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Please read these terms and conditions carefully, they contain important information about your rights and obligations in accessing and using www.HomeGuideColorado.com ("our website"). By checking the box you confirm that you have read and understand the terms and conditions and agree to be legally bound by these terms and conditions as they are amended and posted on our website from time to time.
1.1 Our website is a place for you to select and order the Service.
1.2 You must be over eighteen (18) years of age to purchase the Service, following the purchase procedure displayed in "Order/Pricing" and described below in Clause 2.
2.1 Prices charged are as shown on the website in US Dollars. We may change the price of the Service before you place an order for a subscription or renew a subscription.
2.2 Before your order can be accepted we must receive payment in full.
2.3 When ordering via the website, you must pay by credit or debit card at the time of the order. We accept AMEX, MasterCard, Visa and Visa Debit.
2.4 The Service is supplied to you via an account (a "Service Account") in consideration of the payment of the price defined in Clause 2.1.
2.5 On payment of the price upon initial subscription or on any renewal, HomeGuideColorado will create and maintain a Service Account in your name by which you will be permitted to access the Service in accordance with these terms and conditions. For the purposes of this clause and Clause 2.3 payment shall only be deemed to have occurred once we are in receipt of cleared funds.
2.6 The Service Account is accessed by an individual password that will be sent to you on receipt of payment of the price and in accordance with these terms and conditions. [The individual password shall not be changed by HomeGuideColorado in respect of any renewed subscriptions.]
2.7 You may only create or maintain one Service Account and you agree that the operation of your Service Account is exclusive to you. Furthermore you agree that only you will receive the Services via your Service Account.
2.8 By allowing others to use your Service Account and/or password you will be in breach of these terms and conditions and HomeGuideColorado will be entitled to terminate this Agreement immediately in accordance with Clause 13 and Clause 14.
2.9 When ordering by mail or by fax, you can pay by debit or credit card and we will process your order once we have received your payment. Please print and complete the order form available from our website and send it to us with your check or money order for the subscription amount, or fax it to us with your debit or credit card details. Please make check payable to HomeGuideColorado.
2.10 We are entitled to refuse any order placed by you. If your order is accepted, we will send your password to you by online electronic means to the email address you have given us on ordering. Your password will be sent to you within thirty (30) minutes from acceptance of your order if placed by email or forty eight (48) hours from accepting your order if you place an order by the other available methods.
2.11 Delivery times of your password stated are estimates and may vary due to exceptional or unforeseen circumstances.
2.12 In the unlikely event that you have not received your password by email within thirty (30) minutes from acceptance of your order by email, or within forty eight (48) hours of acceptance of your order by any of the alternative methods, or if you have any complaints, please contact us via firstname.lastname@example.org or by post to 750 W. Eisenhower Blvd. Loveland, CO 80537
2.13 You undertake that all details provided by you to us for the purpose of purchasing or renewing the Service will be correct at the date of purchase or renewal. We reserve the right to obtain validation of your credit or debit card details before providing the Service to you.
2.14 HomeGuideColorado uses a secure server (certified to the required standard for encrypted credit card transactions) to protect your credit and debit card information and assist your purchase.
2.15 However, any losses incurred or sustained by you when transmitting information by means of email or other Internet link shall be borne solely and exclusively by you and in no event shall any such losses in whole or in part be borne by HomeGuideColorado.
2.16 When using a public computer, you must sign out when you have finished using our website.
2.17 Orders may also be placed by fax or mail.
2.18 Subject to your approval, we shall automatically renew your subscription to the Service at the end of the current subscription term at the price set out on your order or as notified to you, using the credit or debit card details supplied by you for your initial order in accordance with Clause 3 below.
2.19 As soon as your initial or renewed subscription commences we shall take payment from you, using the payment details supplied by you in accordance with Clause 2.14. In the event that, for whatever reason, it is not possible for payment to be made when requested by us, then we shall inform you immediately. You shall have seven (7) days from the time on which the notification of the corrected payment is sent to you by us in which to provide us with cleared funds and correct payment details during which time it will be possible for you to use the Services. If we do not receive cleared funds and your payment details within that seven (7) day period then your access to the Services will be denied until such payment is made in full and you provide us with proper payment details.
3.1 If you are a new or existing monthly or annual subscriber to the Service then you have the option to have your access to the Service renewed automatically with all available updates on each due date for payment ("Automatic Subscription Renewal"). Automatic Subscription Renewal is not available if your subscription is for any period of less than a month at a time.
3.2 The option described in Clause 3.1 above shall be exercisable by you when you first subscribe (if you are a new subscriber), or when you come to update or otherwise change your subscription (if you are an existing subscriber).
3.3 You can refuse to exercise the option by removing the tick [uninstalling the automatic acceptance] in the box indicated on the Paying for Your Order page that is part of the HomeGuideColorado subscription sign up.
4.1 You are only permitted to use this service personally and agree to do so without the use of any automated means including but not limited to the use of robotic tools.
4.2 HomeGuideColorado reserves the right to limit the number of searches you may make on the Service (the "Usage Limit"). The Usage Limit will be set at HomeGuideColorado sole discretion and may change from time to time.
4.3 If HomeGuideColorado makes any alteration to your Usage Limit you will be informed by e-mail within forty eight (48) hours of the alteration.
All Services are covered by our five (5) day money-back guarantee. If, for any reason, you are not completely satisfied please notify us within five (5) days from receiving your login details for a full refund.
6.1 You may cancel your subscription for any Service you have purchased from us, for any reason (including if you simply change your mind) by giving us notice that you no longer wish to subscribe to the Service within 5 days of your receipt of your login details at any time during your initial subscription. Such notice may be given by mail, fax, or email with reference to "HomeGuideColorado Post".
6.2 You will then be entitled to a full refund from us which shall be paid as soon as possible, but in any event within 30 days from receipt by us of the notice referred to in Clause 6.1 above.
6.3 You will not be entitled to a refund should you wish to cancel the subscription after the time limit specified in Clause 6.1.
6.4 If you have agreed to Automatic Subscription Renewal then if you wish to cancel your subscription you must provide us with notification, either by sending a letter, fax or email to our customer support service with reference to "HomeGuideColorado Post", or through the webpage &qout;Cancelling Your Subscription".
6.5 If you are on Automatic Subscription Renewal then you can cancel at any time prior to the date on which the next Automatic Subscription Renewal payment is to be taken, and you shall not be eligible to receive any refund for any renewal subscription payment that has already been made.
7.1 We promise that all Services that you purchase from our site will be of a satisfactory quality, and shall be provided with reasonable skill and care. We exclude all other express terms or implied terms, conditions, warranties, representations or endorsements whatsoever with regard to the Service(s), our website or any information or service provided through our website. In preparing this website, we have endeavored to offer current, correct and clearly expressed information. However, we cannot guarantee that the information on our website will be accurate, complete or current at all times and accept no liability for any reliance placed by you or any person on the information.
7.2 Where content published on our website is supplied by third parties, you understand that we do not control or endorse their content in any way. All content that is offered by third parties is published in good faith but we do not accept responsibility for the accuracy or otherwise of such content (whether published on or off-line) and for the use of such content.
7.3 In relation to the purchase of Services, we accept no liability for any indirect or consequential loss or damages or for any loss of data, profit, anticipated savings, revenue or business (whether direct or indirect), howsoever caused, even if foreseeable.
7.4 We do not accept liability (except where we have been negligent) where you suffer loss or damage as a result of the viewing, use or access of, or inability to use or access, or performance of our website or its contents whether due to inaccuracy, error, omission or any other cause and whether on the part of HomeGuideColorado, its servants, agents or any other person.
7.5 If we are liable to you for any reason, our liability is limited to the amount paid by you for the Service(s) concerned. Notwithstanding anything in these terms and conditions, we do not exclude or limit our liability for death or personal injury caused by our negligence.
7.6 You are responsible for ensuring that your computer system meets all relevant technical specifications necessary to use our website and is compatible with our website. You also understand that we cannot and do not guarantee or warrant that any material available from our website will be free from infection, viruses and or other code that has contaminating or destructive properties. You are responsible for implementing sufficient procedures and virus checks (including anti-virus and other security checks) to satisfy your particular requirements for the accuracy of data input and output.
7.7 Information that is contained in our HomeGuideColorado reports may be provided to us by third party search engines ("the Engines") which are not controlled by us. We make no warranty in respect of the availability, accuracy or otherwise of such information from the Engines, and we are not liable for any loss, delay, inconvenience or damage you may suffer as a result of such information not being made available to us by the Engines for any reason.
7.8 The limitations and exclusions in these Clauses only apply to the extent permitted by law.
We accept no liability for any failure or delay in supply or delivery or for any damage or defect to Service(s) supplied or delivered that are caused by any event or circumstance beyond our reasonable control (including, without limitation, strikes, lockouts and other industrial disputes).
9.1 The contents of our website are protected by international copyright laws and other intellectual property rights. The owner of these rights is HomeGuideColorado or its licensors. All product and company names and logos mentioned in our website are the trademarks, service marks or trading names of their respective owners, including us.
9.2 You may download material from our website for the sole purpose of placing an order with us. However you may not modify, copy, reproduce, republish, upload, post, transmit or distribute by any means and in any manner, any material or information on or downloaded from our website including but not limited to text, graphics, video, messages, code and/or software without our prior written approval, except where expressly invited to do so, for example in order to complete any test or questionnaire.
We make no representations what so ever about any other websites which you may access through our website. When you access any other website you understand that it is independent from HomeGuideColorado and that we have no control over the content or the availability of the website. In addition, a link to any other website does not mean that we endorse or accept any responsibility for the content, or the use of, such website and we will not be liable for any loss or damage caused or alleged to be caused by or in connection with your use of or reliance on any content, goods or services available on or through any other website.
This website may contain advertisements. We are not responsible for and do not endorse the content of such advertisements, and we do not accept any responsibility for any errors or inaccuracies in such advertising material.
We will try to make our website available but cannot guarantee that our website will operate continuously or without interruptions or is error free and cannot accept liability for its unavailability. You must not attempt to interfere with the proper working of our website and, in particular you must not attempt to circumvent security, tamper with, hack into, or otherwise disrupt our computer system, server, website, router or any other internet connected device.
13.1 We reserve the right to alter, suspend or discontinue any aspect of our website or the Services available through it, including your access to it, without notice to you. Unless explicitly stated any new features, including new content and Services shall be subject to these terms and conditions.
13.2 If any modification of the Service is unacceptable to you, your only recourse is to terminate the relevant Agreement. Your continued use of the Service following our posting of a change to the conditions or the website will constitute a binding acceptance of that change.
14.1 You may terminate any agreement which is subject to these conditions (an "Agreement"):
14.1.1 By ceasing to use the Service if you are a subscriber who cannot or has not opted for Automatic Subscription Renewal; or
14.1.2 By notifying us in accordance with Clause 6.4 if you have opted for, and receive, Automatic Subscription Renewal.
14.2 We reserve the right to terminate the Agreement or discontinue the Service or any portion or feature of it by notice in writing if any of the following events occur, namely:
14.2.1 In the event of your insolvency, including:
(a) If you commit an act of bankruptcy, or if a bankruptcy petition is made against you or unable to pay your debts;
(b) if (where you are a company) you are dissolved, struck off the register of companies maintained by the Companies Registration Office or a winding up order is made against you, or a meeting is convened, resolution passed or any step taken by you with a view to a winding up, except for the purpose of a solvent reconstruction, reorganization, merger or consolidation;
(c) If a receiver (including fixed charge or court appointed), administrative receiver, manager, insolvency practitioner or similar officer shall be appointed over the whole or a substantial part of your undertaking, property or assets;
(d) If you ether into (or propose to enter into) a composition, scheme of arrangement or voluntary arrangement with any of your creditors or otherwise, or a moratorium is agreed, imposed or declared in respect of or affecting all or a material part of (or a particular type of) your debts; or
(e) If notice of intention to appoint an administrator is given by any person (including your directors, or any qualifying charge holder) or any step is taken by any person with a view to placing you in administration;
14.2.2 if you shall at any time be in default under an Agreement and shall fail to remedy such default within fourteen (14) days from receipt of notice in writing from us specifying such default.
14.3 We reserve the right to terminate any Agreement or discontinue the Service or any portion or any feature of it for any reason on no less then fourteen (14) days notice and at our sole discretion.
14.4 In the circumstances outlined in Clause 14.5 but in no other circumstances, we will provide a full refund of any unexpired term of the price paid.
14.5 Upon termination you must delete all output of the Service in your possession or control (including from your website and your servers).
14.6 Upon termination of any Agreement all rights and obligations of HomeGuideColorado and you under the Agreement will be extinguished.
15.1 Use of our website is subject to the laws of the United States.
15.2 We may assign or sub-contract any or all of our rights or obligations under these terms and conditions at any time.
15.3 These terms and conditions constitute the entire agreement between you and HomeGuideColorado regarding your use of the website or purchasing of Service(s) and supersedes any prior understandings or agreements regarding your use of the website or purchasing of Service(s).
15.4 You acknowledge that you have not entered into this Agreement upon any warranty or representation made by us or any other person and you waive any rights to damages/rescission you may have for misrepresentation (other than fraudulent misrepresentation) that is not contained in these terms and conditions, the order form or payment method instructions.
15.5 Failure by either party to exercise any right or remedy under these terms and conditions does not constitute a waiver of that right or remedy.
15.6 In the event that any provision in these terms and conditions is determined to be invalid or unenforceable under applicable law, such provision will be replaced by a valid, enforceable provision that most closely matches the intent of the original unenforceable provision, and the remaining provisions shall continue to be enforceable to the fullest extent permitted by law.
16.1 Notices shall be given to us via email at support@HomeGuideColorado or to you at either the email or postal address you provided to us during the ordering or registration process.
16.2 Notices will be deemed received when an email is received in full (or else on the next business day if it is received on a weekend or a public holiday) or 3 days after the date of posting.
You are solely responsible in all respects for all use of and for protecting the confidentiality of login details that may be given to you or selected by you for use on our website. You may not share these with or transfer them to any third parties. You must notify us immediately of any unauthorized use of them or any other breach of security regarding our website that comes to your attention.
18.1 You authorize us to use, store or otherwise process any personal information that relates to and identifies you, including but not limited to your postal address, e-mail address, telephone number and your credit or debit card number and expatriation date or bank account details to the extent reasonably necessary to provide the Service(s) that are available through our website to you by us or our sub-contractors.
18.3 You must ensure that the Personal Information that you provide is accurate and complete and that all ordering or registration details (as applicable) contain your correct name, address and other requested details.
18.4 By accepting these terms and conditions, you agree to the processing and disclosure of your Personal Information for the Purposes.
User Submitted Content
You are solely responsible for any Content and other material that you submit, publish, display or link to on the Site or send to other HomeGuideColorado users. You may not post, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights. You may not submit any Content or material that infringes, misappropriates or violates the intellectual property, publicity, privacy or other rights of any party or is in violation of any Federal, State or local Fair Housing Laws. You will at all times adhere to the HomeGuideColorado Terms and Conditions and that all submitted content you believe to be true. In addition, you agree to not purposely provide false or misleading information on the Service.
You agree that by posting content on the Site, you are granting HomeGuideColorado a royalty-free, perpetual, irrevocable license to use this information in the course of offering the Services. You understand that HomeGuideColorado does not endorse or warrant any particular content or information available via the Site. Additionally, we cannot guarantee the authenticity of any data which users may provide about themselves.
For specific advice on legal, financial or real estate matters, you should always seek the advice of a professional who is licensed and knowledgeable in that area, such as an attorney, accountant or real estate agent or broker.
You further agree that you will not submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material, and to grant HomeGuideColorado all of the license rights granted herein. Any content that you submit to HomeGuideColorado may be redistributed through the internet and other media channels, and may be viewed by the general public.
You understand that HomeGuideColorado does not monitor or control the content of information posted by others, and instead simply provides a service by allowing users to access information that has been made available. Because HomeGuideColorado does not control the Content posted via the Service, HomeGuideColorado does not guarantee the accuracy, integrity or quality of such Content. You acknowledge that by using the Service, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will HomeGuideColorado be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service. Should Content be found or reported in violation with, but not limited to, the following terms, it will be HomeGuideColorado’s sole discretion as to what action should be taken, including suspension and/or termination of your account.
Copyright 2008 by HomeGuideColorado.com All rights reserved.
Except as expressly provided herein, the information in this website may not be copied in whole or in part without express written permission from HomeGuideColorado. All violations will be prosecuted to the fullest extent of the law.
Information provided by HomeGuideColorado
We do not take responsibility for the content of the Listings you will come across in this database. Listings are provided by 3rd party software.
Use of HomeGuideColorado content
All content on this site, including text, graphics, logos, button icons, and images is the property of HomeGuideColorado or its partners and protected by US and international copyright laws.
The compilation (meaning the collection, arrangement and assembly) of all content on this site is the exclusive property of HomeGuideColorado and protected by US and International copyright laws. Content on this website may be used, copied, or distributed for personal, noncommercial, informational purposes only.
All copies made of the content must include copyright, trademark or other proprietary notice found on the website where the content was found. Except as granted herein, users are not being granted a license or any other rights under any copyright, trademark, patent, or other intellectual property right in the material or the products, services, or technology described therein. All such rights are retained by HomeGuideColorado.
Use of Information Provided to HomeGuideColorado
Any comments, data, suggestions, questions, or the like, which you send to HomeGuideColorado will be treated as being non-confidential and non-proprietary. HomeGuideColorado assumes no obligation to protect this information from disclosure and may copy, distribute, or use such information without limitation.
Disclaimer content on the HomeGuideColorado website may include inaccuracies or typographical errors. HomeGuideColorado reserves the right to make changes and updates to any information contained on the website without prior notice.
The user of this website assumes all responsibility and risk for the use of this website and the Internet generally. Applicable Law: This site is created and controlled by HomeGuideColorado.com in the city of Loveland, Colorado.
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY.
"Effective Date" means the date Customer executes the initial Order Form.
"Fees" mean the fees paid by Customer for the right to post its Listing/Rental Content on HomeGuideColorado website that enables consumers to search for real estate listing information.
"Force Majeure Event" means a natural disaster, actions or decrees of governmental bodies or communications line failure which (i) hinders, delays or prevents a party in performing any of its obligations, and (ii) is beyond the control of, and without the fault or negligence of, such party, and (iii) by the exercise of reasonable diligence such party is unable to prevent or provide against.
"Listing Content" means text, data, multimedia content and images about real estate listed for sale or rent received from Customer for posting on the HomeGuideColorado Website.
"Order Form" means an ordering document for HomeGuideColorado products signed by HomeGuideColorado and Customer or by Customer and an authorized HomeGuideColorado partner. Each Order Form shall be subject to the terms and conditions hereof.
"Taxes" means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes.
"HomeGuideColorado Content" means all content accessible on HomeGuideColorado’s website other than the Listing Content.
"HomeGuideColorado Technology" means any and all technology, hardware, software, programs, codes, processes, user interfaces and any other functionality contained in or on the HomeGuideColorado Website.
"HomeGuideColorado Website" means HomeGuideColorado's website that contains a consumer search engine for real estate listings that enables consumers to (i) search for real estate listing information that is displayed on publicly accessible websites; and (ii) connect via hypertext links to the web sites of the real estate brokers and agents with whom the properties are listed, or, as permitted herein, to web sites owned or operated by real estate multiple listing services.
During the term of this Agreement Customer grants HomeGuideColorado a limited term non-exclusive right to (i) display or deliver Customer's Listing Content to consumers who visit the HomeGuideColorado Website; (ii) extract Customer's Listing Content from Customer's website from a data feed provided by Customer to HomeGuideColorado; and (iii) permit operators of websites displaying real estate listing information, to include hypertext links to enable visitors to such sites to search and view Listing Content that appears on the HomeGuideColorado Website.
For the term of this Agreement HomeGuideColorado will include the Listing Content on the HomeGuideColorado Website and provide consumers who view the Listing Content on the HomeGuideColorado Website or other sites displaying real estate listing information as authorized under Section 2, the ability to connect via a hypertext link to Customer's website on which the Listing Content appears.
Customer is solely responsibility for the accuracy, quality, integrity, legality, and reliability of all Listing Content. Customer's interactions with consumers viewing Listing Content on the HomeGuideColorado Website, including without limitation any terms, conditions, warranties or representations associated with the Listing Content, is solely between Customer and such consumers. HomeGuideColorado shall not be responsible or liable for any loss or damage of any sort incurred as the result of any dealings between Customer and a consumer viewing Listing Content on the HomeGuideColorado Website. In the event that you have a dispute with one or more other users, Customer hereby releases HomeGuideColorado, its officers, employees, agents and successors in rights from claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to any dispute between Customer and a consumer viewing Listing Content on the HomeGuideColorado Website.
As between the parties, HomeGuideColorado shall retain all ownership rights in HomeGuideColorado Technology and HomeGuideColorado Content. As between the parties, all Listing Content remains the sole property of Customer. No license, right or interest in any HomeGuideColorado or Customer trademark, copyright, trade name or service mark is granted hereunder. Customer shall not disassemble, reverse engineer, license, sub-license, create derivative works from or re-license any of the HomeGuideColorado Content.
6.1 Unless specified otherwise in an Order Form Fees are payable monthly in arrears. All undisputed fees due hereunder shall be due and payable within thirty (30) days of date of invoice. If the monthly Service Fee for the Service product ordered by Customer is based on unit pricing with a maximum monthly fee, Customer will be invoiced for the lower of (i) unit pricing times the number of units (e.g. listings or clicks); or (ii) maximum monthly charge.
6.2 HomeGuideColorado may increase the Service Fees applicable to an Order Form upon 30 days prior written notice; provided, that any increase in Fees noticed during a month shall not take effect until the beginning of the month.
6.3 Upon execution of the applicable ordering document, payment obligations are non-cancelable and, except as expressly provided in this Agreement, upon payment, all payments made by Customer are non-refundable. All undisputed fees due hereunder shall be due and payable within thirty (30) days of receipt of invoice. If any Customer account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights and remedies (including the termination rights set forth in this Agreement), HomeGuideColorado reserves the right to not include the Listing Content on its website until such account is paid in full.
6.4 Unless otherwise provided, HomeGuideColorado fees do not include any Taxes, and Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding Taxes based on HomeGuideColorado's net income or property. If HomeGuideColorado has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides a valid tax exemption certificate authorized by the appropriate taxing authority.
HomeGuideColorado shall provide support provided Customer is current in payment of the applicable Service Fees. HomeGuideColorado's current support terms are described on HomeGuideColorado website at ..................
8.1 Each party represents and warrants that (i) it has the legal power to enter into and perform under this Agreement; and (ii) it shall comply with all other applicable laws in its performance hereunder.
8.2 Customer warrants that (i) for each listing included in the Listing Content Company has a valid listing agreement with the owner of the advertised property; (ii) it owns or has acquired all necessary rights in the trademarks, logos, brand name, and other intellectual property works that appear on Customer's web page to which viewers of the Listing Content are linked; and (iii) it is, and will remain through the term of this Agreement, duly licensed in good standing in the state in which its principal office is located
8.3 EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE HomeGuideColorado WEBSITE IS PROVIDED IS PROVIDED ON AN "AS IS" OR "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. HomeGuideColorado HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TO THE FULLEST EXTENT PERMITTED BY LAW, HomeGuideColorado DISCLAIMS ANY WARRANTIES FOR THE SECURITY, RELIABILITY, TIMELINESS, ACCURACY, AND PERFORMANCE OF THE HomeGuideColorado WEBSITE.
9.1 Indemnification by HomeGuideColorado. Subject to this Agreement, HomeGuideColorado shall defend, indemnify and hold Customer harmless against any loss or damage (including without limitation reasonable attorneys' fees) incurred in connection with claims, demands, suits, or proceedings ("Claims") made or brought against Customer by a third party alleging that the HomeGuideColorado Technology or HomeGuideColorado Content infringe the intellectual property rights of a third party; provided, that Customer (a) promptly gives written notice of the Claim to HomeGuideColorado; (b) gives HomeGuideColorado sole control of the defense and settlement of the Claim; and (c) provides to HomeGuideColorado all reasonable assistance. If HomeGuideColorado reasonably believes that the Customer's use of any portion of the HomeGuideColorado Technology or HomeGuideColorado Content is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party's intellectual property rights then HomeGuideColorado may, at its expense: (i) procure for the Customer the right to continue using the HomeGuideColorado Technology or HomeGuideColorado Content; (ii) replace the HomeGuideColorado Technology or HomeGuideColorado Content with other services or other material of equivalent functions and efficiency that is not subject to an action of infringement; or (iii) modify the HomeGuideColorado Technology or HomeGuideColorado Content so that there is no longer any infringement or breach, provided that such modification does not adversely affect the functional capabilities of the HomeGuideColorado Technology or HomeGuideColorado Content as set out herein. HomeGuideColorado shall have no obligations to Customer under this Section 9.1 to the extent such Claims arise from Customer's breach of this Agreement or from the combination of the HomeGuideColorado Technology or HomeGuideColorado Content with any of Customer's products, services, hardware or business processes.
9.2 Indemnification by Customer. Subject to this Agreement, Customer shall defend, indemnify and hold HomeGuideColorado harmless against any loss or damage (including without limitation reasonable attorneys' fees) incurred in connection with Claims made or brought against HomeGuideColorado by a third party alleging that (i) Customer has breached its representation or warranties defined in this Agreement; or (ii) the Listing Content, or the use thereof has caused harm to a third party or infringes the intellectual property rights of a third party; provided, that HomeGuideColorado (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases HomeGuideColorado of all liability); and (c) provides to Customer, at Customer's cost, all reasonable assistance. Customer shall have no obligations to HomeGuideColorado under this Section 9.2 to the extent such Claims arise from HomeGuideColorado's breach of this Agreement.
10.1 As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in Order Forms), the Service, HomeGuideColorado Technology, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any obligation owed to Disclosing Party; (iii) was independently developed by Receiving Party without breach of any obligation owed to Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to Disclosing Party.
10.2 Receiving Party shall not disclose any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except with Disclosing Party's prior written consent. Receiving Party shall protect the confidentiality of Disclosing Party's Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). HomeGuideColorado represents and warrants that it will maintain the confidentiality of Customer Data in accordance with all applicable laws and, except as required by applicable law, will not disclose Customer Data to any third party for any purpose other than to provide the Service or implementation services to Customer. Each party represents and warrants that it will collect, maintain and handle all personal data in compliance with all applicable data privacy and protection laws. Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party's Confidential Information.
10.3 If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if Disclosing Party wishes to contest the disclosure.
10.4 If Receiving Party discloses (or threatens to disclose) any Confidential Information of Disclosing Party in breach of confidentiality protections hereunder, Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies are inadequate.
10.5. Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party's Confidential Information and, upon request, return to the Disclosing Party or destroy (at the Disclosing Party's election) all materials containing such Confidential Information.
11.1 EXCEPT (i) FOR THE PARTIES' INDEMNIFICATION OBLIGATIONS; (ii) FOR CUSTOMER'S FAILURE TO PAY ANY FEES DUE UNDER THIS AGREEMENT; OR (iii) EITHER PARTY'S MATERIAL BREACH OF SECTION 10 ("CONFIDENTIALITY"), IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID TO HOMEGUIDECOLORADO DURING TWELVE MONTHS PRIOR TO THE CLAIM.
11.2 IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.1 This Agreement commences on the Effective Date and continues until all User licenses granted in accordance with this Agreement have expired or been terminated. The term applicable to each Order Form commences upon Customer's execution of such Order Form and will automatically continue on a month-to-month basis unless terminated in accordance with this Agreement.
12.2 A party may terminate this Agreement for cause: (i) upon 60 days written notice to the other party of a material breach of this Agreement if such breach remains uncured at the expiration of such period; (ii) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; or (iii) as otherwise provided herein. Upon any termination for cause by Customer, HomeGuideColorado shall refund Customer any prepaid Services Fees for the remainder of its subscription term after the date of termination.
12.3 The parties' rights and obligations with respect to the fees and payment terms, audit rights, title and protection, confidentiality, patent and copyright indemnification, warranty disclaimers, limitation of liability, and governing law provisions of this Agreement shall survive termination of this Agreement.
12.4 Upon the effective date of termination of this Agreement: Customer's license to use the Service will cease and HomeGuideColorado will delete all backed-up Customer Data from HomeGuideColorado systems within 30 days of termination of this Agreement.
13.1 The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third party beneficiaries to this Agreement.
13.2 Notices shall be in writing and effective upon receipt.
13.3 No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by Customer and HomeGuideColorado. To the extent of any conflict between this Agreement and any other schedule or attachment, this Agreement shall prevail unless expressly stated otherwise. Notwithstanding any language to the contrary therein, no terms stated in a purchase order or in any other order document (other than a mutually executed order document expressly incorporated herein) shall be incorporated into this Agreement, and all such terms shall be void. This Agreement, which includes all schedules, statements of work and attachments hereto, represents the entire agreement of the parties, and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
13.4 No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.
13.5 Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to a Force Majeure Event.
13.6 Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms hereunder), without consent of the other party, to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity not involving a direct competitor of the other party. Any attempted assignment in breach of this section shall be void. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.