Terms of Service
New Home Connect’s Terms of Service
Effective: January 01, 2023
These Terms of Service, together with applicable Services Agreement Addenda, Order Forms, Insertion Orders, and materials referenced herein (collectively, this “Agreement”), describe the terms and conditions under which you (“Subscriber”) may access and use the Services (defined below) of New Home Connect Corp. (“Service Provider”). (Subscriber and Service Provider may hereinafter be collectively referred to as the “Parties”).
- Term and Termination.
- Period. Upon expiration, both Parties reserve the right to renegotiation so long as an intent to renegotiate has been sent to the other Party at least thirty (30) calendar days prior to the expiration date.
- Termination. Either party may terminate this agreement for cause if either party materially breaches any of its duties or obligations hereunder and such breach is not cured, or the breaching party is not diligently pursuing a cure to the nonbreaching party’s sole satisfaction, within 30 calendar days after written notice of the breach, the nonbreaching party may terminate this agreement for cause as of a date specified in such notice.
- Payments upon termination. Upon termination of this agreement, Subscriber shall pay Service Provider all undisputed amounts due and payable hereunder.
- Each Party hereby agree to indemnify, defend and hold harmless the other Party and its officers, members, managers, employees, agents, sales associates, sublicensees, affiliates, subsidiaries, successors and assigns from and against any and all claims, demands, causes of action, losses, damages, fines, penalties, liabilities, cost and expenses, including attorney’s fees and court costs (collectively, the “Claims”) relating to or arising out of or in connection with any act or omission of the other Party’s breach of this Agreement or violation of any law or duty to any person including, without limitation, any duty a Party owes to any Purchaser(s) of any Unit.
- Representations and Warranties
- By Subscriber. Subscriber represents and warrants to Service Provider that: (a) it has the right to enter into this Agreement, grant all rights granted and perform its obligations under this Agreement; (b) Subscriber Content and Subscriber Sites do not include and do not give access via hyperlinks to any property containing materials that are: obscene, infringe or misappropriate third party rights, or contrary to this Agreement (including the Documentation) or Applicable Law; (c) Subscriber Content, Subscriber Sites, and Subscriber’s use of the Services will comply at all times with this Agreement, the Documentation and Applicable Law; (d) its collection, transfer, use and disclosure of all data under this Agreement will not violate the rights of any third-party (including any End Users), Applicable Law or any statements in Subscriber’s online privacy notice; and (e) Subscriber will not attempt to identify or re-identify any data Service Provider provides to Subscriber in an anonymous or aggregated fashion.
- By Service Provider. Service Provider represents that: (a) it has the right to enter this Agreement, grant all rights granted and perform its obligations under this Agreement; and (b) the Services will be provided substantially in accordance with the Documentation. For any breach of this Section, Service Provider’s sole liability and Subscriber’s sole remedy will be re-performance of the Services by Service Provider or to exercise any available termination rights.
- Confidential Information includes all information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether of a technical, business, or other nature that the Receiving Party knows or has reason to know is the confidential, proprietary or trade secret information of the Disclosing Party. The Parties acknowledge that each party may be exposed to or acquire communication or data of the other party that is confidential, privileged communication not intended to be disclosed to third parties. The Parties agree to hold all Confidential Information in strict confidence. Confidential Information includes, but is not limited to, all confidential information, however recorded preserved or disclosed by a Party or its employees, officers, representatives or advisors, any of Service Provider’s (to include all New Home Star controlled entities) patent, copyright or other proprietary information, technical data, trade secrets, or know-how, including, but not limited to, research, product plans, pricing and sales information, policies and concepts, business plans, forecasts and market strategies, products, services, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information disclosed to the Subscriber by the Service Provider, either directly or indirectly. Confidential Information does not include information that: (a) was lawfully known to the Receiving Party prior to receiving the same from the Disclosing Party in connection with this Agreement; (b) is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party; (c) is lawfully acquired by the Receiving Party from another source without restriction as to use; or (d) is or becomes part of the public domain through no act or omission of the Receiving Party. Each Receiving Party will (i) use the Disclosing Party’s Confidential Information solely for the purpose for which it is provided and as permitted under this Agreement; (ii) not disclose the Disclosing Party’s Confidential Information to a third-party unless the third-party must access the Confidential Information to perform in accordance with this Agreement and the third-party has agreed to confidentiality terms no less protective than those set forth in this Section 5; and (iii) maintain the confidentiality of, and protect from unauthorized use and disclosure, the Disclosing Party’s Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature. If a Receiving Party is required by Applicable Law to disclose the Confidential Information of the Disclosing Party, such Receiving Party must give prompt written notice (except where prohibited by Applicable Law) of such requirement to the Disclosing Party before such disclosure and reasonably assist the Disclosing Party, at Disclosing Party’s cost, in obtaining an order protecting the Confidential Information from public disclosure. The obligations in this Section 5 will survive for two (2) years after the expiration or termination of this Agreement. Notwithstanding the foregoing, with respect to a Disclosing Party’s trade secrets, the Receiving Party’s obligations under this Agreement remain in effect if the Confidential Information remains a trade secret under the Uniform Trade Secrets Act. Service Provider may disclose the name of Subscriber and existence of this Agreement as required by Applicable Law, court or regulatory order, audit or investigation.
- Ownership and Intellectual Property Rights.
- New Home Connect owns or controls all right, title and interest in and to the Services, Service Data, Performance Reports, and Service Provider Materials, including all intellectual property rights contained therein. Subscriber's right to use the Services and Service Provider Materials are strictly limited to those rights expressly granted in this Agreement and all other rights are reserved to Service Provider. Subscriber is permitted to use Performance Reports for its own internal business purposes, including after expiration or termination of this Agreement.
- Limitations on Liability.
- Disclaimer. NOTWITHSTANDING ANY OTHER PROVISION SET FORTH HEREIN, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, AND / OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE FOREGOING EXCULPATION OF LIABILITY SHALL NOT APPLY WITH RESPECT TO DAMAGES INCURRED AS A RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY. A PARTY SHALL BE LIABLE TO THE OTHER FOR ANY DIRECT DAMAGES ARISING OUT OF OR RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE LIABILITY OF A PARTY, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, TORT, OR OTHERWISE FOR ALL EVENTS, ACTS, OR OMISSIONS UNDER THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE UNDER THIS AGREEMENT, AND PROVIDED, FURTHER, THAT THE FOREGOING LIMITATION SHALL NOT APPLY TO: (A) A PARTY’S OBLIGATIONS OF INDEMNIFICATION, AS FURTHER DESCRIBED IN THIS AGREEMENT; (B) DAMAGES CAUSED BY A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR, (C) A PARTY’S BREACH OF ITS OBLIGATIONS OF CONFIDENTIALITY, AS FURTHER DESCRIBED IN THIS AGREEMENT. This Section shall survive the termination of this Agreement.
- Dispute Resolution.
- In the event of a dispute arising from or related to this Agreement, direct negotiation, arbitration and mediation will be utilized in good faith to resolve such dispute prior to any other form of dispute resolution. Each party shall bear its own attorney fees, costs, and other related expenses incurred in such dispute resolution.
- Attorney’s Fees. In the event of any litigation arising from or related to this Agreement, or the services provided under this Agreement, each Party shall bear its own attorney fees, costs, and all other related expenses incurred in such litigation or arbitration
- Independent Contractor Relationship. The parties agree and acknowledge that the Service Provider shall perform services for Subscriber as an independent contractor. This Agreement shall not create any employer - employee relationship, partnership, joint venture or co-tenancy between Subscriber and Service Provider.
- Hiring Employees. The Parties agree that they shall not, directly or indirectly hire, solicit or induce any employee, agent, sales associate or independent contractor of the other Party without first obtaining written consent. This provision shall survive for one (1) year after the termination of this Agreement. In the event either Party breaches this provision, the non breaching Party shall be entitled to enjoin the other from any further violation of this Agreement, and as a cumulative remedy, agrees that it will pay non breaching party the sum of One Hundred Fifty Thousand Dollars ($150,000) per offense as liquidated damages for breach this provision. Non breaching Party’s actual damages in the event of any such improper hiring would be difficult or impossible to determine, and that the foregoing liquidated damages are a reasonable estimate of the minimum damages either party would likely suffer in the event of such breach, and not a penalty.
- Force Majeure; Excused Performance. Neither party shall be liable for delays or any failure to perform the Services or this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. However, the delayed party shall use its best efforts to minimize the delays caused by any such event beyond its reasonable control.
- DISCRIMINATION. THE PARTIES UNDERSTAND THAT IT IS ILLEGAL FOR SUBSCRIBER, BROKER OR ANY EMPLOYEE ENGAGED BY EITHER PARTY TO REFUSE TO SELL TO ANY PERSON ON THE BASIS OF RACE, COLOR, CREED, RELIGION, NATIONAL ORIGIN, SEX, MARITAL STATUS OR PHYSICAL DISABILITY, OR OTHERWISE VIOLATE ANY APPLICABLE ORDINANCE, STATUTE, OR OTHER LAW GOVERNING DISCRIMINATION OF ANY FORM OR KIND. THE PARTIES AGREE TO COMPLY WITH ALL APPLICABLE FEDERAL, STATE AND LOCAL FAIR HOUSING LAWS.
- Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns.
- Entire Agreement/Modification. This agreement contains the entire understanding of the Parties with respect to the subject matter of the Agreement, and it supersedes all prior understandings and agreement, whether written or oral, and all prior dealings of the Parties with respect to the subject matter hereof. This Agreement, in whole or in part, cannot be changed, modified, extended, or discharged orally and no waiver of compliance with any provision or condition hereof and no consent provided for herein shall be effective unless evidenced by instrument of writing duly executed by the Party against whom enforcement of any waiver, change, modification, extension or discharge is sought. Further, no consent or waiver, express or implied, to or of any breach or default shall constitute a consent or waiver to any other breach.