|Terms and Conditions|
TERMS AND CONDITIONS
a. Please review the following terms and conditions carefully. These Terms and Conditions, together with the Fees and Payment terms constitute a legally binding contract between you ("You" or "Your") and HomeTracker, Inc. ("HT," "We," "Us," or "Our") regarding Your access to and use of the HT web site (the "Site"). HT offers access to certain tools and services accessible through the Site, including, but not limited to, HT's real estate sales management and communication system (the "HT Service").
d. If You are not an Authorized User or authorized affiliate of an Authorized User, You may access the Site only for informational purposes, but may not receive a user name or password, or access password-restricted information, access or receive confidential information, or use the HT System.
e. You agree to use Your limited rights of access and use of the HT System only to perform Your customary functions within real estate asset management.
f. HT reserves the right to change these terms and conditions and/or the Fees and Payment terms and/or the HT System from time to time at its sole discretion by posting such revised terms and conditions on the Site or providing the modified HT System via the Site. Your continued use of the Site following any such change constitutes Your acknowledgement of any such change and Your agreement to follow and be bound by the modified terms and conditions of these Terms and Conditions, if any.
2. Password and Security
To access and use the Service, you must be authorized by your System Administrator. If You are an employee, You will receive instructions regarding Your user identification and password from the System Administrator. The System Administrator has the authority to change, delete or otherwise restrict Your access to and/or use of the Service. HomeTracker shall not be responsible for any decisions made by the System Administrator regarding Your access to and use of the Site and/or Service.
Prior to your first access of the Site, You will be provided with a password by Your System Administrator. Upon your initial login, you should change that password to further protect the security of Your access/use. Since HT does not track or know Your password, You should contact Your System Administrator if you have any other problems or questions about Your password.
We use many techniques to identify users when they register on our Site. However, because user verification on the Internet is difficult, HomeTracker cannot and does not confirm each user's purported identity.
In order to protect your privacy, HT uses encryption technology for credit card transactions on the Site.
For all users, please note that You are solely responsible for any and all activities that occur under Your account and ensuring that You exit or log-off from Your account at the end of each session of use. You shall notify your System Administrator immediately of any unauthorized use of Your password, account, credit card or any other breach of security that is known or suspected by You. User accounts cannot be "shared" or used by more than one individual. If You are an Employee of Client, Client shall be bound by Your use of the Site and/or Service.
3. Your Conduct
You agree not to:
a. upload, transmit, post, email or otherwise make available to the Site, any content or other material in any format that: (i) is false, inaccurate, misleading, fraudulent, unlawful (including, but not limited to, laws governing consumer protection, unfair competition, antidiscrimination, or false advertising), harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another's privacy, libelous and/or otherwise objectionable; (ii) infringes any third party's intellectual property, whether a copyright, patent, trademark, trade secret, or other proprietary rights or rights of publicity or privacy; or (iii) contains viruses, worms, Trojan horses, time bombs, cancelbots, easter eggs, corrupted files, or any other similar software or programs designed to interrupt, interfere, intercept, expropriate, destroy or limit the functionality of any data, personal information, computer software or hardware or telecommunications equipment;
b. alter, remove, or falsify any attributions or other proprietary designations of origin or source of any other content appearing on the Site or contained in a file that is uploaded to the Site;
c. impersonate any person or entity, including, but not limited to, a HomeTracker official or falsely state or otherwise misrepresent Your affiliation with a person or entity;
d. use a credit card You are not authorized to use to pay fees due on the Site;
e. attempt, through any means, to gain unauthorized access to the Site, or another user's account on the Site;
f. forward or share any information regarding the Service and/or the Site furnished through the Service, to any third party;
h. use any robot, spider, other automatic device, or manual process to monitor or copy web pages or the content contained herein without our prior expressed written permission. Additionally, You agree that You will not take any action that imposes an unreasonable or disproportionately large load on HomeTracker's infrastructure;
i. create liability for HomeTracker or cause HomeTracker to lose (in whole or in part) the services of its ISPs or other suppliers; or
The use of any device, software or routine that interferes or attempts to interfere with the proper working of the Site is expressly prohibited. You may not disclose or share Your password with any third parties or use Your password for any unauthorized purpose. In any case, You remain solely responsible for any authorized or unauthorized use of Your password.
4. Proprietary Rights Restrictions
a. All material on the Site, including, without limitation, all informational text, design of and "look and feel" of the Site, layout, photographs, graphics, audio, video, messages, files, documents, images or other materials (collectively, the "Materials"), whether publicly posted or privately transmitted, as well as all derivative works, are owned by HomeTracker or other parties that have licensed their material to HomeTracker and are protected by copyright, trademark and other intellectual property laws. HomeTracker disclaims any proprietary interest in trademarks, service marks, logos, slogans, domain names and trade names other than its own. Trademarks, logos, images and service marks displayed on the Site are the property of either HomeTracker or other third parties. You agree not to display or use such marks without HomeTracker's prior written permission.
The Materials on the Site may not be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way, including by e-mail or other electronic means. Any modification of the Materials, use of the Materials on any web site or networked computer environment, or use of the Materials for any purpose other than personal, non-commercial use is a violation of the copyright, trademark, and other proprietary rights in the Materials and is expressly prohibited.
b. If You have registered with HomeTracker and have a valid user name and password, HomeTracker grants to You a personal, non-exclusive, non-transferable license to use and display the audio and visual information, documents, products and software contained in or made available through the Service (the "Content") solely for Your own internal business purposes. All rights not expressly granted herein by HomeTracker to You are reserved by HomeTracker and/or its licensors.
c. HomeTracker does not own any data, information or material that You submit to the Service, including, but not limited to, comments to any Assessment (the "Data"), unless We specifically tell You otherwise before You submit it. Accordingly, You are responsible for the submission and content of all Data.
d. HomeTracker alone shall own all right, title, and interest, including all related intellectual property rights, to any suggestions, ideas, feedback, recommendations, or other information provided by You relating to the Service ("Submissions"), and You agree to assign such Submissions to HomeTracker free of charge. HomeTracker may use such Submissions as it deems appropriate in its sole discretion.
a. You acknowledge that the HT System is unique and valuable and has been developed or otherwise acquired by HT at great expense, and that any unauthorized disclosure or use of the HT System, or any component thereof, would cause HT irreparable injury and loss, for which damages would be an inadequate remedy.
b. All Authorized Users shall advise all of its employees, agents or contractors that they are bound by the confidentiality terms of this Agreement. Further, You agree that during Your access/use of the Site and/or the HT System You may receive information relating to HT, the Site and/or the HT System that is not generally known or that is of a proprietary nature (collectively and individually, the "Confidential Information"). You agree not to use or disclose any Confidential Information except for the purpose of meeting Your obligations under this Agreement, and will not use Confidential Information for any other purpose whatsoever. Confidential Information shall not include any information that is (a) generally known or available to the public; (b) already known at the time of receiving the Confidential Information through no wrongful act of the other party; or (c) furnished by a third party with the right to do so. In the event that You are required to disclose Confidential Information to a court or government agency, You agree, prior to any disclosure, and as soon as practicable, to notify HT in writing and allow HT the adequate opportunity to object to the disclosure order or take other action to preserve the confidentiality of the information.
6. Links to Other Web Sites
The Site may contain links to third party sites. The linked sites are not under the control of HomeTracker. HomeTracker does not endorse, adopt or undertake any responsibility for the content or privacy practices of any linked site, including, but not limited to, information provided at the Site that may link the user to a third-party web site. In no event shall HomeTracker or its licensors be responsible for any content or other materials on or available through such third-party sites.
7. Information Provided by User
a. The Site is comprised of multiple components (including, but not limited to, the HT System and its subcomponents), each providing different aspects of the total Site, and each accessible by different parties and users. Any information provided by You or other clients accessing the Site and utilizing the HT System is provided "AS IS" and is subject to the Disclaimer of Warranties set forth below. Further, HT shall not be liable or responsible for the accuracy, completeness or use of any information, or any portion thereof, provided by any client or other user.
8. Third-Party Hosting
HomeTracker contracts with a third party to maintain and host the Site. Therefore, any information You submit, including Private Information, shall be placed and stored on a computer server maintained by this third-party host. The third party has implemented technology and security features and strict policy guidelines to safeguard the privacy of your Private Information from unauthorized access or improper use. Your use of the Site and any provision of Private Information You submit to the Site constitutes Your acknowledgement that such information or content could pass through and may be stored in servers outside the control of HomeTracker. You agree that HomeTracker has no liability or responsibility for any such pass-through or storage of same.
9. Term and Termination
a. This Agreement shall commence upon the date you indicate Your acceptance of the Terms and Conditions and the Fees and Payment terms, and, shall continue until terminated as set forth below.
b. Either party may terminate this Agreement for any reason, including, without limitation, for convenience, upon thirty (30) days' written notice of same.
c. Termination of this Agreement shall not relieve either party of the obligations incurred hereunder pursuant to Sections 3-5, 7, 9(d) and 10-13 hereof, which Sections shall survive such termination.
d. Upon termination of this Agreement for any reason, You shall immediately cease Your access of the Site and shall cease any and all use of the HT System, or any components thereof. You shall further return or destroy any and all copies of any documentation, notes and other materials (e.g., training materials) associated with the HT System.
10. Representations and Warranties
a. HT and You each represent and warrant that it has the right, power and authority to enter into this Agreement and to perform all of its obligations hereunder.
b. You represent and warrant that You have all of the certifications, licenses, permits and any other materials or documentation required for You to engage in Your business and required for You to access the Site and/or use the HT System, including, without limitation, engaging in such business online and authorization to use credit cards You use on the Site.
11. Disclaimer of Warranties
A. YOU EXPRESSLY AGREE THAT USE OF THE SITE AND SERVICE IS AT YOUR SOLE RISK. THE SITE, SERVICE AND ANY CONTENT CONTAINED THEREIN OR DOWNLOADABLE THEREFROM ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. HOMETRACKER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM HOMETRACKER OR THROUGH THE SITE OR SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
B. HOMETRACKER MAKES NO WARRANTY THAT THE SERVICE OR ANY CONTENT PROVIDED THROUGH THE SITE, SERVICE, OR ANY CONTENT CONTAINED THEREIN OR DOWNLOADED THEREFROM WILL MEET YOUR REQUIREMENTS, BE ACCURATE, COMPLETE, OR TIMELY, OR THAT THE SITE OR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. FURTHER, HOMETRACKER DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR SERVICE. HOMETRACKER SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE DELETION, CORRECTION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY DATA.
C. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR SERVICE OR ANY CONTENT CONTAINED THEREIN OR DOWNLOADED THEREFROM IS AT YOUR OWN DISCRETION AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
D. HOMETRACKER SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE CAUSED, OR ALLEGED TO HAVE BEEN CAUSED, DIRECTLY OR INDIRECTLY, BY THE INFORMATION OR IDEAS CONTAINED, SUGGESTED OR REFERENCED AT THE SITE THROUGH THE SERVICE, OR ANY USE OF SAME BY YOU.
E. HOMETRACKER AND ITS LICENSORS MAKE NO REPRESENTATION THAT THE SITE, SERVICE, OR ANY CONTENT CONTAINED THEREIN OR DOWNLOADED THEREFROM IS APPROPRIATE OR AVAILABLE FOR USE IN ALL GEOGRAPHIC LOCATIONS. IF YOU USE THE SERVICE FROM OUTSIDE THE UNITED STATES OF AMERICA AND/OR THE EUROPEAN UNION, YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING WITHOUT LIMITATION EXPORT AND IMPORT REGULATIONS OF OTHER COUNTRIES.
You agree to indemnify and hold harmless HT, its employees, officers, directors and agents, from and against any losses, damages, liabilities and expenses (including reasonable attorneys fees) resulting from any claims made by any third party which arises from or is in any way connected with: Your actions, or failure to act, or other use or misuse of the Site and/or the HT System; and (b) any transaction between You and any third party.
13. Limitation of Liability
A. HOMETRACKER AND ITS EMPLOYEES, SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE SITE, SERVICE OR ANY CONTENT CONTAINED THEREIN OR DOWNLOADABLE THEREFROM, OR ANY INFORMATION OBTAINED AT THE SITE THROUGH THE SERVICE, OR FOR THE UNAUTHORIZED USE OF YOUR CREDIT CARD, INCORRECT BILLING TO YOUR CREDIT CARD, OR THE FAILURE OF OR REJECTION OF YOUR CREDIT CARD RESULTING IN A FAILURE TO PROCESS YOUR REQUEST, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS AND SERVICES OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, OR FOR THE USE OR MISUSE OF DATA BROUGHT ABOUT BY USE OF THIRD-PARTY SERVERS, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES EVEN IF FORESEEABLE OR HOMETRACKER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT HOMETRACKER'S LIABILITY HEREUNDER FOR DAMAGES, REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED THE ACTUAL TOTAL AMOUNT PAID FOR SERVICES PAID TO HOMETRACKER.
B. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to You.
14. Local Laws and Export Controls
The Site provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of the European Union. You acknowledge and agree that the Site shall not be used, and none of the underlying information, software or technology may be transferred or otherwise exported or re-exported to Afghanistan, Burma, Cuba, Iraq, Iran, Libya, Sudan or any other countries to which the United States and/or the European Union maintains an embargo (collectively, the "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, the "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using this Site, You represent and warrant that You are not located in, under the control of, or a national or resident of an Embargoed Country or a Designated National. You agree to comply strictly with all U.S. and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
This Site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000.
Any diversion of the Content contrary to United States or European Union (including European Union Member States) law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons or missile projects, unless specifically authorized by the United States Government or appropriate European body for such purposes.
15. Changes to the Site
16. Failure to Abide by these Terms
a. Entire Agreement. This Agreement (Terms and Conditions, Fees and Payment terms and all Exhibits hereto, which are incorporated herein by reference), comprise the entire agreement between the parties relating to the subject matter hereof. This Agreement supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended by You except in writing signed by a duly authorized representative of each party; no other act, document, usage, or custom shall be deemed to amend or modify this Agreement.
b. Independent Contractors. The relationship of the parties hereunder shall be that of independent contractors. Nothing in this Agreement shall be construed to constitute a partnership between or joint venture of the parties, nor shall either party be deemed the agent of the other party or have the right to bind the other party in any way without the prior written consent of such party, except as specifically provided in this Agreement.
c. Waiver. No term or provision of this Agreement shall be deemed waived and no breach excused unless such waiver or consent is in writing and signed by the party that has given such waiver or excused such breach.
d. Governing Law. ANY LEGAL CLAIMS BROUGHT BY YOU AGAINST HT SHALL BE BROUGHT IN DALLAS COUNTY, DALLAS, TEXAS, AND SHALL BE GOVERNED BY TEXAS LAW WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
e. Force Majeure. Except with respect to payment of Fees, in the event that either party hereto shall be delayed or hindered or prevented from the performance of any act required hereunder by reason of strikes, lock-outs, labor troubles, inability to procure materials or services, failure of power, riots, insurrection, war or other reasons of a like nature not the fault of the party, such party's failure to act or perform shall be excused.
f. Notices. All notices, requests, demands, directions, and other communications given to or made upon any party hereto under the provisions of this Agreement shall be in writing (including facsimile communication), shall be deemed given when received, and shall be delivered or sent as follows:
If to You:
To the then-current address or other contact information You have on file with HT.
If to HT:
J. Kevin Gray, Esq.
Fish & Richardson P.C.
1717 Main Street, Suite 5000
Dallas, Texas 75201
Either party may at any time designate another address for the receipt of notice by notifying the other party in accordance with this Section 12.6.
g. Severability. If any provision of this Agreement is held invalid or unenforceable by any court or agency of competent jurisdiction, the parties shall mutually agree on an alternate, legally valid and enforceable provision. The remainder of this Agreement shall nevertheless continue in full force and effect to the extent that continued operation under this Agreement without the invalid or unenforceable provision is consistent with the intent of the parties as expressed in this Agreement.
h. Taxes. You shall pay any federal, state, county or local sales, property, investment, use and/or other applicable taxes arising out of Your use of the Site and/or the HT System, or any transactions occurring in whole or in part via same, except any taxes on HT's income, whenever imposed.
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