Builder Terms
Last updated: January 19, 2024
IMPORTANT NOTICE: PLEASE READ THROUGH THESE BUILDER TERMS CAREFULLY
The following document (these “Builder Terms”) describes the terms and conditions under which HOMEKEY SYSTEMS, INC. (the “Company”) offers each individual or entity (hereinafter, “Builder”) access to its Services through the Platform. Defined terms shall have the meanings set forth in Exhibit A, attached hereto.
By accessing the Platform or using any Services, Builder hereby agrees to comply with and to be bound by these Builder Terms, including the policies and guidelines linked to (by way of the provided URLs) or from these Builder Terms. If Builder does not understand or agree to these Builder Terms, please do not use the Platform or the Services.
These Builder Terms are incorporated by reference into each Order executed by Company and Builder. Company may amend these Builder Terms at any time in its sole discretion, effective upon posting the amended Builder Terms at the domain or subdomains of https://www.gethomekey.com/ and http://www.homekey.app/ where the prior version of the Builder Terms was posted, or by communicating these changes through any written contact method Company has established with Builder.
1.1. Delivery of Services. Subject to the terms and conditions of these Builder Terms , Company will provide the Services to Builder as more fully set forth in one or more Order(s). Company’s sole duty is to provide the Services identified in such Order(s).
1.2. Modifications. Builder agrees and acknowledges that Company reserves the right, in its sole discretion, to make any changes or improvements to the Platform that it deems necessary or useful at any time.
Builder Obligations
2.1. General. In consideration of Company’s provision of the Services, Builder agrees to: (i) fulfill each of Builder’s obligations set forth in an applicable Order; and (ii) reasonably cooperate with Company to facilitate Company’s provision of the Services.
2.2. Compliance. Builder is responsible for all Builder activity, and the activity of its employees, contractors, and agents, in connection with these Builder Terms . Builder will abide by all applicable local, state, national, and foreign laws, treaties, and regulations in connection with use of the Services, including those related to data privacy, international communications, and the transmission of technical or personal data.
2.3. Unauthorized Use. Builder will use all commercially reasonable efforts to prevent unauthorized use of the Services, and to terminate any unauthorized use. Builder will promptly notify Company of any unauthorized use of, or access to, the Services of which it becomes aware, known or suspected breaches of security, and unlawful use of the Services or Company Intellectual Property Rights.
Term and Termination
3.1. Term. These Builder Terms commence on the initial Order Effective Date (as defined in the applicable Order) and continue until the expiration or Termination of the last outstanding Order.
3.2. Termination for Breach. Either Party may terminate an Order immediately upon written notice: (a) with regard to obligations other than payment obligations, if the other Party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice, or immediately as provided in these Builder Terms; (b) the other Party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; (c) the other Party is in material breach of an Order or these Builder Terms more than two times notwithstanding any cure of such breaches; or (d) with regard to Builder’s payment obligations, Company may immediately (or, at its option, after Suspension of access to the Services pursuant to Section 6.2 below) terminate an Order for failure to pay any Fees when due pursuant to Section 4.1.
3.3 Effect of Termination. Upon termination of an Order: (a) all rights and licenses granted under these such Order will terminate unless such rights and licenses expressly survive pursuant to the terms and conditions of these Builder Terms; (b) Builder will pay Company all Fees owed and outstanding; and (c) upon request, each Party will return or destroy the Confidential Information of the other Party. Upon any termination, Builder will not be entitled to a refund of any Fees and Company will not refund any Fees that Builder has paid.
Builder Fees
4.1 Builder Fees. Builder will pay to Company all Fees identified in an applicable Order. Builder shall make all such payments in US dollars.
4.2 Taxes. All Fees and other amounts payable by Builder under an Order are exclusive of taxes and similar assessments. Builder is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Builder hereunder, other than any taxes imposed on Company's income.
Support Services
Company will provide ongoing technical support services to Builder and owners of the Builder Homes to facilitate use of the Services, as set forth in an applicable Order.
Suspension of the Services
6.1. By Company. If Builder materially breaches the terms of an Order or these Builder Terms, including any failure to pay any Fees when due, Company reserves the right to Suspend Builder’s use of the Services, or particular components of the Services, without notice until the breach is cured or Company elects to terminate the outstanding Orders.
6.2. For Emergency Security Issues. If there is an Emergency Security Issue, Company may immediately Suspend the offending use. Suspension will be to the minimum extent and duration that Company deems to be required to prevent or terminate the Emergency Security Issue. If Company Suspends Builder, Company will provide Builder the reason for the Suspension as soon as is reasonably possible.
Confidential Information
7.1. Obligations. Each Party will: (a) hold and keep the other Party’s Confidential Information in strict confidence; (b) protect the other Party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information; and (c) not disclose the Confidential Information, except to Affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Each Party (and any Affiliates, employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill obligations under these Builder Terms, while using reasonable care to protect it. Each Party is responsible for any actions of its Affiliates, employees and agents in violation of this Section 7.
7.2. Exceptions. Confidential Information does not include information that: (a) the recipient of the Confidential Information already knew as evidenced by its written records; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by another party.
7.3. Required Disclosure. Each Party may disclose the other Party’s Confidential Information when required by law but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other Party; (b) gives the other Party the opportunity to challenge the disclosure; and (c) releases only so much of the Confidential Information as required by law and properly requests confidential treatment of that information.
7.4. Third-Party Requests. Each Party will, unless it is prohibited by law or by the terms of the Third-Party Request: (a) promptly notify the other Party of its receipt of a Third-Party Request in a manner permitted by law; (b) comply with the other Party’s reasonable requests, at such Party’s expense, regarding its efforts to oppose a Third-Party Request; and (c) provide the other Party, at such Party’s expense, with the information or tools required for such Party to respond to the Third-Party Request.
Intellectual Property Rights
8.1. Intellectual Property Rights. Except as expressly set forth herein, these Builder Terms do not grant either Party any rights, implied or otherwise, to the other’s Intellectual Property Rights. Company and its licensors own all Intellectual Property Rights in the Services, Platform, Data, Resultant Data, Company Materials, and Third-Party Materials.
8.2. Licenses to Company. Builder grants to Company a non-exclusive, royalty-free, worldwide, transferable, sublicensable, irrevocable license to use the Builder Materials in connection with Company’s provision of the Services, including, without limitation, to owners and subsequent owners of applicable Builder Homes. In addition to the foregoing, Builder grants to Company a non-exclusive, royalty-free, worldwide, non-transferable, non-sublicensable, revocable license to use the Builder’s trademarks and marketing materials solely in connection with Company’s obligations under these Builder Terms; provided, however, Company will only use those trademarks and marketing materials which have been previously approved by Builder in writing and in accordance with any policies provided by Builder to Company.
8.3. Suggestions. Builder hereby grants to Company a royalty-free, fully paid, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations, or other feedback provided by Builder for any purpose.
8.4. Reservation of Rights. Nothing in these Builder Terms grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Data, Resultant Data, Company Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, Data, Resultant Data, the Company Materials, and the Third-Party Materials are and will remain with Company and the respective rights holders in the Third-Party Materials.
Restrictions on Use
Unless Company notifies Builder otherwise in writing, Builder will not share content or documentation provided by Company to Builder as a part of Company’s provision of the Services with any third party.
Publicity
Unless Builder notifies Company otherwise in writing, Builder hereby consents to Company’s inclusion of Builder’s name, as well as any logo provided by Builder, in a customer list and in press releases and such notification will only apply to materials that are not yet printed or available as of the date of the notification.
Mutual Representations and Warranties
Each Party represents and warrants that: (a) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under these Builder Terms; and (b) these Builder Terms will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
Disclaimer
THE PLATFORM AND SERVICES ARE PROVIDED “AS IS” WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE BUILDER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 11, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THAT THE PLATFORM. SERVICES OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET BUILDER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE, OR EXCEPT AS STATED IN AN APPLICABLE ORDER, WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, WARRANTIES AGAINST INTERRUPTION OR INTERFERENCE WITH ENJOYMENT OF INFORMATION, AND WARRANTIES OF QUALITY AND ACCURACY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Voiding of Warranties and Indemnifications
Any and all warranties and indemnifications will be void as to the Platform and Services where the non-compliance is caused by or related to: (a) the acts or omissions of non-Builder personnel or third parties; (b) misuse, theft, vandalism, fire, water or other peril; (c) any impermissible alterations or modifications made to the Platform or any Services by the Builder, its employees, independent contractors, representatives, or agents; or (d) use of the Platform or Services in violation of these Builder Terms or applicable law.
Indemnification
14.1 By Builder. Builder shall and hereby does indemnify and agrees to pay, defend, and hold harmless Company and its Affiliates and each of their respective officers, directors, shareholders, employees and independent contractors and their successors and assigns for, from, and against any loss, liability, claim demand, cost, or expense (including attorneys’ fees) arising out of or pertaining in any manner to use of the Services by Builder, or otherwise arising out of: (a) the relationship between Builder and any of its employees, independent contractors, or customers; (b) any information provided by Builder, including Builder Materials; and (c) Builder’s violation of an Order, these Builder Terms, or applicable law.
14.2 By Company. By Company. Company shall and hereby does indemnify and agrees to pay, defend, and hold harmless Builder and its Affiliates and each of their respective officers, directors, shareholders, employees and independent contractors and their successors and assigns for, from, and against any loss, liability, claim demand, cost, or expense (including attorneys’ fees) arising out of: (a) to a third party claim that Company’s Intellectual Property Rights in and to the Services, Resultant Data, Company Materials, or Third-Party Materials infringe or misappropriate any third-party Intellectual Property Rights; (b) Company’s provision of its products or services to third-party home owners; or (c) Company’s violation of an Order, these Builder Terms, or applicable law. Notwithstanding the foregoing and in addition to the events stated in Section 13, in no event will Company have any obligations or liability under this Section 14.2 arising from: (i) use of the Platform or Services in a modified form or in combination with materials not furnished by Company, and (ii) any information provided by Builder, including the Builder Materials.
14.3 Possible Infringement. If Company reasonably believes the Platform or Services infringe a third party’s Intellectual Property Rights, then Company will: (a) provide a non-infringing functionally equivalent replacement; or (b) modify the Platform or Services so that they are no longer infringing. If Company does not believe the foregoing options are commercially reasonable, then Company may Suspend or terminate Builder’s use of impacted portions of the Platform or Services.
14.4 General. The Party seeking indemnification will promptly notify the other Party of the claim and cooperate with the other Party in defending the claim. The indemnifying Party has full control and authority over the defense, except that: (a) any settlement requiring the Party seeking indemnification to admit liability or to pay any money will require that Party’s prior written consent, such consent not to be unreasonably withheld or delayed; and (b) the other Party may join in the defense with its own counsel at its own expense. THE INDEMNITIES, RIGHTS AND REMEDIES IN THIS SECTION 14 ARE THE ONLY REMEDIES UNDER THESE BUILDER TERMS FOR VIOLATION OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
Limitation of Liability
15.1 Limitation of Liability. Builder acknowledges and agrees that, in light of the many potential tasks for which the Platform and Services may be used and the diverse environments in which the Platform and Services may be used, use of the Platform and Services remains the sole responsibility and liability of Builder. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY LOST PROFITS OR REVENUES, EQUIPMENT DOWN-TIME, LOSS OF DATA OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15.2 Limitation on Amount of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THESE BUILDER TERMS, COMPANY’S LIABILITIES UNDER THESE BUILDER TERMS, WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY OR OTHERWISE WILL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNTS ACTUALLY PAID BY BUILDER TO COMPANY IN THE SIX (6) MONTHS PRIOR TO THE DATE OF THE ACTION GIVING RISE TO THE LIABILITY.
15.3 Exceptions to Limitations. These limitations of liability do not apply to breaches of confidentiality obligations or violations of a Party’s Intellectual Property Rights by the other Party.
Miscellaneous
16.1. Notices. All notices provided pursuant to these Builder Terms will be in writing and deemed effective upon delivery. Notices will be deemed to have been delivered if addressed to the Chief Executive Officer of recipient at the address set forth above or received at an email address provided by the recipient on: (a) the date of personal delivery or confirmed email transmission; (b) five days after deposit in the United States mail, first class, postage prepaid, certified and return receipt requested; or (c) one day after deposit with a reputable national overnight courier service. A Party may designate a different address or email address for the delivery of notices upon ten (10) days’ prior written notice to the other Party.
16.2. Assignment. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party, not to be unreasonably withheld, except: (a) to an Affiliate; or (b) in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets not involving a direct competitor of the other Party. In the event of a permissible assignment, the assignee must agree in writing to be bound by the terms of these Builder Terms and the assigning Party must notify promptly the other Party of the assignment. Any other attempts to assign these Builder Terms are null and void. Subject to the foregoing, these Builder Terms will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
16.3. Force Majeure. Neither Party will be liable for inadequate performance to the extent caused by a Force Majeure Event, provided that the affected Party resumes full performance as promptly as possible following the Force Majeure Event.
16.4. No Waiver. Any waiver or failure to enforce any provision of these Builder Terms on one occasion will not be deemed a waiver of any other provision or of that provision on any other occasion.
16.5. Severability. In the event that any provision of these Builder Terms is deemed unlawful or otherwise unenforceable by any tribunal of competent jurisdiction, that provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Each and every provision or restriction set forth in these Builder Terms is independent and severable from the others, and no provision or restriction will be rendered unenforceable by virtue of the fact that, for any reason, any other provision or restriction may be unenforceable in whole or in part.
16.6. No Agency. The Parties are independent contractors, and these Builder Terms do not create an agency, partnership or joint venture.
16.7. No Third-Party Beneficiaries. Except as expressly set forth in the indemnification provisions of Section 14 above, there are no third-party beneficiaries to these Builder Terms.
16.8. Equitable Relief. Nothing in these Builder Terms will limit either Party’s ability to seek equitable relief. Builder acknowledges and agrees that the breach or threatened breach of Sections 7, 8, 9 and 16.2 will cause immediate and irreparable harm to Company for which monetary damages would be an inadequate remedy and, in the event of such a breach or threatened breach, Company will have, in addition to any other rights it may have, the right to seek equitable relief, including injunctive relief, without an obligation to prove actual damages, post bond or other security.
16.9. Governing Law and Disputes. These Builder Terms, and any disputes arising out of or related to an Order these Builder Terms, will be governed exclusively by the laws of the State of Arizona, without regard to conflicts of laws principles or the United Nations Convention on the International Sale of Goods. Except for the rights granted in Section 16.8, any and all disputes of any kind or nature arising out of or related to these Builder Terms will be decided by arbitration conducted under the commercial arbitration rules of the American Arbitration Association. The arbitration will take place in Phoenix, Arizona. The Parties will act in good faith to select a single arbitrator. If the Parties do not agree on an arbitrator within twenty (20) days of a Party initiating arbitration, then the American Arbitration Association will select the arbitrator. The decision of the arbitrator will be final and binding, and not subject to appeal for any reason. The arbitrator will award attorneys’ fees, costs, and all costs and fees of the American Arbitration Association to the prevailing Party in the arbitration as determined by the arbitrator. The arbitration award or other orders can be confirmed and/or enforced through the courts in Maricopa County, Arizona. THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, AND WAIVE ALL OBJECTIONS TO FORUM IN, THE COURTS IN MARICOPA COUNTY, ARIZONA.
16.10. Waiver of Jury Trial. Each Party hereby waives any right to a jury trial in connection with any action or litigation arising out of or related to an Order or these Builder Terms.
16.11. Interpretation. The titles of sections and subsections contained in these Builder Terms are for convenience only. They form no part of these Builder Terms and they are not to be used in the construction or interpretation of these Builder Terms. Any and all uses of the word “including” in these Builder Terms mean “including without limitation.”
16.12. Survival. Sections 3.6, 4.1, 7, 8.1, 8.3, 9, 10, 12, 13, 14, 15, and 16 survive the expiration and termination of these Builder Terms.
16.13. Entire Agreement. These Builder Terms, any Orders and all Exhibits and all documents referenced herein and therein, and hereby incorporated by this reference, are the Parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject.
Exhibit A: Definitions
“Affiliate” means any entity directly or indirectly controlling, controlled by or under common control with the subject entity. For purposes of this definition, the terms “controlling”, “controlled by” or “under common control with” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of the subject entity, whether through the ownership of voting securities, by contract or otherwise, or the power to elect at least 50% of the directors, managers, general partner, or persons exercising similar authority with respect to the subject entity.
“Builder Home” means one of Builder’s new-build homes designated to receive the Services under an Order.
“Builder Materials” means the documents, materials, and other content provided to Company by Builder in connection with an Order. For the avoidance of doubt, Builder Materials do not include Data, Resultant Data or any other content derived from Company's monitoring of Builder's access to or use of the Services.
“Confidential Information” means information disclosed by a Party to the other Party that is marked as confidential or a reasonable person would consider confidential under the circumstances, including, without limitation, all non-public information related to the Platform, Services, and Company Materials.
“Company Materials” means the Platform and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Company or any subcontractor in connection with the Platform or otherwise comprise or relate to the Platform. For the avoidance of doubt, Company Materials include Data, Resultant Data and any other content derived from Company's monitoring of Builder's access to or use of the Services.
“Data” means all data and information provided or submitted by Builder to the Platform; provided, however, Data does not include PII Information.
“Emergency Security Issue” means: (a) a use of the Services in violation of these Builder Terms; (b) a use of the Services in a manner which could disrupt (i) the Platform, (ii) other users’ use of the Platform, or (iii) the network or servers of Company or its licensors that are used to provide the Services; or (c) unauthorized third-party access to the Services.
“Fees” means the amounts owed by Builder to Company for the Services set forth in Section 4.1.
“Force Majeure Event” means the existence of a condition that is beyond a Party’s reasonable control, for example, natural disaster, pandemic, act of war or terrorism, riot, labor condition, governmental action and Internet disturbance.
“Intellectual Property Rights” means current and future worldwide rights under patents and patent applications, and all patents issuing from the patent applications, together with any and all divisionals, continuations or continuations-in-part, substitutions, extensions, registrations, confirmations, reissues, re-examinations, and renewals, know-how, inventions, copyrights, trade secrets, trademarks, trade dress, moral rights, other similar proprietary rights and all foreign counterparts of the foregoing.
“PII” means any data or information which can be used to identify a specific individual.
“Platform” means the online home management platform developed by Company and any applications, features, functionality, or services provided therein.
“Resultant Data” means information, data and other content that is derived by or through the Services from processing Data and is sufficiently different from such Data that such Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further processing of such information, data or content.
“Services” means any services provided by Company pursuant to one or more Orders, including, without limitation: (i) Company’s provision of the Platform to Builder and owners of the Builder Homes, (ii) limited training and technical support, (iii) customizable workflow for warranty requests, (iv) modified maintenance plans, (iv) registering Builder Homes and providing or installing Company “HomeCodes,” (v) onboarding owners of the Builder Homes, and (vi) managing and processing information submitted within the Platform.
“Order” means an order for Services entered into between Builder and Company which is incorporated into and made a part of these Builder Terms, setting forth the details of Builder’s order for Services and that may contain the details of the following terms: (a) Fees; (b) number of users; (c) technical support provided by Company; and (d) any other additional terms governing the Services. The foregoing shall not be deemed final and an “Order” for purposes of these Builder Terms unless and until Company has indicated its acceptance as evidenced by issuing a confirmation or providing the applicable Services.
“Suspend” and “Suspension” means the immediate disabling of access to the Services, to prevent further use of the Services.
“Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to Company.
“Third-Party Request” means a request from a third party for records relating to a use of the Services. Third-Party Requests can be a lawful search warrant, court order, subpoena, other valid legal order or written consent from the Builder permitting the disclosure.