Last Updated: May 23, 2016
RadPad, Inc. (hereafter referred to as “RadPad”, “we”, “us”, or “our”) provides an online platform that connects Listers (as defined below) with Renters (as defined below), and facilitates certain aspects of the rental process, such as the payment of rent via our third party payment processor (collectively, the “Services”), which Services are accessible at https://www.onradpad.com and any other websites through which RadPad makes the Services available (collectively, the “Site”) and as an application for mobile devices (the “Application”).
IF YOU ENABLE AUTOMATIC PAYMENTS OF YOUR RENT VIA THE SERVICES, THEN RADPAD WILL CHARGE YOU ON A MONTHLY BASIS (OR SUCH PERIOD OF TIME YOU HAVE SELECTED FOR RECURRING RENT PAYMENTS) IN THE AMOUNT(S) YOU HAVE DESIGNATED IN YOUR ACCOUNT.
THE SITE, APPLICATION AND SERVICES COMPRISE AN ONLINE PLATFORM THROUGH WHICH LISTERS MAY CREATE LISTINGS AND RENTERS MAY BROWSE AND CONNECT WITH LISTERS SUCH LISTINGS. YOU UNDERSTAND AND AGREE THAT RADPAD IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN LISTERS AND RENTERS, NOR IS RADPAD A REAL ESTATE BROKER, AGENT OR INSURER. RADPAD HAS NO CONTROL OVER THE CONDUCT OF LISTERS, RENTERS AND OTHER USERS OF THE SITE, APPLICATION AND SERVICES OR ANY ACCOMMODATIONS, AND DISCLAIMS ALL LIABILITY IN THIS REGARD.
Definitions. Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.
- “Content” means text, graphics, images, music, software audio, video, information or other materials accessible through the Site, Application or Services.
- “Fee Schedule” means RadPad’s schedule of fees for certain services available at: https://www.onradpad.com/paymyrent/faq
- “Lister” means a Member who creates a Listing via the Services.
- “Listing” means a rental that is listed as available for rent via the Site, Application, and Services.
- “Member” means a person who completes RadPad's account registration process as described under “Account Registration” below.
- “Member Content” means all Content that a Member or other users of the Services, posts, uploads, publishes, submits, makes available or transmits to be made available through the Site, Application or Services.
- “Participating Landlord” means any landlord that (1) a Member identifies as its landlord; (2) to whom a Member requests that we make payment; and (3) subsequently accepts payment from us or our third party payment processor.
- “Renter” means a Member who desires to rent or lease a Listing.
- Modification. RadPad reserves the right, at its sole discretion, to modify the Site, Application or Services or to modify these Terms, at any time and without prior notice. When changes are made to these Terms, we will post a new copy of the Terms on the Site or via the Application, and will also update the “Last Updated Date” at the top of these Terms. If we make any material changes to the Terms, and you have registered with us to create an RadPad Account (as defined in Section 4 below) we will also send an-email to you at the last email address you provided to us pursuant to the Terms. Any changes to the Terms will be effective immediately for new users of the Services, provided that any material changes shall be effective for Members upon the earlier of thirty (30) days after posting notice of such changes on the Site, or thirty (30) days after the dispatch of an email notice of such changes to Members. RadPad may require you to provide consent to the updated Terms in a specified manner before any further use of the Site, Application and/or Services is permitted. If you do not agree to any change(s) after receiving notice of such change(s), you shall stop using the Site, Application and Services. Otherwise your continued use of the Site, Application or Services will constitute your acceptance of the modified Terms. PLEASE REGULARLY CHECK THE SITE TO VIEW THE THEN-CURRENT TERMS.
Services as a Venue Only. The Site, Application and Services (collectively, the “RadPad Properties”) enable Renters to browse and search Listings posted by Listers. You may view Listings as an unregistered visitor to the RadPad Properties; however, if you wish to create a Listing, you must first register to create a RadPad Account (defined below) and become a Member.
As stated above, the Services act as a venue only to allow Renters and Listers to meet online and communicate with one another based on interest of Listings. We urge all users to be responsible about their use of the Services and any transaction entered into as a result of either listing their property or renting property. You acknowledge and agree that RadPad is a not a party to any rental, lease or other agreement between users, and that RadPad does not own, sell, resell, furnish, provide, rent, re-rent, manage or control any properties appearing in any Listing. As a result, any part of an actual or potential transaction between a Lister and a Renter, including the quality, condition, safety, or legality of the Listings advertised (or the properties appearing therein), the truth and accuracy of the Listings (including the content thereof or any property or review), the ability of Listers to rent property or the ability of Renters to pay for certain property are solely the responsibility of each user.
Our Services may enable Renters to obtain a credit history report (each, a “Credit Report”) from a third party credit reporting agency (each a “Credit Agency”), which they can share with Listers for a period of 30 days after the date they obtained such report. The ultimate decision as to whether to rent to any individual is solely within the discretion of the applicable Lister, and Listers are under no obligation to rent, or provide preference, to any individual who has obtained a Credit Report from a Credit Agency via the Services. If you obtain a Credit Report, you acknowledge and agree that, as between RadPad and the Credit Agency, the Credit Agency is solely responsible for each Credit Report and the content thereof, including the accuracy, completeness, timeliness and reliability thereof. RADPAD DOES NOT PROVIDE AND THEREFORE IS NOT RESPONSIBLE FOR ANY CREDIT REPORTS ISSUED OR GENERATED BY ANY THIRD PARTY CREDIT AGENCY, INCLUDING THE ACCURACY, COMPLETENESS, TIMELINESS AND RELIABILITY THEREOF. ALL CREDIT REPORTS PROVIDED BY CREDIT AGENCIES ARE MADE AVAILABLE TO YOU VIA THE SERVICES AS A CONVENIENCE ONLY.
RADPAD CANNOT AND DOES NOT CONTROL THE CONTENT CONTAINED IN ANY LISTINGS AND THE CONDITION, LEGALITY OR SUITABILITY OF ANY LISTINGS. RADPAD IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL LISTINGS. ACCORDINGLY, ANY CONTACT BETWEEN LISTERS AND RENTERS WILL BE MADE AT EACH PARTY'S OWN RISK.
Account Registration. In order to access certain features of the RadPad Properties, or to create a Listing, you must register to create an account (a “RadPad Account”) and become a Member. You may register to join the Services directly via the Site or Application or as described in this section.
You can also register to join by logging into your account with certain third party social networking sites (“SNS”) (including, but not limited to, Facebook); each such account, a “Third Party Account”, via our Site or Application, as described below. As part of the functionality of the Site, Application and Services, you may link your RadPad Account with Third Party Accounts, by either: (i) providing your Third Party Account login information to RadPad through the RadPad Properties; or (ii) allowing RadPad to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to RadPad and/or grant RadPad access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating RadPad to pay any fees or making RadPad subject to any usage limitations imposed by such third party service providers. By granting RadPad access to any Third Party Accounts, you understand that RadPad will access, make available and store (if applicable) any Content that you have provided to and stored in your Third Party Account (“SNS Content”) so that it is available on and through the RadPad Properties via your RadPad Account and RadPad Account profile page. Unless otherwise specified in these Terms, all SNS Content, if any, will be considered to be Member Content for all purposes of these Terms. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts will be available on and through your RadPad Account on the Site, Services and Application. Please note that if a Third Party Account or associated service becomes unavailable or RadPad's access to such Third Party Account is terminated by the third party service provider, then SNS Content will no longer be available on and through the Site, Services and Application. You have the ability to disable the connection between your RadPad Account and your Third Party Accounts, at any time, by accessing the “Settings” section of the Site and Application. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. RadPad makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement and RadPad is not responsible for any SNS Content.
We will create your RadPad Account and your RadPad Account profile page for your use of the Site and Application based upon the personal information you provide to us or that we obtain via an SNS as described above. You may not have more than one (1) active RadPad Account. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. RadPad reserves the right to suspend or terminate your RadPad Account and your access to the Site, Application and Services if you create more than one (1) RadPad Account or if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your RadPad Account, whether or not you have authorized such activities or actions. You will immediately notify RadPad of any unauthorized use of your RadPad Account.
Generally. As a Member, you may create Listings. To this end, you will be asked a variety of questions about the rental property to be listed (“Rental”), including, but not limited to, the location, size, features, photos, availability of the Rental and pricing. In order to be featured in Listings via the RadPad Properties, all Rentals must have a valid physical address and a minimum of three photos. Listings will be made publicly available via the RadPad Properties, as well as on the websites and services of our third party partners. RadPad may also place signs at the physical location of certain Listings in order to increase awareness of your Listing. Other Members will be able to view your Rental via the RadPad Properties based upon the information provided in your Listing.
You agree to use the most accurate, current and complete information about your Listing and to update such information to keep it accurate, current and complete.
You acknowledge and agree that you are responsible for any and all Listings you post. Accordingly, you represent and warrant that any Listing you post (i) will not breach any agreements you have entered into with any third parties and (ii) will (a) be in compliance with all applicable laws, Tax requirements, and rules and regulations that may apply to any Rental included in a Listing you post, including, but not limited to, zoning laws and laws governing rentals of residential and other properties and (b) not conflict with the rights of third parties. Please note that RadPad assumes no responsibility for a Lister's compliance with any applicable laws, rules and regulations. RadPad reserves the right, at any time and without prior notice, to remove or disable access to any Listing for any reason, including Listings that RadPad, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site, Application or Services.
You understand and agree that RadPad does not act as an insurer or as a contracting agent for you as a Lister. If a Renter signs a lease with you for your Rental, any agreement you enter into with such Renter is between you and the Renter and RadPad is not a party thereto.
Furthermore, you acknowledge and agree that RadPad is not an insurance agent or a party to an insurance agreement between you and any other user. RadPad does not hold any insurance policy which names you or any other user as a named insured or additional insured. In the event of any injury or damage (whether personal or property) arising under any rental agreement between you and any other user, you acknowledge that neither RadPad, nor its own insurers, will provide you with any form of insurance coverage.
- Lease with RadPad. RadPad may offer Listers the ability to enroll in our Lease with RadPad program, as further described at www.leasewithradpad.com. RadPad charges certain fees in connection with such services as described in Section 5(b)(iii) below. In the event you, as a Lister, use or participate in our Lease with RadPad program by using the Lease with RadPad services, and/or completing the registration process, the terms of this Section 5(b) apply to you. If you and RadPad have entered into a written pen-signed agreement regarding the subject matter of this Section 5(b), that agreement will supersede this Section 5(b) to the extent of any conflict.
- Form Agreements. RadPad may offer Listers tools to enable them to create forms of real property leases and other agreements which we may add from time to time (each, a “Form Agreement”) that may be used with current and potential Renters. As a Lister, you acknowledge and agree that RadPad makes no representation or warranty related to the accuracy, content, completeness, truthfulness, sufficiency or legality of any Form Agreements that we provide or make available to you through the Services. WE ADVISE AND ENCOURAGE YOU TO CONSULT YOUR OWN ATTORNEY BEFORE USING OR ENTERING INTO ANY FORM AGREEMENT. RADPAD DOES NOT AND WILL NOT EVALUATE ANY OF THE TERMS OF ANY FORM AGREEMENT FOR LEGAL SUFFICIENCY, NOR DOES RADPAD PROVIDE LEGAL ADVICE, OPINIONS OR RECOMMENDATIONS RELATED THERETO.
- Marketing Services. RadPad will endeavor to provide certain marketing services related to your Listings, which may include, the provision of photography and/or videography services, the creation of premier listings, and management services, which we may change from time to time at our discretion. RadPad may subcontract or delegate these services and obligations to third party independent contractors. RadPad is not responsible for and does not control any such third party independent contractors, and you hereby release RadPad of any claims, liabilities, losses, damages, costs or expenses incurred by you as a result of any act or omission of such third party independent contractors. AS A LISTER, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE NOT RECEIVED ANY ASSURANCE THAT YOU WILL OBTAIN ANY PARTICULAR NUMBER OF RENTERS, OR AMOUNTS, IF ANY, AS A RESULT OF THESE TERMS OR YOUR ENROLLMENT IN THE LEASE WITH RADPAD SERVICE. RADPAD WILL INCUR NO LIABILITY WHATSOEVER FOR ANY DAMAGES, LOSSES, LIABILITIES, COSTS OR EXPENSES OF ANY KIND SUFFERED OR INCURRED BY YOU ARISING FROM OR INCIDENT TO YOUR PARTICIPATION IN THE LEASE WITH RADPAD SERVICE, OR ANY TERMINATION OF THESE TERMS BY RADPAD, WHETHER OR NOT RADPAD IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, LIABILITIES, COSTS OR EXPENSES.
- Unless otherwise agreed by you and RadPad in writing, you, as a Lister, agree to pay RadPad, with respect to each Renter you locate, solicit, engage, rent to, contract with, market to or otherwise interact with via the Lease with RadPad services, (x) three percent (3%) of the total monthly rent you invoice or otherwise mutually agreed upon percentage charge to such Renter, including both the base rent and also any pet fees/rent, HOA fees, and parking fees/rent, multiplied by (y) the number of months in the relevant lease term (excluding any renewals on a month-to-month basis), regardless of whether the Renter pays you, as the Lister, through the Service. In the event the applicable Renter makes payments to you via our third party payment processor, you acknowledge that RadPad will, and you authorize RadPad to, automatically deduct such fees and any third party payment processing fees from each payment and either remit the remaining amounts to you either via check or direct deposit into the bank account you provided. You represent and warrant that all payment information you provide is accurate, current and complete and that you will maintain and promptly update such information to keep it accurate, current and complete. You agree that RadPad shall not be liable for any delays or errors in payment related to your failure to provide RadPad with accurate, current or complete payment information. You acknowledge that with respect to any payment made by a Renter to you via our third party payment processor, that the applicable Renter is solely responsible for designating the date upon which payment is to be made (the “Payment Date”). You agree that assuming the Payment Date is schedule on or before the applicable Rent Due Date (as defined below), and assuming Renter has made available sufficient funds to RadPad’s third party payment processor, neither RadPad nor the applicable Renter shall be responsible for any late fees, charges, costs, expenses or penalties arising from the remission of such Renter’s full payment (less RadPad’s and our third party payment processor’s fees).
Responsibility for Content.
- No Obligation to Pre-Screen Content. You acknowledge that RadPad has no obligation to pre-screen Content (including, but not limited to, Member Content), although RadPad reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of any Content you upload, transmit, distribute, post, email or otherwise make available (“Make Available”) to RadPad (“Your Content”), including without limitation chat, text, or voice communications. In the event that RadPad pre-screens, refuses or removes any Content, you acknowledge that RadPad will do so for RadPad’s benefit, not yours. Without limiting the foregoing, RadPad shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
- Storage. Unless expressly agreed to by RadPad in writing elsewhere, RadPad has no obligation to store any of Your Content that you Make Available on the RadPad Properties. RadPad has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the RadPad Properties.
Fees and Payment Terms
General. Joining the Services and searching for Listings is free. We do, however, charge fees for using other services, such as paying your rent via the Services (“Paid Services”). The fees we do charge for using our Paid Services are listed on our Fee Schedule (https://www.onradpad.com/paymyrent/faq), which we may change from time to time. Changes to that schedule are effective after we provide you with at least thirty (30) days’ notice by posting the changes on the Services. We may choose to temporarily change the fees for our Services for promotional events or new services, and such changes are effective when we post the temporary promotional event or new service on the Services. You agree to pay all charges incurred by you or any users of your RadPad Account and payment card (or other applicable payment mechanism) at the prices in effect when such charges are incurred. You must provide RadPad with a valid credit or debit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”) as a condition to signing up for the Paid Services. Your Payment Provider agreement governs your use of the designated credit or debit card, and you must refer to that agreement and not the Terms to determine your rights and liabilities. By providing RadPad with your credit or debit card number and associated payment information, you agree that RadPad and its third party payment processor is authorized to immediately invoice your RadPad Account for all fees and charges due and payable to RadPad hereunder and that no additional notice or consent is required. You also agree that you are: (i) making a bona fide rent payment (ii) authorized to use your payment card used to make a rent payment, (iii) adhering to the rules established by your Payment Provider in connection with the use of the card, and (iv) not knowingly engaging in any transaction that is illegal or that you should have known was illegal.
You agree to immediately notify RadPad of any change in your zip code or the credit or debit card account used for payment hereunder. RadPad reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Services or by e-mail delivery to you. All information that you provide to us or our third party payment processor must be accurate, current and complete. RadPad and RadPad’s third party processor may receive updated credit card information from your credit card issuer. The disbursement of the updated credit card information is provided to RadPad and RadPad’s third party payment processor at the election of your credit card issuer. NEITHER RADPAD NOR RADPAD’S THIRD PARTY PAYMENT PROCESSOR ARE RESPONSIBLE FOR THE DISTRIBUTION OF YOUR CREDIT CARD INFORMATION. IT IS AT THE SOLE ELECTION OF YOUR CREDIT CARD ISSUER. YOUR CREDIT CARD ISSUER MAY GIVE YOU THE RIGHT TO OPT OUT OF THE UPDATE SERVICE. IT IS YOUR RESPONSIBILITY TO CONTACT YOUR CREDIT CARD ISSUER WITH REGARDS TO YOUR RIGHT TO OPT OUT OF THE UPDATE SERVICE. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY PAYMENT CARD(S) OR OTHER PAYMENT MEANS USED TO INITIATE ANY TRANSACTION. You will also be responsible for paying any applicable taxes relating to your purchases. Verification of information applicable to a purchase may be required prior to our acceptance of any order.
Further Agreements of Participating Landlord. In connection with Participating Landlord’s use of the RadPad Properties or the Services, and in receiving a payment from RadPad or RadPad’s third party processor, Participating Landlord further agrees that: (1) it understands and agrees that it is solely responsible for compliance with any and all laws, rules, regulations, and tax obligations that may apply to it and its use of the RadPad Properties or the Services; (2) it will comply with any applicable Payment Provider rules; (3) the relevant Payment Provider may terminate Participating Landlord’s ability to receive a payment made using that Payment Provider’s payment card; and (4) it is not and will not be violating any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, zoning restrictions and tax laws, rules or regulations, nor knowingly engaging in any transaction that is illegal or that Participating Landlord should have known was illegal.
BY ENROLLING IN “PAY MY RENT” YOU UNDERSTAND AND AGREE THAT WE WILL CHARGE YOUR PAYMENT CARD ON FILE EACH MONTH THE PAYMENT AMOUNT DESIGNATED BY YOU, PLUS RADPAD’S THEN-CURRENT FEES FOR AN INDEFINITE PERIOD OF TIME, UNLESS AND UNTIL YOU CANCEL YOUR ENROLLMENT BY DESELECTING THE “PAY MY RENT” SERVICE IN YOUR RADPAD ACCOUNT SETTINGS AT LEAST TEN (10) BUSINESS DAYS PRIOR TO THE SCHEDULED PAYMENT DATE.
Rent Guarantee. As part of RadPad’s commitment to our users, RadPad will, as part of our “Rent Guarantee” (https://www.onradpad.com/rent-guarantee), pay late fees charged to you, up to $50 per late fee that are directly attributable to RadPad’s failure to pay a rent payment on your behalf, assuming that you have properly scheduled the due date for the payment of your rent on or through the Services on or before the date that your lease or other rent payment is due to your landlord (the "Rent Due Date"), provided that you have made available sufficient funds to our third party payment processor.
While we do our best to ensure your rent payment arrives by the date you have designated payment to be made, you acknowledge and agree that we do not have control over our third party payment processor, and will not be liable for any delays or failures resulting from causes outside RadPad’s reasonable control, including, but not limited to, systemic Internet outages, the actions or inactions of third parties, or network unavailability.To qualify for a rent guarantee claim you must:
- Submit your claim to us within 14 day of the Rent Due date.
- Provide documentation of late fees, which must include a copy of your lease agreement and a letter from your landlord indicating a late fee was assessed.
- Provide us your landlord's information, including their name and/or business, phone number and email must be provided so we can contact your landlord as part of our claim process.
RadPad will not honor our Rent Guarantee and reimburse you a late fee:
- If your legal name is not on the legal lease agreement or you do not live at the property where your rent payment was mailed to.
- If you have your payment sent to an address that is not the landlords official business address.
- If you do not provide us the information we require in order to investigate and quickly process a refund.
- If you are not making a legitimate rent payment on an apartment, home, condo or unit (i.e. you’re paying HOA’s).
- If you are making a payment outside of the continental United States.
Late Fee Reimbursement:
- If you provide us with the required information and meet our rent guarantee requirements, we will reimburse you up to the amount stated in your lease not to exceed $50.00 USD.
- You may only file a claim once every six months.
- Reimbursement will be made by check & payable to your landlord and sent by USPS priority mail within three business days after we conclude our claim process.
Filing a Rent Guarantee Claim: If you wish to file a claim, you must email us within 14 days of the payment due date to [email protected], with the subject 'Rent Guarantee Claim'. Failure to follow our claim process can result in delays to our process, which ultimately impacts our ability to promptly reimburse you for valid late fees.
RadPad shall not be liable, and does not accept liability for, any late fees or penalties charged to you as a result of: (i) your lack of sufficient funds or any actions or inactions of third parties, including any decision by your Payment Provider not to pay your rent; (ii) any non-compliance with the Rent Guarantee process set forth above; (iii) your failure to provide RadPad with an accurate, current and complete address for your landlord; (iv) any wrongful fees or penalties charged to you by your landlord; or (v) any act, event or occurrence beyond RadPad’s reasonable control.
Stop Check Payment:
RadPad shall not be liable, and does not accept liability for, any fees associated with any stop check payments as a result of renter error, such as and not limited to, incorrect payment amounts, incorrect landlord addresses, forgetting to stop recurring payments after the ten (10) business days prior to the recurring scheduled payment date, renter refusal to pay associated fees after the payment is processed, roommate payment issues, renter no longer lives in the current payment address, etc.
- Cost of Credit Reports. Listers are under no obligation to rent their properties to you (even if you have obtained a Credit Report) or accept any Credit Report obtained from a Credit Agency. Listers may require you to obtain a separate Credit Report at your own expense, at their sole discretion. All payments made by you for any Credit Reports are non-refundable, and RadPad will not reimburse you for any fees, costs or other expenses incurred by you in obtaining any Credit Reports. You acknowledge and agree that RadPad is not responsible for, and will have no liability to you, for any Credit Reports, including accuracy, completeness, timeliness or reliability thereof, or the decision of any Lister to accept any Credit Report, or to require you to obtain a separate Credit Report outside of the Services.
- Listing Fees. In the event you are a Lister, the terms of this Section 7(f) apply to you. Unless otherwise agreed by you and RadPad in writing, you, as a Lister, agree to pay RadPad, with respect to each Renter you locate, solicit, engage, rent to, contract with, market to or otherwise interact with via the Services, (x) three percent (3%) of the total monthly rent you invoice or otherwise charge to such Renter, including both the base rent and also any pet fees/rent and parking fees/rent, multiplied by (y) the number of months in the relevant lease term, regardless of whether the Renter pays you, as the Lister, through the Service.In the event the applicable Renter makes payments to you via our third party payment processor, you acknowledge that RadPad will, and you authorize RadPad to, automatically deduct such fees and any third party payment processing fees from each payment and either remit the remaining amounts to you either via check or direct deposit into the bank account you provided. You represent and warrant that all payment information you provide is accurate, current and complete and that you will maintain and promptly update such information to keep it accurate, current and complete. You agree that RadPad shall not be liable for any delays or errors in payment related to your failure to provide RadPad with accurate, current or complete payment information. You acknowledge that with respect to any payment made by a Renter to you via our third party payment processor, that the applicable Renter is solely responsible for designating the date upon which payment is to be made (the "Payment Date"). You agree that assuming the Payment Date is schedule on or before the applicable Rent Due Date, and assuming Renter has made available sufficient funds to RadPad’s third party payment processor, neither RadPad nor theapplicable Renter shall be responsible for any late fees, charges, costs, expenses or penalties arising from the remission of such Renter’s full payment (less RadPad’s and our third party payment processor’s fees)
Renter acknowledges that such fees associated with stop check payments, such as and not limited to, stop check payment fees from banks and/or payment processors will be directly deducted from renter’s payment account.
Renter also acknowledges that stop check payments will not be honored in RadPad’s Rent Guarantee.
- General. Joining the Services and searching for Listings is free. We do, however, charge fees for using other services, such as paying your rent via the Services (“Paid Services”). The fees we do charge for using our Paid Services are listed on our Fee Schedule (https://www.onradpad.com/paymyrent/faq), which we may change from time to time. Changes to that schedule are effective after we provide you with at least thirty (30) days’ notice by posting the changes on the Services. We may choose to temporarily change the fees for our Services for promotional events or new services, and such changes are effective when we post the temporary promotional event or new service on the Services. You agree to pay all charges incurred by you or any users of your RadPad Account and payment card (or other applicable payment mechanism) at the prices in effect when such charges are incurred. You must provide RadPad with a valid credit or debit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”) as a condition to signing up for the Paid Services. Your Payment Provider agreement governs your use of the designated credit or debit card, and you must refer to that agreement and not the Terms to determine your rights and liabilities. By providing RadPad with your credit or debit card number and associated payment information, you agree that RadPad and its third party payment processor is authorized to immediately invoice your RadPad Account for all fees and charges due and payable to RadPad hereunder and that no additional notice or consent is required. You also agree that you are: (i) making a bona fide rent payment (ii) authorized to use your payment card used to make a rent payment, (iii) adhering to the rules established by your Payment Provider in connection with the use of the card, and (iv) not knowingly engaging in any transaction that is illegal or that you should have known was illegal.
- No Endorsement. RadPad does not endorse any Members or any Rentals. In addition, although these Terms require Members to provide accurate information, we do not attempt to confirm, and do not confirm, any Member’s purported identity, or the accuracy of any Listing. You are responsible for determining the identity and suitability of others who you contact via the RadPad Properties.
Mobile Text Message Services Terms. The following terms in this Section 9 apply to everyone who: (1) signs up to receive one or more SMS or MMS message and/or messages from RadPad, or (2) sends us messages via SMS or MMS.
When you sign up for RadPad’s text alert program you are expressly consenting to receive text messages on behalf of RadPad, to verify that you are human and that you are the person that created or is using your RadPad Account (the “Text Services”).
You may opt out of the Text Services at any time by texting the word STOP to (310) 846-8475 from the enrolled mobile device. If you do that, you will receive one additional message confirming that you will no longer receive messages from RadPad regarding the verification of your identity. If you need help with our Text Services, then please email [email protected].
We do not charge a fee for the Text Services; however, depending on your messaging plan, your mobile carrier may charge you for each message we send you or that you send us. It is your responsibility to know whether your carrier will charge you per-message costs (for instance, if you do not have an unlimited texting plan, or have exceeded your monthly quota of free messages). We assume no responsibility for charges incurred by your using the Text Services.
The Text Services may not be available in all areas at all times. SMS/MMS messages are distributed via a complex system of service providers and we cannot guarantee their availability or performance. This means we may not be able to successfully transmit SMS/MMS messages to you, and we have no liability for any such transmission delay or message failure. The Text Services may not work in the event of product, software, coverage, or other changes made by your wireless carrier or changes you make to your mobile device.
You must provide your own wireless device, subscribe to a wireless service on a participating mobile carrier, and be able to receive text messages using that wireless device and your carrier’s service.
User Conduct. You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and tax obligations that may apply to your use of the RadPad Properties. In connection with your use of the RadPad Properties or Services, you agree that in making a payment: you are authorized to use the payment card used to make the payment; you are adhering to the rules established by the Payment Provider in connection with the use of the card, the RadPad Properties and the Services; that the Payment Provider may terminate your ability to make the payment with that Payment Provider’s payment card; and that the payment is for a bona fide rent payment transaction. You also agree that you may not and you agree that you will not:
- violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, zoning restrictions and tax laws, rules or regulations nor knowingly engage in any transaction that is illegal or that you should have known was illegal;
- use manual or automated software, devices, scripts robots, other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the RadPad Properties;
- use the RadPad Properties for any commercial or other purposes that are not expressly permitted by these Terms;
- copy, store or otherwise access any information contained on the RadPad Properties for purposes not expressly permitted by these Terms;
- infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights;
- interfere with or damage our RadPad Properties, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
- use our RadPad Properties to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
- use our RadPad Properties in connection with the distribution of unsolicited commercial email ("spam") or advertisements unrelated to rentals in a private residence;
- "stalk" or harass any other user of our RadPad Properties or collect or store any personally identifiable information about any other user other than for purposes of transacting as a RadPad Renter or Lister;
- offer, as a Lister, any Rental that you do not yourself own or have permission to rent as a residential or other property or that may not be rented or subleased in breach of any agreement with a third party to which you are bound;
- contact, any other user of the RadPad Properties for any purpose other than asking and answering question(s) related to Listings and Rentals;
- recruit or otherwise solicit any Member to join third party services or websites that are competitive to RadPad, without RadPad's prior written approval;
- impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity;
- use automated scripts to collect information or otherwise interact with the RadPad Properties;
- as a Lister, submit any Listing with false or misleading price information, or submit any Listing with a price that you do not intend to honor;
- Make Available any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances;
- use, display, mirror or frame the Site or Application, or any individual element within the RadPad Properties, RadPad's name, any RadPad trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without RadPad's express written consent;
- access, tamper with, or use non-public areas of the Site or Application, RadPad's computer systems, or the technical delivery systems of RadPad's providers;
- attempt to probe, scan, or test the vulnerability of any RadPad system or network or breach any security or authentication measures;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by RadPad or any of RadPad's providers or any other third party (including another user) to protect the RadPad Properties;
- forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the RadPad Properties to send altered, deceptive or false source-identifying information;
- attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the RadPad Properties; or
- advocate, encourage, or assist any third party in doing any of the foregoing.
- Investigations. RadPad will have the right to investigate and prosecute violations of these Terms to the fullest extent of the law. RadPad may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that RadPad has no obligation to monitor your access to or use of the RadPad Properties or to review or edit any Member Content, shall have the right to do so, in its sole discretion, and to remove or disable access to any Member Content or Your Content for any reason (or no reason), including if such Content violates these Terms or otherwise harmful to the RadPad Properties.
Interactions with Other Users
- User Responsibility. You are solely responsible for your interactions with other users of the Services and any other parties with whom you interact through the Services; provided, however, that RadPad reserves the right, but has no obligation, to intercede in such disputes. You agree that RadPad will not be responsible for any liability incurred as the result of such interactions.
- Content Provided by Other Users. The RadPad Properties may contain Member Content provided by other users. RadPad is not responsible for and does not control Member Content. RadPad has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to Member Content. You use all Member Content and interact with other users at your own risk.
- Renting Decisions. Listers and landlords are under no obligation to rent to you or any individual. If you obtain a Credit Report, any Lister or landlord to whom you provide such Credit Report is under no obligation to accept any such Credit Report or to rent to you by virtue of your Credit Report or the content thereof. You acknowledge and agree that all renting decisions are within the sole discretion of the applicable Lister and landlord, and RadPad has no control of any Lister or landlord, including their decisions whether to rent to any person or accept any Credit Report.
Ownership and Licenses
- Ownership. The RadPad Properties are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the RadPad Properties, including all associated intellectual property rights are the exclusive property of RadPad and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the RadPad Properties.
- Application License. Subject to your compliance with these Terms, RadPad grants you a limited non-exclusive, non-transferable license to download and install a copy of the Application on a mobile device or computer that you own or control and run such copy of the Application solely for your own personal use. Furthermore, with respect to any App Store Sourced Application (defined below), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple Inc.’s proprietary operating system), or (ii) on devices that run the Android (Google Inc.’s proprietary operating system). Furthermore, with respect to any App Store Sourced Application accessed through or downloaded from the Apple App Store, Google Chrome Web Store, Google Play marketplace or any similar store or marketplace (each, an “App Store” and references to an App Store include the corporate entity and its subsidiaries making such App Store available to you), you agree to comply with all applicable third party terms of the relevant App Store (e.g., Apple App Store’s “Usage Rules”) (the “Usage Rules”) when using the App Store Sourced Application. RadPad reserves all rights in the Application not expressly granted to you by these Terms.
- Your Content. RadPad does not claim ownership of Your Content. However, when you post or publish Your Content on the RadPad Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or incorporate it in other words in any form, media, or technology now known or later developed. You hereby grant to RadPad a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense through multiple tiers of sublicenses, to use, copy, modify, distribute, publicly display, publicly perform, digitally transmit, and otherwise exploit such Your Content on, through, or by means of the RadPad Properties.
- Proprietary Rights Notices. All trademarks, service marks, logos, trade names and any other proprietary designations of RadPad used herein are trademarks or registered trademarks of RadPad. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
- Updates. You understand that the RadPad Properties are evolving. As a result, RadPad may require you to accept updates to the RadPad Properties that you have installed on your computer or mobile device. You acknowledge and agree that RadPad may update the RadPad Properties with or without notifying you. You may need to update third-party software from time to time in order to use the RadPad Properties.
- Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to RadPad through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that RadPad has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to RadPad a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the RadPad Properties.
- Links. The RadPad Properties may contain links to third-party websites or resources. You acknowledge and agree that RadPad is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by RadPad of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products or services on or available from such websites or resources.
Copyright Policy. RadPad respects copyright law and expects its users to do the same. It is RadPad's policy to terminate in appropriate circumstances the RadPad Accounts of Members or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. As such, RadPad adheres to the following notice and take down policy, in full compliance with Section 512(c)(3) of the DMCA (17 U.S.C. § 512 et seq.). If you believe any Member Content infringes upon your intellectual property rights, please submit a notification alleging such infringement (hereafter a “DMCA Takedown Notice”). To be valid, a DMCA Takedown Notice must (i) be provided to RadPad’s designated agent (“Copyright Agent”), as set forth below, and (ii) include the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to be infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works;
- Identification of the material claimed to be infringed or to be the subject of infringing activity and that is to be removed or access disabled and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail address;
- A statement that you have 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, under penalty of perjury, the information in the notification is accurate and that you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
RadPad’s Copyright Agent to receive DMCA Takedown Notices is: [email protected]. For clarity, only DMCA Takedown Notices should go to the Copyright Agent; any other feedback, comments, online purchases or other communications should be directed to the applicable customer service links posted on the Service. You acknowledge that for RadPad to be authorized to takedown any content, your DMCA Takedown Notice must comply with all of the requirements of this Section.
- Termination and RadPad Account Cancellation. We may, in our discretion and without liability to you, with or without cause, with or without prior notice and at any time: (a) terminate these Terms or your access to our RadPad Services, and (b) deactivate or cancel your RadPad Account. You may cancel your RadPad Account at any time by sending an email to [email protected] that includes your full name and account sign up email address. Termination of any of the Services includes removal of access to such Services and barring of further use of the Services. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your RadPad Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. RadPad will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
Disclaimers. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE RADPAD PROPERTIES IS AT YOUR SOLE RISK, AND THE RADPAD PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. YOU ACKNOWLEDGE AND AGREE THAT RADPAD DOES NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND CHECKS ON ANY MEMBER, INCLUDING, BUT NOT LIMITED TO, RENTERS AND LISTERS, BUT MAY CONDUCT SUCH BACKGROUND CHECKS IN ITS SOLE DISCRETION. RADPAD EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE OR NON-INFRINGEMENT. RADPAD MAKES NO WARRANTY THAT THE RADPAD PROPERTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. RADPAD MAKES NO WARRANTY REGARDING THE QUALITY OF ANY LISTINGS, THE SERVICES OR CONTENT OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SITE, APPLICATION OR SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM RADPAD OR THROUGH THE RADPAD PROPERTIES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE RADPAD PROPERTIES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE RADPAD PROPERTIES, INCLUDING, BUT NOT LIMITED TO, ANY LISTERS OR RENTERS. YOU UNDERSTAND THAT RADPAD DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE RADPAD PROPERTIES OR TO REVIEW OR VISIT ANY RENTALS TO VERIFY THE ACCURACY OF THE LISTING, ITS CONDITION OR SUITABILITY FOR HUMAN INHABITATION. RADPAD MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE RADPAD PROPERTIES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE RADPAD PROPERTIES. RADPAD EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY RENTER OR OTHER THIRD PARTY.
ALL DECISIONS WHETHER TO RENT TO ANY INDIVIDUAL ARE SOLELY WITHIN THE DISCRETION OF THE APPLICABLE LISTER. YOU ACKNOWLEDGE AND AGREE THAT RADPAD HAS NO CONTROL OVER THE RENTING DECISIONS OF ANY LISTER. IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT ALL CREDIT REPORTS PROVIDED BY CREDIT AGENCIES VIA THE SERVICES ARE SOLELY FOR CONVENIENCE PURPOSES ONLY. LISTERS ARE UNDER NO OBLIGATION TO RENT TO ANY INDIVIDUAL WHO PROVIDES A CREDIT REPORT, NOR ARE LISTERS UNDER ANY OBLIGATION TO ACCEPT ANY CREDIT REPORT. AS BETWEEN RADPAD AND THE CREDIT AGENCY, THE CREDIT AGENCY IS SOLELY RESPONSIBLE FOR ALL CREDIT REPORTS, INCLUDING THE ACCURACY, COMPLETENESS, TIMELINESS OR RELIABILITY THEREOF.
Limitation of Liability. NEITHER RADPAD NOR ANY OF ITS SUPPLIERS WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE RADPAD PROPERTIES, INCLUDING LOST PROFITS, LOSS OF DATA OR ANY DAMAGES OR COSTS DUE TO LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS (EXCLUDING RADPAD’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT), FROM THE USE OF OR INABILITY TO USE THE RADPAD PROPERTIES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE RADPAD PROPERTIES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE RADPAD PROPERTIES FROM YOUR LISTING OF ANY RENTAL VIA THE RADPAD PROPERTIES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, WHETHER OR NOT RADPAD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL RADPAD'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE RADPAD PROPERTIES , EXCEED: (A) THE AMOUNTS YOU HAVE PAID TO RADPAD AS A RESULT OF YOUR USE OF THE RADPAD PROPERTIES AS A RENTER IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT(S) GIVING RISE TO THE LIABILITY; (B)IF YOU ARE A LISTER, THE AMOUNTS PAID BY RADPAD TO YOU IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT(S) GIVING RISE TO THE LIABILITY; OR (C) IN THE EVENT YOU HAVE NOT PAID RADPAD AND RADPAD HAS NOT PAID YOU, ANY AMOUNTS DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT(S) GIVING RISE TO LIABILITY, ONE HUNDRED DOLLARS ($100).. THE LIMITATIONS ON DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN RADPAD AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
- Indemnification. You agree to release, defend, indemnify, and hold RadPad and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of the RadPad Properties or your violation of these Terms; (b) Your Content; (c) your interaction with any Member; or (d) your Listing(s).
Accessing and Downloading the Application from an App Store. The following applies to any Application accessed through or downloaded from an App Store (“App Store Sourced Application”):
- You acknowledge and agree that (i) these Terms are concluded between you and RadPad only, and not Apple, and (ii) RadPad, not the App Store, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Usage Rules.
- You acknowledge that the App Store has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
- RadPad is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify the App Store, and the App Store will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, App Store will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between RadPad and the App Store, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of RadPad.
- You and RadPad acknowledge that, as between RadPad and the App Store, the App Store is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- You and RadPad acknowledge that, in the event of any third party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between RadPad and the App Store, RadPad, not the App Store, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
- You and RadPad acknowledge and agree that the App Store, and the App Store’s subsidiaries, are third party beneficiaries of these Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of these Terms, the App Store will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- RadPad’s contact information for any end-user questions, complaints or claims with respect to the App Store Sourced Application is set forth below.
- Without limiting any other terms of these Terms, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
- Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between RadPad and you regarding the RadPad Properties, and these Terms supersede and replace any and all prior oral or written understandings or agreements between the parties with respect to such subject matter.
- Assignment. You may not assign or transfer these Terms, by operation of law or otherwise, without RadPad's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. RadPad may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
- Notices. Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by RadPad (i) via email (in each case to the address that you provide) or (ii) by posting to the Site or via the Application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. You may give notice to RadPad at the following address: [email protected]
- Electronic Communications. The communications between you and the RadPad use electronic means, whether you visit the RadPad Properties or send the RadPad e-mails, or whether the RadPad posts notices on the RadPad Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from RadPad in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that RadPad provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
- Controlling Law and Jurisdiction. These Terms will be interpreted in accordance with the laws of the State of California and the United States of America, without regard to its conflict-of-law provisions except where federal law including the Federal Arbitration Act apply. In any circumstances where the Arbitration Agreement stated in the next section permits the parties to litigate in court, you and we agree to submit to the personal jurisdiction of a state and federal courts located in Los Angeles, California.
Arbitration; Class Action Waiver. Please read this Arbitration Agreement carefully. It is part of your contract with RadPad and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER (“Arbitration Agreement”).
- Applicability of Arbitration Agreement. Most customer concerns can be resolved quickly and to a customer’s satisfaction by writing to our customer service department at [email protected] or RadPad, Attn: Customer Experience, 1976 S. La Cienega Blvd #428, Los Angeles, CA 90034. In the unlikely event that our customer service department is unable to resolve a complaint you may have to your satisfaction (or if we have not been able to resolve a dispute we have with you after attempting to do so informally), we each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Services or use of the Site or Application (collectively, “Disputes”) will be settled by binding individual arbitration, except that each party retains 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.
- Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by individual arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court.
- Class action waiver. You acknowledge and agree that you and RadPad are each waiving any right they may have to participate as a plaintiff or class member in any purported class action or representative proceeding and that the arbitrator may not otherwise preside over any form of any class or representative proceeding. Further, unless both you and RadPad otherwise agree in writing, the arbitrator may not consolidate more than one person's claims. If this specific paragraph is held unenforceable, then the entirety of this Arbitration Agreement section will be deemed void. Except as provided in the preceding sentence, this “Arbitration Agreement” section will survive any termination of these Terms.
- Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at http://www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
- Arbitration Initiation Process. 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 at https://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015820 and a separate form for California residents at https://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California 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.
- Arbitration Location and Procedure. Unless you and RadPad otherwise agree, the arbitration will be conducted within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and RadPad 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.
- Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. 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. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
- Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, RadPad will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
- Changes. Notwithstanding the provisions of the “Modification” section above, if RadPad changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to [email protected]) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of RadPad's email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and RadPad in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
- Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
- Waiver; Severability. The failure of RadPad to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of RadPad. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
- Contacting RadPad. If you have any questions about these Terms or any App Store Sourced Application, please contact RadPad at [email protected].
- Export Control. You may not use, export, import, or transfer the RadPad Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the RadPad Properties, and any other applicable laws. In particular, but without limitation, the RadPad Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the RadPad Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You acknowledge and agree that products, services or technology provided by Company are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer RadPad products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
- Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
- Force Majeure. RadPad shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.