1. Contractual Relationship
These Terms of Service (“Terms”) govern your access and use of the Showdigs mobile application, and all other applications, websites, content, products, and services (the “Services,” as more fully defined below in Section 2) for owners or managers (“Client”) of qualified properties (“Property” or “Properties”) made available in the United States and its territories and possessions by Blue Jay Labs, Inc., a Delaware corporation, and its parents, subsidiaries, representatives, affiliates, officers and directors (collectively, “Showdigs” or “us”). PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND SHOWDIGS.
By accessing or using the Services, you confirm your agreement to be bound by these Terms. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede all prior agreements or arrangements between you and Showdigs. Showdigs may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.
IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH SHOWDIGS ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
Supplemental terms, including but not limited to the Agent Addendum, may apply to certain Services, such as policies for a particular event, program, activity or promotion, and such supplemental terms will be disclosed to you in separate specific disclosures. Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Service(s). Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
Showdigs may amend the Terms and any supplemental terms, from time to time. Amendments will be effective upon Showdigs’ posting of such updated Terms at this location or in the amended policies or supplemental terms on the applicable Service(s). Your continued access or use of the Services after such posting confirms your consent to be bound by the Terms, as amended.
Showdigs’ collection and use of personal information in connection with the Services is described in Showdigs’ Privacy Notice.
The Services comprise the Showdigs mobile application and related services (each, an “Application”), which enable Clients to arrange and schedule guided site visits of their Properties by prospective tenants or buyers (“Prospects”). Specifically, the Application will: (a) facilitate the scheduling of appointments with Prospects to tour the Property; (b) arrange for a third-party service provider (“Agent”) to meet the Prospect at the Property, gain access to and provide the Prospect with a tour of the Property or conduct a virtual tour of the Property using the Application (“Site Visit”); (c) collect a fee (“Showing Fee”) from the Client to be paid, minus Showdigs’ fee, to the Agent; (d) prompt the Agent to follow up with the Client about any issues or questions with the Property that came up during the showing; (e) provide reports about the activity related to the Property; (f) send text messages to Prospects; (g) allow Agents to conduct an inspection and review of the Property and prepare a corresponding report (“Conditional Reports”) and other services as may be added from time to time.
Subject to your compliance with these Terms, Showdigs grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the Applications on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Application, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by Showdigs and Showdigs’ licensors.
You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by Showdigs; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks; (vii) with respect to the Application and the Service, violate or instruct any employee, agent, or affiliate of any kind to violate any applicable local, state or federal law or regulation (collectively “Applicable Laws”) including, without limitation Fair Housing, Landlord Tenant or Civil Rights laws.
As part of the Services, Showdigs will make available to Clients a pool of Agents who have agreed to meet with Prospects and provide access to the Properties and conduct Site Visits. It is anticipated that Site Visits will last approximately 15-20 minutes in duration and will be limited to a simple walk through of the Property including common areas, if applicable. Agents will be directed to only answer Property-specific questions to the extent the Client has provided them with applicable responses, although they may be asked and are free to answer general questions, for instance about the neighborhood or city in which a Property is located. The Agents will be paid out of the “Showing Fee” charged to the Client. There will be no reimbursement of Showing Fees once booked, regardless of whether the Prospect makes the Site Visit or not. At no time during the provision of the Services will an Agent act or hold themselves out as a real estate broker or agent. Agents do not and will not represent either the Client or the Prospect in any sale or lease transaction.
If you book an Agent to prepare a Conditional Report, you must specify the conditions that you would like to Agent to inspect. Agents are not required to be specifically trained in conducting such inspections and Showdigs does not guarantee the accuracy, precision, technical specifications, or other content of the Conditional Reports. Additionally, in accordance with Section 9 below, Showdigs disclaims all liability associated with or arising from Conditional Reports.
The Application and all rights therein are and shall remain Showdigs’ property or the property of Showdigs’ licensors. Neither these Terms nor your use of the Application convey or grant to you any rights: (i) in or related to the Application except for the limited license granted above; or (ii) to use or reference in any manner Showdigs’ company names, logos, product and service names, trademarks or services marks or those of Showdigs’ licensors.
Access and Use of the Services.
In order to use the Client-specific Services, you must select within the Application, register for and maintain an active Client account (“Account”). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account. Client Account registration requires you to submit to Showdigs certain information, such as your name, your company name, your or your company’s address, your mobile phone number, age, the address and key characteristics of the Property or Properties that will be subject to the Services, any access code or other specific access information, including directions, as well as at least one valid payment method supported by Showdigs. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including a valid, non-expired payment method, may result in your inability to access or use the Services. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by Showdigs in writing, you may only possess one Client Account, and you may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when accessing or using the Services, and you may only access or use the Services for lawful purposes. You may not in your access or use of the Services cause nuisance, annoyance, inconvenience, or property damage, whether to the Agent, the Prospect or any other party.
Onboarding Properties; Leases; Removing Properties.
When you are ready to use the Service you can post the availability of a Property by loading the required information into the Application, including Property specifications, rent, and dates/times the Property will be available for showing. Unless otherwise agreed to by Showdigs in writing, you will not use Showdigs’ specified contact information in any online or print advertisements. All lease negotiations are between Clients and the Prospect. Showdigs expressly disclaims any and all responsibility for, or liability resulting from, any lease negotiation, concluded or unsuccessful. Upon identifying a Prospect interested in leasing the Property, you shall remove the Property from the Application.
Client Requirements and Conduct.
At all times when acting as a Client you agree to: (i) keep the Properties and their access in commercially reasonable condition, clean and free from unreasonable defects or hazards; (ii) be responsive to inquiries for information about the Properties, including in particular with respect to scheduling Site Visits; (iii) make available to the Agent the means for gaining access to the Properties (e.g. a realtor’s lock); (iv) for any Site Visit to one of your Properties it is your responsibility to ensure that the Property is vacant, or if still occupied by an existing tenant, that the Site Visit corresponds with a date and time during which the existing tenant will not be present; (v) if the existing tenant owns any pets, you will ensure that the pets are secure or absent during the Site Visit; (vi) maintain appropriate general liability insurance for all Properties listed with the Services in accordance with applicable state law; and (vii) comply with all applicable laws and regulations with respect to disclosing to Prospects that you have or intend to share certain personal data regarding the Prospects with Showdigs and Agents.
By initiating the Services and agreeing to these Terms you represent and warrant to Showdigs that (i) you personally, or the entity you represent, has authority to manage access to and show the Properties, (ii) that these Terms do not conflict with any other contract or obligation, and (iii) that you have the right and authority to share information about Prospects with Showdigs, and that you hereby assign that right to Showdigs.
Text Messaging and Telephone Calls.
From time to time or as requested by you, Showdigs may attempt to contact you by phone call, text message or email. All such communications will conform with the Showdigs Privacy Notice, and you may opt out of such communications as outlined therein or within the communication itself.
Network Access and Devices.
You are responsible for obtaining the data network access necessary to use the Application. Your mobile network’s data and messaging rates and fees may apply if you access or use the Application from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. Showdigs does not guarantee that the Application, or any portion thereof, will function on any particular hardware or devices. In addition, the Application may be subject to malfunctions and delays inherent in the use of the internet and electronic communications.
Payment to Showdigs.
As a Client, you understand that use of the Services will result in charges to you as posted on the Application and modified from time to time (“Charges”). Showdigs will receive and/or enable your payment of the applicable Charges for services or goods obtained through your use of the Services. Charges will be inclusive of applicable taxes where required by law.
All Charges and payments will be enabled by Showdigs using the preferred payment method designated in your Account, after which you will receive a receipt by email. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that Showdigs may use a secondary payment method in your Account, if available. Your payment method will be charged after the completed Site Visit. Charges paid by you are final and non-refundable, unless otherwise determined by Showdigs, in our sole discretion.
As between you and Showdigs, Showdigs reserves the right to establish, remove and/or revise Charges for any or all services obtained through the use of the Services at any time in Showdigs’ sole discretion. Showdigs may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you. You may elect to cancel your request for Services at any time prior to the commencement of such Services, in which case you may be charged a cancellation fee on an Agent’s behalf. After you have received services or goods obtained through the Service, you will have the opportunity to rate your experience and leave additional feedback. Showdigs may use the proceeds of any Charges for any purpose, subject to any payment obligations it has agreed to with any Agents or other third parties.
Disclaimers; Limitation of Liability; Indemnity.
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” SHOWDIGS DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, SHOWDIGS MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SHOWDIGS DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF AGENTS. YOU AGREE THAT ANY RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND NOT EXPLICITLY COVERED IN THE TERMS, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
LIMITATION OF LIABILITY.
SHOWDIGS SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF SHOWDIGS, EVEN IF SHOWDIGS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SHOWDIGS SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY AGENT OR ANY PROSPECT, EVEN IF SHOWDIGS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SHOWDIGS SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND SHOWDIGS’ REASONABLE CONTROL.
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, SHOWDIGS’ LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON SHOWDIGS’ CHOICE OF LAW PROVISION SET FORTH BELOW.
You agree to indemnify and hold Showdigs and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees) (“Claims”), arising out of or in connection with: (i) your use of the Services; (ii) your breach or violation of any of these Terms; (iii) Showdigs’ use of your User Content; (iv) any Claims arising out of or resulting from any Site Visit to any Property; or (v) your violation of the rights of any third party, including without limitation Agents and Prospects.
By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against Showdigs on an individual basis in arbitration, as set forth in this Arbitration Agreement. This will preclude you from bringing any class, collective, or representative action against Showdigs, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against Showdigs by someone else.
Agreement to Binding Arbitration between You and Showdigs.
You and Showdigs agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Services at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and Showdigs, and not in a court of law.
You acknowledge and agree that you and Showdigs are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and Showdigs otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and Showdigs each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
Rules and Governing Law.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at adr.org/arb_med or by calling the AAA at 1-800-778-7879.
The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of California.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration - Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879). The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the United States and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.
Location and Procedure.
Unless you and Showdigs otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Showdigs submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
Severability and Survival.
If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
Choice of Law.
These Terms will be governed by and construed in accordance with the laws of the State of Washington without reference to its conflict of laws provisions. You agree to submit to the exclusive jurisdiction and venue in the state and federal courts located in Seattle, Washington for any and all disputes, claims, and actions arising from or in connection with the Services or these Terms. The foregoing choice of law and forum selection provisions do not apply to the Arbitration Agreement in Section 10 or to any arbitrable disputes as defined therein, which shall be governed by the Federal Arbitration Act.
Claims of Copyright Infringement.
Claims of copyright infringement should be delivered to our registered agent for service of process, c/o Bluejay Labs, Inc. at 4111 E. Madison St. #128 Seattle, WA 98112.
Showdigs may give notice by means of a general notice within the Application, electronic mail to the email address associated with your Account, telephone or text message to any phone number provided in connection with your Account, or by written communication sent by first class mail or pre-paid postage to any address connected with your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email or telephone). You may give notice to Showdigs, with such notice deemed given when received by Showdigs, at any time by first class mail or pre-paid post to our registered agent for service of process, c/o Bluejay Labs, Inc. at 4111 E. Madison St. #128 Seattle, WA 98112.
Nothing in these Terms creates a joint venture, partnership, agency or similar endeavor between you and Showdigs. You may not assign these Terms without Showdigs’ prior written approval. Any use of your Account by any person other than you is a material breach of this Agreement. Showdigs may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of Showdigs’ equity, business or assets; or (iii) a successor by merger. Any purported assignment not in accordance with this section shall be void. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Showdigs’ failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Showdigs in writing. This provision shall not affect the Severability and Survivability section of the Arbitration Agreement section of these Terms.