ACRES Terms of Service
Last Updated: January 15, 2021
THIS SITE DOES NOT PROVIDE FINANCIAL ADVICE. Any information, data, text and/or other materials (“Content”) accessible through the ACRES Properties (as defined below) are for informational purposes only. The Content is not intended to be a substitute for professional financial advice. Always seek the advice of a qualified professional with any questions you may have regarding a financial matter. Never disregard professional financial advice or delay in seeking it because of something you have read on ACRES’ Website.
ACRES reserves the right to modify these Terms or its policies relating to the Services at any time, effective upon posting of an updated version of these Terms. You should regularly review these Terms, as your continued use of the Services after any such changes constitutes your agreement to such changes.
1. Use of the Services and ACRES Properties. The Website, the Services, and the information and Content available on the Website and in the Services (collectively, the “ACRES Properties”) are protected by copyright laws throughout the world. ACRES grants you a limited license to access and use the Website and the Services in accordance with these Terms unless otherwise specified by ACRES in a separate license.
1.1 Updates. You understand that the ACRES Properties are evolving. As a result, ACRES may require you to accept updates to the ACRES Properties that you have installed on your computer or mobile device. You acknowledge and agree that ACRES may update the ACRES Properties with or without notifying you. You may need to update third-party software from time to time in order to receive the Services or use the ACRES Properties.
1.2 Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the ACRES Properties or any portion of the ACRES Properties, including the Website, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other ACRES Properties (including images, text, page layout or form) of ACRES; (c) you shall not use any metatags or other “hidden text” using ACRES’ name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the ACRES Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) access the ACRES Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the ACRES Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the ACRES Properties. Any future release, update or other addition to the ACRES Properties shall be subject to the Terms. ACRES, its suppliers and contractors reserve all rights not granted in the Terms. Any unauthorized use of the ACRES Properties terminates the licenses granted by ACRES pursuant to the Terms.
1.3 Third-Party Materials. As a part of the ACRES Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for ACRES to monitor such materials and that you access these materials at your own risk.
2.1 ACRES Properties. You agree that ACRES and its suppliers own all rights, title and interest in the ACRES Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or the ACRES Properties.
2.2 Trademarks. ACRES’ stylized name and other related graphics, logos, service marks and trade names used on or in connection with the ACRES Properties are the trademarks of ACRES and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the ACRES Properties are the property of their respective owners.
2.3 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to ACRES through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that ACRES 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 ACRES 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 ACRES Properties.
3. Third-Party websites. The ACRES Properties may contain links to third-party websites (“Third-Party Websites”). When you click on a link to a Third-Party Website, we may not warn you that you have left the ACRES Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites are not under the control of ACRES. ACRES is not responsible for any Third-Party Websites. ACRES provides these Third-Party Websites only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, or their products or services. You use all links in Third-Party Websites at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third-party.
4. Indemnification. You agree to indemnify and hold ACRES, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “ACRES Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your use of, or inability to use, the ACRES Properties; (b) your violation of the Terms; or (c) your violation of any applicable laws, rules or regulations, including but not limited to any federal or state securities law, rule or regulation. ACRES reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with ACRES in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms, or your access to the ACRES Properties.
5. Disclaimer of Warranties.
5.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE ACRES PROPERTIES IS AT YOUR SOLE RISK, AND THE ACRES PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ACRES PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(a) THE ACRES PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE ACRES PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE ACRES PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) INFORMATION THAT MAY BE OBTAINED FROM USE OF THE ACRES PROPERTIES WILL BE ACCURATE, ERROR-FREE, OR RELIABLE; OR (4) ANY ERRORS IN THE ACRES PROPERTIES WILL BE CORRECTED.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE ACRES PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE ACRES PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. THE ACRES PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
5.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT THE ACRES PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE ACRES PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
5.3 No Investment Advice or Offers. Nothing on the Website is intended to constitute an offer, or solicitation of an offer, to purchase or sell any security, other asset or service, investment advice or an offer to provide such advice, or a basis for making any investment decision. Neither this Website nor any of the content, materials and information available on or through this Website makes any effort to present a comprehensive or balanced description of ACRES or its investment activities. Nothing on the Website is intended to be, and you should not consider anything on the Site to be, investment, accounting, tax or legal advice.
5.4 Past Performance Not Indicative of Future Results. PAST PERFORMANCE MAY NOT BE INDICATIVE OF FUTURE RESULTS. THEREFORE, NO USER SHOULD ASSUME THAT FUTURE PERFORMANCE OF ANY SPECIFIC INVESTMENT, INVESTMENT STRATEGY OR PRODUCT MADE REFERENCE TO DIRECTLY OR INDIRECTLY ON THE WEBSITE, OR INDIRECTLY VIA A LINK TO AN UNAFFILIATED THIRD PARTY WEBSITE, WILL BE PROFITABLE OR EQUAL THE CORRESPONDING INDICATED PERFORMANCE LEVEL(S). DIFFERENT TYPES OF INVESTMENTS INVOLVE VARYING DEGREES OF RISK, AND THERE CAN BE NO ASSURANCE THAT ANY SPECIFIC INVESTMENT WILL EITHER BE SUITABLE OR PROFITABLE FOR A USER’S INVESTMENT PORTFOLIO. HISTORICAL PERFORMANCE RESULTS FOR INVESTMENT INDICES AND/OR CATEGORIES GENERALLY DO NOT REFLECT THE DEDUCTION OF TRANSACTION AND/OR CUSTODIAL CHARGES, THE DEDUCTION OF AN INVESTMENT MANAGEMENT FEE, NOR THE IMPACT OF TAXES, THE INCURRENCE OF WHICH WOULD HAVE THE EFFECT OF DECREASING HISTORICAL PERFORMANCE RESULTS.
5.5 Forward Looking Information. CERTAIN CONTENT ON ACRES PROPERTIES MAY CONTAIN FORWARD-LOOKING STATEMENTS, WHICH ARE SUBJECT TO RISKS AND UNCERTAINTIES AND SPEAK ONLY AS OF THE DATE ON WHICH THEY ARE MADE. THE WORDS “BELIEVE,” “EXPECT,” “ANTICIPATE,” “OPTIMISTIC,” “INTEND,” “AIM,” “WILL” OR SIMILAR EXPRESSIONS ARE INTENDED TO IDENTIFY FORWARD-LOOKING STATEMENTS. USERS ARE CAUTIONED NOT TO PLACE UNDUE RELIANCE ON THESE FORWARD-LOOKING STATEMENTS, WHICH SPEAK ONLY AS OF THE DATE ON WHICH THEY ARE MADE. ACRES UNDERTAKES NO OBLIGATION TO UPDATE PUBLICLY OR REVISE ANY FORWARD-LOOKING STATEMENTS. IMPORTANT FACTORS THAT COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM ACRES’ FORWARD-LOOKING STATEMENTS ARE DESCRIBED IN SUCH ACRES’ PERIODIC REPORTS, INCLUDING THE ANNUAL REPORT ON FORM 10-K AND QUARTERLY REPORTS ON FORM 10-Q FILED WITH THE SECURITIES AND EXCHANGE COMMISSION, AND THE ANNUAL REPORT TO STOCKHOLDERS.
6. Limitation of Liability.
6.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL ACRES PARTIES BE LIABLE FOR ANY LOSS OF USE, DATA, OR PROFITS OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE ACRES PROPERTIES, WHETHER OR NOT ACRES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE ACRES PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE ACRES PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD-PARTY ON ACRES PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO THE ACRES PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. ACRES SHALL IN NO EVENT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY ANY PARTY (INCLUDING, WITHOUT LIMITATION, ANY USER) IN RELIANCE ON INFORMATION POSTED ON ACRES PROPERTIES.
6.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT THE ACRES PARTIES ARE LIABLE TO YOU EXCEED ONE HUNDRED DOLLARS ($100).
6.3 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ACRES AND YOU.
7.1 Violations. If ACRES becomes aware of any possible violations by you of the Terms, ACRES reserves the right to investigate such violations. If, as a result of the investigation, ACRES believes that criminal activity has occurred, ACRES reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. ACRES is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in ACRES Properties, in ACRES’ possession in connection with your use of ACRES Properties, to (a) comply with applicable laws, legal process or governmental request; (b) enforce the Terms, (c) respond to your requests for customer service, or (d) protect the rights, property or personal safety of ACRES, its Registered Users or the public, and all enforcement or other government officials, as ACRES in its sole discretion believes to be necessary or appropriate.
7.2 Breach. In the event that ACRES determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for ACRES Properties, ACRES reserves the right to:
(a) Warn you via e-mail (to any e-mail address you have provided to ACRES) that you have violated the Terms;
(b) Discontinue your registration(s) with any of ACRES Properties, including any Services or any ACRES portal;
(c) Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
(d) Pursue any other action which ACRES deems to be appropriate.
8.1 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof). Upon termination of any Service, your right to use such Service will automatically terminate immediately. ACRES will not have any liability whatsoever to you for any suspension or termination. 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.
8.2 No Subsequent Registration. If your registration(s) with or ability to access ACRES Properties is discontinued by ACRES due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access ACRES Properties or any ACRES community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those ACRES Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, ACRES reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
9. INTERNATIONAL USERS. ACRES Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that ACRES intends to announce such Services or Content in your country. ACRES Properties are controlled and offered by ACRES from its facilities in the United States of America. ACRES makes no representations that ACRES Properties are appropriate or available for use in other locations. Those who access or use ACRES Properties from other countries do so at their own volition and are responsible for compliance with local law.
10. GENERAL PROVISIONS.
10.1 Electronic Communications. The communications between you and ACRES may take place via electronic means, whether you visit ACRES Properties or send ACRES e-mails, or whether ACRES posts notices on ACRES Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from ACRES in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that ACRES 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, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
10.2 Release. You hereby release ACRES Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of ACRES Properties, including but not limited to, any interactions with third-party websites of any kind arising in connection with or as a result of the Terms or your use of ACRES Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by an ACRES Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.
10.3 Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without ACRES’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
10.4 Force Majeure. ACRES 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.
10.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to ACRES Properties, please contact us at ACRES Capital, LLC, Attn: Chief Compliance Officer, 865 Merrick Ave, Suite 200S, Westbury, New York 11590. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
10.6 Exclusive Venue. To the extent the parties are permitted under these Terms to initiate litigation in a court, both you and ACRES agree that all claims and disputes arising out of or relating to the Terms will be litigated exclusively in the state or federal courts located in Nassau, New York.
10.7 Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of new york, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the TERMS.
10.8 Notice. Where ACRES requires that you provide an e-mail address, you are responsible for providing ACRES with your most current e-mail address. In the event that the last e-mail address you provided to ACRES is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, ACRES’ dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to ACRES at the following address: ACRES Capital, LLC, Attn: Chief Compliance Officer, 865 Merrick Ave, Suite 200S, Westbury, New York 11590. Such notice shall be deemed given when received by ACRES by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
10.9 Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
10.10 Severability. If any portion of this Terms is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
10.11 Export Control. You may not use, export, import, or transfer ACRES Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained ACRES Properties, and any other applicable laws. In particular, but without limitation, ACRES 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 ACRES Properties, you represent and warrant that (y) 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 (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use ACRES Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by ACRES 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 ACRES products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
10.12 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 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
10.13 Entire Terms. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.