Notice Regarding Dispute Resolution: This Agreement contains provisions that govern how claims you and Simple Homes have against each other are resolved (see Section 9 (Limitation of Liability), Section 13 (Dispute Resolution), and Section 14 (Choice of Law and Forum) below). It also contains an agreement to arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration, unless you opt-out of the agreement to arbitrate in accordance with Section 13(D). Unless you opt-out: (A) you will only be permitted to pursue claims against Simple Homes on an individual basis, not aspart of any class or representative action or proceeding and (B) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
1. Changes to this Agreement
We reserve the right to, at any time, with or without cause: change the terms and conditions of this Agreement; change the Service, including eliminating or discontinuing any service or other feature of the Service; or deny or terminate your use of and/or access to the Service. We will notify you of any material changes to the terms and conditions of this Agreement or to any service or other feature of the Service. You must accept such changes in order to continue to use and access the Service. If you do not accept such changes your use and/or access to the Service will be terminated.
2. Use of the Service
Before using the Service, you may need to register with Simple Homes and create an account. We reserve the right to decline to provide the Service to any person for any or no reason. If and when you register with or provide information to Simple Homes, you agree to: (a) provide accurate, current, and complete information as prompted (including your e-mail address) and (b)maintain and update your information (including your e-mail address) to keep it accurate, current, and complete. You acknowledge that, if any information provided by you is untrue, inaccurate, not current, or incomplete, we reserve the right to terminate this Agreement and your use of the Service. By providing Simple Homes with your email address or other contact information, you consent to our use of this information to send you Service-related notices and other administrative notices, including any notices required by law. You are solely responsible for the activity that occurs on your account. You must keep your account credentials(including username and password) secure at all times. You may not share your account with any third parties without Simple Homes’s prior written consent unless such third party has separately entered an agreement with Simple Homes permitting it to access your account. You must notify Simple Homes immediately of any breach or suspected breach of security or unauthorized use of your account. Simple Homes will not be liable for any losses caused by any unauthorized use of your account. You represent and warrant that you have the full right, power, and authority to enter into and perform this Agreement without the consent or approval of any third party.
3. Rules Governing Your Use of the Service
You may not use the Service, or assist or encourage any other party, to engage in any of the following prohibited activities: Copying, framing, or mirroring any part of the Service; Accessing the Service for purposes of monitoring its availability, performance, or functionality; Permitting any unauthorized third party to access the Service; Using, copying, modifying, creating a derivative work of, reverse engineering, decompiling, or otherwise attempting to extract the source code of the software underlying the Service or any part thereof, unless expressly permitted or required by law, and in any case, without providing prior written notice to Simple Homes; Publishing, transmitting, distributing, or storing content, material, information, or data that: (a) is illegal, obscene, defamatory, libelous, threatening, harassing, abusive, or hateful or that advocates violence or threatens the health of others; (b) is harmful to or interferes with the Service or any third party’s networks, equipment, applications, services, or websites (e.g., viruses, worms, Trojan horses, etc.); (c) infringes, dilutes, misappropriates, or otherwise violates any privacy, intellectual property, publicity, or other personal rights including, without limitation, copyrights, patents, trademarks, trade secrets, or other proprietary information (including unauthorized use of domain names); or (d) is fraudulent or contains false, deceptive, or misleading statements, claims, or representations (such as “phishing”);Attempting to disrupt, degrade, impair, or violate the integrity or security of the Service or the computers, services, accounts, or networks of any other party (including, without limitation, “hacking,” “denial of service” attacks, etc.), including any activity that typically precedes attempts to breach security such as scanning, probing, or other testing or vulnerability assessment activity, or engaging in or permitting any network or hosting activity that results in the blacklisting or other blockage of Simple Homes internet protocol space; Avoiding payment of incurring charges or fees payable by you with respect to the Service; Copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; Using any automated system, including, without limitation, “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to Simple Homes than a human can reasonably produce in the same period of time by using a conventional web browser; Taking any action that imposes, or may impose, at our sole discretion, an unreasonable or disproportionately large load on our infrastructure; Collecting or harvesting any personally identifiable information, including account names, from the Service; Using the Service for any commercial solicitation purposes; Impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; Accessing any content on the Service through any technology or means other than those provided or authorized by the Service; Submitting to the Service or to Simple Homes any personally identifiable information, including without limitation any information that may be protected under HIPPA (“HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented) or any other information that may be protected from disclosure by applicable law, except as necessary for the establishment and operation of your account; Bypassing the measures we may use to prevent or restrict access to the Service, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein; Violating any applicable law, statute, ordinance, or regulation, or encourage any conduct that could constitute a criminal offense or give rise to civil liability; Transmitting any trade secret or other material, non-public information about any person, company, or entity without the authorization to do so; Removing any copyright, trademark, or other proprietary rights notices contained in or on the Service; Sublicensing selling, renting, leasing, transferring, assigning, or conveying any rights under this Agreement to any third party, except as expressly permitted herein; Executing any form of network monitoring or running a network analyzer or packet sniffer or other technology to intercept, decode, mine, or display any packets used to communicate between the Service’s servers or any data not intended for you; and/or Harvesting or collecting information about any Service visitors or members without their express consent. Improper use of the Service may result in termination of your access to and use of the Service, and/or civil or criminal liabilities. You agree to use the Service in accordance with all applicable laws.
4. Intellectual Property
A. Your Rights. Subject to the terms and conditions of this Agreement (including any restrictions on any applicable authorization or order form), you are hereby granted a non-exclusive, non-transferable, non-sublicensable, and revocable license to access and use the Service solely for your own internal use. Simple Homes reserves all rights not expressly granted herein in the Service. Except as expressly set forth herein, no rights or licenses are granted to you under this Agreement, whether by implication, estoppel, or otherwise.
B. Simple Homes’s Rights:
User Content. You expressly grant, and you represent and warrant that you have all rights necessary to grant, to Simple Homes, a royalty-free, fully paid-up, sublicensable (through multiple tiers of sublicensees), transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, distribute, modify, reproduce, publicly display, publicly perform, and create derivative works of any information, data, materials, photographs, images, or content you provide to Simple Homes (“User Content”) for the purposes of (a)providing the Service, or (b) developing, maintaining, supporting, or improving the Service. You agree that Simple Homes may store User Content in order to provide the Service. Simple Homes aggregates User Content with other data and also collects technical information and data about your use of the Service. You expressly agree that Simple Homes may use any aggregated and anonymized data for any purpose during or after the term of this Agreement, including, without limitation, to develop and improve the Service or other Simple Homes services and products.·
Feedback and Improvements. You may choose to or we may invite you to submit comments, suggestions, feedback, or ideas about the Service, including, without limitation, about how to improve the Service or our products (“Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction. We are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. Simple Homes will be free to use, disclose, reproduce, license, distribute, modify, perform, display, and exploit the Feedback you provide, without any restriction of any kind on account of intellectual property rights or otherwise. You further acknowledge that, by acceptance of your submission, Simple Homes does not waive any rights to use similar or related ideas previously known to Simple Homes, or developed by its employees, or obtained from sources other than you.
C. Proprietary Rights. The Service is owned and operated by Simple Homes, and the Service (and any intellectual property and other rights relating thereto) is and will remain the property of Simple Homes and its licensors and suppliers. The Service is protected by U.S. and international copyright, trademark, and other laws, and you acknowledge that these rights are valid and enforceable. The Service may be used solely (a) to the extent permitted in this Agreement or (b) as expressly authorized in writing by authorized representatives of Simple Homes or, if so indicated in writing by Simple Homes, its licensors or suppliers. Use of the Service for any other purpose is strictly prohibited. You acknowledge that you do not acquire any ownership rights by using the Service. The trademarks, logos, and service marks displayed on the Service (collectively, the “Simple Homes Trademarks”) are the registered and unregistered trademarks of Simple Homes, Simple Homes’s licensors and suppliers, and/or others. Nothing contained in this Agreement or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Simple Homes Trademark(s) without the express written permission of Simple Homes, Simple Homes’s licensors or suppliers, or the third-party owner of any such Simple Homes Trademark. Subject to the rights granted to Simple Homes in this Agreement, as between you and Simple Homes, you retain all right, title, and interest in and to your User Content.
D. User Content. You are solely responsible for any User Content that you submit, post, or display on or via the service. You represent and warrant that: (i) you own the User Content posted by you on or through the Service or otherwise have the right to grant the rights and licenses set forth in this Agreement; (ii) the posting and use of your User Content on or through the Service does not and will not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; and (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of User Content you post on or through the Service. You agree that Simple Homes is not responsible for, and does not endorse, User Content posted within the Service. Simple Homes does not have any obligation to prescreen, monitor, edit, or remove any User Content. If your User Content violates this Agreement, you may bear legal responsibility for that User Content. As between you and Simple Homes, any User Content will be non-confidential and non-proprietary and we will not be liable for any use or disclosure of User Content. You acknowledge and agree that your relationship with Simple Homes is not a confidential, fiduciary, or other type of special relationship, and that your decision to submit any User Content does not place Simple Homes in a position that is any different from the position held by members of the general public, including with regard to your User Content. None of your User Content will be subject to any obligation of confidence on the part of Simple Homes, and Simple Homes will not be liable for any use or disclosure of any User Content you provide.
5. Third-Party Links and Information
6. No Use by Children Under 13
You hereby affirm that you are over the age of thirteen (13), as the Service is not intended for children under 13. If you are under 13 years of age, then you may not use the Service. You further affirm that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement.
7. Term & Termination
This Agreement is effective from the date on which you first access the Service or submit any User Content to Simple Homes, whichever is earlier, and shall remain effective until terminated in accordance with its terms. Simple Homes may immediately terminate this Agreement, and/or your access to and use of the Service, or any portion thereof, at any time and for any reason, with or without cause, without prior notice. Simple Homes may also terminate this Agreement immediately if you fail to comply with any term or provision of this Agreement. Upon termination of this Agreement by either party, your right to use the Service shall immediately cease and you shall cease all use of the Service. Upon termination or expiration of this Agreement for any reason, Sections 1, 2, 3, 4(B), 4(C),4(D), 4(E), and 5–16 shall survive. We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service, or any part or portion thereof, with or without notice to you. You agree that we shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service, or any part of portion thereof. Nothing in this Agreement shall be construed to obligateSimple Homes to maintain and support the Service, or any part or portion thereof, during the term of this Agreement.
8. Disclaimers THE SERVICE IS PROVIDED “AS IS” AND“WITH ALL FAULTS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION,IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, COMPLETENESS,MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, AND ANY WARRANTIES THAT THE SERVICE IS CURRENT AND/OR UP-TO-DATE ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW.THERE IS NO WARRANTY, REPRESENTATION,OR GUARANTEE THAT THE SERVICE, OR YOUR USE OF THE SERVICE, WILL BE UNINTERRUPTED, COMPLETE, ACCURATE, CURRENT, RELIABLE, ERROR-FREE, SECURE, OR THAT ANY PROBLEMS WILL BE CORRECTED, OR THAT THE SERVICE, OR ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE FROM THE SERVICE, IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATION REGARDING THE USE OF, OR THE RESULTS OF THE USE OF, THE SERVICE AND YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICE, AND YOUR RELIANCE THEREON.
9. Limitation of Liability NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND, NEITHER SIMPLE HOMES NOR ANY OF ITS LICENSORS, SPONSORS, AGENTS, SUCCESSORS, OR ASSIGNS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, OR OTHER REPRESENTATIVES,ARE RESPONSIBLE OR LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL,EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS, LOST SAVINGS, OR LOSS OF DATA) UNDER ANY CONTRACT,NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY MANNER TO THE SERVICE, AND/OR ANY LINKED WEBSITE, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES. SIMPLE HOMES’S MAXIMUM AGGREGATE LIABILITY TO YOU SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100). NEITHER SIMPLE HOMES NOR ANY OF ITS LICENSORS, SPONSORS, AGENTS, SUCCESSORS, OR ASSIGNS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, OR OTHER REPRESENTATIVES WILL HAVE ANY LIABILITY TO YOU FOR ANY DAMAGES, EXPENSES, OR OTHER LIABILITY INCURRED BY YOU AS A RESULT OF ANY INACCURACY, INCOMPLETENESS,OR MISREPRESENTATION OF ANY INFORMATION, CONTENT, POSTINGS, OR SUBMISSIONS PROVIDED OR POSTED ON THE SERVICE BY THIRD PARTIES.SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES AND/OR LIABILITIES, SO CERTAIN OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
10. Indemnification You (and also any third party for whom you operate an account on the Service) agree to fully indemnify, defend (at Simple Homes’s request), and hold Simple Homes, our licensors, suppliers, agents, successors, and assigns, and our and their directors, officers, employees, consultants, and other representatives (collectively, the “Simple Homes Parties”) harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees), and other expenses that arise directly or indirectly out of or from: (a) your actual or alleged breach of this Agreement; (b) any allegation that any User Content or other materials you submit to us or transmit to the Service infringe, misappropriate, or otherwise violate the copyright, patent, trademark, trade secret, or other intellectual property or other rights of any third party; (c) your activities in connection with the Service or other websites to which the Service is linked; (d) your negligence or willful misconduct; (e) your use of the results, content, data, or information provided via the Service; (f) any service or product offered by you in connection with or related to your use of the Service; and/or (g) your violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities.
11. Jurisdictional Issues Simple Homes makes no representation that the Service operates (or is legally permitted to operate) in all geographic areas, or that the Service is appropriate or available for use in other locations. Accessing the Service from territories where the Service or any content or functionality of the Service or portion thereof is illegal is expressly prohibited. If you choose to access the Service, you agree and acknowledge that you do so on your own initiative and at your own risk, and that you are solely responsible for compliance with all applicable laws. The Service is operated from the United States. If you are located outside of the United States and choose to use the Service or provide your User Content to us, your User Content will be transferred, processed, and stored in the United States. U.S. privacy laws may not be as protective as those in your jurisdiction. Your agreement to the terms of this Agreement followed by your submission of your User Content in connection with the Service represents your agreement to this practice. If you do not want your User Content transferred to or processed or stored in the United States, you should not use the Service.
12. Notice for California Users
Under California Civil Code Section1789.3, California Service users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.
13. Dispute Resolution
A. Arbitration. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through good-faith negotiations, which shall be a precondition to either party initiating a lawsuit or arbitration. Except for disputes relating to Simple Homes’s intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents) or if you opt out of this agreement to arbitrate, all claims arising out of or relating to this Agreement and your use of the Service shall be finally settled by binding arbitration administered by JAMS in accordance with the provisions for consumer-related disputes, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court; provided, however, that the arbitrator will not have authority to award damages, remedies, or awards that conflict with this Agreement. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Simple Homes will pay the additional cost. You and Simple Homes hereby expressly waive trial by jury. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if Simple Homes is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act.The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and that the right to discovery may be more limited in arbitration than in court.
B. Class-Action Waiver. The parties further agree that any arbitration shall be conducted in their individual capacities only, and not as a class action or other representative action. If any court or arbitrator determines that the class-action waiver set forth in this section is void or unenforceable for any reason, or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
C. Exception—Litigation of Small-Claims-Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
D. Thirty-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration- and class-action-waiver provisions set forth in this section by sending written notice of your decision to opt out to the following address: Simple Homes, LLC, 5151 Bannock St. Building H Denver, CO 80216. The notice must be sent within 30 days of registering to use the Service; otherwise, you shall be bound to arbitrate disputes in accordance with this Agreement. If you opt out of these arbitration provisions, Simple Homes also will not be bound by them. In addition, if you elect to opt out of these arbitration provisions, Simple Homes may terminate your use of the Service.
E. Time Limitation on Claims. You agree that any claim you may have arising out of or related to your relationship with Simple Homes and this Agreement must be filed within one year after such claim arose; otherwise, your claim is permanently barred.
14. Choice of Law and Forum This Agreement and your relationship with Simple Homes Parties shall be governed by, and construed and interpreted in accordance with, the laws of the State of Colorado without regard to its conflict of laws principles AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. Subject to Section 13, the parties irrevocably consent to bring any action to enforce this Agreement in the federal or state courts located in Denver, Colorado and you consent to the exclusive jurisdiction of the federal or state courts located in Denver, Colorado.
15. U.S. Government Restricted Rights The Service shall be deemed “commercial computer software” pursuant to DFAR Section227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction release, performance, display or disclosure of the Service by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
16. Miscellaneous If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect, and such provision will be reformed in a manner to effectuate the original intent of the parties as closely as possible and remain enforceable. If such reformation is not possible in a manner that is enforceable, then such term will be severed from the remaining terms, and the remaining terms will remain in effect. This is the entire Agreement between you and us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements between you and us with respect to such subject matter. This Agreement may not be changed, waived, or modified except by a written instrument signed by Simple Homes. If any employee of Simple Homes offers to modify this Agreement, he or she is not acting as an agent for SimpleHomes or speaking on Simple Homes’s behalf. You may not rely, and should not act in reliance on, any statement or communication from an employee of SimpleHomes or anyone else purporting to act on Simple Homes’s behalf. This Agreement is between you and Simple Homes; there are no third-party beneficiaries. You are responsible for compliance with all applicable laws and regulations, including, but not limited to, United States export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by theUnited States government. No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement. Neither this Agreement nor any right, obligation, or remedy hereunder is assignable, transferable, delegable, or sublicensable by you except with Simple Homes’s prior written consent, and any attempted assignment, transfer, delegation, or sublicense shall be null and void. Simple Homes may assign, transfer, or delegate this Agreement or any right or obligation or remedy hereunder in its sole discretion. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Except as explicitly stated otherwise, legal notices shall be served on Simple Homes at firstname.lastname@example.org (in the case of Simple Homes) or to the e-mail address you have designated on your account (in your case). Notice to you shall be deemed given 24 hours after the e‑mail is sent. Any heading, caption, or section title contained in this Agreement is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.
The Service is Operated By
Simple Homes, LLC
Effective April 4, 2019