Last Updated: July 5, 2024
These Terms of Service ("Terms") are a binding legal agreement between you and Factour, Inc. that govern the right to use the websites, applications, and other offerings from Factour, Inc. (collectively, the "Factour Platform"). When used in these Terms, "Factour," "we," "us," or "our" refers to Factour, Inc. with whom you are contracting.
The Factour Platform enables users ("Members") to publish, offer, search for, and hire/book services. Members who are licensed real estate agents or brokers that publish and offer services are "Agents" and Members who search for, hire/book, or use services are "Consumers." Agents offer property tours ("Tours"), or other professional real estate services (collectively, "Agent Services"). As the provider of the Factour Platform, Factour does not own, control, offer or manage any Tours or Agent Services. Factour is not a party to the contracts entered into directly between Agents and Consumers, nor is Factour a real estate broker. Factour is not acting as an agent in any capacity for any Member, except that Factour acts as a payment collection agent for Agents, which shall be further defined herein. To learn more about Factour’s role see Section 14.
We maintain other terms and policies that supplement these Terms in our Privacy Policy.
1.1 Tour Request. You can request to see properties that are available for sale or lease by indicating the address and providing a link to substantiate market availability. Providing a general request to the market for Agent Services allows all Agent’s that service the territory of the subject property, to view and bid on your request for proposal. As a Consumer you may review prospective Agent’s profiles, reviews, and pricing to select an Agent.
1.2 Confirming. When you confirm an Agent’s proposal for your Tour request, or an Agent accepts your direct proposal, you are agreeing to pay all charges for your booking including the Tour price, applicable fees like Factour’s Consumer Tour Request Fee (10.0% of the Tour price), taxes, and any other items identified during checkout (collectively, "Total Price"). The initial acceptance of an Agent’s proposal, or initial acceptance by an Agent of your direct proposal creates an Appointment.
When you receive confirmation from the Agent that the property is available, a contract for Agent Services (a "Confirmed Appointment") is formed directly between you and the Agent. By making a Confirmed Appointment you are agreeing to the terms of the contract. The terms of the contract include these Terms, all terms of the Confirmed Appointment, including without limitation, the cancellation policy and any other rules, standards, policies, or requirements identified in the Tour or during checkout that apply to the Confirmed Appointment. It is your responsibility to read and understand these Terms and all terms of the Appointment including all rules, standards, policies, and requirements prior to booking a Tour. Be aware that some Agents work with a co-Agent or as part of a team to provide their Agent Services.
1.3 Tour Appointment. The duration of a Tour Appointment is defined by the Consumer in the initial request when they create "timeslots" and is the maximum amount of time for the Tour. In the event the Tour Appointment is shorter than the allotted time, there shall be no proration, or refund for the unused time. If additional time is needed during the Tour Appointment, another request can be made directly to the touring Agent at that moment, or through another agreement between you and the Agent.
1.4 Appointments for Agent Services. An Agent Service Appointment entitles you to participate in, attend, or use that Agent Service. You are responsible for confirming that you, and anyone you invite, meet minimum age, proficiency, fitness, or other requirements necessary to view and tour the property. You are responsible for informing the Agent of any medical or physical conditions, or other circumstances that may impact your ability to participate, attend, or utilize Agent Services.
Some Agents may request or require you to sign additional agreements prior to providing certain Agent Services. Factour is not a party to these agreements and does not endorse the use of these additional agreements or forms. Further, we encourage you to ensure that you are comfortable with the terms of these additional agreements and if necessary, to obtain legal counsel and representation prior to entering any of these agreements with Agents.
2.1 Cancellations, Appointment Issues, and Refunds. In general, once a Tour is in the Confirmed Appointment status, no refund may be made and from the Consumer perspective, a Tour can become a Confirmed Appointment any time after you have created an Appointment with an Agent. As such, Consumers must ensure that they are comfortable with the terms and the Tour prior to accepting any Agent’s proposal.
This being the case, we encourage all Consumers to reschedule tours, instead of cancelling. By rescheduling the Tour Appointment, you can change the date and time of the Tour Appointment, as well as the property.
In the event an Agent cancels, or an Agent does not show up for the Confirmed Appointment, please contact us at help@factour.com.
2.2 Booking Modifications. Consumers and Agents are responsible for any booking modifications they agree to make via the Factour Platform or direct Factour customer service to make on their behalf ("Booking Modifications"), and agree to pay any additional amounts, fees, or taxes associated with any Booking Modification.
3.1 Your Responsibilities. You are responsible and liable for your own acts and omissions and are also responsible for the acts and omissions of anyone you invite to join or provide access to any Tour, and facilities where the Tour is located that the Agent and Consumer are legally entitled to use in connection with the Tour, or any other Agent Service.
3.2 Your Assumption of Risk. You acknowledge that many activities carry inherent risks and agree that, to the maximum extent permitted by applicable law, you assume the entire risk arising out of your access to and use of the Factour Platform and any Content (as defined in Section 9), including your Tour, use of any other Agent Service, or any other interaction you have with other Members whether in person or online. This means it is your responsibility to investigate an Agent Service to determine whether it is suitable for you. For example, Agent Services may carry risk of illness, bodily injury, disability, or death, and you freely and willfully assume those risks by choosing to participate in those Agent Services.
4.1 Brokers and Agents. As an Agent, Factour offers you the right to use the Factour Platform in accordance with these Terms to Tour, or provide other Agent Services with our vibrant community of Consumers - and earn money doing it. It’s easy to respond to a Tour request and you are in control of setting your price and availability for each Tour.
Factour recognizes that most states and jurisdictions do not allow Agents to be paid directly for Agent Services and payment must be made to a managing broker ("Broker"). As such, if you are a Broker, and/or able to receive payment for Agent Services directly, then you should register as a Broker on the Factour Platform. By doing this, payment will be made directly to you. Registered Factour Brokers have the same functionality as an Agent, but are also able to receive payment directly and can receive payment for Agent Services provided by Agents they have approved to work under their profile. This being the case, unless explicitly noted, any references to an Agent in these Terms shall also apply to Brokers.
In the event you are an Agent working under a Broker, register as an Agent and once your Broker registers on the Factour Platform, then you will be able to provide Agent Services and payments for your Agent Services will be paid directly to your Broker. Factour is not a party to agreements between you and your Broker.
4.2 Contracting with Consumers. When you accept an Appointment request, or receive an Appointment confirmation through the Factour Platform, you are entering into a contract directly with the Consumer, and are responsible for delivering the Agent Service under the terms and at the price specified in the accepted and final proposal. You are also agreeing to pay Factour’s Agent service fee of 6.75% of the Tour price (and applicable taxes) defined in the Consumer or Agent proposal. Factour will deduct amounts you owe from your payout unless we and you agree to a different method. Within two hours of the Confirmed Appointment, the amounts you have earned should show within your broker’s Stripe dashboard, and while the intent is always to get you your money as soon as possible, due to Stripe policies, the money may not be available for payout for seven business days.
4.3 Independence of Agents. Your relationship with Factour is that of an independent individual or entity and not an employee, agent, joint venturer, or partner of Factour, except that Factour acts as a payment collection agent for Agent Services. Factour does not direct or control your Agent Service, and you understand that you have complete discretion whether and when to provide Agent Services, and at what price and on what terms to offer them.
5.1 Creating and Managing Your Tour. The Factour Platform provides tools that make it easy for you to set up and manage a Tour. Your Tour must include complete and accurate information about your Agent Service, your price, and any rules or requirements that apply to your Consumers or Tour. You are responsible for your acts or omissions as well as keeping your Tour information (including timeslot/calendar availability) and profile up-to-date and accurate at all times. As an Agent, after an Appointment is made, you are responsible for confirming with the subject property owner or agent that the property is available to tour at the Appointment time. In the event the property is not available, you can propose a new time, or cancel the Appointment. If the property is available, then you can confirm the Appointment, at which point, it becomes a Confirmed Appointment.
You are responsible for obtaining and maintaining appropriate licensure and insurance for your Agent Services and we suggest you carefully review policy terms and conditions including coverage details and exclusions.
5.2 Know Your Legal Obligations. You are responsible for understanding and complying with any laws, rules, regulations, and contracts with third parties that apply to your Tour or Agent Services. You are responsible for handling and using personal data of Consumers and others in compliance with applicable privacy laws and these Terms. If you have questions about how local laws apply you should always seek legal advice.
5.3 Your Responsibilities. You are responsible and liable for your own acts and omissions and are also responsible for the acts and omissions of anyone you allow to participate in providing your Agent Services. You are responsible for setting your price and establishing rules and requirements for your Tour. You must describe any and all fees and charges in your Tour proposal. Do not encourage Consumers to create third-party accounts, submit reviews, provide their contact information, or take other actions outside the Factour Platform in violation of these Terms.
5.4 Providing Agent Services as a Team or Organization. If you work with a co-Agent or Agent as part of a team, business, or other organization, you are responsible and liable as an Agent under these Terms for the acts and omissions of each entity and individual who participates in providing your Agent Services and you are responsible for informing personnel engaged by you to deliver any Agent Services of your obligations under these Terms. If you accept terms or enter into contracts with third parties, you represent and warrant that you are authorized to enter into contracts for and bind your team, business or other organization, and that each entity you use is in good standing under the laws of the place where it is established. If you perform other functions, you represent and warrant that you are authorized to perform those functions. If you instruct Factour to transfer a portion of your payout to a co-Agent or other Agents, or send payments to someone else, you must be authorized to do so, and are responsible and liable for the payment amounts and accuracy of any payout information you provide.
5.5 Your Assumption of Risk. You acknowledge that Agent Services carry inherent risks and agree that you assume the entire risk arising out of your access to and use of the Factour Platform, offering Agent Services, or any interaction you have with other Members whether in person or online. You agree that you have had the opportunity to investigate the Factour Platform and any laws, rules, regulations, or obligations that may be applicable to your Tours or Agent Services and that you are not relying upon any statement of law made by Factour.
6.1 Cancellations and Appointment Issues. In general and unless the acts of the Agent contributed to the cancellation in any way, if a Consumer cancels a Confirmed Appointment within two hours of the Tour, the amount paid to you should be the amount agreed to at the Confirmed Appointment stage. As an Agent, you should not cancel on a Consumer without a valid reason and cancelling more than three Confirmed Appointments may lead to the suspension or removal of an Agent offering Agent Services on the Factour Platform.
6.2 Booking Modifications. Agents and Consumers are responsible for any Booking Modifications they agree to make via the Factour Platform or direct Factour customer service to make on their behalf, and agree to pay any additional amounts, fees or taxes associated with a Booking Modification. A Consumer may request to reschedule their Confirmed Appointment under the same proposal and terms (location, duration, Agent Fee, etc.), and if accepted by the Agent, then the Consumer would not be charged an additional fee.
7.1 Agent Taxes. As an Agent, you are responsible for determining and fulfilling your obligations under applicable laws to report, collect, remit, or include in your price any applicable direct or other indirect taxes ("Taxes").
7.2 Collection and Remittance by Factour. In jurisdictions where Factour facilitates the collection and/or remittance of Taxes on behalf of Agents, you instruct and authorize Factour to collect Taxes on your behalf, and/or to remit such Taxes to the relevant Tax authority. Any Taxes that are collected and/or remitted by Factour are identified to Members on their transaction records, as applicable. Factour may seek additional amounts from Members (including by deducting such amounts from future payouts) when the Taxes collected and/or remitted are insufficient to fully discharge that Members’ tax obligations, and you agree that your sole remedy for Taxes collected by Factour is a refund from the applicable Tax authority. You acknowledge and agree that we retain the right, with prior notice to affected Members, to cease the collection and remittance of Taxes in any jurisdiction for any reason.
7.3 Tax Information. In certain jurisdictions, Tax regulations may require that we collect and/or report Tax information about you, or withhold Taxes from payouts to you, or both. If you fail to provide us with documentation that we determine to be sufficient to support any such obligation to withhold Taxes from payouts to you, we may withhold payouts up to the amount as required by law, until sufficient documentation is provided. You agree that Factour may issue on your behalf invoices or similar documentation for VAT, GST, consumption or other Taxes for your Agent Services to facilitate accurate tax reporting.
After each Tour Appointment, Consumers and Agents will have an opportunity to review each other. Your Review must be accurate and may not contain any discriminatory, offensive, defamatory, or other language that violates these Terms, applicable law. Reviews are not verified by Factour for accuracy and may be incorrect or misleading.
Parts of the Factour Platform enable you to provide feedback, text, photos, audio, video, information, and other content ("Content"). By providing Content, in whatever form and through whatever means, you grant Factour a non-exclusive, worldwide, royalty-free, perpetual, sub-licensable and transferable license to access, use, store, copy, modify, prepare derivative works of, distribute, publish, transmit, stream, broadcast, and otherwise exploit, in any manner such that Content to provide and/or promote the Factour Platform, in any media or platform, known or unknown to date and in particular on Internet and social networks. If Content includes personal information, such Content will only be used for these purposes if such use complies with applicable data protection laws in accordance with our Privacy Policy. Where Factour pays for the creation of Content or facilitates its creation, Factour may own that Content, in which case supplemental terms or disclosures will say that. You are solely responsible for all Content that you provide and warrant that you either own it or are authorized to grant Factour the rights described in these Terms. You are responsible and liable if any of your Content violates or infringes the intellectual property or privacy rights of any third party. Content which among other things is, discriminatory, obscene, harassing, deceptive, violent, and illegal is prohibited. You agree that Factour may make available services or automated tools to translate Content and that your Content may be translated using such services or tools. Factour does not guarantee the accuracy or quality of translations and Members are responsible for confirming the accuracy of such translations.
Factour may charge fees (and applicable Taxes) to Agents and Consumers for the right to use the Factour Platform. Any applicable fees are disclosed to Consumers before making an Appointment. Except as otherwise provided on the Factour Platform, Tour Request Fees, and service fees are non-refundable. Factour reserves the right to change the service fees at any time, and will provide Members notice of any fee changes before they become effective. Fee changes will not affect bookings made prior to the effective date of the fee change. If you disagree with a fee change you may terminate this agreement at any time pursuant to Section 12.2.
11.1 Rules. You must follow these rules and must not help or induce others to break or circumvent these rules.
11.2 Reporting Violations. If you believe that a Member, Tour or Content poses an imminent risk of harm to a person or property, you should immediately contact local authorities before contacting Factour. In addition, if you believe that a Member, Tour or Content has violated our Terms or Privacy Policy, you should report your concerns to Factour. If you reported an issue to local authorities, Factour may request a copy of that report. Except as required by law, we are not obligated to take action in response to any report.
11.3 Copyright Notifications. If you believe that Content on the Factour Platform infringes copyrights, please notify us in accordance with these Terms.
12.1 Term. The agreement between you and Factour reflected by these Terms is effective when you access the Factour Platform (for example to create an account) and remains in effect until either you or we terminate the agreement in accordance with these Terms.
12.2 Termination. You may terminate this agreement at any time by sending an email to us at help@factour.com or by deleting your account. Factour may terminate this agreement and your account for any reason by providing you 30 days’ notice via email or using any other contact information you have provided for your account. Factour may also terminate this agreement immediately and without notice and stop providing access to the Factour Platform if you breach these Terms, you violate our Privacy Policy, you violate applicable laws, or we reasonably believe termination is necessary to protect Factour, its Members, or third parties. If your account has been inactive for more than two years, we may terminate your account without prior notice.
12.3 Member Violations. If (i) you breach these Terms, or our Privacy Policy, (ii) you violate applicable laws, regulations, or third-party rights, or (iii) Factour believes it is reasonably necessary to protect Factour, its Members, or third parties; Factour may, with or without prior notice:
For minor violations or where otherwise appropriate as Factour determines in its sole discretion, you will be given notice of any intended measure by Factour and an opportunity to resolve the issue. You may appeal actions taken by us under this Section by contacting customer service. If a Confirmed Appointment is canceled under this Section, the amount paid to the Agent will be reduced by the amount we refund or otherwise provide to the Consumer, and by any other costs we incur as a result of the cancellation.
12.4 Legal Mandates. Factour may take any action it determines is reasonably necessary to comply with applicable law, or the order or request of a court, law enforcement, or other administrative agency or governmental body, including the measures described above in Section 12.3.
12.5 Effect of Termination. If you are an Agent and terminate your Factour account, any Confirmed Appointment(s) will be automatically canceled and your Consumers will receive a full refund. If you terminate your account as a Consumer, any Confirmed Appointment(s) will be automatically canceled without refund. When this agreement has been terminated, you are not entitled to a restoration of your account or any of your Content. If your access to or use of the Factour Platform has been limited, or your Factour account has been suspended, or this agreement has been terminated by us, you may not register a new account or access or use the Factour Platform through an account of another Member.
12.6 Survival. Parts of these Terms that by their nature survive termination, will survive termination of this agreement, including Sections 1 through 21.
Factour may modify these Terms at any time. When we make material changes to these Terms, we will post the revised Terms on the Factour Platform and update the "Last Updated" date at the top of these Terms. We will also provide you with notice of any material changes by email, notifications through the Factour Platform, messaging service, or any other contact method made available by us and selected by you at least 30 days before the date they become effective. If you disagree with the revised Terms, you may terminate this agreement immediately as provided in these Terms. If you do not terminate your agreement before the date the revised Terms become effective, your continued access to or use of the Factour Platform will constitute acceptance of the revised Terms.
We offer you the right to use a platform that enables Members to publish, offer, search for, and book Agent Services. While we work hard to ensure our Members have great Agent Services using Factour, we do not and cannot control the conduct of Consumers and Agents. You acknowledge that Factour has the right, but does not have any obligation, to monitor the use of the Factour Platform and verify information provided by our Members. For example, we may review, disable access to, remove, or edit Content to: (i) operate, secure and improve the Factour Platform (including for fraud prevention, risk assessment, investigation and customer support purposes); (ii) ensure Members’ compliance with these Terms; (iii) comply with applicable law or the order or requirement of a court, law enforcement or other administrative agency or governmental body; (iv) address Content that we determine is harmful or objectionable; (v) take actions set out in these Terms; and (vi) maintain and enforce any quality or eligibility criteria, including by removing Tours that don’t meet quality and eligibility criteria. Members acknowledge and agree that Factour administers its Privacy Policy, including decisions about whether and how to apply them to a particular situation, at its sole discretion. Members agree to cooperate with and assist Factour in good faith, and to provide Factour with such information and take such actions as may be reasonably requested by Factour with respect to any investigation undertaken by Factour regarding the use or abuse of the Factour Platform.
Factour is not acting as an agent for any Member except that Factour acts as a limited authorized agent of the Agent for the purpose of accepting payments from Consumers on behalf of the Agents and is responsible for transmitting such payments to the Agent, and each Agent hereby appoints Factour as the Agent’s limited agent solely for the purpose of collecting payments made by Consumers on behalf of the Agent.
You must register an account to access and use many features of the Factour Platform. Registration is only permitted for legal entities, partnerships and natural persons who are 18 years or older. You represent and warrant that you are not a person or entity barred from using the Factour Platform under the laws of the United States, your place of residence, or any other applicable jurisdiction. You must provide accurate, current, and complete information during registration and keep your account information up-to-date. You may not transfer your account to someone else. You are responsible for maintaining the confidentiality and security of your account credentials and may not disclose your credentials to any third party. You are responsible and liable for activities conducted through your account and must immediately notify Factour if you suspect that your credentials have been lost, stolen, or your account is otherwise compromised. If and as permitted by applicable law, we may, but have no obligation to (i) ask you to provide identification or other information, (ii) undertake checks designed to help verify your identity or background, (iii) screen you against third-party databases or other sources and request reports from service providers, and (iv) obtain reports from public records of criminal convictions or sex offender registrations or their local equivalents.
We provide the Factour Platform and all Content "as is" without warranty of any kind and we disclaim all warranties, whether express or implied. For example: (i) we do not endorse or warrant the existence, conduct, performance, safety, quality, legality or suitability of any Consumer, Agent, Agent Service, Tour or third party; (ii) we do not warrant the performance or non-interruption of the Factour Platform; and (iii) we do not warrant that verification, identity or background checks conducted on Tours or Members (if any) will identify past misconduct or prevent future misconduct. Any references to a Member or Tour being "verified" (or similar language) indicate only that the Member or Tour or Factour has completed a relevant verification or identification process relative to the Tour and nothing else. The disclaimers in these Terms apply to the maximum extent permitted by law. If you have statutory rights or warranties Factour cannot disclaim, the duration of any such statutorily required rights or warranties, will be limited to the maximum extent permitted by law.
Neither Factour (including its affiliates and personnel) nor any other party involved in creating, producing, or delivering the Factour Platform or any Content will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with (i) these Terms, (ii) the use of or inability to use the Factour Platform or any Content, (iii) any communications, interactions or meetings you may have with someone you interact or meet with through, or as a result of, your use of the Factour Platform, or (iv) publishing or booking of a Tour, including the provision or use of Agent Services, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Factour has been informed of the possibility of such damage, even if a limited remedy set out in these Terms is found to have failed of its essential purpose.
Except for our obligation to transmit payments to Agents under these Terms, in no event will Factour’s aggregate liability for any claim or dispute arising out of or in connection with these Terms, your interaction with any Members, or your use of or inability to use the Factour Platform, any Content, or any Agent Service, exceed: (A) to Consumers, the amount you paid as a Consumer during the 12-month period prior to the event giving rise to the liability, (B) to Agents, the amount paid to you as a Agent in the 12-month period prior to the event giving rise to the liability, or (C) to anyone else, one hundred U.S. dollars (US$100).
These limitations of liability and damages are fundamental elements of the agreement between you and Factour. If applicable law does not allow the limitations of liability set out in these Terms, the above limitations may not apply to you.
To the maximum extent permitted by applicable law, you agree to release, defend (at Factour’s option), indemnify, and hold Factour (including Factour Payments, other affiliates, and their personnel) harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with: (i) your breach of these Terms (including any supplemental or additional terms that apply to a product or feature) or our Privacy Policy, (ii) your improper use of the Factour Platform, (iii) your interaction with any Member, Tour, or other Agent Service, including without limitation any injuries, losses or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of such interaction, Tour, participation or use, (iv) your failure, or our failure at your direction, to accurately report, collect or remit Taxes, or (v) your breach of any laws, regulations or third party rights such as intellectual property or privacy rights.
These Terms will be interpreted in accordance with the laws of the State of Tennessee and the United States of America, without regard to conflict-of-law provisions. Judicial proceedings (other than small claims actions) that are excluded from the arbitration agreement in Section 20 must be brought in state or federal court in Knoxville, Tennessee, unless we both agree to some other location. You and we both consent to venue and personal jurisdiction in Knoxville, Tennessee.
PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY PROVIDE THAT YOU AND FACTOUR AGREE TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION AND INCLUDE A CLASS ACTION WAIVER AND JURY TRIAL WAIVER. This Arbitration Agreement supersedes all prior versions.
20.1 Overview of Dispute Resolution Process. Factour is committed to participating in a consumer-friendly dispute resolution process. To that end, these Terms provide for a two-part process for individuals to whom this Section 20 applies: (1) an informal negotiation directly with Factour’s customer service team (described in paragraph 20.3, below), and if necessary (2) a binding arbitration in accordance with the terms of this Arbitration Agreement. You and Factour each retain the right to seek resolution of the dispute in small claims court as an alternative to arbitration.
20.2 Mandatory Pre-Arbitration Dispute Resolution and Notification. At least 30 days prior to initiating an arbitration, you and Factour each agree to send the other party an individualized notice of the dispute in writing ("Pre-Dispute Notice") and attempt in good faith to negotiate an informal resolution of the individual claim.
20.3 Agreement to Arbitrate. You and Factour mutually agree that any dispute, claim or controversy arising out of or relating to these Terms or the applicability, breach, termination, validity, enforcement or interpretation thereof, or any use of the Factour Platform, Agent Services, or any Content (collectively, "Disputes") will be settled by binding arbitration on an individual basis (the "Arbitration Agreement"). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to a Dispute, you and Factour agree that an arbitrator will decide that issue. For the avoidance of doubt, you and Factour agree that any question regarding arbitrability and the formation, enforceability, validity, scope, or interpretation of all or part of this Section 20, including any dispute over compliance with the Pre-Dispute Notice requirement and a party’s responsibility to pay arbitration fees, shall be resolved exclusively by an arbitrator.
20.4 Arbitration Forum Rules and Governing Law. This Arbitration Agreement evidences a transaction in interstate commerce and the Federal Arbitration Act governs all substantive and procedural interpretation and enforcement of this Arbitration Agreement, and not state law. The arbitration will be administered by ADR Services, Inc. ("ADR") (www.adrservices.com) in accordance with Rules 1, 6–7, 8–9, and 11–12, 45, 54, and 56 of the Federal Rules of Civil Procedure ("Selected Federal Rules") (https://www.uscourts.gov/rules-policies/current-rules-practice-procedure/federal-rules-civil-procedure) and ADR’s Arbitration Rules then in effect (the "ADR Rules"), except as the Selected Federal Rules or ADR Rules are modified by or conflict with this Arbitration Agreement. The ADR Rules are available at www.adrservices.com. If an arbitration demand is submitted to ADR Services in accordance with this agreement and the ADR Rules, and ADR Services cannot or will not administer the arbitration, the arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Selected Federal Rules and the AAA’s Consumer Arbitration Rules and/or other AAA arbitration rules determined to be applicable by the AAA (the "AAA Rules") then in effect, except as modified here. The AAA Rules are available at www.adr.org. If the AAA cannot and will not administer the arbitration, you and Factour shall confer and select an alternative arbitral forum, and if we are unable to agree, either you or Factour may ask a court to appoint an arbitrator pursuant to 9 U.S.C. § 5. In that event, the arbitration will be conducted in accordance with the rules of the appointed arbitral forum, unless those rules are inconsistent with the provisions of this Arbitration Agreement.
20.5 Modification of Arbitration Rules - Arbitration Fees and Costs. Your arbitration fees and your share of arbitrator compensation shall be governed by the ADR Rules and the ADR Services fee schedule (available at www.adrservices.com). If you have a gross monthly income of less than 300% of the federal poverty guidelines, you are entitled to a waiver of arbitration fees and costs, exclusive of arbitrator fees. You may request a fee waiver by providing the arbitration provider with a declaration under oath stating your monthly income and the number of persons in your household. If a fee waiver is granted by the arbitration provider and you provide Factour with documents necessary to prove that your gross monthly income is less than 300% of the federal poverty guidelines, Factour will pay your share of any arbitrator fees.
20.6 Arbitrator’s Decision. The arbitrator will issue a written decision which shall include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award any relief allowed by law or the ADR Rules, but declaratory or injunctive relief may be awarded only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
20.7 Jury Trial Waiver. You and Factour acknowledge and agree that both parties are each waiving the right to a trial by jury as to all arbitrable Disputes.
20.8 No Class Actions or Representative Proceedings. You and Factour acknowledge and agree that, to the fullest extent permitted by law, we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney general action, or any other representative or consolidated proceeding. Unless we agree in writing or as provided in this agreement, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If there is a final judicial determination that applicable law precludes enforcement of the waiver contained in this paragraph as to any claim, cause of action or requested remedy, then that claim, cause of action or requested remedy, and only that claim, cause of action or requested remedy, will be severed from this agreement to arbitrate and will be brought in a court of competent jurisdiction. In the event that a claim, cause of action or requested remedy is severed pursuant to this paragraph, then you and we agree that the claims, causes of action or requested remedies that are not subject to arbitration will be stayed until all arbitrable claims, causes of action and requested remedies are resolved by the arbitrator.
20.9 Mass Action Waiver. You and Factour acknowledge and agree that the relative benefits and efficiencies of arbitration may be lost when 100 or more arbitration claims are filed within 180 days which (1) involve the same or similarly situated parties; (2) are based on the same or similar claims which arise from the same or substantially identical transactions, incidents, alleged violations or events requiring the determination of the same or substantially identical questions of law or fact; and (3) involve the same or coordinated counsel for the parties ("Mass Action"). Accordingly, you and Factour agree to waive the right to have any Dispute administered, arbitrated, or resolved as part of a Mass Action (though Sections 21 of these Terms will continue to apply to the Dispute). In case of a dispute, the appointed arbitrator for the first matter instituted within a set of claims identified by either party shall decide whether those claims are part of a Mass Action. If no arbitrator has yet been appointed, an arbitrator shall be appointed solely to determine whether claims identified by either party are part of a Mass Action. Nothing in this provision prevents you or Factour from participating in a mass settlement of claims.
20.10 Modifications of Arbitration Rules - Offers of Judgment. At least 10 days before the date set for the arbitration hearing, you or Factour may serve a written offer of judgment on the other party to allow judgment on specified terms. If the offer is accepted, the offer with proof of acceptance shall be submitted to the arbitration provider, who shall issue an award accordingly. If the offer is not accepted prior to the arbitration hearing or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn and cannot be given as evidence in the arbitration, other than with respect to costs (including all fees paid to the arbitration provider). If an offer made by one party is not accepted by the other party, and the other party fails to obtain a more favorable award, the other party shall not recover their post-offer costs and shall pay the offering party’s costs (including all fees paid to the arbitration provider) from the time of the offer.
20.11 Severability. Except as provided in Section 20.8, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision will be severed and the remainder of the Arbitration Agreement will be given full force and effect.
20.12 Survival. Except as provided in Section 20.2 and subject to Section 12.6, this Section 20 will survive any termination of these Terms and will continue to apply even if you stop using the Factour Platform or terminate your Factour account.
21.1 Interpreting these Terms. Except as they may be supplemented by additional terms, conditions, policies, guidelines, standards, and in-product disclosures, these Terms (including those items incorporated by reference) constitute the entire agreement between Factour and you pertaining to your access to or use of the Factour Platform and supersede any and all prior oral or written understandings or agreements between Factour and you. These Terms do not and are not intended to confer any rights or remedies upon anyone other than you and Factour. If any provision of these Terms is held to be invalid or unenforceable, except as otherwise indicated in Section 20.8 above, such provision will be struck and will not affect the validity and enforceability of the remaining provisions. Where the word "will" is used in these Terms it connotes an obligation with the same meaning as "shall."
21.2 No Waiver. Factour’s failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise permitted under law.
21.3 Assignment. You may not assign, transfer or delegate this agreement or your rights and obligations hereunder without Factour's prior written consent. Factour may without restriction assign, transfer or delegate this agreement and any rights and obligations hereunder, at its sole discretion, with 30 days’ prior notice.
21.4 Notice. Unless specified otherwise, any notices or other communications to Members permitted or required under this agreement, will be provided electronically and given by Factour via email, Factour Platform notification, messaging service (including SMS and WeChat), or any other contact method we enable and you provide.
21.5 Third-Party Services. The Factour Platform may contain links to third-party websites, applications, services or resources ("Third-Party Services") that are subject to different terms and privacy practices. Factour is not responsible or liable for any aspect of such Third-Party Services and links to such Third-Party Services are not an endorsement.
21.6 Google Terms. Some translations on the Factour Platform are powered by Google. Google disclaims all warranties related to the translations, express or implied, including any warranties of accuracy, reliability, and any implied warranties for merchantability, fitness for a particular purpose and non-infringement. Some areas of the Factour Platform implement Google Maps/Earth/Geocoding mapping services, including Google Maps API(s). Your use of Google Maps/Earth is subject to the Google Maps/Google Earth Additional Terms of Service.
21.7 Stripe Terms. Payment processing services on the Factour Platform are handled and processed by Stripe. Your use as a Consumer of Stripe’s payment processing and your use as an Agent of Stripe’s payment receipt and processing services is subject to the Stripe Services Agreement – United States.
21.8 Platform Content. Content made available through the Factour Platform, including without limitation trademarks, trade dress, inventions, algorithms, computer programs (in source code and object code), customer and marketing information and other content ("Platform Content"), whether registered or unregistered, which may be protected by copyright, trademark, patent, trade secrets, know how, and/or other laws of the United States and other countries. You acknowledge that all intellectual property rights for that Platform Content are the exclusive property of Factour and/or its licensors and agree that you will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices. You may not use, copy, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit any Platform Content accessed through the Factour Platform except to the extent you are the legal owner of that Platform Content or as expressly permitted in these Terms. Subject to your compliance with these Terms, Factour grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to (i) download and use the Application on your personal device(s); and (ii) access and view the Platform Content made available on or through the Factour Platform and accessible to you, solely for your personal and non-commercial use.
21.9 Force Majeure. Factour shall not be liable for any delay or failure to perform resulting from abnormal or unforeseeable circumstances outside its reasonable control, the consequences of which would have been unavoidable despite all efforts to the contrary, including, but not limited to, acts of God, natural disasters, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, pandemics, epidemics or disease, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
21.10 Emails and SMS. You will receive administrative communications from us using the email address or other contact information you provide for your Factour account. Enrollment in additional email subscription programs will not affect the frequency of these administrative emails, though you should expect to receive additional emails specific to the program(s) to which you have subscribed. You may also receive promotional emails from us. No fee is charged for these promotional emails, but third-party data rates could apply.
21.11 Contact Us. If you have any questions about these Terms, please email us at help@factour.com.