Terms and Conditions
The Following Describes the Terms on which We Offer Access to Our Services.
Welcome to The Smart Offer Platform (“Website”). This User Agreement (“Agreement”) describes the terms and conditions applicable to your use of our services available on the Website.
This Agreement is effective between you and DTF, Inc., a California corporation doing business as The Smart Offer Platform (“SRET”), and is a condition of use each and every time you use the Website as a visitor or registered user (“User”), and upon your acceptance when registering as a User on the Website.
1. A Venue
The Website is an offer platform and not a Reserve Auction and not an absolute or minimum bid auction with an auctioneer; it’s a venue. Although we are commonly referred to as a bidding platform, it is important to realize that we are not a traditional auctioneer. Instead, the Website is simply a place to upload offers to homes for sale. The Offer Platform, which acts as a venue to allow licensed real estate agents to offer or sell real property in a visible auction-style format. The role of the Website is limited to publishing and advertising information provided by sellers and their agents (“Sellers”) and providing a venue for communication about the Offer Platform.
The Website offers advertising and current offers information pertaining to the home for sale only. This Agreement is meant to clarify the Website’s limited role as a publisher of advertising and venue provider, and outline certain limitations regarding the Website’s obligations and liabilities. Your use of the Website confirms your understanding and acceptance of this.
2. Agents Advertisements
The Website’s offer landing pages involve legally binding offers to sell. They are also a way for Sellers to advertise their assets to potential buyers. The Website does not act in the capacity of a real estate professional and, as a result, has no control over the truth or accuracy of the information conveyed or the quality, value or title to the home advertised.
3. Real Estate License Disclosure
The Website does not purport to broker transactions. The Website is not responsible for and does not engage in listing, brokering, selling, purchasing, exchanging or leasing of real estate posted on the Website; nor does it provide a “multiple listing service” as that term is traditionally used for real estate. The Website does not counsel sellers or buyers on their sale or purchase, show real estate, negotiate sales contracts, or hold a position of trust and confidence.
Accordingly, no brokerage agency or fiduciary relationship is intended to be or shall be deemed to have been created between the Website and any seller or buyer or you regarding the use of the Website. Further, we have no opinion regarding the ability of a Seller to sell specific real estate nor can we ensure that a Buyer or Seller will actually complete a transaction.
4. The Offer Process
4.1 Online Offers.
Online offers uploaded on the Website and all activity that may require a real estate or other license such as a real estate listing agreement, research, and placement of information on the Website, negotiation of a sale with a buyer and/or a Seller and other real estate-related sale activities are conducted by companies and individuals who have represented themselves as licensed real estate professionals.
4.2 Registered Users (Premium Members).
Sellers of real estate on the Website must be represented by a real estate professional (“Broker”). Sellers and their Brokers determine the Terms and Conditions regarding Property sales on the Website. The listing agreement and the related offer addendum define the Terms and Conditions under which a Property is offered. The Website is a venue to assist the Seller and the Seller’s Broker in marketing their Property, but provides no services that require a real estate license in any jurisdiction.
In order to post a listing on the Website, a Broker must have a valid listing agreement executed by the Property owner (“Seller”). The Broker and Seller must also execute an addendum to the listing agreement that outlines the Terms and Conditions (“Offer Addendum”). The Seller and Broker are solely responsible for the accuracy of information that the Broker may post on the Website.
4.5 Offer Terms and Conditions.
The Terms and Conditions for each listing on the Website may vary. It is important that interested parties be familiar with the Terms and Conditions for any listing on which they wish to place a bid or offer, are a Seller, Broker or are otherwise involved.
4.6 Caveat Emptor.
Prospective bidders/buyers are advised to perform all necessary due diligence before bidding/offering on a listing; and all parties are encouraged to seek the help and guidance of a licensed real estate professional, attorney or other suitable professional before submitting on a listing.
5. Restricted Information
Access to certain data (“Restricted Information”) on the Website, including financial instruments, loans and claims (together known as “Financial Instruments”), is restricted to a limited number of registered Users/Members and those individuals who assist or give advice to these Users, who may be an employee, officer or director of the registered User, their agent or representative (including attorney, accountant or financial advisor) or a third party such as an equity investor, servicer or contractor, and who has a need to access the Restricted Information for the purpose of assisting and advising the User in evaluating a Financial Instrument or entering a bid on a Financial Instrument (all included as “Qualified Users”). Qualified Users agree to be subject to the additional restrictions and requirements of this Section 5 as a condition of access to this Restricted Information. Restrictions on Qualified Users apply to Financial Instruments but do not apply to real estate for sale on the Website.
This section 5 shall be a continuing agreement, effective upon Qualified User’s clicking the “I have read and agree to the terms of the User Agreement” (“Effective Date”). Qualified User acknowledges that in connection with a particular Asset, Qualified User may be required to assent to a subsequent update to this Agreement, the terms of which may differ from this, or to re-affirm or otherwise assent to this Part A, in writing, electronically or otherwise. Qualified User agrees that such agreement or reaffirmation shall be binding upon Qualified User and its directors, officers, employees, agents, successors and assigns, regardless of whether assent thereto is in written or electronic form.
5.2 Limitation on Use of Restricted Information.
Qualified User shall use the Restricted Information provided on the Website and information and reports provided by others (“Third Party”) solely for the purpose of evaluating its interest in purchasing the Assets as a principal, and for no other purpose. Qualified User acknowledges Third Party’s valuable rights in and to the compilations of licensed data reports and the underlying data that those compilations contain, including Third Parties’ copyrights and other proprietary rights therein, the related data sources, database structure, processing software, production systems, documentation, and quality control methods as well as any other information provided by Third Parties or on behalf of Third Parties to Qualified User. Qualified User agrees to hold in confidence the Restricted Information, in whole or in part, except in connection with those uses that are consistent with the usage granted herein and as disclosed to Website, its officers, directors or agents who require such disclosure in the performance of their responsibilities, provided that such parties shall acknowledge the confidentiality restrictions contained herein. Qualified User further agrees that it will not disclose or otherwise make available the Restricted Information. The above restrictions shall not apply to information that is (a) generally available to the public or any relevant trade group; (b) independently developed by Qualified User; (c) required to be disclosed by law, regulations, or legal process by a court or government agency (but only with respect to the portion of the Restricted Information that is required to be disclosed), provided that prior to any such release, Qualified User shall give Website prompt notice thereof, and in no event less than seven (7) business days’ prior notice of such release both by telephone and in writing, unless such notice is expressly precluded by applicable law or governmental order. Qualified User will not (a) disclose any portion of the Restricted Information in any manner, (b) make any copies of the Restricted Information in any form except for those copies provided by the Website, (c) transfer the Restricted Information to any other party, (d) commingle or archive the Restricted Information or e) market the Restricted Information directly or indirectly in any form to anybody. Qualified User acknowledges that the remedy at law for any breach by it of this Agreement shall be inadequate and that Seller, ThirdParty and Website shall also be entitled to injunctive relief.
5.3 Confidentiality; Destruction of Documents.
Qualified User shall ensure that all persons to whom it discloses the Restricted Information shall keep the Restricted Information confidential. In the event Qualified User does not acquire the Assets, it shall destroy all copies of the Restricted Information.
5.4 No Contact with Seller and/or Borrower.
Without limiting the prohibitions found in section 5 herein, registered User shall not call, write, meet with, or have any other contact with any person or entities identified in the Restricted Information, including, but not limited to, the Sellers, the borrowers, residents, obligors, guarantors, Third Parties, or their attorneys, with regard to the Assets or the potential sale of the Assets. In the event of a breach of this section, Qualified User shall be liable to Website and Sellers for all damages consequential thereto, including, but not limited to, their costs and attorneys’ fees in defending any legal action resulting from such breach. Notwithstanding the foregoing, Website and the Sellers shall also have recourse to all generally available legal remedies for the breach of this or any other section of this Agreement.
If a Seller or Website determines that Qualified User has breached any provision of this Agreement, the Seller or Website may, at their sole discretion, exercise any or all legal or equitable rights or remedies to which they are entitled on account of Qualified User’s breach. Neither the Seller nor HB.com shall be deemed to have waived any rights or remedies on account of failure, delay, or forbearance in exercising any such right or remedy in a particular instance. If Qualified User is in breach of Section 5 of this Agreement regarding “No Contact with Seller and/or Borrower,” escrow holder shall pay the bid deposit, upon written notice from Seller or Website of such breach, to Seller and Website as liquidated damages. Qualified User acknowledges and agrees that the actual damages to Seller and Website in the event of Qualified User’s breach would be difficult to calculate and that these liquidated damages are reasonable approximation thereof.
5.6 Qualified Buyer (User) Qualifications.
Qualified User hereby represents and warrants to Seller and Website that it is a substantial purchaser (or agent or advisor thereof with the intent to advise but not purchase) having such knowledge and is experienced in financial and business matters, that it is capable of evaluating the merits and risks of investment in the Assets and understands, and is able to bear the economic risks of, such a purchase (including a total loss of its investment and the risk that Qualified User might be required to hold the Assets for an indefinite period of time).
Qualified User agrees that neither Seller nor Website makes any representation as to the accuracy or completeness of the information.
5.8 Compliance with Laws and Regulations.
Qualified User agrees to comply with all applicable laws and regulations, including, without limitation, the Gramm-Leach-Bliley Act, with regard to the confidentiality of consumer information.
Because Website is a venue, in the event that you have a dispute with a Broker or a Seller, you agree to release Website and any of its affiliates, including but not limited to CARE Realty Group, Inc. and Burke Real Estate Consultants, their officers, directors, agents, subsidiaries, joint ventures and employees, from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute. User acknowledges and understands that all of the available Auction information, including Restricted Information, was prepared by parties other than Website, and further acknowledges and understands that Website makes no representation or warranty whatsoever, express or implied, with respect to the content, completeness or accuracy of the listing information. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
7. Hold Harmless.
User shall defend, and hold harmless the Sellers, Website and their affiliates from and against any and all claims, demands, causes of action, losses, damages, liabilities, judgments, costs and expenses (including attorneys’ fees) incurred by the Sellers or Website as a result of 1) any violation or failure to comply with the provisions of this Agreement by User or any individual or entity to whom it has disclosed Restricted Information or other confidential information.
8. Termination of Use.
Without limiting any of its other remedies, Website may suspend or terminate your use of the Website if we suspect, in our sole discretion, that you (by conviction, settlement, insurance or escrow investigation, or any other reason) have engaged in fraudulent activity.
9. Your Information & Subscription
“Your Information” is defined as any information you provide to us in the registration or offer process or through any email feature.
9.2 Restricted Activities.
Your Information and your activities on the Website shall not: (a) be false, inaccurate or misleading; (b) be fraudulent; (c) infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (d) violate any law, statute, ordinance or regulation; (e) contain any viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information or (h) create liability for us or cause us to lose (in whole or in part) the services of our ISPs or other suppliers.
9.3 Your Information.
10. Subscription to Emails
By registering as a User you are subscribing to receive emails from the Website. Emails may come from an email address at The Smart Offer Platform or CARE Realty Group. When you show interest in a specific listing or group of listings, you are opting in to receive informational emails about those listings. You are required to receive certain emails, for example when placing an offer, but may choose to unsubscribe from other emails by clicking on a link at the bottom of the email.
10.1 Subscription Terms, Cancellations, Payments and Free Trial
By clicking the box “I agree to the Terms & Conditions” during registration hereby register to use a subscription (membership) and gives you access to Website’s online listing offer/bidding platform, in accordance with all the terms, conditions and obligations set forth herein. The membership permits member(s) to use the designated website during the membership term subject to the terms and conditions in this agreement. There is no term or period of time obligation other than the amount purchased prior to use. To cancel or discontinue use at or after the minimum one month term or after the 30 day free trial period, member or subscriber must notify Website by way of email or phone call 24 hours prior to your next billing due date. Upon sign up and upon the completion of your 30 day free trial, your payments will automatically renew on a month to month basis until cancelled by the subscriber. The member will be eligible for their 30 day free trial only once.
11. Access and Interference
Much of the information on the Website is updated on a real-time basis and is proprietary or is licensed to Website by third parties. You agree that you will not use any robot, spider, scraper or other automated means to access the Website for any purpose without our express written permission. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) copy, reproduce, modify, create derivative works from, distribute or publicly display any content (except for Your Information) from the Website without the prior expressed written permission of Website and the appropriate third parties as applicable; (iii) interfere or attempt to interfere with the proper working of the Website or any activities conducted on the Website or (iv) bypass measures we may use to prevent or restrict access to the Website.
Without limiting other remedies, we may limit your activity, immediately remove your bid(s), warn our community of your actions, issue a warning, temporarily suspend, indefinitely suspend or terminate your use of our Website and refuse to provide our services to you if (a) we believe that you have breached the terms and conditions of this Agreement or the documents incorporated by reference; (b) we are unable to verify or authenticate any information you provide to us or (c) we believe that your actions may cause financial loss or legal liability for you, our Users or us.
13. No Warranty
DTF, INC., DBA SMART REAL ESTATE TOOLS, ITS OFFICERS, DIRECTORS, EMPLOYEES AND SUPPLIERS PROVIDE THIS WEBSITE AND ITS SERVICES “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESSED, IMPLIED OR STATUTORY. DTF, INC., DBA SMART REAL ESTATE TOOLS AND ANY OF ITS AFFILIATES, INCLUDING BUT NOT LIMITED TO CARE REALTY GROUP, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES AND THEIR SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT REGARDING THE PROPERTIES ON THE WEBSITE. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you. This warranty gives you specific legal rights and you may also have other legal rights that vary from state to state.
14. Liability Limit
IN NO EVENT SHALL DTF, INC., DBA SMART REAL ESTATE TOOLS, ITS OFFICERS, DIRECTORS, EMPLOYEES OR ITS SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE WEBSITE, OUR SERVICES OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). DTF, INC., DBA SMART REAL ESTATE TOOL’S LIABILITY, AND THE LIABILITY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTY IN ANY CIRCUMSTANCE IS LIMITED TO $100. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. This Agreement, including this limitation of liability, shall be enforceable by DTF, Inc. dba Smart Real Estate Tools and any of its affiliates.
You agree to indemnify and hold DTF, INC., DBA SMART REAL ESTATE TOOLS, and its affiliates, including but not limited to their officers, directors, agents, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of this Agreement or the documents it may incorporate by reference, or your violation of any law or the rights of a third party.
16. Legal Compliance
You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of our service.
17. Re-affirmation of User Agreement. Each and every request made by a visitor or User for
Listing information or action by a User, such as using a password, to gain access to Listing or other information shall constitute visitor’s or User’s re-affirmation and acceptance of the terms and conditions of this Agreement.
Except as explicitly stated otherwise, any notices shall be given by postal mail to Smart Real Estate Tools, Inc. at 1205 Auto Park Way, #204, Escondido CA 92029 (in our case), or to the email address or mailing address that you provide to us during the registration process (in your case). Notice shall be deemed given 24 hours after email is sent, unless we are notified that your email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested to the address that you provided to us during the registration process. In such case, notice shall be deemed given three (3) days after the date of mailing.
19. Resolution of Dispute – Binding Arbitration
In the event a dispute arises between you and DTF, Inc. dba Smart Real Estate Tools or any of its affiliates, our goal is to provide you with a neutral and cost-effective means of resolving the dispute quickly. Accordingly, you and DTF, Inc. dba Smart Real Estate Tools agree that any claim or controversy at law or equity that arises out of this Agreement or our services or the services of any of our affiliates, shall be resolved in accordance with binding arbitration or as otherwise mutually agreed upon in writing by the parties. The arbitration shall be conducted by telephone or based solely upon written submissions where no in-person appearance is required. In such cases, the arbitration shall be administered by the American Arbitration Association or JAMS in Orange County, California, in accordance with their applicable rules, or any other established ADR provider mutually agreed upon by the parties. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. This agreement to arbitrate shall be enforceable by DTF , Inc. dba Smart Real Estate Tools and any of its affiliates.
This Agreement shall be governed in all respects by the laws of the State of California. We do not guarantee continuous, uninterrupted or secure access to our services; and operation of the Website may be interfered with by numerous factors outside of our control. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. You agree that this Agreement and all incorporated agreements may be automatically assigned by DTF, Inc. dba Smart Real Estate Tools in accordance with Section 17, “Notices,” in our sole discretion. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof.
Affiliate Program Terms of Service
By signing up to be an Affiliate in the The Smart Offer Platform Affiliate Program (“Program”) you are agreeing to be bound by the following terms and conditions (“Terms of Service”).
Smart Real Estate Tools reserves the right to update and change the Terms of Service from time to time without notice. Any new features that augment or enhance the current Program, including the release of new tools and resources, shall be subject to the Terms of Service. Continued use of the Program after any such changes shall constitute your consent to such changes.
Violation of any of the terms below will result in the termination of your Account and for forfeiture of any outstanding affiliate commission payments earned during the violation. You agree to use the Affiliate Program at your own risk.
- You must be 18 years or older to be part of this Program.
- You must live in the United States to be an Affiliate.
- You must be a human. Accounts registered by “bots” or other automated methods are not permitted.
- You must provide your legal full name, a valid email address, and any other information requested in order to complete the signup process.
- Your login may only be used by one person – a single login shared by multiple people is not permitted.
- You are responsible for maintaining the security of your account and password. The Smart Offer Platform cannot and will not be liable for any loss or damage from your failure to comply with this security obligation.
- You are responsible for all Content posted and activity that occurs under your account.
- One person or legal entity may not maintain more than one account.
- You may not use the Affiliate Program for any illegal or unauthorized purpose. You must not, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).
- You may not use the Affiliate Program to earn money on your own The Smart Offer Platform product accounts.
Links/graphics on your site, in your emails, or other communications
Once you have signed up for the Affiliate Program, you will be assigned a unique Affiliate Code. You are permitted to place links, banners, or other graphics we provide with your Affiliate Code on your site, in your emails, or in other communications. We will provide you with guidelines, link styles, and graphical artwork to use in linking to The Smart Offer Platform. We may change the design of the artwork at any time without notice, but we won’t change the dimensions of the images without proper notice.
To permit accurate tracking, reporting, and referral fee accrual, we will provide you with special link formats to be used in all links between your site and the The Smart Offer Platform. You must ensure that each of the links between your site and the The Smart Offer Platform properly utilizes such special link formats. Links to the The Smart Offer Platform placed on your site pursuant to this Agreement and which properly utilize such special link formats are referred to as “Special Links.” You will earn referral fees only with respect to sales on a The Smart Offer Platform product occurring directly through Special Links; we will not be liable to you with respect to any failure by you or someone you refer to use Special Links or incorrectly type your Affiliate Code, including to the extent that such failure may result in any reduction of amounts that would otherwise be paid to you pursuant to this Agreement.
Affiliate links should point to the page of the product being promoted.
Referral fees/commissions and payment
For a Product sale to be eligible to earn a referral fee, the customer must click-through a Special Link from your site, email, or other communications to http://www.thesmartofferplatform.com and complete an order for a product during that session.
We will only pay commissions on links that are automatically tracked and reported by our systems. We will not pay commissions if someone says they purchased or someone says they entered a referral code if it was not tracked by our system. We can only pay commissions on business generated through properly formatted special links that were automatically tracked by our systems.
We reserve the right to disqualify commissions earned through fraudulent, illegal, or overly aggressive, questionable sales or marketing methods.
Payments only begin once you’ve earned more than $100 in affiliate income. If your affiliate account never crosses the $100 threshold, your commissions will not be realized or paid. We are only responsible for paying accounts that have crossed the $100 threshold.
Identifying yourself as a The Smart Offer Platform Affiliate
You may not issue any press release with respect to this Agreement or your participation in the Program; such action may result in your termination from the Program. In addition, you may not in any manner misrepresent or embellish the relationship between us and you, say you develop our products, say you are part of The Smart Offer Platform or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement (including by expressing or implying that we support, sponsor, endorse, or contribute money to any charity or other cause).
You may not purchase products through your affiliate links for your own use. Such purchases may result (in our sole discretion) in the withholding of referral fees and/or the termination of this Agreement.
As long as your current affiliate earning are over $100, you’ll be paid each month. If you haven’t earned $100 since your last payment, we’ll pay you the following month after you’ve crossed the threshold.
Customers who buy products through this Program will be deemed to be our customers. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for products sold under this Program in accordance with our own pricing policies. Product prices and availability may vary from time to time. Because price changes may affect Products that you have listed on your site, you should not display product prices on your site. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product.
You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. For example, you will be solely responsible for:
– The technical operation of your site and all related equipment
– Ensuring the display of Special Links on your site does not violate any agreement between you and any third party (including without limitation any restrictions or requirements placed on you by a third party that hosts your site)
– The accuracy, truth, and appropriateness of materials posted on your site (including, among other things, all Product-related materials and any information you include within or associate with Special Links)
– Ensuring that materials posted on your site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights)
– Ensuring that materials posted on your site are not libelous or otherwise illegal
Compliance with Laws
As a condition to your participation in the Program, you agree that while you are a Program participant you will comply with all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority that has jurisdiction over you, whether those laws, etc. are now in effect or later come into effect during the time you are a Program participant. Without limiting the foregoing obligation, you agree that as a condition of your participation in the Program you will comply with all applicable laws (federal, state or otherwise) that govern marketing email, including without limitation, the CAN-SPAM Act of 2003 and all other anti-spam laws.
Term of the Agreement and Program
The term of this Agreement will begin upon our acceptance of your Program application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from your site, all links to http://smartdemo.ml/thesmartofferplatform.com, and all of our trademarks, trade dress, and logos, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the Program. The Smart Offer Platform reserves the right to end the Program at any time. Upon program termination, The Smart Offer Platform will pay any outstanding earnings accrued above $100.
The Smart Offer Platform, in its sole discretion, has the right to suspend or terminate your account and refuse any and all current or future use of the Program, or any other The Smart Offer Platform service, for any reason at any time. Such termination of the Service will result in the deactivation or deletion of your Account or your access to your Account, and the forfeiture and relinquishment of all potential or to-be-paid commissions in your Account if they were earned through fraudulent, illegal, or overly aggressive, questionable sales or marketing methods. The Smart Offer Platform reserves the right to refuse service to anyone for any reason at any time.
Relationship of Parties
You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section.
Limitations of Liability
We will not be liable for indirect, special, or consequential damages (or any loss of revenue, profits, or data) arising in connection with this Agreement or the Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Program will not exceed the total referral fees paid or payable to you under this Agreement.
We make no express or implied warranties or representations with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, noninfringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of the The Smart Offer Platform will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
Any dispute relating in any way to this Agreement (including any actual or alleged breach hereof), any transactions or activities under this Agreement or your relationship with us or any of our affiliates shall be submitted to confidential arbitration, except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court (and you consent to non-exclusive jurisdiction and venue in such courts) or any other court of competent jurisdiction. Arbitration under this agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.
This Agreement will be governed by the laws of The United States, without reference to rules governing choice of laws. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
The failure of The Smart Offer Platform to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The Terms of Service constitutes the entire agreement between you and The Smart Offer Platform and govern your use of the Service, superceding any prior agreements between you and The Smart Offer Platform (including, but not limited to, any prior versions of the Terms of Service).