DISTRIX TERMS AND CONDITIONS OF USE
Last Updated: December 4, 2020
Welcome to Distrix LLC Terms and Conditions of Use (“Terms”). The Terms You see below are important because they:
- Outline your legal rights while using AVER
- Explain the rights You give to Us when You use AVER
- Describe the rules You need to follow when using AVER
- Contain a class action waiver and an agreement to resolve any disputes that may arise by arbitration
Distrix, LLC (“Distrix,” “We,” “ Us,” or “Our”) is the developer and owners of a product “AVER.” AVER allows landlords and tenants (“ You” or “User”) to timely and conveniently gather and exchange all necessary rent/ lease application documents, including but not limited to the credit history, and certain background check information. AVER looks to provide a one-stop platform, through both a mobile application (“Mobile Application”) and/or through web-based technology (“Website”, Mobile Application and Website collectively referred to as “AVER” or “Application” herein) that is secure, fast, easy, and readily customizable services to both landlords and tenants.
2. Terms of Service
By using AVER, the manager or operator(s) of the Application, as well as any related business partner(s) and vendor(s), including all associated features and functionalities, websites and user interfaces, as well as all content and software applications associated with Our services (collectively, the “Distrix Services” or “ Service”), You are entering into a binding agreement with Distrix. These Terms govern your access and use of AVER, and all related technologies, services, products, and relevant contents intended to be provided by Distrix for use in connection with the Application. The Application is licensed, not sold, to You, therefore, Your use or the license can be revoked, modified, or suspended at any time in any ways, without notice or consent and without any liability.BY USING OR ACCESSING THE APPLICATION, EACH USER ASSUMES AND AGREES TO BE BOUND BY THESE TERMS AND ALL OTHER DOCUMENTS REFERENCED HEREIN.
In order to use the Distrix Services, You need to (1) be 18 years or older, (2) have the power to enter a binding contract with Us and not be barred from doing so under any applicable laws, and (3) are located within the United States. You also represent, warrant and covenant that any information that You submit to Distrix (whether through AVER or otherwise) is true, accurate, and complete.
3. Changes to Terms
In its sole discretion, Distrix may, from time to time, revise these Terms. We endeavor to notify You of such changes by posting an update to the Mobile Application and/or Website, however Your continued use of the Mobile Application and/or Website after revisions to the Terms are posted to the foregoing will constitute your consent to the revised Terms.
4. Using Our Service
DISTRIX IS NOT A BROKER OR AGENT. WE DO NOT SCREEN PROPERTIES OR LISTINGS OR OFFER ANY GUARANTY OR ADVICE REGARDING THE SUITABILITY, CONDITION OR HABITABILITY OF PROPERTIES, LANDLORDS, OR POTENTIAL TENANTS. NOTHING INCLUDED IN THE SERVICES SHOULD BE CONSTRUED AS SUCH ADVICE OR SUGGESTION TO ANYONE IN ANY CIRCUMSTANCES.
Distrix is not a Consumer Reporting Agency, or Reseller, as defined in the Fair Credit Reporting Act (frequently referred to as ‘FCRA’), 15 U.S.C. § 1681 et seq., because it does not furnish consumer reports to third parties. Rather, Distrix compiles documentation from various sources to prepare rental applications for Users, upon the User’s request. The distribution of the applications is controlled by the User.
By accessing and/or using the Application, You agree to receive communications from Distrix, including, but not limited to tenant’s renter application information, but also any other information such as e-mails, text messages, calls, and push notifications, among other sales or marketing opportunities. You also agree that alerts, notices, texts, calls or other communications may be generated by automatic telephone dialing systems or electronic messaging system, subject to your phone or email service provider’s charge for such messages. All such communications may include, but are not limited to, commercially oriented communications concerning Your account or use of the Application, use of third-party services, updates concerning new and existing features on the Application, and any other marketing or sales related communications.
If at any time You no longer wish to receive such communications by email, You may opt-out by following the “unsubscribe” instructions in the communication. If at any time You no longer wish to receive such communications by text message, You may opt-out by replying the word “STOP” to the communication or following any other instructions provided through Distrix.
The owner of the Application is based in the State of New York. We provide this Application for use only by persons located in the United States. We make no claims that the Application or any of its content is accessible or appropriate outside of the United States. Access to the Application may not be legal by certain persons or in certain countries. If You access the Application from outside the United States, You do so on your own initiative and are responsible for compliance with local laws.
A party and its Representatives shall under no circumstances be considered employees, agents, partners, parties to a joint venture or representatives of the other party, nor shall either party have any authority to bind the other in any respect. Neither party shall act or attempt to act, or represent itself, directly or by implication as agent, party to a joint venture with the other party, partner or representative of the other, or in any manner assume or attempt to assume or create any obligation or liability of any kind, or make any promise, warranty or representation with respect to the Distrix Services or any other matter, express or implied, on behalf of, or in the name of, the other.
5. Service Limitations and Modifications
Distrix will make reasonable efforts to keep the Distrix Services operational. However, certain technical difficulties, maintenance or testing, or updates required to reflect changes in relevant laws and regulatory requirements, may, from time to time, result in temporary interruptions. Distrix reserves the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the Distrix Services, with advance notice where possible, all without liability, except where prohibited by law, for any interruption, modification, or discontinuation of the Distrix Services or any function or feature thereof. You understand, agree, and accept that although it has not obligation, Distrix will make reasonable efforts to maintain, support, upgrade, or update the Service, or to provide all or any specific content through the Service. Distrix may, from time to time, remove certain features without notice.
6. For Landlord/ Lessor/ Lease Agent
If You are or represent a landlord, lessor, or leasing agent, You are exclusively responsible for adhering to the Fair Housing Act (see http://www.justice.gov/crt/fair-housing-act-2) as well as any state or local laws. We encourage You to seek legal counsel regarding compliance; regardless under no circumstances shall We provide guidance regarding compliance or otherwise assume liability for Fair Housing Act or other housing related law and rules seeking Your compliance. And if You are collecting information utilizing the Distrix Services, there are certain legal requirements contained in the Fair Credit Reporting Act 15 USC 1681 et. seq, to which You are solely responsible to be in full compliance.
7. Distrix Fees Non-Refundable
Distrix Services may be subject to fees charged by Us. All fees are deemed to have been earned at the time of the receipt of the tenant’s submission of the lease and/or rent application, and the landlord’s accessing or accepting a tenant’s information, or any earlier steps in which the user would agree to pay for Distrix Services. Once charged, fees shall immediately be deemed earned by Us as consideration for Services performed and are non-refundable, and the same fees are not subject to any kind of setoff or deduction unless specifically agreed by Us in writing.
8. User’s Responsibilities
You may have to provide, register, and record certain personal information in order to register and/or to use the Application. You agree that your username, password or any other information are confidential, and proprietary to Us, and You must not disclose it to any other person or entity. You must notify Us immediately of any unauthorized access to or use of Your username or password or any other breach of security. You also agree to ensure that You exit from your account in the Services at the end of each session. You agree to exercise caution when accessing and/or using the Application to protect Your personal or other confidential information.
You agree Distrix has the right to suspend or disable any username, 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.
You may use the Application only for lawful purposes and in accordance with these Terms. You agree not to use the Application in any way that violates any applicable federal, state, local laws or regulations.
You further agree not to a) access or use the Application in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Application, including their ability to engage in real time activities through the Application, b) use any device, software or routine that interferes with the proper working of the Application, c) introduce or attempt to introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful, d) attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Application, the server on which the Application is stored, or any server, computer or database connected to the Application.
9. Applicability of Third-Party Vendors
The Distrix Services may contain links to third party websites. We do not represent, guarantee, or endorse any website that You may access from the Distrix Services. In addition, if Distrix provides a link to a third party website, it does not represent, guarantee, or endorse that website (or associated group, entity, corporation or individual) or any of its offerings. Links contained within the Distrix Services are provided solely as a convenience to You. You acknowledge that any linked third party websites and their content are not under the control of Distrix. You agree and confirm that Distrix is not responsible for any form of transmission received from any linked or involved third party services, including but not limited to its respective applications or websites.
We also use or utilize Plaid Inc. (“Plaid”) to connect You with Your financial institutions. By using the Plaid service, Distrix allows You to access Plaid data through the AVER application so YOU can share your personal and financial information from your relevant financial institution with the Landlord of Your choice. Please find the linked service agreement for the Plaid service - https://plaid.com/legal/. Note that Distrix has no contractual relationship with You or for any User involving the Plaid service.
10. User Warranties
The Application contains certain features such as lease/ rental application processing, and tenant application and screening process, which may also include a platform for Users to upload, submit, publish, display or transmit to other Users or other persons content or materials (collectively, “User Information”) on or through the Application.
To access or use the Application, or some of the resources Distrix offers, You may be asked to provide certain registration details or other information. It is a condition of your use of the Application that all the information You provide on the Application is correct, current and complete.
You specifically acknowledge and authorize that any User Information including but not exclusively, potential name, address, phone number, rental history, and employment history that is provided by You to this Application can be provided to or shared with third parties (including but not limited to potential lessors, credit reporting services, third-party vendors, advertisers, and service providers, or other third parties). You are also providing permission to Distrix to collect User Information, and to provide it to third parties. Accordingly, You waive all claims of liability against the company for such activities.
Any User Information You post to the Application will be considered non-confidential and non-proprietary (except as explicitly stated in these Terms). By providing any User Information on the Application, 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.
You represent and warrant that You own or control all rights in and to the User Information 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, and that all of your User Information do and will comply with these Terms.
You also understand and acknowledge that You are responsible for any User Information You submit or contribute, and You, not Distrix, have full responsibility for such content, including its legality, reliability, accuracy and appropriateness.
11. User Information
You promise and agree to ensure to comply with all applicable federal, state, local and international laws and regulations.
12. User Indemnification
You agree to defend, indemnify and hold Distrix its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns harmless from and against all damages, losses, and expenses of any kind (including reasonable attorney fees and costs) arising out of or related to: (1) your breach of the Terms or your use of the Application; (2) use of the Website’s content, services and products other than as expressly authorized in these Terms or Your use of any information obtained from the Application; (3) any activity in which You engage on or through the Distrix Services; and (4) Your violation of any law or the rights of a third party.
13. Limited Liability of Distrix
You understand and agree that: (1) Distrix is not responsible for, and do not endorse, any User Information; (2) We make no guarantees about the accuracy, currency, suitability, or quality of the information in such User Information; and (3) We assume no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful User Information made available by other visitors, employers, advertisers, and third parties.
In accordance with Section 230 of the U.S. Communications Decency Act, We generally cannot be held liable for claims arising from User Information provided by third parties which may include landlords (and their agents), tenants (and their agents) and those making User Information.
You waive any claims against Distrix and its affiliates, licensees and service providers from any claims, losses or liabilities resulting from any action taken in connection with any such investigations and from any actions taken as a consequence of investigations by either Distrix or any other parties, including but not limited to law enforcement authorities.
In no event will Distrix, its respective affiliates or its 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 or access the Application, any websites linked to it, any content on the application or such other websites or any services or items obtained through the application or such other websites, 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 maximum amount of liability that Distrix may be liable to You arising out of or in connection with these Terms and Your use of the Application will be limited to the aggregate amount of fees paid by You to Distrix in the 12-month period immediately preceding the date of the claim.
14. Distrix Responsibilities
Distrix shall exercise reasonable discretion and commercially reasonable means to take certain action(s) with respect to any User Information that We deem necessary or appropriate in Our sole discretion, including if we believe that such User Information violates the Terms for the purpose of providing Distrix Services. Distrix shall also take appropriate action(s), including but not limited to referral to law enforcement, for any illegal or unauthorized use of the Application.
Distrix shall have the sole discretion to terminate or suspend any User’s access to all or part of the Application for any or no reason, including without limitation, any violation or reasonable threat of violation of the Terms.
You also understand that We will cooperate with any law enforcement authorities or court order requesting or directing Us to disclose the identity or other information of anyone posting any materials on or through the Application.
We do not undertake to review material before it is posted on the Application or submitted before or during the use of the Distrix Services and/or the Application, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or
inaction regarding transmissions, communications or content provided by any User or third party. We have no duty or responsibility to monitor any User Information and shall have no liability for failure to monitor User Information.
Distrix may, at its sole discretion, update, change, or modify any part of the content(s) or feature(s) on the Application at any time. However, such contents or features may not necessarily complete or up to date. Any of the contents or materials on the Application or Distrix Services may be out of date at any given time, without any obligation to update the same.
15. Distrix Reliance on User Information
The information presented on or through the Application is made available solely for general information purposes and/or as a platform for lessors and lessees to utilize Distrix Services and/or the Application to communicate and exchange information provided by them or third parties. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance You place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by You or any other visitor to the Application, or by anyone who may be informed of any of its contents.
This Application may include content provided by third parties, including materials provided by other users, bloggers and third-party licensors, syndicators, aggregators and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by Distrix, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Distrix. We are not responsible, or liable to You or any third party, for the content or accuracy of any materials provided by any third parties.
16. Warranty Disclaimer
YOU UNDERSTAND THAT WE CANNOT AND DO NOT GUARANTEE OR WARRANT THAT FILES AVAILABLE FOR DOWNLOADING FROM THE INTERNET OR THE APPLICATION WILL BE FREE OF VIRUSES OR OTHER DESTRUCTIVE CODE. YOU ARE RESPONSIBLE FOR IMPLEMENTING SUFFICIENT PROCEDURES AND CHECKPOINTS TO SATISFY YOUR PARTICULAR REQUIREMENTS FOR ANTI-VIRUS PROTECTION AND ACCURACY OF DATA INPUT AND OUTPUT, AND FOR MAINTAINING A MEANS EXTERNAL TO OUR SITE FOR ANY RECONSTRUCTION OF ANY LOST DATA.
DISTRIX 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. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE APPLICATION OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE APPLICATION OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY APPLICATION LINKED TO IT.
YOUR USE OF ANY PART OF THE APPLICATION, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE APPLICATION IS AT YOUR OWN RISK. THE APPLICATION, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE APPLICATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE.”
BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER DISTRIX NOR ANY PERSON ASSOCIATED WITH DISTRIX MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE APPLICATION. WITHOUT LIMITING THE FOREGOING, NEITHER DISTRIX NOR ANYONE ASSOCIATED WITH DISTRIX REPRESENTS OR WARRANTS THAT THE APPLICATION, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE APPLICATION 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 APPLICATION OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE APPLICATION WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
AGAIN, THE MAXIMUM AMOUNT OF LIABILITY THAT DISTRIX MAY BE LIABLE TO YOU ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE APPLICATION WILL BE LIMITED TO THE AGGREGATE AMOUNT OF FEES PAID BY YOU TO DISTRIX IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
17. Limitation on Third Party Applications and Time for Filing
YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE DISTRIX SERVICES IS TO STOP USING THE DISTRIX SERVICES. YOU AGREE THAT DISTRIX HAS NO OBLIGATION OR LIABILITY ARISING FROM OR RELATED TO THIRD PARTY APPLICATIONS OR THE CONTENT THEREOF MADE AVAILABLE THROUGH OR IN CONNECTION WITH THE DISTRIX SERVICES, AND WHILE YOUR RELATIONSHIP WITH SUCH THIRD PARTY APPLICATIONS MAY BE GOVERNED BY SEPARATE AGREEMENTS WITH SUCH THIRD PARTIES, YOUR SOLE AND EXCLUSIVE REMEDY, AS WITH RESPECT TO DISTRIX, FOR ANY PROBLEMS OR DISSATISFACTION WITH THIRD PARTY APPLICATIONS OR THE CONTENT THEREOF, IS TO STOP USING ANY SUCH THIRD PARTY APPLICATIONS.
YOU AGREE THAT ANY CLAIM AGAINST DISTRIX MUST BE COMMENCED BY FILING A DEMAND FOR ARBITRATION UNDER SECTION (23.2.) OR FILING AN INDIVIDUAL ACTION UNDER SECTION (23.3) WITHIN ONE (1) YEAR AFTER THE DATE THE PARTY ASSERTING THE CLAIM FIRST KNOWS OR REASONABLY SHOULD KNOW OF THE ACT, OMISSION, OR DEFAULT GIVING RISE TO THE CLAIM; AND THERE SHALL BE NO RIGHT TO ANY REMEDY FOR ANY CLAIM NOT ASSERTED WITHIN THAT TIME PERIOD.
THIS SECTION APPLIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
18. Intellectual Property Rights
The Application and any of its 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 the Distrix, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
In consideration of your agreement to these Terms, We give You limited permission to access and/or use the Application. To the extent You are providing intellectual property to Us, You grant Us a license to use such intellectual property including copyright in connection with Our operation and provision of the Application, along with all right to copy, distribute and create derivative works of such intellectual property.
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 Application, unless permitted by the force of the law or judicial declaration. However, You may be allowed to print or download a copy of the directly related and relevant content of the Application for your own record keeping and not for further reproduction, publication or distribution.And You must only use the information generated by the Application solely for your own personal and non-commercial purpose, meaning You cannot do or cause to another to do the following - share, disclose, distribute, publish, sell or attempt to sell or resell any part of the material generated through or from the Application for any commercial value or other consideration.
Further, You are prohibited from copy, alter, or delete any part of the Application, including but not limited to information, material, or documents generated from or through the Application. Any use of material on the Application other than that set out in this section must first obtain written authorization from Distrix.
If You print, copy, modify, download or otherwise use or provide any other person with access to any part of the Application in breach of these Terms, your right to use the Application 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 Application or any content on the Application is transferred to You, and all rights not expressly granted are reserved by Distrix. Any use of the Application not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark and other laws.
You also agree and acknowledge that ‘DISTRIX’, the product and services name ‘AVER’, as well as any Distrix logo and all related names, product and service names, designs and slogans are trademarks of the Distrix or its licensors. You must not use such marks without the prior written permission of the Distrix. All other Distrix names, logos, product and service names, designs and slogans related to the Application are the trademarks of their respective owners.
Regarding the copyright, if You believe that any person or user has or suspect to have violated your copyright, please contact firstname.lastname@example.org for instructions on sending Us a notice of copyright infringement in order for Distrix to take the proper response, including but not limited to suspending or terminating the problematic account.
19. Prohibited Uses
In connection with your use of Distrix Services, You are prohibited from:
- using the Distrix Services other than for the purposes contemplated in these Terms;
- violating or circumventing any applicable laws, regulations or any technical measures, security measures or policies of the Distrix Services;
- violating, infringing, or breaching Our rights, other Users of the Distrix Services, or other third parties, including, but not limited to any copyrights, trademark rights, patent rights, trade secrets rights, rights of publicity or personality, moral rights, or any other proprietary rights of such persons or entities;
- accessing data not intended for You or logging onto a server or an account which You are not authorized to access;
- using any engine, software, tool, agent or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to access, navigate, or search the website, other than generally available third-party web browsers (e.g., Mozilla Firefox, Safari, Google Chrome and Microsoft Edge)
- using any device, software or routine to interfere or attempt to interfere with the proper working of the Distrix Services or any activity being conducted on or through the Distrix Services;
- attempting to probe, scan or test the vulnerability of Our system or network or to breach security or authentication measures without proper authorization;
- attempting to interfere with service to any User, host or network;
- sending unsolicited email, including promotions and/or advertising of products or services;
- copying, modifying, adapting, reproducing, reverse engineering, decompiling, disassembling, or preparing derivative works of Our software or content, or any content that is not your own;
- distributing viruses, malicious code, malware or any other technologies that may harm the Distrix Services or any other User of the Distrix Services;
- submitting to or through the Distrix Services any false, inaccurate, misleading, deceptive, defamatory, or libelous materials or content;
- collecting or harvesting any personally identifiable information, including account names or phone number of other users, from the Distrix Services, or soliciting, for commercial purposes, any Users of the Distrix Services with respect to their User Information; and
- Access, use or monitor Distrix Services for benchmarking or any direct competitive purposes.
20. Customer Support
For customer support with account-related and payment-related questions (“Customer Support Queries”), please submit a ticket to the Customer Service department using the Customer Service contact form on the About Us section of the Website. We will use reasonable endeavors to respond to all Customer Support Queries within a reasonable time frame, but We make no promises that any Customer Support Queries will be responded to within any particular time frame and/or that We will be able to answer any such queries.
21. Terms and Termination
These Terms will continue to apply to You until terminated by either You or Distrix. However, You acknowledge and agree that the perpetual license granted by You in relation to the Distrix Services is irrevocable and will therefore continue after expiry or termination of these Terms. Distrix may terminate these Terms or suspend Your access to the Distrix Services at any time, including in the event of Your actual or reasonably suspected unauthorized use of the Distrix Services or non-compliance with these Terms, or if We withdraw Services (in which case We shall provide You with reasonable notice in advance of doing so). If Distrix terminates these Terms, or if Distrix suspends Your access to the Distrix Services, You agree that Distrix shall have no liability or responsibility to You, and Distrix will not refund any amounts that You have already paid, to the fullest extent permitted under applicable law.
Neither these Terms nor any right, interest, or obligation herein may be assigned, transferred, or delegated to a third party without the prior written permission of the other party, and whose consent may be withheld for any reason. This section as well as any other sections of these Terms that, either explicitly or by their nature, must remain in effect even after termination of these Terms, shall survive termination.
22. Governing Law / Jurisdiction
These Terms (and any non-contractual disputes/claims arising out of or in connection with them) are subject to the laws of the state of New York, United States of America, without regard to choice or conflicts of law principles. Further, You and Distrix agree to the jurisdiction of the Southern District of New York to resolve any dispute, claim, or controversy that relates to or arises in connection with these Terms (and any non-contractual disputes/claims relating to or arising in connection with them) and is not subject to mandatory arbitration under Section 23. You expressly agree to waive any right to a trial by jury and to any objection to the exclusive jurisdiction provision on the basis of inconvenient forum or other legal theory.
23. Dispute Resolution and Arbitration Agreement
You and Distrix agree that any dispute, claim, or controversy between You and Distrix arising in connection with or relating in any way to these Terms or to your relationship with Distrix as a User of the Distrix Services (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination of these Terms) will be determined by mandatory binding individual (not class) arbitration as set forth in this Section 23 (“Arbitration Agreement”). You and Distrix further agree that the arbitrator shall have the exclusive power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the Arbitration Agreement or to the arbitrability of any claim or counterclaim. Arbitration is more informal than a lawsuit in court. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. There may be more limited discovery than in court. The arbitrator must follow these Terms and can award the same damages and relief as a court (including attorney fees), except that the arbitrator may not award any relief, including declaratory or injunctive relief, benefiting anyone but the parties to the arbitration. This arbitration provision will survive termination of these Terms.
23.1 No Class Or Representative Proceedings: Class Action Waiver
YOU AND DISTRIX AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both You and Distrix agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
23.2 Arbitration rules
Either You or Distrix may start arbitration proceedings. Any arbitration between You and Distrix will take place under the Consumer Arbitration Rules of the American Arbitration Association (“AAA”) then in force (the “AAA Rules”), as modified by this Arbitration Agreement. You and Distrix agree that the Federal Arbitration Act applies and governs the interpretation and enforcement of this provision (despite the choice of law provision above). The AAA Rules, as well as instructions on how to file an arbitration proceeding with the AAA, appear at adr.org, or You may call the AAA at 1-800-778-7879.
Any arbitration hearings will take place in New York County, New York and You may choose whether the arbitration will be conducted (1) solely on the basis of documents submitted to the arbitrator; (2) through a non-appearance based telephonic hearing; or (3) by an in-person hearing as established by the AAA Rules in New York County, New York
If You choose to file an arbitration proceeding and You are required to pay a filing fee. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
23.3 Notice; Process
A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail, Federal Express, UPS, or Express Mail (signature required), or in the event that We do not have a physical address on file for You, by electronic mail (“ Notice”). Distrix’s address for Notice is: Distrix, Attn: Legal Department, 28 Liberty Street, 6th Floor, New York, New York 10005, USA . The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought (“ Demand”). We agree to use good faith efforts to resolve the claim directly, but if We do not reach an agreement to do so within 30 days after the Notice is received, You or Distrix may commence an arbitration proceeding subject to these Terms. During the arbitration, the amount of any settlement offer made by You or Distrix shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event the dispute is finally resolved through arbitration in Your favor, and the arbitrator issues You an award that is greater than the value of Distrix’s last written settlement offer, then Distrix will instead pay You either the amount of the award or $1,000, whichever is greater. All documents and information disclosed in the course of the arbitration shall be kept strictly confidential by the recipient and shall not be used by the recipient for any purpose other than for purposes of the arbitration or the enforcement of the arbitrator’s decision and award and shall not be disclosed except in confidence to persons who have a need to know for such purposes or as required by applicable law.
If this Arbitration Agreement is invalidated in whole or in part, the parties agree that the exclusive jurisdiction and venue described in Section 22 shall govern any claim in court arising out of or related to these Terms.
24. California Residents
24.1 California Civil Code Section 1542 Waiver
If You are a California resident, You waive any protection available to You under California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if not known by him or her must have materially affected his settlement with the debtor.” Your waiver of all rights and benefits afforded by Section 1542 is done with the understanding and acknowledgment of the significance of such a specific waiver of Section 1542. This waiver also applies to any other relevant re-codification or similar laws implemented hereafter substantially covering the subject matter of Section 1542.
24.2 California Civil Code Section 1789.3 Notice
If You are a California resident, under California Civil Code Section 1789.3, You may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Distrix Services or to receive further information regarding use of the Distrix Services.
If there is any conflict or inconsistency between the main body of these Terms and exhibits or referenced documents to these Terms, the order of precedence of interpretation, to the extent of such conflict or inconsistency, shall be as follows: (1) these Terms and then (2) any exhibits or referenced documents to these Terms.
26. Force Majeure
Distrix shall not be responsible for any non-performance, delay in performance or inadequate performance caused by conditions beyond its reasonable control, including without limiting the generality of the foregoing, acts or omission of the landlord, acts of civil or military authority, state of war, acts of terrorism or other national emergency, strikes, boycotts or other concerted acts of workers, lockouts, failure of utilities or communications carriers, embargoes, insurrections or acts of God, fire, flood or enactment of laws, regulations or other order of public authorities.
27. No Publicity
Neither party shall, without the prior written consent of the other, save and except as may be required by law, publicize nor disclose the existence or terms of these Terms to any third party, other than on a confidential basis to its legal and financial advisors. In particular, no press releases, public announcements or public displays of any Services performed specifically by Distrix shall be made without the written agreement of Distrix.
28. Severability, Waiver and Interpretation.
Unless as otherwise stated in these Terms, should any provision of these Terms be held invalid or unenforceable for any reason or to any extent, such invalidity or enforceability shall not in any manner affect or render invalid or unenforceable the remaining provisions of these Terms, and the application of that provision shall be enforced to the extent permitted by law.
Any failure by Distrix or any third-party beneficiary to enforce these Terms or any provision thereof shall not waive Distrix’s or the applicable third-party beneficiary’s right to do so.
As used in these Terms, the words “include” and “including,” and variations thereof, will be deemed to be followed by the words “without limitation.”
29. Entire Agreement.
Other than as stated in this section or as explicitly agreed upon in writing between You and Distrix, these Terms constitute all the terms and conditions agreed upon between You and Distrix and supersede any prior agreements in relation to the subject matter of these Terms, whether written or oral. Headings are for reference only. There are no third-party beneficiaries to these Terms.
30. Contact Us.
If You have any questions concerning the Distrix Services or these Terms, please contact Distrix by visiting the About Us section of the Website.
If You are a California resident, You may have these Terms mailed to You electronically by sending a letter to Distrix, LLC, Attn: Legal Department, 28 Liberty Street, 6th Floor, New York, New York 10005, USA with Your email address and a request for the Terms. In addition, under California Civil Code Section 1789.3, You may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at 1-800-952-5210 in order to resolve a complaint regarding the service or to receive further information regarding use of the service.