Terms and Conditions
Last updated May 2019
The following terms and conditions (these “Terms of Service”), govern a user’s (“User,” “you” or “your”) access to and use of this Resident Portal (the “Service”), a product offered by 1025 Berendo Villas (“Provider,” “we” or “us”). By registering for and using the Service, you agree that you have read, understand and agree to be bound by these Terms of Service.
IMPORTANT: PLEASE CAREFULLY READ AND UNDERSTAND THESE TERMS OR SERVICE. THEY CONTAIN AN ARBITRATION AGREEMENT, JURY AND CLASS ACTION WAIVERS, LIMITATIONS OF LIABILITY AND OTHER PROVISIONS THAT AFFECT YOUR LEGAL RIGHTS.
We may revise and update these Terms of Service from time to time in our sole discretion. All changes are effective immediately upon posting and apply to all access and use of the Service, the website or any user interface. Your continued use of the Service, the website or any user interface following the posting of revised Terms of Service shall constitute your acceptance and agreement to be bound by the changes. Should you not wish to be bound by these Terms of Service, do not register or use the Service.
1. DESCRIPTION OF THE SERVICE
The Service provides a resident portal website and mobile application allowing residents to manage various apartment community amenities and services, while also providing tools and applications for social engagement among the community residents.
2. SERVICE REGISTRATION AND ACCOUNT SECURITY
You acknowledge that your account is personal to you and agree not to provide any other person with access to the Service using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to, or use of, your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. We reserve the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Service.
3. GENERAL USE OF THE SERVICE – PERMISSIONS AND RESTRICTIONS
Provider grants you limited, conditioned and revocable permission to access and use the Service, provided that you use the Service only for lawful purposes and in accordance with these Terms of Service.
You agree not to use the Service:
- In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
- For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.
- To send, knowingly receive, upload, download, use or re-use any material which does not comply with the Content Standards set out in these Terms of Service.
- To transmit, or procure the sending of, any advertising or promotional material [without our prior written consent], including any “junk mail,” “chain letter” or “spam” or any other similar solicitation.
- To impersonate or attempt to impersonate Provider, a Provider employee, another user, or any other person or entity (including, without limitation, by using e-mail addresses or user names associated with any of the foregoing).
- To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Service, or which, as determined by us, may harm Provider or users of the Service or expose them to liability.
Additionally, you agree not to:
- Use the Service in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Service, including their ability to engage in real time activities through the Service.
- Use any robot, spider or other automatic device, process or means to access the Service for any purpose, including monitoring or copying any of the material on the Service.
- Use any manual process to monitor or copy any of the material on the Service or for any other unauthorized purpose without our prior written consent.
- Use any device, software or routine that interferes with the proper working of the Service.
- Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
- Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Service, the server on which the Service is stored, or any server, computer or database connected to the Service.
- Attack the Service via a denial-of-service attack or a distributed denial-of-service attack.
- Otherwise attempt to interfere with the proper working of the Service.
4. SMS TEXT ALERTS AND NOTIFICATIONS
We offer you the ability to enroll your mobile phone number in our Short Messaging Service text message service (the “SMS Service”) for purposes of receiving messages from your apartment community management staff.
Enrollment and Consent
By providing your mobile phone number(s) and opting in to the SMS Service:
- You authorize Provider and your apartment community management staff to send text messages to the mobile phone number(s) included in your Service profile.
- You acknowledge and agree that your completion of the online registration process constitutes your written, express consent to enroll your mobile phone number(s) in the System.
- You confirm that you are the owner or subscriber of the mobile phone number(s) and authorized to enroll them in the system.
Prior to completing your enrollment in the SMS Service, we will send a confirmation text message to your designated mobile phone number(s). To complete enrollment, you must confirm receipt of the text message from your mobile device by following the instructions in that text message.
You may cancel your enrollment in the SMS Service at any time by:
- Removing your mobile phone number(s) from the SMS Service registration;
- Sending an SMS Service opt-out request email to firstname.lastname@example.org; or
- Texting “STOP” in reply to any text message received from the SMS Service.
SMS Service Availability and Other Information
The SMS Service relies upon third party wireless service provider networks to deliver text messages. Provider is not liable for the availability (or lack thereof) of wireless network coverage or the failure of the wireless networks to deliver a text message. Provider disclaims any responsibility for any wireless service used to access the SMS alerts. Provider SMS alerts are available to Users based in the United States. User understands and acknowledges that SMS alerts are not intended to be accessed from outside of the United States.
5. INTELLECTUAL PROPERTY RIGHTS
The Service and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by Provider, its licensors or other providers of such material and are protected by applicable United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
These Terms of Service permit you to use the Service for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on our Service, except as follows:
- Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
- You may store files that are automatically cached by your Web browser for display enhancement purposes.
- You may print or download one copy of a reasonable number of pages of the Service for your own personal,
non-commercial use and not for further reproduction, publication or distribution.
- If we provide desktop, mobile or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement for such applications.
- If we provide social media features with certain content, you may take such actions as are enabled by such features.
You must not:
- Modify copies of any materials from this site.
- Use any illustrations, photographs, video or audio sequences or any graphics separately from the accompanying text.
- Delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from the Service.
You must not access or use for any commercial purposes any part of the Service or any services or materials available through the Service. If you print, copy, modify, download or otherwise use or provide any other person with access to any part of the Service in breach of these Terms of Service, your right to use the Service will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title or interest in or to the Service or any content on the Service is transferred to you, and all rights not expressly granted are reserved by Provider. Any use of the Service not expressly permitted herein is a breach of these Terms of Service and may violate copyright, trademark and other laws.
The 1025 Berendo Villas name and logo, and all related names, logos, product and service names, designs and slogans are trademarks of Provider or its affiliates or licensors. You must not use such marks without the prior written permission of Provider. All other names, logos, product and service names, designs and slogans on this Website are the trademarks of their respective owners.
7. USER CONTRIBUTIONS
The Service may contain message boards, chat rooms, personal profiles, forums, bulletin boards, social media integration, and other interactive features (collectively, “Interactive Services”) that allow users to post, submit, publish, display or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User Contributions”) on or through the Service.
All User Contributions must comply with the Content Standards set out in these Terms of Service.
Any User Contribution you post to the Service will be considered non-confidential and non-proprietary. By providing any User Contribution on the Service, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns the right to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any such material for any purpose.
You represent and warrant that:
- You own or control all rights in and to your User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns.
- All of your User Contributions do and will comply with these Terms of Service.
- You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not Provider, have fully responsibility for such content, including its legality, reliability, accuracy and appropriateness.
- We are not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted by you or any other user of the Service.
8. CONTENT STANDARDS
These content standards apply to any and all User Contributions and use of the Service. User Contributions must in their entirety comply with all applicable federal, state, local and international laws and regulations.
Without limiting the foregoing, User Contributions must not:
- Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable.
- Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
- Infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person.
- Be likely to deceive any person.
- Promote any illegal activity, or advocate, promote or assist any unlawful act.
- Cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person.
- Impersonate any person or misrepresent your identity or affiliation with any person or organization.
- Involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising.
- Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
9. COPYRIGHT INFRINGEMENT
It is the policy of Provider to respond to claims of intellectual property infringement. We will promptly investigate notices of alleged infringement and will take appropriate actions required under the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) (“DMCA”) and other applicable intellectual property laws. To notify us about any claim of copyright infringement, please click on the “DMCA Notice” link provided at the bottom of the website and follow the instructions provided at that link. If you have any issues finding or accessing that link, please email us.
10. LINKS TO THIRD PARTIES
If the Service contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites or services linked to this Service, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
11. ARBITRATION AGREEMENT
THIS SECTION CONTAINS AN ARBITRATION PROVISION. PLEASE READ THIS PROVISION CAREFULLY. IT PROVIDES THAT ANY DISPUTE RELATING TO THE SERVICE OR THESE TERMS OF SERVICE SHALL BE RESOLVED BY BINDING ARBITRATION. IN ARBITRATION, NEITHER YOU NOR PROVIDER WILL HAVE THE RIGHT TO LITIGATE DISPUTES IN COURT, OR TO HAVE A JURY TRIAL ON THE DISPUTES. DISPUTES MAY BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS. PRE-HEARING DISCOVERY RIGHTS AND POST-HEARING APPEAL RIGHTS WILL BE LIMITED, BUT THE ARBITRATOR CAN AWARD DAMAGES AND RELIEF AS PERMITTED UNDER THESE TERMS.
Agreement to Binding Arbitration and Waiver of Right to Trial or Class Action
Any dispute, claim or controversy (each a “Dispute”) arising out of or relating to the Service, including any Telephone Consumer Protection Act (TCPA) claim between you, Provider, and your apartment community manager, will be resolved exclusively by binding arbitration rather than a court proceeding. You acknowledge and agree that you and Provider (and where applicable, your apartment community manager) are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. However, you and Provider (and where applicable, your apartment community manager) each retain the right to injunctive relief in a court of competent jurisdiction.
Notice of Intent to Seek Arbitration
If you intend to seek arbitration, you must first send to Provider a written Notice of Dispute (“Notice of Dispute”) via certified mail. The Notice of Dispute must be mailed to 2201 Lakeside Blvd., Richardson, Texas 75082, Attn: Chief Legal Officer. The Notice of Dispute shall describe the nature and basis of the dispute and the specific relief sought. If the parties cannot reach an agreement to resolve the dispute within thirty (30) days after the Notice of Dispute is received, either party may commence arbitration.
Rules and Governing Law
The arbitration will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures then in effect, except as modified by the terms of this arbitration provision. The JAMS rules are available online at www.jamsadr.com or by contacting JAMS at 1-800-352-5267.
ANY DISPUTE SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS. THIS MEANS THAT ALL PARTIES TO THE ARBITRATION ARE PROHIBITED FROM JOINING OR CONSOLIDATING DISPUTES IN ARBITRATION BY OR AGAINST OTHERS AND ARE PROHIBITED FROM ARBITRATING ANY DISPUTES AS A REPRESENTATIVE OR MEMBER OF A CLASS. The arbitration will take place before one arbitrator. The arbitration shall (i) be conducted by telephone, online and/or be solely based on written submissions, and the specific manner shall be chosen by the party initiating the arbitration; and (ii) not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. You and Provider will mutually agree upon the arbitrator. If you and Provider cannot agree on an arbitrator, the arbitrator will be appointed according to JAMS procedures.
You may elect to hire an attorney but are not required to do so. Each party will be responsible for its own attorney fees and costs, unless awarded by the arbitrator under applicable law. The party that initiates the arbitration will pay the filing fee (unless otherwise dictated by JAMS due to a finding of hardship). Provider will advance all other administration, case management and arbitrator fees associated with the arbitration, through payment directly to JAMS. At the end of the arbitration, the fees paid by Provider may be allocated between you and Provider at the direction of the arbitrator in compliance with JAMS procedures.
All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration provision. Any decision of the arbitrator shall be final. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Provider’s liability is limited as described in these Terms of Service, to the fullest extent permitted by applicable law. The arbitrator cannot award punitive or exemplary damages, except as may be required by statute, or any pre-award interest; nor may the arbitrator award any incidental, indirect or consequential damages, including damages for lost profits or harm suffered by third parties.
If any clause within this arbitration provision is found to be illegal or unenforceable, that clause will be severed from this arbitration provision, and the remaining terms will be given full force and effect.
12. DISCLAIMER OF WARRANTIES
YOUR USE OF THE SERVICE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE IS AT YOUR OWN RISK. THE SERVICE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER PROVIDER NOR ANY PERSON ASSOCIATED WITH PROVIDER MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SERVICE. WITHOUT LIMITING THE FOREGOING, NEITHER PROVIDER NOR ANYONE ASSOCIATED WITH PROVIDER REPRESENTS OR WARRANTS THAT THE SERVICE, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SERVICE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
PROVIDER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
13. LIMITATION ON LIABILITY
IN NO EVENT WILL PROVIDER, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICE, ANY SERVICES LINKED TO IT, ANY CONTENT ON THE SERVICE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
You agree to defend, indemnify and hold harmless Provider, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Service or your use of the Service, including, but not limited to, your User Contributions, any use of the Service’s content, services and products other than as expressly authorized in these Terms of Service or your use of any information obtained from the Service.
15. GOVERNING LAW AND JURISDICTION
All matters relating to the Service and these Terms of Service and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction).
For any legal suit, action or proceeding arising out of, or related to, these Terms of Service or the Service that is not subject to Section 12 (Arbitration Agreement), or for entry of any judgment relating to an arbitration award issued pursuant to Section 12 (Arbitration Agreement), the parties consent exclusively to the (as applicable) federal and state courts of the State of Texas in each case located in the City of Dallas and County of Dallas. Each party waives any and all objections to the exercise of jurisdiction over such party by such courts and to venue in such courts.
16. WAIVER AND SEVERABILITY
No waiver by Provider of any term or condition set forth in these Terms of Service shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure by Provider to assert a right or provision under these Terms of Service shall not constitute a waiver of such right or provision. If any provision of these Terms of Service is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of these Terms of Service will continue in full force and effect.
17. ENTIRE AGREEMENT