In this Agreement, “Pickpockit” and “we” mean Pickpockit Inc. dba Pickpockit, and “User” and “you” mean any user of the Services. This Agreement incorporates Pickpockit’s standard policies, procedures, and terms and conditions for use of the Services that are referenced by name or by links in this Agreement (collectively, the “Pickpockit Policies”). By accessing or using the Services or clicking “accept” or “agree” to this Agreement, (1) you acknowledge that you have read, understand, and agree to be bound by this Agreement; (2) you represent and warrant that you are of legal age and not prohibited by law from accessing or using the Services; and (3) you acknowledge and understand that Pickpockit does not provide real estate advice, real estate brokerage services or representation. THIS AGREEMENT CONTAINS, AMONG OTHER THINGS, AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER.
Pickpockit may update or revise this Agreement (including any Pickpockit Policies) from time to time. You agree that you will review this Agreement periodically. You are free to decide whether or not to accept a modified version of this Agreement, but accepting this Agreement, as modified, is required for you to continue using the Services. You may have to click “accept” or “agree” to show your acceptance of any modified version of this Agreement. If you do not agree to the terms of this Agreement or any modified version of this Agreement, your sole recourse is to terminate your use of the Services, in which case you will no longer have access to your Account (as defined below). Except as otherwise expressly stated by Pickpockit, any use of the Services (e.g., the use of the Transactional Services) is subject to the version of this Agreement in effect at the time of use.
1. Real Estate Communication and Transactional Services. Pickpockit provides the Transactional Services to Users for the purpose of facilitating real estate transactions between Users with a particular focus on what are known as “pocket listings” or properties that are not otherwise listed for sale on any multiple listing service (“MLS”). By using the Transactional Services, User agrees to receive communications by email pertaining to posted properties after registering for the Transactional Services.
2. User Conduct and Content. User's use of the Pickpockit Site is subject to all applicable laws and regulations, including, without limitation proper online etiquette. By using the Services, User agrees not to upload, share, post, or otherwise distribute or facilitate distribution of any improper or unlawful content including, without limitation any text, communications, software, images, sounds, data, or other information that:
4. Interruptions in Service. User understands and agrees that temporary interruptions of the Services may occur from time-to-time as a normal event. User further understands and agrees that we have no control over third party networks accessed in the course of the use of the Pickpockit Application, and therefore, delays and disruption of other network transmissions are beyond Pickpockit’s control. We assume no responsibility for the timeliness, deletion, malfunction in delivery or failure to store any User communications or personalization settings. The Services are provided "AS IS" with no warranty of any kind associated to the performance of the Services or the Pickpockit Application.
6. Your Account. You may (but are not required to) create an account with Pickpockit through the Pickpockit Site or Pickpockit Application (“Account”) in order to use the Transactional Services. When registering for an Account, you must provide true, accurate, current, and complete data about yourself on the Pickpockit registration form (“Registration Data”). You also agree to promptly update the Registration Data to keep it true, accurate, current, and complete. You are solely responsible for maintaining the confidentiality of your Account and the information in your Account, and, except as otherwise required by applicable law, you are solely responsible for all use of your Account, whether or not authorized by you. You agree to immediately notify Pickpockit of any unauthorized use of your Account or any other breach of security related to your use of the Services.
9.Modifications to Services. Pickpockit reserves the right, in its sole discretion, to modify the Services from time to time and without notice, including, without limitation, by removing, adding, or modifying portions of the Pickpockit Site, Pickpockit Application, or the Services. Pickpockit shall have no liability to you for any of the foregoing actions. If you object to any such changes, your sole recourse shall be to cease using the Services. Continued use of the Services following any such changes shall indicate your acknowledgment of such changes and satisfaction with all the Services.
10. Intellectual Property Rights and Grant of Rights to User. The features, information, and materials provided and depicted through the Services are protected by copyright, trademark, patent, and other intellectual property laws. All text, graphical content, video, data, and other content made available through the Services (collectively, the “Pickpockit Content”) are provided to User by Pickpockit or its partners or licensors solely to support User’s permitted use of the Services. The Pickpockit Content may be modified from time to time by Pickpockit in its sole discretion. Except as expressly set forth herein, no license is granted to User for any other purpose, and any other use of the Services or the Pickpockit Content by User shall constitute a material breach of this Agreement. Pickpockit and its partners or licensors retain all rights in the Services and Pickpockit Content and any associated patents, trademarks, copyrights, mask work rights, trade secrets, or other intellectual property rights. No license, right, or interest in any trademarks of Pickpockit or any third party is granted under this Agreement.
11. Application License. Subject to the terms and conditions of this Agreement, Pickpockit grants User a non-exclusive, non-transferable, revocable license to use the Pickpockit Application, in object code form only, on User’s compatible devices, solely to support User’s permitted use of the Services.
12. Use Restrictions. The Services and Pickpockit Content are offered solely for User’s personal use for the purposes described in this Agreement. Any and all other uses are prohibited. Pickpockit expressly reserves all its rights and remedies under applicable state and federal laws. Pickpockit reserves the right, in its sole discretion, to refuse service, terminate Accounts, remove or edit posts, or deny access to the Services. You agree not to (and not to allow any third party to): (1) use any deep-link, robot, spider, scraper, or other automatic or manual device, process, or means to access, copy, search, or monitor any portion of the Services or Pickpockit Content, except as expressly authorized by Pickpockit; (2) take any action that imposes or may impose (in Pickpockit’s sole determination) an unreasonable or a disproportionately large load on the Services or Pickpockit’s infrastructure; (3) utilize any device, software, or routine that will interfere or attempt to interfere with the functionality of the Services; (4) rent, lease, copy, provide access to or sublicense any portion of the Services or Pickpockit Content to a third party; (5) use any portion of the Services or Pickpockit Content to provide, or incorporate any portion of the Services or Pickpockit Content into, any product or service provided to a third party; (6) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Pickpockit); (7) modify any Services or Pickpockit Content or create any derivative product from any of the foregoing; (8) remove or obscure any proprietary or other notices contained in the Services or Pickpockit Content; (9) use the Services or Pickpockit Content for any illegal purpose; or (10) publicly disseminate information regarding the performance of the Services or Pickpockit Content or access or use the Services or Pickpockit Content for competitive analysis or benchmarking purposes.
13. Government End Users. The Services constitute a “commercial item” as defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire any Pickpockit Application with only those rights set forth therein.
14.Export Control. You may not use, export, or re-export any Pickpockit Application or other aspects of the Services (or any copy or adaptation of the foregoing) in violation of applicable law, including, without limitation, United States and foreign export laws and regulations. You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country and that you are not listed on any U.S. Government list of prohibited or restricted parties.
15. Termination. Pickpockit may suspend your ability to use all or any element of the Services or may terminate this Agreement effective immediately, without notice or explanation. Without limiting the foregoing, Pickpockit may suspend your access to the Services if we believe you to be in violation of any part of this Agreement (including any Pickpockit Policies). After any suspension or termination, you may or may not be granted permission to use the Services or re-establish an Account. You agree that Pickpockit shall not be liable to you for any termination of this Agreement or for any effects of any termination of this Agreement. You are always free to discontinue your use of the Services at any time. You understand that any termination of your Account may involve deletion of any content stored in your Account for which Pickpockit will have no liability whatsoever.
17. Your Representations and Indemnity. You represent and warrant that you own or otherwise control all of the rights to any User Content submitted by you; that all User Content submitted by you is accurate; and that exploitation of such User Content by Pickpockit and its other Users, partners, and licensees will not violate this Agreement, cause injury to any person or entity, or infringe any third-party rights (including, without limitation, intellectual property rights and rights of privacy or publicity). You will indemnify, hold harmless, and (at Pickpockit’s request) defend Pickpockit, its affiliates, and its and their representatives, agents, directors, managers, officers, employees, and shareholders (collectively, the “Pickpockit Parties”) from and against all claims resulting from (1) any User Content submitted by you, (2) your use of the Services, or (3) any breach or alleged breach by you of this Agreement. Pickpockit hereby reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by User, in which event User will cooperate with Pickpockit in asserting any available defenses.
18. Liability Limitations. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE PICKPOCKIT PARTIES BE LIABLE FOR ANY INJURIES, LOSSES, CLAIMS, OR DIRECT DAMAGES OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE OUT OF OR ARE ANY WAY CONNECTED WITH (1) THIS AGREEMENT, (2) ANY USE OF THE SERVICES, THE PICKPOCKIT CONTENT, OR THE USER CONTENT, (3) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF THE TRANSACTIONAL SERVICES), OR (4) ANY REAL ESTATE TRANSACTION THAT YOU ENTER WITH, BY OR THROUGH ANOTHER USER OR THIRD PARTY OR THE PERFORMANCE, NON-PERFORMANCE, CONDUCT, OR POLICIES OF ANY USER OR THIRD PARTY IN RELATION TO ANY REAL ESTATE TRANSACTION. IN ADDITION, YOU SPECIFICALLY UNDERSTAND AND AGREE THAT ANY THIRD PARTY DIRECTING YOU TO THE PICKPOCKIT SITE BY REFERRAL, LINK, OR ANY OTHER MEANS IS NOT LIABLE TO USER FOR ANY REASON WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR LOSS ASSOCIATED WITH THE USE OF THE SERVICES OR THE PICKPOCKIT CONTENT. PICKPOCKIT IS NEITHER AN AGENT OF NOR OTHERWISE ASSOCIATED WITH ANY REAL ESTATE AGENT, SALESPERSON, BROKER OR BROKERAGE.
Through User's use of the Pickpockit Site, User may have the opportunity to engage in commercial transactions with other Users and vendors. User acknowledges that all transactions relating to any merchandise or services offered by any party, including, but not limited to the purchase terms, payment terms, warranties, guarantees, maintenance and delivery terms relating to such transactions, are solely between User and the seller or purchaser of such merchandise and services. PICKPOCKIT MAKES NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED THROUGH, OR IN CONNECTION WITH THE WEBSITE, AND USER UNDERSTANDS AND USER ASSUMES THE RISK OF ENTERING INTO SUCH TRANSACTIONS.
The Pickpockit Site may include sample or form agreements, letters or other documents, including financially or legally significant documents such as contracts and other items used in real estate transactions ("Forms"). These Forms are provided solely as exemplars of typical documents, and the delivery and use of Forms does not constitute and Pickpockit shall not be deemed to provide any legal, accounting or other professional advice in relation to such Forms. Under no circumstances will Pickpockit be liable for any loss or damages caused by the User's reliance on information or advice obtained through the Pickpockit Site, including, without limitation the use of any of the Forms. It is the User's responsibility to evaluate the accuracy, completeness, or usefulness of any information, Forms or other content available on or through the Pickpockit Site. User is urged to consult an appropriate professional licensed in the User's jurisdiction before using any Forms or otherwise relying on any legal, accounting, or other professional advice or information obtained through the Pickpockit Site.
You and Pickpockit understand and agree that the disclaimers, exclusions, and limitations in this Section 18 and in Section 19 are essential elements of this Agreement and that they represent a reasonable allocation of risk. In particular, you understand that Pickpockit would be unable to make the Services available to you except on these terms and agree that this Agreement will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
19. Disclaimer of Warranties. THE SERVICES, ALL PICKPOCKIT CONTENT, AND ANY OTHER INFORMATION, PRODUCTS, AND MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICES, ARE PROVIDED TO USER ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND. PICKPOCKIT EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, OR INDEMNITIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. PICKPOCKIT DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT PICKPOCKIT WILL REVIEW THE INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SERVICES FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN ANY SUCH INFORMATION OR MATERIALS WITHOUT LOSS. PICKPOCKIT SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF PICKPOCKIT.
THE FOREGOING DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
20.Links to Third-Party Websites. The Services may contain hypertext links to websites operated by parties other than Pickpockit. Such hypertext links are provided for User’s reference only, and Pickpockit does not control such websites and is not responsible for their content. Pickpockit’s inclusion of any hypertext links to such websites does not imply any endorsement of the material on such websites or any association with their operators. Pickpockit assumes no liability whatsoever for any such third-party websites or any content, features, products, or services made available through such third-party websites.
21. Release. The parties with whom you conduct or engage in any real estate transactions are solely responsible for their interactions with you and any and all claims, injuries, illnesses, damages, liabilities, and costs (“Claims”) suffered by you as a result of any real estate transactions or other trasnsactions you enter into with another User are solely your responsibility. You hereby release the Pickpockit Parties from any and all such Claims. IN CONNECTION WITH THE FOREGOING, IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” You hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to the release of any unknown or unsuspected claims you may have against the Pickpockit Parties pertaining to the subject matter of this Section 21.
22. Notify Us of Infringers. If you believe any of the Services violate your copyright, notify our copyright agent in writing. The contact information for our copyright agent is at the bottom of this Section.
In order for us to take action, you must do the following in your notice:
Here is the contact information for our copyright agent:
Pickpockit Inc. dba Pickpockit
Again, we cannot take action unless you give us all the required information
23. Severability. If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision (or portion thereof) notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted.
24. Assignment. This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned, or delegated in any manner by User, but may be freely transferred, assigned, or delegated by Pickpockit.
25. Waiver. Any waiver of any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right.
26. ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE. Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and the Pickpockit Parties or their successors or assigns shall exclusively be settled through binding and confidential arbitration.
Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”).
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and Pickpockit must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR PICKPOCKIT MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Pickpockit will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (4) Pickpockit also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law.
Notwithstanding the foregoing, either you or Pickpockit may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Orange County, California. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located Orange County, California in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Orange County, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
With the exception of subparts (1) and (2) in this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If, however, either subpart (1) or (2) is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Pickpockit shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court located in Orange County, California.
For more information on AAA, the Rules and Procedures, or the process for filing an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
27. Choice of Law. This Agreement is made under and shall be governed by and construed in accordance with the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.