Terms & Conditions
At HBN Media, Inc. d/b/a Commissions, Inc., (“CINC”, “we”, “us” and “our”) we want our site owner clients (“CINC Client”), users associated or authorized by a CINC Client (“user”) and parties who have entered into cost-sharing arrangements with CINC Clients (“contributors”), (collectively, “I”, “me”, “you” or “your”) to know we are here to support you.
In order to best serve you, we like to practice open and honest communication with you to make the expectations clear from the beginning so that all parties are on the same page.
THESE TERMS & CONDITIONS COUPLED WITH ANY APPLICABLE CINC ORDER FORM (COLLECTIVELY “TERMS & CONDITIONS”), GOVERN YOUR USE OF CINC’S PLATFORM AND SERVICES (COLLECTIVELY “PLATFORM”) AND CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN YOU AND CINC (“AGREEMENT”).
Our Communications With You.
(TCPA Consent for United States Residents)
EXPRESS WRITTEN CONSENT. BY SUBMITTING YOUR CONTACT INFORMATION, YOU ARE PROVIDING YOUR EXPRESS WRITTEN CONSENT TO RECEIVE COMMUNICATIONS FROM US AT THE EMAIL ADDRESS AND TELEPHONE NUMBERS YOU ENTERED INTO OUR CONTACT FORM, OR THAT YOU LATER PROVIDE TO US OR ENTER INTO YOUR CONTACT PAGE.
E-MAILS, CALLS, AND TEXTS. THESE COMMUNICATIONS MAY INCLUDE TELEMARKETING MESSAGES, THROUGH THE USE OF EMAIL, LANDLINE PHONE, FAX, CELLULAR PHONE, AND TEXT MESSAGES (INCLUDING SMS AND MMS).
DIALER. WE MAY USE AN AUTOMATIC TELEPHONE DIALING SYSTEM (OR “DIALER”), WHICH MAY EMPLOY AN ARTIFICIAL OR PRE-RECORDED VOICE OR “ROBOTEXTS.” YOUR CARRIER’S STANDARD RATES AND CHARGES MAY APPLY.
NO PURCHASE NECESSARY. AGREEING TO THESE COMMUNICATIONS IS NOT A CONDITION OF PURCHASING ANY PROPERTY, GOODS, OR SERVICES FROM US.
REVOKING CONSENT AND OPTING OUT. YOU MAY REVOKE YOUR CONSENT TO RECEIVE COMMUNICATIONS AT ANY TIME BY REPLYING “STOP” TO ANY OF OUR TEXTS. WE WILL MAKE A COMMERCIALLY REASONABLE EFFORT TO COMPLY WITH ANY COMMUNICATIONS FROM YOU OPTING OUT, BUT REPLY “STOP” WILL AUTOMATICALLY REVOKE YOUR CONSENT TO FURTHER TEXT COMMUNICATIONS, AND WE RECOMMEND THAT METHOD. WE MAY TAKE UP TO 30 DAYS TO STOP COMMUNICATIONS IF YOU USE A METHOD OTHER THAN THE AUTOMATIC REPLY “STOP.” YOU CONSENT TO RECEIVE A FINAL TEXT MESSAGE CONFIRMING YOUR OPT-OUT. YOU MAY REVOKE YOUR CONSENT TO RECEIVE EMAIL COMMUNICATIONS BY USING THE “UNSUBSCRIBE” LINK IN AN EMAIL OR ON THE WEBSITE OR BY ANY OTHER REASONABLE MEANS. WE WILL MAKE A COMMERCIALLY REASONABLE EFFORT TO COMPLY WITH ANY COMMUNICATIONS FROM YOU OPTING OUT OF EMAIL, BUT “UNSUBSCRIBE” WILL AUTOMATICALLY REVOKE YOUR CONSENT TO FURTHER EMAIL COMMUNICATIONS, AND WE RECOMMEND THAT METHOD. WE MAY TAKE UP TO 30 DAYS TO STOP EMAIL COMMUNICATIONS IF YOU USE A METHOD OTHER THAN “UNSUBSCRIBE”. THE “UNSUBSCRIBE” LINK WILL ALSO PERMIT YOU TO STOP TEXT COMMUNICATIONS.
COMMUNICATION FREQUENCY. HOW OFTEN WE SEND YOU COMMUNICATIONS WILL VARY BECAUSE THE INDIVIDUAL SALESPERSON WHO COMMUNICATES WITH YOU WILL DETERMINE THE FREQUENCY OF COMMUNICATION.
You represent and warrant that:
• You are at least 18 years old
• You live in the United States (or Canada, in which case the Canadian consents below apply)
• You have not registered on a national or statewide Do Not Call list
• You are the account holder for the email addresses and phone numbers you provided, or you have authorization from the account holder to give this consent
• The email addresses and phone numbers you provided are accurate, and you will let us know if you release them to another person or individual
Our mobile service is available only in certain states. Certain mobile features may be incompatible with your carrier or mobile device. Contact your carrier with questions regarding these issues.
Additional Communications Provisions.
(For Residents of Canada)
In addition to the consent provided above in the Our Communications With You (United States) section, Canadian residents agree to the following provisions related to compliance with Canada’s Anti-Spam Legislation (“CASL”), Canada’s Personal Information Protection and Electronic Documents Act (“PIPEDA”) and Canadian provincial law including Alberta’ Personal Information Protection Act (“PIPA”), and Quebec’s Act Respecting the Protect of Personal Information in the Private Sector:
• Because the purpose of our communications include your interest in our services, our communication with you will continue until you revoke your consent or opt-out.
• Your personal information may also be transmitted to, used in, and stored in the United States.
Real Estate Settlement Procedures Act (RESPA). Please be aware that financial agreements or cost-sharing arrangements could have implications under the Real Estate Settlement Procedures Act ("RESPA"). We make no representations about whether such arrangements comply with RESPA, and we disclaim any involvement in any arrangements you may have now or in the future.
We recommend that you consult with an attorney, regarding the compliance of any financial or cost-sharing arrangement with RESPA and/or any other applicable laws.
We ask that you review and your continued use of the Platform confirms your compliance with one of the below statements:
• I am not in a relationship or cost sharing agreement with a third party for the use of the proposed website; however, if I do enter into one, our agreement will be RESPA compliant; or
• I am in a relationship or cost sharing agreement with a third party for the use of the proposed website, and our agreement is RESPA compliant.
License Grant. We grant you a limited non-transferrable, non-exclusive right to access and use the Platform, identified in an applicable CINC Order Form, as applicable, for your own personal, individual and internal real estate activities as expressly authorized under these Terms. No right to download, modify, sub-license or sub-let is granted under these Terms. The Platform may not be reproduced, duplicated, copied, sold, resold, visited or otherwise exploited for any commercial purpose without the express written consent of CINC.
Account Access. Your use of the Platform may be provided in connection with an agreement entered into between CINC and a CINC Client, such as a real estate brokerage, agency or other business that you have a business relationship or agreement with. You acknowledge and agree that CINC and / or CINC Client: (a) may have access to your use of the Platform and Your Content, as defined below; (b) may have the right to create, monitor and control your user logins, passwords and accounts and your access or denial, suspension or termination of access to the Platform; and (c) you hereby consent and authorize CINC and CINC Client to have all such rights and access as set forth in this section. CINC shall have the right to monitor use of the Platform, including but not limited to the review all activity and the content and materials uploaded by you or others, including but not limited to Your Content, for the purpose of determining compliance with these Terms, as well the right to remove or refuse any information for any reason in accordance with applicable law, and to use data collected therefrom for any other purposes. Notwithstanding these rights, you and any associated CINC Client remain jointly and severally liable for Your Content. You shall take all steps necessary to protect your login(s) and password(s), to safeguard the security and integrity of the Platform, and to protect against unauthorized access and use. You shall immediately notify CINC of any violation of the foregoing. Any access to the Platform using your login and password shall be deemed access by you. CINC has no liability for or relating to any disputes between you and any CINC Client, user or contributor or for CINC and CINC Client’s access or use of the Platform or Your Content. CINC may maintain, correct and modify, and may upgrade and/or update the Platform at any time in its discretion with or without notice to you.
Intended Use and Standards of Conduct. The Platform is intended to be used solely for the following permissible purposes: display of your authorized MLS listings; providing relevant real estate data to consumers; and advertising your real estate services (collectively “Intended Use”).
You agree that you will not transmit, distribute, post, store, and/or link, information, software, or materials on or through the Platform that: (i) are unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, offensive, profane, contains or depicts pornography, or is otherwise inappropriate as determined by us in our sole discretion; (ii) you know are false, misleading, untruthful or inaccurate; (iii) constitute unauthorized access or use of another client’s data; (iv) impersonate any person or entity, including any of our employees or representatives; or (v) include anyone's personally identifiable information (“PII”) or sensitive financial information. You may not use the Platform to distribute or execute any action directed by any type of injurious code, including but not limited to: (i) trojans, (ii) key loggers, (iii) viruses, (iv) malware, (v) botnets, (vi) denial of service attacks, (vii) flood or mail bombs, (viii) logic bombs, or (ix) other actions which CINC reserves the sole right to determine to be malicious in intent. You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or any of our third party providers') infrastructure; (ii) interfere or attempt to interfere with the proper working of the Platform or any activities conducted on the Platform; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Platform (or other accounts or computer systems connected to the Platform). You shall not (directly or indirectly) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Platform (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction.
Responsibility for Compliance Obligations and Responsibilities.
B. Telephone Consumer Protection Act, Telemarketing Sales Rule and State Automated Calling Compliance Obligations and Responsibilities: You shall use the Platform in compliance with the TCPA (and its consent requirements), TSR, and all applicable state laws related to automated calling, texting or other delivery of telemarking messages. You shall be solely responsible for the content of all messages, the selection of recipients of the messages, the procurement from the recipient of all applicable consents (which consents must, among other things, satisfy the TCPA and TSR requirements and applicable state law requirements), and the manner, time, and means of delivery of such messages.
Without limiting and in addition to the foregoing, to the extent you use the Platform to facilitate or effect the delivery of any SMS/text messaging to your contacts, you represent and warrant that no outreach via the Platform will be attempted for marketing purposes unless the called party has supplied their express written consent by accepting (via signature acceptable under the E-Sign Act) a clear and conspicuous disclosure, that is displayed to the called party in a manner in accordance with law, as part of a transparent and non-misleading consumer experience whereby the called party agrees to provide express written consent to receive marketing or promotional messages to a specific phone number via the use of automated telephone dialing equipment, or prerecorded or artificial voice messages, or via automated text messages.
Each and every use you make of the Platform to contact any called party shall constitute a representation and warranty by you that: (i) you have familiarized yourself with all applicable regulations, standards, and case law respecting properly obtaining valid express written consent; (ii) that you have obtained the needed consent from the called party with respect to that outreach attempt; and (iii) that you will maintain a record of the express written consent for seven years and will supply such record to CINC within two business days of request, irrespective of the termination of this Agreement.
You further represent and warrants that the express written consent it obtains will comply in all respects with the TCPA, TSR or any other laws, rules, or regulations (whether state or federal), related to the granting of consent (or such analogous acts). You also represent and warrant that you will not upload for use of the Platform any lead for which the called party has not provided the requisite consent under the TCPA, TSR or applicable state law, as the case might be. Further, in the event of any opt out by any called party, you represent and warrant that you will obtain any required prior consent for that called party before recommencing any outreach campaign to the called party. In no event shall CINC owe any responsibility to review, or validate the existence or suitability of any consent record.
Platform Features. At any time, without notice, and at their sole discretion, CINC may introduce and / or discontinue any Platform feature (“Platform Feature”). Furthermore, CINC may also introduce and / or discontinue any advertising product or service and may also adjust any associated fees.
Fees and Payment. You agree to the following regarding fees and payment: CINC Client is responsible for the payment of all fees, including but not limited to all monthly fees, PPC/advertising campaign ad spend, and ad management fees associated with the Platform subscription agreed to in the applicable CINC Order Form including amounts to be paid through a cost sharing arrangement made with a contributor(s), and all applicable taxes. If I am a contributor and have entered into a cost-sharing arrangement with a CINC Client, I understand I am responsible for payment to CINC for all amounts due under that arrangement, and all applicable taxes. Any unpaid fees owed by a contributor are the sole responsibility of the CINC Client, site owner. For CINC Clients and contributors, CINC has my permission to charge the credit / debit card(s) I place on file every month I remain a CINC Client/contributor. CINC Clients and contributors understand CINC will charge the credit / debit card(s) at the beginning of the month for the full amount owed. If the credit / debit card(s) payment declines or fails for any reason CINC Clients and contributors understand CINC may continue to charge the credit / debit card(s) in increments up to $500 until the amount owed is paid in full. CINC Clients understand that if CINC charges the credit / debit card(s) by any amount greater than the monthly amount owed, CINC will do so only after giving such CINC Client at least ten (10) days’ prior notice of such charge. Notwithstanding the foregoing, CINC Clients have the right to receive the 10-day notice prior to any charge to the credit / debit card(s) other than the specific amount authorized. Except where otherwise expressly provided, all amounts in these Terms are stated and shall be paid in United States Dollars (USD).
CINC Clients agree to the following regarding cancellation: In the event that I wish to give notice of cancellation, I understand that if no current CINC Order Form exists, I will be charged for the following month (total Platform fee) after giving notice; if I have an existing CINC Order Form, I will be charged all amounts payable under that CINC Order Form. If I am a contributor, notice of cancellation will be effective at the close of the current billing cycle. I will give notice in writing to email@example.com.
Your Content. All of your data and information that has been provided to CINC and is defined as exportable is “Your Content.” Your Content may include customer contact and lender information, and content created by you. Other than as expressly excluded herein, Your Content is and remains your property and shall be deemed your data. Your Content does not include any URL(s), Domain Name(s) and/or Network or Internet Protocol Address(es) provided by CINC. You agree and warrant that Your Content does not contain viruses, worms, spyware, adware, or other potentially damaging programs or files; that Your Content is not known by you to be false, inaccurate, or misleading; and that Your Content, and the uploading of Your Content to the Platform, does not violate any law, or the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person. As the owner of Your Content, you will determine the scope, purpose and manner by which Your Content is processed. You authorize CINC and its subcontractors to exercise its own discretion in the selection and use of means to process Your Content so long as the processing is compatible with the Intended Use and these Terms. You represent and warrant that Your Content complies with all of your Compliance Obligations.
Consent to Transfer Certain Platform User Information. With your prior approval, CINC may permit authorized third parties (“Alliance Vendors”) to advertise their products and services on the Platform, which may include advertising or integrations within the Platform that direct users to a designated third party website or an offer request form within the Platform that allows users to request an offer from the third party. The Alliance Vendors’ integrations and interfaces within the Platform (each a “Vendor Interface”) may collect certain personal information from users, including contact and residence information (“User Personal Information”). You authorize CINC to transfer to Alliance Vendors the User Personal Information through the Platform and Vendor Interface subject to each of the following conditions: (1) CINC will provide the Platform user with conspicuous notice of the User Personal Information to be transferred to the Alliance Vendor prior to, or at the point of, the transfer; (2) CINC will obtain affirmative express consent from the user prior to the transfer of any User Personal Information to an Alliance Vendor; (3) CINC’s written agreement with an Alliance Vendor will include a prohibition on any selling of the User Personal Information, consistent with the restrictions set forth in the California Consumer Privacy Act of 2018, Cal. Civ. Code section 1798.140(t)(2)(A). CINC will keep a record of all consents provided by users to transfer User Personal Data to Alliance Vendors.
Retention of Your Content. Upon written request by you, made within thirty (30) days after the date of termination or cancellation and payment in full of all outstanding fees, we will make available to you for download, all of Your Content with the exception of any email addresses or cell phone information of individuals who have previously provided an “opt-out / unsubscribe” notice. CINC shall have no obligation to maintain or provide Your Content and may delete Your Content and any and all data, content and documents related to your use of the Platform after the aforementioned thirty (30) day period, unless legally prohibited. You acknowledge that we will have no liability whatsoever for deletion of Your Content. Notwithstanding the above, some Platform Features may include specific retention periods. Such Platform Feature retention periods shall take precedence over the above and will be communicated to you by CINC at the time of Platform Feature initial use.
Disclaimer of Warranties and Limitation of Liabilities. CINC DOES NOT MAKE AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING CINC’s PLATFORM, THE SERVICES, AND THE DATA, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. THE CINC PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE” BASIS WITH “ALL FAULTS”. CINC SPECIFICALLY DOES NOT WARRANT THAT ITS PLATFORM OR ANY COMPONENT THEREOF WILL (I) PERFORM WITHOUT INTERRUPTION OR ERROR, OR THAT ALL IRREGULARITIES, ERRORS, PROBLEMS OR DEFECTS WILL BE CORRECTED, (II) BE SECURE OR FREE OF DEFECTS, MALWARE, VIRUSES, OR OTHER HARMFUL COMPONENTS, (III) MEET CLIENT/CONTRIBUTOR'S REQUIREMENTS OR COMPLIANCE OBLIGATIONS, INCLUDING THOSE RELATING TO THE TCPA, TSR AND OTHER APPLICABLE STATE LAWS RELATED TO AUTOMATED CALLING, TEXTING OR OTHER DELIVERY OF TELEMARKETING MESSAGES, OR (IV) BE ACCESSIBLE FROM THE CONFIGURATION THAT CLIENT/CONTRIBUTOR MAY SELECT. IN NO EVENT SHALL CINC, OR ANY OF ITS AFFILIATES, PARTNERS, OFFICERS, EMPLOYEES, DIRECTORS, AGENTS, CONTRACTORS, REPRESENTATIVES, SUCCESSORS OR ASSIGNS, AS SUCH, BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES UNDER OR IN CONNECTION WITH THIS AGREEMENT, ITS PLATFORMS, OR ANY SERVICE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, INTEREST, REVENUE, DATA OR USE, SECURITY BREACH, OR INTERRUPTION OF BUSINESS, INCURRED BY USER, CLIENT/CONTRIBUTOR OR ANY THIRD PERSON OR ENTITY, WHETHER BASED UPON CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, DUTY TO WARN AND STRICT LIABILITY), WARRANTY OR ANY OTHER LEGAL OR EQUITABLE GROUNDS, EVEN IF CINC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE TOTAL CUMULATIVE LIABILITY OF CINC, OR ANY OF ITS THIRD-PARTY LICENSORS, AND ITS AFFILIATES, PARTNERS, OFFICERS, EMPLOYEES, DIRECTORS, AGENTS, CONTRACTORS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS, AS SUCH, TO USER, CLIENT/CONTRIBUTOR OR ANY THIRD PERSON OR ENTITY FOR ANY LOSSES, SHALL NOT EXCEED THE GREATER OF (A) THE TOTAL COMPENSATION PAID BY YOU TO CINC DURING THE CONSECUTIVE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO SUCH LIABILITY; OR (B) $10,000. AS USED HEREIN, “SECURITY BREACH” MEANS THE ACCIDENTAL OR UNLAWFUL DESTRUCTION, LOSS, ALTERATION, UNAUTHORIZED DISCLOSURE OF, OR ACCESS TO, YOUR CONTENT, INCLUDING ANY PERSONAL INFORMATION.
Dispute Resolution – Arbitration Agreement. (Mandatory Binding Arbitration and Class Action Waiver) READ THIS ARBITRATION AGREEMENT CAREFULLY AS IT WILL HAVE A SUBSTANTIAL IMPACT ON HOW LEGAL CLAIMS YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED. For example, if we elect to require you to arbitrate any claim, you will not have the right to a jury trial or the right to participate in a class action in court or in arbitration.
YOU HAVE THE RIGHT TO REJECT THIS ARBITRATION AGREEMENT AS DESCRIBED BELOW. If you do not reject this Arbitration Agreement and a Claim is arbitrated, neither you nor we will have the right to: (1) have a court or a jury decide the Claim; (2) engage in information-gathering (discovery) to the same extent as in court; (3) participate in a class action, private attorney general or other representative action in court or in arbitration; or (4) join or consolidate a Claim with claims of any other person. The right to appeal is more limited in arbitration than in court and other rights in court may be unavailable or limited in arbitration.
C. Electing Arbitration; Starting an Arbitration Proceeding: Either you or we may elect to arbitrate a Claim by giving the other party written notice of the intent to arbitrate the Claim or by filing a motion to compel arbitration of the Claim. This notice may be given before or after a lawsuit has been filed concerning the Claim or with respect to other Claims brought later in the lawsuit, and it may be given by papers filed in the lawsuit, such as a motion to compel arbitration. Each of the arbitration administrators listed below has specific rules for starting an arbitration proceeding. Regardless of who elected arbitration or how arbitration was elected, the party asserting the Claim (i.e., the party seeking money damages or other relief from a court or an arbitrator) is responsible for starting the arbitration proceeding. Thus, if you assert a Claim against us in court, and we elect to arbitrate that Claim by filing a motion to compel arbitration which is granted by the court, you will be responsible for starting the arbitration proceeding. Similarly, if we assert a Claim against you in court, you assert a counterclaim against us, and we elect to arbitrate that counterclaim by filing a motion to compel arbitration which is granted by the court, you will be responsible for starting the arbitration proceeding. Even if all parties have opted to litigate a Claim in court, you or we may elect arbitration with respect to any Claim made by a new party or any Claim later asserted by a party in that or any related or unrelated lawsuit (including a Claim initially asserted on an individual basis but modified to be asserted on a class, representative or multi-party basis). Nothing in that litigation shall constitute a waiver of any rights under this Arbitration Agreement.
D. Choosing the Administrator: The party starting the arbitration proceeding must choose one of the following arbitration organizations as the Administrator: the American Arbitration Association (the “AAA”), 120 Broadway, Floor 21, New York, N.Y 10271, www.adr.org., or JAMS, 1920 Main St. Ste. 300, Irvine, CA 92614, www.jamsadr.com. You may contact these organizations directly if you have any questions about the way they conduct arbitrations or want to obtain a copy of their rules and forms (which are also available on their websites). A single arbitrator shall be appointed. If for any reason the Administrator selected is unable or unwilling to serve or continue to serve as Administrator, the other company will serve as Administrator. If neither the AAA nor JAMS is able or willing to serve as Administrator, we and you will mutually agree upon an Administrator or arbitrator or a court with jurisdiction will appoint the Administrator or arbitrator (or arbitrators, in the case of a three-arbitrator panel provided for in Section “j”, below). No company may serve as Administrator, without the consent of all parties, if it adopts or has in place any formal or informal policy that is inconsistent with and purports to override the terms of the Class Action Waiver in section (e) of this Arbitration Agreement. In all cases, the arbitrator(s) must be a lawyer with more than 10 years of experience or a retired judge. Arbitration of a Claim must comply with this Arbitration Agreement and, to the extent not inconsistent or in conflict with this Arbitration Agreement, the applicable rules of the arbitration Administrator.
F. Location of Arbitration: Any arbitration hearing that you attend must take place at a location reasonably convenient to your residence.
G. Cost of Arbitration: Each Administrator charges fees to administer an arbitration proceeding and the arbitrator also charges fees. This includes fees not charged by a court. At your written request, we will pay all filing, hearing and/or other fees charged by the Administrator and arbitrator to you for Claim(s) asserted by you in an individual arbitration after you have paid an amount equivalent to the fee, if any, for filing such Claim(s) in state or federal court (whichever is less) in the judicial district in which you reside. (If you have already paid a filing fee for asserting the Claim(s) in court, you will not be required to pay that amount again). In addition, the administrator may have a procedure whereby you can seek a waiver of fees charged to you by the Administrator and arbitrator. We will always pay any fees or expenses that we are required to pay by law or the Administrator’s rules or that we are required to pay for this Arbitration Agreement to be enforced.
I. Right to Discovery: In addition to the parties’ rights to obtain discovery pursuant to the arbitration rules of the Administrator, either party may submit a written request to the arbitrator to expand the scope of discovery normally allowable under the arbitration rules of the Administrator. The arbitrator shall have discretion to grant or deny that request.
J. Arbitration Result and Right of Appeal: Judgment upon the award given by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision is final and binding, except for any right of appeal provided by the FAA. The arbitrator’s authority shall be limited to deciding the case submitted by the parties to the arbitration. Therefore, no decision by any arbitrator shall serve as precedent in other arbitrations except in a dispute between the same parties, in which case it could be used to preclude the same claim from being re-arbitrated. If the amount of the Claim exceeds $25,000, any party can, within 30 days after the entry of the award by the arbitrator, appeal the award to a three-arbitrator panel administered by the Administrator. (If an appeal is not filed within that time period, the arbitration award shall become final and binding). The panel shall reconsider de novo (anew) any aspect of the initial award requested by the appealing party. This means that they shall reach their own findings of fact and conclusions of law rather than deferring in any manner to the original arbitrator. The decision of the panel shall be by majority vote. Reference in this Arbitration Agreement to “the arbitrator” shall mean the panel if an appeal of the arbitrator’s decision has been taken. The costs of such an appeal will be borne in accordance with subparagraph (g) above, captioned “Cost of Arbitration.” Any final decision of the appeal panel is subject to judicial review only as provided under the FAA.
A. The parties acknowledge that the Class Action Waiver is material and essential to the arbitration of any disputes between them and is non-severable from this Arbitration Agreement. If the Class Action Waiver is limited, voided or found unenforceable, then this Arbitration Agreement (except for this sentence) shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver. The parties acknowledge and agree that under no circumstances will a class action be arbitrated; and
B. If a Claim is brought seeking public injunctive relief and a court determines that the restrictions in the Class Action Waiver or elsewhere in this Arbitration Agreement prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such Claim (and that determination becomes final after all appeals have been exhausted), the Claim for public injunctive relief will be determined in court and any individual Claims seeking monetary relief will be arbitrated. In such a case the parties will request that the court stay the Claim for public injunctive relief until the arbitration award pertaining to individual relief has been entered in court. In no event will a Claim for public injunctive relief be arbitrated.
L. Notice of Claim; Right to Resolve; Special Payment: Prior to initiating, joining or participating in any judicial or arbitration proceeding regarding any Claim, the Claimant (the party who asserts or seeks to assert a Claim in a lawsuit or arbitration proceeding) shall give the other party written notice of the Claim (a “Claim Notice”) and a reasonable opportunity, not less than 30 days, to resolve the Claim. Any Claim Notice you send must include your name, address, telephone number and loan or account number. Any Claim Notice must explain the nature of the Claim and the relief that is demanded. You may only submit a Claim Notice on your own behalf and not on behalf of any other party. The Claimant must reasonably cooperate in providing any information about the Claim that the other party reasonably requests. If: (i) you submit a Claim Notice in accordance with this paragraph on your own behalf (and not on behalf of any other party); (ii) we refuse to provide the relief you request before an arbitrator is appointed; and (iii) an arbitrator subsequently determines that you were entitled to such relief (or greater relief), the arbitrator shall award you at least $7,500 (not including any arbitration fees and attorneys’ fees and costs to which you may be entitled under this Arbitration Agreement or applicable law). We encourage you to address all Claims you have in a single Claim Notice and/or a single arbitration. Accordingly, this $7,500 minimum award is a single award that applies to all Claims you have asserted or could have asserted in the arbitration, and multiple awards of $7,500 are not contemplated by this Section.
Governing Law. The parties agree that the laws of the State of Georgia, without regard to principles of conflict of laws, will govern these Terms and/or any dispute of any sort that might arise between you and CINC or its affiliates, except for the Arbitration Agreement, which is governed by the Federal Arbitration Act.
Assignment. The use of the Platform and grants by CINC hereunder are personal to you and may not be assigned, sub-licensed or transferred, in whole or in part, by you, whether by agreement, operation of law, sale, merger, reorganization or change of control of your company or business. Any assignment or transfer in violation of this section shall be void and of no force or effect and shall constitute a material breach of these Terms.
Notice. CINC may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to You via email notice, written or hard copy notice, or through posting of such notice on the site or in the Platform, as determined by CINC in our sole discretion. CINC reserves the right to determine the form and means of providing notifications to You. CINC is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address You provide us. All notices, requests or demands to CINC shall be delivered in writing and shall be deemed given only if delivered personally or sent via overnight delivery to CINC’s mailing address. Any legal notice sent by You to CINC must also be emailed to firstname.lastname@example.org. Please contact us at email@example.com with any questions regarding these Terms.
No Waiver. The failure or delay of any party in exercising any of its rights hereunder, including any rights with respect to a breach or default by the other party, shall in no way operate as a waiver of such rights or prevent the assertion of such rights with respect to any later breach or default by the other party. No party shall be deemed to have waived any rights under these Terms by any action or inaction unless an express waiver is set forth in writing. The waiver of one breach hereunder shall not constitute the waiver of any other or subsequent breach.
Changes to Terms and Authority to Bind. CINC reserves the right, at our sole discretion, to update or revise these Terms at any time without further notice. Any changes shall be effective immediately upon posting by CINC, whether you have actual notice of such changes. Your continued use of CINC’s Platform or contribution to a client’s site or campaign following the posting of any changes to the Terms constitutes acceptance of those changes and your representation that you have the authority to agree and accept any and all changes. Should you wish to opt-out of such future changes, you must communicate your request to opt-out to us in writing, either by email at firstname.lastname@example.org or at this address: Commissions Inc., 300 Galleria Pkwy SE, Suite 1500, Atlanta, GA 30339. The opt-out shall be effective 10 days after receipt. In the event you opt-out, our agreement will continue to be governed by the Terms & Conditions in effect at the time you originally submitted your information, or at the time of the last update to which you did not opt-out.
300 Galleria Pkwy SE, Suite 1500
Atlanta, GA 30339
Copyright © 2022. Commissions Inc. All Rights Reserved.
Effective as of: July 5, 2018
Last updated: March 27, 2023