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Home123.com Terms of Service

IMPORTANT! THESE TERMS OF SERVICE GOVERN YOUR USE OF THIS SITE AND ITS RELATED PRODUCTS, SOFTWARE, SERVICES, CONTENT, WEB SITES AND/OR MOBILE APPLICATIONS, WHICH ARE PROVIDED BY HOME123.  BY ACCESSING THIS SITE, YOU ARE INDICATING YOUR ACKNOWLEDGMENT AND ACCEPTANCE OF THESE TERMS OF SERVICE.  THESE TERMS OF SERVICE ARE SUBJECT TO CHANGE BY HOME123 AT ANY TIME IN ITS SOLE DISCRETION.  YOUR USE OF THIS SITE AFTER SUCH CHANGES ARE IMPLEMENTED CONSTITUTES YOUR ACKNOWLEDGMENT AND ACCEPTANCE OF THE CHANGES.  PLEASE CONSULT THESE TERMS OF SERVICE REGULARLY. 

 

**Home123 is not affiliated with New Century Financial Corporation or the former Home123 Corporation located in Irvine CA.  All rights to the Home123 trademarks and ancillary brands were purchased from New Century Financial Corporation in March of 2008. 

 

Welcome to Home123!  Home123 is a registered trade name of Brandivation LLC (referred to herein as “Home123”).  Your use of Home123’s products, software, services, Content (defined below), User Generated Content (defined below), web sites (the “Sites”) or mobile applications (collectively the “Services”) is subject to these Terms of Service (the “Terms”).  “Content” means any written text, data files, photographs, images, video or audio files, links or any other information provided by Home123 or its third party licensors, sponsors, or affiliates on any of our Sites or in our mobile applications.  These Terms apply to all of the Services, and are subject to change from time to time in the sole and absolute discretion of Home123.  These Terms constitute a legally binding agreement between you and Home123 regarding your use of the Services.  Home123 may use affiliated or subsidiary entities to provide some or all of the Services to you.  In such event you agree that such affiliated or subsidiary entities may provide such Services and that your use of the Services continues to be bound by the Terms.  You should print or save a local copy of these Terms for your records. 

  1. Acceptance and Use.
    1. You may not use any of the Services unless you accept the Terms.  Your use of any of the Services constitutes your acceptance of the Terms.
    2. You may not use any of the Services if any applicable federal, state, local or foreign law, rule, regulation, statute, code or ordinance (collectively “Laws”) bars you from receiving or using the Services for any reason.
    3. You agree that you will use the Services only as permitted by the Terms and all applicable Laws.
    4. You agree that you will not upload any User Generated Content (“UGC”) which violates any Laws, or which contains any Malware (defined below), scripts, SQL queries, programming code or any defamatory, libelous, illegal, violent, harmful, obscene or pornographic material.  UGC includes anything you upload to any of our Sites or send to us, including, without limitation, data files, written text, photographs, images, video, or audio files or any other information, for posting to our Sites or otherwise, regardless of whether you or someone else created the work. 
    5. You agree that you will not:
      1. access or attempt to access the Services or any data therein by any means other than through the visible user interface provided by Home123,
      2. engage in any activity which disrupts, or is intended to disrupt, the normal function and operation of the Services, the network that the Services operate on or through, or the servers on which the Services or any portion thereof are stored or running,
      3. Attempt to penetrate, gain control over, seek or exploit any known or unknown flaw or vulnerability in any portion of the Services, the underlying software or Sites, or the servers on which any portion of the Services are running or in which any portion of the data of the Services or any Content or UGC is stored,
      4. Copy, reproduce, duplicate, sell, trade or resell the Services or any Content or UGC other than your UGC for any purpose.
      5. You agree that your data may be used in accordance with Home123's Privacy Statement.  This Privacy Statement explains how we treat your personal information and protect your privacy when you use the Services.  By using the Sites or any of the Services, you agree to the use of your data in accordance with our Privacy Statement. 
      6. From time to time, Home123 may make changes to these Terms.  In such event, Home123 will make the new Terms available on or through the Services.  Your use of any of the Services after the date on which Home123 changes the Terms constitutes your acceptance of the new Terms.
  1. Services
    1. From time to time and in its sole and absolute discretion, Home123 may, without prior notice to you,
      1.  cease to provide all or any portion of the Services,
      2.  change the Services,
      3.  add or remove features to the Services, or
      4.  otherwise change the manner in which the Services are provided or available for use.
    2. Home123 may, from time to time and in its sole and absolute discretion, with or without notice, modify, limit access to, disable or delete your account, prevent access to the Services or otherwise modify in any manner your account or your access to the Services.  You acknowledge and agree that if Home123 disables access to your account, you may be prevented from accessing the Services, your account details, or any files or other UGC which is contained in your account.
    3. Home123 may, from time to time and in its sole and absolute discretion, set a limit on files, data, information or other content stored, sent or received in, on or through the Services.
    4. You agree that, when required by Home123, you will provide information about yourself, such as your name or contact information, and that any information you provide to Home123 shall be accurate and complete and you will promptly notify us of any changes to that information.  If Home123 believes the information you provide is not correct, current, or complete, Home123 has the right to refuse you access to the Sites or any of the Services, and to terminate or suspend your access at any time.
    5. You acknowledge and agree that Brandivation shall have no liability for any or all UGC on, in or uploaded to the Services or which you may access or have access to through the Services.  Content, including but not limited to advertisements and sponsored Content, may be owned by Home123 or third parties and may be protected by various intellectual property rights.  You may not modify, sell, rent, lease, distribute, give or create derivative works from the Content, UGC or any portion thereof, except for your UGC.  Home123 does not in any way represent or warrant that any UGC uploaded by you will be compatible with or displayed on or in any or all of the Services.
    6. You acknowledge and agree that none of Home123, its licensors, affiliates or subsidiaries shall have any liability whatsoever in the event that any portion or all of the Content and/or UGC is lost, corrupted or rendered inaccessible for any reason, including but not limited to error on your part, error on the part of Home123, error on the part of a third party, equipment failure, network outage, Malware, or any intrusion, hack or attack by any person.
    7. Home123 shall have the right, but not the obligation, to screen, review, approve, reject, filter, modify, refuse or remove any UGC and/or Content from any portion or all of the Services at any time.
    8. Home123 may store all or any portion of the Content and/or UCG on servers owned, leased, operated or used by Home123, including virtual servers and/or servers maintained by third parties.  Home123 may backup any or all of the Content and/or UCG to media including but not limited to hard drives, optical disks and magnetic tape, or to online and/or offsite backup service(s) owned by Home123 and/or third parties.
    9. You acknowledge and agree that you shall be solely responsible and liable for, and Home123 shall have no responsibility or liability for, all UGC you create, upload, send, transmit or display to or during your use of the Services.
    10. From time to time, Home123 may update the Services or the software that provides the Services, and may cause updates to be automatically downloaded to you.  You agree to allow, receive and install any such updates.  Portions or all of the Services may be unavailable during such update(s) and your failure to download and install the updates may cause the Services to fail and/or prevent you from accessing some or all of the Services.
    11. As described in our Privacy Statement, portions or all of the Services may place cookies (small text files) on your computer during your use of the Services.  You may delete these cookies or refuse to accept them, but in that case certain portions or all of the Services may not function properly or may not function at all.
    12. Home123 may place advertising on some or all of the Services, and such advertising may change from time to time without any prior notice to you.  Such advertising may be targeted to the information being provided to you and/or which you have provided to Home123.  You agree that your use of the Services may include such advertising, unless otherwise provided by the terms of any subsequent written agreement between you and Home123.

 

  1. Termination
    1. You may cease to use the Services at any time.
    2. You may terminate your legal agreement with Home123 by written notice (and not by email) delivered to Home123.
    3. Home123 may terminate its legal agreement with you at any time if:
      1. You breach any of the provisions of the Terms, or act in such a manner as to show that you do not intend to or are unable to comply with the provisions of the Terms,
      2. It is required to do so by law,
      3. Your relationship with Home123 is through or with a partner of Home123, and that partner terminates its relationship with Home123, or
      4. Home123 ceases to provide the Services for any reason or no reason, in its sole and absolute discretion.
    4. If you or Home123 terminates the legal agreement between you and it, then you may no longer use any and all of the Services.
    5. Home123 shall have no obligation to remove or otherwise delete any UGC uploaded by you upon termination, nor shall it have any obligation to send copies of any Content or UGC to you.
    6. The following Sections of the Terms shall survive termination indefinitely: 1, 4, 5, 7, 8, 9, and 10.
  1. Rights
    1. You acknowledge and agree that Home123, its subsidiaries and/or affiliated entities and/or its licensors own all of the legal right, title and interest in and to the Services, including but not limited to all intellectual property rights pertaining thereto, whether registered or not and wherever in the world such rights may exist.  The Services may contain confidential information, and if so, you agree not to disclose any such confidential information without the prior written permission of Home123.
    2. Neither these Terms nor your use of the Services gives you any right to use any of Home123's trade names, trademarks, service marks, logos, emblems, domain names or any other mark or distinctive feature of Home123, and you agree not to so use any of such items without obtaining, in each case, Home123's prior written permission.
    3. You agree not to remove, alter, obscure or replace any rights notices on or in the Services, including copyright or trademark notices.
    4. Any UGC you create, upload, send or transmit to or during your use of the Services shall remain the property of its owner, whether that owner is you or a third party.  Home123 shall have no obligation whatsoever to protect or defend any rights or ownership interests in any UGC, nor shall Home123 have any obligation whatsoever to verify the right of any party to create, upload, send or transmit any UGC.
    5. You may not directly or indirectly decompile, reverse engineer, copy, download, save, modify or create derivative works from the Services or any part thereof or assist or allow any other person(s) to do so.

 

  1. Limited License
    1. When you submit, upload, post, transmit, send or otherwise put or modify UGC on, to or in the Services, and in consideration for Home123 allowing you to do so, you grant Home123 a perpetual, irrevocable, worldwide, royalty free and non-exclusive license to use, reproduce, distribute, modify, translate, publish, publicly perform and publicly display such UGC, to create derivative works therefrom and to own all of the rights to any such derivative works created therefrom.  You agree that this license includes the right of Home123 to make such UGC available to its subsidiaries and/or affiliated entities or any other person or entity with which Home123 has a relationship in the provision of the Services, for such person’s or entity’s use in the provision of the Services.
    2. You acknowledge, agree and authorize Home123 to transmit or distribute the UGC over public or private networks or to distribute it in any other form or on any media whatsoever, and/or to modify, change, reformat, adapt, convert or translate your UGC as it deems necessary or desirable.  You agree that the license granted above shall permit and allow any and all of the foregoing.
    3. You represent and warrant that you have all of the rights, power and authority required to grant the license stated above, and you agree to indemnify and hold Home123 harmless from any breach of this representation and warranty and for any liabilities, damages, costs, or expenses (including attorneys’ fees and court costs) caused thereby or therefrom.
  1. Security
    1. You acknowledge and agree that you are solely responsible for maintaining the confidentiality of any passwords, user names or other access credentials associated with any account(s) you create, have or use for accessing or using the Services, and you acknowledge and agree that the use of the Services by you or others accessing your account(s) are your sole responsibility and liability.
    2. If you know or believe that your account is being used without your permission, you agree to inform Home123 immediately and in writing to the address stated hereinbelow.

 

  1. Warranties and Limitation of Liability
    1. You acknowledge and agree that you are solely responsible and liable for, and agree to indemnify and hold Home123 harmless from, any breach of your obligations under the Terms and for any liabilities, damages, costs or expenses (including attorneys’ fees and court costs) caused thereby or therefrom.
    2. YOU AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED TO YOU "AS IS" AND "AS AVAILABLE."
    3. Except to the extent limited by applicable law,
      1. HOME123 AND ITS LICENSORS, LICENSEES, SUBSIDIARIES AND AFFILIATES DO NOT REPRESENT OR WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT YOU WILL HAVE TIMELY, SECURE OR UNINTERRUPTED USE OF THE SERVICES, THAT ANY INFORMATION YOU OBTAIN FROM THE SERVICES IS ACCURATE, COMPLETE, CURRENT OR FREE FROM ERRORS, OR THAT IT OR THEY WILL CORRECT OR REMEDY ANY KNOWN OR UNKNOWN DEFECTS, DEFICIENCIES, BUGS, ERRORS OR LIMITATIONS IN THE SERVICES AND/OR IN THE CONTENT AND/OR UGC AT ANY TIME.
      2. YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR ANY MATERIAL OR CONTENT THAT YOU ACCESS, VIEW AND/OR DOWNLOAD FROM OR THROUGH THE SERVICES, AND NONE OF HOME123, ITS LICENSORS, LICENSEES, SUBSIDIARIES AND AFFILIATES SHALL HAVE ANY LIABILITY FOR ANY DAMAGE TO YOUR COMPUTER, NETWORK, DATA, SOFTWARE OR ANY OTHER PROPERTY OF YOURS RESULTING FROM ACCESSING, VIEWING OR DOWNLOADING ANY MATERIAL OR CONTENT OR FROM ANY COMPUTER VIRUSES, MALWARE, SPYWARE, GRAYWARE, ADWARE, ROOTKITS, TROJAN HORSES, WORMS, CANCELBOTS, BOTNETS OR ANY OTHER SIMILAR SOFTWARE OR CODE (COLLECTIVE “MALWARE”) WHICH MAY BE OR BECOME, INTENTIONALLY OR UNINTENTIONALLY, KNOWN OR UNKNOWN, IN, ON OR PART OF ANY HARDWARE, FIRMWARE, SOFTWARE OR OTHER PRODUCTS OR ANY PORTION OR ALL OF THE SERVICES.
      3. NO STATEMENT, WHETHER ORAL OR WRITTEN, BY ANY EMPLOYEE, OFFICER, MANAGER, MEMBER, AGENT OR REPRESENTATIVE OF HOME123, NOR ANY STATEMENT ON ANY OF THE SERVICES, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
      4. HOME123 AND ITS LICENSORS, LICENSEES, SUBSIDIARIES AND AFFILIATES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
    4. NONE OF HOME123, ITS LICENSORS, LICENSEES, SUBSIDIARIES OR AFFILIATES SHALL HAVE ANY LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, REGARDLESS OF HOW CAUSED OR UNDER ANY THEORY OF LIABILITY, EVEN IF THEY ARE ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF BUSINESS, BUSINESS INTERRUPTION, LOSS OF GOODWILL OR REPUTATION, LOSS OF DATA, THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING OR SPONSOR, OR ANY OTHER TANGIBLE OR INTANGIBLE LOSS OR DAMAGE, FROM THE SERVICES, THE  UNAVAILABILITY OF THE SERVICES, THE ACCURACY OF ANY INFORMATION, CONTENT OR UGC, THE LOSS OR CORRUPTION OF ANY INFORMATION, CONTENT OR UGC, THE FAILURE OF YOUR PASSWORD OR ACCOUNT TO REMAIN SECURE OR CONFIDENTIAL, OR IN ANY OTHER MANNER OR FROM ANY OTHER CAUSE WHATSOEVER.
  1. Third Party Content and Links
    1. The Services may include third party content, including advertising or hyperlinks to other web sites or content (collectively "Third Party Content").  Home123 may or may not have any control over Third Party Content.
    2. You acknowledge and agree that Home123 shall have absolutely no liability for any Third Party Content, regardless of any reliance by you thereon, and you also acknowledge and agree that Home123 does not endorse any Third Party Content.

 

  1. Digital Millennium Copyright Act
    1. Home123 takes intellectual property rights very seriously and demands the same from you.  If you are a copyright owner and have a good faith belief that any material posted on or through the Services infringes on your copyright(s), then pursuant to the Digital Millennium Copyright Act (“DMCA”), all claims of copyright infringement for material that is believed to be residing on Home123's network or servers should be promptly sent in the form of written (and not by email) notice to the Designated Agent for DMCA Notices as follows: Brandivation LLC, Attn: DMCA Agent, 2033 Milwaukee Avenue, Suite 237, Riverwoods, IL 60015, or via facsimile to 847-876-5634, and follow the instructions in these Terms.
    2. How to Report A Claim of Infringement:
      1. If you believe any person has posted material that infringes your copyright rights, you ("Complaining Party") must provide a notification of a claimed copyright infringement to Home123 as provided above which must include the following information:
        1. A physical or electronic signature of the copyright owner, or a person authorized to act on behalf of the owner, of an exclusive copyright that has allegedly been infringed.
        2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works on that site.
        3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Home123 to locate the material.
        4. Information reasonably sufficient to permit Home123 to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
        5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
        6. A statement that the information in the notification is accurate, and under penalty of perjury, that you are the owner, or are authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed.
      2. Failure to submit copyright infringement notification as described above will result in no legal notice or action on behalf of Home123.
    3. How to Make a Counter Notification:
      1. If you are a Home123 user and you feel that material you have placed online that has been removed following an infringement complaint is in fact not an infringement, you may file a counter notification. The counter notification must be written and addressed to Home123 as provided above and must provide the following information:
        1. A physical or electronic signature of the subscriber.
        2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
        3. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
        4. Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which you are located, or if your address is outside of the United States, Chicago, Illinois, and that you will accept service of process from the Complaining Party or an agent of such person.
      2. Home123 is not required to respond to counter notifications that do not meet the requirements above.
      3. Home123 will present your counter notification to the Complaining Party. Once your counter notification has been delivered, Home123 will restore the removed material in no less than 10 business days, nor more than 14 business days, unless the Complaining Party notifies Home123 that it has filed an action seeking a court order to restrain you from engaging in infringing activity related to the material on Home123's system or network.
    4. Misrepresentations:
      1. Any person who knowingly materially misrepresents under this Section:
        1. that material or activity is infringing, or
        2. that material or activity was removed or disabled by mistake or misidentification
      2. shall be liable for any damages, including costs and attorney's fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by Home123, who is injured by such misrepresentation, as the result of Home123 relying upon such misrepresentations in removing or disabling access to such material or in replacing or ceasing to disable access to it.
  1. Miscellaneous
    1. Portions of the Services may include third party software, services or components ("Third Party Components").  Your use of such Third Party Components may be subject to separate terms between you and the provider of such Third Party Components.
    2. These Terms constitute the entire agreement between you and Home123, and supersede any and all prior understandings and agreements, whether written or oral, that may relate to its subject matter.  You acknowledge and agree that Home123's subsidiary and affiliated entities and licensors are third party beneficiaries of these Terms and shall be entitled to enforce these Terms directly and to rely on the provisions of these Terms, but otherwise these Terms are not intended to and shall not be construed to confer upon any person or entity other than a party hereto any rights, benefits or remedies hereunder.
    3. Home123 may provide copies of the Terms in languages other than English.  If so, then you agree that such translation(s) is/are provided for your convenience only and that the English language version of the Terms will govern your relationship with Home123.  If there are any discrepancies between the Terms in English and the Terms in any other language, the Terms in English shall control. 
    4. You acknowledge and agree that Home123 may provide you with notices, including but not limited to notices regarding changes to the Terms, by email, U.S. Mail, postings on any portion or all of the Services or in any other manner as it may determine in its sole and absolute discretion.
    5. These Terms are non-exclusive.  These Terms may not be assigned by you, but may be assigned by Home123.
    6. If any provision in these Terms shall be held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof will not in any way be affected or impaired thereby.  If any provision of these Terms is deemed unenforceable, but such provision may be made enforceable by modification, then the provision shall be modified and enforceable to the fullest extent permissible by law.  The parties authorize any court of competent jurisdiction to modify the provisions contained in these Terms to the extent necessary to make each of them enforceable.
    7. The failure of Home123 to enforce any provision of these Terms shall not be deemed a waiver of such provision or of the right of Home123 thereafter to enforce such provision or any other provision.
    8. Home123 shall not be liable for any outage of or loss of access to any portion or all of the Services, including but not limited to such caused by acts of God, fire or other disaster, telecommunications failure, power failure, Internet failure, war, civil disturbances, governmental acts or acts of terrorism.
    9. These Terms shall be governed by the laws of the State of Illinois and the United States, without consideration of any other state’s or government’s choice of law provisions.  Any action to enforce these Terms, other than an action under the DMCA which is required to be filed in another federal jurisdiction, shall be brought in a state or federal court located in Cook County, Illinois.  You agree that in the event of a breach of these Terms, damages cannot adequately and sufficiently compensate Home123 and that injunctive relief is essential for the protection of Home123.  You therefore agree that in the event of a breach of these Terms by you, Home123 shall be entitled to obtain (and you hereby consent to) injunctive relief against you, without bond but upon due notice, in addition to such further or other relief as may be available at law or in equity.  You expressly agree to waive any and all claims for damages by reason of the issuance of any such injunction, and in the event of the wrongful issuance of such injunction your sole remedy shall be the dissolution of such injunction, if such is warranted upon hearing duly had.  Obtaining any such injunction by Home123 shall not be considered an election of remedies or a waiver of any right Home123 may have at law or in equity.
    10. The headings in these Terms are inserted for convenience of reference only, are not intended to be a part of these Terms and shall have no effect on the meaning or interpretation of these Terms.
    11. If either party files suit for a breach of any of the provisions of these Terms, the prevailing party shall be entitled to have its costs and expenses, including reasonable attorneys’ fees, paid by the non-prevailing party.

 

Last updated:  November 11, 2011