Terms of Service

THESE TERMS OF SERVICE (“Agreement”) is a legal agreement between Market Stadium, Inc., a Delaware corporation (“Market Stadium,” “we,” “us” or “our”) and the user who has registered to use our Service (“Licensee,” “you” or “your”) (each, a “Party.” and together, the “Parties”) for the use of Market Stadium platform and service offering as defined below (“Service”).  

BY ACCESSING OR USING OUR SERVICE, YOU ARE ACCEPTING THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE AGREEMENT, PLEASE DO NOT USE THE SERVICE AND EXIT IMMEDIATELY. WE RESERVE THE RIGHT TO MODIFY OR AMEND THIS AGREEMENT FROM TIME TO TIME WITHOUT NOTICE. YOUR CONTINUED USE OF OUR SERVICE FOLLOWING THE POSTING OF CHANGES TO THIS AGREEMENT WILL MEAN YOU ACCEPT THOSE CHANGES. UNLESS WE PROVIDE YOU WITH SPECIFIC NOTICE, NO CHANGES TO THIS AGREEMENT WILL APPLY RETROACTIVELY. IF YOU ARE ACCESSING AND USING THE SERVICE ON BEHALF OF A COMPANY (SUCH AS YOUR EMPLOYER) OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY TO THIS AGREEMENT. IN THAT CASE, "YOU" AND "YOUR" WILL REFER TO THAT COMPANY OR OTHER LEGAL ENTITY.

ARBITRATION NOTICE:  THIS AGREEMENT CONTAINS A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT  AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH MARKET STADIUM.   

 1. ACCESS AND SERVICE

1.1 Description of the Service

The “Service” means the Market Stadium platform that provides real estate analytics to potential investors in real estate, including any customizations of the Service (“Customizations”) that are provided to Licensee as specified in an Order.  The “Results” means the data analytics and reports generated by the Market Stadium platform based on geographical parameters established by the Licensee.

 

1.2 No Investment Advice

The Service is not investment advice and does not make any recommendations or guarantees about the value or performance of any real estate investments.  Real estate investment is inherently risky and any real estate investment can decrease and increase significantly in value.  Market Stadium makes no guarantee regarding the Results or any investment that you make based on the Results.  In addition, we make no representation or warranties regarding the quality or condition of any particular real estate; you must conduct your own due diligence and inspection of any real estate before making an investment.

1.3 Access to Service

Subject to Licensee’s compliance with this Agreement, Licensee and its Authorized Users shall have the right to non-exclusive, non-transferable access to the Service for the Subscription Term as set forth in the Order as defined in Section 6.  “Authorized Users” means employees or contractors designated by Licensee to access the Service.  Licensee is responsible for all acts or omissions of its Authorized Users in using the Service. 

 

1.4 Registration

You will need to register and create an account with Market Stadium to access the Service.  You will need to create a username, password and provide certain information about yourself as prompted by the registration form, including your name and a valid email address.  You agree to provide full, complete, and accurate information when registering or creating an account, and to update that information promptly if it should change.  We reserve the right to suspend or terminate your account if any information provided proves to be inaccurate, false, or otherwise in violation of this Agreement.  You may not create more than one account without prior written approval from us.  You will not transfer or provide access to your account to any other party without our prior written consent.  You agree that your username and password is Market Stadium’s Confidential Information subject to Section 8.2 and not to disclose or transfer your username or password to any third party.  You are responsible for any use of your account, whether authorized or not.  You agree to immediately notify Market Stadium if there is any unauthorized use of your account. 

1.5 License to Licensee Content

Licensee hereby grants Market Stadium a non-exclusive, royalty-free, fully paid-up, sublicensable (through one or more tiers of sublicensees), worldwide and transferable license to use, reproduce, create derivative works of, distribute, perform, and display Licensee Content for the purpose of (i) providing the Service, and (ii) developing, maintaining, supporting or improving the Service.  Licensee acknowledges and agrees that Market Stadium may aggregate Licensee Content with other data and also collect technical information and data about Licensee’s use of the Service.  “Licensee Content” means any data, links, information, media, content, or materials provided, disclosed, posted, or delivered by Licensee via the Service.  Licensee shall not provide, disclose, or deliver any Licensee Content to Market Stadium that Licensee does not own or otherwise have a valid authorization or license to do so. 

1.6 Intellectual Property and Restrictions

(a)    Provided Licensee is in compliance with this Agreement, including payment of Subscription Fees, during the Subscription Period specified in the Order, Licensee may access and use the Service only for Licensee’s internal business purposes and in conformity with the Documentation.  Licensee shall not, and shall not permit any Licensee employees or contractors to, share any account or access credentials for the Service with third parties.  Licensee shall establish appropriate security measures, consistent with industry standards, to protect the Service from unauthorized use by Licensee or its Authorized Users or through Licensee Systems.  Licensee shall notify Market Stadium immediately of any actual or alleged unauthorized use of the Service.  “Documentation” means the documentation, including any specifications, feature lists, or other similar characteristics, provided to Licensee that describes the functionality of the Service. 

(b)    Licensee shall not (and not allow, permit, authorize, or assist any third party to):  (i) modify, adapt, translate, create derivative works of, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of, any part of the Service; (ii) use or integrate the Service, or any component thereof, with any software, hardware, or system other than the Licensee Systems (as defined below) without Market Stadium’s express prior written agreement; (iii) sell, resell, license, sublicense, distribute, rent or lease any part of the Service or include any part of the Service in a service bureau or outsourcing offering, or encumber the Service with any lien or grant a security interest in the Service; (iv) publish or otherwise disclose to any third party any results of any benchmark or other performance tests of the Service; (v) remove, alter, or obscure any proprietary rights notices contained in or affixed to the Service; (vi) copy, frame, or mirror any part of the Service; (vii) access the Service for the purposes of monitoring its availability, performance, or functionality; (viii) access, or use any materials, content, technology, information, or data available via or forming a part of the Service in order to build a competitive product or service, or copy any features, functions, or graphics of the Service; (ix) attempt to disrupt, degrade, impair, or violate the integrity or security of the Service, including, without limitation, by executing any form of network monitoring; (x) use the Service to store or transmit any viruses, software routines, or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions; or (xi) take any action that imposes, or may impose, at Market Stadium’s sole determination, an unreasonable or disproportionally large load on Market Stadium’s infrastructure.

(c)    Licensee Systems.  Licensee is solely responsible for the operation and maintenance of the Licensee Systems and for having and paying for all equipment and Internet access necessary to access and use the Service.  Market Stadium disclaims all warranties, express or implied, and shall have no liabilities to Licensee, arising from or related to the operation or maintenance of the Licensee Systems or any incompatibilities, faults, defects, or damages attributable thereto.  For the purposes of this Agreement, “Licensee Systems” means any server systems, mobile devices, personal computers or other equipment owned, operated, or managed by Licensee on which the Service is accessed.

1.7 Feedback.  Licensee may have the opportunity to present to Market Stadium recommendations or feedback for new features, functionality, or other improvements to the Service (“Feedback”), which Market Stadium will consider, at its sole discretion, implementing in future updates to the Service.  The Parties agree that all Feedback is and shall be given voluntarily.  Feedback, even if designated as confidential by Licensee, shall not, absent a separate written agreement, create any confidentiality obligation for Market Stadium.  Licensee will not provide Market Stadium with any Feedback that Licensee is not authorized or permitted to provide to Market Stadium.  Market Stadium shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.

1.8 Changes to Service.  Licensee understands and agrees that Market Stadium may change or discontinue the Service or change or remove functionality or features of the Service at any time in Market Stadium’s sole discretion.  Market Stadium will use commercially reasonable efforts to notify Licensee of any material change to or discontinuation of the Service.

1.9 Ownership.  Except for the limited non-exclusive rights expressly granted in this Agreement, Market Stadium retains all right, title, and interest, including all intellectual property rights worldwide, in and to the Service (including, but not limited to any Customizations) and the Documentation and the Results and any Resultant Data (as defined in Section 1.10 below)(collectively, “Market Stadium IP”).  No implied license or right is granted by Market Stadium by estoppel, reliance, or otherwise in the Market Stadium IP.  Except for the rights expressly granted in this Agreement, Licensee retains all right, title and interest, including all intellectual property rights, in the Licensee Content.

1.10 Resultant Data.  Notwithstanding anything to the contrary in this Agreement, Market Stadium shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies (including, without limitation, information concerning Licensee Content and data derived therefrom) (collectively, “Resultant Data”), and Market Stadium will be free (during and after the term of this Agreement) to (i) use such Resultant Data to improve and enhance the Service and for other development, diagnostic, and corrective purposes in connection with the Service and other Market Stadium offerings; and (ii) disclose such Resultant Data solely in aggregate or other de-identified form, provided that we will not disclose Licensee or any specific Confidential Information of Licensee in connection with our use of such Resultant Data.

1.11 Privacy.  You agree that any personal information you provide in connection with the Service will be used by us to provide the Service and as otherwise specified in our Privacy Policy, which is incorporated into and made a part of this Agreement.

 2. REPRESENTATIONS AND WARRANTIES; DISCLAIMER

2.1 Organization; Authority

Each Party represents and warrants to the other Party that such Party is a corporate entity duly organized, validly existing, and in good standing under the laws of the state or country first indicated above as such Party’s state or country of incorporation, and such Party has all necessary corporate power and authority to execute and deliver this Agreement, to perform its obligations under this Agreement, and to consummate the transactions contemplated hereby.

2.2 Licensee Warranties

Licensee hereby represents and warrants to Market Stadium that:  (i) Market Stadium’s use, reproduction, modification, distribution, performance, and display of the Licensee Content will not infringe, violate, or misappropriate any intellectual property rights of any third party; (ii) Licensee exclusively owns or has a valid and written license agreement to all Licensee Content provided to Market Stadium via the Service or otherwise and has all rights necessary to grant to Market Stadium the rights and licenses contained in this Agreement; (iii) Licensee’s providing, disclosing, and delivering of Licensee Content will not violate any applicable laws, regulations, contractual commitments or privacy commitments; and (iv) the Licensee Content does not include any viruses, trap doors, time bombs, Trojan horses, or other malicious code.

2.3 Disclaimer

THE SERVICE IS PROVIDED BY MARKET STADIUM “AS IS,” AND NEITHER MARKET STADIUM NOR ITS LICENSORS MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, BY STATUTE, USAGE, TRADE CUSTOM, OR OTHERWISE, AND MARKET STADIUM HEREBY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, OR CONDITIONS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR ANY INTENDED OR PARTICULAR PURPOSE.  MARKET STADIUM DOES NOT GUARANTEE OR WARRANT THAT THE SERVICE WILL BE FREE OF DEFECTS, RUN ERROR-FREE OR UNINTERRUPTED, MEET LICENSEE’S REQUIREMENTS, OR BE SECURE.

SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES AND/OR LIABILITIES, SO CERTAIN OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

3. INDEMNIFICATION

3.1 Market Stadium Indemnity

Market Stadium, at its expense, shall defend, or at Market Stadium’s option, settle, any third-party claim, demand, suit, action, or proceeding made or brought against Licensee, its affiliates, and its and their directors, employees, agents, and representatives (the “Licensee Indemnified Parties”) alleging: (i) any costs, damages, liabilities, losses, or expenses arising from a claim that the Service infringes the US copyright, trademark, or trade secret of any third party (each a “Claim Against  Licensee”), and shall indemnify and hold harmless the Licensee Indemnified Parties from and against any and all costs, damages, liabilities, losses, judgments, and expenses (including reasonable attorneys’ fees) incurred by or awarded against any Licensee Indemnified Party arising out of or in connection with a Claim Against Licensee.  The applicable Licensee Indemnified Party shall notify Market Stadium promptly in writing of the Claim Against Licensee, provide reasonable assistance to Market Stadium in connection with the defense and settlement thereof, and permit Market Stadium to control the defense and settlement thereof.  Market Stadium shall not settle any Claim Against Licensee without Licensee’s prior written consent, not to be unreasonably withheld.  A Licensee Indemnified Party may, at its expense, participate in any Claim Against Licensee with counsel of its choice.

3.2 Licensee Indemnity

Licensee, at its expense, shall defend, or at Licensee’s option, settle, any third-party claim, demand, suit, action, or proceeding made or brought against Market Stadium, its affiliates, and its and their directors, employees, agents, and representatives (the “Market Stadium Indemnified Parties”) alleging: (i) any costs, damages, liabilities, losses, or expenses arising out of any investment made by Licensee based on the Service; (ii) facts, that if true, would constitute a breach of Licensee’s representations, warranties, and covenants under this Agreement; and (iii) Market Stadium’s using, reproducing, modifying, distributing, performing, or displaying of the Licensee Content infringes, violates, or misappropriates any intellectual property, privacy or other right, or any law, regulation, or order relating to privacy of personal data (each a “Claim Against Market Stadium”), and shall indemnify and hold harmless the Market Stadium Indemnified Parties from and against any and all costs, damages, liabilities, losses, judgments, and expenses (including reasonable attorneys’ fees) incurred by or awarded against any Market Stadium Indemnified Party arising out of or in connection with a Claim Against Market Stadium.  The applicable Market Stadium Indemnified Party shall notify Licensee promptly in writing of the Claim Against Market Stadium, provide reasonable assistance to Licensee in connection with the defense and settlement thereof, and permit Licensee to control the defense and settlement thereof.  Licensee shall not settle any Claim Against Market Stadium without Market Stadium’s prior written consent, not to be unreasonably withheld.  Any Market Stadium Indemnified Party may, at its expense, participate in any Claim Against Market Stadium with counsel of its choice.

4. LIMITATION OF LIABILITY

4.1  IN NO EVENT WILL MARKET STADIUM BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, SECURITY OR DATA BREACH, INVESTMENT, LOSS OF REVENUE OR PROFIT OR LOSS OF DATA, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT MARKET STADIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  MARKET STADIUM’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED $100.  THE DISCLAIMERS AND LIMITATIONS IN SECTION 4 WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

5. TERM AND TERMINATION

5.1 Subscription Period

The term of this Agreement shall commence on the effective date of the Order and continue until the expiration of the Subscription Period as specified in the Order, whichever is later, hereunder or as earlier terminated in connection with this Section 5.

5.2 Termination for Breach

Market Stadium may terminate this Agreement upon written notice to the Licensee in the event that Licensee materially breaches this Agreement and fails to cure such material breach within 30 days after receipt of written notice thereof.

5.3 Termination Without Cause

Either Party may terminate this Agreement without cause by providing the other Party with 30 days prior written notice, provided that if Licensee terminates, Licensee shall still be responsible for paying and not entitled to any refund of Subscription Fees owed through the end of the Subscription Term.

5.4 Suspension and Termination

Notwithstanding anything to the contrary in this Agreement, if Licensee violates the restrictions set forth in Section 1.6, Market Stadium may immediately, upon written notice to Licensee, suspend or terminate Licensee’s access to the Service.

5.5 Effect of Termination; Survival

Expiration or termination of this Agreement will not relieve Licensee of its obligations to pay any amounts accrued or otherwise owed under this Agreement.  Upon expiration or termination of this Agreement, all licenses or rights granted to Licensee hereunder shall terminate and Licensee shall not, and shall not attempt to, access or use the Service.  The provisions of Sections 1.2, 1.5, 1.6(b) and (c),  1.7, 1.9-.11, and 2–8, and claim by Market Stadium for amounts due shall survive any expiration or termination of this Agreement or Licensee’s access to the Service.

6.  ORDER AND PAYMENT

6.1 Order

Licensee may order the Service from Market Stadium by completing an order form (“Order”) provided by Market Stadium or otherwise made available on the website or portal through which Licensee may access the Service.  The Order may specify the name of the Licensee, the scope of the Service and any Customizations to be provided, the term of the access to the Service (“Subscription  Term”), the number of Authorized Users, the number of Results to be provided and the fees for the Service (“Subscription Fees”).   Market Stadium is not obligated to provide Customizations that are not technically feasible or that would require Market Stadium to exceed the number of hours specified for such Customizations in the Order.

6.2 Fees

Licensee shall be responsible for paying all fees and charges including Subscription Fees, plus any applicable sales, use, VAT or other tax (but excluding tax on Market Stadium’s income) for the Service using an authorized payment method such as a credit card.  Unless otherwise specified in an Order, all fees, including Subscription Fees, are due prior to use of the Service, provided that if Market Stadium provides a subscription plan, the applicable Subscription Fee will be due prior to the start of applicable subscription period.  Any failure to pay fees and charges, including Subscription Fees, when due shall be grounds for suspension or termination of Licensee’s access to the Service.

7. DISPUTE RESOLUTION

7.1 Arbitration

The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through good-faith negotiations, which shall be a precondition to either party initiating a lawsuit or arbitration.  Except for disputes relating to Market Stadium’s or its licensor’s intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents), all claims arising out of or relating to this Agreement and your use of the Service shall be finally settled by binding arbitration administered by the American Arbitration Association in accordance with the provisions of its then current Commercial Arbitration Rules.  The arbitration shall take place in Los Angeles County, California.  The arbitrator, and not any court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable.  The arbitrator shall be empowered to grant whatever relief would be available in a court; provided, however, that the arbitrator will not have authority to award damages, remedies, or awards that conflict with this Agreement.  The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.  You agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if Market Stadium is a party to the proceeding.  This dispute resolution provision will be governed by the Federal Arbitration Act.

8. GENERAL PROVISIONS

8.1 Force Majeure

Notwithstanding anything else in this Agreement, no default, delay, or failure to perform on the part of either Party will be considered a breach of this Agreement if such default, delay, or failure to perform is shown to be due to causes beyond reasonable control of the Party charged with a default, including, but not limited to, causes such as strikes, lockouts or other labor disputes, riots, civil disturbances, actions or inactions of governmental authorities or suppliers, epidemics, war, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy, nuclear disasters, or default of a common carrier.

8.2 Confidentiality

Licensee agrees that any information provided to it by Market Stadium regarding the Services, Results and Subscription Fees is confidential and proprietary information of Market Stadium (“Confidential Information”) and shall not only be used for Licensee’s internal business purposes and shall be held in strictest confidence and shall not be disclosed to any third party without the prior written consent of Market Stadium.  This obligation shall not apply to any information that is (a) known to the public without any breach of Licensee’s confidentiality obligation; (b) is received from a third party without any breach of any confidentiality obligation to Market Stadium; or (c) is independently developed without access or reference to Market Stadium’s Confidential Information.

8.3 Governing Law and Jurisdiction

This Agreement will be governed by and construed and enforced in accordance with the laws of the State of California, without reference to conflict of laws principles.  Each Party hereby irrevocably submits to the jurisdiction of the state and federal courts in Los Angeles County, State of California with regard to any dispute arising out of or relating to this Agreement that is not subject to arbitration under Section 7.1.  The Parties hereby disclaim and exclude the application hereto of the United Nations Convention on Contracts for the International Sale of Goods.

8.4 Injunctive Relief

Licensee acknowledges and agrees that any breach of its obligations with respect to Confidential Information and intellectual property rights of Market Stadium may cause substantial harm to Market Stadium, which could not be remedied by payment of damages alone.  Accordingly, Licensee hereby agrees that Market Stadium will be entitled to seek preliminary and permanent injunctive relief in any jurisdiction where damage may occur without a requirement to post a bond, in addition to all other remedies available to it for any such breach.

8.5 Independent Contractors

The relationship of the Parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to (i) give either Party the power to direct and control the day-to-day activities of the other; (ii) constitute the Parties as partners, joint venturers, co-owners, or otherwise as participants in a joint or common undertaking; or (iii) allow either Party to create or assume any obligation on behalf of the other Party for any purpose whatsoever.

8.6 Binding Effect

This Agreement will be binding upon and inure to the benefit of the Parties hereto, their successors, and permitted assigns.

8.7 Amendments

No modification of, or amendment to, this Agreement will be effective unless in writing signed by an authorized representative of both Parties.

8.8 Partial Invalidity

If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions will, nevertheless, remain in full force and effect, and such provision will be reformed in a manner to effectuate the original intent of the Parties as closely as possible and remain enforceable.  If such reformation is not possible in a manner that is enforceable, then such term will be severed from the remaining terms, and the remaining terms will remain in effect​.

8.9 No Waiver

No waiver of any term or condition of this Agreement will be valid or binding on either Party unless the same will have been mutually assented to in writing by an officer of both Parties.  The failure of either Party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by the other Party of any of the provisions of this Agreement, will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either Party to enforce each and every such provision thereafter.

8.10 Construction

The titles and section headings used in this Agreement are for ease of reference only and shall not be used in the interpretation or construction of this Agreement.  No rule of construction resolving any ambiguity in favor of the non-drafting Party shall be applied hereto.  The word “including”, when used herein, is illustrative rather than exclusive and means “including, without limitation​."

8.11 Entire Agreement

This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter herein and supersedes all prior and contemporaneous communications, representations, discussions, and agreements between the Parties with respect to such subject matter​.

8.12 Assignment

Licensee shall not assign or delegate this Agreement or any of its licenses, rights, or duties under this Agreement (whether by merger, sale of assets, sale of equity, or otherwise) without the prior written consent of Market Stadium, and any purported assignment without such consent shall be void and of no force or effect.  Market Stadium may freely assign or delegate this Agreement or any of its licenses, rights, or duties hereunder in Market Stadium’s sole discretion​.

8.13 Notices

Any notice or other communication required or permitted to be delivered hereunder must be in writing and sent by reasonable means to the address of each Party set forth in the Order.  Such notice will be deemed to have been given when delivered, or, if delivery is not accomplished as a result of some action or inaction by the recipient, when tendered​​.