Last updated: October 17, 2024
NOTICE OF MANDATORY ARBITRATION PROVISION:
This Agreement contains provisions that govern how claims you and 5x have against each other are resolved (see Section 10, “Limitation of Liability”; Section 14, “Dispute resolution and arbitration: MANDATORY BINDING INDIVIDUAL ARBITRATION INSTEAD OF COURT; CLASS ACTION WAIVER”; and Section 15, “Choice of Law and Forum” below).
It also contains an agreement to arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration, unless you opt-out of the agreement to arbitrate in accordance with Section 14(J). Unless you opt-out: (A) you will only be permitted to pursue claims against 5x on an individual basis, not as part of any class or representative action or proceeding, and (B) you will be permitted only to seek relief (including without limitation monetary, injunctive, and declaratory relief) on an individual basis.
These Terms of Service (this “Agreement”) constitute a legally binding contract between Five-x, Inc., a Delaware corporation (“5x,” “we,” “us,” “our”) and you with respect to your use of our websites, mobile applications and online services, including without limitation our website(s) accessible at www.5-x.com (collectively, the “Service”).
SUBJECT TO THE FOREGOING, BY ACCESSING OR USING THE SERVICE OR BY OTHERWISE INDICATING YOUR ASSENT TO THIS AGREEMENT BY CLICKING “I ACCEPT,” OR ANY SIMILAR MECHANISM, YOU REPRESENT AND WARRANT THAT YOU HAVE THE FULL RIGHT AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND YOU ARE CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICE.
BE ADVISED THAT THIS AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES AND LIMITATIONS ON LIABILITY THAT MAY BE APPLICABLE TO YOU.
We reserve the right to, at any time, with or without cause:
You must accept all changes in order to continue to use and access the Service. Your access to or use of the Service after such changes constitutes your agreement to such changes. We will attempt to notify you of any material changes to the terms and conditions of this Agreement. If you do not accept such changes, your use and/or access to the Service will be terminated. NOTICE OF MANDATORY ARBITRATION PROVISION: This Agreement contains provisions that govern how claims you and 5x have against each other are resolved (see Section 10, “Limitation of Liability”; Section 14, “Dispute resolution and arbitration: MANDATORY BINDING INDIVIDUAL ARBITRATION INSTEAD OF COURT; CLASS ACTION WAIVER”; and Section 15, “Choice of Law and Forum” below). It also contains an agreement to arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration, unless you opt-out of the agreement to arbitrate in accordance with Section 14(J). Unless you opt-out: (A) you will only be permitted to pursue claims against 5x on an individual basis, not as part of any class or representative action or proceeding, and (B) you will be permitted only to seek relief (including without limitation monetary,
Before using certain portions of the Service, such as accessing functionality to allow you to track fees and commissions for referrals in real estate transaction, (“Referrals”) you may need to register with us and create an account to access such portions of the Service (an “Account”). In order to create an Account, you must meet the following minimum criteria, and by registering and creating an Account, you represent and warrant to use that: (1) you are and will, during the Term, continue to be a licensed real estate agent; (2) you are and will be compliant with the regulations of all applicable real estate boards, associations, or other applicable governing bodies, including any federal, state, or local authorities (“Governing Authority”); and (3) you are and will be in good standing with your brokerage and/or affiliated organization.
We reserve the right to decline to provide the Service to any person, or to restrict access to any portion of the Service, for any or no reason. Only qualified participants may access certain portions of the Service or participate in Referrals. If and when you register with or provide information to 5x, you agree to: (A) provide accurate, current, and complete information as prompted (including without limitation your contact information), and (B) maintain and update your information to keep it accurate, current, and complete. By providing 5x with your email address or other contact information, you consent to our use of this information to send you Service-related notices and other administrative notices, including without limitation any notices required by any applicable law, statute, rule, ordinance, code, guideline, order or regulation of any government or quasi-government authority (“Applicable Law”). You are solely responsible for the activity that occurs on your Account, including any Referral activity. You must keep your Account credentials (including username and password) and any other access information secure at all times.
You may not share your Account with any third party without 5x's prior written consent. You must notify 5x immediately of any breach or suspected breach of security or unauthorized use of your Account. 5x will not be liable for any losses caused by any unauthorized use of your Account. You shall not, directly or indirectly, submit to the Service or to 5x any personally identifiable information or any other information that may be protected from disclosure by Applicable Law, except as necessary for the establishment and operation of your Account.
You represent and warrant that you have the full right, power, and authority to enter into and perform this Agreement without the consent or approval of any third party.
You acknowledge and agree to comply with our Acceptable Use Policy, found here www.5-x.com/aup/.
You may not use the Service, or assist or encourage any other party to use the Service, to engage in any activity that 5x deems objectionable, including without limitation any of the following prohibited activities:
Improper use of the Services may result in civil or criminal liabilities to you or the termination of access by us to the Services.
A. Your Rights. Subject to the terms and conditions of this Agreement, you are hereby granted a non- exclusive, non-transferable, non-sublicensable, and revocable license to access and use the Service solely for your own internal use. 5x reserves all rights not expressly granted herein in the Service. Except as expressly set forth herein, no rights or licenses are granted to you under this Agreement, whether by implication, estoppel or otherwise.
B. 5x Rights.
C. Proprietary Rights. The Service is owned and operated by 5x, and the Service (and all intellectual property and other rights relating thereto) is and will remain the property of 5x. The Service is protected by U.S. and international copyright, trademark and other Applicable Laws, and you acknowledge that these rights are valid and enforceable. The Service may be used by you solely to the extent expressly permitted in this Agreement. Use of the Service by you for any other purpose is strictly prohibited. You acknowledge that you do not acquire any ownership rights by using the Service. The trademarks, trade names, service marks, brands, logos, and trade dress displayed on the Service (collectively, the “5x Trademarks”) are the registered and unregistered intellectual and proprietary property of 5x and/or others. Nothing contained in this Agreement or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any 5x Trademark(s) without the express written permission of 5x or the third-party owner of any such 5x Trademark.
D. User Content. You are solely responsible for any User Content that you submit, post, or display on or via the Service. Without limitation to the restrictions set forth in Section 3, you represent and warrant that: (i) you own the User Content or otherwise have the right to grant the rights and licenses set forth in this Agreement; (ii) the use of your User Content does not and will not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) the User Content does and will comply with Applicable Law. You acknowledge and agree that your relationship with 5x is not a confidential, fiduciary, or other type of special relationship, and that your decision to submit any User Content does not place 5x in a position that is any different from the position held by members of the general public, including without limitation with regard to your User Content.
5x uses third party products and services to provide the Service, including without limitation, other websites, apps and/or platforms to which User Content has been shared or embedded using the Service (hereinafter “External Services”).
5x does not have or maintain any control over the External Services and is not and cannot be responsible for their content, operation or use. By linking or otherwise providing access to any External Services, 5x does not give any representation, warranty or endorsement, express or implied, with respect to the legality, accuracy, quality or authenticity of content, information or services provided by such External Services.
External Services may have their own terms of use and/or privacy policy and may have different practices and requirements than 5x with respect to the Service. You are solely responsible for reviewing any terms of use, privacy policy or other terms governing your use of these External Services, which you use at your own risk. You are advised to make reasonable inquiries before entering into any transaction, financial or otherwise, and whether online or offline, with any third party related to any External Services.
When using External Services, you are solely responsible for protecting yourself from fraud and for protecting your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content and material that may be included on or may emanate from any External Services.
5x disclaims any and all responsibility or liability for any harm resulting from your use of External Services, and you hereby irrevocably waive any claim against 5x with respect to the content or operation of any External Service.
You hereby affirm that you are at least 18 years old and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Agreement and to abide by and comply with this Agreement.
Your use of the Service shall be subject to 5x's Privacy Policy (the “Privacy Policy”), which can be accessed at: https://www.5-x.com/privacy/. You expressly consent to the practices described in the Privacy Policy. 5x reserves the right to modify the Privacy Policy in its discretion from time to time. Access to or use of the Service after any such changes shall constitute your agreement to such changes.
This Agreement is effective from the date on which you first access the Service and shall remain effective until terminated in accordance with its terms. 5x may immediately terminate this Agreement, and/or your access to and/or use of the Service, or any portion thereof, at any time and for any reason, with or without cause, without prior notice. 5x may also terminate this Agreement immediately if you fail to comply with any term or provision of this Agreement. Upon termination of this Agreement, your right to access and use the Service shall immediately cease and you shall cease all access to and use of the Service. In the event of termination of this Agreement for any reason, Sections 1, 2, 3, 4(B)-(D), and 5-14 shall survive, except that you shall no longer have any right to access or use the Service.
We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service, or any part or portion thereof, with or without notice to you. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service, or any part or portion thereof. Nothing in this Agreement shall be construed to obligate 5x to maintain and support the Service, or any part or portion thereof, during the term of this Agreement.
Portions of the Service allow you to track and facilitate fees and commissions owed for Referrals. 5x is not a party to any agreement between or among users of the Service, including any Referral (“User Agreements”). As a result, verifying the truth or accuracy of information provided by any users, including with respect to any such users' financial performance, and the consummation of any actual or potential transaction between or among users, is solely your responsibility. 5x strongly urges all users to be responsible about their use of the Service and any transaction or agreements entered into as a result of references or connections you make or receive from using the Service, including Referrals and User Agreements. 5x is not a party to any agreement between or among users of the Service, including any User Agreements. As a result, any part of an actual or potential transaction between or among users relating to Referrals or any other functionality of the Services is solely the responsibility of each user.
User verification on the Internet is difficult and we cannot and do not assume any responsibility for the confirmation of each user's purported identity, performance, or other information. We encourage you to communicate directly with other users through the tools available on the Service, though even this does not assure you of the truthfulness or accuracy of the information provided by the user with whom you are communicating. We further encourage you to, and you are solely responsible for, taking other reasonable measures to assure yourself of the other person's identity and to verify all information provided by any user of the Service.
THE SERVICE IS PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, AND ANY WARRANTIES THAT THE SERVICE IS CURRENT AND/OR UP-TO-DATE OR THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, COMPLETE, ACCURATE, CURRENT, RELIABLE, ERROR-FREE, SECURE, OR THAT ANY PROBLEMS WILL BE CORRECTED, OR THAT THE SERVICE, OR ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE FROM THE SERVICE, IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
THERE IS NO WARRANTY, REPRESENTATION, OR GUARANTEE THAT THE SERVICE, OR YOUR USE OF THE SERVICE, OR ANY INFORMATION, MATERIAL, OR CONTENT ACCESSIBLE USING THE SERVICE, WILL BE UNINTERRUPTED, COMPLETE, ACCURATE, CURRENT, RELIABLE, ERROR-FREE, SECURE, OR THAT ANY PROBLEMS WILL BE CORRECTED, OR THAT THE SERVICE, OR ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE FROM THE SERVICE, IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, INCLUDING ANY AMOUNTS WITH RESEPCT TO REFERRALS. WE DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATION REGARDING THE USE OF, OR THE RESULTS OF THE USE OF, THE SERVICE AND YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICE AND YOUR RELIANCE THEREON. WE DO NOT WARRANT THAT YOUR USE OF THE SERVICE WILL BE IN COMPLIANCE WITH OR MEET ANY REQUIREMENTS OF ANY GOVERNING AUTHORITY AND WE HAVE RESPONSIBILITY OR LIABILITY FOR ERRORS OR INACCURACIES IN REFERRALS OR ANY USER AGREEMENTS, ANY LEGAL DISPUTES BETWEEN USERS, INCLUDING AGENTS REGARDING REFERRAL COMMISSION PAYMENTS, VIOLATIONS OF ANY APPLICABLE LAWS OR ANY OTHER RULES OR POLICIES OF ANY GOVENRING AUTHOIRTY, ANY LOSSES, DAMAGES, OR LIABILITY RESULTING FROM ANY USERS' FAILURE TO COMPLY WITH APPLICABLE LAWS, OR ANY CLAIMS, DEMANDS, PROCEEDINGS, OR ACTIONS BROUGHT BY ANY GOVERNING AUTHORITY.
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND, NEITHER 5X NOR ANY OF ITS AGENTS, SUCCESSORS, OR ASSIGNS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, OR OTHER REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS, LOST SAVINGS, OR LOSS OF DATA) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY MANNER TO THE SERVICE OR ANY LINKED WEBSITE, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES. 5X'S MAXIMUM AGGREGATE LIABILITY TO YOU SHALL NOT EXCEED TEN DOLLARS ($10).
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES AND/OR LIABILITIES, SO CERTAIN OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
You agree to fully indemnify, defend (at 5x's request), and hold harmless 5x, our agents, successors, and assigns, and our and their directors, officers, employees, consultants and other representatives (collectively, the “5x Parties”) from and against any and all claims, damages, losses, costs (including reasonable attorneys' fees) and other expenses that arise directly or indirectly out of or from: (A) your actual or alleged breach of this Agreement; (B) any allegation that any User Content or other materials you submit to us or transmit to the Service infringe, misappropriate, or otherwise violate the copyright, patent, trademark, trade secret or other intellectual property or other right of any third party; (C) your activities in connection with the Service or any other website to which the Service is linked; (D) your negligence or willful misconduct; (E) your use of the results, content, data, or information provided via the Service; (F) any service or product offered by you in connection with or related to your use of the Service; (G) any Referrals or User Agreements; and/or (H) your violation of any Applicable Law or any claims, demands, proceedings, or actions brought by any Governing Authority.
5x makes no representation that the Service operates (or is legally permitted to operate) in all geographic areas or that the Service is appropriate or available for use in other locations. Accessing the Service from territories where the Service or any content or functionality of the Service or portion thereof is illegal is expressly prohibited. If you choose to access the Service, you agree and acknowledge that you do so on your own initiative and at your own risk and that you are solely responsible for compliance with all Applicable Laws. The Service is operated from the United States. If you are located outside of the United States and choose to use the Service or provide your User Content to us, your User Content will be transferred, processed, and stored in the United States. U.S. privacy laws may not be as protective as those in your jurisdiction. Your agreement to the terms of this Agreement or your submission of your User Content in connection with the Service represents your agreement to this practice. If you do not want your User Content transferred to or processed or stored in the United States, you should not use the Service.
Under California Civil Code Section 1789.3, California Service users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.
A. Binding Arbitration. You and 5x both agree that any and all disputes or claims arising out of or relating in any way to 5x products or services or from any advertising for any such products or services, including any question regarding the existence, validity, or termination of the Agreement as well as any issue regarding the interpretation of this Section 14, will be resolved by binding arbitration before a sole arbitrator (rather than in court), except that you may assert claims in small claims court if your claims qualify and 5x may pursue a collection action against you in court. This also includes any claims that arose before you accepted the Agreement, regardless of whether prior versions of the Agreement required arbitration. The Federal Arbitration Act (9 U.S.C. § 1 et seq.) and federal arbitration law apply to this arbitration agreement.
B. Neutral Arbitrator. Arbitration uses a neutral arbitrator instead of a judge and jury. An arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow the terms of the Agreement as a court would. Arbitration procedures allow for more limited discovery, and court review of an arbitration award is limited.
C. Notice. If you have a dispute and elect to seek arbitration or file a claim in small claims court, you must first send to 5x, by certified mail, a written notice of your claim that (i) describes the nature and basis of the claim or dispute; (ii) sets forth the specific relief sought; and (iii) includes a physical address and email address where you may be reached (“Notice”). The Notice must be addressed to: Five-x, Inc., 14143 Denver West Parkway Suite 100. Lakewood, CO 80401 (“Notice Address”). You may download or copy a form Notice at www.adr.org. If 5x and you do not reach an agreement to resolve the claim within sixty (60) days after the Notice is received, you or 5x may commence an arbitration proceeding or file a claim in small claims court.
D. Initiation of Arbitration. You may download or copy a form to initiate arbitration at www.adr.org.
E. Consumer Arbitration Rules. The arbitration will be governed by the AAA's then current Consumer Arbitration Rules, as modified by the terms of the Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org or by calling the AAA at 1-800-778-7879. In the event of any conflict between the terms of the Agreement and the AAA Consumer Arbitration Rules, the terms of the Agreement will apply.
F. Fees. Each party will bear its own fees in connection with the arbitration, including the expense of its own counsel, experts, witnesses, and preparation and presentation of evidence at any arbitration hearing.
G. Hearings. If your claim is for US$25,000 or less, you and 5x agree that you may choose whether the arbitration will be conducted solely on the basis of documents or through a telephonic hearing. You may also request an in-person hearing, which the arbitrator may grant at his or her discretion. If the arbitrator grants an in-person hearing, such hearing will be conducted either at a mutually agreed location or a location determined by the AAA or the arbitrator. In such an in-person hearing, the parties, or any of their witnesses, have the right to participate remotely by way of videoconference or some similar means. If your claim exceeds US$25,000, the right to a hearing will be determined by the arbitrator. All in-person hearings will be held in Denver, Colorado.
H. No Class Action. You and 5x agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, representative, consolidated, or mass action. Neither you nor 5x may join or consolidate claims by or against a third party or arbitrate or otherwise participate in any claim as a class representative, class member or in a private attorney general capacity. If this provision is found to be unenforceable, then the entirety of this Section 14 shall be null and void.
I. Confidentiality. Any arbitration will be confidential. Neither you, 5x, the AAA, nor the arbitrator may disclose the existence, content (including any oral or written submissions), or results of any arbitration, except as may be required by Applicable Law or for purposes of enforcing or challenging of the arbitration award.
J. Opt-Out. You may opt out of this dispute resolution procedure by providing written notice to 5x at the Notice Address no later than thirty (30) calendar days from the date of your purchase of 5x products or services (or date of first use, in the case of free products or services). Opting out of this dispute resolution procedure will not otherwise affect the coverage or applicability of the Agreement or your ability to use 5x products or services in any way.
K. Time Limitation on Claims. You agree that any claim you may have arising out of or related to your relationship with 5x and this Agreement must be filed within one year after such claim arose; otherwise, your claim is permanently barred.
Without limiting Section 14 of this Agreement and your relationship with 5x, disputes between the you and 5x shall be governed by, and construed and interpreted in accordance with, the Federal Arbitration Act, applicable federal law, and the laws of the State of Colorado without regard to conflict of laws principles AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. Subject to Section 14, the parties irrevocably consent to bring any action to enforce this Agreement in the federal or state courts located in Denver, Colorado, and you consent to the exclusive jurisdiction of the federal or state courts located in Denver, Colorado.
If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect, and such provision will be reformed in a manner to effectuate the original intent of the parties as closely as possible and remain enforceable. If such reformation is not possible in a manner that is enforceable, then such term will be severed from the remaining terms, and the remaining terms will remain in effect. This is the entire Agreement between you and us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements between you and us with respect to such subject matter. This Agreement may not be changed, waived or modified except by 5x posting such changes, waivers or modifications within the Services. If any employee of 5x offers to modify this Agreement, he or she is not acting as an agent for 5x or speaking on 5x's behalf. You may not rely, and should not act in reliance on, any statement or communication from an employee of 5x or anyone else purporting to act on 5x's behalf. This Agreement is between you and 5x; there are no third-party beneficiaries. You are responsible for compliance with all Applicable Laws, including without limitation United States export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States or are a foreign person or entity blocked or denied by the United States government. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. Neither this Agreement nor any right, obligation or remedy hereunder is assignable, transferable, delegable or sublicensable by you except with 5x's prior written consent, and any attempted assignment, transfer, delegation or sublicense shall be null and void. 5x may assign, transfer or delegate this Agreement or any right or obligation or remedy hereunder in its sole discretion. 5x shall not be in breach of this Agreement nor liable for any delay in performing, or failure to perform, any of its obligations under this Agreement, if such delay or failure result from events, circumstances or causes beyond its reasonable control. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Except as explicitly stated otherwise, legal notices shall be served, in the case of 5x, at 14143 Denver West Parkway Suite 100. Lakewood, CO 80401, or, in your case, to contact information you choose to provide us. Notice to you shall be deemed given 24 hours after the e-mail is sent. Any heading, caption or section title contained in this Agreement is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.