The following outlines the Terms of Service (“Agreement”) between you, your company, or any legal entity for which you are registering (“you” or “User” or “Affiliate”) and HomeStory Real Estate Services. a California corporation (“Service Provider”, “us” or “we”) with regard to its HomeStory services described at https://homestoryrewards.com/ (the “Service”) which may be accessed through a website or an App Store Application (the “App”).
This Agreement governs your use of the App and the Service (the App and Service collectively referred to herein as the “Service”) and the functions or content provided therein. By completing the registration process for use of the Service, you are agreeing to the terms and conditions outlined herein and thereby represent and warrant that you have read, understand, have the legal capacity to, and hereby agree to be legally bound by these terms and conditions. Also, by registering and agreeing to the Terms of Service on behalf of your company, a third-party, another legal entity or its’ affiliates, you warrant that you have full authority to bind that entity to the terms of this agreement.
PLEASE READ THE TERMS OF SERVICE CAREFULLY. If you have any questions concerning the Terms of Service agreement, please contact: email@example.com. If you DO NOT AGREE with the terms of Service or you DO NOT HAVE THE AUTHORITY to bind yourself or any entity, you must NOT accept these terms and must NOT use the Services.
THE APP AND THE SERVICE
In order to use the App, individuals must go to the Apple App Store, agree to these Terms of Service, complete the registration process, and install the App on the device that they intend to use the App. This process must be completed for each singular device that the individual plans to use.
The App and Service are licensed, not sold, to you for use only under the terms of this Agreement. Service Provider reserves all rights not expressly granted to you.
PLEASE NOTE THAT WE DO NOT PROVIDE WARRANTIES FOR THE SERVICE. THE AGREEMENT ALSO LIMITS OUR LIABILITY AND REQUIRES YOUR FULL ASSUMPTION OF RISK AND RESPONSIBILITY FOR THE LICENSEE CONTENT. These terms are in sections 2, 5, and 6 and we ask you to read them carefully.
1) Scope of License
Content. This Agreement anticipates that you will be submitting to the Service Provider certain information, including but not limited to your name and contact information (the “Licensee Content”) by yourself or through any third party, whether via the Service or in any other way or through any other medium. For clarity, Licensee Content includes any and all data or materials provided, submitted or otherwise made available or accessible by you to the Service Provider in any way, prior to or during the term of this Agreement. Also, the Service may provide you with the access to certain vehicle information (the “Application Content”). All of the restrictions set forth in this Agreement as to the Service also govern your access to the Application Content.
Permitted Use. This license granted to you in this Agreement to use the Service provided by Service Provider is limited to a non-transferable license to use the Service on any supported devices subject to the Usage Rules of the Apple App Store Terms and Conditions (the “Usage Rules”). This license does not allow you to distribute or make the Service available over a network where it could be used by multiple devices at the same time. You agree to only use the Service solely for your own internal use and not for the benefit of any third party.
General Restrictions. You may not rent, lease, lend, sell, redistribute or sublicense the Service. You may not copy (except as expressly permitted by this license and the Usage Rules), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Service or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law). Any attempt to do so is a violation of the rights of the Service Provider and its licensors. If you breach this restriction, you may be subject to prosecution and damages. The terms of the Agreement shall govern any upgrades provided by Service Provider that replace and/or supplement the original Service, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern. The license set forth in this Agreement is a term license that will expire or terminate in accordance with this Agreement.
Additional Restrictions. In addition to the foregoing, you may not:
store or retain Application Content separately from the Service;
use Application Content for analytics or research purposes
share your login information with any third parties;
attempt to resell or charge any fee for use of the Service;
access the Service for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes.
THE SERVICE IS BEING PROVIDED FOR PERMITTED USE (AS DEFINED ABOVE) ONLY.
Additional License Provisions.
You may not use or otherwise export or re-export the Service except as authorized by United States law and the laws of the jurisdiction in which the Service was obtained. In particular, but without limitation, the Service may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Service, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law.
The Service and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
2) Exchanged Information
Feature Requests and Suggestions. You agree that any suggestions, improvements, ideas or other information related to the functionality or capabilities of the Service that you submit to Service Provider related to our Service (the “Feature Requests”) shall be owned by Service Provider and shall deemed to have been assigned to Service Provider by you upon such submission. We appreciate feedback, but we will not pay you for Feature Requests.
You shall not provide us with Licensee Content that you do not have the right to grant the licenses detailed herein above or Licensee Content that we shall not have or be unable to exercise the rights that you have granted to us in the foregoing paragraph. Without limiting the foregoing, you shall not provide any Licensee Content that infringes or misappropriates any third party rights, advertises illegal goods or services, or is defamatory, inaccurate or otherwise tortious or criminal. Without limiting our rights under this Agreement, if you discover that Licensee Content you have supplied us, violates the foregoing, you must (a) immediately upload a new Licensee Content set with corrected Licensee Content, and (b) notify us at firstname.lastname@example.org. The Service Provider shall, without any liability or consequence, shall have the right to pull down or discard any Licensee Content provided by you, in the event the Service Provider, at its sole discretion, believes is in breach of these terms or is otherwise undesirable or in breach of any statutory (whether federal or state) or other laws, rules, regulations, judicial orders or directives.
Confidentiality. “Confidential Information” will include (i) all information marked as “Confidential,” “Proprietary,” or similar legend by the Service Provider (“Discloser”) when given to you (“Recipient”); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, affiliate, or third party who has a need to know same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this section. Recipient will not use Discloser’s Confidential Information other than as provided for under this Agreement.
Exceptions. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.
3) Term and Termination
Termination. Either party may terminate this Agreement at any time for its convenience upon 45 days written notice. Upon termination, your Licensee Content shall not longer be viewable through the Service or on your device and all licenses granted from Service Provider to you shall immediately expire (the license to Licensee Content from you to Service Provider shall continue in perpetuity). All Application Content generated by the Service are licensed to you only for the term of your term for the Permitted Use and subject to the terms of this Agreement. Upon cancellation, termination or expiration of the Agreement for any reason, you shall have no right or license to any such materials.
Cancellation by Service Provider. We may change the service or delete features at any time and for any reason. We may cancel or suspend your service at any time. Our cancellation or suspension may be without cause and/or without notice and without any liability or consequences whatsoever. Upon service cancellation, your right to use the service stops right away. If we cancel the service without cause, we will refund any prepaid Subscription Fees, prorated for the Subscription Month during which such cancellation occurred. Once the service is cancelled or suspended you will no longer have any access to Application Content.
Third Party Services. Certain functionality of the Service may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the Service, You acknowledge and agree that the Service Provider is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. The Service Provider does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you. Financial information displayed by the Service is for general informational purposes only and is not intended to be relied upon. Location data provided by any Services is for basic navigational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither the Service Provider, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of stock information or location data displayed by any Services.
In addition, third party services and Third Party Materials that may be accessed from, displayed on or linked to from the device, are not available in all languages or in all countries. The Service Provider makes no representation that such third party services and Third Party Materials are appropriate or available for use in any particular location. To the extent you choose to access such third party services and Third Party Materials, You do so at Your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. The Service Provider, and its licensors, reserve the right to change, suspend, remove, or disable access to third party services and Third Party Materials at any time without notice. In no event will the Service Provider be liable for the removal of or disabling of access to any such third party services and Third Party Materials. The Service Provider may also impose limits on the use of or access to certain third party services and Third Party Materials, in any case and without notice or liability.
4) WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY
NO WARRANTY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE AND ANY SERVICES PERFORMED OR PROVIDED BY THE SERVICE ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND SERVICE PROVIDER HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICE AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. SERVICE PROVIDER DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICE, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SERVICE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICE OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SERVICE PROVIDER OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SERVICE OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES, INCLUDING COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE HEREIN, ALL LIABILITY OF SERVICE PROVIDER AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS UNDER THIS AGREEMENT WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE SHALL BE LIMITED TO (A) THE SUBSCRIPTION FEES RECEIVED BY SERVICE PROVIDER IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEEDING THE CLAIM, OR (B) FIFTY DOLLARS, WHICHEVER IS GREATER. THE MAXIMUM LIABILITY OF SERVICE PROVIDER AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS DESCRIBED UNDER THIS SECTION SHALL BE CUMULATIVE AND NOT PER INCIDENT.
You agree to release, defend, hold harmless, indemnify us and all officers, directors, employees, consultants, affiliates, subsidiaries and agents of Service Provider from and against any and all claims, cost, liabilities, losses, damages, causes of action, suits, proceedings, demands, and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with:
any claim related to the Licensee Content submitted by you;
your use of the Application Content or Service;
any intentional or unintentional wrongdoing related to your use of Application Content or Service;
your failure to pay any invoice or other payment due hereunder;
your breach or violation of any provision of this Agreement.
We reserve the right to assume the exclusive defense and control, or otherwise participate in as we see fit, of any matter otherwise subject to indemnification by you using our own counsel at our own expense. In such a case you agree to cooperate with our defense and will not in any event settle any claim or matter without our explicit written consent.
6) Governing Law/Arbitration
Dispute Resolution. We look forward to a long and mutually beneficial relationship with you. If you become dissatisfied, however, for any reason with the Service, we encourage you to bring that to our attention immediately. It is our belief that most such problems can be resolved by good faith discussions. Nevertheless, it is always possible that some dispute will arise that cannot be resolved between us. We believe that such disputes can be resolved more expeditiously and with less expense to all concerned by binding arbitration rather than by court proceedings.
Governing Law/Arbitration. Except as otherwise provided, this Agreement shall be governed by, and construed in accordance with, the laws of the State of Texas, U.S.A. without regard to its conflict of laws rules. Any claim, demand, dispute or controversy of any kind or nature between the parties hereto arising out of or relating to this Agreement, its construction, performance or alleged breach (except as discussed below), which is not otherwise settled by agreement of the parties, shall be resolved by binding bi-lateral (non-class) arbitration under the United States Federal Arbitration Act. Any such arbitration will be held in Austin, Texas U.S.A. and will be conducted by JAMS (www.jamsadr.com). This clause shall not preclude the parties from pursuing certain limited relief which cannot be obtained through arbitration (including but not limited to injunctive relief, attachment, or enforcement of an arbitration award) from a court of law. Additionally, the determination of the scope or applicability of this agreement to arbitrate shall be determined by a court of law. The exclusive forum for any such court action shall be in any state or federal court located in Austin, Texas, U.S.A. The parties consent to personal jurisdiction in all state and federal courts located in Austin, Texas, U.S.A. In any action brought under this Agreement, the prevailing party shall be entitled to its costs, expenses, and if law permits, its reasonable attorneys’ fees.
NO CLASS ACTION: YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST SERVICE PROVIDER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. BY ENTERING INTO THESE TERMS YOU ARE HEREBY WAIVING THE RIGHT TO PARTICIPATE IN A CLASS ACTION. Further, unless both you and Service Provider agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Before resorting to these alternatives, we strongly recommend you contact us directly by emailing email@example.com.
This Agreement and the applicable Quote, read along with all Service Provider Policies, as amended from time to time, shall constitute the entire agreement between the parties regarding the subject matter hereof. The Service Provider reserves the right to amend, modify or change this Agreement or any Service Provider Policy from time to time, by posting the amended terms on the website homestoryrewards.com, with the amended terms coming into full force from the date mentioned under the notification. The parties agree that this license cannot be altered, amended or modified by you, except by a writing signed by Service Provider. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy. You shall not assign or transfer this license without the prior written consent of Service Provider. Any attempt to assign or transfer this license by you shall be void. Each provision of this license is a separately enforceable provision. If any provision of this license is determined to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in order for this license to remain in effect in accordance with its terms as modified by such reformation. All such provisions of this Agreement, that by their nature survive the termination of this Agreement (including but not limited to Section 5, 6, 7 and 8), shall survive any termination of this Agreement. In addition, you will promptly return or destroy the Service Provider’s Confidential Information upon written request or upon termination of this Agreement. Section or paragraph headings used in this Agreement are for reference purposes only, and should not be used in the interpretation hereof. Any notice required to be delivered hereunder will be deemed delivered three days after deposit, postage paid, in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to the Service Provider will be sent to: HomeStory Real Estate Services., 320 Congress Ave Suite C Austin, TX. 78701 with a copy to the Legal Department.