ROOPLER.COM PORTFOLIO LEAD APPOINTMENT TERMS
(a) These Roopler.com Portfolio Lead Appointment Terms & Conditions (these “Terms & Conditions”) shall govern the provision of portfolio appointment services by Roopler.com, LLC, a California Limited Liability Company (“Roopler”) to the Customer.
(c) These Terms & Conditions prevails over any of Roopler’s general terms and conditions regardless of whether or when Customer has submitted its request for proposal, order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms & Conditions.
(d) The term “Portfolio Lead Appointment” as used in these Terms & Conditions shall mean and refer to a scheduled appointment with a person or entity who is on the list of leads (each a “Lead”) provided to Roopler by Customer and expresses interest in selling or buying real property and may become a client or customer of Customer for purposes of representation when listing their real property for sale or purchasing real property. Roopler cannot guarantee that any such portfolio lead appointment will utilize Customer’s services or agree to a listing presentation by Customer.
2. Services. Roopler shall provide the following seller lead services to Customer:
(a) Roopler shall contact the list of Leads provided by Customer and provide the portfolio lead appointments to Customer as such appointments are scheduled. The number of portfolio lead appointments provided by Roopler will fluctuate based on Roopler’s ability to provide the same and based on the portfolio provided by Customer. Customer will be billed the amount quoted to Customer by Roopler at the time of engagement for each portfolio lead appointment as they are provided.
(b) Such portfolio lead appointments provided to Customer pursuant to these Terms & Conditions shall have been contacted by Roopler prior to being provided to Customer. All such contact shall be sent on behalf of the Customer, and may include, without limitation, contact to book appointments. Customer expressly warrants that it has permission to contact the leads in its portfolio provided to Roopler.
3. Term. Roopler shall use reasonable efforts to meet any performance dates specified in the Terms & Conditions, and any such dates shall be estimates only. Portfolio lead appointments shall be provided from the beginning of the term until the relationship is terminated as set forth hereinbelow (the “Term”). The Term shall begin on the date wherein Customer’s credit card on file with Roopler is charged, or the initial payment, including without limitation the setup fee, is otherwise applied. All payments for the Term shall be deemed fully earned by Roopler and Customer shall be charged at the time Roopler provides each portfolio lead appointment.
4. Customer’s Obligations. Customer shall:
Cooperate with Roopler in all matters relating to the Services as may reasonably be requested by Roopler, for the purposes of performing the Services;
(a) respond promptly to any Roopler request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Roopler to perform Services in accordance with the requirements of this Agreement;
(b) provide to Roopler the lead portfolio and all information related to such leads, including such Customer materials or information as Roopler may reasonably request to carry out the Services in a timely manner and ensure that such Customer materials or information are complete and accurate in all material respects; and
(c) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start;
(d) Customer understands and agrees that portfolio lead appointments provided by Roopler may request an initial phone appointment, online appointment, or in person appointment at the discretion of the seller. Customer further understands and agrees that some seller leads provided by Roopler may include Sellers desiring cash only offers.
5. Customer’s Acts or Omissions. If Roopler’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, Roopler shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
6. Use of Leads. Customer represents and warrants that (i) it is responsible for all Leads, including but not limited to the quality of the Leads and that Customer has obtained all necessary permission for contacting all Leads in compliance with applicable laws and regulations. Customer shall retain complete ownership of all Leads and shall have full access to all data provided to Roopler by Customer. Roopler shall not obtain any ownership interest in and to the portfolio of Leads provided to Roopler by Customer; such Leads shall only be used for the purposes of calling and setting appointments for Customer. Roopler shall not solicit to said Leads in any other manner. In no event shall Roopler be held responsible for Customer’s failure to obtain the legally required permissions to contact the Leads via phone call or text message, including without limitations CCPA and CAN-SPAM violations. To the fullest extent permissible by law, Customer agrees to indemnify, defend, and hold Roopler harmless for any violation of this section or other terms of this Agreement, including attorney’s fees, expert fees and consultant fees. This Section shall survive the termination of the Serivces.
7. Compliance with all Laws: Customer, its employees, agents, contractors and representatives shall comply with all rules, policies and procedures governing the Services and any use thereof, including without limitation the Customer responsibilities and the Leads sections, above. Customer remains fully and unconditionally responsible for the acts and omissions of such individuals. Roopler shall not be responsible for any delay, failure to perform, or alteration of the Services due to any act, omission or failure to perform by Customer or any of their respective employees, agents, customers, contractors or representatives.
8. Fees and Expenses; Payment Terms; Interest on Late Payments.
(a) In consideration of the provision of the Services by Roopler and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in Section 2 of these Terms & Conditions.
(b) Customer’s credit card that is on file with Roopler shall be charged upon the provision of each portfolio lead appointment. All payments hereunder shall be in US dollars.
(c) In the event the credit card on file is declined or payments are not received by Roopler within 30 days after becoming due, Roopler may:
(i) charge interest on any such unpaid amounts at a rate of 1.5% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and
(ii) suspend performance for all Services until payment has been made in full.
9. Agent and Lender Co-Marketing. Customer’s who participate in co-marketing understand and agree that the relationship between the customer and lender in such program is strictly limited to a co-marketing arrangement under which the lender pays a share of the cost for the Services. The Customer shall be responsible for any amounts not paid by a lender for the Services. In the event that a co-marketing lender does not pay the amount billed by Roopler, Roopler will charge the Customer the outstanding amount due.
10. Taxes. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder.
11. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Roopler in the course of performing the Services, including any items identified as such in these Terms & Conditions (collectively, the “Deliverables”) shall be owned by Roopler. Roopler hereby grants Customer a license to use Intellectual Property Rights in and to the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services. Said license may be revoked at any time in Roopler’s sole and absolute discretion with or without notice.
12. Confidential Information.
(a) All non-public, confidential or proprietary information of Roopler, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by Roopler to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Customer without the prior written consent of Roopler. Confidential Information does not include information that is:
(i) in the public domain;
(ii) known to Customer at the time of disclosure; or
(iii) rightfully obtained by Customer on a non-confidential basis from a third party.
(b) Customer agrees to use the Confidential Information only to make use of the Services and Deliverables.
(c) Roopler shall be entitled to injunctive relief for any violation of this Section.
13. Disclaimer of Warranties. ALL SERVICES RENDERED HEREUNDER ARE PROVIDED “AS IS” “WHERE IS” “WITH ALL FAULTS” AND “AS AVAILABLE,” AND THE ENTIRE RISK AS TO THE SATISFACTORY CONDITDITION, QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH CUSTOMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ROOPLER MAKES NO WARRANTY WHATSOEVER, EXPRESS OR IMPLIED WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY, WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE, WARRATNTIES OR CONDITIONS OF UNINTERRUPTED OR ERROR-FREE ACCESS OR USE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
14. Limitation of Liability.
(a) IN NO EVENT SHALL ROOPLER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT ROOPLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) CUSTOMER AGREES TO INDEMNIFY DEFEND AND HOLD HARMELLS ROOPLER, ITS DIRECTORS, OFFICERS, SHAREHOLDER, AGENTS, EMPLOYEES, MEMBERS, FROM ANY AND ALL CLAIMS, SUITS, ACTIONS, DAMAGES, DEMANDS, COSTS AND EXPENSE (INCLUDING WITHOUT LIMITATION ATTORNEY’S FEES AND COURT COSTS) OF ANY NATURE ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S CONTACT, MEETINGS, OR ANY WORK WITH A PORTFOLIO LEAD APPOINTMENT PROVIDED BY ROOPLER.
(c) IN NO EVENT SHALL ROOPLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED TWO TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO ROOPLER PURSUANT TO THIS AGREEMENT AND PURSUANT TO THE APPLICABLE TERMS & CONDITIONS IN THE SIX-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
(a) In addition to any remedies that may be provided under these Terms & Conditions or elsewhere in the Agreement, Roopler may terminate provisions of the Services with immediate effect upon written notice to Customer for any reason or at any time;
(b) Customer may terminate the Services upon fourteen (14) days written notice to Roopler. At the date of termination, Customer must pay to Roopler all fees and expenses related to Services provided up to and including the date of termination. During said fourteen day period, Roopler may continue to book appointments and Customer agrees to pay the fees for such Serices.
(c) Services shall terminate if Customer becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
16. RESPA. Customer shall comply with all federal, state, and local laws, including, without limitation, he Real Estate Settlement Procedures Act, 12 U.S.C. 2601 (“RESPA”), as amended from time to time. Customer and/or its Co-Marketing Lender, if any, shall make all disclosures and do all things necessary to timely comply with the applicable provisions of RESPA, including providing copies of the Affiliated Business Arrangements Disclosures, when required. Roopler has no control over any agreement between Customer and any lender and shall, in no circumstances, be held liable for any failure by Customer to make disclosures or take other actions as required by RESPA.
17. Collections. Notwithstanding any other provisions in these Terms and Conditions, in the event that Customer fails to pay for the Services, Roopler expressly reserves the right to submit any outstanding invoices to a third-party debt collection agency.
18. Waiver. No waiver by Roopler of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Roopler. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
19. Force Majeure. Roopler shall not be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond Roopler’s control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, pandemics, epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (h) other similar events beyond the control of Roopler.
20. Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Roopler. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
21. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
22. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of California.
23. Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in the County of Orange, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
24. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in these Terms & Conditions or to such other address that may be designated by the receiving party in writing. Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
25. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
26. Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidentiality, Governing Law, Submission to Jurisdiction, and Survival.
27. Amendment and Modification. This Agreement may be amended or modified from time to time by Roopler without notice. The amended Portfolio lead appointment Terms will be posted on this page and/or provided to Customer. Your continued use of the Portfolio lead appointments after any changes to the Terms and Conditions will be deemed your acceptance of said changes.