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Power Suite Terms and Conditions



Power Suite Terms and Conditions

End User Agreement and Terms and Conditions
(Last Updated: June 2011)
This is an agreement (the “Agreement”) between you, either an individual or an entity (“Customer” or “you”), and Homes Media Solutions, LLC, for and on behalf of itself and its applicable businesses and affiliated companies, including, but not necessarily limited to, Homes.com, Inc. (collectively, “HMS”) (collectively, “HMS,” or “we” or “us”). Please read this Agreement carefully before using any HMS software programs, display advertising products or other products and services (collectively, “HMS Tools and Services”). BY CLICKING ON THE “ACCEPT” BUTTON OR USING OR INSTALLING ANY HMS TOOLS AND SERVICES, YOU ARE CONSENTING TO AND SHALL BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. If you do not agree to all of the terms of this Agreement, click the “Do Not Accept” button and you will not receive access to HMS Tools and Services.
1. HMS TOOLS AND SERVICES.
(a) General. On the terms and subject to the conditions set forth herein, HMS hereby grants to you a non exclusive, non transferable, revocable, limited license to use the HMS Tools and Services selected by you through an electronic order form or other electronic mechanism, such as part of the initial product/service activation process (as applicable, the “Order Form”), and all related user documentation.
(b) Software. To the extent the HMS Tools and Services you subscribe for include any software application(s) (collectively, “Software”), you may access and use the Software on any computer but you may not exceed the number of simultaneous or concurrent users specified by the applicable user documentation, and you may use the Software only to perform its functions for the purpose authorized by such documentation. All Software is licensed on a subscription basis pursuant to the subscription terms and conditions set forth herein. We will provide updates to the Software on a periodic basis, which will replace the prior version of the Software and may operate differently and may have different, more or fewer features than prior versions (“Updates”), and each Update will be deemed to be part of the Software and shall be governed by the terms of this Agreement.
(c) Advertising Services. To the extent the HMS Tools and Services consist of display advertising products or other services that allow you to submit information and materials to HMS, including, without limitation, photographic images, as part of your use of the HMS Tools and Services (“Submissions”), you hereby grant to HMS a non-exclusive, royalty-free license to use, publish, copy, modify, transmit, display and distribute your Submissions in connection with such HMS Tools and Services.
2. LIMITATIONS ON USE.
(a) You may provide the data and other information generated in connection with your use of the HMS Tools and Services only to individual consumers in connection with the provision of real estate related services in the normal course of business as conducted by you prior to entering into this Agreement, except with the prior written consent of HMS, which reserves the right to charge additional fees as a condition to its consent. Without limiting the generality of the foregoing, you do not have the right to use the HMS Tools and Services or any associated reports or data (i) as part of a general and unrestricted publication of any kind, or (ii) except as expressly provided for in the first sentence of this paragraph, to market or promote any products or services.
(b) You may not (i) attempt to determine the source code for any HMS Tools and Services (including any Software included therein), modify, adapt, reprogram, or create derivative works of any HMS Tools and Services (including any Software included therein), translate, disassemble, decompose, or otherwise reverse engineer any HMS Tools and Services (including any Software included therein); (ii) sublicense, rent, lease, assign or resell for profit or distribute any HMS Tools and Services (including any Software included therein) or, except as provided above, any of its reports, information or data; (iii) allow anyone else to access or execute any HMS Tools and Services (including any Software included therein) through time sharing services such as a service bureau or application service provider, except with the prior written consent of HMS, which reserves the right to charge additional fees as a condition to its consent. Any attempt to do any of these things will automatically terminate your right to use the Software without notice from HMS. You expressly represent that you have not acquired the HMS Tools and Services for use in developing programs similar to, or that compete with, the HMS Tools and Services, and expressly agree not to use any data or information contained in the HMS Tools and Services for such purposes either during or after the term of this Agreement.
(c) To the extent your HMS Tools and Services consist of any Software, you hereby acknowledge and agree that (i) any opinions, advice, statements, services, offers or other information expressed or made available by or otherwise accessible from third parties via the Software (“Software Content”) is provided solely and exclusively by the respective authors or distributors and not HMS, and (ii) it is your responsibility to evaluate the Software Content and all information, opinions, advice or other material included therein. HMS ASSUMES NO RESPONSIBILITY FOR AND MAKES NO REPRESENTATIONS, WARRANTIES, RECOMMENDATIONS, ENDORSEMENTS OR APPROVALS WHATSOEVER WITH REGARD TO, ANY SOFTWARE CONTENT
(d) To the extent your HMS Tools and Services consist of display advertising products or other services that allow or permit you to provide Submissions to HMS:
(i) you warrant that your Submissions will not include (x) any threatening, defamatory, abusive, obscene, pornographic, inappropriate, unlawful or profane material or any other material that could give rise to any civil or criminal liability under applicable law; (y) any material that could infringe rights of privacy, publicity, copyrights or other intellectual property rights, except to the extent you have obtained the permission of the owner of these rights and the persons (or their parents or legal guardians, where applicable) who are shown in the material, if applicable; or (z) any material that promotes bigotry, racism, hatred or harm against any individual or group or that otherwise violates any of the HMS guidelines in effect from time to time; and
(ii) in addition to and not in limitation of the foregoing clause (i), you acknowledge and agree that HMS is not responsible for, and has no obligation to review, edit or comment on, the content of your Submissions, provided, however, HMS reserves the right in its discretion to (x) delete, disable access to, move or edit Submissions in its sole discretion for any reason or no reason, or (y) take any other action that HMS deems reasonably necessary or appropriate to prevent any misuse of HMS Tools and Services.
Further, in connection with your use of such advertising or other products or services, HMS may send you leads with personal information of individuals who fill out a “contact the agent” lead form on a property listing page, through various Homes Tools and Services, provided that you do not rent or sell this personal information to any third party or spam, harass or otherwise use such personal information in any illegal or unwanted manner or in a way that could or does reflect poorly on HMS.
3. SUBSCRIPTIONS; FEES.
(a) General. HMS Tools and Services are offered exclusively on a subscription basis, which such subscriptions may in certain circumstances be at no cost to you and may in other circumstances require payment from you. If you received HMS Tools and Services through a “distributor” or other third party and are not paying subscription fees directly to HMS, your subscription is subject to the terms of your affiliation/agreement with such distributor or other third party and; should your affiliation with the Distributor end, your subscription to the HMS Tools and Services will immediately expire. If you received HMS Tools and Services directly from HMS, your subscription is effective for the period covered by your initial subscription fee and continues upon your payment of the required applicable subscription fee (eg, monthly, annual, etc.) or until otherwise terminated in accordance with this Agreement.
(b) Subscription Data. In connection with your subscriptions to any HMS Tools and Services, you shall (i) provide accurate, current and complete information as may be prompted by any subscription forms when you subscribe to the HMS Tools and Services (“Subscription Data”); (ii) maintain and promptly update the Subscription Data, and other account-related information you provide to HMS, to ensure that such information remains accurate, current and complete; and (iii) accept all risks of unauthorized access to the Subscription Data and other information you provide to HMS.
(c) Accounts. When you subscribe to HMS Tools and Services, you create an account and are provided a password, whereupon you may need to provide HMS with information such as your name, email address, phone number and mailing address, all of which will be subject to our Privacy Policy (currently located at http://www.dominionenterprises.com/main/do/Privacy_Policy), as the same may be amended or supplemented from time to time; provided, you are and shall be solely responsible to, and shall, maintain the confidentiality and security of your password and other account information. Further, you shall not use the account, username or password of another HMS user at any time and shall notify HMS immediately if you suspect any unauthorized use of your account or access to your password. To enable HMS to provide you with applicable HMS Tools and Services that are responsive to your needs, you acknowledge and that HMS representatives or other parties will have access to your account and usage information and may review and use such account and usage information in such manner as HMS determines appropriate in its discretion, subject to applicable law, including without limitation as reasonably needed to investigate complaints, to provide the HMS Tools and Services or for other purposes contemplated in our Privacy Policy.
(d) Payment. To the extent any subscription fees are payable for HMS Tools and Services, such fees shall be (i) set forth in the Order Form you complete when signing up for the applicable HMS Tools and Services and (ii) automatically be charged, at the then current rate, to the credit card or other billing source authorized by you until the subscription is cancelled or terminated in accordance with this Agreement. All such subscription fees shall be payable in advance in U.S. Dollars, and you must provide HMS with a valid credit card or other payment method approved by HMS and authorize HMS to automatically charge the card for such fees in advance until your subscription is cancelled or otherwise terminated. In the event that any subscription fees are not paid on a timely basis, including without limitation due to an invalid or expired credit card number, HMS may, in addition to any other available remedies, suspend or terminate your right to all applicable HMS Tools and Services. Subscription Fees are exclusive of applicable taxes, and you are responsible for paying all taxes, government charges and similar levies or amounts payable in connection with your use of the HMS Tools and Services.
4. TERM AND TERMINATION OF AGREEMENT. This Agreement and your license/subscription to use the applicable HMS Tools and Services shall continue in effect unless and until terminated in accordance with the terms hereof. More specifically, subscriptions to HMS Tools and Services shall automatically renew for an additional terms equal to the length of the original subscription term unless you request cancellation at least thirty (30) days prior to the renewal date. If you violate any of these HMS Terms, HMS may, in addition to any other rights and remedies it may have, immediately terminate your subscription to the HMS Service without any notice or other action by HMS; further, while you will no longer be billed following any such termination, any amounts that you may have prepaid for use of the HMS Tools and Services will not be refunded. HMS may, in its sole discretion, terminate this Agreement and your license/subscription to use the applicable HMS Tools and Services without cause at any time; provided, if HMS discontinues the applicable HMS Tools and Services or cancels your subscription thereto for any reason other than your breach or violation of this Agreement, HMS will either, at its sole option, continue to provide such HMS Tools and Services for the remainder of your subscription term (up to a maximum of thirty (30) days) or refund you a prorated portion of the any prepaid subscription fees.
5. OWNERSHIP. You acknowledge and agree that, as between you and HMS, HMS is the sole owner of all right, title and interest in and to the HMS Tools and Services (other than your Submissions or other content you personally include therein), including in each case all intellectual property rights therein. Except for the limited licenses expressly granted hereunder, (a) HMS reserves all right, title and interest in and to the HMS Tools and Services, including any intellectual property rights therein, and (b) neither this Agreement nor HMS’s performance of its obligations hereunder shall be construed as conferring upon you any right or license in or to the HMS Tools and Services, by implication, estoppel or otherwise. Upon termination or expiration of this Agreement for any reason, your access to all HMS Tools and Services shall immediately terminate. You may not remove, alter or conceal any HMS copyright, trademark or other notices appearing on the HMS Tools and Services or any print-outs, data or other material you generate via or in connection with your use of any HMS Tools and Services without HMS prior written permission.
6. LIMITED WARRANTY. HMS WARRANTS THAT ANY SOFTWARE INCLUDED WITHIN THE HMS TOOLS AND SERVICES WILL PERFORM SUBSTANTIALLY IN ACCORDANCE WITH HMS’ WRITTEN SPECIFICATIONS FOR A PERIOD OF NINETY (90) DAYS FROM THE DATE OF YOUR FIRST ACCESS TO SUCH SOFTWARE. THE FOREGOING WARRANTY IS VOID IF FAILURE OF THE SOFTWARE RESULTS FROM ACCIDENT, ABUSE OR MISAPPLICATION. HMS’ SOLE OBLIGATION AND YOUR EXCLUSIVE REMEDY UNDER THIS WARRANTY, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, SHALL BE, AT HMS’ OPTION, EITHER TO (i) RETURN THE FEES PAID FOR THE SOFTWARE OR TO REPAIR, OR (ii) REPLACE THE SOFTWARE THAT FAILS TO MEET HMS’ LIMITED WARRANTY, PROVIDED, ANY REPAIRED, CORRECTED OR REPLACED SOFTWARE SHALL BE COVERED BY THIS LIMITED WARRANTY FOR THE PERIOD REMAINING UNDER THE WARRANTY THAT COVERED THE ORIGINAL SOFTWARE, OR IF LONGER, FOR THIRTY (30) DAYS AFTER PROVIDING THE REPAIRED, CORRECTED OR REPLACED SOFTWARE.
7. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, THE SOFTWARE AND ANY AND ALL OTHER HMS TOOLS AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HMS AND ITS SUBSIDIARIES, AFFILIATES, SUPPLIERS AND DISTRIBUTORS DISCLAIM ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, REGARDING ALL HMS TOOLS AND SERVICES, INCLUDING REPRESENTATIONS AND WARRANTIES REGARDING FITNESS FOR A PARTICULAR PURPOSE, QUALITY, MERCHANTABILITY, TITLE OR NONINFRINGEMENT. HMS DOES NOT WARRANT THAT THE FUNCTIONS OF OR DATA CONTAINED IN THE HMS TOOLS AND SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE HMS TOOLS AND SERVICES WILL BE UNINTERRUPTED OR FREE OF ERRORS OR PROGRAM LIMITATIONS, AND YOU ASSUME SOLE RESPONSIBILITY FOR SELECTION OF THE HMS TOOLS AND SERVICES TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE INSTALLATION OF, USE OF AND RESULTS OBTAINED FROM THE HMS TOOLS AND SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMERS, (i) HMS DOES NOT HAVE ANY CONTROL OVER YOUR USE OF THE HMS TOOLS AND SERVICES AND DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS THAT MAY BE OBTAINED BY ITS USE, (ii) HMS DOES NOT REPRESENT, WARRANT, OR GUARANTEE THE ACCURACY AND TIMELINESS OF THE DATA OR CONTENT CONTAINED IN OR DERIVED FROM THE HMS TOOLS AND SERVICES, AND (iii) VARIOUS INFORMATION IN THE HMS TOOLS AND SERVICES CHANGES CONSTANTLY, AND THE DATA AND CONTENT IN THE HMS TOOLS AND SERVICES MAY NOT BE CURRENT OR ACCURATE (BY WAY OF EXAMPLE, BUT NOT LIMITATION, CRIME STATISTICS THAT MAY BE PROVIDED VIA THE HMS TOOLS AND SERVICES HAVE BEEN COLLECTED FROM A NUMBER OF SOURCES, INCLUDING GOVERNMENTAL AGENCIES, AND THESE STATISTICS ARE HISTORICAL ONLY AND ARE NOT PREDICTIVE OF FUTURE CRIME IN ANY AREA). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
8. INDEMNIFICATION. You shall indemnify and hold harmless HMS and HMS’s parent, subsidiaries and affiliates, and their respective directors, officers and employees, from and against any and all third party claims, and all costs, losses, damages, judgments and expenses (including without limitation reasonable attorneys’ fees) incurred or suffered in connection with such third party claims, that arise out of, result from or are related to (i) your actual or alleged breach or violation of this Agreement, including, without limitation, a breach of your representations and warranties herein, (ii) any activity related to access to or use of the HMS Tools and Services by you or any person accessing the HMS Tools and Services through you, including without limitation your use of any Software or any Software Content associated therewith, and/or (iii) any Submission you provide, including without limitation any claim that a Submission infringes or violates a third party’s intellectual property or other rights.
9. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL HMS OR ITS SUBSIDIARIES, AFFILIATES, SUPPLIERS AND DISTRIBUTORS BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OR DESTRUCTION OF DATA, COSTS OF RE-CREATING LOST DATA, LOSS OF PROFITS OR BUSINESS INFORMATION OR BUSINESS INTERRUPTION OR OTHER SIMILAR LOSS, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER HMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN ADDITION, THE MAXIMUM AGGREGATE LIABILITY OF HMS TO YOU FOR DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE GREATER OF (i) THE AMOUNT PAID BY YOU FOR HMS TOOLS AND SERVICES HEREUNDER OR (ii) ONE THOUSAND DOLLARS ($1,000). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN HMS AND YOU, AND HMS WOULD NOT BE ABLE TO PROVIDE THE HMS TOOLS AND SERVICES TO YOU WITHOUT SUCH LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION AND/OR EXCLUSIONS OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
10. AMENDMENT. HMS may, in its sole discretion, change, modify, add or remove portions of this Agreement or the HMS Tools and Services at any time. HMS may notify you of any such changes by posting notice of such changes on its website located at www.DominionHomesMedia.com or sending notice via e-mail, postal mail or other means. Your continued use of any HMS Tools and Services (including any Software included therein) following notice of such change shall be deemed to be your acceptance of any such modification. If you do not agree to any such modification, you must immediately stop using the all applicable HMS Tools and Services.
11. EXPORT. ANY SOFTWARE INCLUDED IN THE HMS TOOLS AND SERVICES AND ANY UNDERLYING TECHNOLOGY MAY NOT BE EXPORTED OUTSIDE THE UNITED STATES IN A MANNER THAT IS PROHIBITED BY APPLICABLE EXPORT LAWS AND REGULATIONS, AND BY DOWNLOADING OR USING SUCH SOFTWARE OUTSIDE THE UNITED STATES OF AMERICA, YOU ASSUME RESPONSIBILITY FOR COMPLIANCE WITH THE FOREGOING.
12. FAIR HOUSING POLICY. The U.S. government and the states have adopted rules and regulations with the goal of achieving equal and fair housing for all (“Fair Housing Laws’). HMS actively supports this goal and directly and indirectly works to ensure that equal and fair housing is available for all regardless of race or color, national origin, religion, sex, familial status or disability. HMS expressly prohibits any use of the HMS Tools and Services or any of its other products or services by any person as a means to deprive another of equal and fair housing, whether or not in violation of Fair Housing Laws. Without limiting the generality of the foregoing, the information furnished in the HMS Tools and Services and in other HMS products and services may not be used or relied upon by any person in violation of Fair Housing Laws: (a) to refuse to make housing available to another person; (b) to refuse to negotiate for housing with another person; (c) to change the terms and conditions relating to available housing; (d) to direct any person to different housing; (e) to restrict the housing choices of any person, so as to perpetuate segregated housing patterns, or to discourage or obstruct housing choices in a community, neighborhood or development; (f) to make discriminatory statements; (g) to misrepresent the availability of housing; or (h) to discriminate in other real-estate related transactions, including mortgage lending, home loans, appraisals and insurance. Any victim of discrimination under Fair Housing Laws has the right of redress. It is illegal for anyone to interfere with anyone exercising a fair housing right. In order to determine the specific rights of a person in a particular situation, the nearest government office responsible for enforcing Fair Housing Laws should be contacted. A good place to start is the United States Department of Housing and Urban Development at http://www.hud.gov. Rights of redress may also be available under other federal and state laws. HMS strongly encourages any victim of discrimination to take action as soon as possible.
13. CHOICE OF LAW; JURISDICTION; NO JURY TRIAL. This Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Virginia as applied to contracts performed therein but without reference to its choice of law rules. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed. Any dispute arising out of this Agreement that cannot be resolved by the parties may be resolved in the state or federal courts located in Norfolk, Virginia, and each party hereby irrevocably consents to personal jurisdiction and venue in such courts. EACH OF YOU AND HMS HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR ANY ACTS OR OMISSIONS OF ANY OF THE PARTIES HERETO IN CONNECTION THEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY.
14. MISCELLANEOUS. The relationship of you and HMS established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to place the parties in the relationship of principal and agent, partners, joint venturers, co owners or otherwise as participants in a joint or common undertaking. HMS shall not be liable to you for any default or delay in the performance of any of its obligations under this Agreement if the default or delay is caused, directly or indirectly, by fire, flood, earthquake or other acts of God; labor disputes, strikes or lockouts; wars, rebellions or revolutions, riots or civil disorders; domestic or international terrorism, accidents or unavoidable casualties or other catastrophes; interruptions in the Internet or communications facilities, or delays in transit or communications; supply shortages or any failure by a third party to perform any commitment to the party; or any other occurrences, whether similar or dissimilar to those enumerated herein, that are beyond HMS’s reasonable control. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, then the remaining provisions shall nevertheless remain in full force and effect. The failure of a party to enforce at any time any provision of this Agreement shall not be deemed to be a waiver of the right of such party thereafter to enforce any such provision(s). This Agreement is not intended to benefit any third party and the parties do not intend to (and do not) create any third party beneficiary rights hereunder. This Agreement constitutes the entire, final, complete and exclusive agreement between the parties with respect to the subject matter hereof and supersedes all previous or contemporaneous agreements or representations, oral or written, relating to the subject matter of this Agreement.

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