Effective: March 20th, 2023
Enterprise Client Terms of Service
These Terms of Service are a binding legal agreement between the Client or Clients (also referred to as "you" and "your") party or parties to the Agreement (as defined below) which incorporates these Terms of Service by reference and HomeX, LLC (d/b/a HomeX) ("HomeX," "we," "us," and "our"). HomeX may provide Services through its Affiliates hereunder. HomeX may periodically make changes to these Terms of Service, and if we do we will post the changes on this page and will indicate at the top of this page the date this Agreement was last updated. HomeX will also give Client not less than thirty (30) days advance notice of any material changes, unless such material changes result from changes in laws, regulations, or requirements from telecommunications or other providers. Following such notice, Client's continued use of the Services on or after the date the updated version of these Terms of Service are effective and binding constitutes Client's acceptance of the updated version of these Terms of Service. Client should periodically visit this page to review the current version of these Terms of Service so that Client is aware of any revisions. If Client does not agree to abide by these Terms of Service, Client will not access, browse, or use the Service.
THESE TERMS OF SERVICE CONTAIN AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE CLIENT TO SUBMIT CLAIMS CLIENT HAS AGAINST HOMEX TO BINDING AND FINAL ARBITRATION, AND WAIVES EACH PARTY'S RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. UNDER THE ARBITRATION AGREEMENT, (1) CLIENT MAY ONLY PURSUE CLAIMS AGAINST HOMEX ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) CLIENT MAY ONLY SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
Section A: General Terms and Conditions
These terms and conditions form part of these Terms of Service between Client and HomeX which governs Client's license and use of the Services of HomeX. Client acknowledges that it may not access or receive the Services if Client is a direct competitor of HomeX.
Definitions and Interpretation
Defined Terms. The terms listed in this Section A.1.1 shall have the following meanings:
- "Activate" or "Activation" means the delivery by HomeX to Client of the relevant resources and information necessary to begin providing the applicable Service in accordance with the applicable Section hereof and Documentation. For the avoidance of doubt, Activation following the execution of an updated Service Order to an existing Agreement for the purposes of renewing a Subscription Term shall mean the signature date of such updated Service Order.
- "Affiliate(s)" means any entity which directly or indirectly, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. For clarification purposes, the use of the word "Client" in these Terms of Service is inclusive of Client company and its Affiliates, provided Client has the authority to bind such Affiliates to the terms and conditions of these Terms of Service and provided that any use of the Services by such Affiliates are approved in advance by HomeX.
- "Agreement" means a written agreement entered into by HomeX and a Client or Clients party or parties thereto, subject to these Terms of Service and fundamentally for the purposes of the provision of products or performance of services by HomeX in accordance therewith and herewith.
- “Agreement Term” means the term (or terms) identified in the Service Order.
- "Application Services" means the generally available Web-based, on-line, hosted software listed and selected in the applicable Agreement, including, without limitation, all corrections, updates, modifications, releases, versions, and enhancements to such software that may hereafter be generally released by HomeX. Application Services includes HomeX’s Diagnostic Platform and Partner Portal.
- "Authorized User" means one individual natural person, whether an employee, business partner, contractor, or agent of Client or its Affiliates who is registered by Client to use the Application Services. An Authorized User must be identified by a unique email address and username, and two or more persons may not use the Application Services as the same Authorized User. If the Authorized User is not an employee of Client, use of the Application Services will be allowed only if the user is under confidentiality obligations with Client at least as restrictive as those in this Agreement, is accessing or using the Application Services solely to support Client's and/or Client Affiliates' internal business purposes, and for whom Client will be responsible for ensuring full compliance with the terms of the Agreement.
- "Client Content" shall have the meaning set forth in the Data Protection Section hereof.
- "Contracted Services" means any services other than Application Services and may include professional services, Live Expert Help, Setup, Integration, Deployment, and any other such services selected in the Service Order in effect hereunder.
- "Customer" means any person who uses the Application Services or interacts with user interfaces provided by HomeX or its Affiliates, including but not limited to audio and video, to engage with the Client or HomeX.
- “Deployment” means efforts by HomeX to prepare for the delivery of Live Expert Help Services and may include custom scripting and required training for HomeX Techs.
- "Documentation" means HomeX's then current guides and manuals published or otherwise made generally available by HomeX for the Services.
- "HomeX Entities" means Home Experience, LLC and its officers, directors, employees, consultants, affiliates, subsidiaries and agents.
- "Integration" means, as the context allows, either (a) the established connection between the Application Services and Client's systems for the purposes of providing the Services, or (b) the process of establishing and maintaining such connection.
- "Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
- "Metered Fee" means a fee for an Application Service or a Contracted Service that is provided by HomeX or an Affiliate to Client on a metered basis (e.g. $/Minute) and for which Client is charged a per-usage fee at the applicable rates for the corresponding billing period.
- “One-Time Fee” means a fee for a Contracted Service that is nonrecurring and not based on usage, usually for one-time events such as Setup, Integration, and Deployment of Service.
- "Personal Data" shall have the meaning set forth in the Data Protection Section.
- "Services" means any services provided by HomeX hereunder, including but not limited to the Application Services and/or the Contracted Services.
- "Setup” means efforts by HomeX to prepare Application Services for Activation and may include initial user access, branding, and content of notifications.
- “Subscription Fee” means a fee for an Application Service or Contracted Service that is provided by HomeX or an Affiliate to Client at a flat periodic rate (e.g. $/Month or Year) for the corresponding billing period.
- “Subscription Term” means the term (or terms) identified in the Service Order.
Singular and Plural Forms. Words used herein in the singular, where the context so permits, shall be deemed to include the plural and vice versa. The definitions of words in the singular in Section A.1.1 above shall apply to such words when used in the plural where the context so permits and vice versa.
Service Order References. Unless expressly stated otherwise, a reference to a Service Order shall be deemed to mean the latest Service Order document executed by Client and HomeX in connection with these Terms of Service.
Headings. Headings in these Terms of Service are for the convenience of the parties only and shall not constitute a part of these Terms of Service when interpreting or enforcing these Terms of Service.
Grant of License for Application Services / Contracted Services Subscription.
Application Services License. Subject to the terms and conditions of these Terms of Service and the Agreement, HomeX hereby grants to Client a limited, non-exclusive and nontransferable license to, during the Subscription Term, solely for it and its Affiliates' internal business purposes, and in accordance with the Documentation, to: (a) access and use the Application Services via the internet, (b) implement, configure, and permit its Authorized Users to access and use the Application Service; and (c) use the Documentation provided by HomeX. Client will ensure that its Affiliates and all Authorized Users using the Application Services comply with all of Client's obligations under these Terms of Service and the Agreement, and Client is responsible for their acts and omissions relating to these Terms of Service and the Agreement as though they were those of Client.
Contracted Services. Subject to the terms and conditions of these Terms of Service and the Agreement, HomeX hereby agrees to deliver to the Client any Contracted Services selected in the Service Order.
Restrictions. The license and subscription granted in Sections A.2.1 and A.2.2 above are conditioned upon Client's compliance with the terms and conditions of these Terms of Service. Client may use the Services solely for its own internal business purposes, in compliance with applicable law, and shall not: (a) permit any third party to access or receive the Services except as permitted herein, (b) license, sublicense, sell, resell, rent, lease, transfer, distribute, use the Services for commercial time sharing, outsourcing or otherwise commercially exploit the Services; (c) create derivative works based on the Application Services; (d) modify, reverse engineer, translate, disassemble, or decompile the Application Services, or cause or permit others to do so; (e) copy, frame or mirror any content forming part of the Services, other than on Client's own intranets or otherwise for its own internal business purposes; (f) access or use the Services in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Services; (g) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (h) upload Malicious Code to the Services or use the Services to store or transmit Malicious Code, (i) interfere with or disrupt the integrity or performance of the Services, or (j) attempt to gain unauthorized access to the Services or their related systems or networks; and (k) remove any title, trademark, copyright and/or restricted rights notices or labels from the Services or Documentation.
Reserved Rights. HomeX hereby reserves all rights in and to the Services and Documentation not expressly granted in these Terms of Service.
HomeX Responsibilities. HomeX shall use commercially reasonable efforts to maintain the availability of the Application Services and provide the Contracted Services and the Client Content made available via those Services. HomeX shall use commercially reasonable efforts to notify the Client of any Services outages (in advance if such outages are planned) and to correct such outages or any failure of the Services to operate in material conformance with the Documentation. HomeX may utilize one or more subcontractors or other third parties to perform its duties under this Agreement so long as HomeX remains responsible for all of its obligations under this Agreement.
Client Responsibilities. Client shall be responsible for each Authorized User's compliance with these Terms of Service and be responsible for the Client Content, including but not limited to ensuring compliance with Section A.2.3 (Restrictions) by Client and all Authorized Users. Any conduct by Client (i) that in HomeX's discretion restricts or inhibits any other HomeX customer from using or enjoying the Services, or (ii) Client's indecent, unworkmanlike or otherwise reprehensible behavior towards HomeX personnel, is expressly prohibited and constitutes a material breach of these Terms of Service. Client will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify HomeX promptly of any such unauthorized access or use. Client shall be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of the Services and all charges related thereto.
Suspension of Access. HomeX may suspend any use of Services, or remove or disable the account of any Authorized User or content that HomeX reasonably and in good faith believes violates these Terms of Service. HomeX will use commercially reasonable efforts to notify Client prior to any such suspension or disablement, unless HomeX reasonably believes that: (a) it is prohibited from doing so under applicable law or under legal process (such as court or government administrative agency processes, orders, mandates, and the like); or (b) it is necessary to delay notice in order to prevent imminent harm to HomeX, the Services, or a third party. Under circumstances where notice is delayed, HomeX will provide notice if and when the related restrictions in the previous sentence no longer apply.
Payment. Client agrees to pay HomeX fees in accordance with the amounts and periods specified in the Service Order. Any payment not received from Client by the due date may accrue, at HomeX's discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower; from the date such payment was due until the date paid. Client also agrees to be responsible for any collection fees, court costs and reasonable attorney fees incurred by HomeX to the greatest extent permitted by law. Client hereby authorizes HomeX to automatically charge the method of payment provided to HomeX for all Services while the Agreement and these Terms of Service remain in effect or until all outstanding amounts hereunder have been paid in full.
Taxes. All Fees and other amounts payable by Client under these Terms of Service are exclusive of taxes and similar assessments. Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on HomeX's income.
Suspension of Services. If any amount owed by Client is 30 days or more overdue, HomeX may, upon 7 days' prior notice to Client, without limiting its other rights and remedies, suspend Services until such amounts are paid in full. No grace period or prior notice shall be required where payment is late in two consecutive billing cycles. HomeX shall not exercise its rights under this Section A.4.3 if the applicable charges are under reasonable and good-faith dispute and Client is cooperating diligently to resolve the dispute. If for any reason the Client account was suspended, the Client may be subject to a $50 processing fee to re-establish their Services in good standing.
Intellectual Property Rights
General. HomeX, its Affiliates, or its licensors own all right, title, and interest in and to any and all copyrights, trademark rights, patent rights, database rights, and other intellectual property or other rights in and to the Services and Documentation, any improvements, design contributions, or derivative works thereto, and any knowledge or processes related thereto and/or provided hereunder. Unless otherwise specified in these Terms of Service, all deliverables provided by or for HomeX in the performance of Contracted Services, excluding Client Content and Client Confidential Information, are owned by HomeX and constitute part of the HomeX Service(s) under these Terms of Service.
Ownership of Client Content. Client exclusively owns all right, title and interest in and to the Client Content and Client Confidential Information. HomeX shall not be prohibited from retaining and using Client Content and Client Confidential information collected by HomeX in the ordinary course of its collection of data relating to the performance of the Services, provided that any retained information shall remain subject to the provisions of these Terms of Service for so long as it remains in HomeX's possession.
Suggestions. HomeX welcomes feedback from its customers about the Services. If Client (including any Authorized User) provides HomeX with any feedback or suggestions regarding the Services ("Feedback"), HomeX shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to the Feedback and may use or incorporate Feedback into the Services, disclose, reproduce, or otherwise distribute and exploit the Feedback without restriction or any obligation to Client or any Authorized User.
Service Developments. By way of further clarification and not limitation, the parties specifically understand and agree that any benchmarking, business analysis modification, development, improvement (collectively "Developments"), made by or on behalf of HomeX in connection with the Services, whether as a result of Client's use of the Services or otherwise, including, without limitation, any Developments based on Feedback, Client Content and/or Client Confidential Information shall be the sole property of HomeX, provided that any Developments that consist of data or data sets originating from Client Personal Data will include only information that is deidentified such that it does not directly identify Client, any organization, or disclose the Personal Data of any individual.
Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including Personal Data, the Application Services, information that qualifies as a trade secret under applicable law, business and marketing plans, technology, financial and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party. The terms and conditions set forth herein and in the Agreement (including pricing and Services details) are HomeX's Confidential Information.
Confidentiality. The Receiving Party shall not disclose, transmit, or otherwise disseminate to a third party any Confidential Information, except as otherwise expressly permitted under these Terms of Service or the Agreement, with the express prior written consent of the disclosing party, or as required by law. The Receiving Party may disclose the Disclosing Party's Confidential Information to its employees, Affiliates, consultants, subcontractors, agents, or advisors who have a strict need to access the Confidential Information for the purpose of performing under these Terms of Service or the Agreement and only to those who are obligated to maintain the confidentiality of such Confidential Information upon terms at least as protective as those contained in these Terms of Service (each a "Representative").
Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event using less than reasonable care. The disclosure of Confidential Information shall not constitute an express or implied grant or license to Receiving Party of any rights to or under Disclosing Party's patents, copyrights, trade secret rights, trademark rights or any other intellectual property rights. Each party shall be responsible for any breach of this Section A.6. by any of its Representatives.
Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. In the case of a compelled disclosure, the party from whom disclosure is sought shall disclose only the portion of the Confidential Information that is required to be disclosed and any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure.
Remedies. The Receiving Party acknowledges that the remedy at law for any breach or threatened breach of this Section A.6 (Confidentiality) may cause irreparable, non-monetary injury to the Disclosing Party, the extent of which may be difficult to ascertain. As a result, in addition to any other remedy the Disclosing Party may have, it shall be entitled (but not required) to seek equitable relief, including, without limitation, an injunction or injunctions (without the requirement of posting a bond, other security or any similar requirement or proving any actual damages), to prevent breaches or threatened breaches of this Section A.6 by the Receiving Party and to enforce the terms and provisions of this Section A.6 in addition to any other remedy to which the Disclosing Party is entitled at law or in equity Absent written consent of the Disclosing Party to the disclosure, the Receiving Party, in the case of a breach of this Section A.6, has the burden of proving that the Disclosing Party's Confidential Information is not, or is no longer, confidential or a trade secret and that the disclosure does not otherwise violate this Section A.6.
Representation and Warranties; Disclaimers.
HomeX warrants that the Service will, during the Subscription Term, materially conform to any description of the Service published by HomeX. As HomeX's sole and exclusive liability for breach of this limited warranty, and Client's sole and exclusive remedy, HomeX will make reasonable efforts to correct the non-conformity.
Client represents and warrants that Client will not upload or request that HomeX import any information (including personal information) to the Service unless the Client (a) has all consents, permissions and licenses necessary to do so and to authorize HomeX's collection, use, disclosure and retention of that information in accordance with this Agreement; and (b) Client's use of the Service will not subject HomeX to any liability or cause HomeX to violate any law, rule, or regulation or guideline.
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS. HOMEX DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, GUARANTEES AND PROMISES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED REPRESENTATION, WARRANTY, CONDITION, GUARANTEE OR PROMISE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY REPRESENTATION, WARRANTY, CONDITION, GUARANTEE OR PROMISE ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. HOMEX DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND HOMEX DOES NOT WARRANT THAT ANY SUCH ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CLIENT FROM THE SERVICE OR THE HOMEX ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY REPRESENTATION, WARRANTY, CONDITION, GUARANTEE OR PROMISE REGARDING ANY OF THE HOMEX ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. HOMEX IS NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND CLIENT'S DEALING WITH ANY OTHER SERVICE USER. CLIENT UNDERSTANDS AND AGREES THAT IT USES ANY PORTION OF THE SERVICE AT ITS OWN DISCRETION AND RISK, AND THAT HOMEX IS NOT RESPONSIBLE FOR ANY DAMAGE TO CLIENT'S PROPERTY (INCLUDING CLIENT'S COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING CLIENT CONTENT.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. HomeX does not disclaim any warranty or other right that HomeX is prohibited from disclaiming under applicable law. No action for breach of any of the warranties made by HomeX may be commenced more than one (1) year following the expiration of the Subscription Term during which the warranty was first alleged to be breached.
Damages and Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE HOMEX ENTITIES BE LIABLE TO CLIENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS, ARISING OUT OF OR RELATING TO CLIENT'S ACCESS TO OR USE OF, OR CLIENT'S INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE OR ARISING OUT OF OR WITH RESPECT TO ANY PRODUCTS OR SERVICES (INCLUDING PROFESSIONAL SERVICES) PROVIDED BY HOMEX, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY HOMEX ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE HOMEX ENTITIES TO THE CLIENT FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT), STATUTE, OR ANY OTHER LEGAL THEORY, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT THAT CLIENT HAS PAID TO HOMEX FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 8 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Independent Allocations of Risk. Each provision of these Terms of Service that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of these Terms of Service between the Parties. This allocation is reflected in the pricing offered by HomeX to Client and is an essential element of the basis of the bargain between the Parties. Each of these provisions is severable and independent of all other provisions of these Terms of Service, and each of these provisions will apply even if the warranties in these Terms of Service have failed of their essential purpose.
To the fullest extent permitted by law, Client is responsible for Client's use of the Services, and Client will defend and indemnify the HomeX Entities from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys' fees and costs, arising out of or connected with: (a) Client's unauthorized use of, or misuse of, the Services; (b) Client's violation of any portion of these Terms of Service or the Agreement, any representation, warranty, or agreement referenced in these Terms of Service or the Agreement, or any applicable law or regulation; (c) Client's violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right, in connection with Client's use of the Services or any data, materials or information Client provides to the Services; (d) any dispute or issue between Client and any third party; (e) any actions or inactions of Client or any Authorized User while using or interacting with the Application Services; (f) Client or any Authorized User’s gross negligence or willful misconduct; or (g) Client's interactions or data sharing with any Client Data Processor (as such term is defined in the Data Protection Section. HomeX reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Client (without limiting Client's indemnification obligations with respect to that matter), and in that case, Client agrees to cooperate with HomeX's defense of those claims.
HomeX may access Client's account and Client Content as necessary to identify or resolve technical problems and to respond to complaints about the Services. HomeX shall also have the right, but not the obligation, to monitor (live or on a recorded basis) all or any portion of the Services to determine Client's compliance with these Terms of Service or otherwise to assess the performance of the Services. Without limiting the foregoing and with two (2) days prior notice, HomeX shall have the right to remove any material submitted to the Services that HomeX finds to be in violation of the terms of these Terms of Service (provided that no prior notice shall be required in the event the material in question is considered by HomeX to be unlawful or infringing on the rights of any third party).
Termination. A party may terminate the Agreement or a Service for cause (i) upon thirty (30) days prior written notice to the other party of a material breach by the other party if such breach remains uncured at the expiration of such period; (ii) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; or (iii) as otherwise provided in any Section hereof or in the Service Order.
Effects of Termination. Upon any expiration or termination of the Agreement or a Service, the rights and licenses granted hereunder either for such specific Service or all Services, as applicable, will automatically terminate, and Client (or any of its Authorized Users) may not continue to use/receive or use the Services. If the Agreement is terminated based on Client's uncured material breach, Client shall pay immediately upon termination any unpaid fees and commitments hereunder or under the applicable Section and any fees for the balance of any unused portion of the Subscription Term. Termination of an Agreement shall not limit the parties from pursuing any other remedies available to it, including injunctive relief.
Retrieval of Client Content. Upon Client's written request made on or prior to expiration or termination of the Agreement, HomeX will give Client limited access to the Application Services for a period of up to thirty (30) days after such expiration or termination, at no additional cost, solely for purposes of retrieving Client Content ("Retrieval Period"). After such Retrieval Period and subject to HomeX's legal obligations with respect to access and rectification of personal information, notably, HomeX has no obligation to maintain or provide any Client Content and shall be entitled to, unless legally prohibited, delete Client Content by deleting Client's account; provided, however, that HomeX will not be required to remove copies of the Client Content from its backup media and servers until such time as the backup copies are scheduled to be deleted, provided further that in all cases HomeX will continue to protect the Client Content in accordance with the Agreement and these Terms of Service. Client Content will be made available to authorized points of contact in CSV or JSON format. For clarity, during the Subscription Term, Client may extract Client Content using HomeX's standard web services.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
Agreement to Arbitrate. This Section 12 is referred to as the "Arbitration Agreement." Client agrees that any and all disputes or claims that have arisen or may arise between Client and HomeX, whether arising out of or relating to this Agreement (including these Terms of Service), shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that Client may assert individual claims in small claims court, if Client claims qualify. Client agrees that, by agreeing to this Arbitration Agreement, Client and HomeX are each waiving the right to a trial by jury or to participate in a class action. This Arbitration Agreement includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. Each party's rights will be determined by a neutral arbitrator. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Notwithstanding the foregoing, this Arbitration Agreement shall not preclude either party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate; provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Arbitration Agreement.
Prohibition of Class and Representative Actions and Non-Individualized Relief. Client and HomeX agree that each may bring claims against the other only on an individual basis and not as plaintiff or class member in any purported class or representative action or proceeding. Unless both Client and HomeX agree otherwise, the arbitrator may not consolidate or join more than one person's or party's claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party's individual claim(s).
Pre-Arbitration Dispute Resolution. HomeX is always interested in resolving disputes amicably and efficiently, and most concerns can be resolved quickly by emailing your designated HomeX Client support team. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to HomeX should be sent to HomeX, 1440 W Taylor St, PMB 4041, Chicago, IL 60607 ATTN: LEGAL ("Notice Address"). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If HomeX and Client do not resolve the claim within sixty (60) calendar days after the Notice is received, HomeX or Client may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by HomeX or Client shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Client or HomeX is entitled.
Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association's ("AAA") rules and procedures, including the AAA's Commercial Arbitration Rules (the "AAA Rules"), as modified by this Arbitration Agreement. Any arbitration hearing will take place at a location to be agreed upon in Cook County, Illinois. If the parties are unable to agree on a location within Cook County, Illinois, the determination shall be made by AAA. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the Arbitration Agreement terms would not result in a fundamentally fair arbitration. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. If Client's claim is for $10,000 or less, HomeX agrees that Client may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing or by an in-person hearing as established by the AAA Rules. If Client's claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. Any payment of attorneys' fees will be governed by the AAA Rules, or by statute.
Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than clause 12.2 above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of clause 12.2 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of this Agreement will continue to apply.
General. These Terms of Service as incorporated into an Agreement are intended for the sole and exclusive benefit of the parties and is not intended to benefit any third party. The parties are independent contractors, and no branch or agency, partnership, association, joint venture, employee-employer, or franchisor-franchisee relationship is intended or created by an Agreement.
Access and Modifications. HomeX does not provide Client with the equipment to access the Service. Client is responsible for all fees charged by third parties to access the Service (e.g., Internet access charges). Client agrees and acknowledges that HomeX may update and otherwise change the Service from time to time in its sole discretion during or after the Subscription Term, provided that such modifications do not materially degrade any of the functionality or features of the Service to which Client has subscribed. HomeX reserves the right to modify or discontinue, temporarily or permanently, all or a part of the Service without notice. HomeX will not be liable to Client or to any third party for any modification, suspension, or discontinuance of the Service, except that if HomeX permanently discontinues the Service, HomeX will provide Client, as Client's sole and exclusive remedy, and HomeX's sole and exclusive liability, a pro-rated refund representing the unused (as of the date of termination) portion of any Subscription Fees that Client has paid in advance.
Severability. If any portion hereof is found to be void or unenforceable, the remaining provisions of these Terms of Service shall remain in full force and effect.
Assignment. Client may not assign this Agreement or any right, duty, or obligation under this Agreement, without HomeX's prior written consent, including, for the avoidance of doubt, to any acquirer of its business. If consent is given, this Agreement will bind Client's successors and assigns. Any attempt by Client to transfer any right, duty, or obligation under this Agreement except as expressly provided in this Agreement is void. HomeX may assign this Agreement or any right, duty, or obligation under this Agreement, at any time without Client's consent.
Amendments. HomeX reserves the right to unilaterally amend any portion of these Terms of Service in its sole discretion if such amendment is made to (i) comply (to the sole satisfaction of HomeX) with any law, rule or regulation affecting HomeX in effect now or hereafter, (ii) implement a Standards-Driven Modification, or (iii) reflect new or remove outdated features, functionality or pricing and in accordance with provisions set forth in such Sections. Any such amendment shall be effective immediately. Other than as set forth herein, any waiver, modification or amendment of any provision of these Terms of Service will be effective only if in writing and signed by duly authorized representatives of the party against whom the waiver, modification or amendment is to be asserted. As used herein, "Standards-Driven Modification" means a modification to the terms of these Terms of Service or policies that are (or may in the future) be referenced herein or incorporated herein, which HomeX reasonably deems necessary to implement to achieve and maintain compliance with certain industry standards such as SOC, ISO, etc.
Entire Agreement; Breach and Waiver. The Agreement and these Terms of Service, including all exhibits and addenda hereto and thereto, constitute the complete and exclusive understanding and agreement between the parties regarding their subject matter and supersede all prior or contemporaneous agreements or understandings, written or oral, relating to their subject matter. To the extent of any conflict or inconsistency between the provisions in the body of these Terms of Service and any exhibit, addendum or Section hereto, the terms of such exhibit, addendum or Section, shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Client-provided purchase order or in any other Client order documentation shall be incorporated into or form any part of these Terms of Service, and all such terms shall be null and void.
Force Majeure. Subject to the further provisions of this Section, any delays or failures by either party hereto in the performance of the obligations hereunder shall be excused if and to the extent that such delays or failures are caused by occurrences beyond such party's reasonable control, including, without limitation, acts of God, strikes or other labor disturbances, war, whether declared or not, sabotage, and/or any other cause or causes, whether similar or dissimilar to those herein specified, which cannot reasonably be controlled by such party. The period of excused performance pursuant to the foregoing shall be (and only shall be) the actual period during which such an occurrence continues.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, as if performed wholly within the state and without giving effect to the principles of conflict of law. Any legal action or proceeding arising under an Agreement or these Terms of Service and not within the arbitration provisions set forth above will be brought exclusively in the federal or state courts located in Cook County, Illinois, and the parties hereby irrevocably consent to personal jurisdiction and venue therein.
Client Reference. Client agrees to permit HomeX to include the Client's name and logo in its marketing and advertising materials to identify Client as a customer of HomeX.
Survival. The parties' rights and obligations of these Terms of Service which by their nature should survive their expiration or termination, including those under Sections A.3.2 (Client Responsibilities), A.4 (Fees), A.5 (Intellectual Property Rights), A.6 (Confidentiality), 8 (Damages and Limitation of Liability), 9 (Indemnification), and 11 (Termination) shall survive the termination or expiration of these Terms of Service for any reason.
Notices. All notices required or contemplated by these Terms of Service shall be in writing (including by email). Notices shall be delivered or mailed to the address or emailed to the addresses identified in this Agreement. Any notice to be given or served hereunder by either party shall be deemed given and received hereunder when delivered personally, emailed, sent by nationally recognized overnight delivery service, or three (3) days after being mailed by certified mail, postage prepaid, to Client or HomeX in accordance with this Section.
Section B: Data Protection
Defined Terms. The terms listed in this Section B.1.1 shall have the following meanings in these Terms of Service:
- "Client Content" means all electronic data or information submitted to the Application Services or otherwise by Client, the Client's Authorized Users or a Customer, including video and audio from remote service sessions. It also includes data collected by HomeX customer support agents and logged to the Client administration portal. For the avoidance of doubt, "Client Content" includes all Personal Data of Client's Authorized Users and Customers, to the extent made available to HomeX via or in connection with the Application Services ("Client Personal Data"). "Client Data Processor" means a third party, other than a HomeX Data Processor, to which the Client chooses to send data through the Client's configuration of the Application Services.
- "HomeX Data Processor" means a third party which HomeX authorizes to process Client Personal Data on behalf of HomeX.
- "Personal Data" means personal information about an identifiable individual (including a natural person's name, street address, telephone number, e-mail address, photograph, video recording, social security number (for US Citizens), driver's license number passport number (for US Citizens) or customer or account number, or any other piece of information that allows the identification of a natural person, other than their business contact information when used or disclosed for the purpose of contacting such individual in that individual's capacity as an employee or an official of an organization and for no other purpose).
- "Privacy Law" means a personal information protection and privacy law applicable hereunder with respect to protecting the use and disclosure of Client Personal Data.
Other Defined Terms. Unless otherwise defined herein, capitalized terms used in this Data Protection Section shall have the meaning set forth in the applicable Section to these Terms of Service.
Client Content License and Limitations.
Client Content. Client grants to HomeX, its Affiliates and its authorized third party service providers a limited, worldwide, sublicensable, non-exclusive license to host, copy, access, process, transmit, and display Client Content: (a) to maintain, provide, and improve the Services and perform under these Terms of Service; (b) to prevent or address technical, fraud and/or security issues and resolve support requests; (c) to investigate in good faith an allegation the Services have been used by Client or any Authorized User in violation of these Terms of Service or the Agreement; or (d) at Client's direction or request or as permitted in writing by Client. Client retains ownership and interest in all Client Content and warrants that it has all rights and consents and has complied with all procedures necessary to (a) grant to HomeX the limited license under this clause 2.1 and (b) to collect, store, transmit (including offshore to HomeX) and process all Client Content. Further, Client hereby grants HomeX a non-exclusive, non-sublicensable (except to service providers and subcontractors providing services to HomeX), transferable, worldwide, royalty-free, perpetual, irrevocable license to use, reproduce, modify, transmit, distribute and otherwise exploit all Client Content: (a) internally in any way subject to HomeX's obligation of non-disclosure set forth herein and compliance with applicable laws such as privacy laws; and (b) internally or externally in any way in aggregate or anonymous format or otherwise in conformity with our Privacy Policy. This Section B.2.1 shall survive termination of an Agreement for any reason.
Client Content for Partner Benefits Sponsor. In addition to the rights and obligations set forth in Section B.2.1 above and Section A.6 (Confidentiality), when indicated that Client has access to partner benefits in the Service Order, Client agrees and acknowledges that in consideration for such partner benefits, HomeX may share with the Partner Sponsor certain Client Content and information deriving from the Services that has been deidentified so as to not contain any Personal Data, and which provides Client performance metrics, including but not limited to (i) number of Clients, (ii) number of sessions, (iii) types of session outcomes, (iv) types of Customer issues or requests. As used herein, "Partner Sponsor" means a company or other entity that has contracted with HomeX for preferential pricing to be offered to a HomeX prospective client affiliated with such company or entity.
Privacy. Without limiting the foregoing, the parties understand and agree that HomeX is a 'service provider' to Client within the meaning of the California Consumer Privacy Act ("CCPA"), and that Client additionally requests that HomeX create "deidentified" (as defined by applicable law) data from Client's Personal Data for purposes of processing in connection the activities set forth in Section B.2.1(a) through B.2.1(d) above. The parties understand and agree that all such deidentified data sets will no longer contain Client Personal Data, are a "Development" as defined in Section A.5.4 (Service Developments), and therefore may be retained and processed by HomeX however it elects during and following any expiration or termination of the Agreement. To the extent that HomeX collects, uses, processes or stores any Client Personal Data, HomeX will do so only to the extent necessary for, and for the purposes of, fulfilling its obligations under this Agreement and in accordance with the CCPA or any other applicable Privacy Law.
Parties Obligations and Responsibilities with Respect to Data.
HomeX Responsibilities. HomeX shall use commercially reasonable efforts to implement technical, organizational and physical measures to protect Client Personal Data from misuse, interference, loss and unauthorized use, modification and disclosure in accordance with applicable Privacy Laws.
CCPA. Both parties represent that they have read and understand the requirements of the CCPA.
Liability for Client Data Processors.
HomeX shall have no liability whatsoever for the actions or inactions of any Client Data Processor and Client acknowledges and agrees that any data the Client chooses to send to a Client Data Processor is solely at the Client's risk.
HomeX Data Processor List.
HomeX will provide Client with a list of its HomeX Data Processors upon Client's written request. Client agrees and acknowledges that the identity of HomeX Data Processors and any document containing the identity of such HomeX Data Processors is Confidential Information as defined in Section A.6 of these Terms of Service, and is subject to Client's compliance with the confidentiality terms of these Terms of Service. Furthermore, HomeX may require in its sole discretion a separate confidentiality agreement with Client as a prior requirement to comply with HomeX's obligations hereunder.
Section C: Application Services, Onboarding and Integration Additional Terms
This Section governs the provision of the Application Services provided by HomeX to Client, as well as Onboarding and Integrations.
Defined Terms. When used in this Section, the following words and terms shall have the meanings as follows:
- "Diagnostic Platform Billable Minute” means any minute that counts towards Client’s Available Minutes or Excess Minutes in a given period. For avoidance of doubt, Diagnostic Platform Billable Minutes begin when at least one (1) participant is connected to virtual room within HomeX’s Diagnostic Platform and end when all participants are no longer connected to a virtual room within HomeX’s Diagnostic Platform. Any partial minutes are rounded up to the nearest whole minute - for example, fifteen (15) minutes and twenty-nine (29) seconds equates to sixteen (16) Billable Minutes.
- "Onboarding Services" means services provided by HomeX personnel for the purposes of (i) scoping the work required to enable Client to use the Services, (ii) configuring, customizing and otherwise implementing the Services and Implementations in accordance with the Documentation, and (iii) providing applicable training and training materials to Authorized Users and other applicable Client personnel.
- "Platform User" means a natural person associated with or otherwise performing work for or on behalf of Client with unique access to HomeX’s Diagnostic Platform.
Onboarding and Implementation.
HomeX will provide Client with Onboarding Services in consideration for the applicable fees set forth in the Service Order in accordance with applicable Documentation, if the Client engages HomeX for, or a selected Service requires such Onboarding Services.
If outlined in the Service Order or otherwise mutually agreed upon by HomeX and Client, HomeX shall facilitate the Integration of the Application Services within a mutually agreeable period of time, subject to the applicable provisions of Section A hereof. Client agrees and acknowledges that third party systems are not Application Services and HomeX is not responsible for the operation, maintenance, functionality and success of the Integration when dependent on performance, configurations or adequacy of third-party systems.
Mandatory Term, Automatic Renewal.
Except as otherwise provided for in the Service Order or the Agreement, the Subscription Term shall be mandatory for Client and automatically renew for the number of months selected in the Service Order as the Subscription Term at the prices listed in the Service Order unless prior to renewal, a Party gives notice of non-renewal at least thirty (30) days prior to the end of the applicable Subscription Term. Notwithstanding the foregoing, and except as otherwise provided for in the Service Order or the Agreement, HomeX reserves the right to adjust its prices for subsequent Subscription Term renewals, assuming a substantially equivalent offering, up to 5% upon notice to Client at least (30) days prior to the renewal date.
Section D: Live Services Additional Terms
This Section governs the provision of Live Expert Help Services (a type of Contracted Service) provided by HomeX to Client.
Defined Terms. When used in this Section, the following words and terms shall have the meanings as follows:
- “Live Expert Help Billable Minute” means any minute that Client will be billed for Live Expert Help in a given period. For avoidance of doubt, Live Expert Help Billable Minutes begin when at least one (1) participant is connected to virtual room and end when all participants are no longer connected to a virtual room. Any partial minutes are rounded up to the nearest whole minute - for example, fifteen (15) minutes and twenty-nine (29) seconds equates to sixteen (16) Billable Minutes.
- “Live Expert Help” means HomeX itself or through an Affiliate or contractor acting on its behalf providing live technicians (a “HomeX Tech”) through its Diagnostic Platform or as a stand-alone Service to assist Client with servicing a Client Customer.
HomeX shall provide the Live Expert Help Services to Client’s Customers in accordance with these Terms of Service.
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