1. Acceptance of Terms of Use
Please review the following terms and conditions carefully. This agreement is a legally binding contract between you ("You" or "Your") and HomeTracker, LP. ("HomeTracker," "We," "Us," or "Our") regarding Your access to and use of the HomeTracker Web site (the "Site"). HomeTracker offers businesses (the "Client") access to certain tools and services accessible through the Site, including, but not limited to, real estate asset management and communication among Client staff, contractors, brokers, and lenders nationwide (the "Service").
You must read, agree with, and accept all of the terms and conditions contained in these Terms of Use and the Privacy Policy, which include those terms and conditions expressly set out below and those incorporated by reference, before you may become a Client of HomeTracker. By accessing the Site and/or the Service, You agree to the terms and conditions as outlined in this legal notice. If you do not agree to be bound by the terms and conditions of this Agreement, do not use or access our Service.
Two types of users may access the Site and use the Service - browsers on the Site that do not have access to password-restricted information, and Clients. An "Employee" is an employee, agent, independent contractor, subcontractor, or affiliate of Client. If you are an Employee, since You are accessing the Site on behalf of Client, You also agree to the terms and conditions outlined herein on behalf of Client. Our password-restricted services are only available to Clients who can form legally binding contracts under applicable law. Without limiting the foregoing, our password-restricted services are not available to minors or to temporarily or indefinitely suspended HomeTracker Clients. If you do not qualify, do not use our services.
If you are not a Client, You may use the Site only for informational purposes, but may not receive a user name or password, or access password-restricted information or receive confidential information.
HomeTracker reserves the right to change these terms and conditions and/or the Service from time to time at its sole discretion by posting such revised terms and conditions on the Site. Your continued use of the Site following any such change constitutes Your acknowledgement of such change and Your agreement to follow and be bound by the modified 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 HomeTracker 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.
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 or account 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. attempt, through any means, to gain unauthorized access to the Site, or another user's account on the Site;
e. forward or share any information regarding the Service and/or the Site furnished through the Service, to any third party;
f. link directly or indirectly to or include descriptions of goods or services that are prohibited under these Terms of Use or that You do not have a right to link to or include;
g. 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;
h. create liability for HomeTracker or cause HomeTracker to lose (in whole or in part) the services of its ISPs or other suppliers; or
i. list any item on the Site (or consummate any transaction that was initiated using HomeTracker's Service) that, by paying to HomeTracker a listing fee or other fee, would cause HomeTracker to violate any applicable law, statute, ordinance or regulation, or that violates HomeTracker's Terms of Use or Privacy Policy.
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.
5. 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.
6. Information Provided by Clients
The Site is comprised of multiple components (including, but not limited to, asset management, broker center, lender center and service center), each providing different aspects of the total Site. For example, a real estate broker may provide information in the "Broker Center" section of the Site, a portion of which information may be integrated into the "Asset Center" Section of the Site. The information provided by Clients is provided "AS IS" and is subject to the Disclaimer of Warranties set forth below. Further, HomeTracker shall not be liable or responsible for the accuracy, completeness or use of any information provided by a Client or any portion thereof.
7. 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.
8. 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.
9. 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 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.
10. Indemnification
You agree to indemnify, hold harmless and release HomeTracker (and its employees, officers, directors, stockholders, agents, licensors and their respective successors and assigns), from and against any and all claims, damages, costs and expenses, including reasonable attorney's fees, arising from or related to Your use of the Site, the Service and/or any content contained therein or provided thereby, including, but not limited to, information from third party web sites linked to the Site.
11. 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.
12. Changes to the Site
HomeTracker reserves the right to modify, suspend or discontinue all or any portion of the Site and/or the Service at any time, without notice. Unless stated otherwise, any new features to the current Site or Service shall be subject to these Terms of Use. All areas of the Site are currently accessible to users without charge; however, HomeTracker reserves the right to charge users for access to or use of any portion of the Site in the future. These Terms of Use may be modified by HomeTracker at any time. Any such changes will be posted on the Site. Your continued use of the Site shall be deemed acceptance of any modifications.
13. Failure to Abide by these Terms
HomeTracker may, in its sole discretion, remove Your information from the Site, warn HomeTracker's community of Your actions, issue a warning, suspend or terminate Your account and any current activities at the Site immediately, without notice to You, and refuse to provide our Services to You if You breach these Terms of Use, or if We are unable to verify or authenticate any information that You provide to Us, or if we believe Your actions may cause financial loss or legal liability for You, HomeTracker's other Clients, or Us. HomeTracker reserves the right, in its sole discretion, to refuse access to any user at any time to those portions of the Site that require registration. You agree that HomeTracker shall not be liable to You or any third party for any termination of Your access to any Material, Content, the Service, and/or the Site.
14. Dispute Resolution; Governing Law; Consent to Jurisdiction
Any controversy, dispute or claim rising out of or relating to these Terms of Use shall be settled by final and binding arbitration in accordance with the Arbitration Rules of the American Arbitration Association in front of three (3) arbitrators, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. However, the parties agree that this arbitration clause shall not preclude HomeTracker from filing a petition in court seeking equitable relief in the form of a temporary restraining order, temporary injunction and permanent injunction for alleged violations of Your obligations under these Terms of Use regarding nondisclosure, nonsolicitation, and noncompetition. A party shall have the right to pursue the same causes of action and obtain the same damages in arbitration that the party could pursue in any court. Any arbitration brought under the terms of these Terms of Use shall be conducted in the following manner:
a. Locale of Arbitration. The arbitration hearing shall be held at the offices of the American Arbitration Association's office, in Dallas, Texas.
b. Time Limitations. The parties agree that the following time limitations shall govern the arbitration proceedings conducted under the terms of this Agreement.
i. Any demand for arbitration must be filed within sixty days of the date on which the dispute arises or the alleged breach occurs. A demand for arbitration must be made in writing and served on the other party. The demand shall state the claims made by the party seeking the arbitration and the relief the party is seeking.
ii. The arbitration hearing must be held within thirty days of the date on which the arbitrators are selected by the parties. The arbitrators shall be from the Computer Disputes Advisory Committee List of the American Arbitration Association.
iii. In order to ensure a fair hearing, and consistent with achieving the objective of any expeditor's proceeding, the arbitrators shall have discretion to order pre-hearing exchange of information by the parties, including, without limitation, production of requested documents, exchange of summaries of testimony of proposed witnesses, and examination by deposition of parties and third party witness.
c. Expenses of Arbitration. The expenses of the arbitration, including each party's attorney's fees, shall be borne in such proportion, as the arbitrators shall decide.
Further, You agree that these Terms of Use are governed by the laws of the State of Texas and that proper and convenient venue lies exclusively with the courts of Dallas County, Texas. You agree to be subject to the personal jurisdiction of the State and federal courts sitting in or having jurisdiction over Dallas County, Texas, U.S.A. in the event that any litigation results concerning any aspect arising out of these Terms of Use.
15. HomeTracker Privacy Policy
On-line information collected and certain other information about You is subject to our Privacy Policy. For more information, please see our full Privacy Policy. However, we do not sell or rent Your personal information to third parties for marketing purposes without Your consent and we only use Your information as described in the Privacy Policy. We understand clearly that You and Your information is one of our most important assets. We store and process Your information on computers located in the United States that are protected by physical as well as technological security devices. We use third parties to verify and certify our privacy principles. If You object to Your Information being transferred or used in this way please do not use our Services.
16. Miscellaneous
You and HomeTracker are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms of Use.
If any provision of these Terms of Use is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from the remainder of these Terms of Use, which shall remain in full force and effect. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only.
YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS OF USE, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THEIR TERMS AND CONDITIONS.
Except as explicitly stated otherwise, any notices shall be given by postal mail to HomeTracker, LP or the email address You provide to HomeTracker during the registration process. Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give You notice by certified mail, postage prepaid and return receipt requested, to the address provided to HomeTracker during the registration process. In such case, notice shall be deemed given 3 days after the date of mailing.
If You have any questions or comments about our Terms of Use, please contact HomeTracker Support at support@hometracker.com.
