Last Modified on July 19, 2016
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
You must agree to this ToU in order to use the App, the Site and/or the Service, even if you are an employee or contractor of a company that has licensed the use of the App, the Site and/or the Service. BY AGREEING TO THESE TERMS (INCLUDING BY A CLICK-THROUGH OR OTHER AGREEMENT), YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS TOU AND AGREE TO ALL OF ITS RESPECTIVE TERMS AND CONDITIONS. Also, by agreeing to this ToU (including by a click-through or other agreement), you are waiving, to the extent permitted under applicable law, any rights or legal requirements that require an original (non-electronic) signature or the delivery or retention of non-electronic records in order for a contract to be legally binding. If you use the App, the Site and/or the Service, or click to accept or agree to this ToU if presented to you in a user interface for the Service, we will understand this as your acceptance of this ToU and your agreement to all of its terms and conditions. By accepting this ToU or using the App, the Site and/or the Service, you represent and warrant that you have the legal capacity to enter a contract in the jurisdiction where you reside. If you do not accept this ToU, then you may not use the App, the Site or the Service.
1. ToU Updates. HouseCanary may update this ToU at any time, and HouseCanary will post the updated version of this ToU on the App and/or the Site (or the website located at www.housecanary.com). You understand and agree that you will be deemed to have accepted the updated ToU if you use the App, the Site or the Service after the updated ToU is posted on the App and/or the Site. If at any point you do not agree to any portion of this ToU then in effect, you must immediately stop using the App, the Site and the Service.
2. Provision of the Service. You are responsible for any Internet connection and telecommunications fees and charges that you incur when accessing the App, the Site and the Service. You acknowledge and agree that HouseCanary may make changes to the App, the Site and/or the Service at any time without notifying you in advance.
3. Termination of Service. HouseCanary reserves the right to deny service to any person or entity at HouseCanary’s sole and absolute discretion. You acknowledge and agree that HouseCanary may stop providing the App, the Site and/or the Service or restrict your use of the App, the Site and/or the Service at any time, without notifying you in advance, for any reason or no reason, including, without limitation, for any violation of this ToU and/or if HouseCanary suspects that you have used any aspect of the Service to conduct any fraudulent or illegal activity. If HouseCanary disables your access to your account, you may be prevented from accessing the Service, your account details and/or any materials contained in your account.
4. Accounts and Security.
4.1. Account. To access certain aspects of the Service, you must have an account. You can create an account by completing the registration process. You may be required to provide information about yourself as part of the registration process or your continued use of the Service. You agree that any registration information that you submit to HouseCanary will be correct, accurate and up to date.
4.2 Electronic Signature. When establishing your account, you may be requested to include and adopt an electronic signature that can be used by you when drafting, adopting and submitting broker price opinions and real estate appraisal reports (“Appraisals”). By including and adopting an electronic signature, you represent, warrant and confirm that the signature adopted by you will be deemed your own and when included within an Appraisal and submitted to a third party, your electronic signature will represent that you have duly executed the given Appraisal as if you formerly signed the document. By adopting and using your electronic signature, you hereby agree to the use of electronic communications in order to enter into contracts, submit Appraisals and create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the App, the Site and/or the Service.
4.3. Account Security. Maintaining account security is very important. You are solely responsible for maintaining the confidentiality of your account password. You agree to notify HouseCanary immediately if you become aware of any unauthorized use of your password or of your account.
4.4. Account Sharing or Transfers. Accounts are registered to you personally, either directly or through your employer or other third party for whom you provide appraisal services, and may not be sold, traded, gifted or otherwise transferred at any time under any circumstances. You may not share your account. You may not disclose your password to anyone else.
4.5. Cancellation by You. You have the right to cancel your account at any time. You may cancel your account by clicking the cancel link available on the App and/or the Site or by sending an email to [email protected]
4.6. Termination by HouseCanary. HouseCanary may at any time terminate your account if:
a. HouseCanary determines that you are (a) in breach of or otherwise acting inconsistently with this ToU or (b) engaging in fraudulent or illegal activities or other conduct that may result in liability to HouseCanary;
b. HouseCanary determines it is required by law or the applicable Multiple Listing Service(s) to terminate your account; or
c. HouseCanary decides to stop providing the Service or critical portions of the Service in the state where you reside, or discontinues access to the App or the Site.
4.7. Effect of Account Termination or Cancellation. If you voluntarily terminate your account or allow your account to lapse, you will be able to reactivate that account at any time through the account interface on the App and/or the Site. Accounts terminated by HouseCanary for any type of abuse including, without limitation, a violation of this ToU, may not be reactivated for any reason, at HouseCanary’s sole discretion.
5. App Use Requirements.
5.1. Installation. To use the App, you will be required to install the App on one or more tablet or mobile devices that you own or control and that meet the minimum specifications provided by HouseCanary.
5.2. Updates. HouseCanary may require that you download and install updates to the App from time to time. You acknowledge and agree that HouseCanary may update the App with or without notifying you and add or remove features or functions to the App at any time in its sole discretion. You acknowledge and agree that HouseCanary has no obligation to make the App available to you, make any subsequent versions of the App available to you or to continue to support the App in any way. You acknowledge that your access to the App may not be continuous, features may change during your use of the App, and HouseCanary may terminate your access to the App or stop offering the App at any time.
5.3. Agreements. You acknowledge that you may only use the App and/or the Site in connection with the Service provided through the App and/or the Site in accordance with this ToU. The requirements hereunder and this ToU may change as the App, the Site and/or Service evolve.
6. App and Site License.
6.1. License Grant. Subject to the terms of this ToU, HouseCanary hereby grants you a limited, non-exclusive, personal, non-sublicensable, non-assignable license to download, install and use the App and to use the Site. The App and the Site may only be used for the purpose of preparing and delivering Appraisals to approved financial institutions, real estate purchasers and investors and other third parties as contemplated by the Service and in accordance with this ToU and any rules, restrictions or documentation set forth by HouseCanary from time to time.
6.2. Third Party Software and Services. The App and the Site may be incorporated into, and may incorporate, technology, software and services owned and controlled by third parties. Use of such third party software or services is subject to the terms and conditions of the applicable third party license agreements (including, without limitation, terms of service posted on third party websites), and you agree to look solely to the applicable third party and not to HouseCanary to enforce any of your rights in relation thereto. All modifications or enhancements to the App, the Site and/or the Service remain the sole property of HouseCanary. You understand that HouseCanary, in its sole discretion, may at any time for any reason suspend or terminate any license hereunder and disable any App you may already have accessed or installed without prior notice. HouseCanary reserves the right to add or remove features or functions to the App and the Site at any time in its sole discretion. You acknowledge and agree that HouseCanary has no obligation to make available to you any subsequent versions of its software applications.
7. Restrictions and Conditions of Use.
7.1. Use of the Service. HouseCanary permits you to view and use the App and/or the Site solely for the limited purpose set forth in Section 6.1. Other than for the sole purpose of preparing and delivering Appraisals generated through the normal and intended use of the App and/or the Site to approved financial institutions, real estate purchasers and investors, and other third parties, you agree not to use, license, create derivative works from, transfer, sell or re-sell any information, content, materials, data or services obtained from the App, the Site or through the Service. In order to use the App and/or the Site, you must be a licensed appraiser and an active member of the Multiple Listing Service from you which are obtaining MLS data and comparable home pricing and information. Should you no longer be an active member of any such Multiple Listing Service, you agree to cease using the App and the Site with respect to that Multiple Listing Service and the territory that it covers.
7.2. Accessing the Service. You agree not to access, or attempt to access, the Service by any means other than through the user interface provided through the App and/or the Site provided by HouseCanary. You specifically agree not to access, or attempt to access, the Service through any automated means (including, without limitation, through the use of scripts, bots, spiders or web crawlers).
7.3. No Violation of Laws. You agree that you will not, in connection with your use of the App, the Site or the Service, violate any applicable law, ordinance, rule, regulation or treaty. Without limiting the foregoing, you agree that you will not make available through the App, the Site and/or the Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
7.4. Use Restrictions. You may not connect to or use the App, the Site or the Service in any way that is not expressly permitted by this ToU.
a. You may not: (a) remove any proprietary notices from the App, the Site or the Service; (b) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling, decoding or hacking of the App, Site or the Service; (c) sell, assign, rent, lease, act as a service bureau, or grant rights in the App, Site or the Service, including, without limitation, through sublicense, to any other person or entity without the prior written consent of HouseCanary; or (d) make any false, misleading or deceptive statement or representation regarding HouseCanary and/or the App, the Site or the Service.
b. Without limiting the foregoing, you agree that you will not: (i) institute, assist, or become involved in any type of attack including, without limitation, denial of service attacks, upon the App, the Site and/or the Service (or any servers, systems or networks connected to the App, the Site or the Service) or otherwise attempt to obstruct, disrupt or interfere with the operation of the App, the Site and/or the Service or any other person’s or entity’s use of the App, the Site and/or the Service (or any servers, systems or networks connected to the App, the Site or the Service); (ii) attempt to gain unauthorized access to the App, the Site, the Service, accounts registered to other users, or any servers, systems or networks connected to the App, the Site and/or the Service; (iii) use the App, the Site or the Service to develop, generate, transmit or store information that is defamatory, harmful, abusive, obscene or hateful; (iv) use the App, the Site or the Service to perform any unsolicited commercial communication not permitted by applicable law; or (v) use the App, the Site or the Service to engage in any activity that (A) constitutes harassment or a violation of privacy or threatens other people or groups of people; (B) is harmful to children in any manner; (C) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias); or (D) violates any applicable law, ordinance, rule, regulation or treaty.
c. Without limiting the foregoing, you agree that you will not use the App, the Site or the Service for any other unlawful, prohibited, abnormal or unusual activity HouseCanary may determine, in HouseCanary’s sole discretion.
7.5. No Data Mining or Harmful Code. You agree that you will not (a) obtain or attempt to obtain any information from the App, Site or the Service including, without limitation, email addresses or mobile phone numbers of other account holders or other software data; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the App, the Site or the Service, whether through the use of a network analyzer, packet sniffer or other device; (c) intercept, examine or otherwise observe any proprietary communications protocol used by the App, Site or the Service, whether through the use of a network analyzer, packet sniffer or other device; (d) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan horse routing, trap door, time bomb or any other codes, instructions or third party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, the App, the Site or the Service; or (e) use any data mining, gathering or extraction tool, or any robot, spider or other automatic device or manual process, to monitor, copy or scrape the technology, proprietary data, methodologies, algorithms, systems (including, but not limited to the appraisal system) and other proprietary intellectual property of HouseCanary or the data of HouseCanary generated thereby.
7.6. Violation of this ToU. You acknowledge and agree that you are solely responsible, and HouseCanary has no responsibility or liability to you or any other person or entity, for any breach by you of this ToU or for the consequences of any such breach. HouseCanary may at its option, terminate its relationship with you, or may suspend your account immediately if it determines you are using the Service contrary to the restrictions found in this Section 7 or any other terms of this ToU.
8.1. Links from the App and/or the Site. The App and/or the Site may contain links to websites operated by other parties. HouseCanary provides these links to other websites as a convenience and use of these websites is at your own risk. The linked websites are not under the control of HouseCanary and HouseCanary is not responsible for the content available on the other websites. Such links do not imply HouseCanary’s endorsement of information or material on any other website and HouseCanary disclaims all liability with regard to your access to and use of such linked websites.
8.2. Links to the App and/or the Site. Unless otherwise set forth in a written agreement between you and HouseCanary, you must adhere to HouseCanary’s linking policy as follows: (i) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with HouseCanary’s and/or its licensors’ names and trademarks; (ii) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with HouseCanary; and (iii) when selected by a user, the link to the Site must display the Site on full-screen and not within a “frame” on the linking Site. HouseCanary reserves the right to revoke its consent to the link at any time and in its sole discretion.
9. Intellectual Property.
9.1. Trademarks. The HouseCanary name and logos are trademarks and service marks of HouseCanary. Unless permitted in a separate written agreement with HouseCanary, you do not have the right to use any of HouseCanary’s trademarks, service marks or logos and your unauthorized use of any of these may be a violation of federal and state trademark laws.
9.2. Ownership. You acknowledge and agree that HouseCanary, or its licensors, owns all right, title and interest in and to the App, the Site and the Service, including all intellectual property, industrial property, proprietary rights, and the work produced by HouseCanary in the generation and production of the Appraisals (including, any and all proprietary data, appraisal systems, methodologies, algorithms, analytical concepts, approaches, models, processes, formats, proprietary data indexes and scores) recognized anywhere in the world at any time and that the App, the Site and the Service are protected by U.S. and international copyright laws. Further, you acknowledge that the Service may contain information that HouseCanary has designated as confidential and you agree not to disclose such information without HouseCanary’s prior written consent.
11. Location. The App, the Site and the Service are operated by HouseCanary in the United States. If you choose to access the App, the Site and/or the Service from a location outside of the United States, you do so on your own initiative and you are responsible for compliance with applicable local laws.
12. Submitted Content.
12.1. Content. HouseCanary is not the source of, does not verify or endorse and takes no responsibility for the content submitted using the App, the Site and/or Service. The content is entirely the responsibility of the person from whom such content originated. You are responsible for the content you choose to communicate and access using the Service. In particular, you are responsible for ensuring that you do have the proper authority to submit the content you choose to submit (including, but not limited to, the names, loan numbers, financial institutions, and addresses of target properties of your clients). HouseCanary may in its sole discretion block, prevent delivery of or otherwise remove content as part of its effort to protect the Service or its customers, or otherwise enforce the terms of this ToU. Further, HouseCanary may in its sole discretion remove such content and/or terminate this ToU and your Account if you use any content that is in breach of this ToU.
12.2. “Submitted Content” consists of information or materials you submit or make available through the App, the Site and/or the Service, including, but not limited to, all measurements, interior and exterior photos of residential properties that are the subject of a given Appraisal, photos of comparable residential properties, MLS data, and all specific characteristics and related factual or subjective data of or relating to subject properties (including, without limitation, square footage, location characteristics, and other property information arising from the Appraisal or the use of the App and/or the Site. You hereby grant to HouseCanary a royalty-free, worldwide, perpetual, irrevocable and fully transferable right and license to use, copy and store the Submitted Content for the purpose of making available, enhancing, operating, developing and otherwise exploiting HouseCanary’s products and services, including the App, the Site and/or the Service (and its underlying appraisal systems, methodologies and proprietary data indexes and scores) or any other websites and mobile applications, in all events, in a manner that others exercising reasonable diligence cannot determine the Submitted Content to be arising from or related to you or to any specific Appraisal submitted by you (or to any underlying client therein or their confidential information). You hereby represent, warrant and covenant that any Submitted Content you provide does not include anything to which you do not have the full right to submit under this Section 12.
In furtherance of the foregoing, you and HouseCanary expressly acknowledge and agree that the foregoing license and any use by HouseCanary of the Submitted Content are intended to comply with the Confidentiality section of the Ethics Rule under the Uniform Standards of Professional Appraisal Practice (USPAP), to the Code of Professional Ethics published by the Appraisal Institute, and to applicable state and Federal laws.
12.3. You acknowledge that the Submitted Content is your sole responsibility. You are entirely responsible for the Submitted Content and agree, under no circumstances, will HouseCanary be liable in any way for Submitted Content, including, but not limited to, for any errors or omissions in any Submitted Content, or any loss or damage of any kind incurred as a result of the use or distribution of any Submitted Content transmitted or otherwise made available via the Service. The results given through the Service are dependent on HouseCanary receiving accurate information from the agent submitted such content. HouseCanary is not responsible for any errors in results due to incorrect information being submitted into the Service.
13. Children. The App, the Site and the Service are not directed toward children under 13 years of age nor does HouseCanary knowingly collect information from children under 13 or allow them to create an account or access account features. If you are under 13, please do not submit any personal information about yourself to HouseCanary.
14. DISCLAIMER OF WARRANTIES.
14.1. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE APP, THE SITE AND THE SERVICE IS AT YOUR SOLE RISK AND THAT THE APP, THE SITE AND THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
14.2. YOU ACKNOWLEDGE AND AGREE TO THE FOLLOWING:
(a) The appraisal, market information, indexes, scores and other information contained in Appraisals derived from the App, the Site and/or the Service (and/or HouseCanary’s databases and analytical processes) are based upon tested methodologies for accuracy. However, the appraisal, market information, indexes, scores and other information contained in Appraisals derived from the App, the Site and/or the Service are not definitive forecasts, appraisals or valuations. All Appraisals are stated in terms of probability of likelihood and based on market factors and information submitted by you and other appraisers, and the Appraisals are not guaranteed by HouseCanary and should not be construed as investment advice or relied upon for critical decision making. HouseCanary uses or has used public and/or confidential data and assumptions provided to HouseCanary by you, other appraisers or other third parties, including, without limitation, the Submitted Content, and HouseCanary has not independently verified the data and assumptions used in these analyses or data sets. Changes in the underlying data or operating assumptions, or any loss of access to any one or more sources will clearly impact the analyses, conclusions and appraisals (including the Appraisals).
(b) HouseCanary makes no representations or warranties, express or implied, regarding the Appraisals or the information contained therein, including the recommendations or the advice given therein, and HouseCanary has no liability to you, or to any third parties, relating to the use or implementation of the information contained in the Appraisals, or any action, inaction or decisions (including any lending, investment, purchase or disposition decisions) that may be made based on the information provided in the Appraisals. You agree that any decision (including any lending, investment, purchase or disposition decision) regarding or relating to or based on the use or implementation of any output, data or analysis contained in the Appraisals is made solely by you, at your sole and exclusive discretion. You further agree that you shall not hold HouseCanary or any of its affiliates liable for the use or implementation, by you or any other party, of the information contained in the Appraisals, or for any action, inaction or decisions (including any lending, investment, purchase or disposition decisions) made, by you or any other party, based on the information provided in the Appraisals.
(c) You acknowledge and agree that HouseCanary’s information and data providers/licensors shall not be liable for any claim or loss resulting from the content of, errors or omissions in, or your use of the information contained in or retrieved from the Appraisals.
14.3. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HOUSECANARY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS INCLUDING, WITHOUT LIMITATION, WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
14.4. HOUSECANARY MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY MATERIALS, INFORMATION OR DATA, INCLUDING THE APPRAISALS, AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE APP, THE SITE OR THE SERVICE.
14.5. HOUSECANARY DOES NOT REPRESENT OR WARRANT THAT (a) YOU WILL BE ABLE TO ACCESS OR USE THE APP, THE SITE AND/OR THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; (b) THAT OPERATION OF THE APP, THE SITE OR THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (c) YOUR USE OF THE APP, THE SITE OR THE SERVICE WILL MEET YOUR REQUIREMENTS; (d) DEFECTS IN THE OPERATION OF THE APP, THE SITE OR THE SERVICE WILL BE CORRECTED; OR (e) THE APP, THE SITE OR THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
14.6. YOU ACKNOWLEDGE AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE APP, THE SITE OR THE SERVICE IS AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, TABLET, MOBILE PHONE OR OTHER DEVICE OR ANY LOSS OF DATA RESULTING FROM DOWNLOADING OR OBTAINING SUCH MATERIAL.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.
15. LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY.
15.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HOUSECANARY, AND ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”), SHALL NOT BE LIABLE TO YOU, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR:
a. ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, USE, DATA OR GOODWILL, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE APP, THE SITE AND/OR THE SERVICE, EVEN IF HOUSECANARY AND/OR THE RELATED PARTIES HAVE BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES;
b. THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; OR
c. THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE ANY MATERIALS, INFORMATION OR DATA MAINTAINED BY OR THROUGH YOUR USE OF THE APP, THE SITE OR THE SERVICE.
15.2. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF HOUSECANARY OR ANY OF THE RELATED PARTIES EXCEED ONE HUNDRED DOLLARS ($100).
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of HouseCanary and the Related Parties shall be limited to the fullest extent permitted by law.
16. Indemnification. You agree to indemnify, defend and hold HouseCanary and the Related Parties harmless from any and all claims, demands, damages or other losses including, without limitation, reasonable attorneys’ fees, resulting from or arising out of (i) your use of the Site and/or the Service or (ii) your breach of this ToU or any other policies that HouseCanary may issue for the Site and/or the Service from time to time.
17. Governing Law; Jurisdiction. This ToU is governed by Texas law, without regard to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You and HouseCanary agree that, except as otherwise provided in Section 18 below, the state and federal courts located in the County of Bexar, Texas will have exclusive jurisdiction of all disputes arising out of or related to this ToU or your use of the Site or the Service and agree to submit to the personal jurisdiction and venue of these courts. Notwithstanding the foregoing, HouseCanary shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.
18. Binding Arbitration.
18.1. Arbitration Procedures. You and HouseCanary agree that, except as provided in Section 18.4 below, all disputes, controversies and claims related to this ToU (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this ToU. In the event of a conflict between the terms set forth in this Section 18 and the JAMS Rules, the terms in this Section 18 will control and prevail.
Except as otherwise set forth in Section 18.4, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and HouseCanary will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this ToU, (a) you and HouseCanary may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND HOUSECANARY WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
18.2. Location. The arbitration will take place in San Antonio, Texas, unless the parties agree to video, phone and/or internet connection appearances.
18.3. Limitations. You and HouseCanary agree that any arbitration shall be limited to the Claim between HouseCanary and you individually. YOU AND HOUSECANARY AGREE THAT (a) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (b) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (c) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
18.4. Exceptions to Arbitration. You and HouseCanary agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claim seeking to enforce or protect, or concerning the validity of, any of your or HouseCanary’s intellectual property rights; (b) any Claim related to, or arising from, allegations of theft, piracy, or invasion of privacy; and (c) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
18.5. Arbitration Fees. If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If HouseCanary is initiating arbitration for a Claim, it will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
18.6. Severability. You and HouseCanary agree that if any portion this Section 18 is found illegal or unenforceable (except any portion of Section 18.4), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 18.4 is found to be illegal or unenforceable then neither you nor HouseCanary will elect to arbitrate any Claim falling within that portion of Section 18.4 found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within the County of Bexar, State of Texas, United States of America, and you and HouseCanary agree to submit to the personal jurisdiction of that court.
19.1. ToU Revisions. This ToU may only be revised in a writing signed by HouseCanary, or published by HouseCanary on the Site and/or the App.
19.2. No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and HouseCanary as a result of this ToU or your use of the Site, the App or the Service.
19.3. Assignment. HouseCanary may assign its rights under this ToU to any person or entity without your consent. The rights granted to you under this ToU may not be assigned without HouseCanary’s prior written consent, and any attempted unauthorized assignment by you shall be null and void.
19.4. Severability. If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.
19.5. Attorneys’ Fees. In the event any litigation or arbitration is brought by either party in connection with this ToU, except as otherwise provided in Section 18.5, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
19.6. No Waiver. HouseCanary’s failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect our right to enforce the same provision at a later time. An express waiver by HouseCanary of any provision, condition or requirement of this ToU shall not be understood as a waiver of your obligation to comply with the same provision, condition or requirement at a later time.
19.7. Notices. All notices given by you or required under this ToU shall be in writing and sent to [email protected]
19.8. U.S. Government Rights. If you are, or are entering into this ToU on behalf of, any agency or instrumentality of the United States Government, the Software is “commercial computer software” and “commercial computer software documentation,” and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction, and disclosure of the Software are governed by the terms of this ToU.
19.9. Export Administration. You must comply with all export laws and regulations of the United States or any other country (“Export Controls”) and you shall not export, direct or transfer any portion of the Site or the Service, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.
19.10. Equitable Remedies. You acknowledge and agree that HouseCanary would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.
19.11. Entire Agreement. This ToU, including the documents referenced in this ToU, constitutes the entire agreement between you and HouseCanary with respect to the Site and the Service and supersedes any and all prior agreements between you and HouseCanary relating to the Site and/or the Service.