1. Acceptance of Terms. Foreclosure Trackers, Inc. ("FTI"), provides its service to FTI's Members (the "Member") and visitors to the Web site ("Members" and visitors, collectively, "You" ), subject to the following Terms of Use and Membership (this "Agreement" ). This Agreement may be updated by FTI from time to time without notice to you. You can review the most current version of this Agreement at any time at: www.foreclosuretrackers.com/terms-of-use.aspx. In addition, you shall be subject to any posted guidelines or rules applicable to the services provided by FTI, which may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into this Agreement.
2. Privacy Policy. Your use of FTI's services and this Web site constitutes your acceptance of this Agreement, as well as FTI's Privacy Policy (the "Privacy Policy" ).
3. Services Provided. FTI furnishes information, advice, and instructions to Members regarding real properties to its Members (the "Services" ). You understand and agree that the Services are provided on as "AS-IS," "AS AVAILABLE" basis and that FTI assumes no responsibility for the accuracy, timeliness, deletion, or mis-delivery of any information posted on this Web site or provided to you by FTI.
4. Grant of License. Subject to the terms and conditions of this Agreement, the Privacy Policy and any other posted guidelines and rules, FTI hereby grants and conveys to you a non-exclusive, non-transferable license to access this Web site.
5. License Restrictions. You agree not to reproduce, duplicate, copy, sell, trade, resell, exploit for any commercial purposes or use for illegal purposes, any portion of the Services, use of the Services, or access to the Services. You represent, warrant, affirm and agree that the data, information and services provided by FTI to You will only be used by You for Your personal use, and that You will not permit or allow the data, information, or Services to be used by any agent, representative, consultant, officer, director, shareholder, parent organization, subsidiary organization, third party or any other person or entity other than You. You further represent, warrant, affirm and agree that unless You obtain FTI's express consent and permission in writing and in advance, You shall not republish, distribute, assign, prepare derivative information, works, or re-formatting, transfer, sell, convey, use, resell or sublicense any data, information or Services provided by FTI to You in any medium, form, manner or format whatsoever, for any purpose whatsoever.
6. Proprietary Rights. You acknowledge, affirm, and agree that the data, information and Services provided by FTI, and any names, logos and other proprietary information are the trademarks and service marks of FTI (the "Proprietary Information" ) may not be displayed or used in any manner whatsoever without the prior written consent of FTI.
7. User and Member Conduct. You agree not to use the Services to text message, e-mail, transmit or otherwise make available any content that:
a. Is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
b. Is harmful to minors;
c. Infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
d. Constitutes unauthorized materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
e. Contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
f. Interferes with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
g. Intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law; or
h. Is harassing to others.
You understand that the technical processing and transmission of the Services, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
8. Modifications to Service. FTI, reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that FTI, shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
9. Termination. FTI, may, at its sole discretion and without prior notice, immediately terminate any and all Services provided without any refund of any part of any fees paid by FTI's Members, and without any other liability to FTI's Members for such cancellation. Nothing stated herein shall limit FTI's right to pursue all claims and causes of action it may have against You for violating this Agreement, the Privacy Policy, including, but not limited to, any monetary damages, injunctive relief, attorney's fees and Court costs. Cause for such termination shall include, but not be limited to:
a. Breaches or violations of this Agreement or other incorporated agreements or guidelines;
b. Requests by law enforcement or other government agencies;
c. Requests by you (self-initiated account deletions);
d. Discontinuance or material modification to the Service (or any part thereof);
e. Unexpected technical or security issues or problems; or
f. Such other reasons that FTI, in its sole discretion, shall deem necessary and appropriate.
You may cancel your membership contract with FTI ("Membership" ) in any of the following ways:
a. Online using the "Account Profile" feature in the Member's section of the website, accessible to the Member upon login;
b. By e-mailing a cancellation request to FTIaccounts@foreclosuretrackers.com at least five (5) days prior to the desired cancellation date;
c. By telephoning a cancellation request to (866) 531-3274 during business hours of 8:30 a.m. to 5:00 p.m. (PST) Monday through Friday. A five and 00/100 ($5.00) dollar service and processing fee will be applied for all cancellations processed via telephone;
d. By faxing a cancellation request to (714) 515-3220 at least five (5) days prior to the desired cancellation date; or
e. By mailing a cancellation request at least ten (10) days prior to the desired cancellation date to Foreclosure Trackers, Inc., 17011 Beach Blvd., Suite 330, Huntington Beach, CA 92647.
10. Conditions of Membership. You agree to comply with all applicable laws in connection with Your use of FTI's website, information, products, and services. You further agree that all information provided to FTI by You is truthful and accurate to the best of Your knowledge.
The term of a Member's Membership is based upon the agreed time period (e.g., monthly, quarterly, semi-annually or annually), and shall automatically renew for successive renewal terms for the same time period as the initial term unless terminated by the Member or FTI prior the end of the then current term, with the initial renewal effective as of the end of the then current term. However, if the Member accepts an initial Trial Membership (free or at a reduced price), then at the conclusion of that initial Trial Membership, unless otherwise agreed between FTI and Member, that initial Trial Membership shall automatically convert to a paid monthly Membership at FTI's then prevailing regular published monthly rate at the time of the conversion to a paid Membership. Thereafter, unless otherwise agreed between FTI and Member, that paid Membership shall automatically renew on a month-to-month basis for successive renewal terms at FTI's prevailing regular published monthly rate at the time of each successive renewal until and unless terminated or canceled in accordance with these Terms. Following an initial Trial Membership, the initial term of the Member's paid Membership begins upon the automatic conversion to the paid Membership at the end of the initial Trial Membership, unless the Member cancels prior to the end of the initial Trial Membership.
If the Member accepts a promotional or discount Membership other than an initial Trial Membership, then at the end of the term of such promotional or discount Membership, that promotional or discount Membership shall automatically convert to a paid Membership for the same term as the promotional or discount Membership, at FTI's then prevailing regular published rate for the applicable term (e.g., monthly, quarterly, semi-annually or annually) at the time of such automatic conversion. Thereafter, unless otherwise agreed between FTI and the Member, that converted paid Membership shall automatically renew for successive renewal terms of the same length as the converted paid Membership, until and unless terminated or canceled in accordance with this Agreement. Unless otherwise agreed between FTI and the Member, when a promotional or discount Membership is converted to a paid Membership, FTI's regular published rates shall apply to the converted paid membership (and all subsequent renewals), and the prior promotional or discounted rate shall no longer apply.
11. Member Services. FTI allows Members to submit requests for service to independent third-party real estate and other related service providers. Members agree to supply FTI with information about themselves and the property they want to sell or hope to buy. FTI will use this information to provide certain details on an anonymous or non-anonymous basis to third-party affiliates who are, in most cases, members of its network. Because FTI uses e-mail and telephones to provide FTI services, all Members hereby consent to receive e-mails and telephone calls from FTI to qualify for, receive, and participate in FTI services. The Members consent to receive e-mails and telephone calls from third parties, since the Member's service requests to and/or through FTI may require services from these third parties.
The Members affirm that all of the information that a Member provides to FTI, whether online or otherwise, is accurate and complete. If at any time the information that the Member provided to FTI changes, the Member also agrees to promptly update FTI with current and accurate information. FTI reserves its right to terminate, cancel, or suspend access to FTI services to any Member whose information FTI believes, at FTI's sole discretion, to be inaccurate or misleading.
FTI may refer Professional Service Providers, mortgage lending or other service providers (collectively "Service Providers") to the Members. The terms of any agreement between a Member and any Service Provider referred by FTI are not endorsed, warranted, guaranteed, recommended or otherwise attributable to or by FTI.
For its services and referrals, FTI may receive payment from one or more of the Service Providers and/or other third parties and/or entities. Membership with FTI and use of the Services constitute a Member's acknowledgment of and agreement to this possible compensation arrangement.
FTI may from time to time offer eligible Members promotional opportunities. Not all Members may qualify for or be eligible to receive all promotional opportunities.
12. Real Estate Broker/Agent Services. The FTI Agent Network is a service provided to registered Members that allows potential home sellers and homebuyers to request help from real estate brokers/agents. The Members must provide information relevant to the real estate transaction being considered. This information is forwarded to selected local brokers/agents ("Professional Service Provider") who have registered with FTI to receive such information. All such brokers/agents are independent third parties to FTI. FTI makes no representation or warranty as to the quality or qualification of any Professional Service Provider referred to the Members. It is the Member's sole responsibility (and FTI encourages this for all Members) to independently investigate the qualifications of each Professional Service Provider prior to entering into any engagement or agreement. FTI is not a party to, and has no knowledge of any specific terms of, any agreement between any Professional Service Provider and the Member. To use this service, Member must consent to receive e-mails and telephone calls from FTI and from Professional Service Provider referred to Member by FTI.
13. Property Posting Services. The Members may post properties for sale on FTI to market those properties to other FTI users. The Member affirms that all of the information and content that they provide to FTI, whether online or otherwise, is accurate and complete. The Member also agrees to promptly update FTI with current and accurate information when and if there is any change in the information that the Member previously provided to FTI. FTI reserves the right to terminate, cancel, or suspend access to FTI services to any Member whose information FTI believes, at FTI's sole discretion, to be inaccurate or misleading, or otherwise objectionable or inappropriate.
The Members agree to only provide content that they are authorized to provide by law or contractual agreement, and that does not violate any other agreement, any contract with a third party, or any property rights of a third party. The Members further agree not to provide any information or content to FTI, whether online or otherwise, that is unlawful, harmful, malicious, hateful, cruel, offensive, defamatory, slanderous, libelous, derogatory, or otherwise illegal or objectionable in any manner.
14. Grant of License to FTI. A Member who posts properties for sale on FTI grants to FTI an unlimited, unrestricted and royalty-free license to publish and display all, part, or a modified version of the content provided by the Member on any FTI controlled or sponsored website, and on or through all other FTI controlled or sponsored publications, information, and services. Furthermore, a Member who posts properties for sale with/to FTI grants FTI permission to distribute, by e-mail or otherwise, all, part, or a modified version of the content provided by the Member to all FTI users, partners, and affiliates, and to any media for marketing or other purposes, as FTI shall deem advisable or appropriate in its sole discretion.
15. Other Service Providers. From time to time FTI may include on its websites third-party Service Providers such as a moving, magazine, or mortgage service provider. FTI posts these services on websites as a service to the Members. FTI is not responsible for and makes no warranty or representation whatsoever regarding the quality or performance of the services offered by or through these other Service Providers. It is the Member's sole responsibility (and FTI encourages this for all Members) to independently investigate the qualifications of each Service Provider prior to entering into any engagement or agreement.
FTI is not responsible or liable for any acts or omissions created or performed by these other Service Providers. FTI's websites may contain links to websites maintained by third-party Service Providers. Such links are provided for Member convenience and reference only. FTI does not operate or control in any respect any information, software, products, or services available on such websites. FTI's inclusion of a link to such websites does not constitute or imply any endorsement, warranty, guarantee or recommendation of these websites, or the contents, products or services of the sponsoring organization.
16. Third-Party Content and Screening. FTI is a data aggregator of content and information supplied by third parties and members, and as such does not have editorial control over the opinions, advice, statements, services, offers or other content and information provided, expressed or implied by third parties, including other Members of FTI. FTI reserves the right, but is not obligated, to screen and review any content and information provided to FTI, and to remove or edit any content and information that does not comply with applicable laws, rules or regulations, or for any other reason FTI deems pertinent or appropriate in FTI's sole discretion. FTI, through its Web site, along with other third party providers, may provide links to other World Wide Web sites or resources. FTI, does not have any control over such other Web sites and resources, and is therefore not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. Furthermore, FTI, shall not be liable, whether directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such other Web site or resource.
17. Pictures. FTI does not guarantee pictures will be available for all property listings. FTI will post pictures whenever available.
18. Payment of Charges.
a. Membership Fees. FTI charges a monthly membership fee. The membership fee is calculated from the day of the term (monthly) that the Member's paid membership commences. The Member agrees that if the Member applies for the seven (7) day Trial Membership and does not cancel the Trial Membership, the Member authorizes FTI to convert the Member's Trial Membership into a regular paid Membership for the term selected by Member effective on the seventh (7th) calendar day, or one hundred sixty eight (168) hours following the Member's initiation of the seven (7) day Trial Membership. If no term has been selected by Member, then FTI shall convert the Member's Trial Membership to a regular monthly paid Membership. No Member shall apply for or utilize any Trial Membership more than once every six (6) months.
The Member authorizes FTI to, and the Member agrees that FTI may, automatically charge to the Member's credit card, debit card or bank account, in advance, the Member's regular Membership fee for each period of the Member's selected or implemented regular paid Membership term. The Member authorizes FTI to, and the Member agrees that FTI may, modify and/or change the term membership fee charged to the Member upon thirty (30) days notice to the Member sent by e-mail. The term membership fee, when paid, is non-refundable in any and all events and accrues on the first day of each term and/or successive renewal term until canceled, regardless of whether the Member accesses the FTI database or utilizes any FTI services. Notwithstanding the language in this paragraph, if the Membership resulted from a special promotional offer which has not been converted to a regular paid Membership, then the terms of that special promotional offer shall control.
FTI's current charges are thirty-nine and 95/100 ($39.95) dollars for a monthly membership, however, these charges are subject to change upon written notice to the Members. These charges are non-refundable. At least one week before the end of the Member's membership term, the Membership is automatically renewed for the same term unless a different term is selected by the Member, or the Membership is terminated or canceled by the Member and/or FTI, and the applicable charges shall be automatically charged/debited to the Member's credit card/account in advance. FTI's charges may change at any time, and notice thereof shall be given to Members.
b. On Time Payment. The Member is required to pay all charges on time, and agrees to submit an accompanying payment authorization in connection with any charges when requested by FTI. Credit card transactions require an acceptable and currently working/continuously valid credit card number/account. FTI may terminate, cancel, interrupt, or disable the Member's participation in FTI services if the Member fails to pay fully and in a timely manner all amounts due to FTI. If the Member's credit/debit card expires or is otherwise declined for payment, access to FTI services and websites can be modified or suspended without notice to the Member, and subsequently terminated or canceled. If any Member payment is more than thirty (30) calendar days past due, interest may be charged daily, at the rate of ten (10%) percent per annum on the outstanding balance, or the maximum allowable by law, whichever is less, and if charged shall accrue, and the entire amount of unpaid charges and/or any other outstanding balance, plus interest and any assessment, will become immediately due and payable. The Member is responsible for any premium charges incurred in connection with the use of information, content, goods, products, or services that are provided at an extra cost. All fees are quoted and payable in United States Dollars. The Member is also responsible for paying all applicable taxes for information, content, goods, products, or services, and any other costs incurred in connection with the use of or access to FTI and its Web sites and services.
c. Payment Methods. The Member's complete billing address and telephone number must be provided to FTI to process payments. FTI accepts major credit cards including Visa, MasterCard, American Express, and Discover, and may accept bank drafts, including personal checks, money orders, cashier's checks, and company checks. However, for mailed payments, FTI does not offer a seven (7) day trial and may not credit the applicable account until additional procedures are completed and until after FTI's bank certifies receipt of funds (maximum fourteen (14) business days). FTI may charge a twenty and 00/100 ($20.00) dollar handling fee, or the maximum allowable by law, whichever is less, for each check returned unpaid for insufficient funds or any other reason.
d. Account Discrepancies. A member may contact FTI Customer Service by e-mail at FTIaccounts@foreclosuretrackers.com or telephone at (866) 531-3274 concerning charges or other questions regarding the status of the Member's account. However, if the Member's account questions are not satisfactorily resolved within fifteen (15) business days of Member's calling or sending an e-mail, and in no event later than ninety (90) days after a questionable account billing or other discrepancy should have been discovered, the Member must write to the Customer Service Department, Foreclosure Trackers, Inc., 17011 Beach Blvd., Suite 330, Huntington Beach, CA 92647, delivered by United States mail, or by fax to (714) 515-3220. Otherwise, any and all such Member complaints are waived.
19. Indemnity. As a condition of use of FTI's Web sites, the Member agrees to indemnify FTI and its suppliers, distributors, Professional Service Providers, Service Providers, and all other third-party providers from and against any and all liabilities, expenses (including but not limited to attorney's fees), and damages arising out of claims resulting from Member's use of FTI's websites and/or services, including without limitation, any claims alleging facts that if true would constitute a breach of these Terms by the Member.
20. Governing Law. This Agreement and the Member's Membership are governed and construed in accordance with the laws of the State of California, without regard to the conflicts of law principles.
21. Dispute Resolution. The Member agrees that any claim or controversy arising out of or relating to the use of FTI's websites and/or services, and/or to any goods or services provided by FTI, and/or to any acts or omissions for which the Member may contend FTI is liable ("Dispute") shall be finally and exclusively resolved by binding arbitration in Orange County, California. The arbitration shall be held before one arbitrator under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") in force at that time. The arbitrator shall be selected pursuant to the AAA rules. Should no AAA rule regarding the selection of an arbitrator be in effect, the Member shall select an arbitrator from a panel of at least ten (10) arbitrators acceptable to FTI. In any arbitration FTI will pay the filing fee, plus the costs associated with the first day of arbitration, with the remaining costs of arbitration being paid by the non-prevailing party. To begin the arbitration process, a party must make a written demand therefor. Any judgment upon the award rendered by the arbitrator may be entered only in a Court of competent jurisdiction in Orange County, California. Member and FTI agree that the arbitrator shall have only limited authority to award damages such that the arbitrator shall not have any power to award damages other than actual compensatory damages as proven; the arbitrator shall not multiply such actual compensatory damages, or award consequential, punitive, or any other damages. Member and FTI each hereby irrevocably waives any claim to any damages other than actual compensatory damages as proven. This agreement to arbitrate is between FTI and its respective Members, and shall not be construed as an agreement or consolidation of arbitration under these Terms with arbitration of disputes or claims of any non-party, regardless of the nature of the issues or disputes involved. These Terms provide that all disputes between the Member and FTI shall be resolved by binding arbitration in Orange County, California. The Member thus gives up the Member's right to go to Court to assert or defend the Member's rights. The Member also gives up the Member's right to participate in or bring class actions. The Member's rights will be determined by a neutral arbitrator and a not a Judge or jury. The Member and FTI each retain the right to pursue injunctive relief in Court, and agree that such claims for injunctive relief may only be brought in a Court of competent jurisdiction in Orange County, California.
22. Severability. If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by law, but only as long as the continued validity, legality and enforceability of such provision or application does not materially (a) alter the terms of this Agreement or (b) diminish the benefits or burdens of this Agreement.
23. Survival of Terms. The provisions of Sections 5, 6, 14, 18, 19, 20, 21, 25 and 26 of this Agreement shall survive the termination of this Agreement, the Privacy Policy and Your Membership.
24. Security. You will receive a password and account designation upon completing the registration process. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify FTI, of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. FTI, will not be liable for any loss or damage arising from your failure to comply with this section.
25. Disclaimer of Warranties. The information, software, products and Services by FTI on an "AS-IS" and "AS AVAILABLE" basis. FTI, does not warrant that the Service will at all times be uninterrupted, timely or error free. FTI, expressly disclaims all warranties, whether express or implied, including, but not limited to, the implied warranty of merchantability and fitness for a particular purpose. FTI will use its best efforts attempts to ensure that the information contained in its websites is accurate and reliable, however, errors sometimes occur. FTI cannot and does not guarantee the accuracy of the information contained in this website and instructs Members to independently verify the accuracy of the information provided. In addition, FTI may make changes and improvements to this Agreement, and FTI's Privacy Policy, at any time.
By using FTI's Web sites and/or Services, You agree and acknowledge that all or any part of FTI's information, software, products, goods and/or Services provided in, by or through FTI and/or its Web sites is at Your own risk.
26. LIMITATION OF LIABILITY. FTI IS NOT RESPOSIBLE FOR AND SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND WAHTSOEVER, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES REGARDLESS OF WHETHER FTI, HAD PRIOR KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM ANY MATTER RELATING TO THE SERVICE.
27. DISCLAIMER. THE ADVICE AND STRATEGIES CONTAINED HEREIN MAY NOT BE SUITABLE FOR YOUR SITUATION. FTI IS NOT ENGAGED IN RENDERING PROFESSIONAL SERVICES, AND YOU SHOULD CONSULT A PROFESSIONAL WHERE APPROPRIATE.
28. Notice. FTI, may, in its sole discretion, provide you with notices, including those regarding changes to this Agreement, by e-mail, regular mail or by posting it on www.foreclosuretrackers.com/terms-of-use.aspx.
29. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter of this Agreement and governs your use of the Service.
30. Non-Waiver. No delay or failure by FTI, to exercise any right hereunder, and no partial or single exercise of any such right, shall constitute a waiver of that or any other right, unless otherwise expressly provided herein.
31. Third Parties. Nothing herein, expressed or implied, is intended to or shall confer on any person other than the parties hereto any rights, remedies, obligations or liabilities under or by reason of this Agreement.
32. Section Headings. The section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the parties and shall not in any way affect the meaning or interpretation of this Agreement.