Effective Date: December 7, 2020
PLEASE BE AWARE THAT THIS TOU ALSO INCLUDES A MANDATORY, BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER THAT, AMONG OTHER THINGS, WAIVES YOUR RIGHT TO A COURT HEARING AND JURY TRIAL.
Rappaport reserves the right to modify, terminate, and/or suspend the operation of the Platform(s), as well as the provision of any or all products or services via the Platform(s), without notice or liability, at any time and for any or no reason in its sole and absolute discretion.
- License Grant.This TOU provides to you a personal, revocable, limited, non-exclusive, non‑sublicensable, and non-transferable license to access and use the Platform(s) conditioned on your continued compliance with the terms and conditions of this TOU. You may print a single print copy or make a single screen shot of the materials and information from the Platform(s) solely for your personal use, provided that all hard copies contain all copyright and other applicable notices contained in such materials and information. If you need additional rights to data or copies, please contact Rappaport at [ email@example.com ].
- Except as expressly provided herein, Rappaport does not grant any other express or implied right to you or any other person. Accordingly, you may not modify, translate, decompile, reverse engineer, create derivative work(s) of, copy, distribute, disassemble, broadcast, transmit, publish, remove, or alter any proprietary notices or labels, license, sublicense, transfer, sell, mirror, frame, exploit, rent, lease, private label, grant a security interest in, or otherwise use the Platform(s) in any manner not expressly permitted herein.
- User Obligations.You represent that you are at least the legal age of majority, that you are not a competitor of Rappaport and that you will, at all times, provide true, accurate, current, and complete information (for which you have all necessary rights, permission(s), or authority) when submitting information through the Platform(s), including, without limitation, when you provide information via Portal registration or submission form. In addition, you are accessing the Platform(s) of your own volition and are responsible for your reliance on any available information from the Platform(s) and compliance with all applicable laws, rules, and regulations with respect to your use of the Platform(s) (including use of any permitted copies of the Platform(s) materials and information). You represent that the performance of your obligations under this TOU will not violate, conflict with, or result in a default under any other agreement, including, without limitation, confidentiality agreements between you and third parties. If you use the Platform(s) in your capacity as an employee, owner, or otherwise as an agent of another person or entity, you agree on behalf of yourself and such person or entity, jointly and severally, to be bound by this TOU. Your consent to be bound to any consents, notices, disclosures, or other records or documents to be entered into between you and Rappaport (“Electronic Contracts”), whether by typing your name, checking a box, pressing a button, clicking through a link, or demonstrating other intent to be bound to such Electronic Contract, shall create a legal, valid, and binding contract enforceable against you in accordance with its terms.
You agree that you will not: (a) access or use the Platform(s) in any manner that could damage, disable, overburden, place an unreasonable load on, interfere or attempt to interfere with the proper working of, or impair the Platform(s), or the account of any other user; (b) impersonate another person or misrepresent your affiliation with another person or entity, such as by using another person’s username, password or other account information, or attempt to gain unauthorized access to any parts of this Platform(s) or any user accounts; (c) record, process, or mine information about other users, or access, retrieve, or index any portion of this Platform(s); or (d) assist, encourage, or enable others to do any of the preceding activities.
- Links to Third Parties. Rappaport may provide links, in its sole discretion, to other Internet sites or networks (including social media networks) (collectively, “Third-Party Content”) for your convenience in locating or accessing related information and/or services. These other sites or networks are maintained by third parties over which Rappaport exercises no control. Your correspondence or any other dealings with third parties are solely between you and such third party. Rappaport does not endorse or take responsibility for any Third-Party Content. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided directly by Rappaport, are solely the opinions and the responsibility of the person or entity providing those materials. You understand that Rappaport has no obligation to, and generally does not, approve or monitor materials provided by third parties through this Platform(s). Your use of Third-Party Content is at your own risk.
If we provide links to social media platforms, such as Facebook or Twitter, and you choose to visit such platforms through our links, please note that the information you post, transmit, or make available on such platforms may be viewed by the public. Rappaport is not responsible for any third-party use of any information you post, transmit, or make available on such platforms.
- Portal Specific Terms. In the event you use the Platform to access a Portal, the following additional terms, conditions, and obligations shall apply.
7.1 Account. In order to access the Portal, you are required to create an account (your “Account”) and provide certain personally identifiable information, such as your name, phone number, e-mail address, tax information, financial information, or other contact information (“Information”). Registration for access to and use of the Portal may also require access credentials, such as a username and a password, or adherence to other particular access requirements as designated by Rappaport in its sole discretion from time to time. Each Account is for a single user only, unless otherwise expressly agreed upon by Rappaport. Rappaport reserves the right to refuse or reject any request to create an Account for any or no reason, at Rappaport’s sole discretion. You hereby agree to consider your access credentials as confidential information and to not disclose such information to any third party, and to not provide any other person with access to any portion of this Portal using your Account or other information. Any access to or use of the Portal through your Account will be deemed as being accessed or used by you. You shall immediately notify Rappaport at [ firstname.lastname@example.org ] if you suspect or become aware of any loss (or theft) of your password or any unauthorized use of your username. Rappaport may disable your username, password, or other access credential identifier if at any time Rappaport believes there has been unauthorized access to your Account.
7.2 Termination. You may terminate your Account at any time by emailing Rappaport at [ email@example.com ]. Rappaport may cancel, suspend, or terminate your Account (in addition to taking or reserving any other remedies against you) at any time for any reason, including if it has reason to suspect that you have breached this TOU or that any of your Information is not authorized, correct, current, and complete. Rappaport reserves the right to erase any or all of your Information from the Portal. Even if your Account is terminated, be aware that this TOU shall continue in full force and effect to the extent permitted by applicable law.
7.3 Confidentiality. Certain confidential information may be available on the Portal, including, without limitation, financial reports, offering memorandums, monthly operating reports, financial reports, tax information, K1s, leasing reports, construction updates and summaries, operating agreements, distribution information, return analysis, subscription documents, and Fund (as defined below) information (“Confidential Information”) that relates to Rappaport, its affiliates, or affiliated investment funds (collectively, the “Disclosing Parties”). You understand that such Confidential Information constitutes trade secrets and that disclosure of it will cause substantial and irreparable competitive harm, as well as financial and strategic damage, to the Disclosing Parties, their affiliates, and/or the investment funds and opportunities managed by the Disclosing Parties or their affiliates (each a “Fund”).
You agree to maintain such Confidential Information in strict confidence and to only use it in connection with an evaluation or the monitoring of your investment in such Fund, subject to all other terms and conditions set forth herein. In addition, you agree that any Confidential Information on the Portal shall not be disclosed to any other person or entity, or reproduced in any manner (by print, by electronic means, or otherwise) without the express written authorization of the applicable Disclosing Party; provided, that such Confidential Information may be disclosed on a need-to-know basis to other employees of your organization and to your investment advisers (so long as: (i) they are bound by an obligation to maintain the confidentiality of such information that is at least as protective as your obligations under this TOU; and (ii) such other employees and investment advisers are not given your password to access this Portal) or as explicitly required by applicable law, subject to all other terms and conditions set forth herein. You are responsible for the consequences of use, disclosure, transmission, and/or any other dissemination of any information from the Portal by such employees, investment advisers, and any other party that accesses, uses, or receives such Confidential Information through you or your Portal access or Account (if applicable).
- Disclaimer. RAPPAPORT DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM(S) WILL OPERATE ERROR-FREE (OR ON AN UNINTERRUPTED BASIS) OR THAT THE INFORMATION AVAILABLE FROM THE PLATFORM(S) WILL ACHIEVE ANY RESULT OR INFORM (OR GUIDE) ANY THIRD PARTY. THE PLATFORM(S) (INCLUDING ITS AVAILABLE INFORMATION) IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND RAPPAPORT HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES AS TO ACCURACY, COMPLETENESS, TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. MOREOVER, RAPPAPORT EXPRESSLY DISCLAIMS RESPONSIBILITY AND LIABILITY FOR ANY THIRD-PARTY-PROVIDED MATERIALS, PROGRAMS, PRODUCTS, AND SERVICES SET FORTH, DESCRIBED ON, OR ACCESSED THROUGH THE PLATFORM(S), AND YOU AGREE THAT RAPPAPORT SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS A RESULT OF ANY SUCH DEALINGS BETWEEN YOU AND A THIRD PARTY.
- Limitation of Liability. RAPPAPORT SHALL NOT BE RESPONSIBLE FOR ANY CLAIM OF HARM OR LOSSES RESULTING FROM A CAUSE BEYOND RAPPAPORT’S CONTROL, INCLUDING FROM ANY THIRD PARTY’S USE OF THE PLATFORM(S). MOREOVER, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL RAPPAPORT BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE PLATFORM(S) OR FOR ANY INFORMATION AND MATERIALS AVAILABLE THROUGH THE PLATFORM(S), WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND EVEN IF RAPPAPORT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, TOTAL LIABILITY OF RAPPAPORT FOR ANY REASON WHATSOEVER RELATED TO USE OF THE PLATFORM(S) SHALL NOT EXCEED THE AMOUNT PAID BY YOU FOR USE OF THE PLATFORM(S) (DURING THE LAST TWELVE (12) MONTHS) OR TEN DOLLARS ($10 (US)), WHICHEVER IS GREATER.
- You agree to indemnify, defend, and hold Rappaport, as well as Rappaport’s affiliates, suppliers, licensors, and partners, including the shareholders, officers, directors, members, managers, successors, assigns, employees, agents, and representatives of each of them (collectively, the “Rappaport Parties”) harmless from and against any and all claims, allegations, demands, actions, causes of action, lawsuits, investigations, and proceedings (including any and all liability, damages, expenses and costs (including, but not limited to, attorneys’ fees and court costs), settlements, fines, penalties, and losses of any kind or nature whatsoever resulting from any of the foregoing (collectively, “Claims”) arising out of or relating to your breach of this TOU.
Rappaport reserves the right to, but is not obligated to, assume the exclusive defense and control of any Claims for which you are required to indemnify the Rappaport Parties, and you agree to cooperate with Rappaport’s defense of such Claims. You agree not to settle any Claims without Rappaport’s prior written consent. Rappaport will use reasonable efforts to notify you of Claims when Rappaport becomes aware of it. Each of the Rappaport Parties is an express third-party beneficiary of this indemnification provision, with full rights to enforce its terms.
- Notice for California Users. Under California Civil Code Section 1789.3, California users of the Platform(s) are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N. 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
- Governing Law.This TOU has been made in and will be construed and enforced in accordance with the laws of the State of Delaware as applied to agreements entered into and completely performed in the State of Delaware.
- Enforcing Security on the Platform(s).Rappaport reserves the right to view, monitor, and record activity on the Platform(s) without notice or permission from you. Any information obtained by monitoring, reviewing, or recording is subject to review by law enforcement organizations in connection with investigation or prosecution of possible criminal or unlawful activity on the Platform(s) as well as to disclosures required by or under applicable law or related government agency actions. Rappaport will also comply with all court orders or subpoenas involving requests for such information.
- Injunctive Relief.You acknowledge that any breach, threatened or actual, of this TOU, including, without limitation, with respect to unauthorized use of Rappaport proprietary rights or assets, will cause irreparable injury to Rappaport, such injury would not be quantifiable in monetary damages, and Rappaport would not have an adequate remedy at law. You therefore agree that Rappaport shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of your obligations under any provision of this TOU. Accordingly, you hereby waive any requirement that Rappaport post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to Rappaport to enforce any provision of this TOU.
- Rappaport welcomes your feedback and suggestions about Rappaport’s products or services or with respect to how to improve the Platform(s). By transmitting any suggestions, information, material, or other content (collectively, “Feedback”) to Rappaport, you represent and warrant that such Feedback does not infringe or violate the intellectual property or proprietary rights of any third party (including, without limitation, patents, copyrights, or trademark rights) and that you have all rights necessary to convey to Rappaport and enable Rappaport to use such Feedback. In addition, any Feedback received by Rappaport will be deemed to include a royalty‑free, perpetual, irrevocable, transferable, non-exclusive right and license from you for Rappaport to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works of, and display (in whole or in part) worldwide, or act on such Feedback without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist therein, and you hereby waive any claim to the contrary.
- Term & Termination.This TOU will take effect (or re-take effect) at the moment you begin downloading, accessing, or using the Platform(s), whichever is earliest. Rappaport reserves the right at any time and on any grounds, which shall include, without limitation, any reasonable belief of fraudulent or unlawful activity or actions or omissions that violate any term or condition of this TOU, to deny your access to the Platform(s) or to any portion thereof. This TOU will terminate automatically if you fail to comply with its terms, subject to the survival rights of certain provisions identified below. Termination will be effective without prior notice and may impact (and prohibit) submission of any information. You may also terminate this TOU at any time by ceasing to use the Platform(s), but all applicable provisions of this TOU will survive termination, as identified below. Upon termination, you must destroy all copies of any aspect of the Platform(s) in your possession. The provisions concerning Rappaport’s proprietary rights, Feedback, disclaimers of warranty, limitations of liability, waiver and severability, entire agreement, injunctive relief, and governing law will survive the termination of this TOU for any reason.
- Waiver & Severability. Failure to insist on strict performance of any of the terms in this TOU will not operate as a waiver of any subsequent default or failure of performance. No waiver by Rappaport of any right under this TOU will be deemed to be either a waiver of any other right or provision or a waiver of that same right or provision at any other time. If any part of this TOU is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the warranty disclaimers and the liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most clearly matches the intent of the original provision and the remainder of this TOU shall continue in effect.
- Geographic Restrictions. The Platform(s) and all materials on the Platform(s) (“Site Content”) are presented solely to provide information regarding Rappaport’s services and products available in the United States. Rappaport makes no representation that the Site Content is appropriate or available for use in other countries or jurisdictions. Access to the Platform(s) may not be legal by certain persons or in certain countries. Any users who access the Platform(s) from other countries or jurisdictions are solely responsible for compliance with local laws in that territory, if and to the extent such local laws are applicable.
- Beneficiaries. Nothing in this TOU is intended to, nor will be deemed to, confer rights or remedies upon any third party except as provided in Section 10.
- Headings. Headings are solely for reference and shall not affect the meaning of this TOU.
- Force Majeure. Neither party will be responsible or liable for, or be considered to be in breach of or default under this TOU on account of any delay or failure to perform as required by this TOU to the extent such delay or failure is caused by or results from any cause or condition beyond such party’s reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot(s) or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), restraints, or delays affecting carriers, inability to obtain or delay in obtaining adequate or suitable supplies, breakdown of materials or telecommunications, or power outage, so long as such party uses all commercially reasonable efforts to avoid or remove such causes of non-performance or delay.
- Notices. To send notices to Rappaport, or if you have any questions regarding this TOU, please contact Rappaport at [ firstname.lastname@example.org ].
- Arbitration and Class Action Waiver. Any dispute, controversy, or claim arising out of or in connection with or relating to your use of this Platform(s) or this TOU, or any breach or alleged breach of this TOU, shall be submitted to a single neutral arbitrator and settled by binding arbitration administered by the American Arbitration Association pursuant to its Commercial Arbitration Rules then in effect. Any such controversy or claim shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction. The arbitration shall be conducted in Delaware. Judgment upon the award shall be binding and may be entered in any court of competent jurisdiction. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY DISPUTE ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS TOU. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS TOU OR THE PLATFORM(S) MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.