BUILDER WEBPRESS SERVICE TERMS
Version Date: January 1, 2018
These Builder WebPress Service Terms (“Agreement”) constitutes a legally binding agreement made between you, whether personally or on behalf of an entity (“user” or “you”) and ONeil Interactive, Inc., and its affiliated companies (collectively, “Company” or “we” or “us” or “our”), concerning your access to and use of our software that enables management of new home listing data (the “Listing Data”) known as Builder WebPress (the “Builder WebPress Software”).
YOU ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT BY ACKNOWLEDGING SUCH ACCEPTANCE DURING THE DOWNLOAD PROCESS AND ALSO BY CONTINUING TO USE THE BUILDER WEBPRESS SERVICE. IF YOU DO NOT AGREE TO ABIDE BY THIS AGREEMENT, OR TO MODIFICATIONS THAT COMPANY MAY MAKE TO THIS AGREEMENT IN THE FUTURE, DO NOT USE OR ACCESS OR CONTINUE TO USE OR ACCESS THE BUILDER WEBPRESS SERVICE.
BUILDER WEBPRESS SOFTWARE
The Builder WebPress Software is installed as a plugin on your WordPress website (“Your WordPress Website”) and is downloaded from www.BuilderWebPress.org (the “Builder WebPress Website”). This Agreement does not govern your right to use the Builder WebPress Software. Rather, the Builder WebPress Software is licensed to you pursuant to our End-User License Agreement that accompanies the Builder WebPress Software and which you will be required to agree to prior to using the Builder WebPress Software.
BUILDER WEBPRESS SERVICE
The “Builder WebPress Service” consists of the Syndication Service and Tracking Code Service described below.
The Homefiniti platform (“Homefiniti”), located at www.homefiniti.com, is owned and operated by Company. Among other functionality, Homefiniti provides new home data management services for our customers, and syndicates Listing Data to Internet Listing Services (“ILS”) which make the Listing Data publicly available for consumer searching and other purposes.
When activated in Your WordPress Website, the Builder WebPress Software will automatically create for you an account at Homefiniti, and place a Homefiniti tracking code (the “Tracking Code”) in the footer of Your WordPress Website. Your WordPress administrator name and email address, and the names and email addresses of subsequent administrators added to Your WordPress Website, are used to create the Homefiniti account. Unless deactivated by you in Your WordPress Website dashboard, we will communicate via email with Your WordPress Website administrators. Additionally, the Tracking Code will transmit to Homefiniti a log of Your WordPress Website page visit activity, including details of the Listing Data being viewed (the “Tracking Code Data”), and will also place a cookie on the browser of each visitor to Your WordPress Website.
After the Builder WebPress Software is installed and activated on Your WordPress Website, Homefiniti, using the REST API built into WordPress, will automatically twice a day (or other frequency as we may determine) scrape the Listing Data from Your WordPress Website and will then, without further notice to you, syndicate your Listing Data to ILSs, as determined by Company in its discretion, where consumers will be able to search the Listing Data (the “Syndication Service”). The ILSs may further syndicate the Listing Data to channels of other ILSs. We may also transfer or use your Listing Data for any other purpose for which you may approve.
The Tracking Code Data will be used to (i) provide you through your Homefiniti account with reports on activity occurring on your WordPress Website (e.g., most viewed listings and most popular price points), (ii) enable Homefiniti products and services that you may decide to purchase from Company, and (iii) create and contribute to publicly available industry reports covering new home website traffic and market activity, in an anonymized aggregated format (collectively, the “Tracking Code Service”). The Tracking Code Data shall remain the permanent property of Company, which Company may use internally, and use publicly only in an anonymized aggregated format that does not identify you or your site visitors.
The Listing Data may include text, writings, video, audio, photographs, graphics, or personally identifiable images and information or other material. You hereby grant, and you represent and warrant that you have the right to grant, to Company an unrestricted, unconditional, non-exclusive, transferable, royalty-free, fully-paid, worldwide right and license to host, use, copy, reproduce, disclose, sell, resell, publish, broadcast, retitle, archive, store, cache, publicly perform, publicly display, reformat, translate, transmit, excerpt (in whole or in part) and distribute such Listing Data for the purpose of performing the Builder WebPress Service. All Listing Data remains your property and will be deactivated from the Homefiniti platform upon the deactivation by you of your Homefiniti account and deleted upon the deletion of your Homefiniti account. Removal of your Listing Data at ILSs or other third party locations will be conducted in accordance with each ILS’s or third party’s policies.
Company has the right, in our sole and absolute discretion, to (i) edit, redact or otherwise change any Listing Data for display purposes or (ii) pre-screen or delete any Listing Data that is determined to be inappropriate or otherwise in violation of this Agreement. Please note that we do not control how ILSs or other third parties display your Listing Data.
Please note that in order to use the Builder WebPress Software you are not required to use the Builder WebPress Service. However, you would need to deactivate your Homefiniti account from within the Builder WebPress Software.
BY DOWNLOADING THE BUILDER WEBPRESS SOFTWARE AND INSTALLING THE SOFTWARE ON YOUR WORDPRESS WEBSITE YOU HEREBY CONSENT TO ALL OF THE FEATURES AND PERFORMANCE OF THE BUILDER WEBPRESS SERVICE AS STATED IN THIS AGREEMENT.
Company may alter or cancel the Builder WebPress Service in general, or cancel the performance of the Builder WebPress Service on your behalf, at any time without notice.
You thereby represent and warrant that:
a. the creation, distribution, transmission, public display and performance, accessing, downloading and copying of your Listing Data does not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret or moral rights of any third party;
b. you are the owner of or have the necessary licenses, rights, consents, releases and permissions to use and to authorize Company to use your Listing Data as necessary to exercise the rights and licenses granted by you under this Agreement;
c. you have the written consent, release, and/or permission of each and every identifiable individual person in the Listing Data to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the Listing Data in the manner contemplated by this Agreement; and
d. your Listing Data does not otherwise violate, or link to material that violates, any provision of this Agreement or any applicable law or regulation.
Company reserves the right to take steps Company believes are reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement. You acknowledge and agree that Company may, without liability to you, access, use, preserve and/or disclose your account information and Listing Data to law enforcement authorities, government officials, and/or a third party, as Company believes is reasonably necessary or appropriate, if legally required to do so or if we have a good faith belief that such access, use, disclosure, or preservation is reasonably necessary to: (a) comply with legal process or request; (b) enforce this Agreement, including investigation of any potential violation thereof; (c) detect, prevent or otherwise address security, fraud or technical issues; or (d) protect the rights, property or safety of Company, its users, a third party, or the public as required or permitted by law.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Builder WebPress Service (“Submissions”) provided by you to Company are non-confidential and Company (as well as any designee of Company) shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You may not access or use the Builder WebPress Service for any other purpose other than that for which Company makes it available. Prohibited activity includes, but is not limited to:
a. criminal or tortious activity;
b. systematic retrieval of data or other content from the Builder WebPress Service to create or compile, directly or indirectly, a collection, compilation, database or directory without written permission from Company;
c. tricking, defrauding or misleading Company and other users, especially in any attempt to learn sensitive account information such as passwords;
d. engaging in any automated use of the system, such as using any data mining, robots or similar data gathering and extraction tools;
e. interfering with, disrupting, or creating an undue burden on the Builder WebPress Service or the networks or services connected to the Website;
f. using the Builder WebPress Service as part of any effort to compete with Company or to provide services as a service bureau;
g. deciphering, decompiling, disassembling or reverse engineering any of the software comprising or in any way making up a part of the Builder WebPress Service;
h. attempting to bypass any measures of the Builder WebPress Service designed to prevent or restrict access to the Builder WebPress Service, or any portion of the Builder WebPress Service;
i. harassing, annoying, intimidating or threatening any Company employees or agents engaged in providing any portion of the Builder WebPress Service to you; or
j. using the Builder WebPress Serivce in a manner inconsistent with any and all applicable laws and regulations.
INTELLECTUAL PROPERTY RIGHTS
The content in the Builder WebPress Service and the trademarks, service marks and logos contained therein are owned by or licensed to Company, and are subject to copyright and other intellectual property rights under United States and foreign laws and international conventions.
TERM AND TERMINATION
This Agreement shall remain in full force and effect while you use the Builder WebPress Service. You may terminate your use or participation at any time, for any reason, by closing your Homeinfiniti account and deactivating the Builder WebPress Software on Your WordPress Website. Please contact us for instructions for closing your account by using the contact information on the Builder WebPress Website.
WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, COMPANY RESERVES THE RIGHT TO, IN COMPANY’S SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE BUILDER WEBPRESS SERVICE, TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THIS AGREEMENT, OR OF ANY APPLICABLE LAW OR REGULATION, AND COMPANY MAY TERMINATE YOUR USE OR PARTICIPATION IN THE BUILDER WEBPRESS SERVICE, DELETE YOUR ACCOUNT AND ANY LISTING DATA, WITHOUT WARNING, IN COMPANY’S SOLE DISCRETION.
Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.
Company may modify this Agreement from time to time. Any and all changes to this Agreement will be notified to Your WordPress Website administrator and revisions will be indicated by date. You agree to be bound to any changes to this Agreement when you use the Builder WebPress Service after any such modification becomes effective. We will use the email address of your administrator that was used to create your Homefiniti account for sending notices. It is your obligation to notify us if this email address changes, and Company has the right to rely on the email address in your Homefiniti account for sending notices to you. You agree that you will read the messages we send you to inform you of any changes. Modifications to this Agreement shall be effective after notification.
Company reserves the right at any time to modify or discontinue, temporarily or permanently, the Builder WebPress Service (or any part thereof) with or without notice. You agree that Company shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Builder WebPress Service.
All questions of law, rights, and remedies regarding any act, event or occurrence undertaken pursuant or relating to the Builder WebPress Service shall be governed and construed by the law of Maryland, excluding such state’s conflicts of law rules. Any legal action of whatever nature by or against Company arising out of or related in any respect to the Builder WebPress Service shall be brought solely in either the applicable federal or state courts located in or with jurisdiction over Baltimore County, State of Maryland; subject, however, to the right of Company, at the Company’s sole discretion, to bring an action to seek injunctive relief to enforce this Agreement or to stop or prevent an infringement of proprietary or other third party rights (or any similar cause of action) in any applicable court in any jurisdiction where jurisdiction exists with regard to a user. You hereby consent to (and waive any challenge or objection to) personal jurisdiction and venue in the above-referenced courts. Application of the United Nations Convention on Contracts for the International Sale of Goods is excluded from this Agreement. Additionally, application of the Uniform Computer Information Transaction Act (UCITA) is excluded from this Agreement. In no event shall any claim, action or proceeding by you related in any way to the Builder WebPress Service be instituted more than two (2) years after the cause of action arose. You will be liable for any attorneys’ fees and costs if we have to take any legal action to enforce this Agreement.
YOU AGREE THAT YOUR USE OF THE BUILDER WEBPRESS SERVICE WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE BUILDER WEBPRESS SERVICE AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE BUILDER WEBPRESS SERVICE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF THE BUILDER WEBPRESS SERVICE, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE BUILDER WEBPRESS SERVICE, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE BUILDER WEBPRESS SERVICE, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE BUILDER WEBPRESS SERVICE BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE BUILDER WEBPRESS SERVICE.
LIMITATIONS OF LIABILITY
IN NO EVENT SHALL COMPANY OR ITS DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA OR OTHER DAMAGES ARISING FROM YOUR USE OF THE BUILDER WEBPRESS SERVICE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, COMPANY’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO COMPANY FOR THE BUILDER WEBPRESS SERVICE DURING THE PERIOD OF 3 MONTHS PRIOR TO ANY CAUSE OF ACTION ARISING, OR $10, WHICHEVER IS GREATER.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
You agree to defend, indemnify and hold Company, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from and against, any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of your Listing Data, use of the Builder WebPress Service, and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth above. Company will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
Except as explicitly stated otherwise, any notices given to Company shall be given by email to the address listed on the Builder WebPress Website. Any notices given to you shall be given to the email address in your Homefiniti account, or such other address as each party may specify. Notice shall be deemed to be given 24 hours after the email is sent, unless the sending party is notified that the email address is invalid. We may also choose to send notices by regular mail or other method.
Your use of the Builder WebPress Service includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY SUCH AGREEMENTS AND TRANSACTIONS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO RELATING TO THE BUILDER WEBPRESS SERVICE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.
This Agreement constitutes the entire agreement between you and Company regarding the use of the Builder WebPress Service. The failure of Company to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement operates to the fullest extent permissible by law. This Agreement and your account may not be assigned by you without our express written consent. Company may assign any or all of its rights and obligations to others at any time. Company shall not be responsible or liable for any loss, damage, delay or failure to act caused by any cause beyond Company’s reasonable control. If any provision or part of a provision of this Agreement is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions. Upon Company’s request, you will furnish Company any documentation, substantiation or releases necessary to verify your compliance with this Agreement. You agree that this Agreement will not be construed against Company by virtue of having drafted it. You hereby waive any and all defenses you may have based on the electronic form of this Agreement and the lack of signing by the parties hereto to execute this Agreement.
In order to resolve a complaint regarding the Builder WebPress Service or to receive further information regarding use of the Builder WebPress Service, please contact Company as set forth below or, if any complaint with us is not satisfactorily resolved, and you are a California resident, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 “R” Street, Sacramento, California 95814 or by telephone at 1-916-445-1254.
ONeil Interactive, Inc.
10914 York Rd
Cockeysville, MD 21030