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Terms & Conditions

Updated January 22, 2021

1. Introduction

Welcome to Funnel. Please review these Terms of Service and our Privacy Policy carefully, since they govern your relationship with Funnel.

Specifically, these Terms of Service constitute a legal contract (the “Agreement”) between you and Funnel Leasing Inc. (“Funnel”, “we” or “us”) that govern your use of:

  • Funnel’s websites (including Funnel.com , Funnellistings.com, funnelleasing.com, and urbanapt.com, the “Sites”);
  • Applications and related application programming interface (which may also include data made available in JSON format via HTTP, a data feed in XML format via HTTP and/or any data powering an embedded widget, collectively, the “API”); and
  • any related applications and features offered via the Sites or API, (collectively, the “Services”).

Please note that this Agreement also incorporates by reference and specifically includes (i) the terms of any Order Form, Statement of Work,  or similar agreement you have entered into with Funnel (whether by signature or click-through (each a “Order Form”) that references these terms, (ii) our Privacy Policy (iii) any other additional terms, guidelines or policies conveyed directly to you via the Services and (iv) any modifications to any of the foregoing that we make and publish to the Site.

By downloading, accessing, browsing or using any part of the Services, you are agreeing to the terms of this Agreement. If you do not agree to all the terms and conditions of this Agreement, you do not have any right to access or use the Services.

2. IMPORTANT LEGAL ITEMS

 

a. Website Services

If agreed to specifically (as further set forth herein), the Services may include certain website development and deployment elements. Your access to any such elements, together with any deliverable and additional Services provided therewith (together the, “Website Services”) is subject to the additional terms and conditions set forth at the end of these terms. Please see “WEBSITE SERVICES ADDENDUM”.

 

b. API Services

Your access to and use of Funnel’s API and all Services provided therewith (together the, “API Services”) is subject to the additional terms and conditions set forth at the end of these terms. Please see “API SERVICES ADDENDUM”.

 

c. Disputes

We sincerely hope to resolve any issues that may arise directly with you, to your satisfaction. However, if necessary, this Agreement (i) requires all matters to be settled by binding, individual arbitration or via small claims court and (ii) includes a waiver of certain rights, including the ability to form class actions. Please see “Dispute Resolution; Arbitration, No Class Actions” for more.

 

d. Updates to These Terms

We may modify these Terms and post a copy of the amended Agreement at Funnel Terms of Service. You should check there periodically for changes. When practically possible, we will use reasonable efforts to notify you of any material changes to your rights via additional methods, such as via the Services and/ or by sending a notice to the email address last associated with your account. By accessing the Service after updates to the Agreement are posted, you agree to be bound by the updated terms.

 

e. Age and Consent Requirements

You must be at least 18 years old to enter into this Agreement and to use the Services. By using the Services, you represent that you (i) have read, understood and agree to be bound by this Agreement and (ii) are at least 18 years old.

If you are entering into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind such entity to this agreement, in which case the terms “you” or “your” shall refer to such entity. All references in the Agreement to “access” or “use” (or similar phrase) by you are deemed to include access or use by such affiliate or third party, and you acknowledge and agree that a breach by such party of any provision of this Agreement shall be deemed a breach by you.

 

f. Privacy

By agreeing to these terms, you also agree to the terms of our Privacy Policy, relative to any data that we may collect, store and use via the Site and the Service. Please review it carefully. By creating a Services account, you consent to receive service-related communications from us. We may also send you promotional communications via email. If we do, you may opt out of receiving promotional emails and you can also contact our customer care to adjust your messaging preferences. Our Privacy Policy will also govern our collection, storage and use of any User Data (as defined below) or personal or non-personal information that we may collect from or about any other persons via the Services.

 

3. The Services

 

a. Generally

The Services connect property management companies, landlords and owners with real estate brokers, agents and potential renters, and facilitate information management, communications and other interaction between all parties involved in the marketing, management, rental and sale of real property. Certain elements of the Services may only be accessible via use of our API and/or via the agreement to additional Order Form terms.

The Services are primarily intended for use by property management companies, landlords and owners, real estate brokers, agents and potential renters and we may offer different tiers of Services, including at different price points and with different features and functionality, to our varying user base. We may also offer geographically distinct or limited versions of the Services.
The Services that you sign up and register for will be the only version of the Services that you are entitled to access.

Funnel does not:

  • broker, lease, or sublease or offer to broker, lease or sublease, or own apartments directly and is not a party to any transaction between landlords (including, as applicable, property management companies and/or property managers) and renters, 
  • guarantee or ensure any apartment or any transaction between a renter and landlord,
  • execute any lease or sublease on behalf of renters or landlords 
  • act as a property manager, broker, payment processor, money transmitter, payment manager, debt collector, or credit reporting agency, or 
  • guarantee any results from using the Services.

b. Access to the Services

Subject to the terms and conditions of this Agreement and in some cases, your agreement to an applicable Order Form, Funnel may provide the Services, which are selected by you, solely for your own use, and not for the use or benefit of any third party. Certain subsets of the Services may require that you be a member in good standing of certain trade groups, and you will not be allowed to access the subset that requires trade group membership unless you can prove that you are a member in good standing.

 

c. Permitted Purpose

You may only access and use the Services, including but not limited to any Content and/or End User Information (each as later defined herein) for the Permitted Purpose and otherwise solely as permitted under the terms of this Agreement. As used herein and unless you otherwise receive our express written consent in any case, the “Permitted Purpose” means if you are a property management company, landlord and owner, real estate broker, or agent for the managing, leasing and marketing of your inventory and/or solely to search and locate available listings and to communicate with property management companies, landlords and owners with real estate brokers, agents and/or potential renters. If you access Website Services or API Services or any other specific Services set forth in an Order Form, your Permitted Purpose may be expanded or otherwise further delineated thereon.

 

d. Registration and Security

As a condition to using the Services, you must have a connected device that meets our then-current operating requirements. Additional requirements may be applicable for additional services, such as the API Services. You may also be required to create a Services account and provide certain registration information to us. You agree that any information that you provide to us (at registration or otherwise) will be accurate, complete, and that you will keep it up to date. Your failure to do so will constitute a breach of this Agreement, which may result in termination of your access to and use of the Services. You agree to immediately notify us of any suspected unauthorized use of your account or any breach of your account’s or the Service’s security. We may refuse Service membership or access to anyone.

You are responsible for maintaining the confidentiality of your Funnel password and account and for all activities that occur in connection with these.

As a condition to using certain of the Services, you may be required to meet certain occupational or industry criteria. Funnel may limit the use of Funnel Listings to property management companies, landlords and owners, real estate brokers, agents and potential renters, and other individuals and entities involved in the business of renting and selling real property. Funnel may require license information and employment verification from some users. You irrevocably authorize Funnel to disclose your personally identifiable information at the request of any state, federal or other governmental agency or in response to any judicial process (including, without limitation, a subpoena).

 

e. Service Changes

Funnel may change, suspend or discontinue the Services for any reason, at any time, including the availability of any feature or Content. Funnel may restrict your access to parts or all of the Services without notice or liability. If at any time you do not agree to these terms and conditions, you must terminate your use of the Services. You will still remain liable for any obligations incurred or charges accrued on or before the date of termination. You certify to Funnel that if you are an individual (i.e., not a corporation) you are at least 18 years of age. You also certify that you are legally permitted to use the Services and access the Site.

 

f. Availability; Disclaimer

While Funnel intends to make the Services available on a twenty-four hours a day, seven days a week basis, there will be occasions when the Services will be interrupted for maintenance, upgrades and emergency repairs or due to failure service providers or other backend components, of telecommunications links and equipment or other circumstances outside of Funnel’s reasonable control. Funnel intends to take reasonable steps to minimize such disruption where practically possible, at Funnel’s discretion. However, Funnel will not be liable in any event to you or any other party for any suspension, modification, discontinuance or lack of availability of the Site, the Services, Funnel Content or Your User Content (each as defined herein), your Funnel Site (as defined herein), and/or the API.

4. Charges

a. Free Services

Certain aspects of the Services may be made available to you for free. However, we do not guarantee to offer or maintain any free Services tiers and we may add charges to existing tiers at any time upon notice.

b. Paid Services

When you order any paid Services, the fee terms will be presented to you within the Services, prior to your purchase. At that time, we may communicate additional terms relating to your purchase. Any such terms will become a part of this Agreement. If you do not agree to any such term, your only remedy is not to complete the order. All amounts due will be paid in US Dollars. Any pricing terms that are presented to you on your Order Form may have been rounded up or down to the nearest whole dollar numbers for display purposes. In that case, your actual charges may reflect a slightly higher or lower actual amount that will in no case be more than 99 cents higher or lower than the price that was presented to you on your Order Form. We may change our then-current pricing at any time via notice on the Site, email or other communication to you. However, we will not increase pricing for any Services that you are currently receiving unless we provide notice to you via email with an option for you to opt-out and cancel your membership.

c. Subscription Service

  • Automatic Renewal. Most of our Services, including our data and marketing platforms, Website Services and API Services are subscription-based and automatically renew until either party terminates. This means that (i) we will automatically charge you a recurring membership fee for the period stated during your purchase path or in your Order Form and (ii) your subscription membership will automatically renew, for the same period as the initial term, unless you notify us in writing, at least thirty (30) days prior to the then-current termination date. Unless your online purchase path or Order Form specifies otherwise, your subscription Services will be for an annual term and will continue until you or we terminate as per your agreement. You agree to be charged by Funnel automatically on a recurring basis as indicated in your agreement.
  • Pricing; Automatic Increases. Your initial subscription Services will be charged as set forth in your Order Form. Upon the automatic renewal of any term of Services that is at least 12 months and upon any subsequent 12-month renewal period, we may automatically (without advance notice to you) increase the price of your subscription Services by up to 10% of the prior rate (excluding any taxes) for your renewal term. You hereby agree to any such increase as a condition to our allowing your membership to renew. Any such increase will be communicated to you after you have renewed but you can always contact us prior to your membership expiration date to find out what, if any, mandatory pricing increase will be in your subscription renewal.
  • Other Membership Changes. In addition to our automatic price increases, we may seek to further increase your subscription pricing or otherwise change your subscription terms but, in that case, we will notify you and you may decline to accept such change and terminate your membership.
  • Non-Renewal Notice. You can send us your non-renewal notice for your subscription membership by emailing us at billing@funnelleasing.com at least thirty days prior to your membership expiration.

d. Payment

Your Order Form or online purchase path will state whether your Services will be payable automatically or via an invoicing process.

  • Automatic Billing. For automatic billing, by providing a credit card or other payment method that we accept, you authorize us (or our third-party payment processor) to charge your payment method for the total amount of any order made to your Services account. We may issue a charge authorization after you place your order and charge you at a later point and/or we may charge you immediately upon purchase. If your payment method cannot be verified, is invalid or is otherwise not acceptable, your order may be refused, suspended or cancelled. If you want to change or update your payment information, when you make your next purchase, you can choose to add a new card or payment method and swap it at that time. You may also contact our customer care at support@FunnelLeasing.com.
  • Invoiced Billing. For Services billed via invoice, unless we expressly agree otherwise on your Order Form, your payment will be due twenty (20) calendar days from the date of the invoice. You may also contact our billing department at billing@funnelleasing.com.
  • Payment of Fees. Client will pay Funnel the fees as set forth on the Order Form or Statement of Work (the “Fees”). All payments are due twenty (20) calendar days from the date of the invoice. Overdue amounts will be subject to interest of 1.5% per month until payment in full for such amounts is received. All Fees paid are non-refundable. If Client elects to pay via credit-card or other third-party payment platform, then a three percent (3%) processing fee shall apply.  Funnel and/or its third-party payment platform may store Client’s payment information unless otherwise directed, and Funnel shall maintain authorization to bill and charge Client’s credit card during the duration of this Agreement.  During the term of this Agreement, Client shall remain responsible for updating expiration date and other payment-related information.  In the event Client fails to update billing information or otherwise fails to pay amounts due, Client remains responsible for any uncollected amounts or fees due under the agreement.  In the event of any dispute concerning the terms and provisions of this Agreement, including any action instituted to enforce this Fees provision, then the prevailing party shall be entitled to all costs incurred, including collection agency costs and reasonable attorneys’ fees.

e. No Refunds

Any fees payable hereunder are not refundable and you will remain liable for any obligations incurred or charges accrued before your Services are terminated. Further, you will not be permitted to re-activate a terminated Services account if you have any outstanding, owed payment obligations, until you repay such obligations (see “Termination”).

f. Taxes; Other Charges

Our posted prices exclude all banking fees, taxes, levies, duties or other like amounts that may be assessed by taxing authorities or any other governmental entity arising as a result of the provision of Services by Funnel to you under this Agreement (excluding only United States income taxes imposed on Funnel). Any such taxes or other charges may be added to your total charges and will be payable by you. In the event you are required to withhold any portion of the Services fees due to payments to banks or taxing authorities, (i) you agree to do so and to indemnify Funnel for any liability resulting from your failure to make (or accurately make) such withholdings, and (ii) Funnel reserves the right to adjust the pricing of the Services so that you are responsible for payment to Funnel of the full amount of the Services, net of any such withholdings. We will communicate any such charges on your invoice, when they become due and payable. If you do not agree to any taxes or other specifically added charges added to your order, do not confirm the order and complete the purchase. For any subscription Services, if you do not agree to any changes in such added charges, your only remedy is to cancel your membership.

 

5. Content

Content provided or presented to you via the Services (“Content”) shall include Funnel Content and User Content, as defined herein.

 

a. Funnel Content

Any content, data or other information provided or otherwise made available to you via the Services and all other content, data and information collected by Funnel through the Funnel Services shall be “Funnel Content”. Funnel Content will include, but not be limited to, any real estate listing information. For ownership purposes, Funnel Content is separate from your User Content (as defined below). You acknowledge and agree that, as between you and Funnel, Funnel owns all right, title and interest in the Funnel Content (including, to the extent that any User Content is included therein as described below). Subject to the limitations and other terms and conditions of this Agreement and solely for the Permitted Purpose, you may use the Funnel Content as part of your use of the Services (see also “Our License To You” below).

 

b. Your User Content

Any content that you provide to us or that we collect in or through your use of the Services is your “User Content”. As between you and Funnel, Funnel agrees that you own and will retain all right, title and interest to your User Content. However, you agree that Funnel will be permitted to use any User Content that it collects without restriction other than as set forth in our Privacy Policy, in perpetuity (see also “Your Licenses to Us” below). This usage can extend but not be limited to, usage within the Services, data analytics, product development, promotional and marketing and any other business purpose, subject to applicable law. For clarity, this means that Funnel may add your User Content to its own Content and include it as Funnel Content in its provision of Services. To the extent that Funnel adds your User Content to any other Content, Funnel shall solely own the aggregated result. As part of (but not in limitation of) the foregoing, you agree that (a) Funnel shall have the right to compile User Content and to use such compiled User Content from you and other users for any commercial purpose, including but not limited to offering the compiled User Content through additional media, and (b) Funnel shall have the exclusive ownership rights to, and the exclusive right to use and exploit, such compiled User Content as a compiled copywritten work, whether offered through the Services or any other media. You acknowledge that Funnel will not, and is under no obligation to, offer payment for User Content you contribute. Funnel reserves the right to remove any User Content from the Site and the Services at any time, for any reason or for no reason at all. All information transmitted through the Services is the sole responsibility of the person from whom such information originated. Funnel cannot guarantee the identity of other users with whom you interact in the course of using the Services or the accuracy of information provided about them. Funnel does not assume liability for any User Content, including any property listings posted on the Services. You are responsible for all User Content posted under your username. If you believe User Content residing on the Site or the Services infringes a copyright, please contact us at the address listed below.

 

c. Feedback

Any feedback relating to the Services, including but not limited to, questions, comments or suggestions about the Services, (“Feedback”) submitted to Funnel shall become the property of Funnel, and you hereby assign any and all rights in the Feedback to Funnel as consideration for access to the Services. Funnel will not be required to treat any Feedback as confidential and will not be liable for any ideas or incur any liability as a result of any similarities that may appear in our future Services or operations.

 

6. Your Privacy and Security Commitments

a. User Data

If you collect any information that identifies an individual or relates to an identifiable person (“Personal Information”) in connection with your use of the Services, you will provide and adhere to a privacy policy that clearly and accurately describes to such users what information you collect and how such information is used and shared with third parties. You will make available to Funnel your privacy policies and procedures upon request. You will comply with all applicable laws, regulations and third-party rights (including without limitation, the CAN-SPAM Act of 2002 and all laws regarding data privacy and the import and export of data) in connection with your activities under this Agreement.

b. Information Security.

You shall implement and maintain reasonable administrative, technical and physical safeguards against the destruction, loss, alteration or unauthorized disclosure of Personal Information.

c. Incident Management and Data Breach Response.

You shall maintain reasonable and appropriate security incident response policies and procedures. To the extent that you utilize the Website Services, the API Services or any other aspect of the Services to capture and store Personal Information, you shall promptly notify (but not later than twenty-four (24) hours after discovery or as required by law or regulation) Funnel in the event that you become aware of known or suspected unauthorized and/or unlawful access to, acquisition or processing of Personal Information whether in electronic or hard-copy form, or interference with system operations in an information system whether between or among your subsidiaries and affiliates, subcontractors or any other person or entity acting on behalf of you (“Data Breach”). You shall (i) investigate and remediate the effects of the Data Breach, and, (ii) if expressly requested in writing by Funnel, notify data subjects and/or regulators of the Data Breach. Funnel shall have the right to participate in any investigation or analysis relating to a Data Breach with your full cooperation. You shall bear the costs and expenses (including attorneys’ and investigators’ fees and expenses) associated with a Data Breach, including any costs or expenses of (1) providing notices of a Data Breach to affected individuals, and to state, federal, and/or foreign regulatory bodies, and (2) remedying and otherwise mitigating any potential damage or harm arising from the Data Breach, as required by applicable laws or regulations or reasonably prudent under the circumstances. Notwithstanding anything to the contrary, you shall be fully liable for such costs and expenses notwithstanding any limitation or disclaimer of liability.

Data Scraping.

You will not and you will not permit any party to scrape or otherwise access any Funnel Content (or subset thereof) from your site and services. If you are aware that any party is doing, seeking or attempting to scrape or otherwise access any Funnel Content in a manner that is not exactly as authorized hereunder, you agree to immediately notify Funnel in writing.

 

7. Our Licenses to You

a. The Services

The Services are licensed, not sold, to you for use only under the terms of this Agreement. This license granted to you is limited to a non-exclusive, non-transferable, limited license to use the Services for the Permitted Purpose during the term of the Agreement. The terms of the license will govern any upgrades provided by us that replace and/or supplement the original version of the Services, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.

 

b. Funnel Content – Your Limited Rights, Restrictions and Limitations

Funnel hereby grants to you during the term of the Agreement, a non-exclusive, non-transferable, revocable, limited, royalty-free (except for any charges and fees that may apply) license, in each case, solely if and only as may be authorized by your Order Form, to (i) if allowed by your Order Form, display all Funnel Content within your internal database and print and/or transmit Funnel Content electronically and/or (ii) if allowed by your Order Form, display certain Funnel Content, on your website and/or public-facing mobile applications. In all cases, you will not (i) use any Funnel Content in a manner that is not contemplated and expressly authorized by your Order Form, (ii) copy or store any significant portion of the Funnel Content in any form or create derivative works of the Funnel Content; (iii) modify Funnel Content, except solely to the extent necessary to fit the format and “look and feel” of the Services on your platform on which the Funnel Content is displayed; (iv) use the Funnel Content in a manner that violates any applicable laws or regulations; or (v) use the Funnel Content in combination with any third party content or data (excluding your User Content, as permitted hereunder), for any commercial purpose or in any manner not expressly approved by Funnel in writing.

c. Our Marks

Solely if and only as may be authorized by your Order Form, Funnel hereby grants to you during the term of the Agreement, a non-exclusive, revocable, worldwide, fully paid up, royalty-free license to publicly display the Funnel Marks as part of your use of the Services where Funnel Content is displayed or delivered, subject to Funnel’s prior written approval in each instance. You must comply with any branding guidelines that Funnel may provide to you from time to time, and shall prominently display Funnel Marks on all components of Your Services (e.g., purchased applications or services) that presents or delivers any content, data or other information provided or otherwise made available to you under this Agreement. If Funnel objects to your use of any Funnel Mark at any time, you will promptly comply with Funnel’s requests for changes or removal, and you will promptly replace any removed use with a corrected one supplied by Funnel where necessary to comply with the terms of this Agreement. All use of the Funnel Marks by or on behalf of you and all goodwill arising therefrom will inure to the sole benefit of Funnel.

 

d. Open Source Software

Certain items of software that comprise part of the Services platform may be subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of this Agreement. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms of any applicable end user license for the Open Source Software. If required by any such license, Funnel makes such Open Source Software, and Funnel’s modifications to that Open Source Software, available by written request.

 

e. Rights Reserved

Except as expressly set forth herein, you are not granted any other rights in or to the API, the Funnel Content, the Funnel Marks, or any other intellectual property owned or licensed by Funnel. All rights not expressly granted herein are reserved

 

8. Your Licenses to Us

a. User Content

You hereby do and shall grant Funnel a perpetual, non-exclusive, worldwide, royalty-free, transferable, sublicensable right to use, modify, reproduce, distribute, prepare derivative works of, display, publish, perform and otherwise fully exploit such User Content (including all related intellectual property rights) in any media format and through any media channel and to allow others to do so. You also hereby do and shall grant each user of the Services a perpetual, nonexclusive license to use your User Content as permitted through the functionality of the Services and under this Agreement. You warrant, represent and agree that you have the right to grant Funnel the licenses set forth above; and the posting of your User Content on or through the Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person. You agree to pay for all royalties, fees, and any other monies owing any person by reason of any User Content you posted to or through the Services.

 

b. Your Marks

To the extent that we need to utilize any of your trademarks, service marks, logos or branding (“Your Marks”), as part of our provision of Services to you (such as, via an API Services or Website Services integration), you hereby grant to us, during the term of the Agreement, a royalty-free, fully paid-up, worldwide, right to use your Marks, solely as part of and pursuant to the foregoing. The foregoing license is also applicable to our use of Your Marks in any of our marketing or promotional materials and Site and, solely in that capacity, will be extended beyond the term of the Agreement.

 

9. Your Commitments

a. Specific Commitment 

To maximize our ability to successfully provide the Services to you, you agree to:

  • display the Services on your site and/or application as they are provided to you and pursuant to any instructions and guidelines provided in or in conjunction with your Order Form, without alteration other than basic sizing unless we expressly approve;
  • provide such materials or information as Funnel may reasonably request to carry out the Funnel Services in a timely manner and ensure that the foregoing is complete, current and accurate;
  • obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to your business and/or Your Services;
  • not violate any applicable federal, state, or local law or regulation including, but not limited to, any fair housing laws or regulations or applicable real estate licensure or brokerage regulations, or cause injury to any person;
  • provide content that is to the best of your knowledge complete, truthful, and accurate;
  • not mislead, deceive, defraud, seek to mislead, deceive or defraud, make any misrepresentations to, or seek to make misrepresentations to, any User of the Site.

 

b. Compliance With Fair Housing Laws

All content is subject to federal fair housing laws, which make it illegal to indicate in any advertisement any preference, limitation, or discrimination because of race, color, religion, sex, physical or mental disability, and/or familial status. Your state jurisdiction may also prohibit any preferences based on sexual orientation, marital status, ancestry, source of income, or other criteria (together, applicable federal and state fair housing laws are referred to as “Applicable Fair Housing Laws”). If you have any question about the fair housing laws and housing discrimination in general, please consult your counsel.

 

c. Compliance; Conflicts

You hereby represent and warrant that (i) you have full power and authority to enter into this Agreement and to grant the licenses granted to us, (ii) you will comply with all applicable governmental rules, laws, policies and regulations in connection with Your Services and your performance under this Agreement; (iii) your performance of this Agreement will not violate, conflict with, interfere with, result in a breach of, or constitute a default under any other agreement to which you are a party; and (iii) any site or application where you use the Service will not violate any intellectual property rights or other rights of any third party. In addition, to the extent that we condition your access to any Services upon your membership in a trade group or licensed profession, you hereby represent and warrant to us that you will have a valid membership, license or other qualification (your “Qualification”) and that you will maintain such Qualification in good standing, during the Term. You further agree that if your Qualification lapses for any reason during the Term, you will cease to use the Services with no refund of any amounts paid and no cessation of your obligation to continue to pay any subscription or other amounts that still may become due during the Term of your Services. You agree that if we become aware of any lapse in your Qualification, we may cease to provide Services to you until we are satisfied that your Qualification has been renewed, provided that we may continue to charge you for previously committed Services during such time.

 

d. User Information.

You agree that if you contribute property listings to the Services, you will use reasonable efforts to ensure that all information you provide is accurate and up-to-date. You represent, warrant and agree that you will not contribute any User Content that (a) infringes or violates any copyright or trademark or trade secret of another party, (b) infringes any intellectual property right or the privacy or publicity rights of another, (c) is libelous, defamatory, obscene, pornographic, harassing, hateful, offensive or otherwise violates any law or right of any third party, (d) contains a virus, trojan horse, worm, or other computer programming routine or engine intended to detrimentally interfere with any system, data or information, or (e) remains posted after you have been notified that such User Content violates any of sections (a) to (d) of this sentence.

 

e. Restrictions; Prohibited Uses and Behaviors

You understand and hereby acknowledge and agree that you may not and warrant that you will not (nor will you permit any third party to) do any of the following:

  • use the Services, any Funnel Content, or any analysis from or derived from the same to create or aid any business that is competitive with the Services; nor may you attempt to do any of the same with any third party or via any means;
  • separately extract and provide or otherwise use data elements from the Funnel Content to enhance your data or the data files of third parties;
  • post or transmit, or cause to be posted or transmitted, any communication designed or intended to obtain password, account, or private information from any Funnel or Funnel Listings user;
  • except with respect to any of your authorized employees or contractors (only if you have paid for their access) who may only use it on your company’s behalf for the Permitted Purpose, sell, distribute, publish, display, license or transfer Funnel Content with others;
  • use any part of the Site, the API or Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store material that is deemed threatening or obscene, or engage in any kind of illegal activity. You will not run automated scripts or bots on the Site, the API or through the Services, nor will you use the Site or Services to send spam;
  • modify, publish, transmit, participate in the transfer or sale of, reproduce (except as provided in this Section of this Agreement), create derivative works based on, distribute, perform, display, or in any way exploit, any of the Funnel Content, software, materials, or Services in whole or in part;
  • interfere with, modify or disable any features, functionality or security controls of the Services, the Site and/or the API, defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms for any of the foregoing;
  • take any action that imposes an unreasonable or disproportionately large load on Funnel’s hardware and software infrastructure;
  • reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services, the Site, the API or any software, documentation in any way through any medium or otherwise use any of the Services, Site or API in such a manner so that the Services, Site or API or any element thereof appear to be part of your or a third party’s website (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law);
  • transmit any viruses, malware, Trojan horses, time bombs, or any other similar harmful software via or in connection with the Services, the API or the Site or otherwise;
  • embed the Services within your or a third-party website in a manner that violates any of our guidelines and/or that is designed to make it appear that you are the provider and owner of the Services;
  • use the Services and/or the API in a manner that violates any applicable laws, regulations or rights of individuals, including but not limited to intellectual property rights and privacy rights; 
  • create or disclose metrics about, or perform any statistical analysis of, the API, Funnel Content, and/or Funnel Services for competitive purposes; 
  • cache (in excess of 48 hours), collect, compile, store, transfer or utilize Funnel Content or any other data derived from Funnel, Funnel’s computer system(s) or database(s); 
  • submit Content that is patently offensive to the online community, such as content that reflects or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
  • engage in activity or submit Content that could be harmful to minors;
  • engage in activity or submit Content that harasses or advocates harassment of another person;
  • engage in activity, submit Content or Reference Information, or promote information, that is fraudulent, false, misleading, inaccurate and/or constitutes a misrepresentation, or promotes illegal activities or conduct that is abusive, threatening, obscene, vulgar, defamatory, libelous or otherwise objectionable;
  • submit Content that contains restricted or password-only access pages, or hidden pages or images;
  • submit Content that displays pornographic or sexually explicit material of any kind; and/or
  • submit Content that provides instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses.

You further agree not to use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to (i) discover, access, acquire, copy, index or monitor any portion of the Services, the API or the Site or any Funnel Content or end user information, or (ii) aggregate, consolidate or otherwise arrange, display or make available Funnel Content in combination with your or any third party content, for any commercial purpose or in any manner that is not the Permitted Purpose or otherwise not expressly approved by Funnel in writing.

 

10. No Warranty; Disclaimers

Funnel has no special relationship with or fiduciary duty to you. You acknowledge that Funnel has no control over, and no duty to take any action regarding: which users gain access to the Services; what Content you access via the Services; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You release Funnel from all liability for your having acquired or not acquired Content through the Services. Funnel is neither an agent of nor is connected with any individual or business with which users interact through the Services. Funnel does not control any entity with which you may interact through the Services, and accepts no responsibility or liability for any act, omission or Content posted on the Services by any such entity. You hereby waive any and all legal or equitable rights or remedies you have or may have against Funnel with respect to acts and omissions by such entities. Funnel makes no representations or warranties concerning any property listed on the Services and is not liable or responsible for any property you encounter through the Services.

The Services may contain, or direct you to sites containing, information that some people may find inappropriate. Funnel makes no representations concerning any Content contained in or accessed through the Services, and Funnel will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Services. Funnel cannot and does not monitor all of the Content posted or transmitted by You and other third-party information providers. Funnel reserves the right, in its sole discretion, to monitor, refuse to publish, remove, delete, move or edit any Content without notice, at any time for any reason.

Funnel makes reasonable efforts to require users who post property listings or other Content on the Services to ensure that such Content is as accurate and up-to-date as reasonably possible. However, pricing, availability and other information related to properties may change rapidly, so Content on the Services may be inaccurate or outdated.

THE SERVICES, CONTENT, API, SITE AND ANY FUNNEL SITE, OR SOFTWARE ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

TO THE FULLEST EXTENT ALLOWED BY LAW, FUNNEL DISCLAIMS ANY LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, RELIABILITY, AVAILABILITY, COMPLETENESS, LEGALITY OR OPERABILITY OF THE MATERIAL OR SERVICES PROVIDED THROUGH THE SERVICES. BY USING THE SERVICES, YOU ACKNOWLEDGE THAT FUNNEL IS NOT RESPONSIBLE OR LIABLE FOR ANY HARM RESULTING FROM (1) USE OF THE SERVICES; (2) DOWNLOADING INFORMATION CONTAINED ON THE SERVICES; (3) UNAUTHORIZED DISCLOSURE OF IMAGES, INFORMATION OR DATA RESULTING FROM THE UPLOAD, DOWNLOAD OR STORAGE OF CONTENT ON THE SERVICES; (4) THE INABILITY TO ACCESS OR RETRIEVE ANY CONTENT FROM THE SERVICES, INCLUDING, WITHOUT LIMITATION, HARM CAUSED BY VIRUSES OR ANY SIMILAR DESTRUCTIVE PROGRAM; (5) CONTENT POSTED IN ANY COMMUNITY AREA OF THE SERVICES; AND (6) ANY USER’S VISIT TO, INTERACTION WITH OR TRANSACTION OF BUSINESS WITH AN INDIVIDUAL OR BUSINESS ENCOUNTERED THROUGH THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY HOSTING COMPANY OR OTHER VENDOR THAT WE INTRODUCE YOU TO IN RELATION TO THE WEBSITE SERVICES.

 

a. Third Party Sites and Services

Users of Funnel may gain access from the Services to third party sites on the Internet. Third party sites or services are not within the supervision or control of Funnel. Funnel makes no representations or warranties about any third-party site or resource and does not endorse the products or services offered by third parties. Funnel disclaims all responsibility and liability for content on third party websites. Any transactions or activity between you and any third-party site or resource are solely between you and the applicable third party. You hereby irrevocably waive any claim against Funnel with respect to third party content. Third party providers of ancillary services may require your agreement to additional or different license or other terms prior to your use or access of their sites or services. Any such agreement shall not in any way modify your Agreement here with Funnel. If you transact business with a third party you encounter through the Services, you agree such third party may share details of your transactions with them with Funnel.

 

b. Indemnity

You will indemnify and hold Funnel and any of its affiliates, their directors, officers, employees, investors, agents, and representatives harmless from and against all damages, losses, and expenses of any kind, (including reasonable legal costs and fees), from any claim, action or demand or arising out of (i) your access to or use of the Services and/or in relation to any activity you undertake as part of or resulting from your use of the Services, (ii) your use of any Content, (iii) your violation of this Agreement, or your infringement, or the infringement by any third party using your registration information, of any intellectual property or other right of any person or entity.

 

c. Limitation of Liability

YOU AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES (TO THE EXTENT APPLICABLE, UNINSTALLING ANY SOFTWARE, API OR OTHER INTEGRATED ELEMENTS).

IN NO EVENT SHALL FUNNEL, ITS AFFILIATES, AND ANY OF THEIR DIRECTORS, OFFICERS, INVESTORS, EMPLOYEES, MEMBERS, AGENTS AND REPRESENTATIVES BE LIABLE WITH RESPECT TO THE SERVICES FOR (A) ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND; (B) DAMAGES FOR LOSS OF USE, PROFITS, DATA, IMAGES, USER CONTENT OR OTHER INTANGIBLES; (C) DAMAGES FOR UNAUTHORIZED USE, NON-PERFORMANCE OF THE SITE, ERRORS OR OMISSIONS; OR (D) DAMAGES RELATED TO DOWNLOADING OR POSTING CONTENT.

FUNNEL’S LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF $100 USD OR THE AGGREGATE AMOUNT(S) PAID BY YOU, IF ANY, FOR ACCESSING THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO YOUR CLAIM.

THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE FUNNEL’S (INCLUDING ITS AFFILIATES AND THEIR INVESTORS, OFFICERS, DIRECTORS AND EMPLOYEES) SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY.

IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 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.”

NO PERSON ACTING ON FUNNEL’S BEHALF HAS ANY AUTHORITY TO MAKE OR CLAIM ANY REPRESENTATION, TERM, PROMISE, CONDITION, STATEMENT, WARRANTY, OR INDUCEMENT (COLLECTIVELY, “INDUCEMENT”) NOT EXPRESSED HEREIN. BY ACCEPTING THESE TERMS AND CONDITIONS, YOU REPRESENT THAT YOU ARE NOT RELYING ON ANY INDUCEMENT THAT IS NOT EXPRESSED IN THIS AGREEMENT.

 

d. Waiver of Sbrogation

You waive any rights your insurance company may have to be reimbursed by Funnel or its representatives for money paid to you or on your behalf.

 

e. Confidential Information

You acknowledge and agree that the terms of your Order Form, any other negotiations that we may enter into with you, any product feedback that you provide and any non-public product roadmaps or other information that we provide to you will be our confidential information. During and after the Term of this Agreement, you will not use (except for performance of this Agreement) or disclose any such confidential information to any party without our prior written consent and you will protect such information from public disclosure. You may, however, disclose any such confidential information only to those employees, advisors and agents of yours who have a need to know such information (and only to the extent necessary) in support of your business and who are bound by confidentiality and non-disclosure obligations at least as protective as those set forth herein.

 

f. Termination

In the case of any Services that are provided to you without charge, either party may terminate the Services at any time by notifying the other party by any means. We may take up to thirty (30) days to process your termination notice.

In the case of Services provided for charge, except as may be set forth otherwise in any Addendum hereto or in any Order Form, Funnel may terminate this Agreement for convenience, at any time and without penalty, by providing written mail or email notice to your last provided physical address or email. You may not terminate prior to the expiration of the term of your paid-for Services. As a reminder, any subscription services will automatically renew, unless you provide a written notice of termination to us at least thirty (30) days prior your subscription expiration date (see “Subscription Services”).

In the event you or we terminate your Agreement before the end of your current term, you will be responsible for all charges remaining on your Agreement. All charges remaining on your Agreement shall be due no later than 20 days after the date you communicate your termination to Funnel (“Due Date”), and you authorize Funnel to process payment for all unpaid charges remaining on your Agreement on such Due Date. In the event of any dispute concerning the terms and provisions of this Agreement, including any action instituted to enforce this Fees provision, then the prevailing party shall be entitled to all costs incurred, including collection agency costs and reasonable attorneys’ fees.  

In all cases, Funnel may also at its sole option terminate or suspend any and all Services immediately, without prior notice or liability, for any or no reason, including without limitation if Funnel has a good faith belief that you have (i) breached any of the terms or conditions of this Agreement; (ii)repeatedly or purposefully posted inaccurate or outdated User Information; or (iii) failed to honor appointments booked using the Services. Upon any termination, your right to use the Services and access Content will immediately cease. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.

Upon termination of this Agreement for any reason (i) all licenses granted to you hereunder shall automatically terminate and you will (i) remove any of the Services implemented on your properties, (ii) delete any Funnel Content and Funnel Marks from the same and from your possession and (iii), to the extent applicable, you will either return to Funnel, or destroy and remove from all computers, hard drives, networks, and other storage media, all copies of any materials licensed pursuant to this Agreement and any Funnel Confidential Information in your possession; and upon request you will promptly certify in writing to Funnel that such actions have been taken.

Following any termination of Services, you will remain liable for any obligations incurred or charges accrued prior to the termination. As stated earlier, you will not be permitted to re-activate any terminated Services account (or open a new account) if you or anyone under your control still has a delinquent prior Services account.

Upon termination, we may, but will not be obligated to continue to store any of your User Content and other data relating to your account.

g. Dispute Resolution; Governing Law; Venue

You and Funnel agree that any dispute, claim or controversy arising out of or relating in any way to the Services, this Agreement and any Order Form or other agreement or understanding entered into between you and Funnel will be determined by binding arbitration (or, if we deem the amount to be small enough in small claims court, at our choosing). You agree that, by agreeing this Agreement, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Funnel are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement and the termination of your use of or membership to the Services.

To seek arbitration or to file a small claim court action against Funnel, you must first send to Funnel, by certified mail, a written notice of your claim, including a description of the basis for the claim and the relief being sought, to: General Counsel, Funnel, Inc., 16540 Pointe Village Drive, Suite 206 Lutz, FL 33558. If we initiate arbitration, we will send a similar written notice to the email address used for your Services account. Following either party’s receipt of such a written notice, the parties agree to first use reasonable efforts to reach an amicable resolution to the claim. However, if the parties cannot reach an agreement to resolve the claim within 30 days after the notice is received, you or Funnel may commence an arbitration proceeding (or, at our discretion if we think the matter is small enough, file a claim in small claims court.)

The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The arbitrator will be bound by the terms of this Agreement. All issues will be for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration agreement. Unless the parties agree otherwise, any arbitration hearings will take place in the greater Tampa, Florida area.

Further, unless both parties agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.

YOU AND FUNNEL 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.

YOU AND FUNNEL FURTHER AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN SIX (6) MONTHS AFTER THE CAUSE OF ACTION ACCRUES OR THE APPLICABLE STATUTE OF LIMITATIONS PERIOD. OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.

A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Any cause of action arising out of or related to the Services must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.

This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, excluding its conflicts of law rules, and the United States of America. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by the state and federal courts located in the State of Florida. Use of the Services is not authorized in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation, this section.

11. Miscellaneous

Publicity

You may promote your receipt of the Services, including talking to traditional and online media and your users about your Services, so long as you do so truthfully and without implying that your Services are created or endorsed by Funnel, unless otherwise agreed in writing by Funnel. You may not issue any formal press release without Funnel’s prior written consent. Funnel reserves the right to make public statements and issue promotional materials regarding Your Services and/or the relationship formed by this Agreement without your consent.

Non-Disparagement.

Neither Party shall make any statements, written or verbal, or cause or encourage others to make any statements, written or verbal, that defame, disparage or in any way criticize the personal or business reputation, practices, or conduct of the other party, its employees, directors, shareholders, clients, consultants and officers. The parties to this Agreement acknowledge and agree that this prohibition extends to statements, written or verbal, made to anyone, including but not limited to, the news media, investors, potential investors, any board of directors or advisory board or directors, industry analysts, competitors, strategic partners, vendors, employees (past and present), and clients.

Relationship of the Parties.

The Parties are, and will be deemed to be, independent contractors with respect to the subject matter of this Agreement, and nothing contained in this Agreement and/or any Order Form will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary or other similar relationship between the you and Funnel that could result in the imposition of liability to any third party upon one party for any act or omission of the other.

Force Majeure.

Funnel shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Funnel’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.

Assignment

You may not assign any of your rights or obligations under this Agreement without Funnel’s prior written consent. Funnel may assign its rights or obligations under this Agreement at any time. Any attempted assignment, transfer or delegation in contravention of this section shall be null and void. Any authorized assignment, delegation or transfer shall inure to the benefit of each party’s respective successor and assigns.

Attorneys’ Fees.

If any proceeding is brought by either us or you to enforce or interpret any provision of this Agreement, the substantially prevailing party in such proceeding shall be entitled to recover, in addition to all other relief arising out of this Agreement, such party’s reasonable attorneys’ and other experts’ fees and expenses.

No Third-Party Beneficiaries.

You and Funnel agree that there are no intended third-party beneficiaries of this Agreement.

Notices.

Any notice in writing required or permitted by this Agreement will be deemed given (i) when delivered by hand, (ii) on the next business day after being sent by a reputable overnight courier service for next business day delivery, or (iii) on the third business day after being sent by prepaid United States mail, return receipt requested, in each case to the applicable party at the address specified in the first paragraph of this Agreement.

Severability.

If any provision of this Agreement is determined to be illegal or unenforceable, then such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in a manner that complies with applicable law. The remainder of this Agreement, if capable of performance, will remain in full force and effect.

Entire Agreement and Amendments.

This Agreement, together with any applicable Order Form (if applicable) constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous communications, representations, agreements and understandings (oral or written) between the Parties with respect thereto. If there is a conflict between this Agreement and any governing Order the Order Form shall govern.

Waiver.

No waiver of or with respect to any provision of this Agreement, nor consent by a Party to the breach of or departure from any provision of this Agreement, shall in any event be binding on or effective against such Party unless it be in writing and signed by such Party, and then such waiver shall be effective only in the specific instance and for the purpose for which it is given.

Notice.

Any notice that is required or permitted by this Agreement shall be in writing, in the English language and shall be emailed, if to Funnel, to legal@funnelleasing.com, or if to you, to the email or physical address last associated with your account. You may also deliver notices, to Funnel, Inc., 16540 Pointe Village Drive, Suite 206 Lutz, FL 33558 – Attn: Legal. You hereby consent to receiving any notices relevant to the Services or this Agreement by email without requiring a handwritten signature for such notice to be effective.

Copyright 2021 Funnel Leasing, Inc. All rights reserved.
LAST UPDATED: January 22, 2021

 

 

WEBSITE SERVICES ADDENDUM

a. Generally

Website Services typically include the development, deployment and continued hosting of a Funnel-powered website that will reside at a domain that you provide and be integrated with other elements of the Services (your “Funnel Site”). The Funnel Site will be created by Funnel, leveraging a Funnel website template that can be customized with your branding, as set forth herein and in your applicable Order Form. All additional elements relating to your Funnel Site structure and the development timeline and corresponding commitments needed from you will be set forth in your Order Form.

CHARGES

Funnel Charges

Website Services are billed on a recurring, subscription basis (see “Subscription Billing” herein) but may include additional upfront charges or other costs, depending upon your customization and implementation. The cost specifically applicable to your Website Services will be as set forth on your Order Form.

Site Hosting.

Funnel may utilize a third-party provider to host your Funnel Site. We may manage your hosting directly with such provider or we may require that you create a direct account with the provider. In all cases, we will use reasonable efforts to select a high-quality provider, but you agree that we will not be responsible for hosting outages or failures of the third-party provider.

Site Operations.

You will be responsible for maintaining your site domain and any other costs and expenses associated with managing and operating your Funnel Site.

 

b. Site Development

The Site

Funnel will develop your Funnel Site in accordance with any specifications set forth in the Order Form and these terms. Funnel has developed the Funnel Site web template(s) using standard programming languages (HTML, CSS, Javascript, etc.), that are intended to be optimized for currently major web and mobile browsers. Users of older or less capable browsers or devices may experience a less optimized design and overall experience. Funnel’s website template(s) has not been tested or built for old or abandoned browsers, for example Microsoft Internet Explorer 6 or 5.5 for Windows or Mac, previous versions of Apple’s Safari, Mozilla Firefox or Opera. The Funnel Site templates may also not be compatible with all new browsers and devices. Funnel does not guarantee improvements to Customer’s website’s search engine ranking, but the web pages that are developed are accessible to search engines.

Branding

Certain areas of the Funnel Site templates permit branding customization. For clarity, no other branding customization will be facilitated by Funnel. In addition, you acknowledge and agree that we include and require that you maintain certain Funnel co-branding (such as “Powered by Funnel”) on areas of the Funnel Site. You expressly agree not to interfere with or remove any such Funnel co-branding from your Funnel Site and you will comply with any guidelines that we may provide in that respect. You will procure your site domain and provide Funnel with necessary access tools. You will also provide any branding and related creative assets requested by Funnel, as need for Funnel to complete the site template(s). The foregoing will include but may not necessarily be limited elements of text/web copy, high resolution graphics/photos/designs, a logo, and other artwork and information. You agree to review work, provide feedback and approval in a timely and reasonable manner when requested and otherwise in accordance with any schedule(s) set out in the Order Form.

Guarantees, License and Limitations

You hereby guarantee to Funnel that all elements of any text, trademarks, or other artwork and information that you provide to us or any of our partners for inclusion in the Funnel Site are either owned by you, or that you have a valid license and permission to allow us to use them and include them within the Funnel Site, as permitted hereunder. You hereby grant to Funnel a royalty-free, worldwide, unrestricted right to use such contents through the relationship of the contract for the purpose of providing the Services. Funnel hereby grants to you a license to access, use and display your Funnel Site and any related site template tools that we make available to you, solely through the relationship of the contract set forth on your Order Form, unless terminated earlier in accordance with this Agreement. You hereby acknowledge and agree that Funnel owns and will retain ownership to all code and any site copy that is not provided directly by you and the unique combination of these elements that constitutes a complete design of the Funnel Site templates that we provide to you. You have no right to resell, license or otherwise transfer any aspect of a Funnel Site or Funnel Site template and understand that your right to access, use and display any of the same will end when your license is terminated as set forth above. Funnel makes no representations, warranties or guarantees, of any kinds, that your Funnel Site and any functionality, including any elements of the Services contained therein will always be available or error-free and you agree that Funnel will not be liable to your or any third party for damages of any kind, including but not limited to lost profits, lost savings or other incidental, consequential or special damages arising out of the operation of or inability to operate your Funnel Site or any element of it.

Funnel will use reasonable efforts to follow the Web Content Accessibility Guidelines 2.1 – Level A (as published on June 5, 2018 – currently published and available at this URL ) (“WCAG 2.1, Level A”) in the developing of and for the launch of your Funnel Site, as well as updates to it that Funnel makes. Funnel does not, however, represent or warrant that your Funnel Site will conform to WCAG 2.1, Level A, and you and Funnel agree that Funnel shall not be liable to you for any claim, loss, damage, attorneys’ fees, or costs relating to the conformance to WCAG 2.1, Level A, or alleged accessibility issues with your Funnel Site under any circumstances or legal theory, including, but not limited to, breach of contract, equitable or contractual indemnity, contribution, violation of the Americans with Disabilities Act or similar state laws or joint and several liability.

POST TERMINATION; OWNERSHIP

Following any termination of the Website Services, you understand that, except with respect to any of Your Marks, Funnel will retain ownership to all aspects of the Funnel Site design, UI and any content contained thereon and you will be prohibited from utilizing any of the same after the Term. Funnel will use reasonable efforts to maintain and store all core assets that it contributed to the Funnel Site for up to 180 days after contract termination, at which point all assets may be destroyed. You agree to store any of your own creative assets and/or any data that you may derive from your operation of the Funnel Site (solely as otherwise permitted in this Agreement) safely as Funnel is not required to keep or store any of the same.

 

 

API SERVICES ADDENDUM

a. Generally

These additional terms supplement the terms of the Agreement and specifically relate to your use of Funnel’s API, including but not limited to any XML data feed, any data transferred in JSON format via HTTP and any other data or information transferred via the API. All additional elements relating to your access to and use of the API will be set forth in your Order Form.

API ACCESS

Funnel will assign you a unique key to access and employ the API (the “API Key”). The API Key enables you to access and use the API on a nonexclusive basis. All calls to the API made by Your Services must include the unique API Key. You must keep the API Key confidential. You are solely responsible for all uses of the API under the API Key. You will not employ scripting mechanisms or otherwise programmatically register and/or attempt to generate API Keys. In addition, you must provide accurate contact information as requested by Funnel in connection with Your Services and request for an API Key, and you agree to promptly notify Funnel in writing of any changes in such information.

ADDITIONAL LICENSE TO YOU

Subject to the terms and conditions of the Agreement and the supplementary terms of this API Services Addendum, Funnel hereby grants to you during the Term, a revocable, limited, non-exclusive, non-sublicensable, non-transferable, worldwide, royalty-free (subject to any agreed to fees) license to (i) access and use the API solely for the purposes of developing, testing, displaying, and distributing the Services for the Permitted Purpose to your customers; and (ii) use, reproduce, distribute, and transmit Funnel Content solely to the extent necessary to format, display and make it available to your customers through your site and services that are made available in the United States of America. If Funnel believes, in its sole discretion, that any provision of the Agreement has been violated by you, the licenses granted to you herein may be temporarily or permanently revoked, with or without notice.

YOUR RESPONSIBILITIES.

In addition to all of the other restrictions and obligations set forth in this Agreement relative to the Services generally, you agree to comply with any instructions and guidelines provided to you by Funnel in conjunction with the API, as they may be updated from time to time.

Funnel will provide a tracking script that needs to be fired, providing Funnel’s listing ID, each time the ‘detail’ view of a provided listing is viewed, both on any internal systems used by Company, and on any public facing webpages or applications where listings are displayed.

For any listings that are contacted through your system, you must provide Funnel a record of the Funnel listing ID via a JSON feed updated no less than daily for the contacted listing, the time of contact, and the type of contact. We may require additional reasonable cooperation from you to facilitate your use of our data via the API as contemplated herein.

If requested by Funnel, you must provide Funnel with valid (and updated) user logins to (i) all systems and products required to feed your User Data to the Funnel API, specifically for Funnel’s use of the same as part of the Services described herein, and (ii) any system or service which you will be pushing any Funnel Content to or using or storing any Funnel Content within.

If any affiliate or third party accesses or uses the API on your behalf (which you will not allow without our express permission), you are responsible for ensuring such third party complies with the provisions of the Agreement at all times while accessing or using the API or any Funnel Content.

In displaying or using data from the API, you alone are responsible to follow the Web Content Accessibility Guidelines 2.1 – Level A (as published on June 5, 2018 – currently published and available at this URL ) (“WCAG 2.1, Level A”). You and Funnel further agree that Funnel shall not be liable to you for any claim, loss, damage, attorneys’ fees, or costs relating to or arising from your use of the API and conformance to WCAG 2.1, Level A, or alleged accessibility issues under any circumstances or legal theory, including, but not limited to, breach of contract, equitable or contractual indemnity, contribution, violation of the Americans with Disabilities Act or similar state laws or joint and several liability.

CHARGES

Your fees for accessing the API will be as set forth in your Order Form.

SERVICE COMMITMENTS; DISCLAIMERS

Absent any exigent circumstances, we will deliver the API via the JSON feed within five (5) business days of the effective date set forth on your Order Form.

Funnel represents and warrants to you that it shall perform the API Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services. EXCEPT FOR THE WARRANTY SET FORTH ABOVE, FUNNEL MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE API SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. ALL OF THE DISCLAIMERS OTHERWISE SET FORTH IN THE AGREEMENT RELATIVE TO FUNNEL’S PROVISION OF THE SERVICES GENERALLY SHALL ALSO APPLY TO THE API SERVICES.

API SUPPORT

You may submit inaccuracy reports by emailing support@funnelleasing.com and Funnel will respond within one (1) business day. Unless otherwise expressly agreed between the parties in writing, this Agreement does not entitle you to any support for the API. You are solely responsible for providing all support and technical assistance to end users of your sites, products and services. You acknowledge and agree that Funnel has no obligation to provide support or technical assistance to the users of your sites, products and services and you shall not represent to any such users that Funnel will provide such support. You agree to use commercially reasonable efforts to provide reasonable support to users of your own sites, products and services.