Homes.com Builder Advertising Agreement Terms and Conditions

These Homes.com Builder Advertising Agreement Terms and Conditions form a material part of the Advertising Agreement which references these Homes.com Builder Advertising Agreement Terms and Conditions.

1. Definitions. As used herein, the following terms shall have the following meanings:
   • Advertising Agreement: The Advertising Agreement into which these Homes.com Builder Advertising Agreement Terms and Conditions are incorporated by reference.
   • Advertising Fees: The advertising fees specified in the Advertising Agreement.
   • Agreement: The Advertising Agreement, together with these Builder Advertising Agreement Terms and Conditions that were effective as of the time the parties fully executed the Advertising Agreement, and any other terms and conditions expressly incorporated therein.
   • Authorized User (a) If Customer is an individual, Authorized User shall mean Customer, otherwise (b) Authorized User shall mean each individual who is (1) Customer’s employee or exclusive contractor (i.e. an individual person working as an independent contractor solely for Customer and not also for themself or another company with real estate information needs, and performing substantially the same services for Customer as an employee of Customer), and (2) included on Company’s list of Authorized Users. The number of Authorized Users shall not exceed the number of users set forth in the Advertising Agreement.
   • Community: Each of Customer’s residential communities identified in the Advertising Agreement.
   • Community Boost: The Company service that provides greater exposure to the listing over the basic Listing.
   • Company: CoStar Realty Information, Inc. and its subsidiaries, through the “Homes.com” brand and suite of products and services.
   • Company Information: The information, directories, text, forms, agreement, videos, photographic and other imagery, and data provided by Company.
   • Company Parties: Company and its affiliates and their respective partners, officers, directors, employees, agents, and third-party suppliers, and each of their successors and assigns.
   • CPI: For the United States, Canada, and the Caribbean: Consumer Price Index for All Urban Consumers (CPI-U); for the European Union: European Union Consumer Price Index (I:EUCPI); for all other locations, Consumer Price Index published by the United Kingdom’s Office for National Statistics.
   • Customer: The Customer identified in the Advertising Agreement.
   • Customer Website Information: Any data, including without limitation images and renderings, made available by Customer on its website.
   • Data Feed: The compilation of all information, images, renderings, and other data related to homes marketed for sale by Customer, as used by Customer in connection with its marketing efforts.
   • Interface: Company’s interface for managing Listings and advertising Customer’s for sale properties.
   • Lead: Information about an interested potential buyer for a Customer Listing obtained via the Website, including the potential buyer’s or agent’s name, contact information, any notes provided by such individual, and the area of the Homes.com website where the information was inputted.
   • Listing: A listing for the sale or lease of real estate.
   • Listing Plan: Use of the Website and the Interface for Customer to publish Listings on the Homes.com platform.
   • Passcode: The username and password and any other authentication method used to access the Product.
   • Product: The Company product(s) indicated in the Advertising Agreement, as applicable (e.g. Listing Plan), and any other product or service provided to Customer pursuant to this Agreement.
   • Start Date: The later of the date on which this Agreement was fully executed by the parties or the date on which access to the Product was activated for Customer.
   • Website: Company’s website and mobile application for marketing real estate.
2. Permitted Uses.
   1. Subject to the prohibitions set forth below and in Company’s Terms of Use, during the term of this Agreement, Customer may, in the ordinary course of business use the Product to designate, create and review Listings for properties owned, controlled or represented by Customer for inclusion in, and to market Listings on, the Website (and, if applicable, Customer’s proprietary website), as described in the Advertising Agreement.
   2. Where Customer’s Listing on the Website incorporates Company Information, Customer is granted a limited, revocable, and non-sub-licensable license to use such Company Information strictly in connection with Customer’s Company Listing on the Website.
   3. Customer may, in the ordinary course of business, provide a hyperlink to the home page of the Website or to any Listings provided that Customer must remove any such link upon request from Company.
   4. Customer may display on its own website photographs from the Company Information that depict properties that Customer owns, controls, represents or holds exclusives, provided that:
      1. such photographs may not be altered, including without limitation any watermark;
      2. such display rights shall cease upon expiration or termination of this Agreement; and
      3. under no circumstances shall such photographs be posted on any website that competes with the Product.
      4. Notwithstanding anything to the contrary herein, Matterports or videos taken by Company pursuant to this Agreement shall not be displayed on Customer’s own website.
3. Prohibited Uses.
   1. Except as specifically set forth in the “Permitted Uses” section above or as may otherwise be agreed to by the parties in writing, Customer shall not:
      1. distribute, disclose, copy, reproduce, make available, upload, post, communicate to the public by telecommunication, display, publish, transmit, assign, sublicense, transfer, provide access to, sell, directly or indirectly, any portion of the Product by any means (including without limitation the Internet, any bulletin board system, electronic network, listing service, or any other data sharing arrangement) to anyone other than Customer and the Authorized Users, or modify, adapt or create derivative works of the Product;
      2. store, copy or export any portion of the Product into any database or other software program; or
      3. link to or frame any portion of the Product.
   2. Notwithstanding any other provision herein, Customer shall not, without the express written permission from Company:
      1. use any portion of the Product to create, directly or indirectly, any database or product;
      2. access or use the Product if Customer is a direct or indirect competitor of, or provides any portion of the Product to any direct or indirect competitor of, Company or its affiliates (by way of example, a “direct or indirect competitor” of Company includes, but is not limited to, Internet listing services using the Product for any purpose other than to actively endeavor and participate in brokerage, and employees, independent contractors and agents of such services);
      3. modify, merge, scrape, disassemble or reverse engineer any portion of the Product, or use any data mining, gathering or extraction tool, or any robot, spider or other automatic device or manual process, to monitor or copy any portion of the Product or the data generated from it; or
      4. use, reproduce, publish, or compile any portion of the Product in connection with any other listing service, device or data sharing arrangement;
      5. use any portion of the Product in a manner that would violate any applicable law, regulation, rule, ordinance or common-law principle, including those relating to real estate practice, competition, marketing, advertising, defamation, securities, spam and privacy; or
      6. in connection with the offer or sale of securities, use any portion of the Product, directly or indirectly, in any securities offering materials, registration statement, prospectus, or other filing with the United States Securities and Exchange Commission or any other federal, provincial, state, local or foreign governmental authority.
4. Term.
   1. The term of this Agreement shall begin on the Start Date and continue for the term length specified in the Advertising Agreement, expiring on the last day of the calendar month in which that term length ends. (For example, if the Start Date was on January 15, 2050, and the term length is one year, the term would end on January 31, 2051.)
   2. Listing Plans will automatically renew for successive periods equal to the initial term length, unless at least 60 days prior to the last day of the current term, either party has provided to the other written notice of nonrenewal.
5. Termination and Interruption of Access.
   1. Either party may terminate this Agreement if the other party:
      1. materially breaches this Agreement, and such breach is not remedied within 30 days after written notice to the breaching party; or
      2. makes an assignment, arrangement or composition for the benefit of its creditors, or is the subject of a filing of a petition under any bankruptcy or insolvency law and such filing is not discharged within 30 days of such filing.
   2. Company may terminate this Agreement immediately without further obligation to Customer:
      1. upon Company’s good faith determination of any violation by Customer of Sections 3, 10 or 12 hereof, or any material violation of any other agreement between the parties or their affiliates;
      2. upon five (5) days’ written notice in the event that Company discontinues providing a particular product (which Company may do at any time in Company’s sole discretion), in which case Customer shall be released of its obligation to pay the Advertising Fees attributable to the terminated portion of the Product from and after the effective date of such termination (and Company shall refund any prepaid Advertising Fees attributable thereto); or
      3. in the event Customer is or becomes directly or indirectly owned or controlled (50% or more in the aggregate) by any individual or entity that is: designated pursuant to an economic sanctions program administered by the United Nations Security Council, the United States Treasury Department’s Office of Foreign Assets Control, or any other applicable governmental authority, or who is located, organized, or resident in a country or territory that is, or whose government currently is, the target of comprehensive embargoes imposed by the United Nations Security Council, the United States government, or any other applicable governmental authority; designated on the Entity List administered by the United Nations Security Council Consolidated List, the United States Department of Commerce’s Bureau of Industry and Security, or any other applicable governmental authority; or in material violation of applicable human trafficking or child labor laws.
   3. Company may interrupt the provision of any portion of the Product to Customer upon Company’s good faith determination of any actual or impendent violation by Customer of this Agreement, or any material violation of any other agreement between the parties or their affiliates, in which case:
      1. Customer shall continue to be responsible for all Advertising Fees (provided, however, that Customer shall not be responsible for Advertising Fees for an interrupted period if there was not an actual violation); and
      2. Company will restore the provision of the Product only if, in Company’s reasonable opinion, the violation has been resolved satisfactorily (including, if applicable bringing current any amounts due hereunder).
   4. Upon Customer’s breach of any term of this Agreement that leads to a termination of this Agreement, all Advertising Fees and all other fees payable hereunder shall become immediately due and payable in full, and in addition to the foregoing, Company’s remedies shall include any damages and relief available at law or in equity. If Company retains any third party to obtain any remedy to which it is entitled under this Agreement, Company shall be entitled to recover all costs, including attorney’s fees and collection agency commissions, Company incurs.
   5. Customer may remove a Community from this Agreement if the Community sells out, and such removal shall become effective at the end of the month in which written notice of such removal is given.
   6. The Product is subject to change from time to time and may be subject to listing and searching limitations.
6. Post-Termination. Upon termination or nonrenewal of this Agreement, Customer may no longer use any portion of the Product in any manner. Notwithstanding the foregoing, any expiration or termination shall not terminate any rights obtained during the term of the Agreement; for example, upon such expiration or termination, Company may continue to use the Data Feed and Website Information obtained prior to such expiration or termination, and Customer may continue to use all Leads obtained prior to such expiration or termination.
7. Fees.
   1. Customer agrees to pay the Advertising Fees and all other fees set forth in this Agreement in the currency and manner indicated in the Advertising Agreement. If applicable, Customer gives Company express authorization to charge such fees to Customer’s electronic payment provider at the time of purchase or renewal.
   2. Each year on each anniversary of the last day of the calendar month in which the Start Date occurred, Company may increase the Advertising Fees by a percentage equal to the percentage increase in the CPI for the previous twelve months.
   3. During any renewal term, Company may increase the Advertising Fees, or charge other fees for any portion of the Product or service provided by Company; provided, however, that if the Advertising Fee is increased by a percentage greater than the percentage increase in the CPI and Customer does not agree to such increase or charge, then Customer may give Company written notice of termination within 60 days after Company’s notice of such increase or charge, in which case (i) Customer shall continue to pay the Advertising Fees in place before the proposed increase or charge until the last day of the calendar month in which Customer’s notice of termination is delivered, and (ii) this Agreement shall terminate with respect to such portion of the Product on such date.
   4. For Communities marketed as “coming soon”, with no active properties available for immediate sale, once one or more properties in the Community become available for immediately sale, the Advertising Fees shall be increased to the current standard pricing rates for similarly-situated Customers.
   5. Company may send invoices for such fees by email, postal mail, or both. All fees shall be billed in advance in accordance with the billing cycle identified herein and are due net 30 days. All payments received after the due date may be subject to a late payment charge from such due date until paid at a rate equal to the maximum rate permitted under applicable law. In all cases, all fees payable under this Agreement shall be paid in full without any right of set-off or deduction. Company may accept any payment without prejudice to its rights to recover the balance due or to pursue any other right or remedy. No endorsement or statement on any check, payment, or elsewhere will be construed as an accord or satisfaction. The Advertising Fees do not include value added, sales, use, excise or any other taxes or fees now or hereafter imposed by any governmental authority with respect to the Product. Company shall not be bound to use any third-party payment vendor or accept credit card payments, and any fees by such vendors or costs incurred from such credit card payments may be added to the amounts payable hereunder. At Company’s option, Customer shall pay any such taxes or additional fees directly or pay them to Company immediately upon invoicing by Company.
   6. Loyalty or product bundle discounts are subject to cancellation.
   7. Customer must notify Company about any billing problems or discrepancies within 180 days after charges first appear on the account statement; if it is not brought to Company’s attention within such period, Customer agrees to waive the right to dispute such problems or discrepancies.
   8. It is Customer’s responsibility to keep current Customer’s contact and billing information (including phone number, email address, credit card numbers, etc.). Billing updates should be emailed to billing@costar.com.
   9. Company reserves the right to change its payment frequency or billing methods at any time, provided Company will provide timely notice of any such changes.
8. Administration of Listings.
   1. Company will advertise Customer’s for sale properties on its Homes.com website. Company reserves the right, in its sole discretion, to determine the design, architecture, functionality and display of the Listings, use placeholder imagery where necessary, and/or omit, modify or remove content. No robot, spider or other automated service may be used to submit Listings to the Website.
   2. Customer represents and warrants that, for each Listing submitted by Customer or any Authorized User, Customer or such Authorized User has the right and authority to submit such Listings and associated information to Company.
   3. Customer agrees to provide Company with, and to maintain, accurate contact information (including a valid phone number and email address) in order to submit and maintain active Listings on the Website.
   4. Customer shall not post a Listing on the Website under a name, or using a contact, other than Customer or the licensed real estate broker or agent that has been engaged by Customer to market the Listing under a duly executed listing agreement with the owner.
   5. Customer agrees to allow submitted Listings, or any part thereof, to be searched, displayed, accessed, viewed, downloaded, copied and otherwise used by users of the Website and other Company partner and affiliated websites. Company shall have the sole authority to choose the manner in which any Listing will be searched, displayed, accessed, viewed, downloaded, copied, and otherwise used on such websites.
   6. Company shall have no obligation to monitor or verify the accuracy or proper use of the Website by others. However, Company may, in its sole discretion but without any obligation, search for and remove or modify Listings that are alleged to have been submitted in violation of this Agreement or Company’s Terms of Use.
   7. Company agrees to provide to Customer all Leads obtained by Company for Customer’s properties via the Homes.com platform within 24 hours following Company’s receipt of such Lead. Customer is solely responsible to ensure all Leads are used in accordance with all laws and regulations.
   8. Company will provide Customer Passcode-protected access to add, manage, and update applicable community information on the Website.
9. Brokers and Agents. It is Customer’s sole responsibility to ensure that any person using the Product under this Agreement who identifies themselves as a broker or agent on the Website is validly licensed as identified and is in compliance with applicable broker requirements in all jurisdictions in which such person is required to be licensed. Company may, in its sole discretion, but shall have no obligation to, (i) verify the licensure of such person as a broker or agent, (ii) verify the existence of applicable representation agreements, and (iii) remove from the list of brokers any person whom Company believes is not a licensed broker or agent in any applicable jurisdiction.
10. Product Access, Passcodes, and Security.
    1. Customer will ensure that access to and use of the Product, and the Passcodes and any other authentication method used to access the Product are available only to Authorized Users, and will not allow anyone other than an Authorized User access to the Product or Passcodes for any reason. Customer shall ensure that no user shares Passcodes with any other person or allows any other person to use or have access to such Passcodes.
    2. Each Authorized User’s access to the Product may require multi-factor authentication, including, but not limited to, biometric authentication and/or designation of specific devices. Company is under no obligation to confirm the actual identity or authority of any party accessing the Product under any Passcode or other authentication method.
    3. Customer is responsible for providing all hardware, software and Internet access necessary to obtain and use the Product.
    4. Customer acknowledges and agrees that Company may record telephone and other electronic communications it has with Customer or its Authorized Users for Company’s internal business purposes, including but not limited to training and quality assurance purposes.
11. Customer Information.Customer agrees to provide to Company the Data Feed, updated daily, for all homes marketed for sale by Customer. Customer is solely responsible for obtaining all necessary rights and permissions for Company to access and use the Data Feed as set forth in this Agreement, and for ensuring that all information therein is true, complete and accurate. Customer hereby grants to Company, its agents, affiliates, and representatives, consent to obtain photographs, videos, and other visual media onsite for Customer’s properties, and an irrevocable, non-exclusive license to gather, use, modify, reproduce and sublicense Customer Website Information. Customer consents to the use by Company of the Data Feed and Customer Website Information for the purposes described in this Agreement, and for any other lawful purpose related to the business of Company, including without limitation in Company’s data products and its Homes.com products, even following termination of this Agreement.
12. Ownership. Customer acknowledges that the Product is comprised of data that is owned by Company and its licensors and that Company and its licensors have and shall retain exclusive ownership of all proprietary rights to the Product (including without limitation all photos, videos, and other imagery created by Company pursuant to an advertising or listing package, plan or agreement for use in the Product), including all United States, United Kingdom, Canadian, European Union or other international intellectual property and other rights such as patents, trademarks, copyrights and trade secrets. This is a license agreement and not an agreement for sale. Customer shall have no right or interest in any portion of the Product except the right to use the Product as set forth herein. Customer acknowledges that the Product constitutes the valuable property and confidential and copyrighted information of Company and its licensors and agrees to (a) comply with all copyright, trademark, trade secret, patent, contract and other laws necessary to protect all rights in such information, (b) not challenge Company’s and its licensors’ ownership of (or the validity or enforceability of their rights in and to) such information, and (c) not remove, conceal, obliterate or circumvent any copyright or other rights management information, notice, license or anti-piracy technological measure included in the Product. Customer shall be liable for any violation of the provisions of this Agreement by any Authorized User, and for any unauthorized use of the Product by Customer’s employees, contractors, affiliates and agents. Customer may not use or reproduce any trademark, service mark or trade name of Company or its licensors without Company’s written consent. Nothing in this Agreement will restrict Company from freely using for any purpose, without compensation, any Customer idea, suggestion, enhancement or other feedback relating to the Product or new products, features or tools.

13. No Warranties. THE PRODUCT AND ALL PARTS THEREOF ARE PROVIDED “AS IS”, ”WITH ALL FAULTS”, ‘AND ”AS AVAILABLE”. THE COMPANY PARTIES DO NOT MAKE, AND HEREBY EXPRESSLY EXCLUDE AND DISCLAIM, ANY AND ALL REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION (a) MERCHANTABILITY, FITNESS FOR ORDINARY PURPOSES AND FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, QUIET ENJOYMENT AND NO ENCUMBRANCES OR LIENS, (b) THE QUALITY, ACCURACY, TIMELINESS OR COMPLETENESS OF THE PRODUCT, (c) THOSE ARISING THROUGH COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, (d) THE PRODUCT CONFORMING TO ANY FUNCTION, DEMONSTRATION OR PROMISE BY ANY OF THE COMPANY PARTIES, AND (e) THAT ACCESS TO OR USE OF THE PRODUCT WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.

14. Limitation on Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY PARTIES WILL NOT BE LIABLE FOR ANY LOSS, COST OR DAMAGE SUFFERED OR INCURRED BY CUSTOMER OR ANY THIRD PARTY INCLUDING WITHOUT LIMITATION THOSE ARISING OUT OF OR RELATED TO ANY FAULTS, INTERRUPTIONS OR DELAYS IN THE PRODUCT OR ANY INACCURACIES, ERRORS OR OMISSIONS IN THE INFORMATION CONTAINED IN THE PRODUCT, REGARDLESS OF HOW SUCH FAULTS, INTERRUPTIONS, DELAYS, INACCURACIES, ERRORS OR OMISSIONS ARISE, OR FOR ANY UNAUTHORIZED USE OF THE PRODUCT. COMPANY PARTIES’ AGGREGATE, CUMULATIVE LIABILITY RELATING TO THIS AGREEMENT AND USE OF THE PRODUCT SHALL BE LIMITED TO CUSTOMER’S ACTUAL, RECOVERABLE DIRECT DAMAGES, IF ANY, WHICH IN NO EVENT SHALL EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO COMPANY UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE SUCH CLAIM AROSE. RECOVERY OF THIS AMOUNT SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY APPLICABLE DAMAGES. UNDER NO CIRCUMSTANCES WILL ANY OF THE COMPANY PARTIES BE LIABLE FOR LOST PROFITS HOWSOEVER ARISING OR FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF, BASED ON, RESULTING FROM OR IN CONNECTION WITH THIS AGREEMENT OR ANY USE OF THE PRODUCT, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION OF DAMAGES IN THIS PARAGRAPH IS INDEPENDENT OF CUSTOMER’S EXCLUSIVE REMEDY DESCRIBED ABOVE AND SURVIVES IN THE EVENT SUCH REMEDY FAILS. NO ACTION ARISING OUT OF OR PERTAINING TO THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ARISEN. THE PROVISIONS OF THIS SECTION APPLY WITHOUT REGARD TO THE CAUSE OR FORM OF ACTION, WHETHER THE DAMAGES ARE GROUNDED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER CAUSE OF ACTION.
15. Indemnification. Customer agrees to defend, indemnify and hold harmless the Company Parties from and against any third-party action, suit, claim or demand and any associated losses, expenses, damages, costs and other liabilities (including reasonable attorneys’ fees), arising out of or relating to Customer’s (and Customer’s users’) use or misuse of the Product, information provided to Company through the Product, or violation of this Agreement. Company shall give Customer prompt written notice of such claim, demand or action (provided, however, that Company’s failure to provide such notice shall not relieve Customer of its indemnification obligations except to the extent Customer is prejudiced thereby). Customer shall cooperate as fully as reasonably required in the defense of any such claim or demand. If the foregoing indemnity is unavailable to any of the Company Parties with respect to any claim, demand or action under any laws, rules or regulations for any reason, Company shall be entitled to seek in a court of competent jurisdiction Customer’s contribution to such claim, demand or action under any legal or equitable theories available to it. This Section shall survive the expiration or termination of this Agreement.
16. Assignment. The parties’ obligations hereunder are binding on their successors, legal representatives and permitted assigns. Customer may not assign, sublicense or otherwise transfer (by operation of law or otherwise) this Agreement nor any rights granted hereunder, in whole or in part, without the prior written consent of Company; provided, however, that Customer may, with written notice to Company, assign its rights and obligations under this Agreement to any successor to all or substantially all of the business or assets of Customer (by merger or otherwise) so long as (a) such assignment shall not result in the elimination of any then-existing Company revenue stream from Customer or such third party and (b) such assignee does not directly or indirectly compete with Company or any of its affiliates.
17. Notices; Invoices. All notices given hereunder must be in writing and delivered by email, personally mailed by registered or certified mail (return receipt requested, where available), or delivered by a well-recognized overnight courier company to the addresses specified in the Advertising Agreement, or as otherwise specified in writing by the receiving party. Notices to Company’s physical address shall be directed to the attention of Homes.com Sales. Notices of nonrenewal to Company under Section 5 hereof may be sent via email to cancel@costar.com. All notices will be deemed given if delivered personally or by email, on the day of delivery, if mailed by registered or certified mail, three (3) days after the date of mailing, if delivered by a well-recognized overnight courier company, one day after dispatch, and if delivered by overnight international mail, four (4) days after mailing. Customer agrees that Company may include notices on invoices sent to Customer by mail or email.
18. Force Majeure. None of the Company Parties shall have any liability for any damages resulting from any failure to perform any obligation hereunder or from any delay in the performance thereof due to causes beyond Company’s control, including industrial disputes, acts of God or government, public enemy, war, fire, pandemic, epidemic, other casualty, failure of any link or connection whether by computer or otherwise, or failure of technology or telecommunications or other method or medium of storing or transmitting the Product.
19. Choice of Law; Jurisdiction. This Agreement shall be governed by and construed under the laws of Delaware without regard to choice of law principles. Company irrevocably consents to the exclusive jurisdiction of the federal and state courts located in Virginia for the purpose of any action brought against Company in connection with this Agreement or use of the Product. Customer irrevocably consents to the jurisdiction and venue of the federal and state courts located in Virginia, or in any State where Customer’s Authorized Users are located, for any action brought against Customer in connection with this Agreement or use of the Product.

    EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ITS RIGHT TO PARTICIPATE IN A CLASS OR COLLECTIVE ACTION AGAINST THE OTHER PARTY IN ANY DISPUTE OR PROCEEDING (WHETHER BASED ON CONTRACT, STATUTE, TORT, OR ANY OTHER THEORY).

20. Miscellaneous.
    1. The parties are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between them.
    2. This Agreement contains the entire understanding of the parties with respect to the Product and supersedes any prior oral or written statements by Customer, Company, or their respective representatives and documents with respect to such subject matter; provided, that this Agreement does not supersede any other written advertising agreement between the parties unless expressly provided herein.
    3. This Agreement may not be amended, modified or superseded, nor may any of its terms or conditions be waived, unless expressly agreed to in writing by all parties. The failure of any party at any time to require full performance of any provision hereof will in no manner affect the right of such party at a later time to enforce the same.
    4. Unless otherwise required by applicable law, Customer agrees to keep the terms of this Agreement strictly confidential.
    5. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty not expressly set forth in this Agreement.
    6. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement; provided, however, that the foregoing shall not limit or exclude any liability for fraud.
    7. Each party acknowledges its responsibilities in accordance with applicable anti-bribery and anti-corruption legislation, and represents and warrants that its has not, and will not offer, give, solicit or accept any bribe from any person, organization or company with the intent to coerce or induce a person, organization or company to act improperly in the course of their duties.
    8. Customer agrees that Company may send to Customer and its employees, contractors and Authorized Users communications, including, but not limited to, communications about new features or products, available Listings, product feedback and other marketing content, which the email recipient may unsubscribe from at any time. Customer will comply with all laws related to emails Customer and/or its employees, contractors and Authorized Users send using the Product.
    9. If any provision of this Agreement not being of a fundamental nature is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remainder of this Agreement will not be affected. If a provision is held to be invalid, illegal or otherwise unenforceable, it shall be deemed to be replaced with an enforceable provision that retains the intent and benefits of the original provision.
    10. Customer acknowledges that in the event of a breach of any of these terms by Customer, Company may suffer irreparable harm and shall be entitled to seek injunctive relief (without the necessity of posting a bond) as well as all other monetary remedies available at law or in equity.
    11. Headings are for reference only.
    12. Any provision of this Agreement that by its nature should survive expiration or termination of this Agreement shall survive expiration or termination of this Agreement.
    13. The English language version of this Agreement shall be binding. Any translated version is for convenience only, and shall not control the meaning or application of this Agreement.
21. Jurisdiction-Specific Clauses. Outside of the United States, Canada, the Caribbean, and China. For Customers located outside of the United States, Canada, the Caribbean, and China only, the following additional provisions shall apply, and in the event of a conflict, shall supersede any conflicting provision in these Homes.com Builder Advertising Agreement Terms and Conditions:
    1. The defined term “Company” shall mean CoStar UK Limited and/or any of its subsidiaries.
    2. This Agreement, and any dispute or claim (including, without limitation, non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, the law of England and Wales. Each party irrevocably agrees that, for the sole benefit of Company and subject as provided in this paragraph, the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including, without limitation, non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation. Nothing in this Agreement shall limit the right of Company to take proceedings against Customer in any other court of competent jurisdiction, nor shall the taking of proceedings by Company in any one or more jurisdictions preclude the taking of proceedings by Company in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
    3. NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT A PERSON’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE, FOR FRAUD, OR FOR ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY LAW.