Terms of service
Last updated: September 12, 2018
These Terms of Service (“Terms”) constitute a legally binding agreement between ClipCall Inc. (“we”, “us”, “our”, “Home365” or “ClipCall“) and users of our Services (defined below) (“User” or “you“). These Terms govern your use of the ClipCall mobile application (“App”), the website located at https://www.home365.co (the “Site”), and services offered via or in connection with the App and/or the Site (collectively the “Services”). The Services are provided to property managers (“Property Managers”) who have signed up for Home365’s Service Program (“Program”), their tenants (each a “Tenant”) and/or service providers (“Service Providers”) who have agreed to provide services in connection with the Program. Certain provisions of these Terms apply only to Property Managers or to Tenants or to Service Providers, respectively, as described more fully below. By using or accessing the Services or downloading the App, you represent that (1) you have read, understand and agree to be bound by these Terms, (2) you are at least 18 years old and of legal age to form a binding contract, and (3) you have the authority to enter into these Terms personally (or on behalf of the entity that you have named as the user, and to bind that entity to these Terms).
IF YOU DO NOT AGREE TO THE TERMS IN THEIR ENTIRETY, YOU MUST CEASE USING THE SERVICES AT ONCE, AND YOU MAY NOT DOWNLOAD, COPY, ACCESS OR INSTALL THE APP OR ANY PART THEREOF, AND MAY NOT USE IT IN ANY MANNER WHATSOEVER
PLEASE BE AWARE THAT SECTION 16 OF THESE TERMS, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THESE TERMS. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THESE TERMS.
These Terms are subject to occasional revision. When changes are made, Home365 will make a new copy of these Terms available on the Site and within the App. We will also update the “Last Updated” date at the top of These Terms. If we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes to the Terms within the App or on our website. We will notify you of any changes to our Terms by posting the new Terms You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our App or website. These changes will be effective immediately for new users of our Services. Continued use of our Services following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the terms and conditions of such changes. PLEASE REGULARLY CHECK OUR TERMS TO VIEW THE THEN-CURRENT TERMS.
1. AGE LIMITATION
THE SERVICES ARE NOT INTENDED FOR INDIVIDUALS UNDER THE AGE OF 18. IF YOU ARE UNDER 18, YOU MAY NOT USE THE SERVICES.
2. The Services.
2.1. The Services are designed to allow Property Managers and Tenants to submit requests for repairs and maintenance within their building(s) (each a “Building”) that are covered by the Program (“Service Request”). Service Requests approved by the Project Manager (each an “Approved Service Request”) will be submitted to Service Providers who will respond to such Service Requests (“Service Request Response”). All Service Request Responses must be submitted via the App. Through the App, each User can (i) record a video and/or take photos describing the Service Request Responses, (ii) track the status of submitted Service Requests, including whether Services Requests are completed, and (iv) chat with Property Managers and/or Tenants via text message and voice and video calls. Home365’s responsibilities are limited to providing the Services as summarized above, and more fully described in the balance of these Terms, and providing and managing the Program, as described in the Home365 Service agreements with either Service Provider Agreement or Property Manager or such other written agreement between such party and Home365 governing such participation in the Program (the “Program Agreement”). The applicable Program Agreement, together with these Terms, govern the use of the Services between such party and Home365. In the event of any conflict between the Program Agreement and these Terms, the applicable Program Agreement takes precedence.
2.2. Property Managers will also have access to the Site, via which they can (i) track Service Requests across all Buildings, (ii) view, approve or reject Service Requests submitted by Tenants, and (iii) view communications between (including text messages, calls, photos and videos) and communicate with, Tenants and Service Providers.
2.3 By participating as a Property Manager or as a Tenant you represent and warrant that the Service Requests you submit are true and accurate. You are solely responsible for the accuracy and completeness of a Service Request you submit and for all content contained in a Service Request. You acknowledge and agree that neither Home365 nor the Service Provider has any obligation to respond to Service Requests not covered by the Program.
2.4. By participating as a Service Provider, you represent and warrant: (i) that the information you submit to us or a Property Manager and/or Tenant or otherwise post on the Services and that you will promptly update it promptly to maintain their accuracy and completeness for so long as you maintain an Account with us; (ii) that you will not solicit Property Managers and/or Tenants to pay for your services outside of the Services or otherwise circumvent any fees that are paid or would be payable to Home365, to the extent applicable, and (iii) that you understand that any work performed for Property Managers and/or Tenants to whom you are introduced through the Services is subject to these Terms. You agree that any breach of this Section 2.2, may result in your immediate removal as a Service Provider from the App by Home365, in our sole discretion, as well as a penalty of $2,000, which you agree is not punitive damages but a reasonable estimation of the liquidated damages caused by such breach. You further agree that (A) unless you obtain the consent of any Property Manager and/or Tenant, you will use the personal information of the Property Manager and/or Tenant provided to you by Home365 in connection with the Services only to communicate with and provide your services to the Property Manager and/or Tenant, and for no other purpose, (B) all communications with Property Managers and/or Tenants will be conducted via the App, and (C) you will not turn off or disable the ability of the App to provide Property Managers and/or Tenant send Home365 with information about your location, which you acknowledge is a critical element of the Services.
2.5 You, the Service Provider, acknowledges that Home365 publishes business scores and ratings with respect to Service Providers, which may include reviews of you.
2.6. Consent to Receive Service Provider Calls and Messages. By submitting a Service Request through the App, you, the Property Manager and/or the Tenant agrees that your Service Request, including all submitted data, video and content, will be sent to Certain Service Providers identified by us. You also acknowledge and agree that you may receive telephone calls or text messages from the applicable Service Providers to the telephone number you provide to discuss your fulfillment of their Service Request (“Requester Calls“) and that such calls may be placed using an automatic telephone dialing system. Provider Calls might be connected through Home365’s automated system.
2.7. Service Provider’s Consent to Receive Calls and Messages. By responding to a Service Request through the App, you agree that your Service Request Response, including all submitted data, video and content, will be sent to the applicable Property Managers and/or Tenants. You also acknowledge and agree that you may receive telephone calls or text messages from the applicable Property Managers and/or Tenants to the telephone number you provide to discuss your fulfillment of their Service Request (“Requester Calls“) and that such calls may be placed using an automatic telephone dialing system. Requestor Calls might be connected through Home365’s automated system.
2.8. BY SUBMITTING A SERVICE REQUEST, YOU EXPLICITLY CONSENT TO RECEIVE EACH SERVICE PROVIDER CALL THAT YOU RECEIVE IN CONNECTION WITH THE SUBMISSION OF SUCH SERVICE REQUEST. IF YOU DO NOT CONSENT TO RECEIVING SUCH CALLS, DO NOT SUBMIT SERVICE REQUESTS VIA THE APP.
2.9. We do not charge a fee for the calls and/or videos (“Calls”) made via the App; however, depending on your phone plan, your mobile carrier may charge you for each Call placed or received via the App, which uses the standard phone and carrier functionality of your mobile device. We assume no responsibility for charges incurred by you using the Call functionality of the Services. The Call functionality of the Services may not be available in all areas at all times and we have no liability for any such transmission delay or failure. The Call functionality may not work in the event of product, software, coverage, or other changes made by your wireless carrier or changes you make to your mobile device. You must provide your own wireless device, subscribe to a wireless service on a participating mobile carrier, and be able to receive Calls using that wireless device and your carrier’s service.
2.10. You acknowledge and agree that Home365 publishes business scores and ratings with respect to Service Providers, which may include your reviews.
2.11. You acknowledge and agree that the Service Provider or Requestor Calls and any other Calls or communications placed or received via the App may be recorded and stored by us, and you also acknowledge that you, the Property Manager, and all Users will be able to access these recordings through the App, Site, or otherwise. This function is essential to the provision of the Services and may not be disabled.
2.12. BY PLACING OR ANSWERING A CALL, CHAT OR MESSAGE THROUGH THE APP, YOU EXPLICITLY CONSENT TO HOME365 RECORDING AND STORING SUCH PHONE CALL FOR THE SOLE PURPOSE OF PROVIDING THE SERVICES. IF YOU DO NOT CONSENT TO SUCH RECORDING, DO NOT PLACE OR ANSWER ANY CALL THROUGH THE APP.
2.13. The video available through the Service Request will be available to the relevant Tenant, Property Manager and Service Provider through the App Site or otherwise. If you wish to delete the video, please contact Home365 at email@example.com. Please note, however that once a Service Request is accepted, you may not delete the video since it is part of the record and critical to any dispute arising out of the Accepted Service Request.
2.14. You must provide all equipment and software necessary to connect to the App and/or the Site, including a mobile device that is suitable to connect with and use the App. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the App.
3. Disclaimers; Release.
3.1. Limited Identity Verification. You the Service Provider authorize us, directly or through third parties, to make any inquiries we deem appropriate to help verify or check your identity and of any of your employees or prevent fraud. This may include asking you to provide a form of government identification (e.g. driver’s license or passport or tax ID number), your date of birth, and other information requiring you to take steps to confirm ownership of your email address (as defined below); or attempting to screen your information against third party databases. Nevertheless, you acknowledge that Home365 is not required to attempt to confirm any particular User’s purported identity and does not warrant that our efforts will be successful if we perform any such verification. We do not endorse any persons who use or register for the Services. You are finally responsible for determining the identity and suitability of others whom you may contact or who may contact you by means of the Services. You agree to exercise caution and good judgment in all interactions with other Users. Home365 encourages you to communicate directly with others through the tools available via the Services and to conduct your own investigation of the other Users with whom you interact. You may also wish to consider using a third-party service that provides additional User verification.
3.2. RELEASE. Home365 makes no warranties regarding Users or the Services, or other content made available through the Services, or the interactions (if any) between the Users within or outside of the Services, and each of the foregoing is provided by us “as is”. Your interactions with other Users are solely between you and such User and Home365 shall not be responsible for any loss or damage incurred as the result of any such interactions except as explicitly set forth in these Terms or your Program Agreement. The foregoing disclaimers shall not limit the more general disclaimers in these Terms. To the extent permitted under applicable laws, you hereby waive, release and forever discharge us (and our officers, employees, agents, successors, and assigns) from every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to: (i) any incorrect or inaccurate content posted on the Services, whether caused by us or any user of the Services, or by any of the equipment or programming associated with or utilized in the Services; (ii) the conduct, whether online or offline, of any User; (iii) any injury, loss or damage caused by another User, a Service Request or the response thereto, or content posted on the Services, whether online or offline; and (iv) any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, the Services’ Users’ communications.
3.3. Additional Service Provider Release. Without limiting the general release in Section 3.3, each Service Provider, on its own behalf and on behalf of every individual and corporate third party and subcontractor (collectively, “Subcontractors”) assisting in the performance of a Project, hereby waives, releases and forever discharges Home365 (and our officers, employees, agents, successors, and assigns) and the relevant Customer, from every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to Service Provider’s and the Subcontractors’ performance of the Project. Such release applies whether or not Service Provider is required to be licensed or insured in its performance of the Project (and whether or not the Service Provider has complied with the covenants in Section 2.4). Home365 reserves the right to require any Service Provider, as a condition to continued participation in the Services, to physically sign a separate waiver in form and substance satisfactory to Home365.
3.4. If you are a California resident, you hereby waive California Civil Code Section 1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by Home365 or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services.
4. Access to the App and Services.
4.1. Subject to these Terms, we hereby grant you a limited, non-transferable, non-sub-licensable, non-exclusive license to install the App and use the Site and Services subject to these Terms on any applicable devices that are under your control. The Service may not be used for any other purposes without our prior written consent. You may not use the Services if you are not the owner or approved administrator of the device on which you activated or accessed the Services. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store or Google Play Store (each an “App Store,” and references to the App Store include the corporate entity and its subsidiaries making the App Store available to you), you agree to comply with all applicable third party terms of the App Store (the “Usage Rules”) when using the App. To the extent these Terms provide for usage rules that conflict with the Usage Rules, the more restrictive term applies. With respect to any App accessed through or downloaded from the Apple App Store (an “App Store Sourced App”), you will only use the App Store Sourced App on an Apple-branded product that runs iOS (Apple’s proprietary operating system).
4.2. You acknowledge and agree that the availability of the App and the Services is dependent on the third party from whom you received the App license, e.g., the App Store. You acknowledge that the Terms are between you and Home365, and not with the App Store. Home365, not the App Store, is solely responsible for App and Services, the content thereof, maintenance, support services, and warranty therefore, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with App or Services. You agree to comply with, and your license to use the App is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the App or Services. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them. In addition to the general terms of this Section 4.2, the following applies to any App Store Sourced App:
A. In the event of any failure of the App Store Sourced App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced App to you (if any) and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced App. As between Home365 and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Home365.
B. You and Home365 acknowledge that, as between Home365 and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced App or your possession and use of the App Store Sourced App, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced App fails to conform to any applicable legal or regulatory requirement; (iii) claims arising under consumer protection or similar legislation, and (iv) claims that the App Store Sourced App or your possession and use of that App Store Sourced App infringes a third party’s intellectual property rights. Home365, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such claims to the extent required by these Terms.
C. Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced App.
5. User-Generated Content; Acceptable Use Policy.
5.1. “User Generated Content” means any and all information and content that a user submits to, or uses with, the Services, such as Service Requests, messages, etc. You are solely responsible for your User Generated Content. You assume all risks associated with use of your User Generated Content, including any reliance on its accuracy, completeness, or usefulness by others, or any disclosure of your User Generated Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Generated Content does not violate the Acceptable Use Policy (as defined below). You may not state or imply that your User Generated Content is in any way provided, sponsored, or endorsed by Home365. Because you alone are responsible for your User Generated Content you may expose yourself to liability if, for example, your User Generated Content violates the Acceptable Use Policy. While Home365 records interactions between Tenants and/or Property Managers and Service Providers via the App, the App is not intended as a storage service for User Generated Content, Home365 is not obligated to backup any User Generated Content, and User Generated Content may be deleted at any time. You are solely responsible for creating backup copies of your User Generated Content if you desire. Home365 has no responsibility or liability for the deletion or accuracy of any User Generated Content; the failure to store, transmit, or receive transmission of User Generated Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. You acknowledge that Home365 has no obligation to pre-screen User Generated Content, although Home365 may in its sole discretion pre-screen, refuse, or remove any User Generated Content at any time for any reason. PLEASE MAKE SURE THAT YOU ARE ALLOWED TO PROVIDE ALL YOUR USER GENERATED CONTENT WITHOUT VIOLATING ANY OBLIGATIONS YOU MIGHT HAVE TOWARDS A THIRD PARTY, INCLUDING ANY CONFIDENTIALITY OBLIGATIONS. PLEASE DO NOT PROVIDE ANY INFORMATION THAT YOU ARE NOT ALLOWED TO SHARE WITH OTHERS, INCLUDING BY CONTRACT OR LAW; PLEASE NOTE THAT ANY INFORMATION YOU PROVIDE MAY BE ACCESSIBLE BY OTHER USERS OF THE SERVICES.
5.2. The Services contains User Generated Content provided by other users or third parties. We do not approve, endorse or make any representations or warranties with respect to such content. You use all such content at your own risk.
5.3. The following is our “Acceptable Use Policy”: as a condition of use, you agree not to use the Services for any purpose that is prohibited by the Terms or by applicable law. You will not (and will not permit any third party) either (i) take any action or (ii) make available any User Generated Content on or through the Services that: (A) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (B) is unlawful, threatening, abusive, harassing, harmful, defamatory, trade libelous, deceptive, fraudulent, false, intentionally misleading, pornographic, invasive of another’s privacy, tortious, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual), vulgar, profane or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; (C) in violation of any laws, or obligations or restrictions imposed by any third party; (D) constitutes unauthorized or unsolicited advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (E) involves commercial activities and/or sales without Home365’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (F) impersonates any person or entity, including any employee or representative of Home365, or falsifies or misrepresents yourself or your affiliation with any person or entity; (G) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by the Terms; (H) harasses or interferes with another User’s use and enjoyment of the Services; (I) harvests, collects, gathers or assembles information or data regarding other Users, including e-mail addresses, without their consent; (J) displays, mirrors, or frames the Services; (K) attempts to engage in or engage in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Services, introducing viruses, worms, or any software intended to damage or alter a computer system or data, interfering with, disrupting, or creating an undue burden on servers or networks connected to the Services or violate the regulations, policies or procedures of such networks, attempting to gain unauthorized access to the Services, other computer systems or networks connected to or used together with the Services, through password mining or other means. The additional usage requirements in Section 10 below with respect to our payment services are also deemed part of the Acceptable Use Policy.
5.4. When you submit certain User Generated Content, you acknowledge and agree that such User Generated Content may be shared with other users, such as Service Providers, Tenants or Property Managers.
5.5. Home365 reserves the right (but has no obligation) to monitor or review the Services and User Generated Content at any time, investigate, and/or take appropriate action against you in our sole discretion (including removing or modifying your User Generated Content, terminating your Account, and/or reporting you to law enforcement authorities) if you violate the Acceptable Use Policy, any other provision of the Terms, any applicable law or otherwise create liability for us or any other person.
6. Using the Services.
6.1. In order to use the Services, you have to register for an account with us (“Account”). To create an Account, you must provide certain information about yourself as prompted by the registration process. You represent and warrant that: (i) all required registration information you submit is truthful and accurate; and (ii) you will maintain the accuracy of such information and promptly update such information upon any change. You may delete your Account at any time, for any reason, by contacting us at: Support@home365.co. You are responsible for maintaining the confidentiality of your Account login information and all activities that occur under your Account. You agree to immediately notify Home365 of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Home365 cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. You agree not to create an Account or use the Services if you have been previously removed by us or banned from any of the Services. Home365 may in its sole discretion suspend or terminate your Account and refuse any current or future use of the Services at any time for any reason. You agree that Home365 will not be liable for any suspension or termination of your Account or any refusal of any use of the Services.
6.2. The rights granted to you in these Terms are subject to the your compliance with the Acceptable Use Policy and the following restrictions: you shall not: (i) permit any third party to use the Services; (ii) circumvent, disable or otherwise interfere with security-related features of the Services; (iii) modify, create a derivative work of, reverse engineer, decompile or disassemble the Services except to the extent permitted by applicable law and, in such an event, provided you first give us written notice thereof; (iv) remove, deface, obscure, or alter the Services, or any third parties, copyright notices, trademarks, or other proprietary rights notices affixed to or provided as part of the Services; (v) use the Services for benchmarking purposes or to develop any software, product or service that is the same as, substantially similar to, or competitive with the Services; or (vi) otherwise use the Services in any unlawful manner or in breach of these Terms.
6.3. Unless otherwise indicated, any future release, update, or other addition to functionality of the Services shall be subject to these Terms.
6.4. Home365 makes no representation that the Services are appropriate for use in locations other than the United States.
6.5. We may update the Services periodically but you agree that we are under no obligation to do so or to provide technical support or maintenance. If we do update the Services, it will be done automatically without notice to you if these updates are designed to improve, enhance or fix bugs in the then current version of the Services. By accepting these Terms, you agree to such updates.
6.6. We make no representation or warranties that the Services are or will be available for use in any particular location or at specific times. We may change, modify, suspend, or discontinue any aspect of the Services (including the payment services) at any time and without prior notice. You agree that we will not be liable for any change, modification, suspension, or discontinuation of the Services or any part thereof.
6.7. Your access and use of the Services is at your own risk and responsibility and you shall comply with all laws, rules and regulations applicable to you.
6.8. As a part of the Services, you may have access to materials that are hosted by another party. You agree that it is impossible for Home365 to monitor such materials and that you access these materials at your own risk.
7. Intellectual Property Rights
7.1. The App and Services’ features, design and content, including without limitation, all text, documents, products, software, scripts, graphics, and services provided therein and the trademarks, service marks and logos contained therein (“Content and Marks”) are either owned by us or owned by third parties and licensed to us. The Content and Marks are protected under United States and foreign copyright and intellectual property laws and treaties. The Content and Marks are provided to you “AS IS” for your information and personal use only and are subject to the terms and conditions of these Terms. You agree not to use, copy, or distribute the Services or any part thereof other than as expressly permitted herein, or to interfere with security-related features of the Services. Nothing in these Terms constitutes a waiver of our intellectual property rights under any law. Our name, logo, and the product names associated with the Services belong to us or our licensors, and no right or license is granted to use them by implication, estoppel or otherwise. Neither these Terms nor your access to the Services transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited usage and access rights expressly set forth in Section 4.1. Home365 and its licensors reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.
7.2. You agree that submission of any ideas, suggestions, and/or proposals to us (“Feedback”) is at your own risk and that Home365 has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Home365 a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sub licensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner we deem appropriate, all Feedback, and to sublicense the foregoing rights. We will treat any Feedback you provide to us as non-confidential and non-proprietary. You agree that you will not include any information or ideas that you consider to be confidential or proprietary in Feedback.
7.3. Each User owns its own User Generated Content.
7.4. You hereby grant, and you represent and warrant that you have the right to grant, to Home365 an irrevocable, perpetual, nonexclusive, royalty-free, and fully paid, worldwide license to license, reproduce, distribute, modify, adapt, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Generated Content (in whole or in part), and to grant sublicenses of the foregoing, solely for the purposes of including your User Generated Content in the Services and operating and providing the App and Services. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Generated Content.
7.5. It is Home365’s policy to respect the legitimate rights of copyright and other intellectual property owners, and we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our Service who are repeat infringers of intellectual property rights, including copyrights. Should you believe that content available via the Services unlawfully infringes one or more of your copyrights and you wish to have the infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent: (a) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (b) identification of the copyrighted work claimed to have been infringed; (c) a description of the nature and exact location of the content that you claim to infringe your copyright, in sufficient detail so to allow Home365 to locate and identify such content; (d) your name, address, telephone number and email address; (e) a statement that you have a good faith belief that the use of the material in the manner described in your Complaint is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the Complaint is accurate, and that you are either the copyright owner or a person authorized to act on their behalf.
7.6. Home365’s Copyright Agent to receive DMCA takedown notices is firstname.lastname@example.org. You acknowledge that for us to be authorized to takedown any content, your DMCA takedown notice must comply with all the requirements of Section 7.5.
7.7. Please note that a copy of your complaint, including any contact information you provide (address, telephone number, and email address), will be forwarded to the person or entity whose content you claim infringes your right.
7.8. Pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
9. Incentive Program.
Home365 may from time to time offer incentive programs where users can earn certain rewards through the Services. Each such program is subject to the terms and conditions associated with the program as made available by Home365. Home365 has the right to terminate any program or to change, limit, modify, or cancel the program terms and conditions, at any time, with or without notice.
10. Third-Party Links & Ads.
The App, Site, or Services may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Such Third-Party Links & Ads are not under the control of Home365, and Home365 will not be responsible for any Third-Party Links & Ads. Home365 provides access to these Third-Party Links & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Ads.
11. Disclaimer of Warranties.
YOU ACKNOWLEDGE AND AGREE THAT THE APP AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE. HOME365 DOES NOT WARRANT THAT THE SERVICES WILL OPERATE ERROR-FREE, OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL CODE. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN ANY PROGRAM AGREEMENT, HOME365 DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING ANY SERVICES PROVIDED BY A SERVICE PROVIDER, ANY FAILURE TO PROVIDE SUCH SERVICES, OR THE CONDUCT OF ANY SERVICE PROVIDER OR OTHER USER WITH WHOM YOU INTERACT, AND THE FOREGOING ARE AT YOUR OWN RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM HOME365 OR THROUGH THE APP OR SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ACKNOWLEDGE THAT THE HOME365 IS NOT ABLE TO CONTROL OR SUPERVISE YOUR INTERACTIONS WITH OTHER USERS OF THE SERVICES AND YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR SUCH INTERACTIONS. HOME365 RESERVES THE RIGHT BUT HAS NO OBLIGATION BEYOND THAT SET FORTH IN THE PROJECT SUCCESS PLAN, TO (I) MONITOR ANY SUCH DISPUTE OR (II) UPON YOUR REQUEST, INTERVENE IN SUCH DISPUTE FOR THE PURPOSE OF RESOLVING THE DISPUTE, PROVIDED THAT HOME365 WILL NOT BE RESPONSIBLE FOR ANY DAMAGES WHATSOEVER ARISING FROM ANY MONITORING OR INTERVENTION ACTIVITIES THAT WE PERFORM.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HOME365 EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY USER.
12. Limitation of Liability.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF THE USE OF OUR SERVICES, REMAINS WITH YOU. IF YOU PERMIT OR AUTHORIZE ANOTHER PERSON TO USE YOUR HOME365 ACCOUNT IN ANY WAY, YOU ARE RESPONSIBLE FOR THE ACTIONS TAKEN BY THAT PERSON.
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL HOME365 OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICE, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT HOME365 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, ON ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (I) ONE HUNDRED US DOLLARS (U.S. $1000), AND (II) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
THE FOREGOING LIMITATIONS ON LIABILITY SHALL NOT APPLY TO LIABILITY OF HOME365 FOR (A) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY ITS FRAUD OR FRAUDULENT MISREPRESENTATION.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN HOME365 AND YOU.
You agree to indemnify and hold Home365, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (“Home365 Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (i) your User Generated Content; (ii) your use of, or inability to use, the App, Site, or Services; (iii) your violation of these Terms; (iv) your violation of any rights of another party, including any Users; or (v) your violation of any applicable laws, rules or regulations. Home365 reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Home365 in asserting any available defenses. This provision does not require you to indemnify any of the Home365 Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, these Terms or your access to the Services.
14. Term and Termination.
These Terms shall become effective on the earliest to occur on the date that: (i) you download or install the App; or (ii) you first access or use the Services. These Terms shall continue in full effect until terminated, as set forth herein. You may terminate your relationship with us at any time by uninstalling the App, terminating your Account by contacting us at: email@example.com, and discontinuing your use of the Services. We may suspend or terminate your rights to use the Services (including your Account) at any time for any reason at our sole discretion, including for any use of the Services in violation of these Terms. Upon termination of these Terms: (a) the license granted to you hereunder will automatically expire; (b) your Account and right to access and use the Services will terminate immediately you will cease any and all use of the Services and will uninstall the App from all devices on which you downloaded or installed it. You understand that any termination of your Account may involve deletion of any data associated with your Account from our live databases. Home365 will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion of such data. Even after your rights under these Terms are terminated, all provisions of these Terms which by their nature should survive, will survive, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
15. Third Party Software and Licenses
Portions of the Services may include software that we license from third parties (“Third Party Software“), which may include open source software. Third Party Software is subject to the terms and conditions imposed by the licensors of that Third Party Software (“Third Party Terms“). You agree that your use of open source Third Party Software is subject to and governed by the related Third Party Terms. To the extent of any conflict between any Third Party Terms and the terms of these Terms, the Third Party Terms shall prevail in connection with the related Third Party Software. Notwithstanding anything to the contrary herein, we do not make any warranty with respect to Third Party Software.
16. Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Company and limits the manner in which you can seek relief from us.
16.1. Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the App, Site, or Services, or to any aspect of your relationship with Home365, will be resolved by binding arbitration, rather than in court, except that (i) you may assert claims in small claims court if your claims qualify; and (i) you or Home365 may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the effective date of these Terms or any prior version of these Terms.
16.2. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent VCORP SERVICES located at 25 Robert Pitt Drive, Suite 204 Monsey, NY 10952. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at www.jamsadr.com all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at www.jamsadr.com JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Home365 will pay them for you. In addition, Home365 will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Home365 will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
16.3. Waiver of Jury Trial. YOU AND HOME365 HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Home365 are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 16.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
16.4. Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts located in San Francisco, California. All other claims shall be arbitrated.
16.5 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt-out to the following address: 440 N Wolfe Rd. Sunnyvale, CA 94085 or to , within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Account username (if any), the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
16.6. Severability. Except as provided in subsection 16.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
16.7. Survival. This Arbitration Agreement will survive the termination of your relationship with Home365.
16.8 Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if Home365 makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30 days of such change becoming effective by writing Home365 at the following address: 824 San Antonio Rd. Palo Alto, CA 94303.
17. Export Controls
The Services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from Home365, or any products utilizing such data, in violation of the United States export laws or regulations.
Home365 is located at the address set forth below. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
19. Electronic Communications
The communications between you and Home365 use electronic means, whether you use the Services or send us emails, or whether Home365 posts notices on the App or Services or communicates with you via email. For contractual purposes, you (i) consent to receive communications from Home365 in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Home365 provides to you electronically satisfy any legal requirement that such communications would satisfy if it were being in a hardcopy writing. The foregoing does not affect your non-waivable rights.
The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. If any provision of these Terms is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. Failure of Home365 to enforce any rights or to take action against you in the event of any breach hereunder shall not be deemed a waiver of such rights or of subsequent actions in the event of future breaches. These Terms and any right granted herein may not be assigned by you without the prior written consent of Home365. The terms and conditions set forth in these Terms shall insure to the benefit of and be binding upon successors and permitted assignees. Home365 shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
21. Governing Law and Venue
These Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Home365 agree that all claims and disputes arising out of or relating to these Terms will be litigated exclusively in the state or federal courts located in San Francisco, California.
22. Additional Provisions for Service Providers
Service Providers who place telephone or mobile calls regarding Service Requests (“Service Request Calls”) are obligated to comply with the applicable laws, rules and regulations regarding such Service Request Calls, including but not limited to the Telephone Consumer Protection Act of 1991 (“TCPA”) (47 U.S.C. § 227 and the Telemarketing Sales Rule (16 C.F.R. Part 310), which will apply to all Requestor Calls made via the App. Without limiting the foregoing, Service Providers shall not: (i) initiate a Service Provider Call except in response to a Service Request; (ii) use scare tactics, false, misleading or deceptive tactics to upsell to the Project Managers and/or Tenants your services, products and goods such as additional repairs or unneeded services; (iii) falsely represent to Project Managers and/or Tenants that they need the service or product when in fact they do not; (iv) misrepresent yourself, the products or the services you are selling or present to be endorsed by a company you are not or that are sponsorships, endorsements or members that are false; (v) use misleading solicitation methods to get the Project Managers and/or Tenants to purchase goods or services or misrepresent the martial aspects of the performance, efficacy or nature of the goods and services the Project Manager and/or Tenant is offered; or (vi) market, sell or offer any additional products, services or goods before providing the applicable assistance to the user with regards to the Service Provider Request. In addition to the above, Service Providers must disclose to the Project Manager and/or Tenant that the Service Request Calls are sales calls. Service Providers must also: (i) ensure that all required disclosures are made truthfully; (ii) disclose any and all material information to the Project Manager and/or Tenant before he or she pays for the services. “Material information” shall mean any information that would likely affect the users decision whether or not to purchase the goods and services; and (iii) obtain express verifiable authorization if and when a payment is made.
Where Home365 requires that you provide an e-mail address, you are responsible for providing Home365 with your most current e-mail address. In the event that the last e-mail address you provided to Home365 is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Home365’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Home365 at the following address: 824 San Antonio Rd. Palo Alto, CA 94303. Such notice shall be deemed given when received by Home365 by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
24. Contact Us
If you have any questions or concerns regarding these Terms, please contact us at: 824 San Antonio Rd. Palo Alto, CA 94303 or to firstname.lastname@example.org.