This agreement establishes a referral arrangement between you and DishTheDeal. You (and your broker if applicable) agree to the following:
Welcome to DishTheDeal.com. ("DishTheDeal", "DishTheDeal.com", "we", "us", or "our"), governs your ("you") use of this website, and supersedes any and all prior agreements, written or oral, between you and DishTheDeal.com regarding the subject matter of this website (including, without limitation, any prior versions of these Terms). Your use of our website is conditioned on your acceptance without modification of the terms, conditions, and notices contained in these Terms of Use ("Terms") and our Privacy Policy. By registering, accessing, browsing, using this website, or participating with the DishTheDeal service in whole or in part, you acknowledge that you have read, understand, and agree to comply with the terms and conditions stated here. This is a legally binding contractual agree with us. If you do not agree to be bound by these Terms, do NOT use or access our website or any services. These terms are subject to change at any time. We will update the date of the last update to this Agreement and your continued use of this website reflects your acceptances of any new terms or conditions. We will notify you of such changes via an email sent to the email address we have on file for you or via other notification mechanisms. If there is a conflict between these Terms and the Privacy Policy, the Privacy Policy supersedes any conflicting terms in these Terms with respect to the subject matter covered by the Privacy Policy.
DishTheDeal.com is an online network of real estate professionals that acts as the mediator to connect the home consumer to real estate professionals who match the home buyer’s or seller’s needs. Our services are provided free of charge to individual home sellers and buyers. When real estate professionals submit home buyers or home sellers, we find an agent to help based on the home buyers’ or sellers’ geographical preferences. The terms of any agreement off the DishTheDeal Network (including, without limitation, lender relationships or any real estate professionals’ actions) are not endorsed or otherwise known to or by DishTheDeal.
3.1 Availability
Subject to your compliance with these Terms, including payment obligations, we will make available a subscription to DishTheDeal, provided you are a resident of or domiciled in the United States as a licensed real estate professional. You acknowledge that your decision to use DishTheDeal is not reliant or dependent on the availability of any current or future functionality or features, or on any oral or written public or private comments or representations made by us. You may not use DishTheDeal if you are barred from doing so under applicable law or these Terms. If you are using DishTheDeal on behalf of a company, you warrant that you have full power and authority to bind such company to these terms. DishTheDeal is not intended for and should not be used by anyone under the age of 18. You represent and warrant that all information you submit to us, including information submitted during registration, is true, accurate, complete, and not misleading, that you will maintain and update such information as necessary, and that you are not impersonating another.
3.2 Consent to Emails, Texts, and Phone Calls
You agree and consent to receive email, text messages, and phone calls from us which may be transactional, for account management purposes, or for communications relating to or provided as part of DishTheDeal, including notifications related to Support Services, administrative notices, and service announcements or changes.
3.4 Reservation of Rights
We retain all right, title, and interest in and to DishTheDeal and our Content, and all associated intellectual property rights. The user interface, user experience, presentation layer and elements, reports, layouts, and screen displays of or generated by DishTheDeal are our copyrightable content, our trade dress and our trademarks and service marks. You will not use, reproduce, distribute, or deploy DishTheDeal, except for your own personal use or your own business operations, and solely in accordance with these Terms.
4.1 Communications
You represent and warrant you have obtained all consents required from third parties to permit them to be contacted for any purpose, including via phone, text and email, and through the use of automated processes or technology. You agree that to the extent we contact or assist in contacting third parties on your behalf, and that you will be the maker, initiator and/or sender of any calls, texts and/or emails, and not DishTheDeal. You agree that we shall have no liability to you, your business leads or any third parties that arises from or relates to your failure to obtain any consents as required by this section.
4.2 Necessary Systems
Access to and ability to effectively use DishTheDeal is conditioned on your procurement of all necessary system, hardware, software, operating environment, Other Applications, connectivity, and network access. You acknowledge that use of DishTheDeal requires connection to, and data transfers over, the network and therefore may impact your data usage charges imposed by your wireless operator or other service provider, and may impact usage limitations imposed by Other Applications.
4.3 Feedback
You agree that we may freely use and exploit in perpetuity any feedback, requirements, recommendations, ideas, bug fixes, reviews, ratings, comments, suggestions, or improvements, that you, or any employee or agent thereof, may at any time disclose or submit to us relating to DishTheDeal for our business purposes, including for product licensing, support and development, without any obligation or payment to you.
4.4 Information
You hereby consent to our collection and use of anonymized data (including meta-data, analytical, diagnostic and technical data, and usage statistics) concerning or arising from your use of DishTheDeal in order to provide the functionality of and improve the DishTheDeal Network, for product development and marketing purposes, to protect against spam and malware, and for verifying Terms compliance.
4.5 Unauthorized Use
You will not use DishTheDeal or participate in any activities via the DishTheDeal Network in a manner that is likely to be prohibited by law or these Terms or violative of third party rights in any applicable jurisdiction, including intellectual property rights. Your use of DishTheDeal must be in full compliance with applicable law, including without limitation, as applicable, the US Telephone Consumer Protection Act and the US CAN-SPAM Act. You are solely responsible for the accuracy, quality and legality of the Other Applications. You will not use, or enable or permit the use of DishTheDeal to store or transmit infringing, libelous, offensive or otherwise unlawful or tortious material or data or in violation of privacy rights, or to transmit malicious code, viruses, time bombs, Trojan horses, or similar mechanisms, scripts, agents, bots or programs. You will not use or access DishTheDeal: (a) if you are a direct competitor of us or operating on behalf of such a direct competitor; or (b) for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes.
4.6 Notifications to You
For purposes of service messages and notices about DishTheDeal to you, we may place a banner notice across site pages to alert you to certain changes such as modifications to these Terms. Alternatively, notice may consist of an email from us to an email address associated with your account, even if we have other contact information. You also agree that we may communicate with you in relation to your account and these Terms through your account or through other contact information that you have provided to us, including email, mobile number, telephone, or delivery services.
4.7 Notifications to Us
If you believe that you are entitled or obligated to act contrary to these Terms under any mandatory or applicable law, you agree to provide us with detailed and substantiated explanation of your reasons in writing at least thirty days before you act, to allow us to assess whether we may, at our sole discretion, provide an alternative remedy for the situation, though we are under no obligation to do so. To be effective, notices to us must be sent to support@dishthedeal.com.
4.8 Referral Arrangement
By submitting or sending leads as well as receiving leads from the DishTheDeal Network, you are required to agree to the DishTheDeal Referral Agreement (copy available at https://www.dishthedeal.com/referral-agreement/).
5.1 Access Information
You are wholly responsible for maintaining the confidentiality of Access Information and wholly liable for all activities occurring under such Access Information. You will not transfer to any party Access Information, or use access information of another, without our prior written consent. You will immediately notify us of any unauthorized use of Access Information or any other breach of security via email sent to support@dishthedeal.com. We will not be liable for any loss or damage arising from lost or forgotten Access Information (including associated loss of Content), from failure to comply with this section or from unauthorized use of Access Information.
5.2 Responsibility for Content
Your Content is your sole responsibility and the responsibility of the user from which such Content originated. We will have no responsibility or liability for the deletion or failure to store any Content or user data. We reserve the right to mark as “inactive” and archive accounts that are inactive for an extended period of time. It is your sole responsibility to back up Your Content and end user data. We may preserve and disclose any Content if required to do so by law or judicial or governmental mandate or as reasonably necessary to protect the rights, property or safety of us, users and/or the public. We may terminate your DishTheDeal access, in response to a violation or suspected violation of these Terms.
5.3 Use of Content
You will bear all risks associated with the use of any Content, including any reliance on the quality, integrity, accuracy, completeness, or usefulness of such Content. We may refuse or delete any Content, including Content of which we become aware that fails to fulfill the purpose of DishTheDeal, is in breach of these Terms, is otherwise contrary to law, or is otherwise inappropriate in our discretion. We do not guarantee the accuracy, integrity or quality of any Content. Under no circumstances will we be liable in any way for any Content, including, but not limited to, liability for any errors, inaccuracies, or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content. We will have no obligation or liability to maintain, store, or license Content, protect and maintain Content owners’ intellectual property rights, or to enforce these Terms. You hereby waive and release any claims you may have against us arising or resulting from use or misuse of Content or your inability to effectively use Content, your failure to comply with these Terms, or for any act, omission, or conduct of any DishTheDeal user.
5.4 Account Data
While we will endeavor to back up data, we have no responsibility or liability for the deletion or failure to store any Content. You acknowledge and agree that we are under no obligation to compile and return to you your Content, including if you elect to deactivate your account, except as we may otherwise agree in writing.
5.5 License to Content
You hereby grant to us the perpetual, irrevocable, worldwide, no-charge, royalty-free, transferable, sublicensable, non-exclusive right and license to use, distribute, reproduce, modify, display, and make derivative works of your Content for any commercial or non-commercial purposes, including for the purpose of providing and promoting DishTheDeal.
5.6 Our Marks
You agree that any use of our marks, branding and logos (“Marks”), whether permitted or otherwise, will inure to the sole benefit of DishTheDeal. You will not directly or indirectly: (a) file or prepare any application for registration of any Marks; (b) assert any right, title, license to, or interest in the Marks; or (c) adopt, use, file for registration, or register, in whole or in part, any trademark, service mark, trade name, logo, or domain name which may be confusingly similar to or an infringement of the Marks or any of our domain names.
6.1 Responsibility
You are solely responsible for the Other Applications. Under no circumstances will we be liable in any way for Other Applications, including, but not limited to, liability for any errors or omissions in any Other Applications, or for any loss or damage of any kind incurred as a result of the use of the Other Applications. You hereby waive and release any claims you may have against us arising or resulting from use, misuse, alteration or loss of Other Applications. If the providers of Other Applications cease to make the Other Applications available for interoperation with the corresponding features of DishTheDeal and on reasonable terms or otherwise, we may cease providing such features of the DishTheDeal Network, without entitling you to any refund, credit or other compensation.
6.2 Use of Your Content
We will not be responsible for any disclosure, modification or deletion of your Content resulting from (a) any access or use of such Content by Other Applications or (b) enabling Other Applications to interoperate with DishTheDeal.
6.3 Other Applications Terms
You may be subject to additional terms and conditions that may apply when you use Other Applications, or affiliate or third party content or services.
Subject to your compliance with these Terms, we may, in our sole discretion and without obligation, provide (or not provide) the following Support Services:
8.1 Payments
You will pay to us our standard DishTheDeal fees. Current pricing information can be found at DishTheDeal.com. Fees may include: (a) entry fee, regardless of actual leads sent and received, which is a one-time payment to gain access to the DishTheDeal Network; (b) fees for deals closed deriving from the DishTheDeal Network; (c) deferred entry fee if member signs up using a promotional coupon code that includes a discounted up-front membership fee, that member may be subject to the additional terms of that promotion. Charges are imposed at the commencement of your registration. For more information of fee breakdown visit https://www.dishthedeal.com/referral-agreement/ or contact our support team. By providing us with a billing account, you represent and warrant that you: (c) are authorized to use the billing account that you provided and that any payment information you provide is true and accurate; and (d) authorize us to charge you using your billing account. We may bill you in at the time of purchase, or shortly after purchase. You will not grant multiple users access to your account to simulate or act as a work around in a manner intended to avoid the DishTheDeal fees.
8.2 Orders
All payments are non-refundable and are exclusive of bank service fees or currency exchange settlements. Payments will be made via the method designated by us. In the event you are delinquent in the payment of any invoice, we may at our option suspend access to the DishTheDeal Network until such payments are made in full. Payments to us will be made without deduction, counterclaim or set-off of any kind. We do not provide price protection or refunds in the event of promotions or price decreases. Any payments that are not timely paid as provided hereunder shall bear compound interest at the rate of the lower of (a) 1.5 percent per month; or (b) the highest rate permitted by applicable law.
8.3 Billing Errors
If we make an error on a charge to your billing account, you must contact us with the details within 60 days from when the error first appears on your billing statement. If you do not inform us of the issue within that time, you release us from all liability and claims of loss resulting from the error and we will not be required to correct the error or provide a refund.
8.4 Response to Process
If we are required to respond to a subpoena or other formal request from a third party or a governmental agency for records or other information relating to the DishTheDeal Network or services we have performed or solutions we have provided for you or on your behalf, or to testify by deposition or otherwise, you will reimburse our time and expenses incurred in accordance with our then-current time and expense rates.
8.5 Taxes
You will bear and be responsible for the payment of all taxes, including all sales, use, value-added, rental receipt, personal property or other taxes and their equivalents which may be levied or assessed in connection with these Terms or provision of DishTheDeal (excluding only taxes based on our net income). If we are required to pay or collect any such taxes or other charges for which you are responsible under this section, the appropriate amount will be invoiced to and paid by you.
9.1 Prohibited Acts
You are prohibited from breaching or attempting to breach any security features of the DishTheDeal Network, including, without limitation: (a) accessing content, data, information or materials not intended for you, or logging onto a server or account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the DishTheDeal Network, or any associated system or network, or to breach security or authentication measures without proper authorization; (c) interfering or attempting to interfere with use of the DishTheDeal Network by any user, host, or network, including, without limitation, by means of submitting a virus, overloading, flooding, spamming, mail bombing, or crashing; (d) publishing or linking to malicious content intended to damage or disrupt another user’s browser or computer or to compromise a user’s privacy or anonymity; (e) forging any TCP/IP packet header or any part of the header information; (f) accessing or tampering with non-public areas of the DishTheDeal Network, our computer systems, or the technical delivery systems of us or our providers; (g) publish, post, upload or otherwise transmit any data, material, information or content that contains any viruses, trojan horses, worms, time bombs, corrupted files or programming routines or mechanisms that are intended to damage, interfere with, monitor, intercept or expropriate any systems, data, information or property; (h) accessing or attempting to access the DishTheDeal Network by any means (automated or otherwise) other than through the currently available, published or enabled interfaces that are provided by us, unless you have been specifically allowed to do so in a separate agreement with us; (i) using the DishTheDeal Network for unsolicited or unauthorized advertising, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any other form of solicitation, or for conducting raffles, contests, lotteries or sweepstakes; or (j) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code or other information used by us in providing the DishTheDeal Network.
9.2 Illicit Access
You will not attempt to gain unauthorized access to other accounts, computer systems or networks connected to any of our servers, through hacking, password mining or any other means. You will not obtain or attempt to obtain any materials or information through any means not intentionally made available through the DishTheDeal Network, which is for your personal/internal and individualized use only. Without limiting the generality of the foregoing, you will not publish, distribute or transmit to the general public via any medium the DishTheDeal Network, except through and as otherwise authorized by us, and you will not engage in framing, mirroring, or otherwise reproducing or simulating the appearance or function of the DishTheDeal Network. You will not remove any copyright, trademark or other proprietary rights notices associated with or visible via use of the DishTheDeal Network.
10.1 Disclaimer
TO THE MAXIMUM EXTENT POSSIBLE UNDER APPLICABLE LAW, we provide the DishTheDeal Network on an as-is, as-available basis with all faults, and WE DISCLAIM ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE DISHTHEDEAL NETWORK, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. Specifically, we make no warranty that (a) the DishTheDeal Network will meet your requirements, goals or needs, (b) DishTheDeal Network access will be uninterrupted, timely, secure or error-free, or (c) any errors or deficiencies in the DishTheDeal Network will be corrected. We have no responsibility or liability for the deletion of or failure to store your Content or to ensure that Content is accurate or complete. It is your sole responsibility to back up and maintain the accuracy and completeness of Content. Because no online system is perfectly secure or reliable, the internet is an inherently insecure medium, and the reliability and security of hosting services, internet intermediaries, your internet service provider, and other application or service providers cannot be assured, you accept such inherent security risks associated with your use of the DishTheDeal Network.
10.2 Exclusion
Notwithstanding any other provision of these Terms, our maximum cumulative aggregate liability for all claims, liabilities or obligations arising under or relating to the “Subject Matter” (defined as these Terms, the Privacy Policy, Content, Other Applications, and the DishTheDeal Network), regardless of the number of claims or the theory of liability, whether for breach of these Terms, including breach of warranty, or in tort or otherwise, will not exceed all amounts paid by you to us under these Terms, if any, during the three-month period preceding the occurrence of the claim or event giving rise to liability. We will not be liable for any indirect, punitive, special, incidental or consequential damages, or liable for interruption of business, diminution of value, cost of replacement, downtime, loss of profits, revenue, use, data, Other Applications, or other economic advantage, in connection with, related to or arising out of the Subject Matter, regardless of the theory of liability, whether for breach of these Terms, including breach of warranty, or in tort or otherwise, even if we have been previously advised of the possibility of such damages. Liability for damages will be so limited and excluded, regardless of the validity or efficacy of any remedy provided herein and even if any remedy fails of its essential purpose. The provisions of this section allocate the risks under these Terms between the parties and each party has relied upon the limitations set forth herein in determining whether to enter into this relationship. The parties have voluntarily agreed to define the parties’ rights, liabilities and obligations respecting the Subject Matter exclusively in contract pursuant to these Terms, and you expressly disclaim that you are owed any duties or are entitled to any remedies not expressly set forth in these Terms. The foregoing limitations and exclusions apply to the maximum extent permitted by applicable law.
10.3 Indemnification
You hereby agree to fully indemnify, defend and hold harmless us, our affiliates, and officers, directors, employees and agents of us and our affiliates, from and against any and all claims, losses, damages, judgments, awards, costs, liabilities, expenses, sanctions, and fees (including our reasonable in-house and external lawyers fees and costs) directly or indirectly caused by or incurred by reason of a third party allegation, lawsuit, claim or proceeding, arising out of or related to (a) Other Applications; (b) breach of these Terms; (c) infringement of intellectual property rights; (d) your Content; (e) any calls, texts or emails made by you or on your behalf through the DishTheDeal Network, or your failure to obtain consents; or (f) your business activities. We may assume the exclusive defense and control of any matter for which you are required to indemnify us at your expense, and you agree to cooperate with our defense of these claims. You will not settle or compromise any such claims without our prior written consent.
10.4 General Release; Disclaimer
You further agree that these Terms waive and release any claims that would otherwise be preserved by other means of law. You understand that you are releasing us from all claims, whether known or unknown to you, and whether or not you suspect that those claims may exist at this time. These Terms apply to the maximum extent permitted by law.
10.5 Disclaimer to Home Sellers and Buyers
We are not engaged in the frontend business of real estate brokerage or management and we do not represent home buyers or sellers as a real estate agent or broker or property manager. We do not control or supervise any real estate agents, brokers, vendors, advertisers or other third parties, and we are not responsible for their actions.
11.1 Term
Access to the DishTheDeal Network commences upon our acceptance of your order (otherwise known as “registration”) and will continue in effect unless request for termination is received from you. We will provide you with instructions on how you may cancel your access to the DishTheDeal Network if requested (reach out to support@dishthedeal.com).
11.2 Termination
In addition to sections 12.1 and 12.2, access will terminate immediately upon your breach of these Terms. We may additionally terminate your access in the event your manner of using the DishTheDeal Network exceeds normal and reasonable usage, including via unauthorized automated (non-human) initiated requests, or otherwise, and such excessive or detrimental use has not been corrected by you within one business day of our written notice to you. We may on written notice terminate rights granted under these Terms in the event the DishTheDeal Network in whole or in part is in our reasonable judgment subject to the intellectual property rights of any other person or entity. We may additionally terminate an account and restrict access upon written notice to you if you (a) become the subject of a legal proceeding under a law relating to insolvency or bankruptcy; or (b) or your property becomes under the control of a custodian or equivalent under applicable law, or your property is assigned for the benefit of creditors; or (c) generally fail to pay your debts as they become due or acknowledge in writing that you are unable to do so.
11.3 Effect
The rights of either party under this section 11 are in addition to any other rights and remedies permitted by law or under these Terms. Breach of these Terms may result in pursuit of all available remedies for intellectual property rights (including intellectual property rights infringement), the availability of which you hereby acknowledge. Upon termination of rights or access for any reason, all licensed rights granted under these Terms, access to the DishTheDeal Network, and all Support Services will terminate, and you will immediately cease all use and distribution, of the DishTheDeal Network Content.
12.1 Service Discontinuance/Modification
We may from time to time modify or discontinue access to, temporarily or permanently, any part, feature, or functionality of the DishTheDeal Network. We will not be liable for any such modification, suspension or discontinuance, even if certain features or functions, your settings, and/or any Content you have contributed or have come to rely on, are permanently lost.
12.2 Account Termination
We may terminate your account or access for cause, including without limitation for: (a) violation of these Terms; (b) abuse of DishTheDeal resources or any attempt to gain unauthorized entry to the DishTheDeal Network; (c) use of the DishTheDeal Network in a manner inconsistent with its purpose; (d) any DishTheDeal user’s request for such termination; or (e) requirements of or for failure to comply with applicable law, regulation, court or governing agency order, or ethical requirements. We may in addition terminate the availability of the DishTheDeal Network for our own business reasons, including if we elect to cease being in the business of providing it or if the owners of Other Applications make continued operation commercially impracticable or unreasonable. After account termination, you will not attempt to register a new account without our permission.
12.3 Trademarks; Media
You are granted no right, title or license to any third-party trademarks by these Terms, or to any of our trademarks or servicemarks. We reserve all right, title and interest in and to our trademarks, servicemarks, trade names, domain names, and similar identifiers. You hereby authorize us to disclose in our websites, marketing collateral, and corporate presentations that you have selected the DishTheDeal Network.
12.4 Arizona-Based
The DishTheDeal Network is controlled by us from our offices in Arizona. We make no representation that the DishTheDeal Network is appropriate for use in other jurisdictions. Your use of or access to the DishTheDeal Network will not be construed as our purposefully availing ourselves of the benefits or privileges of doing business in any other state or jurisdiction other than Arizona.
12.5 Governing Law; Choice of Forum
The Subject Matter (as defined in section 10.2), and any disputes between us and related to or concerning any of the Subject Matter (including tort as well as contract claims, and whether pre-contractual or extra-contractual) will be governed by the procedural and substantive laws of Arizona, without regard to conflicts of laws rules, and to the maximum extent permitted by applicable law, the parties hereby waive the right to a jury trial for any such disputes. Subject to section 12.6, the state courts located in Maricopa County, Arizona or the federal courts of the US District of Arizona, will have jurisdiction over any disputes between the parties arising out of or related to the Subject Matter, and both parties hereby consent and submit to the jurisdiction of such courts for such disputes and waive any objections to the exercise of such jurisdiction. Such courts will have exclusive jurisdiction over any such disputes, except that we may bring an action for recovery of injunctive or provisional relief, or an action claiming infringement or misappropriation of intellectual property rights, or both, in any court of competent jurisdiction under the laws applicable thereto.
12.6 Arbitration
(a) Any disputes between or claims brought by you or us arising out of or related to the Subject Matter (as defined in section 10.2), including tort as well as contract claims, and whether pre-contractual or extra-contractual, as well as the enforceability of this section 12.6 and the arbitrability of any disputes (subject to sections 12.6(d) and 12.6(e) below) will be referred to and finally settled by (1) informal means as set forth in section 12.6(b), and if such means are unsuccessful at resolving the dispute(s), (2) binding arbitration as specified in this section 12.6. Such arbitration will be conducted before a single arbitrator conducted by the American Arbitration Association (AAA), in accordance with (except as inconsistent with this section 12.6) the AAA Commercial Arbitration Rules in effect at the time of arbitration (current version available here). Venue for the arbitration will be in any one of the following cities that is closest to your residence: New York City, New York; Phoenix, Arizona; Austin, Texas; or Chicago, Illinois. The parties agree that this section 12.6 states the exclusive means of resolving disputes between the parties regarding the Subject Matter, and that the parties therefore waive the right to a trial by jury.
(b) Except for actions or claims described in section 12.6(e)(2) or 12.6(e)(3), we will first try to resolve dispute(s) between us informally and neither of us may start a formal arbitration proceeding for at least thirty days after one of us notifies the other of a dispute in writing. Notice of the dispute will include a brief written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the dispute, and the relief requested.
(c) The arbitration will be conducted without in-person appearances (as in a live hearing) if (1) the credibility of testifying witnesses is unnecessary to the resolution of the dispute; (2) the parties agree to waive in-person appearances; (3) the applicable arbitration rules permit waiver of or otherwise don’t require in-person appearances; (4) the claim does not exceed $10,000; or (5) the arbitrator determines that in-person appearances are unnecessary or unhelpful, or would be burdensome to any of the parties to the arbitration or to their staff. If in-person appearance is required, such hearings will be held via videoconference unless the arbitrator determines, in the arbitrator’s reasonable discretion, that a videoconference is not suitable. For clarity, nothing in these terms abrogates either party’s right to a transcription of all arbitration proceedings at such party’s own expense.
(d) The parties hereby waive the right to a trial by jury and agree to only bring claims in an individual capacity and not as a plaintiff or class member in any purported class, consolidated or representative proceeding. All disputes will be arbitrated only on an individual basis and not in a class, consolidated or representative action. The arbitrator does not have the power to vary these provisions. The validity and effectiveness of this section 12.6(d) is not arbitrable.
(e) Notwithstanding the foregoing, nothing in this section 12.6 will preclude the right and ability of either party to bypass arbitration and file and maintain at any time: (1) an individual action in small claims court; (2) an action for recovery of injunctive or provisional relief in any court of competent jurisdiction under the laws applicable thereto; and (3) an action claiming infringement or misappropriation of intellectual property rights in any court of competent jurisdiction under the laws applicable thereto. Such actions, either party’s right to pursue such actions, and the validity and effectiveness of this section 12.6(e) are not arbitrable. For clarity, nothing in these Terms will be construed as either party’s consent to the exercise of the jurisdiction of any court except as set forth in section 12.5.
(f) Subject to sections 12.6(d) and 12.6(e), all claims and disputes between the parties relating to the Subject Matter must be resolved using arbitration in accordance with this section 12.6. Should either party file an action contrary to this section, the other party may recover lawyers’ fees and costs associated with enforcing this section, provided that the party seeking the award has notified the other party in writing of the improperly filed claim, and the other party has failed to withdraw the claim in a timely fashion.
(g) Except to the extent required by law or in order to enforce arbitral awards in court, the parties shall keep confidential, make no public announcements regarding, and shall not disclose the existence of (1) any dispute, (2) the existence or details of the arbitration proceeding, and (3) all related documents, materials, evidence, judgments and awards therein.
(h) The arbitrator will apply the law specified in section 12.5, without regard to conflicts of law rules. The parties agree that these Terms evidence a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this section 12.6.
(i) The parties acknowledge that if one or more provisions of this section 12.6 is found to be unenforceable, invalid, preempted or unlawful for any reason, the parties’ intention is to (1) maintain the enforceability of such invalid or unenforceable provision in any circumstances other than those this in which the provision is held to be unenforceable, (2) modify such provision to the extent the provision can be rendered enforceable, and (3) sever such invalid or unenforceable provision from the remaining section 12.6 so as to preserve as much of the remaining as possible, so that such provision will not impact the ability to compel arbitration of any remaining claims on an individual basis. To the extent that any claims must proceed on a class, collective, consolidated, or representative basis, such claims will be litigated in the courts specified in section 12.5, and the parties agree that litigation of those claims will be stayed pending the outcome of any individual claims in arbitration.
12.7 Limitation
You agree that regardless of any statute of limitations to the contrary, any claim or cause of action arising out of or related to the Subject Matter must be filed within one year after such claim or cause of action arose, or be forever barred. If applicable law prohibits a one-year limitation period for asserting claims, any claim must be asserted within the shortest time period established by applicable law.
12.8 Assignment
These Terms will not be assigned, delegated, or transferred by you, in whole or in part, whether voluntarily, involuntarily, by merger, consolidation, dissolution, sale of assets, or otherwise, without our prior written consent. Any such purported assignment, delegation or transfer without such written consent will be void. We may at any time assign these Terms without prior consent or notice. These Terms will be binding on, and inure to the benefit of, the parties and their respective and permitted successors and assigns.
12.9 Injunctive Relief
You acknowledge and agree that breach of these Terms, or any unauthorized use, disclosure or distribution of the DishTheDeal Network, may cause irreparable harm to us, the extent of which would be difficult to ascertain, and that we will be entitled to seek immediate injunctive relief (in addition to any other available remedies), in any court of competent jurisdiction under the applicable laws thereto.
12.10 Miscellaneous
The Terms constitute the entire agreement between you and us and govern your use of the DishTheDeal Network, superseding any prior agreements, understandings, communications or proposals. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms will remain in full force and effect. No waiver of any provision of these Terms will be deemed a further waiver or continuing waiver or such provision or any other provision, and our failure to assert any right or provision under these Terms will not constitute a waiver of such right or provision. In the event of any conflict or inconsistency between these Terms and any DishTheDeal website page (including any page describing or summarizing your or our rights, obligations, or these Terms), these Terms will control. Nothing herein will be deemed to create an agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship of any kind between us and any user or other person or entity, nor do these terms extend rights to any third party.
Effective Date: 3/15/2019