RELEASE, DISCLAIMER, AND USER ACKNOWLEDGMENTS
NOTICE: THIS AGREEMENT IS SUBJECT TO A BINDING ARBITRATION. THIS
NOTICE IS GIVEN IN ACCORDANCE WITH S.C. CODE ANN. § 15-48-10.
1. DEFINITIONS.
For purposes of this Release, Disclaimer, and User Acknowledgments (this Clause),
the following terms apply:
Portal Operator means the entity that owns and operates the South Carolina-based
online portal that connects renters and landlords (the Portal).
User means any person or entity that accesses or uses the Portal, including any renter,
prospective renter, landlord, prospective landlord, property manager, or other participant.
Landlord means any User offering, advertising, or providing a rental property, unit, or
housing-related services through the Portal.
Renter means any User seeking, applying for, or renting a rental property or unit through
the Portal.
Content means any listing, profile, message, application information, images,
documents, pricing, availability, terms, or other information posted, transmitted, or
otherwise made available by any User through the Portal.
Transaction means any interaction, negotiation, application, screening, lease, payment
arrangement, move-in, occupancy, or other dealing between or among Users, whether
initiated through the Portal or occurring off-platform.
2. INTERMEDIARY STATUS; NO AGENCY; NO PARTY TO LEASES.
2.1. Marketplace only. The Portal Operator provides a technology platform that
enables Renters and Landlords to locate and communicate with each other. The Portal Operator
is a third-party intermediary and is not a party to any Transaction, lease, rental agreement, or
other agreement between Users.
2.2. No agency or fiduciary relationship. The Portal Operator does not act as an
agent, broker, attorney, fiduciary, or representative of any User, and no partnership, joint venture,
employment, or agency relationship is created by use of the Portal.
2.3. User-to-user responsibility. Users are solely responsible for (a) negotiating and
entering into any lease or other agreement, (b) verifying identity, authority, and eligibility of the
other party, (c) confirming property condition, habitability, safety, legality, and compliance with
applicable law, and (d) determining the suitability of any Transaction.
3. DISCLAIMER OF WARRANTIES; NO VERIFICATION; NO ADVICE
3.1. No warranties. To the maximum extent permitted by South Carolina law,
the Portal and all Content are provided on an "as is" and "as available" basis. The Portal Operator
disclaims all warranties, whether express, implied, or statutory, including any implied warranties
of merchantability, fitness for a particular purpose, title, non-infringement, accuracy,
completeness, and quiet enjoyment.
3.2. No verification or endorsement. The Portal Operator does not and is not
obligated to (a) verify any User's identity, background, licensure, authority, ownership, or right to
rent; (b) verify any listing, pricing, availability, or property condition; or (c) endorse any User,
property, or Transaction.
3.3. No legal/financial/housing advice. The Portal Operator does not provide legal,
tax, financial, real estate, or housing advice. Users should obtain independent professional advice
as appropriate.
4. RELEASE OF CLAIMS; WAIVER OF LIABILITY (INCLUDING
NEGLIGENCE); ATTORNEY’S FEES.
4.1. Release. In consideration of being permitted to access and use the Portal, and
intending to be legally bound, the User releases and forever discharges the Portal Operator and
its owners, officers, directors, employees, contractors, and agents (collectively, the Released
Parties) from any and all claims, demands, causes of action, damages, losses, liabilities, costs,
and expenses (including reasonable attorneys' fees and costs) of every kind and nature, whether
known or unknown, suspected or unsuspected, arising out of or relating to:
a) any Transaction or dispute between Users (including any lease formation,
performance, nonperformance, termination, eviction-related communications, or
payment arrangements);
b) any property condition, habitability issue, injury, theft, property damage, or other
harm occurring at or relating to any rental property identified through the Portal;
c) any inaccuracy, omission, or misrepresentation in any Content supplied by any
User; and
d) any communications or interactions between Users, whether on or off the Portal.
4.2 Express negligence waiver. The User agrees that this release and waiver
includes claims based on the Released Parties' alleged negligence (including, by way of
example only, alleged negligent operation of the Portal, alleged negligent display, hosting, or
transmission of Content, or alleged negligent failure to remove or restrict Content), but does not
include claims arising from a Released Party's gross negligence, willful misconduct, or fraud to
the extent such limitation is not permitted under South Carolina law.
4.3 Scope and construction. The User acknowledges that South Carolina law
construes exculpatory provisions strictly; therefore, the User agrees that the intent of this Clause
is to allocate risk to the User for User-to-User Transactions and to protect the Portal Operator in
its role as a third-party intermediary, and the User affirms that the User has had a meaningful
opportunity to review this Clause before accepting it.
4.4 Assumption of Risk. The User understands and agrees that Transactions between
Renters and Landlords involve inherent risks (including risks of fraud, misrepresentation, unsafe
conditions, nonpayment, and personal injury). The User voluntarily assumes all such risks,
whether foreseeable or unforeseeable, arising out of or relating to the User's use of the Portal and
any Transaction.
4.5 Attorney’s Fees.
4.5.1 Definitions.
a) “Claim” means any claim, dispute, controversy, demand, action, suit,
proceeding, or cause of action of any kind, whether in contract, tort, equity, or under
statute, arising out of or relating to the Portal, a User's access to or use of the Portal,
or this Agreement, including its interpretation, construction, performance,
enforcement, or alleged breach.
b) “Prevails/Prevailing” means, with respect to a Claim, that the Portal
Operator obtains (a) a final judgment, order, or award in its favor on the merits of all
or a material part of the Claim, (b) dismissal of all or a material part of the Claim with
prejudice, (c) injunctive or declaratory relief substantially consistent with the Portal
Operator's requested relief, and/or (d) a settlement in which the Claim is dismissed
and the relief obtained by the Portal Operator is substantially consistent with the
Portal Operator's position. The Portal Operator may be the Prevailing party whether it
is the claimant, counterclaimant, cross-claimant, third-party claimant, or
respondent/defendant.
c) All definitions set forth in Section 1 of this Agreement are also
incorporated by reference herein.
4.5.2 Fee-Shifting in Favor of Portal Operator.
4.5.2.1. User obligation to pay Portal Operator's fees and costs if
Portal Operator prevails. If the Portal Operator Prevails in any Claim,
whether the Claim is brought by a User against the Portal Operator or brought
by the Portal Operator against a User, then the User shall be responsible for, and
shall promptly pay to the Portal Operator, the Portal Operator's reasonable
attorneys' fees and costs incurred in connection with such Claim.
4.5.2.2. Scope of recoverable amounts. Recoverable "attorneys' fees
and costs" include, but are not limited to and to the fullest extent permitted by
applicable law, (a) reasonable attorneys' fees; (b) court costs and filing fees; (c)
service of process and subpoena costs; (d) reasonable costs of investigation,
document collection, and production; (e) reasonable expert and consultant fees and
expenses; and (f) reasonable fees and costs incurred in enforcing this Section,
including post-judgment collection and any appeal.
4.5.2.3. Apportionment. If the Portal Operator Prevails as to some,
but not all, Claims or issues, the Portal Operator shall be entitled to recover
reasonable attorneys' fees and costs reasonably attributable to the Claims or issues on
which it Prevails, as determined by the court (or other adjudicator) with jurisdiction.
4.5.2.4. Timing; procedure. The Portal Operator may seek recovery of
attorneys' fees and costs by motion, application, or other procedure permitted by the
applicable rules of the forum. The User's payment obligation under this Section is
independent of, and in addition to, any other remedies available to the Portal Operator
at law or in equity.
5 USER CONDUCT; LEGAL COMPLIANCE; PROHIBITED USES.
5.2 Compliance with law. The User will use the Portal in compliance with all
applicable federal, state, and local laws, rules, and regulations.
5.3 Prohibited conduct. The User will not use the Portal to:
a) send unsolicited spam or unauthorized bulk messages to other Users except as
permitted by applicable law;
b) post, transmit, or promote Content that is false, misleading, deceptive,
pornographic, obscene, or unlawful;
c) misuse, misappropriate, or infringe any intellectual property or other rights of any
third party; or
d) engage in illegal or immoral activities through the Portal, as determined under
applicable law.
5.4. Cooperation and policy compliance. The User agrees to comply with the
Portal Operator's posted policies applicable to use of the Portal and to cooperate in reasonable
efforts to address complaints, privacy requests, and opt-out/unsubscribe requests communicated
through Portal tools, if any.
5.5. Limitation of Liability. To the maximum extent permitted by South
Carolina law, in no event will any Released Party be liable for any indirect, incidental,
consequential, special, exemplary, or punitive damages, or for loss of profits, loss of data, loss of
goodwill, business interruption, or substitute housing costs, arising out of or relating to the
Portal, any Content, or any Transaction, even if advised of the possibility of such damages. To
the maximum extent permitted by South Carolina law, the aggregate liability of the Released
Parties for any claim arising out of or relating to the Portal will not exceed the total amount paid
by the User (if any) to the Portal Operator for access to the Portal during the three (3) months
preceding the event giving rise to the claim.
6. SOUTH CAROLINA GOVERNING LAW; VENUE.
This Clause, and any dispute between the User and the Portal Operator arising out of or
relating to the Portal, this Clause, or any alleged extra-contractual facts (including alleged fraud,
misrepresentation, negligence, tort, or statutory violations), will be governed by, construed, and
enforced in accordance with the laws of the State of South Carolina, without regard to conflict-
of-laws rules that would apply another jurisdiction's laws. Subject to applicable law, the parties
consent to exclusive venue and personal jurisdiction in the state and federal courts located in
South Carolina for any action not subject to a valid and enforceable alternative dispute resolution
agreement between the User and the Portal Operator.
7. CONFIDENTIALITY; COMPELLED DISCLOSURE; RETURN/DESTRUCTION;
DATA PROCESSING.
7.1. Definitions.
Confidential Information means any non-public information disclosed or made
available (directly or indirectly) by or on behalf of a User or the Portal Operator
to the other in connection with the Portal or any communications or transactions
initiated through the Portal, whether disclosed orally, visually, electronically, or in
writing, including: (a) messages and communications between Users; (b)
application information and supporting documents; (c) screening-related
information; (d) non-public pricing, terms, and negotiation communications; (e)
non-public business, technical, operational, or security information about the
Portal; and (f) any other information that a reasonable person would understand to
be confidential given the nature of the information and the circumstances of
disclosure. Confidential Information includes information that constitutes trade
secrets to the extent protected under applicable law.
Authorized Persons means, with respect to a receiving party, that party's directors,
officers, employees, agents, representatives, contractors, and advisors who have a
legitimate need to know the Confidential Information for purposes permitted by
this Agreement and who are bound to protect it consistent with this Clause.
All definitions set forth in Section 1 of this Agreement are also incorporated by
reference herein.
7.2. Scope; Exclusions; Burden of Proof.
7.2.1. Scope. Confidential Information remains the disclosing party's
Confidential Information unless and until an exclusion in Section 2.2 applies.
7.2.2. Exclusions. Confidential Information does not include information that
the receiving party can demonstrate: (a) is or becomes publicly known through no
wrongful act or breach of this Agreement by the receiving party or any Authorized
Person; or (b) is disclosed to the receiving party by a third party without violation of any
obligation owed to the disclosing party.
7.2.3. Burden of proof. The receiving party bears the burden of proving that
an exclusion applies.
7.3. Recipient's Obligations; Standard of Care; Limited Use.
7.3.1. Confidentiality and non-disclosure. The receiving party shall
keep Confidential Information strictly confidential and shall not disclose it to any third
party except to Authorized Persons as permitted by this Clause.
7.3.2. Standard of care. The receiving party shall protect the Confidential
Information using at least the same degree of care it uses to protect its own confidential
information of like importance, but in no event less than a reasonable standard of care.
7.3.3. Use restriction. The receiving party shall use Confidential
Information solely as necessary to (a) use the Portal as intended, (b) communicate with
the other party through the Portal, and/or (c) evaluate, negotiate, enter into, and perform a
potential or actual rental relationship initiated through the Portal. The receiving party
shall not use Confidential Information for any purpose that is incompatible with the
purpose for which it was provided or subsequently authorized by the disclosing party.
7.3.4. Responsibility for Authorized Persons. The receiving party shall: (a)
limit disclosure of Confidential Information to Authorized Persons with a need to know;
(b) ensure Authorized Persons are obligated to protect the Confidential Information
consistent with this Clause; and (c) be responsible for any unauthorized use or disclosure
by any Authorized Person as if it were the receiving party's own breach.
7.3.5. No license; ownership. All right, title, and interest in and to
Confidential Information remains with the disclosing party. No license or other rights of
any kind are granted by implication or otherwise except the limited right to use
Confidential Information as expressly permitted by this Clause.
7.4. Compelled Production; Notice; Cooperation.
7.4.1. Permitted compelled disclosure. Nothing in this Clause prohibits a
receiving party from disclosing Confidential Information to the extent required by
applicable law, regulation, court order, subpoena, discovery request, or other lawful
process, provided the receiving party acts in good faith on advice of counsel.
7.4.2. Notice and cooperation. To the extent legally permitted, before
making any compelled disclosure, the receiving party shall provide the disclosing party
prompt written notice of the required disclosure and shall reasonably cooperate (at the
disclosing party's expense) with the disclosing party's efforts to seek protective treatment
or other appropriate limitations on disclosure. Cooperation does not require the receiving
party to take any action that, on advice of counsel, would reasonably be expected to result
in sanctions or penalties.
7.5. Return/Destruction.
7.5.1. Upon the earlier of (a) the disclosing party's written request, (b)
termination of the receiving party's relationship with the Portal, or (c) when the
Confidential Information is no longer required for the permitted purposes, the receiving
party shall promptly return or permanently destroy (and, upon request, certify destruction
of) the disclosing party's Confidential Information in the receiving party's possession or
control, except to the extent retention is required by applicable law or routine, immutable
system backups; provided that any retained Confidential Information remains subject to
this Clause for so long as retained.
7.6. Term; Survival.
7.6.1. Term. The obligations in this Clause begin upon first access to or use of
the Portal and apply to all Confidential Information disclosed at any time during the
receiving party's use of the Portal.
7.6.2. Survival. The receiving party's confidentiality, non-use, and
protection obligations under this Clause survive termination of the receiving party's use
of the Portal for twenty-four (24) months, except that obligations with respect to trade
secrets survive for so long as the information remains a trade secret under applicable law.
7.7. Acknowledgment; Remedies. The receiving party acknowledges that the
disclosing party's Confidential Information is a valuable proprietary asset and may include trade
secrets, and that unauthorized use or disclosure may cause irreparable harm. The receiving party
agrees that the disclosing party may seek all remedies available at law or in equity for breach of
this Clause.
8. DISPUTE RESOLUTION (MEDIATION AND ARBITRATION); GOVERNING
LAW; VENUE.
8.1. Definitions.
8.1.1. Agreement means the contract in which this Dispute Resolution clause is
included.
8.1.2. Parties means the parties to the Agreement.
8.1.3. Dispute means any dispute, controversy, or claim between the Parties
arising out of, relating to, or in any way connected with the Agreement, including its
formation, interpretation, performance, breach, termination, validity, scope, or
enforceability, and including alleged extra-contractual or tort claims to the maximum
extent permitted by law.
8.1.4. AAA means the American Arbitration Association.
8.1.5. Business Day means a day other than a Saturday, Sunday, or legal holiday
in South Carolina.
8.1.6. All definitions set forth in Section 1 of this Agreement are also
incorporated by reference herein.
8.2. Good-Faith Negotiation (Condition Precedent).
8.2.1. Notice of Dispute. Any User asserting a Dispute against the Portal
Operator must give the Portal Operator written notice describing the Dispute in
reasonable detail and the relief requested.
8.2.2. Negotiation Period. Within ten (10) Business Days after receipt of the
notice, authorized representatives of the Parties must confer in good faith to attempt to
resolve the Dispute. If the Dispute is not resolved within twenty (20) Business Days after
the initial conference (or such other period the Parties agree in writing), either Party may
initiate mediation under Section 3.
8.3. Mediation (Binding Requirement to Participate).
8.3.1. Mandatory Mediation. As a condition precedent to arbitration under
Section 4 (except as provided in Section 6), the Parties must submit the Dispute to non-
binding mediation and must participate in the mediation in good faith.
8.3.2. Administrator and Rules. The mediation will be administered by the
AAA under its applicable mediation procedures, unless the Parties agree in writing to a
different administrator or procedures.
8.3.3. Mediator Selection. The mediator will be selected by mutual agreement
of the Parties. If the Parties do not agree on a mediator within ten (10) Business Days
after a mediation request, the mediator will be appointed by the AAA.
8.3.4. Location and Format. Unless the Parties agree otherwise in
writing, the mediation will take place in Horry County in South Carolina specified in the
Agreement (or, if not specified, in the county in South Carolina where performance
primarily occurs), and may be conducted in person, by video conference, or in a hybrid
format as the mediator determines after consulting the Parties.
8.3.5. Timing. The mediation session must occur within forty-five (45)
days after the mediation request unless the Parties agree otherwise in writing or the
mediator's schedule requires a later date.
8.3.6. Confidentiality. The mediation is confidential to the fullest extent
permitted by law. Mediation communications are settlement discussions and are not
admissible in any later proceeding, except to enforce a written settlement agreement or as
otherwise required by law.
8.3.7. Costs. The Parties will share the mediator's fees and AAA administrative
fees equally, and each Party will bear its own attorneys' fees and internal costs for the
mediation, unless a written settlement agreement provides otherwise.
8.4. Arbitration (Final and Binding; Exclusive Merits Forum).
8.4.1. Agreement to Arbitrate. If a Dispute is not resolved by mediation
under Section 3, the Portal Operator will have the sole power to require the Dispute to be
resolved solely and finally by binding arbitration.
8.4.2. Governing Arbitration Law. The arbitration will be governed by
the Federal Arbitration Act to the fullest extent applicable.
8.4.3. Administrator and Rules. The arbitration will be administered by the
AAA in accordance with the AAA Commercial Arbitration Rules then in effect, except as
modified by this clause.
8.4.4. Seat, Venue, and Language. The seat and hearing location of the
arbitration will be in Horry County in South Carolina specified in this Agreement (or, if
not specified, in the county in South Carolina where performance primarily occurs). The
arbitration will be conducted in English.
8.4.5. Arbitrator(s). The arbitration will be decided by one (1) neutral arbitrator
unless the Parties agree in writing to three (3) arbitrators. If the Parties do not agree on
the arbitrator(s), the arbitrator(s) will be appointed in accordance with the AAA rules,
unless the parties agree otherwise.
8.4.6. Authority; Applicable Law. The arbitrator(s) will decide all issues
submitted and will adjudicate the Dispute in accordance with the substantive laws of the
State of South Carolina, without regard to its conflict-of-laws principles.
8.4.7. Written Award. The arbitrator(s) must issue a written, signed, and
dated award that includes written findings of fact and the reasons for the decision.
8.4.8. Relief. The arbitrator(s) may award monetary damages and, to the extent
permitted by applicable law, equitable relief including specific performance. The
arbitrator(s) may not award relief that a court of competent jurisdiction could not award
under applicable law.
8.4.9. Costs and Attorneys' Fees. Each Party will bear its own attorneys' fees
and its own costs relating to the arbitration proceedings, irrespective of outcome, unless
applicable law expressly authorizes a fee- or cost-shifting award for the claim(s) at issue.
8.4.10. Judgment on Award. Judgment on the arbitration award may be entered
in any court having jurisdiction.
8.5. Exclusivity; Waiver of Jury Trial.
8.5.1. Exclusive Merits Process. Except as expressly permitted by Section 6,
mediation followed by arbitration under this clause is the sole and exclusive method for
resolving any Dispute.
8.5.2. Jury Trial Waiver. To the fullest extent permitted by law, the Parties
waive any right to a trial by judge or jury for any Dispute that is subject to arbitration
under this clause.
8.6. Provisional and Injunctive Relief (Court Carve-Out).
Notwithstanding Sections 3 and 4, either Party may seek temporary, preliminary, or
emergency injunctive relief (including a temporary restraining order) in a court of competent
jurisdiction when, in that Party's reasonable judgment, such relief is necessary to avoid
irreparable harm or to preserve the status quo pending completion of mediation and arbitration.
Seeking such relief does not waive arbitration and does not constitute a submission of the merits
of any Dispute to a court.
8.7. Survival; Severability.
8.7.1. Survival. This Dispute Resolution clause survives expiration or
termination of the Agreement.
8.7.2. Severability. If any portion of this clause is held invalid or
unenforceable, the remaining portions will remain in full force and effect, and the invalid
or unenforceable portion will be enforced to the maximum extent permitted by law
consistent with the Parties' intent to resolve Disputes by mediation and arbitration.
9. INCORPORATION OF ADDITIONAL RELEASES.
Portal Operator, Tenant, User and Landlord agree that this Release, Disclaimer, and User
Acknowledgments is not the only Release that governs, and incorporate by reference all other
similar documents executed through use of the Online Portal. Any and all Releases, Disclaimers,
Waivers, or Agreements that have been agreed to during the use of the Portal are incorporated by
reference herein and shall be considered a part of this Agreement. Any conflicting provisions
shall be resolved in favor of the Portal Operator, VRMB Owner Direct, LLC.
10. ELECTRONIC ACCEPTANCE; CONSPICUOUSNESS; SEVERABILITY.
10.1. Electronic acceptance. The User agrees that clicking "I agree," "Accept," or
similar, or otherwise using the Portal after being presented with this Clause, constitutes the
User's electronic signature and acceptance, and forms a binding agreement between the User and
the Portal Operator.
10.2. Conspicuousness. The User acknowledges that the release, waiver, and limitation
of liability provisions are conspicuous and material terms, and that the User accepts them
voluntarily.
10.3. Severability. If any provision of this Clause is held invalid or unenforceable, the
remaining provisions will remain in full force and effect, and any invalid or unenforceable
provision will be enforced to the maximum extent permitted by South Carolina law consistent
with the parties' intent.
