ASPEN SQUARE TERMS OF USE

ACCEPTANCE OF THE TERMS OF USE
By accessing or using the Aspen Square platform and website offered by Aspen Square Management, Inc. and its affiliates, including Nepsa Property Investors, Inc., Nepsa Manager LLC, Nepsa Operating Group LLC, and Johnson Real Estate Investors LLC (“Aspen,” “we,” “us” or “our”) at https://aspensquare.com and all associated pages and services (our “Website” and the Website and all its software, features, and functionality, the “Services”, you (the “User”, “your” or “you”) confirm that you have read, understand and agree to be bound by these terms of use (“Terms of Use”). Please read the Terms of Use carefully and print a copy for your records. To familiarize yourself with Aspen’s privacy practices, please review our Privacy Policy, available at https://aspensquare.com/company/privacy-policy, the terms of which are incorporated by reference and made a part hereof.
IF YOU ARE UNWILLING TO BE BOUND BY THESE TERMS OF USE, DO NOT ACCESS, OR USE THE SERVICES.
PLEASE BE AWARE THAT SECTION 13 OF THESE TERMS OF SERVICE, BELOW, CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND ASPEN HAVE AGAINST EACH OTHER ARE RESOLVED. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE YOU TO SUBMIT CLAIMS THAT YOU HAVE AGAINST ASPEN TO BINDING AND FINAL ARBITRATION. YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST ASPEN ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION PROVISIONS SET FORTH IN SECTION 13 OF THESE TERMS COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING CLASS ACTION LITIGATION. PLEASE SEE SECTION 13 FOR MORE INFORMATION REGARDING THESE ARBITRATION PROVISIONS, INCLUDING THE ARBITRATION PROVISIONS’ IMPACT ON THE PENDING CLASS LITIGATION. THE TERMS OF SERVICE LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
CHANGES TO THESE TERMS OF USE
By accessing our Services, you acknowledge that we have the right to revise and amend these Terms of Use without prior notice. Your continued use of the Services following our posting of any such changes will mean that you accept such changes. Notwithstanding the foregoing, we may notify you at the email address provided to us or by a posting on the Website if we make any material changes to these Terms of Use, and you may have to agree to or reject the updated Terms of Use at that time, to continue using the Services.
THESE SERVICES ARE FOR USE BY ADULTS ONLY
Content on the Services
You may access and use the contents of the Services, including the Website, for personal, non-commercial use. All materials published or available on the Services (including, but not limited to text, photographs, images, illustrations, designs, audio clips, video clips, “look and feel,” metadata, data, or compilations, collectively, our “Content”) are protected by copyright, and unless otherwise indicated and credited in conjunction with a piece or selections of Content, are owned or controlled by Aspen Management Group, Inc. We also own copyright in the selection, coordination, compilation, and enhancement of our Content (“Arrangement”). Non-commercial use does not include the use of our Content without our prior written consent in connection with: (a) the development of any software program, including, but not limited to, training a machine learning or artificial intelligence (“AI”) system; or (b) providing archived or cached data sets containing Content to another person or entity, including without limitation for competitive or commercial purposes.
Our Services and Content are protected by law, which laws may include copyright, trademark, patent, trade secret, database right, sui generis rights or other intellectual or proprietary rights codified in or recognized by U.S. and international laws. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except for limited personal use provided that you maintain all copyright and other notices contained in the Content and any other downloadable items), create new works from, distribute, perform, display (including framing and inline linking), communicate to the public or in any way exploit, any of our Content (or its Arrangement) or the Services in whole or in part.
PROHIBITED USE OF OUR SERVICES
You may not access or use, or attempt to access or use, the Services to take any action that could harm Aspen or any third party or person. You may not use the Services in violation of applicable laws, including export controls and sanctions, or in violation of our or any other party’s privacy, intellectual property or other proprietary or legal rights. You further agree that you will not attempt (or encourage or support anyone else’s attempt) to circumvent, reverse engineer, decrypt, or otherwise alter or interfere with the Services, or any Content of the Services, or make any unauthorized use of the Services. Further, without Aspen’s prior written consent in each case, you may not:
- Access any part of the Services or Content, or our underlying data or information you do not have permission or authorization to use;
- Frame the Services in any manner, utilize framing techniques to enclose any content or other proprietary information, place pop-up windows over any Services’ pages, or otherwise affect the display of any pages on the Services or do anything else that could disable, damage or change the functioning or appearance of the Website;
- Use any automated means to access this Services or collect any information from the Services (including, without limitation, robots, spiders, scripts, service, software or any manual or other automatic devices, tools, process or programs designed to data mine or scrape the Content, data or information from the Services, or otherwise use, access, or collect the Content, data or information from the Services using automated means;
- use Website Content for the development of any software program, including, but not limited to, training a machine learning or AI system;
- use services, software or any manual or automatic device, tool, or process designed to circumvent any restriction, condition, or technological measure that controls access to the Services in any way, including overriding any security feature or bypassing or circumventing any access controls or use limits of the Services;
- cache or archive the Content (except for a public search engine’s use of spiders for creating search indices);
- take action that imposes an unreasonable or disproportionately large load on our network or infrastructure;
- Use the Services in any manner that violates applicable law or that could alter, damage, disable, overburden, or impair the Services or interfere with any other party’s use and enjoyment of the Services; or
- Access, use or monitor our Services for benchmarking or any competitive purposes.
RESIDENTIAL SERVICES AND REGISTERED ACCOUNTS
Parts of the Services may only be accessed by residents of our rental communities by registering for an account with information matching your lease terms and creating a password. You are responsible for ensuring that you choose a secure password and for the activities on your account. You represent, warrant, and agree that no materials of any kind submitted through your account or otherwise posted or shared by you through the Services will violate or infringe upon the rights of any third party, including without limitation any copyright, trademark, patent, privacy, publicity, or other personal or intellectual property rights; or contain libelous, defamatory, or otherwise unlawful material. You will notify us promptly if you discover any unauthorized use of your account. We are not responsible for any losses resulting from unauthorized use of your account.
In addition, you agree not to use the Services to:
- Except where authorized by us, register for more than one User account, register or operate an User account on behalf of or for the benefit of any person who is not eligible to register for or operate a User account in their own name;
- Impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age, or your affiliation with or authority to act on behalf of any person or entity;
- Upload, post, transmit, share, store, or otherwise make publicly available through the Services any private information of any third party, including, without limitation, addresses, phone numbers, email addresses, birth dates, governmental identifications, or financial account information, unless legally authorized to do so by that third party;
- Upload, post, transmit, share, or otherwise make available any material that contains software viruses, or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of the Services, or
- Use or attempt to use another User’s account without authorization or create a false identity through the Services.
INFORMATION POSTED THROUGH THE SERVICES
You are solely responsible for the information that you post on or through the Services and your conduct regarding the Services. By posting information to or through the Services, you agree to (a) provide accurate, current, and complete information; (b) maintain the security of your password and identification, to the extent you are provided a password and identification; (c promptly notify us of any changes to information or circumstances that could affect your eligibility to continue using the Services; and (d) be fully responsible for all use of your account and for any actions that take place using your account.
Subject to the published requirements, if you are a resident of a community that appears on the Website or a resident of an affiliated community, you may establish an account in order to access certain resident portals as a component of the Services. Your account may integrate or connect to third party sites. In addition, the Services provide access to payment processing that is hosted and provided by third party service providers. As made available to you, some of our third-party service providers may have additional terms and conditions that are different than these Terms of Use. To the extent not restricted by law or applicable agreements with third parties, Aspen is not responsible or liable for any third-party acts or omissions or services they may provide you.
The Services may contain links to third-party websites and services (collectively, “Third-Party Links”). Where the Services contain links to Third-Party Links, these links are provided for your information and convenience only. We have no control over the contents of those sites or resources. Aspen does not review, approve, endorse, or make any promises with respect to Third-Party Links. Your use of any Third-Party Links is at your own risk, and you should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links, the applicable third party’s terms and policies apply, not these Terms of Use.
In addition, the Sites provide map views of properties using Google Maps. Your use of Google Maps through the Sites, or otherwise, is subject to the Google Maps/Google Earth Terms of Service (including the Google Privacy Policy).
NO BROKERAGE RELATIONSHIP OR ASSURANCE OF RENTAL APPROVAL
Our Website offers a neutral online venue for potential renters to obtain preliminary information about our communities and properties. Based upon such preliminary information, you and we may elect thereafter to independently negotiate and consummate a transaction (any, a “Transaction”). We are not a real estate broker, mortgage broker, or lender, and the Website and our Services (and are not intended at any time to) provide any financial or real estate advice to you nor does visiting our Website or using our Services provide any guarantee of any Transaction.
INTELLECTUAL PROPERTY
Trademarks. The “Aspen Square” name and “AS” wordmark and all associated graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks, or trade dress in the United States. Aspen’s trademarks and trade dress may not be used, including as part of trademarks or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Aspen.
Submissions. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information (“Submissions”), provided by you to us through the Services are non-confidential and shall become the sole property of Aspen. Aspen shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
Digital Millennium Copyright Act. If you believe that any Content or other material on the Website or made available through our Services infringes upon any copyright which you own or control, you may send a written notification of such infringement as set forth below:
Via email: Legal@aspensquare.com or via facsimile at 413-736-6275 or via telephone at 413-781-0712.
To meet the notice requirements under the Digital Millennium Copyright Act, the notification must be a written communication including 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 have been infringed, or, if multiple copyrighted works, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
DISCLAIMERS
We reserve the right to change all content within the Services and any service offered through the Services at any time without notice.
We provide the Services “AS IS” and assume no responsibility for any failure to provide the Services to you. The Services may be temporarily unavailable from time to time for maintenance or other reasons. We may discontinue the Services or any goods or services available through the Services at any time and for any reason. We are not responsible for any problems or technical malfunction of any telephone or cable network or lines, servers or providers, computer equipment, software, failure of email, or technical problems or traffic congestion on the Internet or on or through the Services, including injury or damage to Users or to any other person’s devices related to or resulting from use of the Services.
Under no circumstances will we be responsible for any loss or damage, including any loss or damage to any user data, financial damages, lost profits, loss of business, or personal injury or death, resulting from anyone’s use of the Services. YOU AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR OWN RISK, and that we EXPRESSLY DISCLAIM ALL WARRANTIES, TERMS AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES, TERMS AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS AND SATISFACTORY QUALITY.
LIMITATION OF CERTAIN DAMAGE TYPES
EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED OR PROHIBITED, IN NO EVENT WILL ASPEN OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SERVICES OR ANY OF CONTENT OR OTHER MATERIALS ON OR ACCESSED THROUGH THE SERVICES, EVEN IF ANY OF US IS AWARE OF OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
LIMITATION OF LIABILITY AMOUNT
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF THE AMOUNT PAID BY YOU TO US FOR ANY REASON IN THE THREE MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM AND $20. YOU ACKNOWLEDGE THAT IF NO FEES ARE PAID TO US, YOU SHALL BE LIMITED TO, AT MOST, INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PROHIBITED BY APPLICABLE LAW, AND SHALL NOT BE ENTITLED TO ANY OTHER DAMAGES, REGARDLESS OF THE CAUSE OF ACTION. NOTHING IN THESE TERMS SHALL LIMIT OR EXCLUDE OUR LIABILITY FOR: (a) DEATH OR PERSONAL INJURY RESULTING FROM OUR WILLFUL MISCONDUCT; (b) FRAUD OR FRAUDULENT MISREPRESENTATIONS; OR (c) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED BY APPLICABLE LAW.
DISPUTES, GOVERNING LAW, VENUE, AND JURISDICTION
By using the Services, you agree that these Terms of Use shall be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of law provisions.
For any cause of action initiated against Aspen relating to these Terms of Use, you and Aspen agree to submit to the exclusive and personal jurisdiction of the courts located in the Commonwealth of Massachusetts.
Our failure to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of that right or provision. If any provision of these Terms of Use is found by a court of competent jurisdiction to be invalid, then we nevertheless agree that the court should endeavor to give effect to the intentions reflected in the provision, and the other provisions of these Terms of Use shall remain in full force and effect. The language of these Terms of Use shall be construed as to its fair meaning and not strictly for or against any party.
ARBITRATION AGREEMENT & DISPUTE RESOLUTION
Please read this Arbitration Agreement carefully. It is part of your contract with Aspen and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Scope of Arbitration Agreement (“Arbitration Agreement”). You acknowledge and agree that any dispute or claim relating in any way to your access or use of the Services or to any other aspect of your relationship with Aspen will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (b) you or Aspen may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose before this or any prior agreement.NOW OR IN THE FUTURE, THERE MAY BE LAWSUITS AGAINST Aspen ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS. SUCH CLAIMS, IF SUCCESSFUL, COULD RESULT IN SOME MONETARY RECOVERY TO YOU. THE EXISTENCE OF SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUITS DOES NOT MEAN THAT SUCH LAWSUITS WILL ULTIMATELY SUCCEED. BUT IF YOU AGREE TO ARBITRATION WITH Aspen, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVERY MONETARY OR OTHER RELIEF UNDER SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUITS. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST Aspen IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.
Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Act in all respects. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, CT Corporation System, 155 Federal Street, Suite 700, Boston, Massachusetts 02110. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. Payment of all filing, administration, and arbitration fees will be governed by the AAA’s rules. We will reimburse those fees for claims totaling less than $5,000 unless the arbitrator determines the claims are frivolous. Likewise, Aspen will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum.
Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Aspen. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these Terms of Use. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding on you and Aspen.
Waiver of Jury Trial. YOU AND Aspen EACH KNOWINGLY AND VOLUNTARILY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and Aspen are instead electing to have claims and disputes resolved by arbitration. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms of Use as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is limited. In any litigation between you and Aspen over whether to vacate or enforce an arbitration award, you and Aspen waive all rights to a jury trial and elect instead to have a judge resolve the dispute.
Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Aspen is entitled to arbitration. Instead, all claims and disputes will then be resolved in a court as set forth in Section 12 (Disputes, Governing Law, Venue and Jurisdiction) above.
Exclusive Venue. To the extent the parties are permitted under these Terms of Use to initiate litigation in a court, both you and Aspen agree that all claims and disputes arising out of or relating to the Terms of Use will be litigated exclusively in the state or federal courts located in Delaware.
INDEMNITY
To the maximum extent permitted by law, you agree to indemnify and hold us, our subsidiaries and affiliates, and each of their directors, officers, agents, contractors, partners, and employees, harmless from and against any loss, liability, claim, demand, damages, costs (including attorneys’ fees), and expenses, arising out of or in connection with your use of the Services or any violation of these Terms of Use.
PLEASE PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS AND PLEASE CHECK BACK FREQUENTLY FOR ANY CHANGES TO THIS AGREEMENT.
SURVIVAL
The following Sections survive the termination of these Terms of Use: 5, 6, 9 through 16.