– Updated August 2019
IMPORTANT: IF YOU RESIDE IN THE UNITED STATES, PLEASE NOTE THAT SECTION 11 OF THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION CLAUSE AND CLASS ACTION WAIVER, WHICH WILL REQUIRE YOU TO RESOLVE ANY DISPUTE WITH INFOCUS ON AN INDIVIDUAL BASIS AND, EXCEPT IN LIMITED CIRCUMSTANCES, THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION. PLEASE READ IT CAREFULLY.
1. Scope of InFocus Services
a. The “InFocus Platform” is an online platform that enables registered Users to publish certain properties available for lease that such publishing User owns, represents by contract or otherwise has the ability to lease (“Listings”) on the InFocus Platform and, through a mechanism provided by InFocus, communicate and transact directly with other Users and certain unregistered third parties (each a “Guest User”) that are seeking to lease such Properties (“Customers”). The focus of the InFocus Platform is to provide Users access to (a) Properties available for lease for a term of less than 12 months (“Short Term Listings”), and (b) Properties that are unique or otherwise desirable for use in the production of visual arts or entertainment productions which Listings are available for single day or multiple day lease periods (“Location Listings”).
b. As the provider of the InFocus Platform, InFocus does not own, create, sell, resell, provide, control, manage, offer, deliver, or supply any Listings. Users alone are responsible for their Listings and any lease terms. In the event a User desires to lease a Listing from another User, they are entering into a contract directly with each other. InFocus does not become a party to or other participant in any contractual relationship between Users, nor is InFocus a real estate broker or insurer. InFocus is not acting as an agent in any capacity for any User.
c. InFocus has no control over and does not guarantee (i) the existence, quality, safety, suitability, or legality of any Listings, (ii) the truth or accuracy of any Listing descriptions, ratings, reviews, or other User content, or (iii) the performance or conduct of any User, Guest User or any other third party with access to the InFocus Platform. InFocus does not endorse any User or Listing. Any User being "registered" or having an Account (or similar language) only indicates that the User has completed a relevant verification or identification process and nothing else. A User being “registered” or having an Account is not an endorsement, certification or guarantee by InFocus about any User, including of the User’s identity or background or whether the User is trustworthy, safe or suitable. All Users should always exercise due diligence and care when deciding whether to stay in an Listing. Any images of a Listing are intended only to indicate a photographic representation of a Listing at the time the photograph was taken and are therefore not an endorsement by InFocus of any User or Listing.
d. If you choose to use the InFocus Platform to publish a Listing, your relationship with InFocus is limited to being an independent, third-party contractor, and not an employee, agent, joint venturer or partner of InFocus for any reason, and you act exclusively on your own behalf and for your own benefit, and not on behalf, or for the benefit, of InFocus. InFocus does not, and shall not be deemed to, direct or control you generally or in your performance under these Terms. You acknowledge and agree that you have complete discretion whether to list publish Listings or otherwise engage in other business or employment activities.
e. To promote the InFocus Platform and to increase the exposure of Listings to Users, Guests, and potential Users and Guests, Listings and other User Content may be displayed on other websites, in applications, within emails, and in online and offline advertisements.
f. The InFocus Platform may contain links to third-party websites or resources (“Third-Party Services”). Such Third-Party Services may be subject to different terms and conditions and privacy practices. InFocus is not responsible or liable for the availability or accuracy of such Third-Party Services, or the content, products, or services available from such Third-Party Services. Links to such Third-Party Services are not an endorsement by InFocus of such Third-Party Services.
b. Code of Conduct. InFocus believes that all people deserve to be treated equally and with respect, regardless of their race, ethnicity, nationality, class, religion, belief, sex, language, sexual orientation, gender identity, age, health or other status. InFocus chooses to work with Users, Guests and other third parties who both share these values and embody them in their interactions with customers, InFocus personnel, and other professionals. In the event InFocus determines that a User is not upholding these values, InFocus may take action to ensure the integrity of the Platform, including terminating a Users’ Listing or terminating User’s access to the InFocus Platform. InFocus may also terminate a User’s Listing or deactivate a User’s account in the event the User is charged with or convicted of a crime, or InFocus otherwise believes User’s participation on the InFocus Platform could harm the reputation and/or good standing of the services offered by InFocus.
3. User Registration.
a. Each User must register an account (an “Account”) to access and use certain features of the InFocus Platform, such as publishing a Listing or receiving information about a Listing. If you are registering an Account for a company or other legal entity, you represent and warrant that you have the authority to legally bind that entity and grant us all permissions and licenses provided in these Terms. You must provide accurate, current and complete information during the registration process and keep your Account and public profile page information up-to-date at all times.
b. Each User is responsible for maintaining the confidentiality and security of its Account credentials and may not disclose credentials to any third party. You must immediately notify InFocus if you know or have any reason to suspect that your credentials have been lost, stolen, misappropriated, or otherwise compromised or in case of any actual or suspected unauthorized use of your InFocus Account. You are liable for any and all activities conducted through your Account, unless such activities are not authorized by you and you are not otherwise negligent (such as failing to report the unauthorized use or loss of your credentials).
a. Display. InFocus shall, for a period of time as indicated in the corresponding Listing Agreement (the "Term"), display a Listing including the Listing Materials (as defined below) on (1) www.infocusga.com, the corresponding applications and/or other URLs controlled by InFocus (the "InFocus Sites”), as applicable, or (2) such third-party websites and corresponding applications selected by InFocus that InFocus believes in its reasonable discretion, furthers the intent of this Agreement.
b. Listing Ad Updates. InFocus may send an email to User, asking User to confirm the continued currency and accuracy of a Listing or and Listing Material. If User does not respond to the update request within the time frame specified, InFocus may remove the Listing from the InFocus Sites. User may reinstate the Listing, or revise it with different content, at any time during the remainder of the Term of the Listing Agreement.
c. License in Listing Materials and User Information. User hereby grants to InFocus a royalty-free, perpetual, nonexclusive, fully sublicenseable right and license to reproduce, modify, display, distribute, publicly perform, create derivative works from, store, and otherwise use and exploit, all Listing Materials and User Information submitted in any form, media, software or technology of any kind to be used only on or in connection with InFocus Platform and accompanying services. For purposes of this Agreement, "Listing Materials" includes all data and other information provided by User to InFocus, in any form, including without limitation: (i) the Listings that User provides to InFocus and all corresponding materials and any other materials submitted to InFocus by User for inclusion in a Listing, including, without limitation, photos, videos, information, URLs, and other content, whether generated by or for User; (ii) the web sites and landing pages to which Listing Materials link or direct Users; and (iii) information about the User submitted. User additionally grants InFocus the right to create derivative works of information and data about User that User submits to the InFocus Platform and to reproduce, distribute and otherwise exploit such derivative works, so long as User is not identified or identifiable as the source of specific information. InFocus owns all right, title and interest in all data that InFocus collects about User’s use of the InFocus Platform.
d. User Responsible for Listing Materials. User is solely responsible for all Listing Materials submitted to InFocus and represents to InFocus that User is authorized to act on behalf of and has bound to the terms of this Agreement. User is responsible for promptly updating User’s Listings and other Listing Materials to ensure that all Listing Materials are current and accurate. User represents and warrants to InFocus that it holds all rights (including, without limitation, any copyright, trademark, patent, publicity or other rights) in the Listing Materials. User further represents and warrants to InFocus that: (A) all User information provided in connection with User’s account and any Listing Agreement is complete, correct and current; (B) the Listing Materials comply with all policies designed to ensure compliance with civil rights and anti-discrimination laws, including, without limitation, the Fair Housing Act, Americans with Disabilities Act, and the Equal Credit Opportunity Act, to the extent such laws are applicable to User; (C) the Listing Materials do not indicate any discrimination on the basis of race, color, religion, sex, handicap, familial status or national origin; and (D) none of the Listing Materials will violate or encourage violation of any applicable laws, regulations, code of conduct, or third party rights (including intellectual property rights). Violation of the foregoing may result in immediate termination of User’s Listing Agreement (s) and/or User’s account, without limiting any other remedies available to InFocus.
e. Non-compliant Listing Materials. InFocus reserves the right to remove a Listing upon finding an error, violation of the Policies or this Agreement, or for any other reason. InFocus may send a notice to User, requiring that User modify the Listing Materials and if User does not respond to the update request within the time frame specified and modify the Listing to comply with the notice, InFocus may discontinue displaying the Listing or any Listing Materials. User may reinstate the Listing Materials, or revise them with different content, at any time during the remainder of the Term indicated in the Agreement. InFocus has the right, but not the obligation, to modify the Listing Materials for format, spelling, or other matters of presentation, or to comply with the Policies and this Agreement.
5. Prohibited Uses. User shall not, and shall not authorize any party to: (a) generate automated, fraudulent or otherwise invalid impressions, inquiries, conversions, clicks or other similar actions; (b) use any automated means of scraping or data extraction to collect InFocus Platform related information from any InFocus Site except as expressly permitted by InFocus in writing; or (c) advertise anything illegal or engage in any illegal or fraudulent business practice.
6. Disclaimer and Limitation of Liability. INFOCUS PROVIDES THE INFOCUS PLATFORM "AS IS," "WITH ALL FAULTS" AND "AS AVAILABLE," AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH USER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INFOCUS MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED. INFOCUS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY AND IMPLIED, INCLUDING (A) WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, ACCURACY, TITLE, QUIET ENJOYMENT, NO ENCUMBRANCES, NO LIENS AND NON-INFRINGEMENT, (B) WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE, AND (C) WARRANTIES OR CONDITIONS OF UNINTERRUPTED OR ERROR-FREE ACCESS OR USE. Except for payment obligations, neither party is liable for failure or delay resulting from a condition beyond the reasonable control of the party, including but not limited to acts of God, government, terrorism, natural disaster, labor conditions and power failures.
7. Changes to Terms of the Agreement and any Policy. InFocus reserves the right to modify these Terms at any time. If we make changes to these Terms, we will post the revised Terms on the InFocus Platform and update the “Last Updated” date at the top of these Terms. We will also use commercially reasonable efforts to provide you with notice of the modifications by email before the date they become effective. If you disagree with the revised Terms, you may terminate this Agreement with immediate effect by disabling your account and removing the content. If you do not terminate your Agreement after being notified via email of the revised Terms or within 30 days of the “Last Updated” date above, your continued access to or use of the InFocus Platform will constitute acceptance of the revised Terms. InFocus further reserves the right to change or discontinue all or any portion of the InFocus Platform at any time with or without notice.
9. Consent to Receive Communications. User agrees that InFocus, or a third party acting on behalf of InFocus, may email, call and/or send text messages to the email address and telephone number(s) provided by User, including calls and text messages using an automatic telephone dialing system and/or an artificial or prerecorded voice ("Other Messages"). User further agrees that such emails, calls and/or text messages may constitute advertising or telemarketing, e.g. InFocus may email, call, or text with information about new service offerings available to User. User understands that agreeing to receive Other Messages that constitute advertising or telemarketing is not a condition to purchase.
11. Dispute Resolution.
a. Binding Arbitration. User and InFocus agree to resolve any claims relating to these this Agreement, User’s use of the InFocus Platform or the Listings (collectively, "Disputes") through final and binding arbitration, except as otherwise specifically provided herein.
b. Waiver of Class Action. User acknowledges and agrees that User and InFocus are each waiving the right to a trial by jury or 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 proceeding. Further, unless both User and InFocus otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of this Agreement.
c. Arbitration Rules and Governing Law. This agreement to arbitrate evidences a transaction in interstate commerce, and thus the Federal Arbitration Act (the "FAA") governs the interpretation and enforcement of this provision. The arbitration will be administered by the American Arbitration Association ("AAA"), except as modified by this "Dispute Resolution" section. If the FAA and AAA Rules are found not to apply to any Dispute hereunder, or the enforcement thereof, then that issue shall be resolved under the laws of the State of Georgia without giving effect without giving effect to its conflict of laws provisions.
d. Notice; Informal Dispute Resolution. A party who intends to seek arbitration must first send written notice to the other party by certified mail. Notice to InFocus, should be sent to _______________________________, with a copy to the Legal Department. Your notice must include (a) your name, postal address, telephone number, email address, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. InFocus’s notice to you will be sent electronically to the email address InFocus has on file associated with your InFocus account, and will include (a) InFocus’s name, postal address, telephone number and an email address at which InFocus can be contacted with respect to the Dispute, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that InFocus is seeking.
If you and InFocus cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or InFocus may, as appropriate and in accordance with this Agreement, commence an arbitration proceeding.
e. Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the State of Georgia and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
f. Arbitration Location and Procedure. Unless User and InFocus agree otherwise, the arbitration will be conducted in Fulton County, Georgia and the state and federal courts located in Fulton County, Georgia shall have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. If the Dispute does not exceed $10,000, User or InFocus may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on User and InFocus subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, User and/or InFocus may attend by telephone, unless the arbitrator requires otherwise. If the Dispute exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
g. Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the "Liability Limitation; Exclusive Remedy" section as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. The prevailing party shall be entitled to an award of reasonable attorney fees.
h. Fees. User’s responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
i. Exceptions to Agreement to Arbitrate. Either party may bring a lawsuit solely for injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights without first engaging in arbitration or the informal dispute-resolution process described above. If the agreement to arbitrate is found not to apply to you or your claim, you agree to the exclusive jurisdiction of the state and federal courts in Fulton County, Georgia to resolve your claim.
12. Miscellaneous. Except as preempted by the FAA, this Agreement is governed by the laws of the State of Georgia, without giving effect to its conflict of laws provisions. Each party agrees to submit to exclusive jurisdiction and venue in the state and federal courts sitting in Fulton County, Georgia for any actions for which the parties retain the right to seek injunctive or other equitable relief. In any dispute arising under this Agreement, the prevailing party will be entitled to attorneys’ fees and expenses. This Agreement, including any corresponding Listing Agreement, constitutes the entire and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any other agreements, terms and conditions applicable to the subject matter hereof. No statements or promises have been relied upon in entering into this Agreement except as expressly set forth herein, and any conflicting or additional terms contained in any other documents (e.g. reference to a purchase order number) or oral discussions are void. User may grant approvals, permissions, extensions and consents by email, but any modifications by User to the Agreement must be agreed upon in a writing executed by both parties. Any notices to InFocus must be sent to InFocusGa, LLC, 3071 Harris Mill Court, Duluth, GA, 30096, with a copy to Legal Department c/o Kyle P. Magee, Esq., 2451 Cumberland Parkway, Atlanta, Georgia 30339 (with a mandatory email copy to email@example.com), via registered mail with return receipt or air mail or overnight courier, and are deemed given upon receipt. Notice to User may be effected by sending an email to the email address specified in User’s account, or by posting a message to User’s account interface, and is deemed received when sent (for email) or no more than fifteen (15) days after having been posted (for a message). A waiver of any default is not a waiver of any subsequent default. Unenforceable provisions will be modified to reflect the parties’ intention and only to the extent necessary to make them enforceable, and remaining provisions of the Agreement will remain in full effect. User may not assign any of its rights hereunder and any such attempt is void. InFocus and User are independent contractors, not legal partners or agents. In the event that this Agreement or the applicable Listing is terminated, InFocus shall not be obligated to return any materials to User.