This Website Terms of Use, along with any Additional Terms (defined below) (collectively, these “Terms”) govern your use of and access to the website at https://thehomapp1.wpenginepowered.com/ and other related software, content and services, including all versions and upgrades thereto (collectively, the “Website”), provided by PropCents, Inc., doing business as HŌM (“HŌM”, “we”, “us” and “our”). Your use of and access to the Website may be subject to one or more additional terms or agreements (“Additional Terms”). If there is any conflict between these Terms and the Additional Terms, the Additional Terms shall apply.
PLEASE REVIEW THESE TERMS CAREFULLY. BY ACCESSING OR USING THE WEBSITE, YOU AGREE TO BE BOUND BY THESE TERMS, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THESE TERMS, YOU MAY NOT ACCESS OR USE THE WEBSITE.
HŌM may, at its discretion, update these Terms at any time. You can access and review the most current version of these Terms at this URL or by clicking the applicable link on the Website. HŌM reserves the right at any time to modify, suspend, or discontinue the Website (or any portion thereof) with or without notice, and HŌM shall not be liable to you or any third party for any such modification or discontinuance.
Except as expressly permitted by these Terms, you may not use the HŌM brands, trademarks, service marks or logos that HŌM makes available on the Website (“Marks”) or any text, graphics, user interfaces, visual interfaces, artwork, sounds, music or other information or content displayed on the Website (collectively with the Marks, the “Content”), including the “look and feel” of such Content. HŌM claims trademark protection over all Marks and you will not remove or alter the Marks or any proprietary notices on the Website. The Marks may not be included in or as part of any registered corporate name, any other logo, or service or product name. You may not create any derivative works of the Marks or Content or use the Marks in a manner that creates or reasonably implies an inaccurate sense of endorsement, sponsorship, or association with HŌM. You will not otherwise use business names or logos in a manner that can mislead, confuse, or deceive any third party. All use of the Marks and all goodwill arising out of such use, will inure to HŌM’s benefit.
In addition to these Terms, the HŌM Privacy Policy, provided at https://thehomapp1.wpenginepowered.com/privacy-policy (“Privacy Policy”) applies to how HŌM collects, uses and processes information provided as part of the Website. You acknowledge and agree that by accessing or using the Website, HŌM may receive certain information about you, including personal data, as set forth in the Privacy Policy, and HŌM may collect, use, disclose, store, share, and process such personal data in accordance with such Privacy Policy.
(a) The Website provided to you hereunder and the Content available to you through the Website are licensed, not sold, and HŌM retains and reserves all rights not expressly granted in these Terms. You acknowledge and agree that, as between you and HŌM, HŌM and its licensors own all rights, title and interest (including all intellectual property rights) in the Website and all Content therein. The Website is protected by U.S. and international copyright and other intellectual property laws and treaties. HŌM reserves all rights not expressly granted to you in these Terms.
(b) If you elect to provide or make available to HŌM any suggestions, comments, ideas, improvements or other feedback relating to the Website (“Feedback”), HŌM shall own and be free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in your Feedback in any form and any medium (whether now known or later developed), without credit or compensation to you.
(i) use, reproduce, modify, adapt, create derivative works from, sublicense, publicly perform, publicly display, distribute, sell, lease, rent, make, have made, assign, pledge, transfer or otherwise grant rights to the Website, except as expressly permitted under these Terms;
(ii) reverse engineer, disassemble, decompile, translate, or otherwise attempt to derive trade secrets, algorithms, or the source code, architectural framework, or data records, within or associated with the Website;
(iii) interfere with or disrupt the integrity or performance of the Website, including by disrupting the ability of any other person to use or enjoy the Website;
(iv) access the Website for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Website;
(v) violate any applicable local, state, provincial, federal or international law or regulation, or use the Website for any illegal, unauthorized or otherwise improper purposes, including to store or transmit malicious code, or to store or transmit material in violation of third-party privacy rights;
(vi) remove or obscure any proprietary notice that appears within the Website;
(vii) impersonate any person or entity, including HŌM personnel, or falsely state or otherwise misrepresent your affiliation with HŌM, or any other entity or person;
(viii) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Website;
(ix) take any action that imposes an unreasonable or disproportionately heavy load on the Website or its infrastructure; or
(x) use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the Website; or download, reproduce, or archive any substantial portion of the Website
(b) You will not: upload, post, email, store, transmit, or otherwise make available any content that:
(i) is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or otherwise objectionable;
(ii) may not be made available under any law or under contractual or fiduciary relationships (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement);
(iii) infringes any patent, trademark, trade secret, copyright, or other proprietary right of any party;
(iv) consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages, or any other form of solicitation;
(v) contains software viruses or any other code, files or programs designed to interrupt, destroy or limit the functionality of any software or hardware;
(vi) contains infringing, libelous, or otherwise unlawful or tortious material; or
(vii) consists of information that you know or have reason to know is false or inaccurate.
HŌM’s failure to enforce any of these restrictions or guidelines shall not act as a waiver for any future enforcement, will not be considered a breach of these Terms by HŌM, and does not create a private right of action for any other party.
The Website may include or provide access to third party products, services, content, or offerings, including advertising for such (“Third Party Services”). You acknowledge that different terms of use and privacy policies may apply to your use of such Third Party Services and that such terms and policies are solely between you and the advertiser or other third party. You agree that HŌM does not endorse and is not responsible or liable for any issues related to Third Party Services.
You shall indemnify and hold HŌM and its affiliates, and each of their officers, directors, employees, agents, partners and licensors (collectively, “HŌM Parties”) harmless from and against all losses, damages, costs, liabilities, and expenses, including reasonable attorneys’ fees, to extent resulting from or arising out of any third party claim, demand, or action due to (a) content you provide to HŌM; (b) your violation of these Terms, any law or regulation, or any rights (including intellectual property rights) of another party; or (c) your use of the Website.
(a) YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK. THE WEBSITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HŌM PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
(b) HŌM PARTIES MAKE NO WARRANTY OR REPRESENTATION THAT: (i) THE WEBSITE WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, OR ERROR-FREE; OR (iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE WEBSITE WILL BE ACCURATE, RELIABLE, CURRENT, OR COMPLETE.
(c) ALL CONTENT MADE AVAILABLE THROUGH THE WEBSITE IS MADE AVAILABLE FOR INFORMATIONAL PURPOSES ONLY. YOU ARE SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL CONTENT BEFORE TAKING OR OMITTING ANY ACTION.
THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS AND YOU MAY HAVE WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. ANY SUCH WARRANTY EXTENDS ONLY FOR THIRTY (30) DAYS FROM THE EFFECTIVE DATE OF THESE TERMS (UNLESS SUCH LAW PROVIDES OTHERWISE).
(a) HŌM PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA OR GOODWILL, OR COST OF COVER, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS, OR FINANCIAL LOSS, EVEN IF HŌM PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL HŌM PARTIES’ TOTAL LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THESE TERMS OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE WEBSITE OR CONTENT EXCEED ONE HUNDRED DOLLARS ($100.00).
(b) THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT HŌM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
These Terms shall be governed by and construed and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws and the laws of the State of Texas, without regard to conflict of laws principles. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to these Terms, regardless of the states in which the parties do business or are incorporated. Any claim under these Terms must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred.
(a) ALL CLAIMS ARISING IN CONNECTION WITH THESE TERMS SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION RATHER THAN IN COURT. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
(b) The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that such hearing shall be conducted in Austin, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
(c) WE EACH AGREE THAT ALL CLAIMS SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR OTHER SIMILAR PROCESS (INCLUDING ARBITRATION). IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
(d) Notwithstanding anything to the contrary, HŌM may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect its intellectual property rights, whether in aid of, pending, or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 11.
(e) If HŌM implements any material change to this Section 11, such change shall not apply to any claim for which you provided written notice to HŌM before the implementation of the change.
You represent and warrant that you will comply with all applicable foreign, federal, state, and local laws, rules and regulations, including without limitation, U.S. export laws and import and use laws of the country where the Website is delivered or used and you are not: (a) located in a country that is subject to a U.S. Government embargo, or designated by the U.S. Government as a “terrorist supporting” country; and (b) listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting such unit in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
These Terms and any Additional Terms constitute the entire agreement between you and HŌM concerning your access to and use of the Website and supersede all prior and contemporaneous oral or written negotiations and agreements between you and HŌM with respect to such subject matter Except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms. For the purposes of these Terms, the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.” You may not assign or delegate any right or obligation under these Terms without the prior written consent of HŌM. The failure of HŌM to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of these Terms. Any prevention of or delay in performance by HŌM hereunder due to labor disputes, acts of god, failure of the Internet, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.
