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TERMS OF USE

Welcome to the website of Fairmont Heritage Place (the “Project”).   The terms and conditions in this Terms of Use and the Privacy Policy (available at: http://fairmontatghirardelli.com/privacy-policy) constitute the terms upon which you may use this website and any associated website, webpage or kiosk or Content (defined below) therein which concern only fractional ownership interests, not whole units, at the Project available for purchase from Developer (each such website, webpage or kiosk referred to hereafter as a “Site”). Please read these Terms of Use and the Privacy Policy carefully before using and/or accessing the Site. By entering or accessing the Site, you consent and agree to this Terms of Use without limitation or qualification. If you do not agree to this Terms of Use and the Privacy Policy, please do not enter or use the Site.  We reserve the right to change this Terms of Use from time to time without notice so you should check this location on the website (http://fairmontatghirardelli.com/disclaimer) for updates each time you visit the Site.   Changes to this Terms of Use will not be highlighted in any revision hereof, however the revision date of this Terms of use will be posted at the bottom of this Terms of Use.  Please note that by continuing to use or access the Site after any changes to these Terms of Use are made, you agree to the changed Terms of Use, whether or not you check for such updates.

Fairmont Heritage Place is not owned or developed by Fairmont Hotels & Resorts, Inc. (“Fairmont”); however, an affiliate of Fairmont owns an interest in the Project’s developer, HPSF Holdings VII, Inc. (“Developer”).  The Developer uses the Fairmont Heritage Place and other Fairmont trademarks and services marks under license from Fairmont (the “Fairmont Marks”), which license is terminable according to its terms. Prices are subject to change.  The Developer has developed the project under the “Fairmont” brand and the association has entered into a management agreement whereby Fairmont Management Company will offer property management services for the project (the “Management Agreement”). The Developer and not Fairmont is selling fractional ownership interests at Fairmont Heritage Place (each an “Interest”). Fairmont has not acted as broker, finder or agent in connection with any Interest.  In the event the Management Agreement is terminated at any time or any reason, all use of the Fairmont trademarks and service marks (the “Fairmont Marks”) must cease at the Project, all indicia of connection of the project with Fairmont including all signs or other materials bearing any of the Fairmont Marks, shall be removed from the Project, and all services to be provided by Fairmont to the Project shall cease.

Brokers must accompany their client(s) on their first visit to the Sales Center or pre-register them in advance of their first visit in order to be eligible for a broker commission. Exclusively represented by JMA Properties, Inc. Lic. #01157751. Equal Housing Opportunity.

No Federal or State agency has judged the merits or value, if any, of Fairmont Heritage Place or any Interests offered for sale. The information presented herein is proposed and should not be relied upon as a basis for the purchase of any Interest(s) since all elements are subject to change, refinement or elimination by the Developer without notice. Verify all details in writing before purchasing any Interest(s).  ORAL REPRESENTATIONS CANNOT BE RELIED UPON AS CORRECTLY STATING THE REPRESENTATIONS OF THE DEVELOPER.

The Site is provided solely for informational purposes and is not intended to constitute an advertisement in any jurisdiction. The Site and the information therein or electronic communication through the Site is not an advertisement to sell, nor an offer to sell, nor a solicitation of offers to buy to residents in jurisdictions in which registration or license requirements have not been fulfilled, nor does it constitute a solicitation of residents in any states or other jurisdictions which require registration. The Project has not been registered under various state laws.  Eligibility to purchase an Interest and the Interest(s) available for purchase will depend upon the state, province or country of residency of the purchaser, amongst other requirements.  All information contained in the Site is subject to change, and no representations are made as to the accuracy of such information.  The Site is not intended to constitute an advertisement in any jurisdiction nor an offer to sell nor a solicitation of offers to buy real estate in any jurisdiction where prohibited by law.

Unless specifically stated or otherwise indicated, all content, including, but not limited to, any information, Depictions (defined below), trademarks, service marks, Fairmont Marks, copyrights, logos, trade names, text, data, messages, pictures, images, video, audio, graphics, links, or other electronic files or things that can be uploaded, downloaded, copied from, or posted on, the Internet or on web sites (collectively referred to herein as “Content”) on the Site is the property of or licensed to Developer and/or JMA Properties, Inc., and protected by intellectual property laws. Therefore, the Content may NOT be copied, republished, posted, transmitted, distributed, modified, used to create derivative works, decompiled, disassembled, reverse engineered, transferred for sale or in any method or form exploited for any purpose except that you may print out one copy solely for your personal, non-commercial use so long as you do not remove or alter any copyright, trademark, trade name, service mark, patents, technologies, products, processes, Fairmont Marks or any other intellectual property or proprietary notices. Content owned by third parties may also appear on the Site, and you should respect those property rights as well. All rights not expressly granted herein are reserved to Developer, JMA Properties, Inc., JMA Ventures, LLC or other members of the JMA Ventures family (together, “JMA”).  No license to or right in any of the Content is granted to you. Any unauthorized use of the Content or any other information acquired through the Site may violate copyright laws, trademark laws, privacy laws and/or communications regulations and statutes, and any other applicable law.

Content on the Site is for general information and communication purposes only and is meant to provide information about Fairmont Heritage Place to the public.

Developer reserves the right, without an obligation to do so, to deny you access to the Site, remove any Content you may have posted on the Site, and/or seek any remedies available at law or equity.

The Site is not intended for or marketed to children, but is intended for adults 18 years of age or older. By using or accessing the Site, you represent that you are 18 years of age or older.

WARNING: THE CALIFORNIA DEPARTMENT OF REAL ESTATE HAS NOT QUALIFIED, INSPECTED, OR EXAMINED THIS OFFERING, INCLUDING, BUT NOT LIMITED TO, THE CONDITION OF TITLE, THE STATUS OF BLANKET LIENS ON THE PROJECT (IF ANY), ARRANGEMENTS TO ASSURE PROJECT COMPLETION, ESCROW PRACTICES, CONTROL OVER PROJECT MANAGEMENT, RACIALLY DISCRIMINATORY PRACTICES (IF ANY), TERMS, CONDITIONS, AND PRICE OF THE OFFER, CONTROL OVER ANNUAL ASSESSMENTS (IF ANY), OR THE AVAILABILITY OF WATER, SERVICES, UTILITIES, OR IMPROVEMENTS. IT MAY BE ADVISABLE FOR YOU TO CONSULT A QUALIFIED ATTORNEY OR OTHER KNOWLEDGEABLE PROFESSIONAL WHO IS FAMILIAR WITH REAL ESTATE AND DEVELOPMENT LAW IN THE STATE OF CALIFORNIA.

USER FEEDBACK:

With respect to all communications you make to the Developer or JMA regarding Fairmont Heritage Place information, including but not limited to feedback, questions, comments or suggestions: (a) you shall have no right of confidentiality in your communications; (b) Developer and JMA shall be free to reproduce, use, disclose and distribute your communications to others without limitation; and (c) Developer and JMA shall be free to use any ideas or concepts contained in your communications for any purpose whatsoever.

NO WARRANTY:

Your use of and access to the Site is exclusively at your own risk.

THE INFORMATION CONTAINED IN THE SITE IS PROVIDED TO YOU “AS IS.”  THE INFORMATION AND OTHER MATERIAL PUBLISHED ON THE SITE MAY CONTAIN INACCURACIES OR TYPOGRAPHICAL ERRORS.  DEVELOPER AND JMA MAKE NO GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, AS TO THE ACCURACY, QUALITY, COMPLETENESS, MERCHANTABILITY, EFFECTIVENESS, PERFORMANCE, RELIABILITY, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR TITLE OR NON-INFRINGEMENT OF THE INFORMATION OR THAT THE INFORMATION OR SITE SERVER WILL BE UNINTERRUPTED OR ERROR-FREE. DEVELOPER AND JMA, ON BEHALF OF THEMSELVES, ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE SITE, CONTENT OR OTHER INFORMATION CONTAINED THEREIN OR ACQUIRED THEREFROM.

Any and all incentives subject to availability, blackout dates, conditions, and other restrictions, taxes and fees. Contact JMA Properties, Inc. for program details and a copy of the Purchase and Sale Agreement with incentive program addendum containing applicable terms and conditions. Developer and/or JMA reserve(s) the right to cancel, suspend and/or modify any promotion in its sole discretion. Any promotional incentive program may not be combined with any other promotion, incentive, or exchange program offered by Developer or JMA except in Developer’s or JMA’s sole discretion, as applicable.

All plans and information are subject to governmental approvals. Unobstructed views are not guaranteed.

Any and all artist renderings, photographs, floor plans, maps, models, and depictions, including but not limited to all displays of fixtures, finishes, furniture and information concerning the interior of a Unit or Units (collectively, “Depictions”), are provided for illustrative and informational purposes only, are only proposed, are not to scale and should not be relied upon as a basis for purchasing any property interest since all elements are subject to change, refinement, replacement, modification or elimination without notice by Developer. Prices and availability are subject to change by Developer at any time without notice.  Content references to or Depictions of square footage is approximate only and should not be relied upon as a basis for purchasing an Interest. Fixtures, finishes and number of rooms and baths may vary based upon the floor plan selected. All such details should be verified in writing before purchasing.

Any and all Content or other information regarding proposed services, amenities, benefits and discounts are subject to change, modification, replacement, refinement or elimination by the Developer without notice.  Certain amenities, if offered, will be subject to modification, replacement, refinement or elimination by property management and further will be subject to the declarations and rules and regulations adopted by Cocoa Residential Owners’ Association, Inc. (the “Association”).

Nothing in these materials obligates or should be construed as an obligation of Fairmont to manage or to continue to manage the Project for any length of time and Developer, JMA and Fairmont are not assuring, guaranteeing or otherwise promising that the project shall be owned or operated as a Fairmont resort on a permanent basis.

The unauthorized use or reproduction of the Content, including any Depictions, is strictly prohibited without express written consent of Developer.

Neither the Content, including any Depictions, nor any other information and materials described in or made available through the Site, nor any communication made or given in connection with any of the foregoing, may be deemed to constitute any form of warranty or may otherwise be relied upon by any person or entity for any reason whatsoever.

PRIVACY POLICY:

Developer and JMA take your privacy seriously. Your use of the Site constitutes the acceptance of the Privacy Policy (available at: http://fairmontatghirardelli.com/privacy-policy​), which is incorporated by reference into these Terms of Use. Please read the Privacy Policy, which explains how we handle personal data that you send to or through the Site, if any.  Note that any third party Web sites linked to this Site have their own privacy policies, which may or may not differ from our Privacy Policy. You are responsible for reviewing the privacy policies of these third party sites to determine if such privacy policies are acceptable to you.

DISCLAIMER OF LIABILITY:

Developer, together with its affiliates, contractors, agents, employees, licensees, subsidiaries, parents, partners and/or assigns, including JMA (collectively, the “Developer Parties”) are in no way responsible or liable for any damages whether they be direct, indirect, punitive, special, consequential, contribution or indemnity of any kind whatsoever, however caused, arising out of the use or non-availability of the Site, even if Developer or any Developer Parties is advised of the possibility of such damages.  Additionally, access to other internet sites linked to the Site are at the user’s own risk and Developer and any Developer Parties are not responsible for the accuracy or reliability of any information, opinion, advise or statements made on the Sites.  DEVELOPER’S AND ANY DEVELOPER PARTIES’ SOLE AND MAXIMUM LIABILITY HEREUNDER SHALL NEVER EXCEED $500.00.

INDEMNIFICATION:

You hereby agree to indemnify, defend and hold harmless Developer and Developer Parties, and their respective partners, members, shareholders, officers, directors, employees, consultants, attorneys and agents, from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys fees) they incur arising as a result of your use of the Site, your violation of this Terms of Use, or your infringement of any intellectual property or other right of Developer, Developer Parties, Fairmont or any person or entity.

OFF-SITE AND THIRD PARTY AMENITIES:

Residents may from time to time be offered access to and use of off-site amenities by the operators of such amenities. Amenities located outside the Fairmont Heritage Place community are not part of the Project community and they are neither funded nor operated by the Association. Ownership of an Interest in the Fairmont Heritage Place community confers on the owner no special right or priority in the use of any off-site amenities. Neither the seller nor the Association has the right or power to grant any resident any special right or priority in the use of any off-site amenity, and Developer makes no promise that a buyer of an Interest will have any such special right or priority. The operator of the off-site amenity has the sole right to set or change the terms and conditions by which residents may use the off-site amenity (including termination), at any time and from time to time, all without prior notice to the resident or to the Association. Fees for certain services may apply.

Certain services may from time to time be offered to owners of Interests within Fairmont Heritage Place by third-party providers who are unrelated to the Fairmont Heritage Place. No part of the costs of such services is paid by Developer, JMA or Association dues, and the Association is not a party to any contract to provide such services to Association members, unless otherwise specifically disclosed in writing by the Association to such member(s). Ownership of an Interest does not confer any right to the owner to receive such services. Third-party services, if provided at all, must be contracted for by the Interest owner and the third party provider on terms and conditions agreed upon by the Interest owner and the provider of such services. The terms and conditions (including without limitation, pricing and availability) by which third-party services may be offered to Fairmont Heritage Place Interest owners may change at any time and from time to time, and such services may be discontinued entirely at any time, all without prior notice to the Interest owner or to the Association. Fees for certain services may apply.

GOVERNING LAW; DISPUTE RESOLUTION:

These terms and conditions shall be governed by the laws of the State of California without application of its conflicts of laws principles.  International disputes shall apply the law of the United States of America. Except for equitable relief, any and all disputes arising hereunder shall be submitted to binding arbitration in the County of San Francisco, California, in accordance with the Commercial Rules of the American Arbitration Association and shall be arbitrated on an individual basis, and not consolidated with any claim of any other party. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Arbitration shall not commence until the party requesting it has deposited One Thousand U.S. Dollars ($1,000.00) with the arbitrators as a retainer for the arbitrators’ fees and costs. The party requesting arbitration shall advance such sums as are required from time to time by the arbitrators to pay the arbitrators’ fees and costs, until the prevailing party is determined or the parties have agreed in writing to an alternate allocation of fees and costs. In any action seeking equitable relief in connection with the Site and this Terms of Use, you hereby consent to the exclusive jurisdiction of the state and federal courts located in the City and County of San Francisco, California.

SITE MONITORING:

Developer reserves the right, without any obligation, to monitor your use of Site, without notice, which monitoring may be effectuated through a contracted party. You hereby waive any expectation of privacy in such information and activity. Developer reserves the right to prohibit conduct, communication, or content which it deems in its discretion may be harmful to Developer, Developer Parties, or to users, or that may violate the law.

NO CONTRACT:

Except for your agreement to abide by this Terms of Use and your agreement to the Privacy Policy, use of the Site does not create any contract or agreement between you and Developer, any Developer Parties or Fairmont, nor any obligation of Developer, any Developer Parties or Fairmont to you. You agree not to act in reliance upon the information contained herein and you waive any claim, demand, cause of action or damages incurred as a result of reliance on such information.

ENTIRE AGREEMENT; GENERAL PROVISIONS:

This Terms of Use constitute the entire agreement between Developer and you pertaining to use of the Site and any Content and supersedes any and all prior written or oral communications and/or agreements previously existing between you and Developer. Developer reserves the right to make changes to these terms and conditions at any time, without notice, by posting such changes to the Site. Your continued use of the Site constitutes your agreement to all changes made by Developer to this Terms of Use.  If Developer or JMA, in its sole discretion, determines that a violation of this Terms of Use has occurred, Developer or JMA may pursue any of their respective legal remedies. However, the failure of Developer or JMA to exercise or enforce any right or provision of this Terms of Use shall not constitute a waiver of such right or provision.  Any waiver of any provision of this Terms of Use will be effective only if in writing and signed by Developer or Developer’s parent.  In the event that any provision of this Terms of Use is determined to be unenforceable or invalid, such provision shall nonetheless be enforced to the fullest extent permitted by applicable law, and such determination shall not affect the validity and enforceability of any other remaining provisions.

This Terms of Use was last updated on: May 13, 2013.