Terms of service

TERMS OF SERVICE AGREEMENT
IMPORTANT NOTICE TO USER: PLEASE READ THIS DOCUMENT CAREFULLY. This Terms of Service ("Agreement") is a legal agreement between you (referred to herein as "you" or "your") and Broadcastlr LLC d/b/a homingCloud ("homingCloud", "we", "our", or "us") for access to and use of homingCloud software, services and websites (referred to collectively as the "Services" and excluding any services provided to you by homingCloud under a separate written agreement).
YOU MUST ACCEPT THIS TERMS OF SERVICE AGREEMENT BEFORE ACCESSING OR OTHERWISE USING THE HOMINGCLOUD SERVICES. BY CLICKING "I AGREE", YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THE AGREEMENT, DO NOT ACCESS OR USE THE SERVICES.
YOU REPRESENT THAT YOU ARE NOT A MINOR IN YOUR STATE OF RESIDENCE AND THAT YOU HAVE THE LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO BE BOUND BY ITS TERMS.
  1. The Services. HomingCloud.com (the "Website") is an online venue where real estate buyers, sellers, renters, landlords and others who maintain active homingCloud member accounts ("Members") can share information regarding real estate ("Listings") and communicate. homingCloud is not a real estate broker. We have no control over the conduct of our Members or the truth, accuracy, completeness or authenticity of the information that Members post on our Website.
  2. Use of Services by You.
    1. You acknowledge and agree that HomingCloud makes no representation or warranty regarding Posts and therefore HomingCloud does not guarantee, and has no responsibility to ensure, that terms offered in Posts will be honored by Members.
    2. Each Member that has registered as a buyer or a renter represents and warrants to us that (i) such buyer or renter is a natural person (i.e., not an entity or representative of an entity), and (ii) that such buyer or renter will use the Services solely for their own, non-commercial, personal use for their own account.
    3. Each Member that has registered as a seller or a landlord represents and warrants to us that either (a) such seller owns the property identified in the Post, or (b) such landlord has all necessary authority from the owner of such property to create a sales or rental Post.
    4. The Website may contain features and functionalities that may link you or provide you with access to third party content, including websites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services not controlled by HomingCloud. Your interactions with organizations and/or individuals found on or through the Website, including payment, title and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make appropriate investigation before proceeding with any online or offline transaction with any of these third parties. You agree that HomingCloud shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. HomingCloud shall have no responsibility or obligation in the event of a dispute between Members.
    5. Release. You hereby release homingCloud (and our officers, directors, members, managers, employees, agents and affiliates) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any dispute with one or more users of the Services. If you are a California resident, you waive California Civil Code 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
    6. You acknowledge and agree that, subject to the disclaimer of warranties and limitation of liability set forth in this Agreement, your use of the Services, including, without limitation, the storage of any data, files, information and/or other materials on a server owned or under the control of HomingCloud or in anyway connected to the Services, shall be at your sole risk and responsibility and HomingCloud shall have no obligation to back-up such data, files, information and/or other materials. HomingCloud expressly reserves the right to limit storage capacity and to remove and/or delete any data, files, and/or other information stored or used in connection with the Services that HomingCloud deems, in its sole discretion, to be in violation of this Agreement and/or any local, state, or federal law or regulation.
    7. You agree that any registration information or Post information you give to HomingCloud will always be accurate, correct and up to date. See Section 11 for information regarding how HomingCloud treats your personal information.
    8. You shall not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).
    9. You shall not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose.
    10. You are solely responsible for (and HomingCloud has no responsibility to you or to any third party for) any breach of your obligations under this Agreement and for the consequences (including any loss or damage which HomingCloud may suffer) of any such breach.
    11. You agree that you will not create or attempt to create multiple user accounts.
  3. Restrictions on Use of Services. You agree that you will not:
    1. use the Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement and/or any and all applicable local, state and federal laws and regulations and international treaties;
    2. use the Services for the distribution, housing, processing, propagation, storage, or otherwise handling in any way abusive, defamatory, harassing, libelous, lewd, libelous, obscene, pornographic, threatening, or tortuous material, or any false or misleading material, or any other material (including links to such material) that HomingCloud deems, in its sole discretion, to be objectionable whether or not such material is unlawful;
    3. permit or otherwise enable unauthorized users to access and/or use the Services;
    4. use the Services to export software or data in violation of applicable U.S. laws or regulations;
    5. sell, rent, lease, loan, distribute, transfer, sublicense, or otherwise permit any third party to use or have access to the Services for any purpose (except as expressly permitted by HomingCloud in writing), whether by timesharing, service bureau, networking or any other means;
    6. remove any copyright, trademark, patent or other proprietary notices from the Services or any portion thereof;
    7. distribute, publish, exhibit, or otherwise use the Services, or any portion thereof, in any manner and for any purpose not expressly permitted under this Agreement;
    8. frame or utilize framing techniques to enclose the Services, or any portion thereof;
    9. exploit the Services or collect any data incorporated in the Services in any automated manner through the use of bots, metaspiders, crawlers or any other automated means;
    10. register as a user of the Services by providing false, inaccurate, or misleading information;
    11. post hyperlinks to commercial services or websites;
    12. post, e-mail or otherwise make available Content (as defined in Section 7(A)) that violates the Fair Housing Act by stating, in any notice or ad for the sale or rental of any dwelling, a discriminatory preference based on race, color, national origin, religion, sex, familial status or handicap (or violates any state or local law prohibiting discrimination on the basis of these or other characteristics);
    13. impersonate any person or entity, including, but not limited to, a HomingCloud employee, or falsely state or otherwise misrepresent your affiliation with a person or entity;
    14. collect personal data about other users for commercial or unlawful purposes;
    15. post non-local or otherwise irrelevant Content, repeatedly post the same or similar Content or otherwise impose an unreasonable or disproportionately large load on our infrastructure;
    16. attempt to gain unauthorized access to our computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Service; or
    17. post, e-mail or make available Content that that constitutes or contains "affiliate marketing," "link referral code," "junk mail," "spam," "chain letters," "pyramid schemes," or unsolicited commercial advertisement.
  4. Provision of Services by HomingCloud. HomingCloud is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Services which HomingCloud provides may change from time to time without prior notice to you. As part of this continuing innovation, you acknowledge and agree that HomingCloud may decline to provide you access to the Services or stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally at HomingClouds sole discretion, without prior notice to you. You may stop using the Services at any time. You do not need to specifically inform HomingCloud when you stop using the Services. You acknowledge and agree that if HomingCloud disables access to your account, you may be prevented from accessing the Services, your account details or any files or other content which is contained in your account.
  5. Access to Services; Reservation of Rights.
    1. HomingCloud hereby gives you a personal, worldwide, non-assignable and non-exclusive right to access and use the Services in the manner and for the purposes expressly permitted by the Agreement. You agree not to copy, decompile, reverse engineer, disassemble, modify, create a derivative work of, display in human readable form, attempt to discover any source code, or otherwise use any software that enables or comprises any part of the Services. You may not assign (or grant a sub-license of) your rights to use the Services, grant a security interest in or over your rights to use the Services, or otherwise transfer any part of your rights to use the Services and any such attempt shall be null and void at the time of such attempt.
    2. HomingCloud reserves all right, title and interest in and to the Services not expressly granted to you under this Agreement, including, without limitation, all patent rights, copyrights, trademarks, trade names, trade secrets, trade dress and other intellectual property and proprietary rights. There are no implied licenses under this Agreement.
  6. Your Password and Account Security. You agree and understand that you are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Services. Accordingly, you agree that you will be solely responsible to HomingCloud for all activities that occur under your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify HomingCloud immediately at ?info@homingcloud.com .
  7. Content in the Services.
    1. You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) which you may have access to as part of, or through your use of, the Services are the sole responsibility of the person from which such content originated. All such information is referred to as the "Content"
    2. You acknowledge that Content presented to you as part of the Services, including but not limited to advertisements in the Services and sponsored Content within the Services may be protected by intellectual property rights which are owned by the sponsors or advertisers who provide that Content to HomingCloud (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute or create derivative works based on this Content (either in whole or in part) unless you have been specifically told that you may do so by HomingCloud or by the owners of that Content, in writing.
    3. HomingCloud reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content.
    4. You understand that by using the Services you may be exposed to Content that you may find offensive, indecent or objectionable and that, in this respect, you use the Services at your own risk.
    5. You agree that you are solely responsible for (and that HomingCloud has no responsibility to you or to any third party for) any Content that you create, transmit or display while using the Services and for the consequences of your actions (including any loss or damage which HomingCloud may suffer) by doing so.
  8. Intellectual Property.
    1. You acknowledge and agree that HomingCloud (or HomingClouds licensors) own all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). The Services include, without limitation, all rights with respect to copyrights, patents, trademarks, service marks, moral rights, trade names, domain names, technology, mask works, know-how, design rights, trade dress, trade secrets, inventions, ideas, processes, formulas, source code and object code, data, and similar rights including the information in any application, registration, or renewal thereof that may be protected under the intellectual property laws, regulations, or rules of any country. Without limiting the foregoing, all data, graphics, icons, images, logos, text, and the compilation of all content therein, and all service marks, trademarks, trade names, and trade dress depicted on the Services are owned by HomingCloud (or HomingClouds licensors).
    2. Other than the limited license set forth in Section 9, HomingCloud acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under this Agreement in or to any Content that you submit, post, transmit or display on, or through, the Services, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with HomingCloud, you agree that you are responsible for protecting and enforcing those rights and that HomingCloud has no obligation to do so on your behalf.
    3. You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained within the Services.
    4. You agree that in using the Services, you will not use any trademark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.
  9. Content License from you.
    1. You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Service. By submitting, posting or displaying the Content you give HomingCloud a worldwide, perpetual, irrevocable, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit or post on or through the Services.
    2. In connection with Content you submit to the HomingCloud Services, you affirm, represent, and/or warrant that: you own or have the necessary licenses, rights, consents, and permissions to use and authorize HomingCloud to use such Content in the manner contemplated by the Services and these Terms of Service. You further agree that you will not submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have written permission from their rightful owner to post the material and to grant HomingCloud all of the license rights granted herein.
    3. You understand that HomingCloud, in performing the required technical steps to provide the Services to our users, may (a) transmit or distribute your Content over various public networks and in various media; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this license shall permit HomingCloud to take these actions.
    4. You confirm and warrant to HomingCloud that you have all the rights, power and authority necessary to grant the above license.
  10. The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our copyright agent with the following information: an electronic or physical signature of the copyright owner or of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; a description of where the material that you claim is infringing is located on the Services; your address, telephone number, and e-mail address; a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner's behalf. Any notification by a copyright owner or a person authorized to act on such copyright owner?s behalf that fails to comply with requirements of the DMCA shall not be considered sufficient notice and shall not be deemed to confer upon homingCloud actual knowledge of facts or circumstances from which infringing material or acts are evident. homingCloud?s copyright agent for notice of claims of copyright infringement can be reached as follows:
    Name: Tina Fine
    Address: Box 772 Chappaqua, New York
    Telephone: 914-319-7646
    Email: tina@homingcloud.com
    We suggest that you consult your legal advisor before filing a notice with HomingClouds copyright agent. You should note that there can be penalties for false claims under the DMCA.
  11. Privacy Policy. For information about HomingClouds data protection practices, please read HomingClouds privacy policy at http://www.homingcloud.com/PrivacyPolicy . This policy explains how HomingCloud treats your personal information, and protects your privacy, when you use the Services. You agree to the use of your data in accordance with HomingClouds privacy policy.
  12. Changes to Agreement. HomingCloud reserves the right to change, amend and/or modify this Agreement, in whole or in part, at any time with or without notice. You hereby acknowledge and agree that such changes, amendments and/or modifications will become effective when posted on the Services or as otherwise provided by HomingCloud. From time to time, HomingCloud may post on the Website or otherwise notify you of additional or different rules and policies relating to the Services. These rules and policies shall thereafter be part of this Agreement. If you use the Services after the posting or other notice of changes in this Agreement or changed rules or policies, you are agreeing to follow and be bound by them for such use.
  13. THE SERVICES ARE PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND. WE HAVE NO CONTROL OVER AND MAKE NO REPRESENTATIONS AS TO THE QUALITY, SAFETY, OR LEGALITY OF LISTINGS, THE TRUTH OR ACCURACY OF LISTINGS, THE ABILITY OF MEMBERS TO OFFER LISTINGS, OR THAT A MEMBER WILL ACTUALLY HONOR ANY LISTING TERM OFFERED OR TRANSMITTED THROUGH THE SERVICES. TO THE FULLEST EXTENT PERMITTED BY LAW, HOMINGCLOUD EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND/OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, HOMINGCLOUD DOES NOT WARRANT THE ACCURACY, RELIABILITY OR COMPLETENESS OF ANY INFORMATION PROVIDED BY HOMINGCLOUD IN CONNECTION WITH YOUR USE OF THE SERVICES, NOR THAT THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY DATA, FILES, AND/OR OTHER INFORMATION STORED ON A SERVER OWNED OR UNDER THE CONTROL OF HOMINGCLOUD OR IN ANY WAY CONNECTED WITH THE SERVICES, WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE OR SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN DISCLAIMERS OR LIMITATIONS OF WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR REPUBLICATION OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM HOMINGCLOUD OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
  14. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL HOMINGCLOUD, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR THIRD PARTY LICENSORS, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR THE SERVICES PROVIDED HEREUNDER, EVEN IF HOMINGCLOUD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, NEGLIGENCE, RECKLESSNESS, PROFESSIONAL NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER BASIS OR LEGAL THEORY. SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER OR NOT THE DAMAGES ARISE DIRECTLY OR INDIRECTLY FROM: (i) THE USE OR MISUSE OF, OR RELIANCE UPON, THE SERVICES PROVIDED HEREUNDER; (ii) THE INABILITY TO USE THE SERVICES FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR ANY FAILURE OF PERFORMANCE NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, OR DESTRUCTION; (iii) THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICES; OR (iv) THE DELETION AND/OR CORRUPTION OF ANY DATA, INFORMATION, DOCUMENTS, FILES AND/OR ANY OTHER MATERIALS STORED ON A SERVER OWNED OR UNDER THE CONTROL OF HOMINGCLOUD OR IN ANY WAY CONNECTED TO THE HOMINGCLOUD SERVICES. SUCH LIMITATION ON LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
  15. Indemnification. You agree to release, indemnify and hold harmless HomingCloud, its affiliates, directors, members, officer, employees, agents and third party licensors, from and against any and all liabilities, losses, damages, claims and expenses, including attorneys fees, with respect to your use or misuse of, or reliance upon, the Services or your violation of this Agreement or rights of another or any Content you submit or make available through the Services. This section shall survive the termination of this Agreement.
  16. Term and Termination. This Agreement is effective until terminated by HomingCloud or you. HomingCloud shall have the right to terminate this Agreement including, without limitation, your right to access and use the Services, at any time in HomingClouds sole discretion and without advance notice to you. The licenses granted herein shall automatically terminate without advance notice if you fail to comply with any material provision of this Agreement. Upon termination of this Agreement for any reason, you shall immediately cease using the Services.
  17. Governing Law and Venue. This Agreement shall be governed by the laws of the State of New York without giving effect to conflict or choice of law principles, and any litigation between the parties arising under this Agreement shall be conducted exclusively in state or federal courts located in the State and City of New York. The parties agree that "United Nations Convention on Contracts for the International Sale of Goods" shall not apply to this Agreement.
  18. Severability. If any provision in this Agreement is invalid or unenforceable or contrary to applicable law, such provision shall be construed, limited, or altered, as necessary, to eliminate the invalidity or unenforceability or the conflict with applicable law, and all other provisions of this Agreement shall remain in effect.
  19. No Assignment, Sublicense or Transfer. You may not assign, sublicense, or transfer this Agreement or any rights or obligations hereunder without prior written consent of HomingCloud. Any such attempted assignment, sublicense, or transfer will be null and void and HomingCloud, in its sole discretion, shall have the right to immediately terminate this Agreement.
  20. Communications by HomingCloud. You agree that HomingCloud may communicate with you electronically. Such electronic communications may consist of e-mail or other notices posted on the Services. You agree that all agreements, notices, disclosures, and other communications HomingCloud sends to you electronically will satisfy any requirement that such communication be in writing and, to the extent intended, such communication will be an enforceable and binding term or amendment to this Agreement.
  21. Beta Members. If the Services are made available to you as part of a beta program for trial and evaluation ("Beta Services"), you acknowledge and agree that such Beta Services: (i) are provided for evaluation purposes only; (ii) may change or cease to be functional without notice at the sole discretion of homingCloud; and (iii) shall not create any obligation for homingCloud to continue to develop, support, repair, offer for sale, or in any other way continue to provide to you or to any other party the Services.
  22. Entire Agreement. This Agreement sets forth the entire understanding and agreement between the parties relating to its subject matter and may be amended only in a writing signed by both parties. Any waiver of or promise not to enforce any right under this Agreement shall not be enforceable unless evidenced by a writing signed by the party making said waiver or promise. ANY TERMS AND CONDITIONS OF ANY PURCHASE ORDER OR OTHER DOCUMENT SUBMITTED BY YOU IN CONNECTION WITH THE SERVICES THAT ARE IN ADDITION TO, DIFFERENT FROM, OR INCONSISTENT WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT ARE NOT BINDING ON HOMINGCLOUD AND ARE INEFFECTIVE. NO VENDOR, DISTRIBUTOR, DEALER, RETAILER, AGENT, SALES PERSON, OR OTHER PERSON IS AUTHORIZED BY HOMINGCLOUD TO MODIFY THIS AGREEMENT OR TO MAKE ANY WARRANTY, REPRESENTATION, OR PROMISE THAT IS DIFFERENT THAN OR IN ADDITION TO THE WARRANTIES, REPRESENTATIONS, OR PROMISES EXPRESSLY SET FORTH IN THIS AGREEMENT.
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Copyright 2012 © homingCloud. All rights reserved.
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July 5, 2011
July 5, 2011