Terms of Service
Acceptance of Terms of Service
Binding Contract. BY REGISTERING FOR AND/OR USING THE SERVICES, AS THE SAME MAY BE MODIFIED FROM TIME TO TIME, IN ANY MANNER, INCLUDING, BUT NOT LIMITED TO, VISITING OR BROWSING THE SITE AND/OR THE APPLICATION, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE AND ALL OTHER TERMS AND CONDITIONS, GUIDELINES, OPERATING RULES, POLICIES, AND PROCEDURES THAT MAY BE PUBLISHED FROM TIME TO TIME THROUGH THE SERVICES BY US OR OTHERWISE PROVIDED TO YOU IN CONNECTION WITH THE SERVICES, EACH OF WHICH IS INCORPORATED BY REFERENCE INTO THESE TERMS OF SERVICE. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A COMPANY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO DO SO.
Applicability. These Terms of Service apply to all Users (as that term is defined below) of the Services, including, without limitation, Users who seek information on homes for sale or seek to post information regarding homes for sale, and Users who are contributors of comments, reviews, photos, video, content, information, and other materials or services, registered or otherwise.
Eligibility Requirements. You represent and warrant that you are at least eighteen (18) years of age and that you have the right, authority, and capacity to enter into, perform your obligations under, and abide by these Terms of Service. If you are under the age of 18, you may not, under any circumstances or for any reason, use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity or change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules, and regulations applicable to you. The right to access the Services is revoked where use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule, or regulation. Further, unless otherwise mutually agreed in writing, the Services are offered only for your use and not for the use or benefit of any third party; and in any event, each person receiving the benefit of the Services must agree to and abide by these Terms of Service as a condition to our obligations.
International Users. The Services are controlled and offered by us from our facilities in the United States of America. We make no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are responsible for compliance with local law. By providing information in connection with the Services, you consent to the transfer of your information to, and storage of your information in, the United States, the laws of which may not be as stringent as the laws of the country in which you reside.
What We Do
Our Services. The Services include an online platform on which people or entities that wish (and have the right) to sell their property (“Sellers”) may claim and curate property profiles (“Profiles”), and people who wish to buy (“Buyers”) such properties may search for and obtain information regarding such properties, and both Sellers and Buyers may communicate directly and complete transactions with respect to such properties. Buyers, Sellers, and other users of the Services are hereinafter collectively referred to as “Users”. We do not own, operate, or have any control over the properties featured in Profiles. We do not have any control over the Profiles after they are claimed by Sellers, except as otherwise provided in these Terms of Service. The Services may only be used for transactions in residential real estate and may not be used for transactions in commercial real estate.
Please Be Smart. You understand and agree that we are not a party to any agreement you enter into with any other User, whether or not that agreement is provided through the Services, and you acknowledge that you are solely responsible for your interactions, correspondence, and transactions with other Users of the Services, whether on the Site, the Application, in person, or otherwise. Please exercise good judgment and common sense; conduct all necessary, appropriate, and prudent inquiries, investigations, research, and due diligence; and take all necessary precautions when interacting with others or publicly posting Content (as that term is defined below). For purposes of these Terms of Service, the term “Content” includes, without limitation, Profiles, information, data, text, inquiries, photographs, videos, virtual tours, audio clips, written posts, reviews, feedback, comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services, as well as, all User Content (as that term is defined below).
Advertising. Some Services may be supported by advertising revenue, and you hereby agree that we may display advertising, promotions, featured or sponsored Profiles, and the like in connection with the Services on, around, and in connection with your User Content.
Dual Agency. Homeshake will exclusively act as a “dual agent”. Dual agency occurs when the same brokerage represents both the seller and the buyer in a real estate transaction. When a User submits an offer, the User, along with the User receiving the offer, become clients, a dual agency relationship is created between the two Users and Homeshake, and all Homeshake agents are appointed to represent those Users, except where otherwise provided in Homeshake’s Company Policy for Brokerage. As a dual agent, Homeshake will maintain a neutral position between the buyer and seller and may not advocate the position of one client over the best interests of the other client, or disclose any personal or confidential information to the other party without written consent. Because Homeshake will exclusively act as a dual agent, when required by law, you will be asked to consent to that arrangement in writing. If you do not agree to Homeshake acting as a dual agent, you will not be permitted to use parts of the Services. If you are represented by an agent or brokerage not affiliated with Homeshake, you will not be permitted to use parts of the Services. Homeshake does not cooperate with and does not offer compensation to other agents or brokerages not affiliated with Homeshake.
KTD, LLC d/b/a Homeshake: Ohio License No. REC.2020000393
Nicholas J. Rabin, Principal Broker: Ohio License No. BRKP.2010002243
Consumer Guide to Agency Relationships
Participation in Transactions.
Users must create a Homeshake account to participate in the purchase or sale of property using the Services (a “Transaction”). Prior to beginning a Transaction, Buyers and Sellers are encouraged to review the Homeshake purchase and sale agreement, any applicable addenda, any disclosure documentation, and all other transaction documents (collectively, “Homeshake Purchase Documents”), which can be accessed on the Services. All offers must be based on the terms and conditions contained in the Homeshake Purchase Documents, which are non-negotiable, except to the extent Buyers and Sellers may populate certain blanks in the applicable document via Homeshake’s letter of intent feature.
It is each Buyer’s responsibility to conduct its own due diligence and investigate all matters relating to each property that the Buyer is interested in purchasing, including, without limitation, legal matters, physical condition and attributes, environmental matters, economic matters, encumbrances, and all other aspects. Property information on the Services has been gathered from a variety of sources, but has not been independently verified by Homeshake. Users may coordinate tours and inspections of properties using the Services. In some circumstances, Sellers may be unable to provide physical access to a property for tours and inspections, and Buyers must submit offers accordingly at their own risk. All offers should be based solely on a User’s independent due diligence and any information contained in the Homeshake Purchase Documents. Users are responsible for all liability, damages, and costs directly or indirectly arising from inspections, visits, or investigations of a property and Users agree to maintain all applicable policies of insurance insuring over such liability, damages, and costs.
Users are encouraged to consult with an attorney, contractor, financial advisor, tax advisor, and other relevant professionals prior to, during the course of, and after a Transaction.
Account. To utilize certain Services, you will be required to register for an account (an “Account”). You must provide accurate and complete information and keep your Account information updated. You shall not select or use as a username a name (i) of another person with the intent to impersonate that person; (ii) subject to any rights of a person other than you without appropriate authorization; or (iii) that is otherwise offensive, vulgar, or obscene. You are solely responsible for the activity that occurs on your Account and for keeping your Account password secure. You may never use another person’s user account or registration information for the Services without permission. You must notify us immediately of any change in your eligibility to use the Services, any breach of security, or any unauthorized use of your Account. You should never publish, distribute or post login information for your Account. You shall have the ability to delete your Account either directly or through a request made to us.
License. Subject to these Terms of Service, we grant each User of the Services a non-exclusive, non-sublicensable, and non-transferable license to access and use the Services and access, download, and display locally, all Content therein for your personal, non-commercial purposes. Any reproduction, modification, distribution, storage, or other use of the Services, or any Content therein for any other purpose, is expressly prohibited without prior written permission from us. You shall not sell, license, rent, share, publish, or otherwise use or exploit any Content outside the Services for commercial use, in connection with the provision of services to a third party, or in any way that violates any third party right. Without limiting the foregoing, no real estate broker, salesperson, agent, or similar state licensed real estate professional may market or make commercial use of the Content in any way, including, without limitation, advertising Profiles, copying the Content for commercial use, or contacting Users of the Services.
Availability of Content. We do not guarantee that any Content will be made available through the Services. We reserve the right, but not the obligation, to (i) remove, edit, or modify any Content in our sole discretion, at any time, without notice to you, and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have violated these Terms of Service), or for no reason at all, and (ii) remove or block any Content from the Services.
Rules of Conduct
No Prohibited Use. As a condition of use, you shall not use the Services for any purpose that is prohibited by these Terms of Service. You are responsible for all of your activity in connection with the Services.
Don't Abuse the Service. You shall not (i) manipulate the description of Content on any Profile without proper authorization; (ii) interfere with other Users’ Profiles; (iii) recruit, solicit, or encourage any other User to use third party services or websites that are competitive to ours; (iv) use the Services to find a Profile, Buyer, or Seller and then complete a transaction with that Buyer or Seller or relative to that Profile independent of the Services; (v) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure; (vi) interfere or attempt to interfere with the proper working of the Services or any activities conducted in connection with the Services; (vii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (viii) run any form of auto-responder or “spam” on the Services; (ix) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Services; (x) harvest or scrape any Content from the Services; (xi) take any action in violation of our guidelines and policies; (xii) decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services, except to the limited extent that applicable laws specifically prohibit such restriction; (xiii) modify, translate, or otherwise create derivative works of any part of the Services; or (xiv) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national, and international laws and regulations.
Our Additional Rights. We also reserve the right, without any obligation, to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request; (ii) enforce these Terms of Service, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security or technical issues; (iv) respond to User support requests; (v) fulfill your requests for services; or (vi) protect the rights, property or safety of us, Users, and the public. You acknowledge and agree that we may, but have no obligation to, conduct background checks, reference checks, and credit checks on any Users of the Services.
Equal Housing Opportunity. We are pledged to the letter and spirit of United States policy for the achievement of equal housing opportunity. We encourage and support an affirmative advertising and marketing program in which there are no barriers to obtaining housing because of race, color, religion, sex, handicap, familial status, or national origin. We endeavor to treat all parties fairly and honestly and to support equal housing opportunities. We encourage Users to do so as well.
It is illegal, pursuant to the Ohio Fair Housing Law, Division (H) of Section 4112.02 of the Revised Code and the Federal Fair Housing Law, 42 U.S.C.A. 3601, as amended, to refuse to sell, transfer, assign, rent, lease, sublease, or finance housing accommodations, refuse to negotiate for the sale or rental of housing accommodations, or otherwise deny or make unavailable housing accommodations because of race, color, religion, sex, familial status as defined in Section 4112.01 of the Revised Code, ancestry, military status as defined in that section, disability as defined in that section, or national origin or to so discriminate in advertising the sale or rental of housing, in the financing of housing, or in the provision of real estate brokerage services. It is also illegal, for profit, to induce or attempt to induce a person to sell or rent a dwelling by representations regarding the entry into the neighborhood of a person or persons belonging to one of the protected classes.
User Content. All Profiles and Content added, created, uploaded, submitted, distributed, or posted in connection with the Services or otherwise provided by Users (collectively “User Content”), whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules, and regulations.
The following standards apply to any and all User Content. You must ensure that all User Content posted by you complies with all applicable laws and regulations. Without limiting the foregoing, you must not post User Content that: infringes any patent, trademark, trade secret, copyright, right of publicity, or other right of any other person or entity or violates any law or contractual duty; you know is false, misleading, untruthful, or inaccurate; is unlawful, threatening, discriminatory, hateful, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, or profane; contains or depicts nudity or sexual activity; promotes bigotry, racism, hatred, or harm against any individual or group; or is otherwise inappropriate as determined by us in our sole discretion; constitutes unauthorized or unsolicited advertising, junk, or bulk email (“spamming”); contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit, or interfere with the proper function of any software, hardware, or telecommunications equipment, or to damage or obtain unauthorized access to any system, data, password, or other information of ours or of any third party; impersonates, bullies, stalks, or intimidates any person or entity, including any of our employees or representatives, or falsifies or misrepresents yourself or your personal information; or includes any confidential information, violates the rights (including, without limitation, the rights of publicity and privacy and rights under a contract) of others, or otherwise contains any material that could give rise to any civil or criminal liability under applicable laws or regulations, or that otherwise may be in conflict with these Terms of Service.
License Grant. By submitting User Content through the Services, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable, and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Content in connection with the Services and our (and our successors’ and assigns’) businesses, including, without limitation, for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after your termination of your Account or the Services. You also hereby do and shall grant each User of the Services a non-exclusive, perpetual license to access your User Content through the Services. For clarity, the foregoing license granted to us and our Users does not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including, without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
No right, title, or interest in or to the Services or any Content provided in connection with the Services is transferred or otherwise granted to you under these Terms of Service. All right, title, or interest in or to the Services and the Content provided in connection with the Services (other than user contributions posted by you) are reserved by us. Any use of the Services not expressly permitted by these Terms of Service is a breach of these Terms of Service and may violate copyright, trademark, or other laws.
The names, logos, product and service names, designs, slogans, and other trademarks associated with the Services are ours and those of our licensors. You must not use any of the foregoing without our prior written permission. All other names, logos, product and service names, designs, slogans, and other trademarks used in connection with the Services are the trademarks of their respective owners.
DMCA Copyright Policy
We have adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act. The address of the Designated Agent to Receive Notification of Claimed Infringement ("Designated Agent") is email@example.com (preferred) or at P.O. Box 8342, Attn: Legal Department, West Chester, Ohio 45069, Telephone (513) 453-6144.
Procedure for Reporting Copyright Infringement:
If you believe that material or content residing on or accessible through our Site or Services infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
- Identification of the copyrighted work(s) or material(s) being infringed;
- Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Homeshake is capable of finding and verifying its existence;
- Contact information about the notifier including address, telephone number and, if available, email address;
- A statement that the notifier has a good faith belief that the material is not authorized by the copyright owner, its agent, or the law; and
- A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
Generally. You may be required to pay fees to access certain features of the Services. All fees are in U.S. dollars and are non-refundable. If we change the fees for all or part of the Services, including by adding fees or charges, we may provide you advance notice of those changes. If you do not accept the changes, we may discontinue providing the applicable part of the Services to you. Our authorized third-party payment processor will charge the payment method you specified at the time of purchase. You authorize us to charge all fees as described in these Terms of Services for the Services you select to that payment method. If you pay any fees with a credit card, we may seek pre-authorization of your credit card account before your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
Subscriptions. The Services may include features that allow for automatically recurring payments for periodic charges (“Subscription Service”). If you decide to activate a Subscription Service, you authorize us to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. The subscription will continue unless and until you cancel your subscription, or we terminate it. You must cancel your subscription before it renews in order to avoid billing of the next periodic subscription fee to your account. We will bill the periodic subscription fee to the payment method you provide to us during registration (or to a different payment method if you change your payment information). We may change the subscription fee for any subsequent subscription period but may provide you advance notice of any increase before it applies. You may cancel a Subscription Service by contacting us at: firstname.lastname@example.org.
Third Party Services
The Site and Application may permit you to link to other websites, services, or resources on the Internet, and other websites, services, or resources may contain links to the Services. When you access third party resources on the Internet, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness, or any other aspect of such websites or resources. The inclusion of any such link does not imply our endorsement or any association between us and the third parties. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods, or services available on or through any such website or resource.
Affiliated Business Arrangements
Homeshake, directly or through affiliated entities, has a relationship with other service providers, such as a title company, in that Homeshake or its affiliate owns a percentage of that service provider. As part of the Services, you may be referred to one of these affiliated service providers. Because of Homeshake’s relationship with these affiliated service providers, this referral may provide Homeshake with a financial benefit. You are not required to use these affiliated service providers and are free to obtain quotes from competing service providers to ensure you are receiving quality services at competitive rates. As part of the Services, when required by law, you will be given detailed disclosures about these affiliated business arrangements, including a schedule of fees, and asked to acknowledge these disclosures.
We may terminate your access to all or any part of the Services at any time, with or without cause, with or without notice, and effective immediately, which may result in the forfeiture and destruction of all information associated with your Account and Profile. If you wish to terminate your Account, you may do so by contacting us at: email@example.com. Any fees paid hereunder are non-refundable. If you terminate your Account, you remain obligated to pay all outstanding fees, if any, incurred prior to termination relating to your use of the Services. We will not be liable whatsoever for any change to the Services or any suspension or termination of your access to or use of the Services. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability, and arbitration.
No Fiduciary Duty. Except as otherwise provided in these Terms of Service or unless we have signed a state-mandated written agreement with you that states otherwise, we have no special relationship with or fiduciary duty to you. You acknowledge that we have no duty to take any action regarding: which Users gain access to the Services; what Content you access via the Services; or how you may interpret or use the Content.
No Responsibility. You acknowledge that all Content, including User Content, accessed by you using the Services is at your own risk and that you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not assume any responsibility or liability or make any warranties or guarantees that any Content you access on or through the Services is or will continue to be accurate, safe, or legal. All Content and information is subject to errors, omissions, changes in price, prior sale, or withdrawal without notice. No representation, warranty, covenant, or guarantee is made as to the accuracy of any description. All measurements and square footages are approximate and may not be relied upon by you. All information should be confirmed by you.
Additional Disclaimers. The Services and Content are provided “as is,” “as available,” and without warranty of any kind, express or implied, including, but not limited to, the implied warranties of title, non-infringement, merchantability and fitness for a particular purpose, and any warranties implied by any course of performance or usage of trade, all of which are expressly disclaimed. We, and our directors, managers, members, employees, agents, suppliers, partners, and content providers do not warrant that (i) the Services will be secure or available at any particular time or location; (ii) any defects or errors will be corrected; (iii) any content or software available at or through the Services is free of viruses or other harmful components; or (iv) the results of using the Services will meet your requirements. Your use of the Services is solely at your own risk.
We make no representations concerning any Content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, or legality of material or Content contained in or accessed through the Services or for any actions you may take as a result of having been exposed to the Services. If any form or other written agreements are provided or otherwise obtained through the Services, including the Homeshake Purchase Documents, we do not warrant that such terms will sufficiently cover the relationship you seek to develop by entering into such terms or written agreements, nor do we represent, warrant, or guarantee that such terms or written agreements are legal, binding, adequate, complete or in any way appropriate for your intended purposes. It is your responsibility to consult with independent legal counsel prior to entering into any contract or agreement with a third party.
We do not warrant, endorse, guarantee, or assume responsibility for any profile, property, contract, content, or service advertised or offered by a third party through the Services or any hyperlinked site or featured in any banner or other advertising, and we will not be a party to or in any way be responsible for monitoring any transaction between you and third party providers of profile information, properties, content, or services. You acknowledge and agree that we (i) do not decide what price is appropriate for any property; (ii) do not guarantee the condition of any properties or the performance, adequacy, or completeness of inspections, services, products, or repairs; (iii) do not have any obligation to conduct any inspections whatsoever, including, without limitation, of common areas, offsite areas, or other aspects of the properties; (iv) have no responsibility for identifying defects with the properties or inspecting public records or permits regarding title or use of the properties; (v) are not responsible for verifying square footage, representations of others, or information contained in any property reports, comp reports, third party valuations, Profiles, or promotional materials; and (vi) are not responsible for providing legal or tax advice regarding any transactions. Profiles and related information provided from third parties are provided solely as a convenience, and we have not reviewed or confirmed any information originating from sources other than Homeshake.
Indemnification. You shall defend, indemnify, and hold harmless us, our affiliates, and each of our and their respective directors, managers, members, employees, agents, subsidiaries, affiliates, successors, predecessors, assigns, heirs, service providers, insurers, investors, attorneys, advisors, licensors, and suppliers from all liabilities, claims, and expenses, including reasonable attorney fees, that arise from or relate to (i) your use or misuse of, or access to, the Services, Profiles, Content, or otherwise from your User Content; (ii) violation of these Terms of Service; (iii) breach of any contract, or other agreement you enter into; (iv) personal injury, property damage, or other claims or damages relating to property defects, conditions, legality, or suitability; (v) your interactions or transactions with any other User, including participating in tours or inspections of properties as part of a Transaction or the Services generally; (vi) infringement by you, or any third party using your Account or identity in connection with the Services, of any intellectual property or other right of any person or entity; and (vii) our holding or disbursement of any earnest money. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
Homeshake Attorneys. During the course of your use of the Services, you may correspond with attorneys who are employed by Homeshake. These attorneys are third-party neutral attorneys and may correspond with both Buyers and Sellers regarding a Transaction. They do not represent you or any other User of the Services. You hereby waive any conflict of interest that may arise when a Homeshake attorney is involved in a Transaction. You acknowledge that your use of the Services and correspondence with Homeshake attorneys does not create an attorney-client relationship between you and any Homeshake attorney. Users are encouraged to consult with their own attorney prior to, during the course of, and after a Transaction.
Homeshake is not a law firm. Any correspondence between you and a Homeshake attorney may not be protected as a privileged communication under the attorney-client privilege or work product doctrines. Unless you are represented by your own attorney, you represent yourself in any legal matter you undertake through the Services.
Tours. During the course of your use of the Services, you may have the ability to tour a property on your own, to participate in a tour hosted by another User, or to participate in a tour hosted by a Homeshake representative. Prior to scheduling any tour, you will be required to provide us with a valid credit card. In the event Homeshake or another User participating in the tour suffers any damage to person or property as a result of your acts or omissions while taking a tour, you authorize Homeshake to charge your credit card on file with Homeshake for the amount of the damages. You hereby assume all risks related to touring a property and further waive and release Homeshake from any claims you may have arising out of any tour.
Limitation of Liability
LIABILITY LIMITS. IN NO EVENT SHALL WE, NOR OUR AFFILIATES AND EACH OF OUR AND THEIR RESPECTIVE EMPLOYEES, CONTRACTORS, DIRECTORS, MANAGERS, MEMBERS, SUPPLIERS, LICENSORS, AND REPRESENTATIVES, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS, ACCOMMODATIONS, RIGHTS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), OR FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE LESSER OF (A) FEES PAID TO US FOR THE PARTICULAR SERVICES DURING THE IMMEDIATELY PREVIOUS THREE (3) MONTH PERIOD OR (B) $100.00.
ACKNOWLEDGEMENT. YOU SPECIFICALLY ACKNOWLEDGE THAT WE SHALL NOT BE LIABLE FOR (I) USER CONTENT, (II) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, OR (III) THE CONDITION, LEGALITY, OR SUITABILITY OF ANY PROPERTY, AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS SOLELY AND ENTIRELY WITH YOU.
Releases. You shall and hereby do release us from all liability for you having acquired or not acquired housing through the Services. You hereby release us, our affiliates, and each of our and their directors, managers, officers, members, employees, agents, subsidiaries, affiliates, successors, predecessors, assigns, heirs, service providers, insurers, investors, attorneys, advisors, licensors, and suppliers from all claims, demands, and damages of every kind and nature, known and unknown, direct and indirect, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to content accessed through the Services, or any interactions with others arising out of or related thereto, and you expressly waive the provisions of any local law, which limits the effect of a general release with respect to unknown claims.
DISPUTES. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING, WITHOUT LIMITATION, DISPUTES RELATED TO THESE TERMS OF SERVICE, YOUR USE OF THE SERVICES, AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED IN THE STATE AND FEDERAL COURTS SITTING IN HAMILTON COUNTY, OHIO, YOU AGREE TO SUBMIT TO THE PERSONAL AND EXLUSIVE JURISDICTION AND VENUE OF SUCH COURTS, AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY. THESE TERMS OF SERVICE ARE GOVERNED BY THE LAWS OF THE STATE OF OHIO, WITHOUT GIVING EFFECT TO ITS CONFLICT OF LAWS PROVISIONS. YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES OR US MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
NO CLASS ACTION. NEITHER YOU NOR WE WILL PARTICIPATE IN A CLASS ACTION OR CLASS-WIDE ARBITRATION FOR ANY CLAIMS COVERED BY THESE TERMS OF SERVICE. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s Account, if we are a party to such proceeding.
User Disputes. We reserve the right, without any obligation, to intervene in or monitor disputes between our Users. You agree to cooperate with and assist us in good faith, and to provide us with such information and take such actions as we may reasonably request, in connection with any disputes involving you. Although we may moderate content or disputes in our discretion, we have no authority to legally bind third parties or force them to resolve complaints or disputes.
Export Control. By using the Services, you represent and warrant that (i) neither you nor any Profile claimed by you, if any, is located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country, and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture, or production of missiles or nuclear, chemical, or biological weapons. You may not use, export, re-export, import, or transfer the Services except as authorized by United States law, the laws of the jurisdiction in which you obtained the Application, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries; (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List; or (c) into any country or to any person or entity on any similar lists maintained in any applicable jurisdiction.
Feedback. Your feedback, comments and suggestions for improvements to the Services and our business generally (“Feedback”) are welcome. You may submit Feedback by emailing firstname.lastname@example.org. You acknowledge and agree that all Feedback is and shall be our sole and exclusive property, and you shall and hereby do assign to us all right, title, and interest in and to all Feedback, including, without limitation, all worldwide patent, copyright, trade secret, moral, and other proprietary or intellectual property rights therein, notwithstanding anything else. You will execute documents and take such further acts as we may reasonably request to effectuate the foregoing ownership and rights.
Application Terms. If we make the Services available as an application for mobile devices (“Application”), then subject to your compliance with these Terms of Service, we grant you a limited, non-exclusive, non-transferable license to download and install a copy of the Application on a single mobile device or computer that you own or control and run such copy of the Application solely for your own personal use. We reserve all rights in the Application not expressly granted to you by these Terms of Service. We do not warrant that the Application will be compatible with your mobile device. You may use mobile data in connection with the Application and may incur additional charges from your wireless or other third party provider for using the Application. You agree that you are solely responsible for any applicable charges. We may update the Application and may automatically electronically update the version of the Application that you have installed on a mobile device. You consent to all automatic upgrades, and understand that these Terms of Service will apply to all updated versions of the Application.
Additional Purchase and Sale Agreement Provisions
The following provisions are incorporated into any purchase and sale agreement (“Purchase Agreement”) entered into between a Seller and a Buyer using the Services and the Homeshake Purchase Documents.
Earnest Money. Homeshake shall hold the Earnest Money in escrow in accordance with the terms and provisions of these Terms of Service and the relevant Purchase Agreement. Buyer shall pay the Earnest Money to Homeshake by credit card in accordance with the Purchase Agreement. Homeshake shall deliver written acknowledgment to Seller and Buyer that the Earnest Money has been received by and is being held by Homeshake pursuant to these Terms of Service and the relevant Purchase Agreement. Seller and Buyer hereby authorize Homeshake to distribute the Earnest Money in accordance with the Purchase Agreement without further action or instruction from Seller and Buyer. Seller and Buyer agree that Homeshake may rely upon and needs to look no further than the terms of the Purchase Agreement when distributing the Earnest Money.
If Homeshake is in doubt as to its duties or liabilities under these Terms of Service or the relevant Purchase Agreement or Homeshake has been holding the Earnest Money for six (6) months or longer, Homeshake may, in its sole discretion, continue to hold the Earnest Money until Seller and Buyer mutually agree to disbursement thereof or until a judgment of a court of competent jurisdiction determines the rights of Seller and Buyer to the Earnest Money, or Homeshake may deposit the Earnest Money with the clerk of a court of competent jurisdiction, pursuant to interpleader procedure, whereupon, after notifying Seller and Buyer and paying all costs imposed by such clerk as a result of such deposit, all liability on the part of Homeshake shall terminate.
Closing Costs. Seller shall be responsible for any transfer tax or conveyance fee, any cost necessary to remove or discharge any title defect, lien or encumbrance, including recording any release or obtaining any payoff statement, the cost of a title commitment, the cost of a standard owner’s title policy in the amount of the Purchase Price, the cost of drafting and recording the deed, the One Thousand Dollar ($1,000) Homeshake Seller fee, and any miscellaneous costs related to the foregoing (collectively, the “Seller Closing Costs”). Buyer shall be responsible for any costs associated with financing, including but not limited to any appraisal or lender costs, the cost of any lender’s title policy and endorsements to the owner’s title policy, the costs of any inspections and due diligence, including but not limited to any surveys, reports, or studies, the One Thousand Dollar ($1,000) Homeshake Buyer fee, and any miscellaneous costs related to the foregoing (collectively, the “Buyer Closing Costs”). The Buyer Closing Costs and the Seller Closing Costs shall be known collectively as the “Closing Costs”.
Casualty and Eminent Domain. Risk of loss to the Real Estate from fire, other casualty, or eminent domain shall be borne by Seller until Closing. If, prior to Closing, the Real Estate is damaged in an amount in excess of five thousand dollars ($5,000.00) or destroyed by fire or other casualty or proceedings are instituted by any governmental agency for the condemnation or taking by eminent domain of any part of the Real Estate, Buyer shall have the right to terminate the Purchase Agreement and the Earnest Money shall be promptly returned to Buyer.
Commission. Seller and Buyer represent that neither has retained nor is liable for the services of any real estate broker or agent in connection with this transaction, except for Homeshake. Any commissions becoming payable as a result of this transaction shall be paid by the party employing such broker or agent. Seller and Buyer agree to indemnify and hold each other harmless from any and all liability for or expense related to any commission due or alleged to be due to any real estate broker employed by the other in connection with this transaction.
Successors and Assigns. The Purchase Agreement shall be binding upon Seller and Buyer, their heirs, administrators, executors, successors, and assigns.
Entire Agreement and Severability. These Terms of Service, together with any state-mandated disclosure forms and agreements provided separately by us to you, and all additional guidelines, rules, and agreements applicable to the Services or certain features of the Services that we may post on, or link to, the Services, such as rules applicable to a particular product or content available through the Service, are the entire agreement between you and us with respect to the Services and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services.
Severability. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
Force Majeure. We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic, or communications failure or degradation, acts of God, or third party acts or omissions.
Assignment. These Terms of Service are personal to you and are not assignable, transferable, or sublicensable by you, except with our prior written consent. We may assign, transfer, or delegate any of our rights and obligations hereunder without consent.
Agency. Unless otherwise agreed in writing or provided for in these Terms of Service, no agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service, and neither party has any authority of any kind to bind the other in any respect.
Notices. Unless otherwise specified in these Terms of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile; when sent, if transmitted by email; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to us at email@example.com.
No Waiver. Our failure to enforce any part of these Terms of Service shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, we must provide you with written notice of such waiver.
Headings. The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation.
Third Party Rights. These Terms of Service are for the benefit of us and our affiliates, vendors, and suppliers, and our and their officers, directors, managers, members, employees, affiliates, agents, licensors, and suppliers. Each of these entities and individuals shall have the right to assert and enforce these Terms of Service directly against you on its or their behalf.
Contact. If you have any questions, complaints, or claims with respect to the Services, you may contact us at Homeshake, P.O. Box 8342, West Chester, Ohio 45069; firstname.lastname@example.org; Telephone 513-453-6144.
Notices and Restrictions
Copyrights. The Services may contain Content specifically provided by us, our partners, or our Users, and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets, or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services.
E-Sign Disclosure and Consent
This E-sign Disclosure and Consent (“E-sign Consent”) applies to all Records and Communications (as that term is defined below) for the Services provided on the Site and the Application. “Records and Communications” means these Terms of Service between you and Homeshake as well as any modification or amendments hereto; any policies, guidelines, agreements, notices or disclosures; and all other information that we may be required to provide to you in writing by law.
Records and Communications May be Provided in Electronic Form. You agree that we may provide you with Records and Communications in electronic format. Your consent to receive electronic Records and Communications includes, but is not limited to:
- All legal and regulatory disclosures and communications for the Services;
- Notices or disclosures about a change in the terms governing use of the Services;
- Privacy policies and notices; and
- The Homeshake Transaction Documents.
Providing Records and Communications in Electronic Form. All Records and Communications sent to you in electronic form may be provided (i) by email, (ii) by access to a website designated in an email notice from Homeshake to you, or (iii) to the extent permissible by law, by access to a website generally designated in advance for such purpose.
How to Withdraw Consent. You may withdraw your consent to receive Records and Communications in electronic form by contacting us at email@example.com. Once we process your request to withdraw your consent to receive Records and Communications in electronic form, your access and use of the Services will terminate. Any withdrawal of your consent to receive electronic Records and Communications will be effective only after we have a reasonable period of time to process your withdrawal.
How to Update Your Information. You are responsible to provide us with true, accurate and complete email address, contact and other information related to this E-sign Consent and to the Services and to maintain and update promptly any changes in that information. You can update your information by contacting us at firstname.lastname@example.org or through the Site.
Hardware and Software Requirements. In order to access, view and retain electronic Records and Communications that we make available to you, you must have:
- An internet browser that we support, Safari 3.2.x or higher, Firefox 32.x or higher and Chrome 38.x or higher, Mac OSX Safari 5 and higher, Safari for iOS 6 and higher, Chrome for iOS, and Chrome for Android;
- Local, electronic storage capacity to retain Records or Communications or a printer to print them;
- A valid email account and software to access that email account;
- An up-to-date device or devices (e.g., computer, tablet, mobile phone, etc.) suitable for connecting to the Internet and supported by Homeshake;
- An operating system capable of receiving, accessing and displaying Records and Communications from us in electronic form via text-formatted email or access to the Site using a supported browser
Requesting Paper Copies. We will send no paper copy of any Records and Communications to you unless you request it or we otherwise deem it appropriate to do so. You can obtain a paper copy of your electronic Records and Communications by printing it yourself or by requesting that we mail you a paper copy. To request a paper copy of any particular Records and Communication be mailed to you, contact us at email@example.com. Please make sure to state that you are requesting a paper copy of particular Records and Communications. We do not charge a fee for providing a paper copy of Records and Communications.
Records and Communications in Writing. All Records and Communications in electronic or paper format from us to you will be considered “in writing”. You should print or download for your records a copy of this E-sign Consent and any other Records and Communications important to you.
Federal Law. You acknowledge and agree that this E-sign Consent is being provided by you in connection with a transaction affecting interstate commerce that is subject to the federal Electronic Signatures in Global and National Commerce Act, and that you and Homeshake both intend that the Act apply to the fullest extent possible to validate our ability to conduct business with you by electronic means.
Termination/Changes. Homeshake reserves the right, in our sole discretion, to discontinue the provision of electronic Records and Communications, or to terminate or change the terms and conditions on which we provide electronic Records and Communications. We will provide you with notice of any such termination or change as required by law.
Consent. You hereby give your affirmative consent to receive electronic Records and Communications as described in this E-sign Consent. You further agree that your computer or other device satisfies the hardware and software requirements specified above and that you have provided Homeshake with a current email address at which we may send you electronic Records and Communications.
Date Terms of Service Last Modified: March 11, 2020