your actions and omissions.
15. Indemnity. You will indemnify and hold Appraisal Bureau and its officers, directors, employees and agents, harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses of whatsoever kind and nature, including, without limitation, reasonable accounting fees, legal fees and litigation expenses at trial or on appeal, any third party subpoena or regulatory investigation costs, penalties, or fines, arising directly or indirectly from or relating to or in any way connected with (a) your access to or use of the Services, (b) your User Content, (c) your violation of these Terms or breach of your representations, (d) any claims arising from the NFTs or works provided to Appraisal Bureau, (e) any act of gross negligence, fraud, or intentional misconduct; or (f) any violation by You of any federal, state or local law, ordinance or regulation, or common law (each (a) through (f), a “Claim”).
16. Limitation of Liability.
(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER APPRAISAL BUREAU NOR ITS SERVICE PROVIDERS 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, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT APPRAISAL BUREAU OR ITS SERVICE PROVIDERS HAVE 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.
(b) TO THE MAXIMUM EXTENT PERMITTED BY THE LAW OF THE APPLICABLE JURISDICTION, IN NO EVENT WILL APPRAISAL BUREAU’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS YOU HAVE PAID TO APPRAISAL BUREAU AND APPRAISAL BUREAU HAS RETAINED FOR USE OF THE SERVICES IN THE PAST THREE (3) MONTHS, IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO APPRAISAL BUREAU, AS APPLICABLE.
(c) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND YOU.
17. 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 New York, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 18 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and Appraisal Bureau are not required to arbitrate will be the state and federal courts located in New York, New York, and you and Appraisal Bureau each waive any objection to jurisdiction and venue in such courts.
18. Dispute Resolution.
(a) 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 (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Appraisal Bureau agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Appraisal Bureau 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.
(b) Exceptions. As limited exceptions to Section 18(a) above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) 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.
(c) Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the JAMS pursuant to its rules then in effect, except as modified by these Terms. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules. All other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures (collectively, the “JAMS Rules”). The JAMS rules are available at www.jamsadr.com (under the Rules/Clauses tab) or by calling JAMS at 800-352-5267. Payment of all filing, administration, and arbitration fees will be governed by the JAMS rules, including JAMS’ Consumer Arbitration Minimum Standards. A party who wishes to start arbitration must submit a written Demand for Arbitration to JAMS and give notice to the other party as specified in the JAMS Rules.
Any arbitration hearings will take place in the county (or parish) where you live, unless 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.
(d) Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules, including JAMS’ Consumer Arbitration Minimum Standards, as applicable, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
(e) Injunctive and Declaratory Relief. Except as provided in Section 18(b) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
(f) Class Action Waiver.YOU AND APPRAISAL BUREAU 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.
(g) Severability. With the exception of any of the provisions in Section 18(f) 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.
19. General Terms.
(a) Reservation of Rights. Appraisal Bureau and its licensors exclusively own all right, title and interest in and to the Services, including all associated intellectual property rights. You acknowledge that the Services 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.
(b) Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between Appraisal Bureau and you regarding the Services, and these Terms supersede and replace all prior oral or written understandings or agreements between Appraisal Bureau and you regarding the Services (including any Appraisal Services Agreement). 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 these Terms, by operation of law or otherwise, without Appraisal Bureau’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Appraisal Bureau 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.
(c) Notices. Any notices or other communications provided by Appraisal Bureau under these Terms will be given: (i) via email; or (ii) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
(d) Waiver of Rights. Appraisal Bureau’s 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 Appraisal Bureau. 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.
20. Contact Information. If you have any questions about these Terms or the Services, please contact Appraisal Bureau at email@example.com, +1-917-330-2760 or by post to 244 Madison Avenue #1562, New York, NY 10016.
ABTkn Terms and Conditions