IMPORTANT NOTICE: PLEASE READ THESE TERMS OF USE IN THEIR ENTIRETY. BY ACCESSING OR USING THIS WEBSITE OR OTHERWISE AGREEING TO THESE TERMS OF USE, YOU UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT AND RECOGNIZE THAT YOU MAY BE WAIVING CERTAIN RIGHTS. YOUR CONTINUED USE OF THIS WEBSITE IS SUBJECT TO YOUR CONTINUED COMPLIANCE WITH THESE TERMS OF USE. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF USE, YOU MAY NOT USE THIS WEBSITE.
This website is owned and operated by Scuba Club WPB, LLC and/or its divisions, affiliates, subsidiaries, or joint ventures (“SCWPB,” “Company” or “we,” “our” or “us”). Please read these terms carefully. By accessing or viewing this website or participating in or using any service offered on this website (collectively, the “Services”), you agree to these Terms of Use (“Terms” or “Terms of Use”).
By visiting, using and/or submitting information to any of our Services, you agree to be bound by the terms and conditions of this agreement (this “Agreement”) and the Privacy Policy located on the Services (the “Privacy Policy”). The term “Services” means, collectively, various websites, applications, email notifications and other mediums, or portions of such mediums, through which you have accessed this Agreement. Please read this Agreement carefully. This Agreement contains an agreement to arbitrate all claims as well as disclaimers of warranties and liability.
The Services are not intended to constitute an offer or solicitation. Because some jurisdictions require prior registration or other qualifications of real estate before solicitation is allowed, SCWPB’s responses to your inquiries may be prohibited or limited. You agree that content or information provided to you on or via the Services is void where prohibited by law.
All references to “you” or “your,” as applicable, mean the person that accesses, or uses the Services. If you use or access the Services on behalf of an entity or individual, you represent and warrant that you have the authority to bind that entity or individual. You represent and warrant that you are at least 18 years of age or visiting the website under the supervision of a parent or guardian. Our website is not intended for those under the age of 18. These Terms form a contract between you and SCWPB. If you do not agree to the Terms, do not use the website or the Services. From time to time, SCWPB may decide to modify, add, or delete portions of these Terms. If SCWPB does so, your continued use of the Services after any such changes have been made means you agree to such changes. The amended Terms will automatically be effective when posted on this website.
CONSIDERATION AND YOUR COMPLIANCE WITH THIS AGREEMENT
You acknowledge that this Agreement is supported by reasonable and valuable consideration, the receipt and adequacy of which is hereby acknowledged. Without limiting the foregoing, you acknowledge that such consideration includes, without limitation, your ability to visit, use and/or submit information to or from the Services.
You represent that you have the capacity to be bound by this Agreement, or if you are acting on behalf of a company or other entity, you have the authority to bind such company or entity. To determine your compliance with this Agreement, SCWPB may monitor your access and use of the Services in accordance with the Privacy Policy.
YOUR ACCESS AND USE OF THE SERVICES
Your right to access and use the Services is personal to you and is not transferable by you to any other person or entity. You are only entitled to access and use the Services for lawful purposes and pursuant to the terms and conditions of this Agreement and the Privacy Policy.
Your access and use of the Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Services or other actions that Kolter, in its sole discretion and without prior notice, may elect to take. Kolter reserves the right to suspend or discontinue the availability of the Services and/or any portion or feature of the Services at any time in its sole discretion and without prior notice.
Any action by you that, in SCWPB’s sole discretion: (i) violates the terms and conditions of this Agreement and/or the Privacy Policy; (ii) restricts, inhibits or prevents any access, use or enjoyment of the Services; or (iii) through the use of the Services, defames, abuses, harasses, offends or threatens, shall not be permitted, and may result in your loss of the right to access and use the Services. You shall not meta-tag, provide links to, or frame the Services without SCWPB’s prior express written permission of SCWPB.
The information contained on in the Services is for informational purposes only and shall not be construed or deemed to: (i) constitute an offer to sell any of the homes, services, or communities described or referred to on the Services, or (ii) be an offering or a solicitation in those states where prior registration is required. Offers to purchase our homes may only be made and accepted at the sales center located at the applicable community, and by execution of a written purchase contract by the parties thereto. In addition, if prior registration under the laws of your state is required, please understand that we may not be able to provide you with information.
THE SERVICES ARE NOT INTENDED FOR MINORS
The Services are intended to be accessed and used only by adults and are not directed to children under the age of 18. We do not knowingly collect personally identifiable information from anyone under the age of 18 and you should not provide us with any information regarding any individual under the age of 18. You warrant that you are at least 18 years of age or, if living in a jurisdiction that maintains an older age of Majority, at least such an age.
TRANSMISSIONS, SUBMISSIONS AND POSTINGS TO THE SERVICES
If you transmit, submit or post information to the Services that are not Federally trademarked and/or copyrighted, you automatically grant SCWPB and its affiliates the worldwide, fully paid, royalty-free, exclusive right and license to use, copy, format, adapt, publish and/or incorporate any or all such information in any media whatsoever, including, without limitation, the Content (as defined below). Provided that you have obtained prior written permission from SCWPB to transmit, submit or post information to the Services that are Federally trademarked and/or copyrighted, you automatically grant SCWPB and its affiliates the worldwide, fully paid, royalty-free right to use, copy, format, adapt, publish and/or incorporate any or all such information in any media whatsoever, including, without limitation the Content.
You shall not transmit, submit, or post the following to the Services:
o Information that infringes SCWPB’s or any third party’s copyright, patent, trademark, trade secret or other proprietary rights;
o Information that violates any law, statute, ordinance or regulation;
o Information that is trade libelous, unlawfully threatening, unlawfully harassing, defamatory, obscene, explicit or vulgar, or otherwise injurious to SCWPB or third parties or that infringes on SCWPB’s or any third party’s rights of publicity or privacy;
o Information that contains any viruses, worms, Trojan horses, trap doors, back doors, Easter eggs, time bombs, cancelbots or other code or computer programming routines that contain contaminating or destructive properties or that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
o Information containing or constituting chain letters, mass mailings, political campaigning, or any form of “spam;”
o Information that is false, inaccurate or misleading;
o Commercial advertisements or solicitations without written permission from Kolter; or
o Federally Trademarked and/or Copyrighted information without written permission from Kolter.
Although SCWPB does not regularly review your transmissions, submissions, or postings, SCWPB reserves the right (but not the obligation) to edit, refuse to post or remove your transmissions, submissions or postings. Pursuant to the Privacy Policy, SCWPB may review transmissions, submissions or postings made by you to determine, in its sole discretion, your compliance with this Agreement. You shall be solely responsible for your transmissions, submissions, or postings (i.e., your own User Generated Content) and the consequences of your User Generated Content.
NAMES USED/INTELLECTUAL PROPERTY RIGHTS
The names “Alba Palm Beach,” “Alba Residences”, “Alba”, “BGI Companies,” “BGICo.,” “BGI Capital,” “BGI Financial,” “By KB,” “KB,” and “BGI Development”. SCWPB’s graphics, logos, page headers, button icons, scripts, and service names are trademarks and/or trade dress of SCWPB or its affiliates, in the United States and/or other countries (collectively, the “Proprietary Marks”). You may not use the Proprietary Marks without the prior express written permission of SCWPB, which permission may be withheld in SCWPB’s sole discretion. SCWPB makes no proprietary claim to any third-party names, trademarks or service marks appearing on the Services. Any third-party names, trademarks, and service marks are property of their respective owners.
For the purposes of the Services, the names “Alba Palm Beach” or “Alba” shall be deemed to refer to “Scuba Club WPB, LLC,” the name “KB” or “By KB” shall be deemed to refer to “BGI Cos,” the names “BGI,” “BGI Capital”, “BGI Financial” or “BGI Development” shall be deemed to refer to “BGI Cos”.
The information, advice, data, software, and content viewable on, contained in, or downloadable from, the Services (collectively, the “Content”), including, without limitation, all text, graphics, charts, pictures, photographs, images, line art, icons, renditions and floor plans, are copyrighted by, or otherwise licensed to, SCWPB or its Content suppliers. SCWPB may also own a copyright of a collective work in the selection, coordination, arrangement, presentation, display and enhancement of the Content (the “Collective Work”). All software used on the Services (the “Software”) is the property of SCWPB or its software vendors and is protected by United States and international copyright laws. Viewing, reading, printing, downloading or otherwise using the Content and/or the Collective Work does not entitle you to any ownership or intellectual property rights to the Content, the Collective Work or the Software.
You are solely responsible for any damage resulting from your infringement of SCWPB’s or any third party’s intellectual property rights regarding the Proprietary Marks, the Content, the Collective Work, the Software and/or any other harm incurred by SCWPB or its affiliates as a direct or indirect result of your copying, distributing, redistributing, transmitting, publishing or using the same for purposes that are contrary to the terms and conditions of this Agreement.
YOUR USE OF THE CONTENT
SCWPB grants you a limited license to access, print, download or otherwise make personal use of the Content and the Collective Work in the form of: (i) one machine-readable copy; (ii) one backup copy; and (iii) one print copy, for your non-commercial use; provided, however, that you shall not delete any proprietary notices or materials with regard to the foregoing manifestations of the Content and the Collective Work. You may not modify the Content or the Collective Work or utilize them for any commercial purpose or any other public display, performance, sale, or rental, decomposition, reverse engineering, or disassembly of the Content and the Collective Work, or transfer the Content or the Collective Work to another person or entity.
Except as otherwise permitted under the copyright laws of the United States, no other copying, distribution, redistribution, transmission, publication, or use, other than the non-commercial use of the Content and the Collective Work as permitted by this Agreement, is permitted by you without the express prior written permission of SCWPB, which permission may be withheld in SCWPB’s sole and absolute discretion.
You may not use any meta-tags or any other “hidden text” utilizing SCWPB’s name or trademarks without the express written permission of SCWPB, which permission may be withheld in SCWPB’s sole and absolute discretion.
ACCESS AND INTERFERENCE
You agree that you will not use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor the Services or any portion of the Services or for any other purpose, without SCWPB’s express written permission, which may be withheld in SCWPB’s sole and absolute discretion. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in SCWPB’s sole and absolute discretion an unreasonable or disproportionately large load on SCWPB’s infrastructure; (ii) copy, reproduce, modify, create derivative works from, distribute or publicly display any content (except for your personal information) from the Services without the prior written permission of SCWPB and the appropriate third party, as applicable; (iii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; or (iv) bypass SCWPB’s robot exclusion headers or other measures SCWPB may use to prevent or restrict access to the Services. Notwithstanding the foregoing, SCWPB grants the operators of public search engines permission to use spiders to copy materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. SCWPB reserves the right to revoke these exceptions either generally or in specific cases. You shall not collect or harvest any personally identifiable information, including account names, from the Services. You shall not use any communications systems provided on the Services (i.e., Forums or email) for any commercial or solicitation purposes. You agree not to solicit for commercial purposes any users of the Services without our prior, written consent, which consent may be withheld in SCWPB’s sole discretion.
ELECTRONIC COMMUNICATIONS
When you visit the Services or send email to SCWPB, you are communicating with SCWPB electronically. You consent to receive communications from SCWPB electronically. Although SCWPB may choose to communicate with you by regular mail, SCWPB may also choose to communicate with you by e-mail or by posting notices on the Services. You agree that all agreements, notices, disclosures, and other communications that SCWPB provides to you electronically satisfy any legal requirement that such communications be in writing.
YOUR RESPONSIBILITY FOR EQUIPMENT AND RELATED COSTS
You are responsible for obtaining and maintaining all telephone, computer hardware, Internet access services and other equipment or services needed to access and use the Services, and for all costs and fees associated with Internet access or long-distance charges incurred regarding your access and use of the Services.
THIRD-PARTY LINKS
There may be provided on the Services links to other Web sites, applications or services belonging to SCWPB’s advertisers, business partners, affiliates and other third parties. Such links do not constitute an endorsement by SCWPB of those Web sites, applications, or services nor the products or services listed on those Web sites, applications or services. SCWPB is not responsible for the activities or policies (including without limitation the Privacy Policies) of those Web sites, applications, or services. SCWPB does not endorse or recommend the products of any particular advertiser, business partner, affiliate or other third party.
MOBILE DEVICES
If SCWPB provides aspects of the Services via an application for your mobile or other device, please be aware that your carrier’s normal rates and fees may apply and that the terms of this Agreement and other agreements within the application apply to your use of such mobile application.
SPECIAL DISCLOSURES
SCWPB welcomes and encourages broker participation, but will only honor agreements with brokers or sales agents that are printed, written agreements, signed by a duly authorized officer of SCWPB. Nothing on the Services or within this Agreement shall entitle any person to any fee, compensation or commission nor constitute any agreement, promise, covenant or undertaking with respect to brokers or sales agents representing potential buyers or sellers.
CLUBS AND MEMBERSHIPS
Certain references to clubs, golf clubs, homeowners’ association memberships, condominium association memberships, and other membership opportunities and amenities may be subject to applications, fees, dues, periodical regular assessments, special assessments, capital contributions upon purchase or sale, and availability. Such limitations are subject to change.
EQUAL HOUSING OPPORTUNITY
SCWPB is committed to equal housing opportunities and encourages and supports eliminating barriers to obtaining housing due to race, color, religion, sex, handicap, familial status, or national origin. SCWPB will not knowingly publish or accept any advertising for real estate, which is in violation of the law. All persons are hereby informed that all dwellings advertised by SCWPB are available on an equal opportunity basis.
FEATURES, SPECIFICATIONS, RENDERINGS, PICTURES, FLOOR PLANS, AND SITE PLANS
SCWPB takes reasonable steps to ensure that information provided to you is as accurate as possible. SCWPB, however, does not warrant the accuracy or completeness of any information, graphics, text, links or other materials contained within the Services. All prices, features, renderings, floor plans, site plans, maps, pictures, dimensions, specifications and other descriptions of products and services provided on the Services are subject to change without notice to you. Without limiting the generality of the foregoing:
• All maps are artist’s renderings, are subject to change, are not to scale, and are provided to you for relative location purposes only;
• Actual distances may vary;
• Renderings, floor plans, and elevations are artist’s renderings, are subject to change, and may contain options which are not standard on all models;
• The specific features in a home may vary from home to home;
• Prices shown may refer to a “base” price and may not include optional features;
• SCWPB reserves the right to substitute equipment, materials, appliances and brand names with items of equal or higher value, as determined in SCWPB’s sole opinion;
• Color and size variations may occur;
• Stated dimensions and square footage are approximate and should not be used as an actual representation of a home’s size;
• SCWPB does not represent or warrant that any zoning or land use reflected on properties surrounding SCWPB’s property may not change in the future, and cannot control future development surrounding its property;
COPYRIGHT INFRINGEMENT
It is SCWPB’s policy to comply with the Digital Millennium Copyright Act, Title 17, United States Code, Section 512, including, without limitation, responding to notices of alleged copyright infringement, and other applicable intellectual property laws. SCWPB shall in appropriate circumstances disable and/or terminate the accounts of users who may infringe or repeatedly infringe the copyrights or other intellectual property rights of SCWPB and/or others.
Notifications (each a “Notification,” as further defined below) of claimed copyright infringement should be sent by either express mail or U.S. mail to SCWPB’s designated agent. SCWPB’s designated agent contact information to which notification should be sent is set forth below:
General Counsel 777 South Flagler Drive, Suite 300, West Palm Beach, FL 33401 Email address of designated agent: rosettob@gtlaw.com
Pursuant to Title 17, United States Code, Section 512(c)(3), to be effective, the Notification must include the following:
• A physical or electronic signature of a person authorized to act on behalf of the owner (“Complaining Party”) of an exclusive right that is allegedly infringed;
• Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single Notification, a representative list of such works at that site;
• Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit SCWPB to locate the material;
• Information reasonably sufficient to permit SCWPB to contact the Complaining Party, such as an address, telephone number, and if available, an electronic mail address at which the Complaining Party may be contacted;
• A statement that the Complaining Party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
• A statement that the information in the Notification is accurate, and under penalty of perjury, that the Complaining Party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
• Upon receipt of the written Notification containing the information as outlined in 1 through 6 above, and pursuant to Title 17, United States Code, Section 512:
• SCWPB will remove or disable access to the material that is alleged to be infringing;
• SCWPB will forward the written Notification to the alleged infringer (“Subscriber”); and
• SCWPB will take reasonable steps to promptly notify the Subscriber that SCWPB has removed or disabled access to the material.
Counter Notification:
Pursuant to Title 17, United States Code, Section 512(g)(3), a Subscriber may counter a Notification by providing a written communication (“Counter Notification”) to SCWPB’s designated agent that includes substantially the following:
A physical or electronic signature of the Subscriber;
• Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
• A statement under penalty of perjury that the Subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
• The Subscriber’s name, address, and telephone number, and a statement that the Subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the Subscriber’s address is outside of the United States, for any judicial district in which SCWPB may be found, and that the Subscriber will accept service of process from the Complaining Party or an agent thereof.
Upon receipt of a Counter Notification containing the information as outlined in 1 through 4 above, and pursuant to Title 17, United States Code, Section 512:
SCWPB will promptly provide the Complaining Party with a copy of the Counter Notification;
• SCWPB will inform the Complaining Party that SCWPB will replace the removed material or cease disabling access to the removed material within ten (10) business days; and
• SCWPB will replace the removed material or cease disabling access to the removed material not less than ten (10) nor more than fourteen (14) business days following receipt of the Counter Notification, provided SCWPB’s designated agent has not received notice from the Complaining Party that an action has been filed seeking a court order to restrain the Subscriber from engaging in infringing activity relating to the removed material on SCWPB’s network or system.
SCWPB Makes No Representations or Warranties Regarding the Content
THE CONTENT AND ALL SERVICES AND PRODUCTS ASSOCIATED WITH THE SERVICES ARE PROVIDED TO YOU ON AN “AS-IS” AND “AS AVAILABLE” BASIS. SCWPB MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICES OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON OR ASSOCIATED WITH THE SERVICES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES AND ALL PRODUCTS AND SERVICES INCLUDED ON OR ASSOCIATED WITH THE SERVICES IS AT YOUR SOLE RISK. ANY REFERENCE TO THE HISTORICAL OR PROFORMA SIZE, PERFORMANCE, OR FINANCIAL PROJECTIONS OF SCUBA CLUB WPB,LLC, OR ANY OF THEIR SUBSIDIARY OR PARENT ENTITIES IS DEEMED TO INCLUDE REFERENCE TO ALL SUCH ENTITIES PREDECESSORS AND AFFILIATES.
SCWPB DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, CORRECTNESS, OR COMPLETENESS OF THE CONTENT OR THE SERVICES AND PRODUCTS ASSOCIATED WITH THE SERVICES, NOR THE SAFETY, RELIABILITY, TITLE, TIMELINESS, COMPLETENESS, MERCHANTABILITY, CONFORMITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE CONTENT OR THE SERVICES AND PRODUCTS ASSOCIATED WITH THE SERVICES. IT IS YOUR SOLE RESPONSIBILITY TO INDEPENDENTLY EVALUATE THE ACCURACY, CORRECTNESS AND/OR COMPLETENESS OF THE CONTENT AND THE SERVICES AND PRODUCTS ASSOCIATED WITH THE SERVICES. SCWPB MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT THE CONTENT THAT MAY BE AVAILABLE FOR DOWNLOADING FROM THE SERVICES IS FREE OF INFECTION FROM ANY VIRUSES, WORMS, TROJAN HORSES, TRAP DOORS, BACK DOORS, EASTER EGGS, TIME BOMBS, CANCELBOTS OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, DETRIMENTALLY INTERFERE WITH, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION.
THE SERVICES ARE CONTROLLED AND OFFERED BY SCWPB FROM FACILITIES IN THE UNITED STATES OF AMERICA. SCWPB MAKES NO REPRESENTATIONS THAT THE SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER JURISDICTIONS. IF YOU ACCESS OR USE THE SERVICES FROM OTHER JURISDICTIONS, THEN YOU DO SO BY YOUR OWN VOLITION AND ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
LIMITATIONS ON SCWPB’S LIABILITY
SCWPB SHALL IN NO EVENT BE RESPONSIBLE TO, OR LIABLE TO, YOU, OR ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES THAT INCLUDE, BUT ARE NOT LIMITED TO, DAMAGES FOR ANY LOSS OF PROFIT, REVENUE OR BUSINESS, AS A DIRECT OR INDIRECT RESULT OF: (I) YOUR BREACH OR VIOLATION OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; (II) YOUR ACCESS AND USE OF THE SERVICES; (III) YOUR DELAY IN ACCESSING OR INABILITY TO ACCESS OR USE THE SERVICES FOR ANY REASON; (IV) YOUR DOWNLOADING OF ANY OF THE CONTENT OR THE COLLECTIVE WORK FOR YOUR USE; (V) YOUR RELIANCE UPON OR USE OF THE CONTENT OR THE COLLECTIVE WORK, OR (VI) ANY INFORMATION, SOFTWARE, PRODUCTS OR SERVICES OBTAINED THROUGH THE SERVICES, OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICES, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTUOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF SCWPB AND/OR ITS SUPPLIERS HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. SCWPB’S LIABILITY AND THE LIABILITY OF ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS ARISING FROM THE SERVICES OR OUT OF THIS AGREEMENT SHALL NOT EXCEED $100.
YOU SPECIFICALLY ACKNOWLEDGE THAT SCWPB SHALL NOT BE LIABLE FOR USER GENERATED CONTENT OR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY, AND THAT THE RISK OF HARM OR DAMAGE FROM SUCH USER GENERATED CONTENT AND THIRD-PARTY CONDUCT RESTS ENTIRELY WITH YOU.
YOU AND WE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions or limitations may not apply to you.
YOUR INDEMNIFICATION OF SCWPB
You shall defend, indemnify and hold harmless SCWPB and its officers, directors, shareholders, employees, independent contractors, agents, representatives and affiliates from and against all claims, damages, losses and expenses, including, but not limited to, attorneys’ fees, arising out of, or attributable to: (i) any breach or violation of this Agreement by you; (ii) your failure to provide accurate, complete and current personally identifiable information requested or required by SCWPB; (iii) your access or use of the Services; (iv) access or use of the Services under any password that may be issued to you; and/or (v) your transmissions, submissions or postings (i.e., your own User Generated Content).
AMENDMENTS OF THIS AGREEMENT
We reserve the right to update, amend and/or change the Terms of Use at any time in our sole discretion. Each time you access the Services, you consent to the current Agreement.
SCWPB’S REMEDIES
You acknowledge that SCWPB may be irreparably damaged if this Agreement is not specifically enforced, and damages at law would be an inadequate remedy. Therefore, in the event of a breach or threatened breach of any provision of this Agreement by you, SCWPB shall be entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, and/or to a decree for specific performance of the provisions of this Agreement. For purposes of this Section, you agree that any action or proceeding with regard to such injunction restraining such breach or threatened breach shall be brought in the courts of record of Palm Beach County, Florida, or the United States District Court, Southern District of Florida. You consent to the jurisdiction of such court and waive any objection to the laying of venue of any such action or proceeding in such court. You agree that service of any court paper may be affected on such party by mail or in such other manner as may be provided under applicable laws, rules of procedure or local rules.
GOVERNING LAW; ARBITRATION
You agree that: (i) the Services shall be deemed solely based in the State of Florida; and (ii) the Services shall be deemed a passive website that does not give rise to personal jurisdiction over SCWPB, either specific or general, in jurisdictions other than the State of Florida. This Agreement is to be governed by and construed in accordance with the internal laws of the State of Florida, without regard for principles of conflicts of laws. Any civil action, claim, dispute or proceeding arising out of or relating to this Agreement, except for an injunctive action regarding a breach or threatened breach of any provision of this Agreement by you as provided above, shall be referred to final and binding arbitration, before a single arbitrator, under the commercial arbitration rules of the American Arbitration Association in Palm Beach County, Florida. In the event that any limitation on the period of time for bringing an action, claim, dispute or proceeding against us, located in the “Limitations on SCWPB’s Liability” section of this Agreement above, is determined or held to be inapplicable or unenforceable by any court, arbitration panel or other tribunal, then the statute of limitations for the State of Florida, including but not limited to Florida Statutes Section 95, shall apply to any such action, claim, dispute or proceeding referred to final or binding arbitration.
THEREFORE, YOU DO NOT HAVE THE OPPORTUNITY TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS AND YOU GIVE UP YOUR RIGHT TO PARTICIPATE IN OR BRING CLASS ACTIONS. BY USING THE SERVICES YOU CONSENT TO THESE RESTRICTIONS.
You and SCWPB shall select the arbitrator, and if you and SCWPB are unable to reach agreement on selection of the arbitrator within thirty (30) days after the notice of arbitration is served, then the American Arbitration Association shall select the arbitrator. Arbitration shall not commence until the party requesting it has deposited One Thousand Dollars ($1,000.00) with the arbitrator for the arbitrator’s fees and costs. The party requesting arbitration shall advance such sums as are required from time to time by the arbitrator to pay the arbitrator’s fees and costs until the prevailing party is determined or the parties have agreed in writing to an alternate allocation of fees and costs.
Judgment upon any award rendered by the arbitrator shall be final, binding, and conclusive upon you and SCWPB and your and SCWPB’s respective administrators, executors, legal representatives, successors and assigns, and may be entered in any court of competent jurisdiction. Notwithstanding the previous sentence, in no event shall either you or SCWPB be entitled to punitive damages and both you and SCWPB hereby waive your and SCWPB’s respective rights to any punitive, special, indirect or consequential damages, including, but not limited to, damages for any loss of profit, revenue or business. Should a dispute arise, and should the arbitration provisions herein become inapplicable or unenforceable, or in any instance of any lawsuit between you and SCWPB, jurisdiction over and venue of any suit shall be exclusively in the state and federal courts sitting in Palm Beach County, Florida.
MISCELLANEOUS
If any portion of this Agreement is deemed unlawful, void, or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement. The headings contained in this Agreement are for convenience of reference only, are not to be considered a part of this Agreement and shall not limit or otherwise affect in any way the meaning or interpretation of this Agreement.
All covenants, agreements, representations, and warranties made in this Agreement, as may be amended by SCWPB from time to time, shall survive your acceptance of this Agreement and the termination of this Agreement. This Agreement and the Privacy Policy represent the entire understanding and agreement between you and SCWPB regarding the subject matter of the same, and supersede all other previous agreements, understandings and/or representations regarding the same. If you have questions, comments, concerns or feedback regarding this Agreement or the Services, please contact us at: marketing@albapalmbeach.com
FOR RESIDENTS OF THE STATE OF NEW YORK
The sponsor and principal(s) taking part in the public offering or sale are not incorporated in, located in, or resident in the State of New York; The offering is neither made in the State of New York nor made to the residents of the State of New York; The offering is not directed to any person or entity in the State of New York by, or on behalf of, the offeror or anyone acting with the offeror’s knowledge; and No offering or purchase or sale of the security shall take place as a result of this offering, until all registration and filing requirements under the Martin Act and the Attorney General’s regulations are complied with; a written exemption is obtained pursuant to an application is granted pursuant to and in accordance with Cooperative Policy Statements #1 or #7; or a “No-Action” request is granted.
