Last Updated Date: August 2, 2021
Welcome to vipHomeLink, a platform operated by vipHomeLink, LLC (“vipHomeLink,” “us,” and “we”)! vipHomeLink provides an online digital home management solution platform that allows individuals to maintain, organize and improve your most valuable asset, your home.
IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT VIPHOMELINK’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 9.4 (AUTOMATIC RENEWAL) BELOW.
PLEASE BE AWARE THAT SECTION 15 (DISPUTE RESOLUTION) OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
PLEASE BE AWARE THAT SECTION 2.4 (VIPHOMELINK COMMUNICATIONS) OF THIS AGREEMENT, BELOW, CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL, TEXT MESSAGE, CALLS AND PUSH NOTIFICATION.
1. HOW THE VIPHOMELINK SERVICES WORK. vipHomeLink was created to help you leverage technology to simplify homeownership. The solution enables you, as a Member or as an Associate Member of a Member’s Account (as defined below) (“Associate Member”), to (i) stay organized by storing all of your home information and documents in your secure and private home profile, for easy access; (ii) stay on top of routine, but necessary, home maintenance with personalized reminders and alerts; (iii) improve your home safety, energy efficiency and value with tailored home recommendations by subject matter experts; and (iv) gamify home management with engaging home analytical tools, such as the Home Fitness Index (HFI) and Money Meter.
THE SERVICES PROVIDED BY VIPHOMELINK ARE INTENDED TO BE USED FOR INFORMATIONAL PURSPOSES ONLY. VIPHOMELINK IS IN NO WAY YOUR AGENT, ADVISOR, OR CUSTODIAN, AND WE DO NOT HAVE A FIDUCIARY RELATIONSHIP OR OBLIGATION TO YOU REGARDING ANY DECISIONS OR ACTIVITIES THAT YOU EFFECT WHEN USING OUR SERVICES. VIPHOMELINK DOES NOT GUARANTEE YOUR PERSONAL SAFETY OR THAT OF YOUR FAMILY OR YOUR GUESTS, OR THE ACCURACY OR COMPLETENESS OF ANY INFORMATION PROVIDED BY A HOME EXPERT OR ELSEWHERE IN THE APPLICATION OR THE SERVICES.
YOU ARE RESPONSIBLE FOR INDEPENDENTLY VERIFYING ANY INFORMATION OR ADVICE CONVEYED TO YOU IN THE APPLICATION OR THE SERVICES OR DURING A VIRTUAL HOME CHECKUP. BY USING THE SERVICES, YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF OR RELIANCE ON THE INFORMATION PROVIDED BY VIPHOMELINK THROUGH THE SERVICES OR OUR HOME EXPERTS IS AT YOUR OWN RISK AND THAT VIPHOMELINK DOES NOT IN ANY WAY REPRESENT OR WARRANT THAT THE SERVICES WILL PREVENT ANY DAMAGE TO YOU OR YOUR HOME OR HAVE ANY EFFECT ON YOUR HOME WARRANTY OR YOUR INSURANCE CLAIMS OR PREMIUMS. YOU AGREE THAT YOU WILL NOT RELY ON ANY INFORMATION PROVIDED BY VIPHOMELINK IN MAKING ANY HOME PURCHASE DECISIONS, LOAN-RELATED DECISIONS, INSURANCE-RELATED DECISIONS, OR ANY OTHER DECISIONS RELATED TO YOUR HOME.
2. USE OF THE SERVICES AND VIPHOMELINK PROPERTIES. The Application, the Website, the Services, and the information and content available on the Website and in the Application and the Services (as these terms are defined herein) (each, a “vipHomeLink Property” and collectively, the “vipHomeLink Properties”) are protected by copyright laws throughout the world. Subject to the Agreement, vipHomeLink grants you a limited license to access and use the vipHomeLink Properties solely for your personal purposes. Unless otherwise specified by vipHomeLink in a separate license, your right to use any and all vipHomeLink Properties is subject to the Agreement.
2.1 Application License. Subject to your compliance with the Agreement, vipHomeLink grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Application accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the Application on a shared basis within your designated family group.
2.2 Updates. You understand that vipHomeLink Properties are evolving. As a result, vipHomeLink may require you to accept updates to vipHomeLink Properties that you have installed on your mobile device. You acknowledge and agree that vipHomeLink may update vipHomeLink Properties with or without notifying you. You may need to update third-party software from time to time in order to use vipHomeLink Properties.
2.3 Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit vipHomeLink Properties or any portion of vipHomeLink Properties, including the Website; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other vipHomeLink Properties (including images, text, page layout or form) of vipHomeLink; (c) you shall not use any metatags or other “hidden text” using vipHomeLink’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of vipHomeLink Properties except to the extent the foregoing restrictions are expressly permitted by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of vipHomeLink Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in vipHomeLink Properties. Any future release, update or other addition to vipHomeLink Properties shall be subject to the Agreement. vipHomeLink, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any vipHomeLink Property terminates the licenses granted by vipHomeLink pursuant to the Agreement.
2.4 vipHomeLink Communications. By entering into this Agreement or using the vipHomeLink Properties, you agree to receive communications from us, including via e-mail, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the vipHomeLink Properties, updates concerning new and existing features on the vipHomeLink Properties, communications concerning promotions run by us or our third party partners, and news concerning the vipHomeLink and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF. IF YOU WISH TO OPT OUT OF PROMOTIONAL CALLS OR TEXTS, YOU MAY TEXT “END” FROM THE MOBILE DEVICE RECEIVING THE MESSAGES TO THE NUMBER FROM WHICH YOU RECEIVED THE MESSAGE. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE VIPHOMELINK PROPERTIES OR RELATED SERVICES. IF YOU WISH TO OPT OUT OF ALL TEXTS OR CALLS FROM US (INCLUDING OPERATIONAL OR TRANSACTIONAL TEXTS OR CALLS), YOU CAN TEXT THE WORD “STOPALL” FROM THE MOBILE DEVICE RECEIVING THE MESSAGES TO THE NUMBER FROM WHICH YOU RECEIVED THE MESSAGE. YOU MAY ALSO OPT OUT OF VIPHOMELINK COMMUNICATIONS BY VISITING THE APPLICATION “SETTINGS” PAGE ON YOUR MOBILE DEVICE OR BY EMAILING SUPPORT@VIPHOMELINK.COM. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS AND PUSH NOTIFICATIONS MAY IMPACT YOUR USE OF THE VIPHOMELINK PROPERTIES OR RELATED SERVICES.
3.1 Registering Your Account. In order to access certain features of vipHomeLink Properties you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has signed up directly or received a referral code or has been invited to participate by one of vipHomeLink’s partners or referral agents and has registered an account on the Website (“Account”) or has an account with the provider of the Application for the user’s mobile device. For the avoidance of doubt, you will not be required to create an Account to browse the Website or access any information that is publicly available via the Website.
3.2 Registration Data. In registering an account on the Website, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least sixteen (16) years old, and, if you are between the ages of sixteen (16) and eighteen (18) years old, you are using the Services under the supervision of parent or guardian; (ii) of legal age to form a binding contract or are using the Services under the supervision of a parent or guardian; and (iii) not a person barred from using vipHomeLink Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of vipHomeLink Properties by minors. If you provide any information that is untrue, inaccurate, not current or incomplete, or vipHomeLink has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, vipHomeLink has the right to suspend or terminate your Account and refuse any and all current or future use of vipHomeLink Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. vipHomeLink reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use vipHomeLink Properties if you have been previously removed by vipHomeLink, or if you have been previously banned from any of vipHomeLink Properties.
3.3 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of vipHomeLink.
3.4 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to vipHomeLink Properties, including but not limited to, a mobile device that is suitable to connect with and use vipHomeLink Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing vipHomeLink Properties.
4. RESPONSIBILITY FOR CONTENT.
4.1 Types of Content. You acknowledge that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through vipHomeLink Properties (collectively, “Content”), including vipHomeLink Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not vipHomeLink, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through vipHomeLink Properties (“Your Content”), and that you and any Associate Members of your Account who have become Registered Users of vipHomeLink Properties, and not vipHomeLink, are similarly responsible for all Content that you and they Make Available to your Account through vipHomeLink Properties (“User Content”). For the avoidance of doubt, all Accounts and home profiles are private. Any of Your Content or User Content contained in an Account cannot and will not be publicly shared with other Registered Users other than with Associate Members of such Account.
4.2 No Obligation to Pre-Screen Content. You acknowledge that vipHomeLink has no obligation to pre-screen Content (including, but not limited to, User Content), although vipHomeLink reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that vipHomeLink pre-screens, refuses or removes any Content, you acknowledge that vipHomeLink will do so for vipHomeLink’s benefit, not yours. Without limiting the foregoing, vipHomeLink shall have the right to remove any Content that violates the Agreement or is otherwise objectionable.
4.3 Storage. Unless expressly agreed to by vipHomeLink in writing elsewhere, vipHomeLink has no obligation to store any of Your Content that you Make Available on vipHomeLink Properties. vipHomeLink has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of vipHomeLink Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that vipHomeLink retains the right to create reasonable limits on vipHomeLink’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by vipHomeLink in its sole discretion.
5.1 vipHomeLink Properties. Except with respect to Your Content and User Content, you agree that vipHomeLink and its suppliers own all rights, title and interest in vipHomeLink Properties (including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and vipHomeLink software. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any vipHomeLink Properties.
5.2 Trademarks. and all related graphics, logos, service marks and trade names used on or in connection with any vipHomeLink Properties or in connection with the Services are the trademarks of vipHomeLink and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in vipHomeLink Properties are the property of their respective owners.
5.3 Your Content. vipHomeLink does not claim ownership of Your Content. However, when you as a Registered User post or publish Your Content on or in vipHomeLink Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
5.4 License to Your Content. Subject to any applicable account settings that you select, you grant vipHomeLink a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing vipHomeLink Properties to you and to any of your Associate Members. If you choose to grant Account access to any Associate Members, you hereby grant such Associate Member a license to access, use, and modify your Account or any of Your Content therein, and you hereby grant vipHomeLink permission to provide such Associate Member with access to your Account and Your Content. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not vipHomeLink, are responsible for all of Your Content that you Make Available on or in vipHomeLink Properties. Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter as determined by vipHomeLink in its sole discretion. You may not post or submit for print services a photograph of another person without that person’s permission.
5.5 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to vipHomeLink through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that vipHomeLink has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to vipHomeLink a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of vipHomeLink Properties and/or vipHomeLink’s business.
6. USER CONDUCT. As a condition of use, you agree not to use vipHomeLink Properties for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) Make Available any Content on or through vipHomeLink Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without vipHomeLink’s prior written consent; (v) impersonates any person or entity, including any employee or representative of vipHomeLink; (vi) interferes with or attempt to interfere with the proper functioning of vipHomeLink Properties or uses vipHomeLink Properties in any way not expressly permitted by this Agreement; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against vipHomeLink Properties, including but not limited to violating or attempting to violate any security features of vipHomeLink Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in vipHomeLink Properties, introducing viruses, worms, or similar harmful code into vipHomeLink Properties, or interfering or attempting to interfere with use of vipHomeLink Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” vipHomeLink Properties.
7. INVESTIGATIONS. vipHomeLink may, but is not obligated to, monitor or review vipHomeLink Properties and Content at any time. Without limiting the foregoing, vipHomeLink shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Agreement or any applicable law. Although vipHomeLink does not generally monitor user activity occurring in connection with vipHomeLink Properties or Content, if vipHomeLink becomes aware of any possible violations by you of any provision of the Agreement, vipHomeLink reserves the right to investigate such violations, and vipHomeLink may, at its sole discretion, immediately terminate your license to use vipHomeLink Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
8. INTERACTIONS WITH OTHER USERS.
8.1 User Responsibility. You are solely responsible for your interactions with other Registered Users and any other parties with whom you interact, including any associate members you may add to your Account or Home Experts; provided, however, that vipHomeLink reserves the right, but has no obligation, to intercede in such disputes. You agree that vipHomeLink will not be responsible for any liability incurred as the result of such interactions.
8.2 Content Provided by Other Users. vipHomeLink Properties may contain User Content provided by other Registered Users. vipHomeLink is not responsible for and does not control User Content. vipHomeLink has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to, User Content. You use all User Content and interact with other Registered Users at your own risk.
9. FEES AND PURCHASE TERMS.
9.1 Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide vipHomeLink with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or, if applicable, an account of a third-party payment provider such as PayPal (each credit card or payment provider account, a “Payment Provider”), or purchase order information, as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card or account, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities. By providing vipHomeLink with your credit card number or third-party payment provider account and associated payment information, you agree that vipHomeLink is authorized to immediately invoice your Account for all fees and charges due and payable to vipHomeLink hereunder and that no additional notice or consent is required. You agree to immediately notify vipHomeLink of any change in your billing address or the credit card or account used for payment hereunder. vipHomeLink reserves the right at any time to change its prices and billing methods, either immediately upon posting on vipHomeLink Properties or by e-mail delivery to you.
9.2 Service Subscription Fees. You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you create your Account and select your monthly or annual package (each, a “Service Commencement Date”). Except as set forth in the Agreement, all fees for the Services are non-refundable. No contract will exist between you and vipHomeLink for the Services until vipHomeLink accepts your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.
9.3 Withholding Taxes. You agree to make all payments of fees to vipHomeLink free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to vipHomeLink will be your sole responsibility, and you will provide vipHomeLink with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
9.4 Automatic Renewal. Your subscription will continue indefinitely until terminated in accordance with the Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at vipHomeLink’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least twenty-four (24) hours prior to the Renewal Commencement Date, by logging into and going to the “Manage Subscription” page of your “Account Management” page. If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please contact vipHomeLink at support@vipHomeLink.com or log in and go to the “Manage Subscription” page on your “Account Management” page. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize vipHomeLink to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if vipHomeLink does not receive payment from your Payment Provider, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that vipHomeLink may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
9.5 Discounts, Promo Codes and Premium Offers. We may, in our sole discretion, create discounts and promotional codes that may be redeemed for a discount on the Services, credit in your Account, or any other features or benefits, subject to any additional terms that we establish on a per promotional code basis (“Promo Codes”). PROMO CODES MAY ONLY BE USED ONCE PER PERSON, AND ONLY ONE PROMO CODE MAY BE USED PER ORDER. Only Promo Codes sent to you through official vipHomeLink communications channels, including through a vipHomeLink partner or reseller, are valid. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted and authorized in writing by us; (iii) may be disabled by us at any time for any reason without liability to us; (iv) may only be used pursuant to the specific terms that we establish for such Promo Code; (v) are not redeemable for cash; and (vi) may expire prior to your use. From time to time, we may offer special promotions associated with some of our Services. All promotional offers may be discontinued at any time, without prior notice, at our discretion and are only available while supplies last or for the duration noted.
9.6 Free Trials and Other Promotions. Any free trial or other promotion that provides Registered User level access to the Services must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire, and any further use of the Service is prohibited unless you pay the applicable subscription fee. If you are inadvertently charged for a subscription, please contact vipHomeLink to have the charges reversed.
10. INDEMNIFICATION. You agree to indemnify and hold vipHomeLink, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “vipHomeLink Party” and collectively, the “vipHomeLink Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any vipHomeLink Property; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Registered Users; (e) any injury to you or a family member resulting from your use of any vipHomeLink Property or any act or omission resulting from any recommendation received from a Home Expert, the Application, related content, or the Services; or (f) your violation of any applicable laws, rules or regulations. vipHomeLink reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with vipHomeLink in asserting any available defenses. This provision does not require you to indemnify any of the vipHomeLink Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to vipHomeLink Properties.
11. DISCLAIMER OF WARRANTIES AND CONDITIONS.
11.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF VIPHOMELINK PROPERTIES IS AT YOUR SOLE RISK, AND VIPHOMELINK PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. VIPHOMELINK PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE.
(a) VIPHOMELINK PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) VIPHOMELINK PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF VIPHOMELINK PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF VIPHOMELINK PROPERTIES WILL BE ACCURATE OR RELIABLE.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH VIPHOMELINK PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR HOME, COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS VIPHOMELINK PROPERTIES, OR ANY OTHER LOSS OR UNINTENDED INJURY THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. VIPHOMELINK MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM VIPHOMELINK OR THROUGH VIPHOMELINK PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e) FROM TIME TO TIME, VIPHOMELINK MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT VIPHOMELINK’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
11.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT VIPHOMELINK PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD VIPHOMELINK PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES OR ANY THIRD-PARTY EXPERTS OR TECHNICIANS THAT MAY VISIT YOUR HOME IF YOU ARRANGE SUCH A VISIT THROUGH OUR SERVICE, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. VIPHOMELINK MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. VIPHOMELINK MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OR CONTENT OBTAINED THROUGH SUCH THIRD PARTIES. YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH ANY PARTIES WITH WHOM YOU INTERACT. YOU AGREE THAT VIPHOMELINK WILL NOT BE RESPONSIBLE FOR ANY LIABILITY INCURRED AS THE RESULT OF SUCH INTERACTIONS.
11.3 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF VIPHOMELINK PROPERTIES. YOU UNDERSTAND THAT VIPHOMELINK DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF VIPHOMELINK PROPERTIES. VIPHOMELINK MAKES NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH VIPHOMELINK PROPERTIES.
11.4 Third-Party Materials. AS A PART OF VIPHOMELINK PROPERTIES, YOU MAY HAVE ACCESS TO MATERIALS THAT ARE HOSTED BY ANOTHER PARTY. YOU AGREE THAT IT IS IMPOSSIBLE FOR VIPHOMELINK TO MONITOR SUCH MATERIALS AND THAT YOU ACCESS THESE MATERIALS AT YOUR OWN RISK.
12. LIMITATION OF LIABILITY.
12.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL VIPHOMELINK PARTIES BE LIABLE FOR ANY LOSS OF PROPERTY, PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT VIPHOMELINK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF VIPHOMELINK PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE VIPHOMELINK PROPERTIES; (b) ANY INJURY TO YOU OR A FAMILY MEMBER RESULTING FROM YOUR USE OF ANY VIPHOMELINK PROPERTY; (c) ANY ACT OR OMISSION RESULTING FROM ANY RECOMMENDATION RECEIVED FROM A HOME EXPERT, THE APPLICATION, RELATED CONTENT, OR THE SERVICES; (d) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH VIPHOMELINK PROPERTIES; (e) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (f) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON VIPHOMELINK PROPERTIES; OR (g) ANY OTHER MATTER RELATED TO VIPHOMELINK PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A VIPHOMELINK PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A VIPHOMELINK PARTY’S GROSS NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A VIPHOMELINK PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.2 Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, VIPHOMELINK PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO VIPHOMELINK BY YOU DURING THE SIX-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (b) $100; OR (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A VIPHOMELINK PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A VIPHOMELINK PARTY’S GROSS NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A VIPHOMELINK PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.4 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
12.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN VIPHOMELINK AND YOU.
13. TERM AND TERMINATION.
13.1 Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use vipHomeLink Properties, unless terminated earlier in accordance with the Agreement.
13.2 Termination of Services by vipHomeLink. You will have thirty (30) days from the Service Commencement Date, or any Renewal Commencement Date, for any Services hereunder, to cancel such Service, in which case vipHomeLink will refund your Service Subscription Fee, if already paid pursuant to Section 9.1 (Payment) or 9.2 (Service Subscription Fees), for the applicable Service. Except as set forth above, the Service Subscription Fee for any Service shall be non-refundable. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Agreement, or if vipHomeLink is required to do so by law (e.g., where the provision of the Website, the Application, the Software or the Services is, or becomes, unlawful), vipHomeLink has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in vipHomeLink’s sole discretion and that vipHomeLink shall not be liable to you or any third party for any termination of your Account.
13.3 Termination of Services by You. If you want to terminate the Services provided by vipHomeLink, you may do so by (a) notifying vipHomeLink at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to vipHomeLink’s address set forth below. As noted above in Section 9.4, upon termination, if you cancel your subscription or otherwise terminate your Account or the Services, you may use your subscription until the end of your then-current subscription term, but you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. THE SERVICES WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 9.4 (AUTOMATIC RENEWAL).
13.4 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content and your home profile and associated home history information. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith, including your home profile and associated home history information, from our live databases. vipHomeLink will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
13.5 No Subsequent Registration. If your registration(s) with, or ability to access, vipHomeLink Properties or any other vipHomeLink community, is discontinued by vipHomeLink due to your violation of any portion of the Agreement or for conduct otherwise inappropriate, then you agree that you shall not attempt to re register with or access vipHomeLink Properties or any vipHomeLink community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those vipHomeLink Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, vipHomeLink reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
14. INTERNATIONAL USERS. vipHomeLink Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that vipHomeLink intends to announce such Services or Content in your country. vipHomeLink Properties are controlled and offered by vipHomeLink from its facilities in the United States of America. vipHomeLink makes no representations that vipHomeLink Properties are appropriate or available for use in other locations. Those who access or use vipHomeLink Properties from other countries do so at their own volition and are responsible for compliance with local law.
15. DISPUTE RESOLUTION. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires U.S. users to arbitrate disputes with vipHomeLink and limits the manner in which you can seek relief from us.
15.1 Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with vipHomeLink, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify,; and (b) you or vipHomeLink may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
15.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent (AYBIII, 6 South Street, Ste 302, Morristown, NJ 07960). The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, vipHomeLink will pay them for you. In addition, vipHomeLink will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
15.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and vipHomeLink. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
15.4 Waiver of Jury Trial. YOU AND VIPHOMELINK HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and vipHomeLink are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 15.1 (Application of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
15.5 Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of New York. All other disputes, claims, or requests for relief shall be arbitrated.
15.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: legal@vipHomeLink.com, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your vipHomeLink username (if any), the email address you used to set up your vipHomeLink account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
15.7 Severability. Except as provided in Section 15.5 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
15.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with vipHomeLink.
15.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if vipHomeLink makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing vipHomeLink at the following address: legal@vipHomeLink.com.
16. THIRD-PARTY SERVICES.
16.1 Third-Party Websites, Applications and Ads. vipHomeLink Properties may contain links to third party websites, applications and advertisements for third parties (collectively, “Third-Party Services”). When you click on a link to a Third-Party Service, we will not warn you that you have left vipHomeLink Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Services are not under the control of vipHomeLink. vipHomeLink is not responsible for any Third-Party Services. vipHomeLink provides these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Service, or any product or service provided in connection therewith. You use all links in Third-Party Services at your own risk. When you leave our Website or the Application, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
16.2 App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Agreement is between you and vipHomeLink and not with the App Store. vipHomeLink, not the App Store, is solely responsible for vipHomeLink Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with vipHomeLink Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any vipHomeLink Property, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
16.3 Accessing and Downloading the Application from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) the Agreement is concluded between you and vipHomeLink only, and not Apple, and (ii) vipHomeLink, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between vipHomeLink and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of vipHomeLink.
(d) You and vipHomeLink acknowledge that, as between vipHomeLink and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and vipHomeLink acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between vipHomeLink and Apple, vipHomeLink, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
(f) You and vipHomeLink acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
17. GENERAL PROVISIONS.
17.1 Electronic Communications. The communications between you and vipHomeLink may take place via electronic means, whether you visit vipHomeLink Properties or send vipHomeLink e-mails, or whether vipHomeLink posts notices on vipHomeLink Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from vipHomeLink in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that vipHomeLink provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
17.2 Release. You hereby release vipHomeLink Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of vipHomeLink Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of vipHomeLink Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a vipHomeLink Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website [or any Services provided hereunder].
17.3 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without vipHomeLink’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
17.4 Force Majeure. vipHomeLink shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, pandemics, epidemics, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
17.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to vipHomeLink Properties, please contact us at: info@vipHomeLink.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
17.6 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and vipHomeLink agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in New York County, New York.
17.7 Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
17.8 Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.
17.9 Notice. Where vipHomeLink requires that you provide an e-mail address, you are responsible for providing vipHomeLink with your most current e-mail address. In the event that the last e-mail address you provided to vipHomeLink is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, vipHomeLink’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to vipHomeLink at the following address: info@vipHomeLink.com. Such notice shall be deemed given when received by vipHomeLink by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
17.10 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
17.11 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
17.12 Export Control. You may not use, export, import, or transfer vipHomeLink Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained vipHomeLink Properties, and any other applicable laws. In particular, but without limitation, vipHomeLink Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using vipHomeLink Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use vipHomeLink Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by vipHomeLink are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer vipHomeLink products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
17.13 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
17.14 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.