The following terms and conditions (the "Standard Terms"), together with the Service Agreement constitute a binding agreement for the provision of Services (as defined below below) by UTour to Client and govern the relationship between UTour and Client (the "Agreement"). Capitalized terms have the definition set forth in the Service Agreement if not defined in these Standard Terms.
The UTour Platform is a web-based application that allows Client to make available and permits Client's Customers to schedule self-guided, unsupervised, home tours of Client Homes via a web-based portal, which Client may access via secure login and control Platform features, Client Content, and availability of Client Homes for self-guided tours (the "Platform"). As used herein, "Client Homes" means and refers to Client’s inventory or model homes, which are listed for sale to the general public by Client in accordance with all applicable laws, regulations and ordinances. As used herein, "Client Customers" means and refers to any individual, including without limitation any potential home purchasers, that utilize the Platform to schedule a self-tour of a Client's Home. UTour, either itself or in conjunction with third-party partners of its choosing shall develop, operate, and maintain the Platform in an application service provider model and shall provide the services described in this Section 1.1 to support and maintain the Platform, including any products purchased by Client under this Agreement (collectively, the "Services").
Client acknowledges and agrees that UTour may, at any time at UTour's sole discretion, add, remove, modify, change, or adjust any UTour product or product feature (including without limitation with respect to the Services and the Platform).
Client understands that the Federal Fair Housing Act and state and local fair housing laws prohibit discrimination in the sale, rental, leasing and financing of housing, as well as discriminatory advertising, on the basis of race, sex, color, religion, national origin, mental or physical disability, or familial status. Certain state and local jurisdictions may also have specific applicable regulations prohibiting discrimination based on marital status, sexual orientation and source of income or other rules or regulations related to advertising homes for sale. These laws not only prohibit advertisements which clearly restrict access to housing based on the protected categories, but also prohibit advertisements which indicate a preference for or against a person based on a protected category or otherwise do not comply. It is the intent and goal of UTour to have each person with whom UTour does business comply with all laws and regulations, including but not limited to the fair housing laws. Accordingly, UTour may, in its sole discretion, reject or edit any Client Content that it perceives to contain language contrary to the law and UTour further reserves the right to refuse to include in the Services any Client Content that UTour deems offensive, in violation of local, state, or federal laws, or otherwise inappropriate, but undertakes no obligation to do so.
Client shall access the Platform by logging into an account solely for Client’s use using secure credentials including a unique user name and password (the “Client account”). Client acknowledges and agrees that use of the Platform or Services is subject to the UTour Privacy & Terms (https://www.utourhomes.com/privacy-terms) (the "Terms of Use"), as updated from time to time, and that Client and Client's users (each, a "User") shall agree to and be bound by the Terms of Use. As used herein, "User" or "Users" means employees or agents of Client a who are authorized to use the Platform by Client or its Affiliates. Each User shall be authorized by Client to access Client's account and use, modify, make purchases, change settings, or execute any other functions or features available to Client in the Platform. Client acknowledges and agrees that Client shall not allow any person that is not a User to access or use Client's account or login credentials.
Subject to payment of fees and other terms and conditions of the Agreement, UTour hereby grants Client a limited, non-exclusive, right to use the Platform during the Term of this Agreement solely for the purposes contemplated by this Agreement. The permission given herein to use the Platform shall be subject to all terms of this Agreement and to any policies and procedures for the use of the Platform now or hereafter established by UTour, including without limitation and Client’s onboarding obligations set forth in Section 3 and Client’s representations and warranties in Section 5 herein. Further, the permission granted herein for the use of the Platform constitutes a revocable license, which shall automatically terminate upon the expiration or earlier termination of this Agreement.
Client agrees and acknowledges that, subject only to the limited license granted to Client under Section 2.1 herein, UTour is the sole owner and operator of the Platform and shall own and retain all ownership, rights, titles, and interests in and to: (i) the Platform, including without limitation all improvements, enhancements, or modifications thereto; (ii) any software, code, applications, inventions, or other technology developed in connection with the Platform, Onboarding (as defined herein) or Technical Support (as defined herein); and (iii) all intellectual property rights related to any of the foregoing.
The Client agrees to successfully complete the onboarding procedure for the Client to successfully utilize the Platform (the "Onboarding"). The Client further agrees to the use of the Platform at its sole risk and expense, and, without limitation to the foregoing, UTour will not assume any risk or responsibility of any loss, damage, liability, action, cause of action, claim or damage arising from in any way related to the Platform and/or the viewing of the Client’s Homes by Client Customers who gained access to such Client Homes with authorization from a properly functioning Platform. Client acknowledges and agrees that Client’s completion of Onboarding requires, without limitation, the following:
Client shall provide Client Content in a means and format compatible with the Platform that will permit UTour to load such Client Content onto the Platform. As used herein, "Client Content" means and refers to any community and home listing data, blueprints, schematics, floorplans, layouts, photos, videos, URLS, websites or landing pages, and similar documentation or information relevant to each of the Client Homes provided by Client to UTour pursuant to this Agreement.
Client shall complete and maintain visitor access terms and conditions, which shall be at least as protective of UTour's interests and rights as the Visitor Access Terms and Conditions, as updated from time to time, provided by UTour, attached hereto as Exhibit A (the "Visitor Terms"). Client acknowledges and agrees that each Client Customer shall agree to such Client Visitor Terms, that such Visitor Terms shall govern the relationship between Client and Client Customer, and that nothing in such Visitor Terms shall (i) alter, modify, adjust, or waive any of UTour's rights, obligations, warranties, or disclaimers set forth in this Agreement, or any other terms of this Agreement or (ii) impose obligations or liability on UTour related to or arising from Client Customers' use of the Platform or Services. Client further acknowledges and agrees that Client Customer's consent to such Visitor Terms is required for Client Customer to use the Platform.
Client shall provide and update a Privacy Policy, which shall govern Client’s use of Client Customer data and shall be compliant with all privacy laws applicable to Client Customers' use of the Platform. Client further acknowledges and agrees that Client Customer's consent to such Privacy Policy is required for Client Customer to use the Platform.
Set up a Hub or mutually agreed equivalent at each of the Client Homes available via the Platform. As used herein, "Hub" shall mean and refer to a cellular smart hub that provides connectivity to Client's digital locking technology and that is compatible with the Platform.
UTour agrees to work with Client's vendors as directed to ensure interoperability between the Platform and third-party provided hardware and materials in connection with providing Services under this Agreement.
Subject to the terms of this Agreement, the Platform will be available for use by customers and potential customers of the Client on the basis of a 24-hour day, 7 days a week. By updating information in the Platform, the Client may specify certain days and hours in which the Client’s Homes will be available to Client Customers.
For any problems that may arise, specialized support related to the operation of the Platform will be provided (the "Technical Support" or "Support"). Telephone support for the Platform will be available 8:00 a.m. to 6:00 p.m. (Mountain Time) Monday through Friday, excluding federal holidays. Calls received outside of office hours will be forwarded to a mobile phone, and UTour will answer and/or take action on a call as soon as reasonably possible; however, no response time during off-hour times is promised by UTour. Email support by UTour is monitored 8:00 a.m. to 6:00 p.m. (Mountain Time) Monday through Friday, excluding federal holidays. Emails received from the Client outside of regular office hours will be collected, however, no action is promised by UTour until the next business day.
When Client raises a Support issue with UTour, UTour will respond in a timely fashion. UTour is deemed to have responded when it has replied to Client's initial request to either provide a solution or request further information. This may be in the form of an email, text, or telephone call. Response times are measured from the moment Client submits a support request to UTour. Coverage parameters and platform support levels specific to the service(s) covered in this Agreement are as follows:
Telephone Support: 8:00 A.M. to 6:00 P.M. (MST) Monday through Friday—excluding Federal Holidays. Calls received out of office hours will be forwarded to an answer phone service.
Email Support: Monitored 8:00 A.M. to 6:00 P.M. (MST) Monday through Friday—excluding Federal Holidays. Emails received outside of office hours will be collected, however no action can be guaranteed until the next business day.
Support Level 0: This level is the responsibility of the Client via self-help content and user-retrieved information provided and accessible via the Platform. Users retrieve support information from the scheduling website, including FAQs, detailed product and technical information and search functions. The Client will also retrieve support information via the Platform’s self-help content, including FAQs, detailed product and technical information, “how-to” instructional videos, manuals, and search functions.
Support Level 1: This level is the responsibility of the Client to provide support for basic customer issues such as solving usage problems related to scheduling and access and fulfilling service desk requests that need UTour involvement. This support level will require access to lower-level technical personnel, trained to solve known basic problems and to fulfill service requests by following scripts, detailed product and technical information and functionality provided by the Platform.
Support Level 2: This level is the responsibility of UTour to provide in-depth technical support by experienced and knowledgeable technicians to assess issues and provide solutions for Client's problems that cannot be handled by Level 1 capabilities. UTour will be accessible to the Client to receive support requests and will respond within a reasonable timeframe and take steps to resolve issues in an appropriate, timely manner.
UTour will always endeavor to resolve problems quickly but UTour is unable to provide guaranteed resolution times because the nature and causes of problems can vary. In all cases, UTour will attempt to resolve problems as quickly as possible and will provide frequent progress reports to the Client. Notwithstanding the foregoing, UTour is not responsible for resolution of problems that arise from or related to any of the following: (i) the problem has been caused by using software or service(s) in a way that is not recommended; (ii) Client has made unauthorized changes to the configuration or set up of affected equipment, software or services; (iii) Client has prevented UTour from performing required maintenance and update tasks; and/or (iv) The issue has been caused by unsupported mobile devices, equipment, software or other services.
Interruptions or failures due to third party hardware or software outside of UTour's control (e.g. voice assistant hardware failure or service interruption, lost internet connection at Client’s location.) are not the responsibility of UTour. Also, circumstances that are beyond the reasonable control of UTour (e.g. military action, natural disasters, civil unrest, etc.) are not UTour’s responsibility. Further, service levels may be interrupted if the Client is in breach of any material terms of any agreement with UTour for any reason (e.g. late payment of fees, improper use, violation of terms, etc.).
In order to enable the Client to do business effectively, UTour will ensure that certain items will be available for a certain percentage of time. Uptime is the percentage of total possible minutes the Platform was available over a specified interval. UTour's commitment is to maintain at least 99.9% uptime rate. Uptime is measured over each calendar quarter. It is calculated to the nearest minute, based on the number of minutes in the given quarter, i.e., ((total minutes in quarter - Downtime) / total minutes in quarter) > 99.9%. Uptime measurements exclude periods of routine maintenance.
During the Term of this Agreement, the Client's responsibilities shall include: (i) The Client will use the Platform provided by UTour as intended; (ii) The Client will be responsible for — and will obtain — all consents required under any law or regulation in any jurisdiction relating to the use of the Platform, including but not limited to the California Consumer Privacy Act ("CCPA") and/or the General Data Protection Regulation ("GDPR") or any other applicable privacy or data security law or regulation, as applicable; (iii) The Client will respond to Support Level 1 requests within a reasonable timeframe and take steps to resolve issues in an appropriate, timely manner; (iv) The Client will engage UTour to assess issues and provide solutions for problems that cannot be handled by Level 1 capabilities; (v) The Client will notify UTour of issues or problems in a timely manner and maintain good communication with UTour at all times; (vi) the Client will maintain and update all materials required from Client in order comply with Client's obligations set forth in this Agreement, including without limitation legally compliant an updated Client Visitor Terms and Privacy Policy; and (vii) Client Content shall not infringe on the intellectual property rights of any third party.
Client shall not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, knowhow, or algorithms relevant to the Platform, product, upgrade, software, documentation, or data; modify, translate, or create derivative works based on the Platform (except as expressly permitted by UTour); use the Platform for time-sharing or service bureau purposes or otherwise for the benefit of a third party; distribute, sublicense, rent, lease, lend, or offer hosting services of the Platform to a third party; remove any proprietary notices or labels; employ non-UTour software or technology in any way that would subject UTour’s intellectual property or technology to obligations beyond those included in this Agreement; work around any technical limitations in the Platform; or take any other action (with respect to the Platform or the License) not expressly permitted under this Agreement.
Client represents, covenants, and warrants that Client will use the Platform only in compliance with this Agreement, UTour's standard policies then in effect, and all applicable laws and regulations. Client understands that UTour provides a Platform that enables Client to engage with Client Customers by SMS/MMS texting, messaging, and/or webchat all supported by an A.I. chatbot. Client is solely responsible for content, consent, and for complying with all local, state, federal, and international laws and regulations including, without limitation, the Telephone Consumer Protection Act (TCPA), CAN-SPAM Act, Federal Trade Commission (FTC) Telemarketing Sales Rule (TSR), and General Data Protection Regulations (GDPR), as relevant and/or applicable. Client is also required to use the Software Platform and/or Services in full compliance with the following: (i) Do-Not-Call (DNC) list prohibitions; (ii) telemarketer licensing and bonding requirements; (iii) consumer cancellation rights; (iv) mandatory disclosures; (v) wireless calling restrictions; (vi) restrictions on the use of automatic telephone dialing systems and pre-recorded messages (i.e. robocalling or voice broadcasting); (vii) internal opt-out rules; (viii) intellectual property rights and restrictions; (ix) the California Consumer Privacy Act (CCPA); and (x) other product and industry specific rules and disclosures, as applicable. Although UTour has no obligation to monitor Client’s use of the Platform, UTour may do so and may prohibit any use of the Platform that is alleged to be or that UTour believes may be unlawful. Client hereby agrees to indemnify, defend, and hold harmless UTour and its SMS messaging partner AtlasRTX, LLC against any damages, losses, liabilities, settlements, and expenses (including, without limitation, costs and attorneys' fees) in connection with any claim, investigation, or action that arises from an alleged violation of the foregoing or otherwise from Client's use of the Platform or use of the Platform by Client's agents, employees, managers, officers, owners, affiliates, or successors.
Client represents and warrants that it has all requisite licenses, permits and authorities to construct, market and sell new homes in the jurisdictions in which the Client's inventory homes are located.
Client and Client's agents, employees, contractors, affiliates, managers, owners, successors, and associated third parties (the "Client Parties") shall not attempt to create, build, manufacture, or otherwise produce any form of technology, service, product, or offering that competes directly or indirectly with UTour's Platform (the "Competing Technology"). If any of the Client Parties creates, builds, manufactures, or otherwise produces Competing Technology, Client shall or shall cause any and all profits or monies resulting from or arising out of such Competing Technology to be transferred to UTour without deduction from any amount due under this Agreement.
Client is responsible for User activity occurring under Client's UTour Platform account and shall ensure that it and its Users abide by all laws, treaties, and regulations applicable to Client’s use of the Platform and Services, and the Terms of Use, as updated from time to time. Client shall: (i) notify UTour promptly of any unauthorized use of any password or account or any other breach of security; (ii) notify UTour promptly and use reasonable efforts to promptly stop any unauthorized use, copying, or distribution of the Platform or Services that is known or suspected by Client or its Users; (iii) not impersonate another UTour user or provide false identity information to gain access to or use the Platform or Services; and (iv) restrict each User account to only one authorized User at a time.
During the Pilot Period, Client will be provided access to the Platform for a limited number of inventory homes for a limited pilot/evaluation period. Notwithstanding anything to the contrary, in connection with such pilot/evaluation use, during the Pilot Period, the Services are provided “AS IS” and no warranty obligations will apply.
Except as set forth in Section 6.1 herein, during the Term of this Agreement, Utour warrants that UTour will: (i) provide and maintain the Platform used by the Client; (ii) make available the Platform through a supported web browser and proprietary applications; (iii) ensure relevant software and services are available to the Client where necessary; (iv) respond to support requests within a reasonable timeframe and take steps to escalate and resolve issues in an appropriate, timely manner; and (v) maintain good communication with the Client at all times. UTOUR MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN THIS SECTION 6.2. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
If Client or any of its employees, contractors, customers, or other third parties send or transmit any communications or materials suggesting or recommending changes to the Platform or Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), UTour is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.
In exchange for the use of the Platform, the Client shall pay to UTour it's standard fees as outlined in this Agreement, as amended from time to time. During the Initial Term of each Subscription, such Subscription shall be billed at UTour's current rates at the time of purchase, subject to Section 8.3. The onboarding fee, the hardware fee and the first monthly payment due and payable upon the execution of this Agreement, and subsequent monthly payments due and payable on or before the 1st day of each and every month during the term of this Agreement. The monthly fee shall be deemed fully earned upon payment, and no credit or refund of a monthly fee shall be made if Client removes any Subscription from the Platform (as permitted under Section 15.1 herein) prior to the end of any particular month for which a fee has been billed.
All prices shall be in US Dollars. Fees are exclusive of, and Client shall pay, all taxes, fees, duties, and other governmental charges arising from the payment of any fees or any amounts owed to UTour under this Agreement (excluding any taxes arising from UTour’s net income or any employment taxes). Except as otherwise set forth herein, fees for any Services requested by Client that are not set forth in the Order Form will be charged at UTour's standard rates unless otherwise mutually agreed to by the parties in writing. In the event that any monthly fee is not received by the 10th of the month, it shall be considered late and UTour reserves the right to withhold the use of the Platform until fees are fully brought current. If Client does not make any payments when due under this Agreement, UTour shall have all rights and remedies in the event of default hereunder by the Client. Client shall: (a) pay UTour interest on such unpaid amounts at a rate equal to the lesser of 1.5% per month and the maximum rate permitted by applicable law, from the due date until paid; and (b) reimburse UTour for reasonable costs incurred in the collection of fees or amounts owed under this Agreement or enforcement of the Agreement (including attorney’s fees and legal expenses).
Notwithstanding anything to the contrary set forth in this Agreement, after the Initial Term of each Subscription, UTour shall have the sole right to increase, change, modify, or alter at any time with no notice the fees paid by the Client under this Agreement including without limitation by changing UTour's the product pricing.
UTour has partnered with third-party advertising and listing providers (“Partners”) to offer advertising services on such Partners’ websites, social media accounts, and/or other advertising mediums, including their respective affiliates and authorized partners, licensees, advertising placement vendors, and the Facebook® platform (collectively, “Partner Advertising”) to advertise Client’s available home tours on the Platform for Client’s benefit pursuant to the terms and conditions of the Agreement. Client may activate Partner Advertising for specific Partners through the Platform by switching the toggle for each such Partner to the “on” position. This Section 9 only applies to Partner Advertising to the extent it is activated in the Platform in accordance with the terms of this Agreement.
For each activated Partner, Client authorizes UTour to manage Partner Advertising on Client’s behalf as described herein. Partner will retain the sole right to determine the placement and location of all or any portion of materials submitted by Client for Partner Advertising. UTour and/or Partner may further condition Client’s participation in Partner Advertising on Client’s agreement to subsequent additional terms and conditions of UTour and/or Partner, including without limitation the payment by Client to Partner for Partner Advertising fees as specified by any order form for Partner Advertising, whether billed by Partner directly or through UTour as mutually agreed by Partner and UTour. In the event the changes to these terms materially change Client’s rights or obligations related to Partner Advertising, without terminating this Agreement, Client may withdraw from Client’s management of the Partner Advertising as described herein. Client’s continued participation in Partner Advertising after written notice of such additional terms and conditions by UTour and/or Partner shall constitute Client’s acceptance of such terms and conditions.
In addition to any other rights authorized under this Agreement, and without limiting the foregoing, Client hereby grants UTour and its affiliates a royalty-free, perpetual, nonexclusive, fully sublicensable right and license to copy, modify, display, distribute, perform, create derivative works from, store, and otherwise use and exploit, all Client Data in any form through any media, software or technology of any kind to be used only on or in connection with UTour’s management of Partner Advertising during the term of the Agreement. If Client Data contains a video, then Client grants UTour and its affiliates the non-exclusive, royalty-free, worldwide, irrevocable, perpetual right to use the name, likeness, image, voice and/or appearance of any individual included in the video in connection with Partner Advertising, which Client represents Client has the proper rights to grant such rights to Partner and/or UTour.
IClient agrees to participate in Partner Advertising managed by UTour for a minimum of thirty (30) days from any activation of a Partner within the Platform. After such 30-day period, Client may request withdrawal from the Partner Advertising program as managed by UTour by toggling the applicable Partner to the “off” position in the Platform. Such changes will be effective thirty (30) days following any such de-activation. UTour may cease offering Client participation in the Partner Advertising or with respect to any particular Partner upon notice to Client (which may be delivered through the Platform) at any time and with or without terminating the Agreement.
The Client understands that the use of the Platform shall be at the Client's sole risk. The Client shall be solely responsible to properly prepare each of the Client Homes for unsupervised viewing by Client Customers. This will include, but not be limited to, a coded locking mechanism on the main door of each Client Homes. Client acknowledges and agrees that UTour is not responsible for maintaining the Client Homes. UTour recommends that Client install and maintain in each Client Homes: (i) Amazon Alexa interactive informational hardware and software to answer customer inquiries and to provide basic information regarding the inventory homes to the customers; (ii) appropriate signage regarding information about the inventory homes, contact information, including phone numbers and email addresses for additional information required by customers and potential customers; and (iii) emergency contact information.
Client acknowledges and agrees that UTour is not responsible for monitoring the Client Homes. The Client shall arrange for staff to monitor the contact information provided in each Client Homes. UTour recommends that Client monitor the Client Homes on a real-time basis, particularly with respect to security and/or emergency contacts and information. It is recommended that the Client consult its insurance carrier with respect to coverages recommended and required. The Client shall maintain each of the Client Homes in good order and repair at all times. This shall include, but shall not be limited to, the maintenance of all sidewalks and walkways free of hazards and obstacles, including, but not limited to, snow and ice.
The Client will at all times indemnify, defend and hold harmless UTour, and its agents, employees, members, managers and affiliates, from and against any and all actions, causes of action, losses and/or liabilities ("Claims") arising out of or related to the Client's use of the Platform, including, but not limited to, any death or personal injury to any party, unless caused by the gross negligence or intentional misconduct of UTour, or its agents or employees. This duty of indemnification shall include, but shall not be limited to, any reasonable attorney’s fees incurred by UTour in connection with any such incident.
UTour is not responsible for loss or damage of any kind from the Client Homes. Moreover, UTour will use commercially reasonable efforts to verify the identity and the availability of a major credit card or debit card on the part of a customer or potential customer that uses the Platform, but UTour cannot guarantee that the information derived from third-party contractors with respect to the same is accurate or correct. UTour is not responsible for the acts or actions of Client Customers, potential customers, or other parties that may gain access to the Client Homes, whether using the Platform or not. Without limitation to the foregoing, UTour is not responsible for acts of fraud, acts of negligence, intentional wrongdoing and/or criminal acts by Client Customers, potential customers or other third parties, of any kind or nature.
IN NO EVENT SHALL UTOUR BE LIABLE TO THE CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT UTOUR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL UTOUR'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO UTOUR PURSUANT TO THIS AGREEMENT IN THE SIX-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
During the Term of this Agreement, UTour shall carry and maintain in place at all times, with such insurance carriers and in such coverage amounts as are commercially reasonable under the circumstances (as selected by UTour), policies of professional liability insurance and general public liability insurance.
During the Term of this Agreement, the Client shall at all times carry and maintain, with such insurance carriers and in such coverage amounts as are commercially reasonable in all respects (as selected by the Client), general public liability insurance and fire and casualty insurance as to each of the Client Homes included within the Services described in this Agreement.
Upon the request of the other party, each party shall provide reasonable evidence of the existence of its insurance policies during the Term of this Agreement.
The Parties to this Agreement are UTour and the Client. Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose business, technical, or financial information relating to the Disclosing Party’s business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). Proprietary Information of UTour includes, but is not limited to, non-public information regarding features, functionality, and performance of the Platform. Proprietary Information of Client includes non-public data provided by Client to UTour to enable UTour to perform its obligations under this Agreement, including providing the Services. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof, or any information that the Receiving Party can document: (a) is or becomes generally available to the public, or (b) was in its possession or known by Receiving Party prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without the use of any Proprietary Information of the Disclosing Party, or (e) is required to be disclosed by law.
The Parties acknowledge that, as between Client and UTour, all Client Data that is subject to this Agreement is owned by Client. Client retains all right, title, and interest in Client Data, and any rights not expressly granted herein are reserved by the Client. The Client acts as a business and controller (as defined in the CCPA) of Client Data. UTour acts as a processor and service provider (as defined in the CCPA) of the Client Data it processes under this Agreement. UTour shall implement and maintain reasonable security procedures and practices appropriate to the nature of the information, to protect the information from unauthorized access, destruction, use, modification, or disclosure. "Client Data" shall mean: (i) information provided by Client to UTour under this Agreement (excluding any Feedback or information relating to the Platform) regarding Client Homes, inventory, locations, dates and times of availability, access information, and any Client Content; (ii) personal information however defined under applicable law, about Client's employees, agents, contractors, customers or potential customers, guests, invitees, or other individuals, whether provided to UTour by Client or collected by UTour on Client's behalf; and (iii) Confidential Information of Client.
Notwithstanding anything to the contrary, in addition to any other rights authorized under the Agreement, and without limitation the foregoing, UTour shall have the right to collect and analyze Client Data and other information relating to the provision, use, and performance of various aspects of the Platform, Partner Advertising, and/or any other UTour services and related systems and technologies (including, without limitation, information concerning Client Data and data derived therefrom), and UTour and its affiliates will be free (during and after the Term hereof) to: (i) use such information and data to improve and enhance the Platform, Partner Advertising, and/or other services and systems and for other development, diagnostic, and corrective purposes in connection with all of UTour's and/or its affiliates' offerings; (ii) use and disclose such data solely in aggregate or other de-identified forms in connection with its business, as allowable by law; and (iii) disclose Client Data to Partner for the purpose of managing and/or placing Partner Advertising as described herein.
Termination of this Agreement. The Term of this Agreement commences on the Effective Date and continues until each Subscription Term subject to this Agreement has expired or terminated in accordance with the terms of this Agreement and Client notifies UTour in writing that Client will no longer use the Platform or Services.
Termination of each Subscription. After the Initial Term, Client may terminate a Subscription by providing 30 days' written notice (email sufficient) to UTour and by disenrolling the Subscription on the Platform prior to the effective date of termination. Notwithstanding the foregoing, upon notice Client may terminate Subscription during its Initial Term or Renewal Term if the Community for which the Subscription was purchased is sold out. As used herein, "sold out" shall mean and refer to a Client signing and closing the sale of each and every home (including without limitation homes in initial or completed phases of construction) in such Community.
UTour's sole and exclusive liability and Client's sole and exclusive remedy for breach of UTour's limited warranty in Section 6.2 herein shall be that UTour shall use reasonable commercial efforts to promptly cure any such breach; provided, that if UTour cannot cure such breach within thirty (30) days after Client's written notice of such breach, Client may, at its option, upon 10 days' notice, terminate this Agreement by serving written notice of termination.
Upon notice of termination under this Section 15, all fees and amounts owed hereunder shall be paid by the date of termination in accordance with the payment terms set forth in the Agreement.
The terms and provisions of this Agreement, with the exception of the requirement for the payment of monthly fees and the requirement for the provision of service by UTour, shall survive any termination and shall remain binding and enforceable against the Parties.
This Agreement represents the entire understanding of the Parties with respect to the subject matter hereof and may not be altered or amended except in writing, signed by the Parties.
The singular will include the plural and the plural will include the singular whenever and as often as may be appropriate. The words “include” and “including,” and other words of similar import when used herein will not be deemed to be terms of limitation but rather will be deemed to be followed in each case by the words “without limitation.” The words “herein,” “hereto,” “hereof” and “hereunder” and other words of similar import in this Agreement will be deemed in each case to refer to this Agreement as a whole and not to any particular article, section or other subdivision of this Agreement. The word “or” is used in this Agreement in the inclusive sense of “and/or”, unless the context of such usage dictates otherwise. Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement. No provision of this Agreement shall be construed against a party by reason of the fact that such party or its legal counsel drafted that provision, notwithstanding any rule of law or any legal decision to the contrary.
This Agreement shall be governed under the laws of the State of California, without regard to the principles of conflict of laws. Jurisdiction and venue for any legal proceedings commenced or undertaken pursuant to this Agreement shall be the state courts in Orange County, California.
THE PARTIES IRREVOCABLY WAIVE THEIR RIGHT TO TRIAL BY JURY IN ANY SUCH LEGAL PROCEEDINGS.
At the option of either Party, by written notice given to the other, all disputes arising pursuant to the terms of this Agreement, or the performance hereof, shall be resolved by binding arbitration in accordance with the rules of the American Arbitration Association for Abbreviated Proceedings before a single arbitrator. Each Party shall pay their own costs of arbitration, provided, however, the arbitrator shall have the right to award a reimbursement of cost of arbitration to the prevailing party, including, but not limited to, reasonable attorney’s fees. The award of the arbitrator shall be enforceable in accordance with the laws of the State of California. Nothing in this provision shall limit or restrict UTour’s rights to collect payment under this Agreement, including without limitation by retaining a third-party to collect late fees or amounts due under this Agreement as set forth in Section 8 herein.
This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns. Client shall not assign or transfer its rights and obligations under this Agreement to a third party without the prior written consent of UTour.
Each of the Parties represents and warrants that it is duly formed and validly existing, in good standing, in the state of its organization, and has the full power and authority to enter into and to perform its obligations under this Agreement.
Time is of the essence with respect to the provisions of this Agreement. This Agreement may be executed in counterparts, each of which shall constitute an original and all of which shall be one and the same instrument.
NOTE TO CLIENT: The content below is our standard default language regarding the terms and conditions that a visitor must agree to when scheduling a tour. Please have your legal teams review and edit as necessary per your business, insurance and legal requirements.
By accepting these Terms & Conditions you grant Builder and Utour certain rights, waive and release certain rights, consent to certain uses of the information you submit and to receive texts, calls and emails and agree to individually arbitrate disputes and waive the rights to bring class actions and to a jury trial. Read them carefully before proceeding to schedule a tour and do not schedule a tour if you do not agree. You consent to Builder's data practices as set forth in its Privacy Policy [ insert link ] and UTour's Privacy Policy [ insert link ].
[ Builder Name ] as Builder ("Builder"), has one or more completed homes in inventory and/or model homes ("Home(s)") for sale to potential homebuyers. As part of the buying process, using the UTour system of UTour Home Tours, LLC, a Maryland limited liability company ("UTour"), under the terms of this Agreement, you will be allowed to visit the Home(s) without being escorted by a representative of Builder. Builder will only permit your unescorted access to the Home(s) if you agree to the terms listed below in this Agreement. By using the UTour system and entering into this Agreement, you represent, acknowledge, and agree that you are at least eighteen (18) years of age. If you are not at least eighteen (18) years old, you may not use the UTour system or access any Home of the Builder at any time or in any manner, unless accompanied by an adult, and you may not submit any information to the Builder or to UTour. You will be permitted to gain access to the Home(s) by accepting these terms and conditions and by providing the information required by this Agreement, including photo identification and/or credit card information. Upon receipt of your acceptance of this Agreement by the Builder and UTour, and your submission and the verification of the information and materials required herein, Builder will provide you with an access code to use to gain access to the Home(s). By your acceptance of this Agreement and submission of the required information, you will be permitted to gain access to the Home(s), only for the purposes of your viewing of the Home(s) in contemplation of purchasing a home from the Builder. Accordingly, you agree to the following terms and conditions, and to such other terms, provisions, and conditions as the Builder and/or UTour may impose, either on the UTour page of the Builder's website, the UTour homes portal or by one or more notices on site on the Home(s):
Upon your agreement to the terms, provisions and conditions of this Agreement, and your submission of the required information and the verification thereof, you will be given non-exclusive permission to access the Home(s) of the Builder on one or more selected sites or in one or more selected subdivisions, solely for the purposes of the orderly and lawful viewing and walkthrough of the Home(s) in contemplation of your purchase of a home from the Builder. This permission to access the Home(s) is given solely to you and is not transferable or assignable to any other party under any circumstances. This permission constitutes a "revocable license" to access the Home(s), meaning that you have "permission" to access the Home(s), which permission may be revoked by the Builder or by UTour at any time. Please remember that, in accessing and viewing the Home(s), you are the Builder's guest, and, at all times, you should conduct yourself in a safe, lawful, courteous, and respectful manner, and in the same way in which you would request that others treat your property. This permission to access the Home(s) is given to you, your immediate family members and to one guest of your choosing. You shall not provide the access code to any other person. You, your immediate family members and your one guest (collectively, your "Guests") shall be allowed access to the Home(s) for a one-hour period during an allocated time period. If your time period runs out and/or you would like to view the Home(s) again, you should reregister to obtain another access code pursuant to the terms of this Agreement. You will be considered a trespasser for any access into the Home(s) exceeding one hour or for any unauthorized re-entry. Builder shall be entitled to exercise all legal and equitable remedies for any such unauthorized visit.
Your use of the UTour system under this Agreement shall be at your sole risk, and you assume the full risk of loss or injury resulting from your entries into one or more of the Home(s). Also, you will be liable for any loss, damage, or theft ("Loss") that occurs during your visit(s) to the Home(s). You agree that Builder and/or UTour may charge your credit or debit card to cover any Loss that Builder incurs resulting from your visit to the Home(s). Further, you hereby agree to defend, indemnify, and hold harmless the Builder and UTour and their respective subsidiaries and affiliates, and its respective directors, officers, employees, owners, operators, partners, members, managers, shareholders, agents, consultants, and representatives, from and against any claims, actions, causes of action and/or liabilities arising from or in any way related to a Loss or to your use of the UTour system and your entries into the Home(s).
You assume all risks and all liability for yourself and your Guests that may occur as a result of your visit(s) to the Home(s). Builder and UTour assume no liability or responsibility for any damages or injuries suffered by you or your Guests while visiting the Home(s), including damages or injuries relating to exposure to any bacteria, virus, or disease, including COVID-19. You, for yourself and your Guests, release Builder and UTour of and from any and all present and future claims, damages, actions, liabilities and causes of action, that arise out of or in any way related to any injury or property damage (including, but not limited to, personal injury and injury relating to exposure to any bacteria, virus or disease, including COVID-19) to you or your Guests while visiting the Home(s) and/or the neighborhood, subdivision or site in which the Home(s) is/are located, or for any charges to your credit card authorized by this Agreement ("Customer Claims"). To the maximum extent allowed by law, you, for yourself and your Guests, hereby release and waive (and are hereby estopped to assert) any and all claims to the contrary. You further agree to indemnify and hold harmless Builder and UTour from any and all claims, losses, damages and/or costs (including, without limitation, attorney's fees, and court costs) incurred by Builder and/or UTour as a result of any Customer Claims made or attempted to be made by you and/or your Guests. All defenses to the aforesaid obligation by you and your Guests are hereby waived.
You understand and acknowledge that security cameras have been placed throughout the Home(s) and you, for yourself and your Guests, consent to being recorded during the visit(s). These recordings will be the sole property of the Builder and UTour and may be used by the Builder and UTour for their respective business purposes as they, or either of them, may determine in their sole discretion. Without limitation to the foregoing, you and your Guests shall have no rights or expectations of privacy with respect to these recordings and understand that the Builder and UTour may disclose the same to third parties, including, but not limited to, law enforcement authorities in the event of any actual or suspected malfeasance or misfeasance occurring during your visit(s) to the Home(s).
You understand and acknowledge that all voice interactions with Amazon Echo, or other similar devices, may be recorded and may be retained and analyzed by Builder and UTour to help personalize and improve services. Again, these recordings are the sole property of the Builder and UTour and may be used for their respective business purposes as they, or either of them, shall determine.
In the event of any emergency call 911. If you need any non-emergency assistance during your visit(s) to the Home(s), you should immediately contact the Builder in accordance with the information posted at the Home(s). The Builder and UTour assume no risk or responsibility for the actions of third parties in connection with your visit(s) to the Home(s). Without limitation to the foregoing, you understand that your visit(s) to the Home(s) is/are not supervised and may not be monitored in real-time (although the Builder and UTour reserve the right to monitor the same in real-time) by the Builder and/or UTour, their respective agents, employees, or contractors.
By providing the information required for you to participate in the UTour system, you agree to the use and disclosure of such information by the Builder and UTour as contemplated and/or intended by this Agreement, including, but not limited to, the use and/or disclosure of such information to verify your identity and to use and process your credit card. You hereby agree to pay to Builder and UTour and irrevocably authorize a charge to your credit or debit card in the event of any loss, damage, injury, or liability suffered by the Builder or UTour as described in this Agreement. Without limitation to the foregoing, you understand that the Builder and UTour use third-party companies and/or contractors and/or third-party systems and/or services, to verify your identity and/or verify and process your credit card. You understand that any photos you upload during the identity verification process will be disclosed to a third-party vendor for the purpose of comparison and analysis to verify your identity. During this process, the characteristics of your facial geometry will be used to authenticate your identity, which involves the collection and use of scans and/or records of face geometry, a form of biometric identifier under certain applicable laws ("Facial Data"). As such, one or more third-party vendors may collect, use, and/or process your Facial Data for purposes of verifying your identity and facilizing your ability to self-tour homes. Your biometric identifiers and/or biometric information will be permanently destroyed after five (5) days and purged from all finished scan records. Also, in the event of any legal proceedings brought or initiated and/or prosecuted in connection with this Agreement, you authorize the full use and release of your information as provided in this Agreement. Further, in the event of any need or reasonably perceived need to disclose your information to governmental agencies and/or law enforcement authorities in connection with the activities contemplated by this Agreement, the same are fully authorized irrevocably by you. Without limitation to the above, you hereby grant to the Builder and UTour a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license (including the right to sublicense through multiple tiers (including to subprocessors) to use, reproduce, process, adapt, publicly perform, publicly display, modify, prepare derivative works, publish, transmit and distribute your submissions of information, or any portion thereof, in any form, medium or distribution method now known or hereafter existing, known or developed, and authorize others to use such submissions in connection with the use of the UTour system and for both the Builder's and UTour's business purposes. The Builder and UTour may modify or adapt such submissions in order to transmit, display or distribute them over computer networks and in various media and/or make changes to the submissions as necessary to conform and adapt them to any requirements or limitations of any networks, devices, services, or media. The submissions will be used by the Builder and UTour in accordance with their respective privacy policies and notices which are available at their respective websites (the "Privacy Policies") and you accept the data practices set forth in those Privacy Policies. Generally, your submissions will be used to allow you to access the UTour system, including to provide you with access to the Home and take a self-guided tour of the property; it will be used for the internal business purposes of the Builder and UTour, such as ensuring the security of a Home before, during, and after your access thereto and contacting you regarding the sale of a Home; and will be used by UTour for its internal business purposes including improving the functionality of the UTour system. The Builder and UTour reserve the right to delete your submissions at any time without notice to you. You acknowledge and agree that certain third parties may be used to process your submissions, and such third parties shall use and process your submissions in accordance with their own terms and conditions. The Builder and UTour expressly disclaim any and all liability for any acts or omissions of such third parties.
If you violate any of the provisions of this Agreement, or cause any damage, liability, claim, or loss to the Builder our UTour, or to Builder's property, you will be in default under this Agreement. If you default under this Agreement, you will be responsible to the Builder and UTour for all costs, expenses, liabilities and/or losses arising therefrom, or in any way related thereto, including, but not limited to, reasonable attorney's fees incurred by the Builder and/or UTour. The Builder and UTour shall have all rights and remedies, at law, or in equity, in the event of your default and/or in the event of any other malfeasance or misfeasance by you or your Guests. You, the Builder, and UTour, mutually agree that any claim, controversy and/or dispute, of any kind or nature, arising under, or in any way related to this Agreement, and/or the activities contemplated by this Agreement, shall be resolved by binding arbitration, on an individual basis (i.e., no class actions) in accordance with the rules of the American Arbitration Association for abbreviated proceedings before a single arbitrator. Each party shall pay their own costs of arbitration; however, the arbitrator shall have the right to award reimbursement of costs to the prevailing party, including, but not limited to, reasonable attorney's fees. The award of the arbitrator shall be specifically enforceable in accordance with the rules and/or laws of the jurisdiction in which the Home(s) is/are located. This Agreement shall be governed in accordance with the laws of the state in which the Home(s) is/are located, without regard to the principals of conflicts of laws. In any court proceedings, the parties expressly waive their right to trial by jury and to class-wide relief. Exclusive jurisdiction and venue for any legal proceedings shall be in the state and county where the Home(s) is/are located.
This Agreement shall be binding upon and shall inure to the benefit of, the Builder, UTour, and you, and the respective heirs, personal representatives, successors and permitted assigns of you, the Builder, and UTour. You understand that you are not permitted to assign your rights or interests in this Agreement, your permission to view the Home(s) and/or your code given pursuant to this Agreement to view the Home(s). The Builder and UTour shall have the right at any time to assign their respective interests in this Agreement to their respective affiliates and/or any successor to the Builder or UTour.
This Agreement contains the entire understanding of the parties with respect to the subject matter hereof, and may not be altered or amended, except in writing, signed by the parties. Without limitation to the foregoing, the Builder and UTour are not responsible for or bound to any statements, representations and/or other communications which are not expressly set forth in this Agreement.
The information required from you by this Agreement is set forth in the application form which accompanies this Agreement. You should fully and truthfully complete the application form and download/provide any document, instrument, material and/or other items which is required to accompany the application form.
By your signature to this Agreement, either electronically or in person, and/or your consent provided to this Agreement, either electronically or in person, you hereby agree to be bound by all terms, provisions, and conditions of this Agreement. All of the terms, provisions and conditions of this Agreement shall survive your visit(s) to the Home(s) and shall remain binding and enforceable on you, the Builder, and UTour, in accordance with the terms hereof.
By your signature to this Agreement, either electronically or in person, and/or your consent provided to this Agreement, either electronically or in person, you hereby consent and provide a written release to the use of your face geometry from your photograph(s) for identity verification purposes.
By your signature to this Agreement, either electronically or in person, and/or your consent provided to this Agreement, either electronically or in person, you hereby agree and consent to receive autodialed text artificial voice and/or prerecorded call messages, including using artificial intelligence and bot technology, from and on behalf of the Builder or UTour and their respective affiliates relating to your self-guided home tour to the phone number you provided. You also agree that receiving text messages is not required or a condition of any purchase and that message and data rates may apply. You further agree and consent to receive email(s) from the Builder and UTour and their respective affiliates relating to your self-guided home tour at the email address you provided and that receiving email messages is not required or a condition of any purchase.
This is a legally binding document. If not understood, please seek appropriate legal counsel. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or licensee.
The Builder and UTour, make no express, implied, or statutory representations, warranties, or guarantees in connection with the use of the UTour system, or the quality, suitability, truth, accuracy or completion of any information or material contained or presented on the UTour system website, including, without limitation, resubmission of any materials by any party. Unless otherwise expressly stated, to the maximum extent permitted by applicable law, the UTour system, and any information or material contained or presented on the UTour system site, is provided to you on an "AS IS," "AS AVAILABLE" and "WHERE IS" basis, with no warranty or representation by the Builder or UTour, no express or implied warranty of merchantability, fitness for a particular purpose, and with no warranty, express or implied of noninfringement of third-party rights.
The inventory and/or model homes that you tour may or may not be an accurate representation of the actual home that may be available for you to purchase. The UTour system is provided for informational and marketing purposes only, and you acknowledge and agree that each home differs slightly, and that any unit you may purchase or offer to purchase may appear different than the inventory and/or model homes that you tour.
If you send, transmit, or provide any communications, comments, questions, suggestions, or related materials to the Builder or UTour, in any form (collectively "Feedback"), suggesting or recommending changes to the UTour system or the UTour site, including, without limitation, new features or functionality related thereto, all such Feedback is, and will be treated as, nonconfidential and nonproprietary. Except as prohibited by applicable law, you hereby assign all right, title, and interest in, and UTour is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques or intellectual property or proprietary rights contained in the Feedback, for any purpose whatsoever. If such an assignment of Feedback is prohibited by law, you hereby grant UTour an exclusive, transferable, worldwide, royalty fee fully paid-up license (including the right to sublicense) to use and exploit all Feedback as UTour may determine in its sole discretion. Notwithstanding the foregoing, you understand that the Builder and UTour are not obligated to use, display, reproduce, distribute, or otherwise acknowledge any Feedback.
Notwithstanding anything to the contrary set forth in this Agreement, foreign laws do not apply to this Agreement. The United Nations Treaty on Contracts for the International Sale of Good and any laws based on the Uniform Computer Information Transaction Act (UCITA) shall not apply to this Agreement.
By providing your name and contact information and clicking the submission button, you consent and agree to receive informational and/or marketing communications from the Builder and/or UTour, or made on their respective behalf, including emails and calls or text messages using an automatic telephone dialing system or an artificial or prerecorded voice and/or artificial intelligence or bot technology, and to the recording or transcription of those communications. Your consent herein also applies to, and shall override, any future registration on national or state Do Not Call lists. Text "STOP" to unsubscribe from each text subscription you have started. Setting up a new appointment and accepting texts will begin a new subscription. For mobile phones, standard text message and data charges may apply. Your consent is not a condition to purchase; no purchase necessary. Consult the Privacy Policies for details on what personal information the Builder and/or UTour collect and for what purposes, and your privacy rights and how to exercise them, or contact UTour at support@utourhomes.com or call 800-621-0592.
