Last Revised: May 30, 2018
I. ABOUT THE SERVICES
BeeKee engineers various services that streamline and simplify all of the people, products, services, documents and workflow needed to buy, sell and improve a home. Our Services connect and support everyone that is part of the process: seller, buyer, agent, vendor and neighbor. Our App provides a business automation platform that allows Home Professionals to manage calendaring, contacts, billing credit card collection and leads. In addition it provides a technology platform to assist in buying and selling a home either by owner, limited service in-house advisor or through a traditional real estate agent relationship.
BeeKee is not a real estate broker, agent or salesperson, and is not a legal accounting, or financial advisor and does not provide home services of any type. BeeKee is a technology platform. We are not representing you in the sale or purchase of your home or with respect to any repair, improvement or other home service. Any real estate, mortgage, insurance or other licensed professional advice provided by a licensed broker or salesperson through the BeeKee platform is their independent advice.
II. ACCOUNT REGISTRATION
1. To register an account on the Services, you must be at least 18 years of age (or the age of legal majority in your jurisdiction, if older). Users under 18 or the age of legal majority in your jurisdiction are not allowed to use the Services or register for an account to use the Services.
You do not need to create an account on the Services (a “User Account”) to visit the public pages of the Services, however, you do need a User Account to access many of our Services. You may create a User Account by completing the registration process set forth on the Website or in the App. You are responsible for providing and maintaining your current contact information, which may include name, email address, postal address, phone number, payment information and other account information. Home Professional may also need to provide license information or their MLS ID#. By creating a User Account, you represent and warrant to us that information you have provided is accurate.
If you are using the Services as a broker, contractor or other Home Professional that requires licensing in your jurisdiction to provide the services you are offering through our Services, you hereby represent and warrant that you have such license(s). BeeKee reserves the right to request evidence of such license(s) as a condition to your use of the Services.
2. You (and your authorized staff, if any) are the sole authorized user of your User Account. You are responsible for maintaining the confidentiality of any user name, password and account number provided by you or BeeKee for accessing the Services. You are solely and fully responsible for all activities that occur under your password or account. BeeKee has no control over the use of your or any user’s account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you must cease all use of the Services and contact BeeKee immediately by emailing support@BeeKee.com.
III. TERMS GENERALLY APPLICABLE TO THE SERVICES
2. Fees. We charge a fee for some of our Services. If a fee is required to use a Service, we will tell you at the time you ask about the Service. Our fees may change from time to time. All of our fees are non-refundable unless otherwise required by law.
(a) Home Sales - DIY or PRO. If you are selling a home using our DIY or PRO platform version, when you publish your listing on the Listing Sites (defined below) through the Service, you will be entering into a Platform Listing Contract [KD(1] (defined below) to pay BeeKee a platform fee depending on the final sales price of your home . The platform fee will be paid partially upfront and the balance will be paid out of escrow at closing. We will provide you with a copy of the Platform Listing Contract. You must provide a copy of the Platform Listing Contract to the escrow officer for the property sale and instruct the escrow officer to pay the BeeKee fee to BeeKee out of escrow at close of escrow. In addition, you authorize BeeKee to provide a copy of the Platform Listing Contract to the escrow officer for the property sale, and to instruct the escrow officer to pay the BeeKee fee out of escrow at close of escrow.
(b) Home Sales – Concierge. If you sell your home using the Concierge platform version, the agent you choose to use for full service real estate services will pay the BeeKee platform fee partially when you choose the agent and the balance will be paid by the real estate agent at the close of escrow.
(e) Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
(f) Recurring Billing. Some of the Paid Services may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Paid Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, GO TO WWW.BEEKEE.COM.
(g) Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT WWW.BEEKEE.COM. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
(h) Change in Amount Authorized. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
(i) Auto-Renewal for Subscription Services. Unless you opt out of auto-renewal, which can be done through your account at www.beekee.com, any Subscription Services you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. To change or cancel your Subscription Services at any time, go to [3050 Pullman St., Costa Mesa, CA 92626 / [KD(2] your account at www.beekee.com]. If you cancel a Subscription Service, you may use your subscription until the end of your then-current term; your subscription will not be renewed after your then-current term expires. However, you won't be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.
(j) Reaffirmation of Authorization. Your non-termination or continued use of a Paid Service reaffirms that we are authorized to charge your Payment Method for that Paid Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Paid Service.
3. Use Restrictions.
(b) You agree that you will not use the Services: (i) for sending or storing any unlawful material or for fraudulent purposes or to engage in any illegal, offensive, indecent or objectionable conduct; (ii) to advertise, solicit or transmit commercial advertisements, including “spam”; (iii) to cause nuisance, annoyance or inconvenience; or (iv) to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party.
(c) You agree to protect the Services from any unauthorized access or use, and will not use the Services or any proprietary content, information or other materials except as expressly permitted herein or expressly authorized in writing by BeeKee.
(d) Except as specifically permitted herein or expressly authorized in writing by BeeKee, you agree that you will not directly or indirectly: (i) copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify the Services, any updates, or any part thereof in any form or manner or by any means; (ii) harvest or scrape any content or data from the Services; (iii) interact with the Services through any automated means (including but not limited to scripts, bots and third-party tools); or (iv) authorize any third party to engage in any of the acts described in this clause.
(e) You further agree that you are not permitted to: (i) remove or alter any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in the Services; (ii) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer any part of the Services, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Services); (iii) use any means to discover the source code of any portion of the Services; or (iv) otherwise circumvent any functionality that controls access to or otherwise protects the Services
5. Forms and Self-Help Materials.
(a) As part of our Service, we offer “fill in the blank” forms and related information for your individual use (collectively, “Self-Help Materials”). Although many of our Self-Help Materials are prepared or reviewed by attorneys, we are not a law firm, are not licensed to practice law in any jurisdiction and do not provide any legal advice. No attorney-client, fiduciary or other special relationship is created between us by your use of our Self-Help Materials. Properly preparing documents with legal significance requires qualified real estate, legal and tax advice specific to your particular financial, tax, family and other circumstances. Our Self-Help Materials are not a substitute for the advice of an real estate professional, tax professional or attorney. Any information you enter into our forms will appear exactly as entered by you. We do not review the information you enter into our forms for completeness, accuracy or sufficiency. You should contact your own professional advisors to verify that the forms prepared using our Self-Help Materials are correct, legally sufficient in your jurisdiction and appropriate for your unique circumstances. All use of our Self-Help Materials is at your own risk.
(b) While we make reasonable efforts to keep our Self-Help Materials accurate and current, they are not guaranteed to be complete, correct or up-to-date. Real estate, tax and other laws change from time to time and vary from jurisdiction to jurisdiction, and may be interpreted differently by different courts.
6. No Investment Advice or Agency. BeeKee and its affiliates are not acting as a real estate broker, agent, financial advisor or other Home Professional by providing the Services. No statement in the Service is to be construed as investment advice or a recommendation regarding the purchase, lease, rental or sale of any properties. Any projections or opinions regarding the past, current or future state of the real estate market included in the Service merely present the view of the applicable Service Provider or the author of the content as of the date they were prepared. BeeKee, the applicable Service Provider or the author of the content is under no obligation to update any projections, opinions or other content. Events and circumstances may occur that change the viewpoint or analysis of the applicable Service Provider or the author of the content or affect the actual results. The actual results will usually vary from the forecast and the variation may be material.
7. Third Party Services and Materials.
(a) When you express interest in particular products or services, we may highlight certain Home Professionals for you to consider. We expect all Home Professionals to maintain high standards; however, the listing of any Service Professional is not a recommendation or endorsement of that Home Professional and is not a guarantee of that Home Professional’s quality, competency, or character. You are solely responsible for selecting a Home Professional that meets your requirements. You acknowledge that we may receive compensation from Home Professionals by virtue of your use of the Service and/or purchase of products or services from Home Professionals.
(b) Certain of our Services display, include or make available content, data, information, applications or materials from Home Professionals or other third parties (collectively, “Third Party Materials”) or provide links to certain third party web sites. Third Party Materials and links to other web sites are provided solely as a convenience to you. By using the Services, you acknowledge and agree that BeeKee is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. BeeKee does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties.
(c) In addition, third party services and Third Party Materials that may be accessed from, displayed on or linked to from the Services are not available in all languages or in all countries. BeeKee makes no representation that any third party services and Third Party Materials are appropriate or available for use in any particular location. To the extent you choose to access such services or Third Party Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws.
8. Property Listings. All property listings, descriptions, photographs, graphics and other information or materials (“Listings”) are provided by the sellers or lessors of the properties listed on the Services, or their agent, or from third party or publicly available sources. Sellers or lessors are solely responsible for verifying the accuracy and timeliness of the information contained in the Listings. We do not inspect any properties or verify any information provided in the Listings, and make no representation, warranty or guaranty regarding the properties. We ae not responsible for any errors in the Listings or delays in displaying information. You agree that BeeKee shall have no liability for any Listings or your reliance on their contents.
V. PLATFORM LISTING CONTRACT
2. Compensation to BeeKee. You agree to pay BeeKee the platform listing fee listed on www.beekee.com based on the final sales price of your Property and the platform version you select. You agree to provide a copy of this Platform Listing Contract to the escrow officer for the sale of your Property and instruct the escrow officer to pay the platform listing fee to BeeKee out of escrow at close of escrow. In addition, you authorize BeeKee to provide a copy of this Platform Listing Contract to the escrow officer for the Property sale, and to instruct the escrow officer to pay the BeeKee out of escrow at close of escrow. The platform listing fee is in addition to any fees charged by any of the Listing Sites.
3. Listing Period. The Platform Listing Contract commences on the date you click to accept this Platform Listing Contract and ends on the earlier of when (i) you cancel the listing or (ii) the Property closes escrow (the “Listing Period”).
4. Listing Price and Terms. The Property will be listed for the sale price and on the terms offered by you on the listing form for the Property on www.BeeKee.com.
5. Scope of Services. During the Listing Period, BeeKee's services under the Platform Listing Contract are expressly limited to listing the Property on the Listing Sites available through the BeeKee Services and directing inquiries regarding the Property to you or your designated agent. BeeKee is not obligated to do any of the following (unless you have contracted for additional BeeKee Services that cover one or more of the following):
• Promote or market the Property other than listing the Property on the Listing Sites.
• Find potential buyers for the Property.
• Prepare disclosure documents, market analyses, or marketing or promotional materials for the Property.
• Schedule or make any inspection of the Property.
• Schedule or host tours or open houses of the Property.
• Evaluate potential buyers or offers.
6. Preparation of Listing. You agree to submit to BeeKee all information and photos which are required by the Listing Sites. You hereby authorize BeeKee to take any actions necessary to ensure your listing is compliant with the rules of the Listing Sites.
7. Information Display. All transaction terms will be published on the Listing Sites and made available to the public. You understand that the entire Property address will be visible on the Listing Sites and on any third-party websites that have an MLS data feed or have been syndicated by MLS or the other Listing Sites. You understand that all Listing Sites are outside of the control of BeeKee.
8. Changes to Your Listing. Once BeeKee has submitted your listing with the Listing Sites, you will be entitled one (1) free change to the listing. You will be charged a fee for each additional change requested.
9. Changes in Status. All changes in the status of your listing must be reported to BeeKee within 24 hours of occurring. In particular, within 24 hours of the closing of the sale of your Property, you must update the listing status to ‘Sold’ and provide the final sales price and any other information required by BeeKee. MLS and the other Listing Sites may impose fines for not having the correct status on all listings, for having inaccurate information in listings, and for non-responsiveness to property inquiries.
You agree to pay all fines that BeeKee incurs (i) as a result of non- current or inaccurate listing information about your Property or (ii) due to your failure to respond to property inquiries (fines vary and can be up to $1,000).
10. Cancellation by BeeKee. This Platform Listing Contract may be cancelled by BeeKee, without liability to you, should any of the following occur: (i) you do not provide current listing status within 24 hours of a change of status, (ii) you fail to respond to any inquiry from BeeKee within 24 hours, (iii) if you fail to respond to any inquiry from a prospective buyer or an MLS participant within 48 hours, or (iv) if you provide information or photographs which you know to be inaccurate.
11. Non-Discrimination. You hereby acknowledge that it is illegal to refuse to present, sell or lease real property to any person because of race, color, religion, national origin, sex, marital status, age or physical disability.
12. Warranties and Representations. You warrant and represent to BeeKee that:
(a) You are the owner of record of the Property or have the legal authority to execute this Platform Listing Contract on behalf of the owner of record;
(b) all information and photos provided by you accurately represent the current condition of the Property;
(c) there are no delinquencies or defaults under any deed of trust, mortgage or other encumbrance of the Property;
(d) the Property is not subject to the jurisdiction of any court in any bankruptcy, insolvency, conservatorship or probate proceeding; and
(e) there is sufficient equity in the Property if sold at the Listing Price to pay any and all liens that encumber the Property, plus all amounts due under this Platform Listing Contract, plus all selling expenses
VI. TERMS APPLICABLE TO JOBS PERFORMED BY HOME PROFESSIONALS
2. Use of Subcontractors. Where approved in advance by the Client, Home Professional is not obligated to personally perform the Job. Before any Job is performed by any assistants, helpers, subcontractors or other personnel engaged by Home Professional (collectively “Assistants”), Home Professional must first obtain approval in advance from the Client. Home Professional assumes full and sole responsibility for the payment of all compensation, benefits and expenses of Assistants, if any, and for all required and applicable state and federal income tax withholdings as to Home Professionals and all Assistants engaged to perform the Job.
4. Payment Processing for Jobs. Home Professional will be required to provide credit card and/or bank account details to BeeKee and the Payment Processor. Home Professional is responsible for invoicing Clients within 24 hours of the work being performed even if the Job is not completed in its entirety or is designed as “ongoing”. Clients will be responsible for paying the invoice for each Job (the “Invoice”), which will include (i) the pricing terms of the Job agreed between the parties to the Home Service Agreement (“Job Payment”), (ii) any out of pocket expenses agreed with and submitted by Home Professional in connection with the Job, (iii) any tip or gratuity, if applicable, (iv) the service charge BeeKee assesses for the Services, variable based on the Job Payment amount, and (v) the platform fee (if any) , and (vi) cancellation fees, if applicable. Home Professional will be responsible for paying (i) registration fees (applicable to your registrants), (ii) cancellation fees, if applicable, and (iii) repayment of erroneous payments. Clients may also be charged credit card processing fees.
5. Payment Processor Agreement. Home Professional may be required to register with the Payment Processor, agree to any terms and conditions of the Payment Processor, and go through a vetting process at the request of the Payment Processor to set up an account with the Payment Processor. The terms and conditions between Home Professional and the Payment Processor retained by BeeKee are available through the link provided on www.beekee.com [KD(3] (the “Payment Processor Agreement”). BeeKee is not a party to the Payment Processor Agreement and has no obligations or liability to Home Professional or Client under the Payment Processor Agreement.
6. Payment Authorization. When Client receives confirmation through the Services or via email that a Job has been completed, Client automatically authorizes BeeKee to provide Client's payment details to the Payment Processor for processing of Job Payment, out of pocket expenses owed to Home Professional, and the service charge and other fees owed to BeeKee for the use of Services. Home Professional may be charged a cancellation fee through the Payment Processor if Home Professional books a Job, but cancels it before it is completed, as set forth in the Job pricing terms on www.beekee.com, or if Home Professional agrees to perform a Job but fails to complete it, as may be set forth in the Job pricing terms.
vii. Disclaimer of Warranties & Limitation of Liability.
1. YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS OF THE SERVICE. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICES ARE AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY MATERIALS, THIRD PARTY SOFTWARE OR SERVICES) ARE PROVIDED TO YOU ON AN "AS IS" AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND BEEKEE HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICE (INCLUDING THE USE, PERFORMANCE AND SUPPORT THEREOF), EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTERFERENCE WITH ENJOYMENT, COMPLETENESS, INTEGRATION, FREEDOM FROM DEFECTS OR DISABLING DEVICES, UNINTERRUPTED USE AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. BEEKEE DOES NOT WARRANT THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR VIRUS- OR ERROR-FREE, (III) THAT THE SERVICES WILL OPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATION OR ANY PARTICULAR SYSTEM OR DEVICE, OR (IV) DEFECTS IN THE SERVICES WILL BE CORRECTED. ANY ORAL OR WRITTEN ADVICE PROVIDED BY BEEKEE OR ITS AUTHORIZED AGENTS WILL NOT BE DEEMED TO CREATE ANY WARRANTY. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BEEKEE OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
2. Any and all (i) suggestions for correction, change and modification to the Services and other feedback (including but not limited to quotations of written or oral feedback), information and reports provided to BeeKee by you (collectively “Feedback”), and all (ii) improvements, updates, modifications or enhancements, whether made, created or developed by BeeKee or otherwise relating to the Services (collectively, “Revisions”), are and will remain the property of BeeKee. You acknowledge and expressly agree that any contribution of Feedback or Revisions does not and will not give or grant you any right, title or interest in the Services or in any such Feedback or Revisions. All Feedback and Revisions become the sole and exclusive property of BeeKee and BeeKee may use and disclose Feedback and/or Revisions in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to BeeKee any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback and Revisions. At BeeKee’s request, you will execute any document, registration or filing required to give effect to the foregoing assignment.
IX. ARBITRATION AND CLASS ACTION WAIVER
This Section includes an arbitration agreement and an agreement that all claims will be brought only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully. You may opt out of the arbitration agreement by following the opt out procedure described below.
1. Informal Process First. You agree that in the event of any dispute between you and BeeKee, you will first contact BeeKee and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation any court action.
2. Arbitration Agreement. After the informal dispute resolution process any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to your use of BeeKee’s services and/or products, including the Services, or relating in any way to the communications between you and BeeKee or any other user of the Services, will be finally resolved by binding arbitration. This mandatory arbitration agreement applies equally to you and BeeKee. or (b). If you are an individual you may opt out of this arbitration agreement within thirty (30) days of the first of the date you access or use this Service by following the procedure described below.
Notwithstanding the foregoing, this arbitration provision does not bar you from making use of applicable small claims court procedures in appropriate cases and it does not apply to: (i) any Claim by BeeKee for infringement of its intellectual property or access to the Service that is unauthorized or exceeds authorization granted in these Terms, (ii) a judicial or non-judicial foreclosure or other action or proceeding to enforce a deed of trust, mortgage or real property sales contract, for example as defined in California civil code section 2985; (ii) an unlawful detainer action; (iii) the filing or enforcement of a mechanics lien; or (iv) any matter which is within the jurisdiction of a probate or bankruptcy court. The filing of a judicial action to enable the recording of a notice of pending action, or to request an order of attachment, receivership, preliminary injunction or other provisional remedy, shall not constitute a waiver of the right to arbitrate under this provision.
Arbitration is more informal than a lawsuit in court. There is no judge or jury in arbitration. Instead, the dispute is resolve by a neutral arbitrator. Court review of an arbitration award is limited. Except to the extent the parties agree otherwise, arbitrators can award the same damages and relief that a court can award. You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and BeeKee are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision will survive any termination of these Terms.
If you wish to begin an arbitration proceeding, after following the informal dispute resolution procedure, you must send a letter requesting arbitration and describing your claim to BeeKee, 3050 Pullman St., Costa Mesa, CA 92626 Attn: Legal. The arbitration will be administered by the American Arbitration Association (AAA) under its rules including, if you are an individual, the AAA's Supplementary Procedures for Consumer-Related Disputes. If you are not an individual or have used the Services on behalf of an entity, the AAA's Supplementary Procedures for Consumer-Related Disputes will not be used. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879.
The number of arbitrators will be one. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. The arbitration will be conducted in the English language. California law will apply. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. If you are an individual and have not accessed or used the Service on behalf of an entity, we will reimburse those fees for claims totaling less than $10,000, unless the arbitrator determines the claims are frivolous, and we will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
The arbitrator, and not any federal, state, or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable. However, the preceding sentence will not apply to the “Class Action Waiver” section below.
If you do not want to arbitrate disputes with BeeKee and you are an individual, you may opt out of this arbitration agreement by sending an email to legal@BeeKee.com within thirty (30) days of the first of the date you access or use the Service.
Class Action Waiver
Any Claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The parties understand that any right to litigate in court, to have a judge or jury decide their case, or to be a party to a class or representative action, is waived, and that any claims must be decided individually, through arbitration.
If this class action waiver is found to be unenforceable, then the entirety of the Arbitration Agreement, if otherwise effective, will be null and void. 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. If for any reason a claim proceeds in court rather than in arbitration, you and BeeKee each waive any right to a jury trial.
X. GENERAL PROVISIONS
3. Export Laws. You agree that you will not export or re-export, directly or indirectly the Services and/or other information or materials provided by BeeKee hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Services may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Services, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons. You are responsible for and hereby agree to comply at your sole expense with all applicable United States export laws and regulations.
4. U.S. Government Restricted Rights. The Services and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
Under California Civil Code Section 1789.3, California users of the Service receive 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 (800) 952-5210.