8/24/2017 8:51 AM Chris Daniel - District Clerk Harris County Envelope No. 19047189 By: Nelson Cuero Filed: 8/24/2017 8:51 AM CAUSE NO.- - - - § § § § V. § SOLVERA GROUP, INC. (d/b/a INSTANT§ COMPLAINT REMOVERS, INSTANT § COMPLAINTREMOVERS.COM, § DEFAMATIONREMOVAL.COM); AND § CHRIS DINOTA, INDIVIDUALLY. § § § Defendants. THE STATE OF TEXAS, Plaintiff, IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS - - - JUDICIAL DISTRICT PLAINTIFF'S ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: Plaintiff, STATE OF TEXAS, acting by and through the Attorney General of Texas, KEN PAXTON, complains of SOLVERA GROUP, INC. (d/b/a INSTANT COMPLAINT REMOVERS, INSTANTCOMPLAINTREMOVERS.COM, DEFAMATIONREMOV AL.COM); and CHRIS DIN OTA, INDIVIDUALLY; Defendants, and for cause of action would respectfully show as follows: DISCOVERY CONTROL PLAN 1. The discovery in this case is intended to be conducted under Level 2 pursuant to Tex. R. Civ. P. 190.3. 2. This case is not subject to the restrictions of expedited discovery under Tex. R. Civ. P. 169 because the relief sought by the State includes non-monetary injunctive relief, and the State's claims for monetary relief including penalties, consumer redress, and attorneys' fees and costs are in excess of $100,000.00 and could exceed $1,000,000.00. PUBLIC INTEREST 3. Because Plaintiff State of Texas has reason to believe that Defendants have engaged in, and will continue to engage in, the unlawful practices set forth including abusing the Texas court system in filing fake lawsuits in an effort to remove negative online information about companies, Plaintiff has reason to believe Defendants have caused and will cause adverse effects to legitimate business enterprises which lawfully conduct trade and commerce in this State and further, will cause damage to the State of Texas and to persons from whom moneys or properties are unlawfully acquired by Defendants. Furthermore, the unlawful practices set forth below adversely affect free speech, as potentially legitimate customer reviews are being removed from Internet search engine results without due process. Therefore, the Consumer Protection Division of the Office of the Attorney General of the State of Texas believes and is of the opinion that these proceedings are in the public interest. JURISDICTION 4. This action is brought by Attorney General KEN PAXTON, through his Consumer Protection Division, in the name of the State of Texas and in the public interest under the authority granted him by§ 17.47 of the Texas Deceptive Trade Practices-Consumer Protection Act, TEX. BUS. & COM. CODE ANN. § 17.41 et seq. (hereafter the "DTPA") upon the grounds that Defendants have engaged in false, deceptive and misleading acts and practices in the course of trade and commerce as defined in, and declared unlawful by,§§ 17.46(a) and (b) of the DTPA. In enforcement suits filed pursuant to §17.4 7 of the DTPA, the Attorney General is further authorized to seek civil penalties, redress for consumers, and injunctive relief. DEFENDANTS 5. Defendant SOLVERA GROUP, INC. ("Solvera") is a California corporation that does business nationwide and in Texas, as alleged specifically below, in its own name and under the The State of Texas v. Solvera Group, Inc., et al., Plaintiffs Original Petition Page 2 of IS names Instant Complaint Removers, Instantcomplaintremovers.com, and Defamationremoval.com, and this proceeding arises out of such business done in this state. Its principal place of business is 675 Ygnacio Valley Rd, Walnut Creek, CA 94596. Solvera does not maintain a regular place of business in this state and has not designated or maintained a registered agent for service of process in Texas. Therefore, it may be served with process by serving the Secretary of State pursuant to the Texas Civil Practices & Remedies Code § 17.044. Solvera can be served by certified mail, return receipt requested, directed to Solvera through the Texas Secretary of State as an agent for service of process at the following address: Citations Section, Room 214, 1019 Brazos, Austin, Texas 78701. 6. Defendant CHRIS DINOTA, ("Dinota") is President and CEO of Solvera and has done business in Texas as alleged below. On information and belief, Dinota has at all times relevant to this petition either directly engaged in the acts or practices described below, or has directed and controlled others in committing the acts or practices described helm~. Dinota can be served with process at Solvera or at his home, 2417 Ranchito Dr., Concord, CA 94520, or at any other place where he may be found. 7. Defendants Solvera and Dinota collectively shall be referred to throughout as "Solvera Defendants." VENUE 8. Venue of this suit lies in Harris County, Texas because under the DTPA § l 7.47(b), Defendants and their agents have done business in Harris County, Texas by advertising reputation management services to consumers throughout Texas, including in Harris County, and acting through its agents to file lawsuits in Harris County, Texas. TRADE AND COMMERCE The State of Texas v. Solvera Group, Inc., et al., Plaintiffs Original Petition Page 3 of 15 9. Solvera Defendants have, at all times described below, engaged in conduct which constitutes "trade" and "commerce" as those terms are defined by § 17.45(6) of the DTP A. ACTS OF AGENTS 10. Whenever in this Petition it is alleged that any Defendant did any act, it is meant that Defendant performed or participated in the act or Defendant's officers, agents, or employees performed or participated in the act on behalf of and under the authority of the Defendant. NOTICE BEFORE SUIT 11. The Consumer Protection Division informed Solvera Defendants in general of the alleged unlawful conduct described below at least seven days before filing suit. DTPA § l 7.47(a). SPECIFIC FACTUAL ALLEGATIONS Summary of Scl,eme 12. Solvera Defendants· perpetuated a scheme in the guise of"reputation management" through filing lawsuits that they knew to contain false information - including fictitious plaintiffs and defendants. In doing so, they deceived consumers nationwide, local Texas attorneys, Texas judges, including in Harris County, and search engines such as Google. As a result, the Solvera Defendants have deceived consumers by removing potentially legitimate internet postings through deceptive use of the legal process. Reputation Management Industry 13. As online reviews for goods and services become more widely relied upon by consumers, it has become increasingly important for small business owners to stay informed regarding their online reputations. Out of this necessity has grown an industry of ·reputation management companies who specialize in assisting small businesses and individuals with monitoring or influencing their online reputations. Some businesses may offer advice or assistance to control publicity, such as providing responses to negative consumer reviews, while others may offer tactics The State of Texas v. So/vera Group, Inc., et al., Plaintiffs Original Petition Page 4 of 15 to ensure negative online reviews or complaints are suppressed. Reputation management companies suppress reviews through methods such as search engine optimization (which helps push negative websites down in internet search results) or through other measures such as deindexing (removing a website from search results altogether). In general, to legitimately de-index a website, a search engine such as Google must be provided with a court "take-down" order to prove to that search engine that the site is truly illegitimate or defamatory. Solvera Defendants' Operation 14. Solvera advertised itself online as a reputation management company. It has advertised and sold services nationwide through its websites defamationremoval.com and instantcomplaintremovers.com. 15. Legitimate small businesses or individual consumers, in Texas and nationwide, first contact Solvera after finding negative information about them posted online. The basic process that then takes place is: • The consumer signs a contract with Solvera. • Solvera Defendants hire a California blogger to post an additional comment or review to whatever webpage the consumer has concerns about. • Solvera Defendants hire a local Houston-area attorney claiming to have identified the individual who posted the negative information, draft a defamation lawsuit, and send the attorney the draft pleadings. • The attorney files the defamation lawsuit, then later an agreed judgment, with the court. • The court signs the agreed final judgment which orders the negative website deindexed. The State of Texas v. Solvera Group, Inc., et al., Plaintiffs Original Petition Page 5 of 15 • Solvera Defendants take the judge's order to Internet search engines to get them to de-index the site. Solvera Defendants at each stage of the above outlined process employ a variety of false, deceptive, and misleading acts and practices through which they deceive and confuse customers, attorneys, Internet search providers, and Texas courts, as described in more detail below. 16. When the consumer first contacts Solvera, Solvera represents to the consumer that to suppress negative websites or reviews on the internet, the consumer has a few options. The consumer can pay a smaller amount (for instance, $5000) to use search engine optimization to move the negative website to the bottom of a search result, which Solvera Defendants do not recommend. In the alternative, the consumer can pay a larger amount (between $10,000 - $12,000) 1 for the website to be de-indexed, or removed from Internet search engine results, in a shorter timeframe. Finally, the consumer may instead be told that Solvera can actually remove a complaint through a "legal process," misrepresenting that, on information and belief, Solvera Defendants will do something other than use the de-indexing process described below (which does not remove the complaint). Once the consumer decides to purchase the de-indexing service, Solvera has the consumer sign a contract for services called a URL De-Index Agreement. 2 17. Solvera Defendants next contract with attorneys, including in Harris County, Texas, to file defamation lawsuits on behalf of their customers. At this point, both the consumer and the attorney are misled. Specifically, Solvera Defendants fail to obtain authorization from, or even notify, its customers before contracting with attorneys to file lawsuits as part of their services. Businesses are surprised to learn, after the fact, that a company with a very similar name to their legal name 1 This figure may even be Jarger in some circumstances, as Dinota has noted in an interview in 2014 that the cost for his services may be between $50,000 to $300,000. See http://money.cnn.com/2014/05/16/technology/onlinereputation-control/index.htm I . 2 See Exhibit A The State of Texas v. Solvera Group, Inc., et al., Plaintiffs Original Petition Page 6 of 15 has been named as the plaintiff in a lawsuit. 3 Second, the attorney has been told by Solvera Defendants that they have already identified and contacted the alleged defamation defendant, the individual who purportedly posted the negative information on the Internet, and the parties have already reached a settlement. Solvera Defendants have already drafted the lawsuit, and send it along with the URL De-Index Agreement to the attorney. Local attorneys are therepy misled, because Solvera Defendants misrepresent that their customer has in fact authorized a lawsuit, when in actuality it is a fictitious business entity. This entity has then granted power of attorney to the local lawyer. Solvera Defendants make this misrepresentation by sending those attorneys a different version of the URL De-Index Agreement than the one that was signed by the customer. This version of the De-Index Agreement includes provisions stating that the consumer has agreed to be represented by the local attorney by granting a power of attorney, provisions that are not present in the original De-Index Agreement. Moreover, these local attorneys are further misled because Solvera Defendants fail to actually identify and contact the original poster of the content the consumer had believed was defamatory. Instead, a California blogger has made an additional posting to the original purportedly defamatory content, and has agreed to be "defendant" in the defamation lawsuit. Identifying the person consumers believe originally posted negative information would be nearly impossible to accomplish from the often anonymous complaints posted on the internet. So, Solvera Defendants have a local California associate sign an affidavit, in which he/she falsely states that he/she is a resident of the Court's jurisdiction, including Harris County, and further falsely states that he/she engaged in all of the conduct alleged in the lawsuit, which extends to more than just the comment that they had additionally provided. 3 This is See Exhibit B The State of Texas v. Solvera Group, Inc., et al., Plaintiffs Original Petition Page 7 of 15 evidenced by the fact that invariably the affidavit is notarized in California despite the alleged defamation defendant's supposed local residence, in Harris County. 18. The attorney then files the lawsuit in state court, including Harris County District Court, resulting in Solvera Defendants' misleading the court that the fictitious plaintiff entity is the real business entity that has been defamed, and further that defendant is in fact the person that originally defamed the plaintiff. Solvera Defendants then send the attorney a waiver of service from the defendant named in the lawsuit, along with an agreed final judgment. 19. This agreed final judgment, a settlement made without the original parties' (the original alleged defamer and the originally allegedly defamed business) knowing participation, orders Internet search engines to de-index the review or posting in question. The attorney then signs and files the agreed final judgment with the court, and obtains the judge's final order, who has then unknowingly signed a court order premised on a complete falsehood. With this signed order from the court, Solvera Defendants are then able to contact search engines such as Google, to make them de-index the listed websites containing the allegedly defamatory review or posting. Thus, misrepresenting to search engines that the original parties have agreed the content was defamatory, when in fact the original poster of the speech has not been identified, only the paid commenter. Once de-indexed, the websites cannot be located through that search engine, though they do still exist on the Internet. Solvera Defendants have caused Harris County judges to enter multiple similar orders. Some of these postings have now been re-listed by Google and other search engines. 20. On information and belief, Solvera Defendants thus made misrepresentations to the consumer, who did not know a lawsuit :was being filed as part of the services they had paid for, to local Texas attorneys, who did not know the lawsuits were premised on a paid transaction between a fictitious plaintiff and a paid defendant, to the court that did not know the originally "defamed" The State of Texas v. So/vera Group, Inc., et al., Plaintiffs Original Petition Page 8 of15 consumer and original "defaming" speaker were unaware of the suit and had not made any true settlement, and to search engines such as Google who were unaware the court order was premised on such misrepresentations. Furthermore, it appears today that Solvera Defendants' use of these tactics was sometimes ineffective, as it may not extend to cover mobile-optimized websites or provide a permanent "removal" solution as represented to customers. 21. The instantcomplaintremovers.com website, while no longer operational, touted that it is the "#1 Rated Content Removal Solution" and can "Remove Complaints in as Little as 48 Hours." The website further stated that "You may have been told that it's impossible to remove content from search results ... but that's where the team at ICR disagrees .... we retain the most advanced in-house legal counsel. We work in conjunction with our specialized team of legal counsel and legal consultants ... " The website also indicated that the company has removed 4203 complaints and de-indexed 2647 URLs. The way their company differs from other reputation management firms, the site said, is that those suppress negative content while Instant Complaint Removers instead actually de-indexes or deletes specific links. 22. Defendant Chris Dinota is the President and CEO of Solvera. Dinota has directly contacted attorneys in Harris County to solicit their assistance in Solvera's scheme, has made direct misrepresentations to consumers and attorneys, and has signed contracts with attorneys in Harris County to further the scheme. FALSE, MISLEADING OR DECEPTIVE ACTS 23. Solvera Defendants, as alleged above and detailed below, have in the course of trade and commerce engaged in false, misleading and deceptive acts and practices declared unlawful in §§ 17.46(a) and (b) of the DTPA. Such acts include: The State of Texas v. So/vera Group, Inc., et al., Plaintiffs Original Petition Page 9 of 15 A. False, misleading, or deceptive acts or practices in the conduct of any trade or commerce, in violation ofDTPA §l 7.46(a); B. Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which the person does not, in violation ·of DTPA § 17.46(b)(5); C. Representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law, in violation of DTPA §17.46(b)(l2); D. Failing to disclose information concerning goods or services which was known at the time of the transaction with the intent to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed in violation of§ 17.46(b)(24 ). PRAYER FOR RELIEF 24. Plaintiff further prays that Solvera Defendants be cited according to law to appear and answer herein; that after due notice and hearing, a TEMPORARY INJUNCTION be issued; and that upon final hearing a PERMANENT INJUNCTION be issued, restraining and enjoining Solvera Defendants, Solvera Defendants' officers, agents, servants, employees and attorneys and any other person in active concert or participation with Solvera Defendants from engaging in the following acts or practices: A. Failing to non-suit any pending lawsuits in Texas relating to Solvera Defendants' reputation management services within fourteen (14) days of this order, unless Defendants receive express permission from this Court to continue such lawsuit; The State of Texas v. Solvera Group, Inc., et al., Plaintiff's Original Petition Page 10 of 15 B. Proposing any order, or causing any order to be entered other than an order of non-suit, in any pending lawsuits in Texas relating to Solvera Defendants' reputation management services and for which Solvera Defendants have not received express permission from the Court to continue such lawsuit; C. Making or causing others to make untrue statements or statements without substantiation in the course of trade or commerce, including but not limited to: o making or causing others to make any false or defamatory statement about a business; o making or causing others to re-post, copy, or summarize any complaint or defamatory statement that has been made by another person; o making or causing others to make any untrue comment on any complaint or defamatory statement that has been made by another person; or o making or causing others to make any comments or reviews regarding a business for which such person has not already been a customer. D. Filing, or causing to be filed, any lawsuits or pleadings in Texas as part of Solvera Defendants' reputation management services, unless Solvera Defendants have verifiable evidence of the identity of the proper defendant, such defendant resides in Texas or jurisdiction otherwise permits filing in Texas, and Solvera Defendants have the express informed consent of the customer to file a lawsuit in connection with their reputation management services; E. Causing a court in Texas to enter any order through the use of false or misleading representations to the court; The State o/Texas v. Solvera Group, Inc., et al., Plaintiff's Original Petition Page II oflS F. Providing any court order to an Internet search engine or website for the purpose of deindexing or otherwise removing or suppressing a web page if such order was obtained through the use of any misrepresentation or deception; G. For any lawsuits currently pending in Texas or previously filed in Texas, failing to notify all relevant parties, within three (3) days of this order, of the fact, if true, that any order was procured, in whole or in part, through any misrepresentation by Solvera Defendants, including but not limited the fact that: o Plaintiff in the lawsuit is a fictitious company; o Defendant in the lawsuit is not the person who created the original complaint at the URL referenced in the lawsuit but instead was a paid blogger who added a comment to the original complaint; o Defendant in the lawsuit does not reside in Texas; o Customers of Solvera were unaware Solvera would initiate a legal process involving a fictitious name similar to theirs resulting in a public lawsuit containing defamation allegations; or o Contracts provided to attorneys were different than contracts provided to customers of Solvera; For purposes of this paragraph, "all relevant parties" include but are not limited to: the court in which such lawsuit was brought, all parties to the lawsuit, all attorneys involved in the lawsuit, and any other interested persons, including any Internet search engines who has received any order of notice of the lawsuit, all relevant websites including any website on which the original complaint that is the subject of the lawsuit was posted, and any affected consumers; The State of Texas v. Solvera Group, Inc., et al., Plaintiffs Original Petition Page 12 of 15 H. Misrepresenting that goods or services have sponsorship, . approval, characteristics, ingredients, uses, benefits, or quantities which they do not have, including but not limited to: 1. misrepresenting that Solvera Defendants use "sophisticated technology" to de-index websites; or 11. misrepresenting that Solvera Defendants are able to "remove" or otherwise delete online complaints through any technical or legal means if untrue; I. Failing to disclose the fact, if true, that Solvera Defendants' services involve removal or deletion as a result of a monetary transaction with a third party; J. Misrepresenting that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law, including but not limited to by misrepresenting to consumers or attorneys the contents of any agreements, including URL De-Indexing Agreements; K. Misrepresenting the fact that Solvera Defendants have identified the person who made a complaint or statement on any website; L. Failing to disclose information concerning goods or services which was known at th~ time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed, including but not limited to by failing to disclose to consumers that Solvera will cause lawsuits to be filed related to their reputation management. 25. In addition, Plaintiff State of Texas respectfully prays that this Court will: The State o/Texas v. Solvera Group, Inc., et al., Plaintiffs Original Petition Page 13 of 15 A. Order Selvera Defendants to restore all money or other property taken from identifiable persons by means of unlawful acts or practices, or in the alternative award judgment for damages to compensate for such losses; B. Adjudge against Selvera Defendants civil penalties in favor of Plaintiff State of Texas in the amount of not more than $20,000 per violation of the DTP A; C. Order Defendants to pay Plaintiffs attorney fees and costs of court pursuant to the TEX. GOVT. CODE, § 402.006(c); D. Order Selvera Defendants to pay both pre-judgment and post j udgment interest on all awards of restitution, damages or civil penalties, as provided by law; and 26. Plaintiff further prays that this court grant all other relief to which Plaintiff State of Texas may show itself entitled. Respectfully submitted, KEN PAXTON Attorney General of Texas JEFFREY C. MAT EER First Assistant Attorney General BRANTLEY ST ARR Deputy First Assistant Attorney General JAMES E. DAVIS Deputy Attorney General for Civil Litigation PAUL SINGER Chief, Consumer Protection Division E~~ State Bar No. 24082700 The State of Texas v. Solvera Group, Inc., et al. , Plaintiffs Original Petition Page 14 of 15 Assistant Attorney General Office of the Attorney General Consumer Protection Division P.O. Box 12548 Austin, Texas 78711-2548 Telephone (512) 463-2185 Facsimile (512) 473-8301 Elizabeth. Chun(@oag. texas. gov RICK BERLIN State Bar No. 24055161 Assistant Attorney General Houston Regional Office 808 Travis, Suite 1520 Houston, Texas 77002 Telephone (713) 223-5886 Facsimile (713) 223-5821 rick. berl in@oag. texas. gov The State of Texas v. Solvera Group, Inc., et al., Plaintiffs Original Petition Page 15 of 15 EXHIBIT A DocuSign Envelope ID: 278660B5-8430-4867-B831-39739206552A $ SOLVERA ENTERPRISE REPUTATION URL DE-INDEX AGREEMENT This Agreement is entered into by and between Solvera Group, Inc. dba Instant Complaint Removers ("Selvera," "We," or "Us") and Tom Grisak ("Client'' or "'You'"). I. SERVICES. 1.1 Description of the Services. Selvera Group provides a URL de-indexing service (the "Services"). This involves the complete removal and de-indexing of the links specified as follows (the "Removed Links"). URL http://www.ripoffreport.com/r/tom-grisak-with-kel ler-wi 11 iams/al len-texas75013/tom-grisak-with-keller-williams-untrustworthy-unethical-deceptiveand-a-cheater-allen-1259027 Total: $10,800.00 The associated search keywords are: Tom Grisak; and any and all keywords related to the spec[fied link(s). Page 1 of6 DocuSign Envelope ID: 278660B5-8430-4867-B831-39739206552A 1.2 Time Frame and Work Details. 1.2.1 Total Fee: $ 10,800.00. Upon removal of the individual specified links and its associated fees noted above, payment will be due within 72 hours of removal of that individual link. A ten percent ( I0%) late payment fee will be assessed for all payments paid after 14 days of project completion date. 1.2.2 Services to be completed within 120 days from the execution of this Agreement. Extension may be granted upon mutual agreement of both parties. 1.2.3 Solvera Group shall attempt permanent URL de-indexing or entire removal of said link(s) from its host. If successful, specified links will no longer be searchable through Google.com (US) search functions using the associated search keywords noted above. 2. SET-UP FEES AND OTHER PAYMENTS FOR SERVICES. 2.1 Fees and Renewal. You agree to pay all fees specified herein. Except as otherwise specified in this Agreement, all payment obligations are non-cancelable and all fees paid are non-refundable except otherwise set out below in Section 2.2 Refund Policy. 2.2 Refund Policy. The Total Fees for services are fully refundable in the following circumstance: a) If the Removed Link(s) reappear within 48 months of payment, the fee will be refunded in full only for the individual link that reappears. b) If any of the links specified have not been de-indexed, that individual link will be refunded in full. 2.3 Reoccurring Incidents. In the event that an additional RipoftReport or complaint is filed against Tom Grisak, Solvera Group will make best efforts to reduce costs significantly in order to accommodate client in this event. Additionally, should the language or content of an additional post be identical in nature and language to the specified link(s) above, Solvera will at no cost have this additional links de-indexed. 3. Warranties and Disclaimer. 3.1 Disclaimers. Solvera is providing a de-indexing service. As long as the undesired link(s) continues to be de-indexed, the Company has earned, and continues to earn, its fees. THE SERVICES ARE PROVIDED "AS IS" AND WE SPECIFICALLY DISCLAIM, ON OUR OWN BEHALF AND ON BEHALF OF OUR THIRD-PARTY SUPPLIERS, ANY AND ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION WARRANTIES Of. QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE Page 2 of6 OocuSign Envelope ID: 278660B5-8430-4867-B831-39739206552A SERVICES WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICES. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU. 3.2 Internet Delays. The Services may be subject to limitations, delays, interruptions, and other problems inherent in the use of the Internet and electronic communications and which are outside of our control. We are not responsible for any delays, delivery failures or other damages resulting from such problems. 3.3 Compliance. The Services rendered shall comply with all applicable laws, regulations and guidelines, including all relevant Internet search engines' terms and policies. 4. INDEMNITY. You agree to indemnify, hold harmless and defend us, our officers, directors, employees, agents, and third-party suppliers or affiliates, at your expense, against any and all thirdparty claims, actions, proceedings, and suits brought against us or any of our officers, directors, employees, agents, third-party suppliers or affiliates, and pay all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by us or any of our officers, directors, employees, agents, third-party suppliers or affiliates, arising out of or relating to: (a) your breach of any term or condition of this Agreement; or (b) your violation of applicable laws, rules, or regulations in connection with the Services. In such a case, we will provide you with written or electronic notice of such claim, suit or action. You shall cooperate as fully as reasonably required in the defense of any claim. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you. 5. LIMITATION OF LIABILITY. 5.1 Types of Damages. NEITHER WE, NOR OUR THIRD PARTY SUPPLIERS, WILL BE LIABLE TO YOU OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST DATA OR LOSS OF GOODWILL), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE. 5.2 Amount of Damages. OUR MAXIMUM LIABILITY ARISING OUT OF OR IN ANYWAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE Page 3 of 6 DocuSign Envelope ID: 278660B5-8430-4867-B831-39739206552A GREATER OF (A) THE FEES YOU HAVE PAID TO US PURSUANT TO THE ORDER THAT IS THE SUBJECT OF THE CLAIM DURING THE TWELVE ( 12) MONTHS IMMEDIATELY PRECEDING THE CLAIM, OR (B) US $100.00. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT INCREASE OUR LIABILITY. IN NO EVENT SHALL OUR SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THE SERVICES. 5.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties. 6. TERM AND TERMINATION. 6.1 Term of Order and Renewals. The initial term of service shall begin on the date specified above and continue for the period specified therein (''Initial Term'"). Client may renew this Agreement as provided for herein for successive periods equal in duration to the Initial Term (each a "Renewal Term") by providing Solvera written notice. You shall be responsible for the full payment of the fees for the applicable term. Mid-term cancellation is not permitted. 6.2 Termination. Notwithstanding anything contained herein to the contrary, either party may terminate this Agreement at any time on written notice to the other if the other: (a) is in material or persistent breach of any of the terms of this Agreement and either that breach is incapable of remedy, or the other party fails to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach; or (b) is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally. 6.3 Effect of Termination. On termination for any reason, including but not limited to a breach of this Agreement: (a) all rights granted to you under this Agreement, shall cease; (b) we shall stop performing all Services; and (c) you shall immediately pay to us any fees due under this Agreement. 7. ARBITRATION, FORUM AND GOVERNING LAW. Any claim, dispute or controversy of whatever nature (''Claim'') arising out of or relating to this Agreement shall be resolved by final and binding arbitration before a single arbitrator ("Arbitrator") selected from and administered by the San Jose, California. office of JAMS in accordance with its then-existing Comprehensive Arbitration Rules & Procedures for matters where over $100,000 or injunctive relief is being claimed, and in accordance with its then-existing Streamlined Arbitration Rules & Procedures for matters Page 4 of 6 DocuSign Envelope ID: 278660B5-8430-4867-B831-39739206552A where less than $100,000 is being claimed. The arbitration hearing shall be held in San Jose, California. This Agreement shall be governed by and construed under the laws of the state of California, consistent with the Federal Arbitration Act, without reference to its conflict of law principles. The Arbitrator shall be authorized to award compensatory damages, but shall NOT be authorized to award non-economic damages, such as for emotional distress, or pain and suffering or punitive damages. Each party shall bear its own attorneys' fees, cost and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the Arbitrator and JAMS; however, the Arbitrator shall be authorized to award to the prevailing party reimbursement for its reasonable attorneys' fees and costs (including, for example, expert witness fees and travel expenses), and/or the fees and costs of the Arbitrator. Within fifteen (15) calendar days after the conclusion of the arbitration, the Arbitrators shall issue a written award, including the calculation of any damages awarded. Each party shall fully perform and satisfy the arbitration award within 15 days of the service of the award. Judgment on the award may be entered by any court of competent jurisdiction. 8. GENERAL PROVISIONS. 8.1 Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (a) personal delivery; (b) the second business day after mailing by certified mail; (c) the second business day after sending by confirmed facsimile; or (d) the first business day after sending by email (provided email shall not be sufficient for notices of termination or indemnification). All notices shall be sent to the addresses set forth herein, which may be updated from time to time upon written notice to the other party. Solvera address: 675 Ygnacio Valley Road Suite B213 Walnut Creek, CA 94596. Client address: _ _ _ __ 1002 Raintree circle, Allen, Tx 75013 8.2 Waiver and Severability. No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shal I be deemed to be a waiver of any other right or of any later breach. If any provision of this Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced. 8.3 Amendments and Assignment. Any amendment, waiver or variation of this Agreement shall not be binding on the parties unless set out in writing, expressed to amend this Agreement and signed by or on behalf of each of the parties. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, we may assign this Agreement (including any Order(s)), without your consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. If you sell or transfer your business, this Agreement Page 5 of6 DocuSign Envelope ID: 27866085-8430-4867-B831-39739206552A shall be binding on your buyer or transferee. You agree to inform such buyer of transferee of this Agreement and their obligations hereunder. 8.4 Relationship of the Parties. Our relationship with you is that of an independent contractor, and neither party is an agent or partner of the other. You do not have, and will not represent to any third party that you have, the authority to act in the name or on behalf of or otherwise to bind us in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability or the exercise of any right or power). We are not your lawyer and do not offer legal advice, nor does this Agreement or the Services create any attorney-client relationship or legal representation. 8.5 Entire Agreement. This Agreement, including all exhibits and addenda hereto, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum executed by both parties, the terms of such exhibit or addendum shall prevail. ("to~,.,,..., by. Authorized Signer: } : . . . : :..... G"""".,,....., Agent Signature:}:~,!!,~ Date: __6_/_24_/_2_0_16_ __ . N Tom Gri sak President Prmt ame: - - - - - - - - - - - Date: _6_;_2_1_1_20_1_6_ __ . N chri s Di nota CEO Prmt ame: _ _ _ _ _ _ _ _ _ __ Solvera Group, Inc. - Main Office 675 Ygnacio Valley Rd Suite 8213 Walnut Creek, CA 94596 Page 6 of 6 EXHIBIT 2016-46539 / Court: 011 CAUSE NO. _____________ 7/14/2016 7:26:53 AM Chris Daniel - District Clerk Harris County Envelope No. 11623029 By: Bonnie Lugo Filed: 7/14/2016 7:26:53 AM GRISAK PROPERTIES, § IN THE DISTRICT COURT OF Plaintiff § V. § HARRIS COUNTY, TEXAS ALEJANDRO BARORO, § Defendant § ______ JUDICIAL DISTRICT PLAINTIFF’S ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: GRISAK PROPERTIES (“Plaintiff”), complains of ALEJANDRO BARORO (“Defendant”), and for cause of action would respectfully show the court as follows: A. DISCOVERY CONTROL PLAN 1. Plaintiffs intend for discovery to be conducted under Discovery Level 2 in accordance with the Texas Rules of Civil Procedure; and affirmatively pleads that Plaintiffs seek monetary relief less than $100,000, pre-judgment interest and reasonable attorney’s fees. B. PARTIES 2. Plaintiff, GRISAK PROPERTIES, is a legal entity conducting business in Texas. 3. Defendant, ALEJANDRO BARORO, is an individual who resides in Harris County Texas. Citation of service is not requested at this time. C. JURISDICTION AND VENUE 4. Venue is proper in Harris County, Texas, because all or a substantial amount of the actions giving rise to this lawsuit occurred in Harris County, Texas and/or Defendant resides in Harris County, Texas. D. FACTS 5. Defendant, within the past year published false statements on the Internet concerning Plaintiff GRISAK PROPERTIES on the website: http://www.ripoffreport.com, among others. Original Petition for Defamation – Grisak Properties v Baroro 1 Page E. COUNT ONE – BUSINESS DISPARAGEMENT 6. The statements published by Defendant are false, disparaging, impugn Plaintiff’s business reputation, and injuriously affect Plaintiff in their trade and profession. These statements include, among others, that Plaintiff is: (a) “untrustworthy, unethical, deceptive, and cheater”; (b) “pompous, arrogant, and unethical”; (c) “made threats no one would show my listing”; (d) is also a cheater. The false and libelous statements are attached hereto as Exhibit A. F. COUNT 2 – DEFAMATION – LIBEL AND LIBEL PER SE 7. Plaintiff incorporates by reference paragraphs 1 through 6, as though fully set forth herein in support of this cause of action. Defendant, within the past year published false statements of fact on the Internet concerning Plaintiff on the website: http://www.ripoffreport.com, among others. G. INJUNCTIVE RELIEF 8. Plaintiff has suffered damages from Defendant’s wrongful conduct described herein. Plaintiff is seeking permanent injunctive relief against Defendant wherein Defendant is permanently prohibited from creating or publishing false statements about Plaintiff or its officers, managers, employees, business partners, agents, servants, attorneys, representatives, services which defame, disparage, or contain libelous statements about Plaintiff; and Defendant is ordered to take all action to permanently remove his false postings regarding Plaintiff in their entirety, including but not limited to, requesting removal from the internet search engines including Google, Yahoo!, and Bing, of all defamatory, disparaging, libelous, and false Statement about Plaintiff that Defendant has posted on the Internet. Plaintiff further requests any and all other and further relief to which he may show himself justly entitled. H. PRAYER 9. WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendant appear and answer herein and that on final trial Plaintiff have judgment against Defendant for the following: 1. A permanent injunction wherein Defendant is a) Permanently prohibited from creating or publishing false statements about Plaintiff or its officers, managers, employees, business partners, agents, servants, attorneys, representatives, services which defame, disparage, or contain libelous statements about Plaintiff; and b) Ordered to take all action to permanently remove his false postings regarding Plaintiff in their entirety, including but not limited to, requesting removal from the internet search engines including Google, Yahoo!, and Bing, Original Petition for Defamation – Grisak Properties v Baroro 2 Page of all defamatory, disparaging, libelous, and false Statement about Plaintiff that Defendant has posted on the Internet. 2. Any and all other relief to which the Court determines Plaintiff is justly entitled to. Respectfully Submitted, Law Office of Derek U. Obialo _/s/Derek U Obialo_______ By: Derek U. Obialo, Attorney at Law SBN. 24060354 1415 North Loop West Suite 907 Houston TX 77008 Tel: 713-894-0136 Fax: 281-806-5449 Email: derekobialo@obialo.com Original Petition for Defamation – Grisak Properties v Baroro 3 Page