Homepie Terms of Service
Homepie, Inc. – Terms of Service
Last Updated: August 13, 2021
1. Agreement to Terms. By using our Services, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, do not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, “you” and “your” will refer to that company or other legal entity.
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND HOMEPIE THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 17 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION.
3. Changes to Terms or Services. We may update the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the updated Terms on the Site or through other communications. It’s important that you review the Terms whenever we update them or you use the Services. If you continue to use the Services after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you don’t agree to be bound by the updated Terms, then you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
4. About the Services. The Services comprise an online real estate marketplace that is offered to both users who wish to list their homes for sale through the Services (“Sellers”) and users who wish to search for and make offers to purchase homes through the Services (“Buyers”). These Terms govern your use of the Services whether you are acting as a Seller, Buyer, or both. YOU UNDERSTAND AND ACKNOWLEDGE THAT HOMEPIE OFFERS A PLATFORM FOR BUYERS AND SELLERS TO CONNECT WITH ONE ANOTHER VIA THE SERVICES AND THAT ANY AGREEMENTS ENTERED INTO BETWEEN BUYERS AND SELLERS IN CONNECTION WITH THE PURCHASE OF A PROPERTY ARE BETWEEN THE BUYERS AND SELLERS AND THAT HOMEPIE IS NOT A PARTY TO ANY SUCH AGREEMENTS.
(a) Terms Applicable to Sellers. If you are a Seller, you may feature one or more residential properties you wish to sell (the “Property”) on the Services. You are solely responsible for providing all pertinent details about your Property, such as location and asking price, and for ensuring that your Property placement on the Services is complete, accurate, and up-to-date. If you provide photographs, videos, or animations of the Property to the Services, you must ensure, and you agree, that your Property is and will be accurately represented. You acknowledge and agree that Homepie is a licensed real estate broker in the state of California, CA DRE Lic #02135848, as described in further detail in Section 4(d) below, however, Homepie does not offer real estate, financial, or legal advice in connection with the Services. You agree that as a seller of real estate, you are responsible for identifying, understanding, and complying with all laws, rules and regulations that apply to your sale of a Property. Offers that Buyers make for your Property will be communicated to you via the Services. As a Seller, via the functionality of the Services, you permit Homepie to syndicate the listing of your Property on the Services to other online real estate or general marketplaces, including but not limited to Zillow, Trulia, Craigslist and Facebook (the “Other Marketplaces”), as permitted by the functionality of those Other Marketplaces. If Homepie syndicates your listing to Other Marketplaces, you acknowledge and agree that (i) such Other Marketplaces may request additional information or actions from you, such as requiring you to verify your identity as the owner of the listing via phone verification and (ii) the listing of your Property on Other Marketplaces will be subject to the Other Marketplaces’ then-current terms of service. You acknowledge sole responsibility for and assume all risk arising from the listing of your Property on Other Marketplaces, and Homepie has no liability in this regard.
(b) Terms Applicable to Buyers. If you are a Buyer, you may search for Properties that are placed by Sellers on the Services, and you may also communicate with, and make offers to, Sellers to purchase Properties, via the Services. If you are selected as a “Homepie Certified Buyer” by Homepie, you will be able to avail of specific features of the Services. You can learn about how to become a Homepie Certified Buyer on the Site. You acknowledge and agree that Homepie is a licensed real estate broker in the state of California, CA DRE Lic #02135848, however, Homepie does not offer real estate, financial, or legal advice in connection with the Services, and as a Buyer, you should always exercise due diligence and care when deciding to make an offer to purchase a Property.
(c) Terms Applicable to All Users. You represent that your use of the Services will comply with all laws, regulations, these Terms, and any other applicable Homepie policies. When a Seller elects to accept a proposed offer made by a Buyer through the Services, Buyer and Seller will enter into a purchase agreement to purchase the Property (and will have the option to electronically sign that purchase agreement) (“Purchase Agreement”). A form of Purchase Agreement may be presented to Buyers and Sellers through the Services. You understand and acknowledge that (i) any form of Purchase Agreement made available by Homepie through the Services is provided as a convenience for the purchase of Property located in California only and Homepie makes no warranties that such form of Purchase Agreement is comprehensive or addresses all applicable laws in connection with the purchase, sale and transfer of the Property; (ii) the Purchase Agreement, or any other agreement signed by both Buyer and Seller in connection with the purchase of a Property, is a legally binding agreement between Buyer and Seller; (iii) Homepie is not a party to any Purchase Agreement or any other agreement entered into between Buyer and Seller in connection with the purchase of a Property, and (iv) in no circumstances will Homepie become a party to any contractual relationship between Buyer and Seller.
(d) Scope of the Services. Scope of the Services. Homepie is a licensed real estate broker in the state of California, CA DRE Lic #02135848. Homepie is not a lender. Homepie does not, and the Services are not intended to, provide financial, legal, tax, or real estate advice to you, nor does Homepie represent you or any another user in connection with the purchase or sale of properties, including any negotiations undertaken through the Services, except as provided on a limited basis in the following paragraph to those users who choose an MLS option to list their home on an MLS. Homepie does not own, buy, or sell any of the Properties on the Services. You understand that Homepie has no control over and makes no representations, warranties or assurances of any kind whatsoever regarding (i) the suitability, safety or legality of any of the Properties on the Services; (ii) the accuracy of any information about the Properties; or (iii) the identity of Buyers and Sellers on the Services. You accept sole responsibility for any decisions you make from relying on the Services or any action or inaction you take on the Services.
If you, as a Seller, choose an MLS option to list your home on an MLS, a Limited-Services Listing Agreement will be required. The scope of Homepie’s services to Seller under a Limited-Services Listing Agreement is expressly limited to posting the price and terms of the Property for sale on the MLS. The parties hereto agree that no other services will be provided by Homepie. The parties hereto acknowledge that Seller has registered to use Homepie’s electronic transaction platform to sell the Property, but that this agreement does not obligate Homepie to perform any real estate brokerage or licensee services or duties to Seller in connection with Seller’s utilization of Homepie’s electronic transaction platform, and that Seller’s utilization of Homepie’s electronic transaction platform is independent of any rights and duties set forth in this agreement. Seller acknowledges that the MLS has no data connection to the Homepie online platform, therefore, any changes made on the Homepie online platform will not automatically update the information in the MLS. For a Seller who has entered into a Limited-Services Listing Agreement Seller with Homepie, Seller agrees to promptly notify Homepie by phone, email, or message of any changes that need to be made to the information provided to Homepie and posted on the MLS.
The scope of the Limited-Service Listing Agreement does not include following services:
- Provide cooperating brokers with any additional information regarding the Property not already displayed in the MLS. Homepie instead will give cooperating brokers authority to contact Seller directly for further information.
- Presentation to Seller of offers to purchase procured by cooperating brokers. Homepie will instead give cooperating brokers authority to present offers to purchase directly to Seller.
- Advise Seller as to the merits of offers to purchase.
- Assist Seller in developing, communicating, or presenting counteroffers.
- Participate on Seller’s behalf in negotiations for the sale of Property.
- Reviewing, evaluating, or ensuring the accuracy of information provided by Seller or input on the Homepie, Inc. platform by Seller, or on the MLS.
(e) You may also find third-party services providers on the Services which you may need that are related to the purchasing of a Property, such as a title company, home or termite inspection, or appraisal or loan services (“Third Party Services”).
5. Who May Use the Services?
(a) Eligibility. You may use the Services only if you are 18 years or older, capable of forming a binding contract (i.e. these Terms) with Homepie and are not barred from using the Services under applicable law.
(b) Registration and Your Information. If you would like to act as either a Buyer or a Seller, you’ll have to create an account (“Account”). You can do this via the Site or through your account with certain third-party social networking services such as Facebook or Gmail (each, an “SNS Account”). If you choose the SNS Account option we’ll create your Account by extracting from your SNS Account certain personal information such as your name and email address and other personal information that your privacy settings on the SNS Account permit us to access.
(c) Accuracy of Account Information. It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.
6. Feedback. We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at firstname.lastname@example.org. You grant to us a non-exclusive, transferable, worldwide, perpetual, irrevocable, fully-paid, royalty-free license, with the right to sublicense, under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
7. Payments. Homepie requires payment for purchases made through the Services and you agree to pay Homepie for any purchases you make. The applicable prices will be as specified on the Site and via the Services on the date you place your order. When you place your order (each, a “Transaction”), you expressly authorize us (or our third-party payment processor) to charge you for such Transaction. We may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). By initiating a Transaction, you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted or otherwise communicated to you. All payments for Transactions are non-refundable and non-transferable except as expressly provided in these Terms or on the Site or via the Services. All fees and applicable taxes, if any, are payable in United States dollars.
8. Content Ownership, Responsibility and Removal.
(a) Definitions. For purposes of these Terms: (i) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services, including all information about Properties for sale; and (ii) “User Content” means any Content that Account holders (including you) provide to be made available through the Services.
(b) Our Content Ownership. Homepie does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, Homepie and its licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
(c) Rights in User Content Granted by You. By making any User Content available through the Services, you hereby grant to Homepie a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify (for formatting purposes), distribute, publicly display, and publicly perform your User Content in connection with operating and providing the Services and Content to you and to other Account holders, including for purposes of advertising and marketing the Services, via social media and other means.
(d) Your Responsibility for User Content. You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Homepie on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. In some circumstances (for example, when a Seller places Property on the Services for the first time), Homepie may review and, in its sole discretion, accept Seller’s User Content before making such User Content available on the Services. Homepie is not required to make available User Content via the Services, and has no liability under these Terms or otherwise for any failure to do so.
(e) Removal of User Content. You can remove your User Content by contacting us at email@example.com or by specifically deleting it as the functionality of the Services permits. However, in certain instances, some of your User Content (such as posts, comments, or, if applicable, offers and counteroffers you make) may not be completely removed and copies of your User Content may continue to exist on the Services. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
(f) Rights in Content Granted by Homepie. Subject to your compliance with these Terms, Homepie grants to you a limited, non-exclusive, non-transferable license, with no right to sublicense, to view and display the Content solely in connection with your permitted use of the Services.
9. Rights and Terms for Apps.
(a) Rights in App Granted by Homepie. Subject to your compliance with these Terms, Homepie grants to you a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. You may not copy the App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App (unless applicable law permits despite this limitation); or (iv) make the functionality of the App available to multiple users through any means. Homepie reserves all rights in and to the App not expressly granted to you under these Terms.
(b) Accessing App from App Store. The following terms apply to any App accessed through or downloaded from any app store or distribution platform (like the Apple App Store or Google Play) where the App may now or in the future be made available (each an “App Provider”). You acknowledge and agree that:
- These Terms are concluded between you and Homepie, and not with the App Provider, and Homepie (not the App Provider), is solely responsible for the App.
- The App Provider has no obligation to furnish any maintenance and support services with respect to the App.
- In the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the App to you (if applicable) and, to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Homepie.
- The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- In the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, Homepie will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
- The App Provider, and its subsidiaries, are third-party beneficiaries of these Terms as related to your license to the App, and that, upon your acceptance of the Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third-party beneficiary thereof.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- You must also comply with all applicable third party terms of service when using the App.
10. General Prohibitions and Homepie’s Enforcement Rights. You agree not to do any of the following:
(a) Post, upload, publish, submit or transmit any User Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
(b) Use, display, mirror or frame the Services or any individual element within the Services, Homepie’s name, any Homepie trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Homepie’s express written consent;
(c) Access, tamper with, or use non-public areas of the Services, Homepie’s computer systems, or the technical delivery systems of Homepie’s providers;
(d) Attempt to probe, scan or test the vulnerability of any Homepie system or network or breach any security or authentication measures;
(e) Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Homepie or any of Homepie’s providers or any other third party (including another user) to protect the Services or Content;
(f) Attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Homepie or other generally available third-party web browsers;
(g) Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
(h) Use any meta tags or other hidden text or metadata utilizing a Homepie trademark, logo URL or product name without Homepie’s express written consent;
(i) Use the Services or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
(j) Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive or false source-identifying information;
(k) Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content;
(l) Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
(m) Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
(n) Impersonate or misrepresent your affiliation with any person or entity;
(o) Violate any applicable law or regulation; or
(p) Encourage or enable any other individual to do any of the foregoing.
Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, including User Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
11. Third Party Websites, Resources, and Services; No Solicitation.
(a) Third Party Websites and Resources. The Services (including the App) may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
(b) Third Party Services. As set forth in Section 4(e), the Services (including the App) may offer referrals or recommendations for Third Party Services. Such Third Party Services are solely responsible for the services they offer you and Homepie has is not party to any agreement you enter with a Third Party Services provider. You acknowledge sole responsibility for and assume all risk arising from your use of any Third Party Services and Homepie has no liability in this regard. You acknowledge that in some instances Homepie at its discretion may be paid by certain Third Party Services providers consideration in exchange for providing referrals or recommendations to Third Party Services via the Services.
(c) No Solicitation. You agree that, whether you are a real estate agent or not, you may not use the Services to directly or indirectly solicit for real estate brokerage or other related services.
12. Termination. We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. You may cancel your Account at any time by sending an email to us at firstname.lastname@example.org. Upon any termination, discontinuation or cancellation of the Services or your Account, the following Sections will survive: 8(a), 8(b), 8(c), 12, 13, 15, 16, 17, and 18. Notwithstanding the foregoing, if Homepie terminates the Services and/or cancels your Account in accordance with this Section 12, you agree not to assert any claim of interference or delay against us in connection with the purchase or sale of your Property.
13. Warranty Disclaimers. THE SERVICES AND CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WE MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WE MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT. HOMEPIE ASSUMES NO RESPONSIBILITY FOR ANY RESULT OR CONSEQUENCE ARISING FROM ANY ACTION OR INACTION THAT USERS TAKE BASED ON THE SERVICES OR ANY OTHER INFORMATION AVAILABLE THROUGH THE SERVICES.
HOMEPIE DOES NOT VET THE CONTENT IT OBTAINS FROM BUYERS, SELLERS, THIRD PARTY DATA SOURCES, LICENSORS OR SERVICE PROVIDERS THAT ARE MADE AVAILABLE ON THE SERVICES FOR ACCURACY, AND IS NOT RESPONSIBLE FOR ANY ERRORS IN DISPLAYED INFORMATION OR DELAYS IN DISPLAYING INFORMATION ON THE SERVICES. ANY USE OR RELIANCE ON ANY USER CONTENT, OR OTHER INFORMATION ON THE SERVICES OR OBTAINED BY YOU THROUGH THE SERVICES IS AT YOUR OWN RISK, INCLUDING INFORMATION PROVIDED BY OR FOR HOMEPIE.
HOMEPIE IS NOT RESPONSIBLE FOR, AND HOMEPIE MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE DELIVERY OF ANY MESSAGES (I.E. BETWEEN BUYERS AND SELLERS) SENT THROUGH THE SERVICES. HOMEPIE HAS NO OBLIGATION TO VERIFY THE IDENTITY OF THE PERSONS USING ITS SERVICES, NOR DOES HOMEPIE HAVE ANY OBLIGATION TO MONITOR THE USE OF ITS SERVICES. HOMEPIE DISCLAIMS ALL LIABILITY FOR IDENTITY THEFT OR ANY OTHER MISUSE OF YOUR IDENTITY OR INFORMATION BY OTHERS.
14. Indemnity. You will indemnify and hold harmless Homepie and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services, (ii) your User Content, (iii) your interaction with any other user of the Services, whether or not you decide to enter into a Purchase Agreement with that user or whether or not you are acting as a Buyer or Seller; (iv) any interference, delay, or other adverse impact in connection with the purchase or sale of Property, whether or not you are acting as a Buyer or Seller, (v) any physical damage to a Property (such as theft or vandalism) or personal injury that arises in connection with listing a Property on the Services; or (vi) your violation of these Terms, applicable law, regulations or third party rights.
15. Limitation of Liability.
(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER HOMEPIE NOR ANY OTHER PARTY INVOLVED IN DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, DIMINUTION OF VALUE, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT HOMEPIE OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
(b) TO THE MAXIMUM EXTENT PERMITTED BY THE LAW, IN NO EVENT WILL HOMEPIE’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS YOU HAVE PAID OR ARE PAYABLE BY YOU TO HOMEPIE FOR USE OF THE SERVICES OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO HOMEPIE, AS APPLICABLE.
(c) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN HOMEPIE AND YOU.
16. Governing Law and Forum Choice. These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 17 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and Homepie are not required to arbitrate will be the state and federal courts located in the Central District of California, and you and Homepie each waive any objection to jurisdiction and venue in such courts.
17. Dispute Resolution.
(a) Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Homepie agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Homepie are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
(b) Exceptions. As limited exceptions to Section 17(a) above: (i) you may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
(c) Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
(d) Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
(e) Injunctive and Declaratory Relief. Except as provided in Section 17(b) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
(f) Class Action Waiver. YOU AND HOMEPIE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
(g) Severability. With the exception of any of the provisions in Section 17(f) of these Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
18. General Terms.
(a) Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between Homepie and you regarding the Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Homepie and you regarding the Services. Notwithstanding the foregoing, you acknowledge and agree that these Terms between you and Homepie are an agreement relating to use of the Services and independent to any Purchase Agreement or other agreement entered into between Buyer and Seller in connection with the purchase, sale, and transfer of a Property featured on the Services. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Homepie’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Homepie may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
(b) Notices. Any notices or other communications provided by Homepie under these Terms, will be given: (i) via email; or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
(c) Waiver of Rights. Homepie’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Homepie. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
19. Public Health Emergencies. We take the health and safety of our users very seriously. In response to public health emergencies, such as, but not limited to, pandemics, we may post certain rules or guidelines on our FAQ page, available online at: https://homepie.com/articles/support/homepie-covid-19-notice-to-users, or otherwise on our Site. By using the Services, you agree to follow such guidelines.
20. Contact Information. If you have any questions about these Terms or the Services, please contact Homepie at email@example.com.