Welcome, and thank you for your interest in Foxx Portfolio Group at Watersong Resort by Keller Williams Legacy Realty, d/b/a Foxx Portfolio Group (“Foxx Portfolio Group,” “we,” or “us”) and our website at foxxportfoliogroup.com, along with other services provided by us (collectively, the “Service”). These Terms of Service (together with the Privacy Policy, and any additional terms, policies, rules, guidelines, or instructions applicable to the Service that we may post, link to, or provide to you in writing (“Additional Terms”), the “Agreement”) govern your use of the Service. This Agreement is a legally binding contract between you and us regarding your use of the Service and Properties. Failure to use the Service in accordance with this Agreement may subject you to civil and criminal penalties.
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY.
BY CLICKING OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE OR PROPERTIES, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE OR PROPERTIES, YOU AGREE TO BE BOUND BY, THIS AGREEMENT. IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND OUR PROVISION OF THE SERVICE TO YOU CONSTITUTE AN AGREEMENT BETWEEN US AND YOU TO BE BOUND BY THIS AGREEMENT.
THIS AGREEMENT, WHETHER IN WHOLE OR PART, IS NOT A LEASE OR RESIDENTIAL TENANCY AGREEMENT, AND DOES NOT CONVEY OR OTHERWISE TRANSFER OR PROVIDE ANY PROPERTY, LEGAL, OR BENEFICIAL RIGHTS OR INTEREST IN REAL ESTATE TO YOU. YOU ARE NOT AN OWNER OR TENANT OF, AND HAVE NOT BEEN GRANTED TITLE OR EXCLUSIVE POSSESSION OF, ANY OF THE PROPERTIES.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 16, you agree that disputes arising under this Agreement will be resolved by binding, individual arbitration, and BY ACCEPTING THIS AGREEMENT, YOU AND Foxx Portfolio Group ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 16 for more details.)
1. Service Overview. Foxx Portfolio Group provides an online platform to obtain information about certain properties owned, licensed, sole and/or developed by us or any of our affiliates (each a “Property” and collectively the “Properties”).
2. Eligibility. Unless otherwise agreed in writing by Foxx Portfolio Group, you must be at least 25 years old to use the Service. By agreeing to this Agreement, you represent and warrant to us that: (a) you are (i) at least 25 years old, are an emancipated minor, or possess legal parental or guardian consent to agree to this Agreement; and (ii) fully able and competent to enter into this Agreement; (b) you have not previously been suspended or removed from the Service or any of our Properties; and (c) your registration and your use of the Service and our Properties is and will be in compliance with any and all applicable laws, rules, and regulations. If you are an organization, the individual accepting this Agreement on your behalf represents and warrants that he or she has the authority to bind you to this Agreement and you agree to be bound by this Agreement.
3. Accounts and Registration. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, home address, and other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at webmaster@foxxportfoliogroup.com.
4. Pricing and Property Information.
4.1 Pricing. We reserve the right to determine pricing for the Service, the Properties and any products or services we offer for sale or use. We will make reasonable efforts to keep pricing information published on our website up to date. We may change any of this pricing information (including by adding applicable fees or charges) at any time prior to your completing a reservation and will give you notice of the applicable pricing information prior to completion of such reservation.
4.2 The information contained herein is intended solely as reference material. Prices may not include lot premiums, upgrades and options. Community Association assessments and club dues may be required. Prices, promotions, incentives, features, options, amenities, floor plans, elevations, designs, materials, and dimensions are subject to change without notice. Square footage and dimensions are estimated and may vary in actual construction. Community improvements and recreational features and amenities described are based upon current development plans which are subject to change and which are under no obligation to be completed. Actual position of house on lot will be determined by the site plan and plot plan. Floor plans, interiors and elevations are artist’s conception or model renderings and are not intended to show specific detailing. Floor plans are the property of FPG and its affiliates.
5. Service License.
5.1 Limited License to the Service. Subject to your complete and ongoing compliance with this Agreement, we grant you, solely for your personal and non-commercial use (except as expressly provided in this Section 5.1), a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service.
5.2 Feedback License To Us. If you choose to provide suggestions or any other input regarding problems with, proposed modifications or improvements to, or any other aspect of the Service or Properties (“Feedback”), then you hereby grant us an unrestricted, worldwide, perpetual, irrevocable, non-exclusive, freely transferable and sublicensable (including through multiple tiers), royalty-free, and fully-paid right and license to exploit the Feedback in any manner and for any purpose with no obligation or accounting to you, including to improve the Service and Properties and create other products and services.
6. Restrictions and Responsibilities.
6.1 Compliance With Law. If you are prohibited under applicable law from using the Service, you may not use it. You understand and agree that you are solely responsible for compliance with any and all laws, rules, and regulations that may apply to your use of the Service and Properties.
6.2 Prohibited Conduct. In connection with your use of the Service and Properties, you may not and you agree that you will not (except and solely to the extent such restriction is impermissible under applicable law):
1) Use the Service or any Property for any illegal purpose or in violation of any local, state, national, or international law; 2) Impersonate any individual or organization, or falsify or otherwise misrepresent yourself (including your age or date of birth) or your affiliation with any individual or organization; 3) Register for more than one Foxx Portfolio Group account or register for a Foxx Portfolio Group account on behalf of an individual other than yourself; 4) Use the Service or any Property for any commercial purpose, unless expressly permitted in writing by Foxx Portfolio Group; 5) Make false, fraudulent, or speculative inquiries; 6) Bring into or onto any Property or the sales office any dangerous or hazardous item (including items that are likely to increase the risk of fire or explosion); 7) Reproduce, distribute, publicly display, or publicly perform any aspect of the Service or make modifications to any aspect of the Service or any Property; 8) Attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Service; 9) Use, display, mirror, or frame any aspect of the Service (including any layout or design of any webpage or form contained therein), the Foxx Portfolio Group name, or any of Foxx Portfolio Group trademarks, logos, or other proprietary information, without our express written consent; 10) Copy, store, or otherwise access any information accessible through the Service or any Property for purposes not expressly permitted under this Agreement; 11) Use manual or automated software, devices, scripts, robots, or other means or processes to access, “scrape,” “crawl,” or “spider” any web pages or other services contained in the Service or to otherwise collect information or interact with the Service; 13) Systematically retrieve data or other content from the Service to create or compile, directly or indirectly, in one or more downloads, a collection, compilation, database, directory, or the like, whether by manual or automated methods; 14) Interfere or tamper with, circumvent, damage, or test the vulnerability of any aspect of the Service or Properties (including any physical item therein), whether by manual or automated methods, including through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing of email address information, or similar methods or technology; 15) Infringe, misappropriate, or violate the rights of any individual or organization, including their intellectual property rights (including rights to trade secrets and moral rights), or their privacy, publicity, confidentiality, contractual, property, or other rights; 16) Use the Service or any Property to transmit, distribute, post, or submit any information concerning any other individual or organization without such individual’s or organization’s permission, including photographs, personal contact information, or credit, debit, calling card, or other account numbers; 17) Engage in any conduct that: (i) would give rise to civil liability; (ii) is fraudulent, false, misleading, or deceptive; (iii) is defamatory, obscene, pornographic, vulgar, or offensive; (iv) promotes or constitutes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group or otherwise threatens or embarrasses any individual or group; (v) is violent or threatening or promotes violence or actions that are threatening to any other individual or organization; (vi) promotes illegal or harmful activities or substances; or (vii) is restricted or prohibited by or under any of our Additional Terms (defined in Section 1.1); or 18) Attempt to do any of the foregoing or assist or advocate, encourage, permit, or assist any third party in doing any of the foregoing.
6.3 Investigation and Prosecution. We reserve at all times the right to investigate and prosecute any breach of any provision of this Agreement to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting users who breach any provision of this Agreement. You acknowledge that we have no obligation to monitor your access to or use of the Service or Properties but have the right to do so for the purpose of operating the Service, to ensure your compliance with this Agreement, or to comply with applicable law or the order or requirement of a court, administrative agency, or other governmental body.
7. Ownership; Proprietary Rights.
The Service is owned and operated by us. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by us are protected by intellectual property and other laws. All Materials included in the Service are our or our third-party licensors’ property. Except as expressly authorized by us, you may not make use of the Materials. We reserve all rights to the Materials not granted expressly in this Agreement.
8. No Offering or Representation. This is not an offering to residents of NY, NJ, CA or CT or where otherwise prohibited by law. This material shall not constitute a valid offer or solicitation in any state where prior registration is required or if void by law. This is not an offer to sell or an offer to buy any securities, investment product or investment advisory services. No representation or warranty is made with respect to the homes shown herein and/or the future performance thereof.
9. Broker Registration Required. A broker must register a prospective buyer with us before the buyer is first introduced to the community through the internet or in person and the broker must accompany the client during the client’s initial visit to this community. Broker must execute a Cooperating Broker Agreement with us on the initial visit.
10. Digital Millennium Copyright Act
10.1 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address: Foxx Portfolio Group ATTN: Legal Department (Copyright Notification) Email: myagent@foxxteam.com.
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
1) an electronic or physical signature of the individual authorized to act on behalf of the owner of the copyright or other right being infringed; 2) a description of the copyrighted work or other intellectual property that you claim has been infringed; 3) a description of the material that you claim is infringing and where it is located on the Service; 4) your address, telephone number, and email address; 5) a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and 6) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
10.2 Repeat Infringers. We will promptly disable or terminate the accounts of users that we determine to be repeat infringers.
11. Modification of this Agreement.
We reserve the right to change this Agreement (including any of the Additional Terms) on a going-forward basis at any time. Please check this Agreement periodically for changes. If a change to this Agreement materially modifies your rights or obligations, we may require that you accept the modified Agreement in order to continue to use the Service or any Properties. Material modifications are effective upon your acceptance of the modified Agreement and we will provide you with reasonable notice prior to such changes taking effect. Please discontinue using the Service and any Property if you do not agree to these changes. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 11, this Agreement may be amended only by a written agreement signed by authorized representatives of the parties to this Agreement. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was in effect at the time the dispute arose.
12. Term, Termination and Modification of the Service
12.1 Term. This Agreement is effective beginning when you accept it or first download, or otherwise access or use the Service or Properties, and its term ends when the Agreement is terminated as described in Section 12.2.
12.2 Termination. To the maximum extent permitted by applicable law, if you violate any provision of this Agreement, all of our licenses to you and this Agreement automatically terminate without notice to you. In addition, we may, in our sole discretion, terminate this Agreement or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and this Agreement at any time by contacting us at sales@foxxportfoliogroup.com and requesting that your account be deleted.
12.3 Effect of Termination. Upon termination of this Agreement: (a) all of our licenses to you hereunder automatically terminate and you must immediately cease all use of the Service and Properties; (b) you will no longer be authorized to access your account or the Service or any Properties; and (c) the obligations of this Agreement will survive.
12.4 Modification of the Service. We reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service such as any of our product or Property offerings), temporarily or permanently, without notice to you. We will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
13. Indemnity.
To the fullest extent permitted by law, you are responsible for your use of the Service and Properties, and you will defend and indemnify us and our officers, directors, employees, contractors, consultants, affiliates, subsidiaries, Property Managers, and agents (individually a “Foxx Portfolio Group Entity” and collectively the “Foxx Portfolio Group Entities”) from and against every claim brought by a third party, and any related liability, direct or indirect damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service or Properties; (b) your breach or violation of any portion of this Agreement, any representation, warranty, or agreement referenced in this Agreement, or any applicable law, rule, or regulation (including those put in place by Property Managers from time to time); (c) your infringement, misappropriation, or violation of any third party’s right, including any intellectual property rights (including rights to trade secrets and moral rights), or any privacy, publicity, confidentiality, contractual, property, or other rights; (d) any dispute or issue between you and any third party; or (e) any injury, death, or damages sustained by any individual or entity, or to the property of the same, where such injury, death, or damage is caused by your or any of your guests’, visitors’, or invitees’ acts or omissions. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
14. Disclaimers; No Warranties
14.1 THE SERVICE, PROPERTIES, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE AND PROPERTIES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. WE DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE, PROPERTIES, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE AND PROPERTIES, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE.
14.2 WE DO NOT WARRANT THAT THE SERVICE, PROPERTIES, MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE AND PROPERTIES, OR ANY PORTION OF ANY OF THE FOREGOING WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND WE DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
14.3 WE DO NOT MAKE ANY WARRANTY REGARDING THE QUALITY OF ANY ASPECT OF THE SERVICE, PROPERTIES, OR MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE OR PROPERTIES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF THE FOREGOING.
14.4 YOU UNDERSTAND AND AGREE THAT WE SHALL NOT RESPONSIBLE OR LIABLE FOR THE ACTIONS OF ANY THIRD PARTY OR ANY CONDITION OR CIRCUMSTANCE (E.G., CONSTRUCTION) OUTSIDE A PROPERTY.
14.5 OTHER THAN AS SET OUT IN SECTION 15 BELOW, NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE, PROPERTIES, ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE OR PROPERTIES, OR ANY FOXX PORTFOLIO GROUP ENTITIES WILL CREATE ANY WARRANTY REGARDING ANY OF THE FOREGOING THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. OTHER THAN AS SET OUT IN SECTION 15 BELOW, WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE, PROPERTIES, OR YOUR DEALING WITH ANY OTHER USER OF THE SAME. YOU UNDERSTAND AND AGREE THAT YOU USE ANY ASPECT OF THE SERVICE AND PROPERTIES AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM, MOBILE DEVICE, OR ANY PHYSICAL BELONGINGS USED IN CONNECTION WITH YOUR USE OF THE SERVICE OR PROPERTIES) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
14.6 THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. WE DO NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT WE ARE PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
14.7 “WE”, AS USED IN THIS SECTION 14, REFERS TO US AS WELL AS THE APPLICABLE PROPERTY MANAGER(S).
15. Limitation of Liability
15.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL ANY FOXX PORTFOLIO GROUP ENTITY BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, REPUTATION, GOODWILL, INCOME, SALES, REVENUE, BUSINESS, ANTICIPATED SAVINGS, OR DATA, OR FOR BUSINESS INTERRUPTION, WASTED MANAGEMENT OR OFFICE TIME, OR ANY OTHER INTANGIBLE LOSS.
15.2 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL ANY FOXX PORTFOLIO GROUP ENTITY BE LIABLE TO YOU FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS, ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE, PROPERTIES, OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE OR PROPERTIES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY FOXX PORTFOLIO GROUP ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
15.3 WE DO NOT EXCLUDE OR LIMIT IN ANY WAY OUR LIABILITY TO YOU WHERE IT WOULD BE UNLAWFUL TO DO SO.
15.4 EXCEPT AS PROVIDED IN SECTION 15.5 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE FOXX PORTFOLIO GROUP ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE, PROPERTIES, OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE OR PROPERTIES, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO US FOR ACCESS TO AND USE OF THE SERVICE AND PROPERTIES IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
15.5 EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 15 WILL APPLY EVEN IF ANY
16. Dispute Resolution and Arbitration
16.1 Generally. In the interest of resolving disputes between you and Foxx Portfolio Group in the most expedient and cost-effective manner, and except as described in Section 16.3, you and Foxx Portfolio Groupagree that every dispute arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award.
16.2 Arbitration. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND Foxx Portfolio Group ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
16.3 Exceptions. Despite the provisions of Section 16.2, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
16.4 Arbitrator. Any arbitration between you and Foxx Portfolio Group will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by this Agreement. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Foxx Portfolio Group. The arbitrator shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
16.5 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by email (“Notice of Arbitration”). Foxx Portfolio Group’s address for Notice is: 900 Jack Nicklaus Drive, Reunion, FL 34747, Attention: Legal Department. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Foxx Portfolio Group may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Foxx Portfolio Groupmust not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Foxx Portfolio Group in settlement of the dispute prior to the award, Foxx Portfolio Group will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
16.6 Fees. If you commence arbitration in accordance with this Agreement, the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Osceola County, Florida, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Foxx Portfolio Group for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
16.7 No Class Actions. YOU AND FOXX PORTFOLIO GROUP AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Foxx Portfolio Group agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
16.8 Modifications to this Arbitration Provision. If Foxx Portfolio Group makes any future change to this arbitration provision, other than a change to Foxx Portfolio Group’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Foxx Portfolio Group’s address for Notice of Arbitration, in which case your account with Foxx Portfolio Group will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
16.9 Enforceability. If Section 16.7 is found to be unenforceable or if the entirety of this Section 16 is found to be unenforceable, then the entirety of this Section 17 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 17.2 will govern any action arising out of or related to this Agreement.
17. Fair Housing. All real estate information provided herein is subject to the Federal Fair Housing Act, which makes it illegal to advertise “any preference, limitation, or discrimination because of race, color, religion, sex, handicap, familial status, or national origin, or intention to make any such preference, limitation or discrimination.” Your state or local jurisdiction may impose additional requirements. FPG LLC is pledged to the letter and spirit of the United States policy for the achievement of equal housing opportunity. FPG LLC encourages and supports an affirmative advertising and marketing program in which there are no barriers to obtaining housing because of race, color, religion sex, handicap, familial status, or national origin. All dwellings within the United States advertised by FPG LLC and its affiliated entities are available on an equal opportunity basis.
18. Miscellaneous
18.1 General Terms. This Agreement, together with the <Privacy Policy> (if applicable) and any other agreements expressly incorporated by reference into this Agreement, is the entire and exclusive understanding and agreement between you and Foxx Portfolio Group regarding your use of the Service and Properties, and supersedes any previous marketing information, representations or agreements of any kind or nature between the parties relating to the subject matter hereof and whether recorded in writing, or otherwise. You may not assign or transfer this Agreement or your rights under this Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent, which may be withheld if, for example, we reasonably determine that the potential assignee or transferee is, or is likely to be, a competitor of us, or appears unwilling to or incapable of strictly complying with this Agreement. We may assign or transfer this Agreement, in whole or in part, at any time without notice or consent. The failure to require performance of any provision of this Agreement will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of this Agreement, or any provision of this Agreement, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in this Agreement is for convenience only and will not have any impact on the interpretation of any provision. Nothing in this Agreement will affect your statutory rights as a consumer. Throughout this Agreement the use of the word “including” means “including but not limited to”. If any part of this Agreement is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
18.2 Governing Law and Jurisdiction. This Agreement is governed by the laws of the State of Florida without regard to conflict of law principles. You and Foxx Portfolio Group submit to the personal and exclusive jurisdiction of the state and federal courts located within Osceola County, Florida for resolution of any lawsuit or court proceeding permitted under this Agreement. We operate the Service from our offices in Florida, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
18.3 Third Party Rights. This Agreement is between you and us. Except where otherwise provided for in this Agreement, no other person shall have any rights to enforce any of its terms.
18.4 Consent to Electronic Communications. By using the Service and Properties, you acknowledge that the Service includes certain electronic communications from us such as SMS text communications and as further described in our <Privacy Policy> (if applicable) and you consent to receiving such electronic communications. Please read our <Privacy Policy> to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
18.5 Contact Information. The Service is offered by Foxx Portfolio Group, Inc., located at 2910 Park Pond Way, Kissimmee, FL 34741, Attention: Legal Department. If you have a question or complaint, you may contact us by sending correspondence to that address or by emailing us at myagent@foxxteam.com or calling us at (407) 544-4300. You can access a copy of this Agreement by clicking <Hyperlink to printer-friendly TOS>.
18.6 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or Properties, or to receive further information regarding use of the Service or Properties.
18.7 No Support. We are under no obligation to provide support for the Service or Properties. In instances where we may offer support, the support will be subject to published policies.
18.8 Force Majeure. We will not be liable to you or be deemed to be in breach of this Agreement by reason of any delay in performing, or any failure to perform, any of its obligations, if the delay or failure was due to any cause beyond our reasonable control including but not limited to severe weather, power, or other utility cut-off, burglary, natural disaster, strikes, governmental action, pandemic, terrorism, war, civil unrest, or other similar events of “force majeure”.
18.9 Attorneys’ Fees and Expenses. If we are required to engage legal counsel to enforce the conditions of this Agreement, to collect any amounts due, to remove you or your belongings from a Purchased Property, you shall be responsible for all lawyers’ fees and expenses incurred in connection with the foregoing.
18.10 International Use. The Service and Properties are hosted and managed in the United States. We make no representation that the Service is appropriate or available for use outside of these countries or territories. Access to the Service or Properties from or in countries or territories or by individuals where or for whom such access is illegal is prohibited.
