Legal Terms

Terms of Use
Customer Terms of Service
Client Terms of Service
Terms of Use - Last Updated: September 22, 2022

Terms of Use

Website and Mobile Application Terms of Use

HomeX is provided to you by Home Experience, LLC (1440 W Taylor St, PMB 4041, Chicago, IL 60607), also referred to below as "HomeX" "we" or "us". By accessing the website at HOMEX.COM (the "Website") or using the HomeX Mobile Application (the "Application") (the Website, Application, and any associated services and tools together constitute the "Services"), you agree to be bound by this Website and Mobile Application Terms of Use (these "terms"). If you do not agree to all of the terms, please do not access or use the Services and uninstall the Application. Certain features of the Services may require you to register for an account or otherwise provide personal information in order to access or use those features of the Services.
The Privacy Notice found at homex.com/privacy-policy applies to your use of the Services and tells you how we use and protect the information we may collect from you. BY INSTALLING, USING, REGISTERING WITH OR OTHERWISE ACCESSING OUR SERVICES, YOU GIVE US EXPLICIT CONSENT FOR THE COLLECTION, USE, DISCLOSURE AND RETENTION OF YOUR PERSONAL INFORMATION BY US, AS DESCRIBED IN THESE TERMS AND IN OUR PRIVACY NOTICE. IF YOU DO NOT AGREE TO OUR POLICIES AND PRACTICES AS SET FORTH IN OUR PRIVACY NOTICE, PLEASE DO NOT INSTALL, USE, REGISTER WITH OR OTHERWISE ACCESS OUR SERVICES.
Terms of Use
1.
Use of the Services. We grant you the nonexclusive right to use the Services only for your personal use, subject to these terms. You are solely responsible for all content and other information that you submit via the Services (including any communications you make through the Services) and any consequences that may result from your content and other information. You must comply with applicable third party terms of agreement when using the Services (e.g. your wireless data service agreement). Your right to use the Services will terminate immediately if you violate any provision of these terms.
2.
Restrictions on Use. As a condition of your use of the Services, you agree that you will not:
  • modify, copy, publish, license, sell, or otherwise commercialize the Services or any information or software associated with the Services (including, but not limited to, underlying technology, content, or source code);
  • rent, lease or otherwise transfer rights to the Services;
  • use the Services in any manner that could impair any of our websites or applications in any way or interfere with any party's use or enjoyment of any such site or application;
  • violate any contracts or laws, including intellectual property law; infringe any third-party right;
  • distribute a virus, worm, contaminated file, Trojan horse, or any other technologies that may harm the Services or the interests or property of Services users;
  • impose an unreasonable load on our infrastructure or interfere with the proper working of the Services;
  • bypass measures used to prevent or restrict access to the Services.
3.
Fees and Services. We may charge a fee for certain Services. If the Service you use incurs a fee, you'll be able to review and accept terms that will be clearly disclosed at the time you purchase. Our fees are quoted in US Dollars, and we may change them from time to time. We'll notify you of changes to our fee policy by posting such changes on the site. We may choose to temporarily change our fees for promotional events or new services; these changes are effective when we announce the promotional event or new service.

Our fees are non-refundable, and you are responsible for paying them when they are due. If you do not, we may limit your ability to use the Services. If your payment method fails or your account is past due, we may collect fees owed using other collection mechanisms.
4.
Intellectual Property & Content. We own, or are the licensee to, all right, title and interest in and to the Services, including all rights under patent, copyright, trade secret, trademark, or unfair competition law, and any and all other proprietary rights, including all applications, renewals, extensions and restorations thereof. You will not modify, adapt, translate, prepare derivative works from, decompile, reverse-engineer, disassemble or otherwise attempt to derive source code from the Services and you will not remove, obscure or alter our copyright notice, trademarks or other proprietary rights notices affixed to, contained within or accessed in conjunction with or by the Services.
  • Content displayed on or via the Services is protected as a collective work and/or compilation, pursuant to copyrights laws and international conventions. You agree not to copy, distribute, modify, reproduce, copy, sell, resell, or exploit for any purposes any aspect of the Services (other than your own content) without our express written consent.
  • When providing us with content, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all copyright, publicity, trademarks, database rights and other intellectual property rights you have in the content, in any media known now or developed in the future, for any purpose, including, but not limited to, use in marketing materials or posting on social media channels. Further, to the fullest extent permitted under applicable law, you waive your moral rights and promise not to assert such rights or any other intellectual property or publicity rights against us, our sublicensees, or our assignees.
  • We have adopted and implemented a policy that provides for the termination in appropriate circumstances of the accounts of users who repeatedly infringe copyrights or other intellectual property rights of ours and/or others.
5.
Disclaimer of Warranties. WE DISCLAIM RESPONSIBILITY FOR ANY HARM RESULTING FROM YOUR USE OF THE SERVICES OR ANY CONTENT PROVIDED ON THE SERVICES, OR BOTH. THE SERVICES, INCLUDING OTHER SERVICE(S) ACCESSED BY THE APPLICATION ARE PROVIDED "AS IS" AND "AS AVAILABLE". WE EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS, AND ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE SERVICES. YOU ACCESS THE WEBSITE OR DOWNLOAD THE APPLICATION AND USE THE SERVICES AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR HARDWARE DEVICE(S) OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE WEBSITE OR DOWNLOAD OF THE APPLICATION OR USE OF THE SERVICES. WE CANNOT GUARANTEE CONTINUOUS, ERROR-FREE OR SECURE ACCESS TO THE SERVICES OR CONTENT PROVIDED ON THE SERVICES OR THAT DEFECTS IN THE SERVICES OR CONTENT PROVIDED ON THE SERVICES WILL BE CORRECTED. NOTIFICATION FUNCTIONALITY IN THE APPLICATION MAY NOT OCCUR IN REAL TIME. SUCH FUNCTIONALITY IS SUBJECT TO DELAYS BEYOND OUR CONTROL, INCLUDING WITHOUT LIMITATION, DELAYS OR LATENCY DUE TO YOUR PHYSICAL LOCATION OR YOUR WIRELESS DATA SERVICE PROVIDER'S NETWORK. WE DO NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE, OR THE RESULT OF USE, OF ANY CONTENT PUBLISHED ON OUR SERVICES IN TERMS OF ACCURACY, RELIABILITY, OR OTHERWISE. THE USER ACKNOWLEDGES THAT THE CONTENT MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS, AND WE MAY MAKE CHANGES OR IMPROVEMENTS TO THE SERVICES AT ANY TIME. YOU ASSUME THE ENTIRE COST OF ANY LOSS OR DAMAGE ARISING FROM THE USE OF OR RELIANCE UPON THIS WEBSITE, ANY SERVICE, OR ITS CONTENT.
6.
Limitation of Liability. We are not liable to you or any user for any use or misuse of the Services or any content provided on the Services, or bothThis exclusion: (a) includes direct, indirect, incidental, consequential, special, exemplary and punitive damages, whether such claim is based on warranty, contract, tort or otherwise (even if we have been advised of the possibility of such damages); (b) applies whether damages arise from use or misuse of or reliance on the Services or content provided on the Services,from inability to use the Services, or from the interruption, suspension, or termination of the Services (including any damages incurred by third parties); and (c) applies notwithstanding a failure of the essential purpose of any limited remedy and to the fullest extent permitted by law.
  • Despite the previous paragraph, if we are found to be liable, our liability to you or any third party (whether based on contract, tort, negligence, strict liability or otherwise) is limited to the greater of (a) the total fees you pay to us in the 12 months prior to the action giving rise to liability, or (b) $100 US dollars.
  • Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so the disclaimers in the preceding section and the above limitations and exclusions of liability may not apply to you.
7.
Indemnification. You agree that you will indemnify and hold harmless us (HomeX) our affiliates and subsidiaries, and our and their respective officers, directors, employees, and agents, against and from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of your conduct, your use of or reliance upon the Services or content provided on the Services, or both any alleged violation of these terms, and any alleged violation of any applicable law or regulation. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you, but doing so will not excuse your indemnity obligations.
8.
Security. We reserve the right at our discretion to take whatever action we find necessary to preserve the security, integrity and reliability of our network and back-end applications.
9.
Changes to the Services or Terms of Use. We reserve the right to make changes to the Services and/or these terms from time to time. Any material changes will take effect when you next use the Services or after 30 days, whichever is sooner. If you do not agree to any change, please discontinue your use of the Services and uninstall the Application. No other amendment to these terms will be effective unless made in writing, signed by users and by us. We may discontinue the Services at any time, in our sole discretion, with or without notice to you.
10.
Feedback. You hereby agree that any testimonials, comments, ideas, suggestions or similar feedback that you provide to us through any medium regarding the Services ("Feedback") may be used by us for any purpose, and that we may use, reproduce, distribute, publicly perform, publicly display, modify, maintain, support and create derivative works from your Feedback without limitations. You agree to assign and hereby assign to us all rights in and to the Feedback (including intellectual property rights, artist's rights, or moral rights), and waive any and all claims and rights of any nature whosoever (including moral rights) that you may have with respect to the Feedback. In the event any rights you may have in the Feedback cannot be assigned or waived, you hereby unconditionally and irrevocably grant to us an exclusive, worldwide, fully-paid, royalty-free, sublicensable, transferable, assignable and perpetual license to use, reproduce, distribute, publicly perform, publicly display, modify, maintain, support, and create derivative works of such Feedback in any medium or format.
11.
Compliance with Certain Laws. Our Application or its underlying technology may not be downloaded to or exported or re-exported: (a) into (or to a resident or national of) Cuba, Iraq, Iran, Libya, North Korea, Syria or any other country subject to United States embargo; or (b) to anyone on the US Treasury Department's list of Specially Designated Nationals or on the US Commerce Department's Denied Party or Entity List; and you will not export or re-export this Application to any prohibited country, person, end-user or entity specified by US Export Laws.
12.
Miscellaneous Provisions. These terms and the other policies posted on or accessed by the Services constitute the entire agreement between you and us regarding the subject matter of these terms, superseding any prior agreements relating to that subject matter. To the extent permitted by applicable law, these terms shall be governed and construed in all respects by the laws of the State of Illinois without regard to principles of conflict of laws. You agree that any claim or dispute you may have against us must be resolved by a state or federal court located in Cook County, Illinois. You and HomeX agree to submit to the personal jurisdiction of the courts located within Cook County, Illinois for the purposes of litigating all such claims or disputes, If we do not enforce any particular provision, we are not waiving our right to do so later. If a court strikes down any of these terms, the remaining terms will survive. We may automatically assign these terms in our sole discretion in accordance with the notice provision below. Any section which, by its nature, should survive termination or expiration of these terms, will survive any such termination or expiration. Except for notices relating to illegal or infringing content, your notices to us must be sent by registered mail to:
  • Home Experience, LLC. 1440 W Taylor St, PMB 4041, Chicago, IL 60607 Re: HomeX
  • User Inquiries. We will send notices to you via: (a) the Services, (b) the personal information you provide, or (c) registered mail. Notices sent by registered mail will be deemed received five days following the date of mailing.
13.
Additional Terms. The following are additional terms and conditions that may apply to you based on the mobile device the Application is installed on:

iOS – Apple

  • These terms are an agreement between you and us, and not with Apple. Apple is not responsible for the Application and the content thereof. We grant you the right to use the Application only on an iOS product that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service.
  • Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application.
  • Apple is not responsible for the investigation, defense, settlement, and discharge of any third party intellectual property infringement claim.
  • Apple is not responsible for addressing any claims by you or any third party relating to the Application or your possession and/or use of the Application, including but not limited to: (a) product liability claims; (b) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
  • In the event of any failure of the Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if applicable, for the Application to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application.
  • Apple and Apple's subsidiaries are third party beneficiaries of these terms, and, upon your acceptance, Apple as a third party beneficiary thereof will have the right (and will be deemed to have accepted the right) to enforce these terms against you.

Windows – Microsoft

  • These terms are an agreement between you and us, not Microsoft. The terms of use and privacy policies of Microsoft and, where applicable, the network operators that provide billing services for the Windows Phone Marketplace do not apply to your use of the Application.
  • You may install and use one (1) copy of the Application on up to five (5) devices you personally own or control and which are affiliated with the Windows Live ID associated with your Windows Marketplace account. You may not install or use a copy of the Application on a device you do not own or control.
  • Microsoft, your device manufacturer, and (if applicable) your wireless carrier are not responsible for providing support services for the Application.
  • Microsoft, the wireless carriers over whose network the Application is distributed (if applicable), and each of their respective affiliates and suppliers (collectively, "Disclaiming Distributors") give no express warranty, guarantee, or conditions under or in relation to the Application. To the extent permitted under your local laws, the Disclaiming Distributors exclude any implied warranties or conditions, including those of merchantability, fitness for a particular purpose, and non-infringement.
  • You, and not the Disclaiming Distributors, bear the risk of using the Application (even if the Disclaiming Distributors have been advised of the possibility of damages to you). You may have additional consumer rights under your local laws which these Terms of Use cannot change.
  • To the extent not prohibited by law, you will not seek to recover any consequential, lost profit, special, indirect, or incidental damages from any Disclaiming Distributor.

Android – Google

The following applies to any Apps you acquire from the Google Play Store ("Google-Sourced Software"):You acknowledge that these terms are between you and us only, and not with Google, Inc. ("Google");
  • You acknowledge that these terms are between you and us only, and not with Google, Inc. ("Google");
  • Your use of Google-Sourced Software must comply with Google's then-current Google Play Store Terms of Service;
  • Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software;
  • We, and not Google, are solely responsible for the Google-Sourced Software;
  • Google has no obligation or liability to you with respect to Google-Sourced Software or these terms; and
  • You acknowledge and agree that Google is a third-party beneficiary to these terms as it relates to the Google-Sourced Software.

Effective: September 22nd, 2022

Customer Terms of Service

These Terms of Service (“Terms” or “Agreement”) are a legally binding agreement between you, (“Customer” or “you”) and Home Experience, LLC, a Delaware limited liability company with its principal place of business at 1440 W Taylor St, PMB 4041, Chicago, IL 60607 and its Affiliates (collectively referred to as “HomeX”, “we” or “us”).

PLEASE READ THESE TERMS CAREFULLY BEFORE YOU RECEIVE SERVICES (AS DEFINED BELOW) FROM US. By receiving services after notice of these Terms from us (which may be provided verbally, in writing or on your computer or device screen) you accept and agree to be bound and abide by these Terms. If you do not want to agree to these Terms you must not engage us for Services.

1. Definitions

For the purposes of this Agreement:

  • Affiliate” is any individual, corporation, partnership, limited liability company, association, trust, unincorporated entity or other legal entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such individual or entity. As used in this definition, “control” shall mean possession, directly or indirectly, of the power to direct or cause the direction of the management and policies (whether through ownership of securities or other ownership interests, by contract or otherwise);
  • Home Systems” means any home systems, including but not limited to electrical systems, air conditioning systems, heating systems, plumbing systems, household appliances for which HomeX offers any Services hereunder at the time such Services are solicited by You, and which may change from time to time at the sole discretion of HomeX;
  • HomeX Platform” means any technology owned or licensed by HomeX and its Affiliates used in the course of providing the Services, and includes but is not limited to the mobile applications, websites, the Marketplace and backend services;
  • Marketplace” means a program by which HomeX contracts with Marketplace Participants for the purposes of (i) listing a Third-Party Service Provider within the HomeX Platform as a provider of remote or in-home services in one or more trades, (ii) obtaining from such Third-Party Service Providers the trades services, service area coverage, schedule availability, (iii) scheduling and confirming virtual or in-home service jobs in real time at the request of a Customer, or (iv) otherwise presenting the Third-Party Service Provider with opportunities to provide Services to Customer.
  • Marketplace Participant” means any Third-Party Service Provider that participates in the Marketplace in accordance with the terms therewith.
  • Personnel” means the officers, directors, employees, agents, contractors, consultants, vendors, and representatives of HomeX and those of its Affiliates. For the avoidance of doubt, all Personnel that are also service providers are considered both Personnel and Third-Party Service Providers under these Terms;
  • Service” or “Services” shall have the meaning set forth in Section 2; and
  • Third-PartyServiceProvider” or “TPSP” is any third party individual or entity other than a HomeX Affiliate that is available to provide services to the Customer in accordance herewith. Notwithstanding the foregoing, when a HomeX Affiliate participates in Marketplace, such HomeX Affiliate shall be deemed a Third-Party Service Provider within the definition of Marketplace Participant.

2. Services

A.
The services covered by the Terms (“Service” or “Services”) include the following:
  • the provision of consulting and other services including the assistance, advice and direction to Customer to perform alterations, repairs or other work via an audio and/or video means from a location other than the property to which such Services relate (the “Premises”) (collectively the “Remote Services”);
  • when available, the facilitation of a connection to services on behalf of Customer to be provided by Marketplace Participants (“Marketplace Services”) for the performance of in-home services recommended by HomeX or requested by Customer,
  • when available, (a) the recommendation to Customer of Third-Party Service Providers, or (b) the solicitation and/or facilitation of jobs or work, on behalf of Customer, from Third-Party Service Providers, using channels available to the general public either by telephone or online (“Concierge Services”) for the provision of in-home services recommended by HomeX or requested by Customer.
  • any other services offered by HomeX and commissioned by Customer and accepted by HomeX through the HomeX Platform (“Other Services”).
B.
In its fulfillment of the Remote Services, HomeX Personnel may, to the extent deemed possible and safe at the reasonable discretion of HomeX Personnel, (i) provide advice on the cost, installation, configuration, operation, maintenance, repair and removal of any Home Systems, (ii) diagnose issues in connection with the malfunction or otherwise of any Home Systems, (iii) direct Customer to program, handle or otherwise manipulate any Home Systems, and (iv) suggest courses of action to resolve any issues in connection with any Home Systems.
C.
In its fulfillment of the Marketplace Services, where available, HomeX may provide the means for Customer to engage with Marketplace Participants for the provision of in-home services recommended by HomeX or requested by Customer (“Scheduled Services”). Customer agrees and acknowledges that Scheduled Services are not provided by HomeX and HomeX has no control over the fulfillment of the Scheduled Services. HomeX’s Marketplace Services merely provide a means for Customer and Marketplace Participants to engage. Marketplace Participants have a contractual relationship with HomeX solely for the purposes of allowing HomeX to book any Scheduled Services and obtaining from HomeX all Customer information set forth in Section 5.A upon request of the Marketplace Services by Customer.
D.
In its fulfillment of the Concierge Services, where available, HomeX may either (a) provide to Customer the contact information of one or more Third-Party Service Providers, or (b) contact a Third-Party Service Providers on behalf of Customer using publicly available communication channels for the purpose of scheduling in-home service on behalf of Customer. You agree and acknowledge that HomeX has no contractual relationship with such Third-Party Service Providers. HomeX uses contact information that is publicly available. HomeX (i) does not verify the accuracy of publicly available information of any TPSP, including but not limited to compliance with licensing requirements, competency, service coverage or availability, and (ii) makes no warranty, express or implied with respect to TPSP suggested to you or contacted on your behalf in the performance of the Concierge Services.

3. Application

Upon acceptance by the Customer, these Terms (as the same may be modified in accordance with Section 18) shall apply to all Services provided by HomeX, and to the extent applicable, to services provided by any Third-Party Service Providers to you thereafter, unless otherwise agreed by the parties in writing.

4. Authorization

A.
With respect to any Services, you represent and warrant to HomeX that you are either (i) the owner of the Premises; or (ii) fully authorized by the owner of the Premises to cause or direct such Services to be performed upon the Premises.
B.
With respect to any Services, you represent and warrant to HomeX that you are not, and the Premises is not, subject to any obligation or restriction that (i) prohibits the performance of the Services at the Premises, or (ii) would otherwise be breached or violated by the performance of the Services.

5. Booking Third-Party Service Providers

A.
Upon booking the services of any Marketplace Participant or Third-Party Service Provider using the Marketplace Services or the Concierge Services, you agree that HomeX may share with the relevant Third-Party Service Provider any information reasonably relevant or necessary for the Third-Party Service Provider to understand the nature of the services booked, including but not limited to:
  • Your name
  • Your home address
  • Your telephone number
  • Your email address
  • Your availability
  • Multi Media provided by You or obtained by HomeX in the course of providing the Services
  • Any additional information related to the Home Systems that require service, such as make, model, serial number, placement of the Home System and working conditions surrounding the Home Systems.
B.
Customer agrees and acknowledges that any Marketplace Participant or Third-Party Service Provider booked by Customer using the Marketplace Services or the Concierge Services is an independent provider not affiliated with HomeX. By utilizing the Marketplace Services or the Concierge Services, you agree to inform yourself of and abide by the terms of service or equivalent terms, and the privacy policy of the booked Third-Party Service Provider.

6. Site Conditions and Hazardous Materials, and Customer Cooperation

A.
You agree to comply with all reasonable requests of HomeX and any Third-Party Service Provider and shall provide HomeX’s Personnel and any Third-Party Service Provider with access to all documents and facilities as may be reasonably necessary for the performance of any Services provided under these Terms.
B.
You are solely responsible for securing, removing and protecting all property and its contents at all times, including but not limited to adults, children, animals, cabinets, fixtures, flooring, walls, tiling, carpets, drapes, furniture, and vegetation during and upon provision of the Services. You agree and acknowledge that HomeX Personnel providing any Services have no information whatsoever, prior to the performance of the Services, regarding the state of (a) the Premises, (b) your physical abilities, and (c) any Home Systems within the Premises to which the Services refer.
C.
In the solicitation and performance of any Services, you agree to exercise reasonable care in assessing and acting upon your own physical ability to (i) access and move around in any space within or around the Premises, (ii) lift heavy objects, (iii) manipulate equipment, and (iv) otherwise engage in any activity suggested by HomeX personnel at any time. You agree to immediately advise HomeX Personnel if any activity suggested by HomeX Personnel is potentially dangerous, beyond your physical abilities or harmful to you prior to engaging in any such activity.
D.
You are responsible for the safe operation of any mobile device or tablet employed by you for the performance of any Services. You understand that the Remote Services may involve the use of video conferencing which may be recorded by HomeX. You will take all precautions to avoid capturing other individuals on video.
E.
You are solely responsible for all conditions encountered at the Premises which are (i) subsurface or otherwise concealed physical conditions that differ materially from those ordinarily found to exist, or (ii) unknown physical conditions of an unusual nature that differ materially from those ordinarily found to exist at sites similar to the Premises.
F.
To the extent you agree to and continue to require the services of any TPSP booked through the Marketplace Services or the Concierge Services following the completion of the Services by HomeX, you agree to provide the applicable TPSP access to the Premises (and to relevant resources such as water and electrical power) as reasonably necessary to perform the services provided by the TPSP in a safe and prudent manner.
G.
Any Marketplace Provider or TPSP terms of service that conflict with or contradict these Terms shall supersede these Terms and govern any relationship between the Customer and such TPSP resulting from Customer’s use of the Marketplace Services or the Concierge Services.
H.
HomeX Personnel may immediately terminate all Services in their sole reasonable discretion if: (i) You deliberately engage in behavior that may result in harm to you or others, (ii) You fail to comply with any instructions from HomeX Personnel intended to prevent injury or harm to you or others, (iii) HomeX Personnel reasonably believes upon providing any Service that such Service has unlawful intent or will result in unlawful behavior or outcomes, or (iv) You engage in indecent or reprehensible behavior against HomeX Personnel or others.
I.
You agree that neither HomeX nor any TPSP booked using the Marketplace Services or the Concierge Services has any information whatsoever with respect to any material, chemical, substance, waste, pollutant, contaminant, compound, mixture, or constituent thereof, in any form or amount, capable of posing a risk of injury to health, safety or property, including but not limited to asbestos and asbestos containing materials, petroleum and petroleum products, natural gas, radioactive materials, infectious materials and medical wastes (“Hazardous Materials”) (or has any responsibility to conduct) in any portion of the Premises, and neither HomeX nor any TPSP has conducted any investigation in connection herewith.
J.
You expressly release HomeX and all HomeX Personnel from any liability whatsoever for any claims arising out of the presence, release, remediation, handling, removal, storage or disposal of Hazardous Materials and for any costs, losses or damages arising from or in connection with the existence of Hazardous Materials on the Premises.
K.
Customer will be solely liable for any discharge, release, injury to any person, or injury to any property resulting from the presence of Hazardous Materials on the Premises.

7. Payment

A.
Payment for Remote Services, Marketplace Services, Concierge Services, Other Services, subscriptions and memberships will be separately agreed to by Customer and HomeX during performance of such Services provided that, in the case payment terms are not specified in the documentation or other communication pertaining to HomeX’s engagement to provide Remote Services or Other Services, payment in full shall be immediately due upon Completion of the Services in question.
B.
If Customer fails to pay any amount owed to HomeX as and when payment is due and Customer has a valid payment method on file with HomeX, HomeX may charge the payment method on file for all or any part of the unpaid balance.
C.
If Customer fails to pay any fee owed to HomeX as and when payment is due and Customer does not have a valid payment method on file with HomeX, HomeX will apply such negative amount to Customer’s account.
D.
Any amounts not paid in full by Customer within thirty (30) days of the payment becoming due shall be subject to interest charges, from the date due until paid, at the rate of the lower of (i) one and one-half percent (1.5%) per month and (ii) the highest rate allowable under applicable law.
E.
If Customer fails to pay any amount in full within ninety (90) days of the date the amount became due, HomeX may refer collection of the unpaid amount to an attorney or collections agency (with Customer being responsible for HomeX’s costs as provided in Section 17(D).
F.
HomeX may refuse to provide Services to Customer, and/or suspend or terminate Customer’s access to the HomeX Platform, if Customer owes a past due and unpaid balance to HomeX.
G.
Failure to pay for Services as and when due shall entitle HomeX to terminate work immediately. In the event that HomeX terminates work for non-payment as herein described, HomeX shall be entitled to all of its reasonable expenses including, not limited to cost of labor, materials, a reasonable allowance for overhead and profit, and all other compensation as allowed by law.
H.
No deduction shall be made from or offset against payments due to HomeX on account of penalty, liquidated damages, back charges for alleged defective work, or other sums withheld from payments to other contractors, or on account of the cost of changes or defects in the work.

8. Limitation of Liability

IN NO EVENT SHALL HOMEX BE LIABLE UNDER THIS AGREEMENT TO CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, AND COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. NO ACTION SHALL BE BROUGHT FOR ANY CLAIM, ACTION, SUIT, DEMAND, OR PRECEDING OF ANY KIND RELATING TO OR ARISING OUT OF THIS AGREEMENT (“CLAIM”) MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION, EXCEPT FOR MONEY DUE ON AN OPEN ACCOUNT. EXCEPT AS EXPRESSLY PROVIDED UNDER APPLICABLE, NON-WAIVABLE LAW, TOTAL AGGREGATE LIABILITY OF HOMEX TO YOU IN ANY MATTER ARISING FROM, RELATING TO OR CONNECTED WITH THE SERVICES OR THESE TERMS SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID FOR THE PARTICULAR SERVICES UNDER WHICH THE LIABILITY AROSE DURING THE SIX (6) MONTH PERIOD IMMEDIATELY BEFORE THE CLAIM WHICH GAVE RISE TO THE LIABILITY. IN NO EVENT SHALL HOMEX BE LIABLE UNDER THIS AGREEMENT TO CUSTOMER FOR ANY DAMAGES WHATSOEVER WHETHER DIRECT, INDIRECT OR OTHERWISE CAUSED BY ANY THIRD-PARTY SERVICE PROVIDER.

9. Indemnification

You shall, to the fullest extent permitted by applicable law, indemnify, protect, defend, and hold harmless HomeX, and their Personnel, Affiliates, Third-Party Service Providers, agents, successors, and assigns from and against any and all suits, actions, legal or administrative proceedings, claims, liens, demands, damages, liabilities, losses, costs, fees, penalties, fines, and expenses (including first-party losses, attorneys’ fees and expenses, and costs of investigation, litigation, settlement, and judgment) directly or indirectly arising out of, in connection with, or as a result of (i) the acts performed by Customer; (ii) the omissions of Customer, including the failure by Customer to perform acts recommended by HomeX; (iii) Unforeseen Conditions on the Premises; (iv) use of Other Properties, including but not limited to damage done in the normal course of work, excluding negligence; and (v) Your breach of or failure to fully comply with these Terms.

10. Provider Licensing

HomeX represents and warrants that it has a contractual requirement that any Marketplace Participant is required to have all licenses known by HomeX to be required by local, state and federal regulation to perform services booked using the Marketplace Services. You agree and acknowledge that HomeX is not obligated to review or otherwise scrutinize Marketplace Participant compliance with any contractual arrangements between HomeX and such Marketplace Participant. Except as may be otherwise expressly stated by HomeX from time to time with respect to individual Marketplace Participants in accordance with its then existing Marketplace policies and terms, HomeX makes no warranty or representation about any Marketplace TPSP, including but not limited to whether any TPSP (a) maintains required licenses, (b) carries commercial or professional liability insurance, (c) complies with federal, state or local law. You are solely responsible for verifying and ensuring compliance by any TPSP with all applicable federal, state and laws, including but not limited to commercial and professional licensing, commercial or professional liability insurance, and required certifications.

11. Provider Screening/Background Checks

HomeX requires each of its Marketplace Participants to perform industry standard background checks and screening procedures on their employees as part of their hiring process. HomeX cannot and does not assume any responsibility for the accuracy or reliability of the identity or background check information or any information provided as part of the screening processes. HomeX cannot and does not guarantee that a Marketplace Participant’s screening and background check information are current and up to date. You are solely responsible for verifying whether any TPSP performs background checks and screening procedures on their employees.

12. Ratings/Reviews

You authorize HomeX to publish any ratings or reviews that you submit to HomeX for advertising or any other purposes. You further authorize HomeX to modify such reviews for spelling, grammatical or formatting purposes, so long as such modifications do not materially change the content, tone or intent of the review.

13. Sharing Data

In order to perform the Services and process your payments, HomeX may need to share your personal information with its Personnel, Affiliates, and Third-Party Service Providers, including transcripts or recordings of your communications with HomeX, location data, contact information, and other personally identifying information. HomeX adheres to its Privacy Policy when dealing with your personal information. You acknowledge and consent to the policies outlined in the Privacy Policy.

14. Account Security

A.
Any account that you create on the HomeX website, app, or through your use of other HomeX Services (“Account”) is for your individual use only. When you create an account with us, you must provide us information that is accurate, complete, and current at all times. Failure to do so constitutes a breach of the Terms. You may not assign, sell, license, or otherwise transfer your Account to another person or permit any other person to access or use your Account. You agree that you are solely responsible for maintaining the security and confidentiality of your Account, for restricting access to the Account from your devices and systems, and that you are fully responsible for all activities that occur under your Account. You may be held liable for losses incurred by HomeX or any other person due to someone else using your Account.
B.
You may not use as a first name and last name, and to the extent applicable, as a username, the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than you without appropriate authorization, or a name that is otherwise offensive, vulgar, or obscene.
C.
You shall notify HomeX immediately if you have reason to believe your Account is no longer secure, upon discovery of any unauthorized access to or use of your Account, or any other breach of HomeX or the Account’s security. You will immediately take all reasonable steps to mitigate the effects of a security breach and will cooperate with HomeX and provide all information reasonably requested by HomeX to remediate the breach. Any assistance provided by HomeX in relation to a security breach does not in any way operate as acceptance or acknowledgement that HomeX is in any way responsible or liable to you or any other party in connection with such breach.
D.
HomeX may modify, suspend, or terminate your Account or your access to your Account in its sole discretion at any time and without prior notice.
E.
In the event of any dispute between two or more parties as to account ownership, HomeX shall be the sole arbiter of such dispute in our sole discretion. Our decision (which may include termination or suspension of any disputed Account) shall be final and binding on all parties.

15. Right to Suspend or Terminate in Event of Dispute

In the event of a dispute between HomeX and Customer, HomeX and Customer agree that HomeX may immediately suspend or terminate the Services and/or Customer’s access to the HomeX Platform. ln the event of any suspension or termination, HomeX shall be entitled to payment for all services rendered including cost of all labor, materials, reasonable profit and overhead.

16. Service Cancellation

A.
You may cancel the Services, without any penalty or obligation by contacting HomeX at least two (2) hours before your scheduled Service.
B.
If you cancel the Services within two (2) hours of your scheduled Service, HomeX reserves the right to charge a cancellation fee not exceeding the lesser of (i) one hundred dollars ($100.00) and (ii) the greatest amount allowed under applicable law.
C.
HomeX may cancel the Services at any time before commencing work without penalty or obligation. Before canceling, HomeX will use reasonable efforts to find an alternate Third-Party Service Provider or to reschedule the Service appointment. HomeX is not liable for any damage that occurs as a result of a cancellation or delay in providing Services.

17. Dispute Resolution

A.
Any and all matters of dispute between the parties to this Agreement, whether arising from or related to the Agreement itself or arising from alleged extra-contractual facts prior to, during, or subsequent to the agreement, including, without limitation, fraud, misrepresentation, negligence, or any other alleged tort, shall be decided by arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association currently in effect and in accordance with Title 9 of the United States Code, unless the Parties expressly agree otherwise in writing. Notice of the demand for arbitration must be provided, in writing, to the other Party and must be made within 30 days after the dispute has arisen, time is of the essence. All statutes of limitation, which would otherwise be applicable in a judicial action brought by a Party, will apply to any arbitration or reference proceeding hereunder. The arbitration will be decided by a panel of three (3) arbitrators selected under the Commercial Arbitration Rules of the American Arbitration Association. Arbitration will be initiated and conducted in Illinois. Said arbitration will occur within thirty (30) consecutive days after the Party demanding arbitration delivers the written demand on the other Party, unless the Parties mutually agree otherwise in writing. The language of the arbitration shall be English. The arbitrators will be bound to adjudicate all disputes in accordance with the laws of the State of Illinois. The award rendered by the arbitrators will be in writing with written findings of fact and shall be final and binding on all Parties, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. Except by written consent of the Parties, no arbitration arising out of or relating to this Agreement or the parties’ dealings may include, by consolidation, joinder or in any other manner, any person or entity not a Party to the Agreement under which such arbitration arises. The arbitration agreement herein among the Parties will be specifically enforceable under applicable law in any court having jurisdiction thereof. Neither Party will appeal such award nor seek review, modification, or vacation of such award in any court or regulatory agency.
B.
Class arbitration (including the presiding over any form of a representative or class proceeding) and the consolidation of claims made by more than one plaintiff, are both expressly waived. The parties hereby agree to arbitrate any Dispute solely on an individual basis.
C.
If HomeX incurs any fees or costs associated with the enforcement of this Agreement or any rights under this Agreement (including attorney’s fees, court costs and other costs of collection), and HomeX is the prevailing party, then HomeX shall be entitled to recover its reasonable fees and costs, including for the avoidance of debt any court, arbitration, mediation, or other litigation expenses from Customer.
D.
If HomeX incurs any costs, expenses, or fees, including reasonable attorney’s fees and professional collection services fees, in connection with the collection or payment of any amounts due it under this Agreement, Customer agrees to reimburse HomeX for all such costs, expenses and fees.

18. Modifications to Terms

HomeX may modify these Terms from time to time in its sole discretion. If any changes to these Terms materially modify your rights or obligations, HomeX will notify you and you must accept the modified Terms to continue to use the HomeX Services. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Disputes arising under the Terms will be resolved in accordance with the version of the Terms that was in effect at the time the Services for which the dispute arose were performed.

19. No assignment by Customer, No third-party beneficiaries

Customer may not assign these Terms, either in whole or part, without the express written consent of HomeX. Any assignment without such consent shall be null and void HomeX may assign these Terms in its sole discretion. Notwithstanding anything herein to the contrary, these Terms shall be binding upon and inure to the benefit of the successors, assigns and legal representatives of the Parties. There are no third-party beneficiaries to these Terms.

20. No Agency; No Employment

No agency, partnership, joint venture, or employer-employee relationship is intended or created by this Agreement.

21. Governing Law

These Terms shall be governed by, construed under, and interpreted in accordance with the internal laws of the State of Illinois, without regard to such State’s conflict of law principles, and all claims relating to or arising out this Agreement, or breach thereof, or arising from alleged extra-contractual facts prior to, during, or subsequent to this Agreement, whether sounding in contract, tort, or otherwise, including, without limitation, fraud, misrepresentation, negligence, or any other alleged tort or violation of the contract, shall likewise be governed by the internal laws of the State of Illinois.

22. Entire Agreement

These Terms represent the entire agreement between you and HomeX and supersede all prior negotiations, representations or agreements, either oral or written.

23. Severability

Each provision of these Terms is intended to be severable. If any term or provision hereof is held by a court of law to be in violation of an applicable local, state or federal ordinance, statute, law administrative or judicial decision, public policy or for any other reason, and if such court should declare such provision of these Terms to be illegal, invalid, unlawful, void, voidable, or unenforceable as written, then such provision shall be given full force and effect to the fullest extent that is enforceable, the remainder of these Terms shall be construed as if such illegal, invalid, unlawful, void, voidable or unenforceable provision was not contained herein, and the rights, obligations and interests of the parties under the remainder of this Agreement shall continue in full force and effect. If any provision is held to be unenforceable, the court making such determination shall have the power to, and shall, modify such provision to the minimum extent necessary to make such provision, as so modified, enforceable, and such provision shall then be applicable in such modified form.

24. Waiver

No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving Party. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of this Agreement thereafter.

25. Headings

The headings and captions appearing in this Agreement have been inserted for the purposes of convenience and ready reference, and do not purport to and shall not be deemed to define, limit or extend the scope or intent of the provisions to which they appertain.

26. Survival

Each term and provision of this Agreement that should by its sense and context survive any termination or expiration of this Agreement. Each term shall survive regardless of the cause of the termination, even a material breach by either Party.

27. Force Majeure

Neither Party will be held liable for failure to fulfill its obligations hereunder if such failure is due to a Force Majeure Event. A “Force Majeure Event” means, but is not limited to, an act of war; domestic or international terrorism; civil riots or rebellions; quarantines, embargoes and other similar unusual governmental actions; pandemics, epidemics, local disease outbreaks, public health emergencies; or extraordinary elements of nature or acts of God; provided that such Force Majeure Event is beyond the excused Party’s reasonable control, occurs without the excused Party’s fault or negligence, is not caused directly or indirectly by the excused Party and could not have been prevented or avoided by the excused Party’s reasonable diligence.

28. Consent to Receive Text Messages

In keeping with the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, HomeX requires your express written consent prior to contacting you by telephone or text message for any non-emergency purpose using any automated telephone dialing system (ATDS) or artificial or prerecorded voice (each, an "Automated Method"). By providing your telephone number to HomeX as applicable to the relevant Service, you authorize HomeX, along with Affiliates and Third-Party Service Providers, to contact you using any Automated Method of HomeX's choosing solely via the method(s) and at the number(s) set forth below. Pursuant to the TCPA, you are free to withhold your consent, either in whole or in part. Withholding consent will not affect your right to buy any of HomeX, its affiliates’, and/or its third-party agent's, goods and/or services. You may revoke your consent, either in whole or in part, at any time. This revocation can be made by replying STOP to any SMS message received.

Effective: September 22nd, 2022

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 Home Experience, 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.

1.
Definitions and Interpretation
1.1.
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.
1.2.
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.
1.3.
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.
1.4.
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.
2.
Grant of License for Application Services / Contracted Services Subscription.
2.1.
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.
2.2.
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.
2.3.
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.
2.4.
Reserved Rights. HomeX hereby reserves all rights in and to the Services and Documentation not expressly granted in these Terms of Service.
3.
Use of Services.
3.1.
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.
3.2.
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.
3.3.
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.
4.
Fees.
4.1.
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.
4.2.
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.
4.3.
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.
5.
Intellectual Property Rights
5.1.
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.
5.2.
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.
5.3.
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.
5.4.
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.
6.
Confidentiality.
6.1.
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.
6.2.
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").
6.3.
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.
6.4.
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.
6.5.
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.
7.
Representation and Warranties; Disclaimers.
7.1.
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.
7.2.
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.
7.3.
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.
7.4.
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.
7.5.
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.
8.
Damages and Limitation of Liability
8.1.
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.
8.2.
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.
8.3.
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.
8.4.
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.
9.
Indemnification

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.

10.
Access and Monitoring

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).

11.
Termination
11.1.
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.
11.2.
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.
11.3.
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.
12.
Dispute Resolution

PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.

12.1.
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.
12.2.
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).
12.3.
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.
12.4.
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.
12.5.
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.
12.6.
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.
12.7.
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.
13.
Miscellaneous
13.1.
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.
13.2.
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.
13.3.
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.
13.4.
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.
13.5.
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.
13.6.
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.
13.7.
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.
13.8.
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.
13.9.
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.
13.10.
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.
13.11.
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

1.
Definitions
1.1.
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.
1.2.
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.
2.
Client Content License and Limitations.
2.1.
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.
2.2.
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.
2.3.
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.
3.
Parties Obligations and Responsibilities with Respect to Data.
3.1.
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.
3.2.
CCPA. Both parties represent that they have read and understand the requirements of the CCPA.
4.
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.

5.
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.

1.
Definitions
1.1.
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.
  • "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.
2.
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.

3.
Integration.

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.

4.
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.

1.
Definitions
1.1.
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 in a given period. For avoidance of doubt, Live Expert Help Billable Minutes begin when an offer to service a Client Customer is accepted by a HomeX Tech and end when the HomeX Tech completes and submits the diagnostic notes to the Client.
  • 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.
2.
HomeX Obligations.

HomeX shall provide the Live Expert Help Services to Client’s Customers in accordance with these Terms of Service.