GeoPhy Terms of Service
Last Updated: July 10th, 2019
Welcome, and thank you for your interest in GeoPhy, Inc. (“GeoPhy
,” or “us
”) and our website at
and our related websites, networks, and other serviced by us and on which a link to these Terms of Service is displayed
(together with the website, our “Service
”). These Terms of Service are a legally binding contract between you and GeoPhy
regarding your use of the Service. Notwithstanding the foregoing, and except as stated in Section 4, any access to or use of
GeoPhy’s web-based platform that leverages automated valuation models to provide users with certain metrics and data regarding
commercial real estate properties (“GeoPhy Platform
”) will be subject to a separate agreement with GeoPhy. Please contact GeoPhy at
email@example.com for more information on the GeoPhy Platform.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICE,
YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE,
YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, (THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS,
THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND GEOPHY’S PROVISION OF THE SERVICE TO YOU,
CONSTITUTES AN AGREEMENT BY GEOPHY AND BY YOU TO BE BOUND BY THESE TERMS.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 13, you agree that disputes arising under these Terms will be resolved by
binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND GEOPHY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY
CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract
(except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury.
(See Section 13.)
- 1. Overview. The Website provides you with information about our products and services, and may also allow you to access a trial version of the GeoPhy Platform (“Trial Version”) if you follow the sign-up instructions on the Website.
- 2. Eligibility. You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
- 3. Accounts and Registration. To access most features of the Service, you may be required to register for an account, including to access or use the Trial Version. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, company or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. You may not share your password for access to the Service with any third party. If you believe that your account is no longer secure, then you must immediately notify us at firstname.lastname@example.org.
- 4. Trial Version. These Terms govern your use of the Trial Version, as part of the Service. If you are provided with access to the Trial Version, we will make the Trial Version available to you until the earlier of (a) the end of the trial period for which you registered, (b) the start date of any purchased subscription for the GeoPhy Platform, or (c) termination by us in our sole discretion. Additional terms and conditions may be provided to you upon registration for the Trial Version, and any such additional terms and conditions are incorporated into these Terms. GeoPhy will determine, in its sole discretion, the availability, duration, and features of the Trial Version. We may suspend or revoke your access to the Trial Version in our sole discretion with or without notice to you. UPON EXPIRATION OR TERMINATION OF YOUR RIGHT TO USE THE TRIAL VERSION, YOU WILL LOSE ACCESS TO THE TRIAL VERSION AND GEOPHY WILL HAVE NO OBLIGATION TO STORE, MAINTAIN OR PERMIT RETRIEVAL OF ANY OF YOUR DATA (AS DEFINED BELOW).
- 4.1 Rights. If GeoPhy permits you to access or use the Trial Version, subject to your ongoing compliance with these Terms, GeoPhy grants you a non-exclusive, non-transferable, non-sublicensable right, during the applicable trial period, to access and use the Trial Version as made available to you by GeoPhy solely for your internal business purposes. You hereby grant GeoPhy and its affiliates a worldwide, irrevocable, perpetual, royalty-free license (a) to exploit without restriction all feedback provided by you; (b) to use information related to your use of the Trial Version (“Usage Data”) to improve GeoPhy’s products and services, and to use any non-personally identifiable data included in Your Data; and (c) to use all data made available to GeoPhy by or on behalf of you to perform its obligations hereunder. All non-public information related to commercial real estate assets that you input into the GeoPhy Platform and that is processed by the GeoPhy Platform will be deemed “Your Data,” which, for clarity, excludes all other data, including, without limitation, any public domain or publicly available data, data independently derived by GeoPhy through analysis of the Your Data or Usage Data or otherwise, or any data owned or controlled by any third party. Except for the rights granted in these Terms, you retain all right, title, and interest in Your Data. GeoPhy may remove or restrict access to data on or within the Service, including the GeoPhy Platform, for any or no reason with or without notice to you, including, without limitation, if such data may violate applicable law, the source of such data becomes unavailable, or a third party brings or threatens legal action.
- 4.2 Restrictions. In addition to the prohibited conduct set forth in Section 7 below, you will not, directly or indirectly, and will not authorize any person, to the maximum extent permitted by applicable law, to (a) translate, adapt, or modify; (b) write or develop any program based upon; (c) sell, sublicense, transfer any rights in, use for the benefit of, or allow access to, unauthorized persons to; (d) transmit unlawful, infringing or harmful data or code to or from; (e) replicate significant portions of GeoPhy’s data or any analysis provided of Your Data or Usage Data, or (f) otherwise use except as expressly permitted hereunder, in each case of (a) – (f), the Trial Version (including all technology constituting or used to provide such Trial Version and any data GeoPhy provides or makes available to you as part of the Trial Version).
- 4.3 Representations, Warranties, and Covenants. You have obtained and you will obtain all permissions or approvals from each applicable data source, including from your personnel, as may be necessary or required to provide Your Data or any other data to GeoPhy in connection with the Trial Version. You will comply with all applicable laws, rules, and regulations in your use of the Trial Version.
- 5. GeoPhy Proprietary Rights. The Service is owned and operated by GeoPhy. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, Services, and all other elements of the Service (“Materials”) provided by GeoPhy are protected by intellectual property and other laws. All Materials included in the Service are the property of GeoPhy or its third party licensors. Except as expressly authorized by GeoPhy, you may not make use of the Materials. GeoPhy reserves all rights to the Materials not granted expressly in these Terms.
- 6. Third Party Services and Linked Services. GeoPhy may provide tools through the Service that enable you to export information to third party services. By using one of these tools, you agree that GeoPhy may transfer that information to the applicable third party Service. Third party services are not under GeoPhy’s control, and, to the fullest extent permitted by law, GeoPhy is not responsible for any third party service’s use of your exported information. The Service may also contain links to third party services. Linked services are not under GeoPhy’s control, and GeoPhy is not responsible for their content.
- 7. Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
- a. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
- b. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
- c. interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
- d. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
- e. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission;
- f. sell or otherwise transfer the access granted under these Terms or any Materials or any right or ability to view, access, or use any Materials; or
- g. attempt to do any of the acts described in this Section 7 or assist or permit any person in engaging in any of the acts described in this Section 7.
- 8. Modification of these Terms. We reserve the right to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 8, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
- 9. Termination of Use; Discontinuation and Modification of the Service. If you violate any provision of these Terms, your permission from us to use the Service will terminate automatically. In addition, GeoPhy may in its sole discretion suspend or terminate your access to the Service at any time, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. Upon termination of these Terms, Sections 2, 4.2, 4.3, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14 will survive.
- 10. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify GeoPhy and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “GeoPhy Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
- 11. Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. GeoPhy DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. GeoPhy DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND GeoPhy DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR GeoPhy ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE GeoPhy ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING YOUR DATA.
YOU ACKNOWLEDGE AND AGREE THAT PROJECTED MARKET AND FINANCIAL INFORMATION, CONCLUSIONS AND OTHER INFORMATION PROVIDED TO YOU THROUGH THE SERVICE ARE NOT GUARANTEED FORECASTS.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. GeoPhy does not disclaim any warranty or other right that GeoPhy is prohibited from disclaiming under applicable law.
- 12. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE GeoPhy ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY GeoPhy ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 13.4 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE GeoPhy ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO GeoPhy FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 12 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- 13. Dispute Resolution and Arbitration.
- 13.1 Generally. In the interest of resolving disputes between you and GeoPhy in the most expedient and cost effective manner, and except as described in Section 13.2, you and GeoPhy agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND GeoPhy ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- 13.2 Exceptions. Despite the provisions of Section 13.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- 13.3 Arbitrator. Any arbitration between you and GeoPhy will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting GeoPhy. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
- 13.4 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). GeoPhy’s address for Notice is: GeoPhy, Inc., 530 7th Avenue, Suite 1909, New York, NY 10018. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or GeoPhy may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or GeoPhy must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by GeoPhy in settlement of the dispute prior to the award, GeoPhy will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
- 13.5 Fees. If you commence arbitration in accordance with these Terms, GeoPhy will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York County, New York, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse GeoPhy for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- 13.6 No Class Actions. YOU AND GeoPhy 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, unless both you and GeoPhy agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- 13.7 Modifications to this Arbitration Provision. If GeoPhy makes any future change to this arbitration provision, other than a change to GeoPhy’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to GeoPhy’s address for Notice of Arbitration, in which case your account with GeoPhy will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will GeoPhy.
- 13.8 Enforceability. If Section 13.6 is found to be unenforceable or if the entirety of this Section 13 is found to be unenforceable, then the entirety of this Section 13 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 14.2 will govern any action arising out of or related to these Terms.
- 14.1General Terms. These Terms and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and GeoPhy regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to”. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
- 14.2Governing Law. These Terms are governed by the laws of the State of New York without regard to conflict of law principles. You and GeoPhy submit to the personal and exclusive jurisdiction of the state courts and federal courts located within New York County, New York for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in New York, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
- 14.3Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
- 14.4Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
- 14.5Contact Information. You may contact us by emailing us at email@example.com. You can access a copy of these Terms by clicking here: https://evra.geophy.com/disclaimer
- 14.6Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
- 14.7No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
- 14.8International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.