GENERAL TERMS OF USE
Last Updated: April 13, 2017.
IMPORTANT NOTICE: PLEASE CAREFULLY READ GENERAL TERMS OF USE ("TERMS" OR "AGREEMENT") BEFORE MANUALLY OR ELECTRONICALLY SIGNING, BEFORE CLICKING THE "I AGREE" BUTTON OR BEFORE DOWNLOADING OR USING HOMETRAQ'S ON-DEMAND SERVICE APPLICATION.
IMPORTANT NOTICE: BY USING HOMETRAQ'S ON-DEMAND SERVICE APPLICATION, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE TERMS, THAT YOU HAVE HAD SUFFICIENT TIME TO REVIEW THE TERMS AND THAT YOU AGREE TO BE BOUND BY THE TERMS, AS AMENDED FROM TIME TO TIME.
IMPORTANT NOTICE – AGREEMENT CONTAINS BINDING ARBITRATION CLAUSE
IMPORTANT NOTICE: THESE TERMS CONSTITUTE A LEGALLY BINDING AGREEMENT AND REQUIRE YOU TO RESOLVE ALL DISPUTES WITH HOMETRAQ ON AN INDIVIDUAL BASIS THROUGH FINAL, BINDING, MANDATORY ARBITRATION.
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BINDING AGREEMENT. These General Terms of Use ("Terms") govern your access or use of the
applications, websites, content, products, and On-Demand Service Application ("On-Demand Service Application")
made available by HomeTraq. By accessing or using the On-Demand Service Application, you confirm your
agreement to be bound by these Terms. If you do not agree to these Terms, you may not access or use the
On-Demand Service Application. These Terms expressly supersede prior agreements or arrangements with you.
HomeTraq may immediately terminate these Terms or any access to or use of the On-Demand Service Application
with respect to you, or generally cease offering or deny access to the On-Demand Service Application or
any portion thereof, at any time for any reason.
- SUPPLEMENTAL TERMS. Supplemental terms may apply to certain On-Demand Service Application, such as policies for a particular event, program, activity or promotion, and such supplemental terms will be disclosed to you in separate disclosures or in connection with the applicable service. Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Services. Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable service ordered or requested through the On-Demand Service Application.
- AMENDED TERMS. HomeTraq may amend the Terms from time to time. Amendments will be effective upon HomeTraq's posting of such updated Terms on the On-Demand Service Application. Your continued access or use of the On-Demand Service Application after such posting confirms your consent to be bound by the Terms, as amended. If HomeTraq changes these Terms after the date you first agreed to the Terms (or to any subsequent changes to these Terms), you may reject any such change by providing HomeTraq written notice of such rejection within 30 days of the date such change became effective. This written notice must be provided either (a) by mail or hand delivery to: HomeTraq, 222 South Central Avenue, Suite 1000, St. Louis, Missouri 63105-3592 Attn: HomeTraq Customer Support, or (b) by email from the email address associated with your Account to: support@hometraq.com. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to these Terms. By rejecting changes, you are agreeing that you will continue to be bound by the provisions of these Terms as of the date you first agreed to the Terms (or to any subsequent changes to these Terms).
- INCORPORATED TERMS. HomeTraq's collection and use of personal information in connection with the On-Demand Service Application is described in HomeTraq's Privacy Statements. In addition, the following policies and agreements are incorporated herein by reference: Privacy Policy, E-Sign Disclosure and Consent, Technology Policy and Disclaimer of Warranties, Copyright and Trademark Policy, and License Disclosure.
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ON-DEMAND SERVICE APPLICATION. The On-Demand Service Application comprises of websites,
mobile applications, software, data, resources and tools ("On-Demand Service Application"), which enable
users to request, order, arrange and schedule Real Estate Services and Real Estate Related Services and/or
to purchase Real Estate Services and Real Estate Related Services from third party Service Providers under
agreement with HomeTraq ("Third Party Service Providers"). In certain instances the On-Demand Service
Application may also include an option to receive Real Estate Services and Real Estate Related Services
for an upfront price, subject to acceptance by the respective Third Party Service Providers. Unless otherwise
agreed by HomeTraq in a separate written agreement with you, the On-Demand Service Application is made
available solely for your personal, noncommercial use. YOU ACKNOWLEDGE THAT YOUR ABILITY TO OBTAIN REAL
ESTATE OR REAL ESTATE RELATED SERVICE THROUGH THE USE OF THE ON-DEMAND SERVICE APPLICATION DOES NOT ESTABLISH
HOMETRAQ AS A PROVIDER OF THE REAL ESTATE SERVICES OR REAL ESTATE RELATED SERVICES.
- GRANT OF REVOCABLE LICENSE. Subject to your compliance with these Terms, HomeTraq grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the On-Demand Service Application on your personal device solely in connection with your order or request for Real Estate Services or Real Estate Related Services through the On-Demand Service Application; and (ii) access and use any content, information and related materials that may be made available through the On-Demand Service Application, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by HomeTraq.
- RESTRICTIONS ON USE. You may not: (1) remove any copyright, trademark or other proprietary notices from any portion of the On-Demand Service Application; (2) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the On-Demand Service Application except as expressly permitted by HomeTraq; (3) decompile, reverse engineer or disassemble the On-Demand Service Application except as may be permitted by applicable law; (4) link to, mirror or frame any portion of the On-Demand Service Application; (5) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the On-Demand Service Application or unduly burdening or hindering the operation and/or functionality of any aspect of the On-Demand Service Application; or (5) attempt to gain unauthorized access to or impair any aspect of the On-Demand Service Application or its related systems or networks.
- OWNERSHIP. The On-Demand Service Application and all rights therein are and shall remain HomeTraq's property. Neither these Terms nor your use of the On-Demand Service Application convey or grant to you any rights: (1) in or related to the On-Demand Service Application except for the limited license granted above; or (2) to use or reference in any manner HomeTraq's company names, logos, product and service names, trademarks or service marks or those of HomeTraq's licensors.
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ACCESS AND USE OF THE ON-DEMAND SERVICE APPLICATION.
- USER ACCOUNTS. In order to use most aspects of the On-Demand Service Application, you must register for and maintain an active personal user account ("Account"). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account. Account registration requires you to submit to HomeTraq certain personal information, such as your name, address, mobile phone number and age, as well as at least one valid payment method supported by HomeTraq. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access or use the On-Demand Service Application. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by HomeTraq in writing, you may only possess one Account.
- USER REQUIREMENTS AND CONDUCT. The On-Demand Service Application is not available for use by persons under the age of 18. You may not authorize third parties to use your Account. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when accessing or using the On-Demand Service Application, and you may only access or use the On-Demand Service Application for lawful purposes. You may not in your access or use of the On-Demand Service Application cause nuisance, annoyance, inconvenience, or property damage, whether to the Third Party Provider or any other party. In certain instances you may be asked to provide proof of identity to access or use the On-Demand Service Application, and you agree that you may be denied access to or use of the On-Demand Service Application if you refuse to provide proof of identity.
- TEXT MESSAGING AND TELEPHONE CALLS. You agree that HomeTraq may contact you by telephone or text messages (including by an automatic telephone dialing system) at any of the phone numbers provided by you or on your behalf in connection with a HomeTraq account, including for marketing purposes. You understand that you are not required to provide this consent as a condition of ordering or requesting Real Estate Services or Real Estate Related Services through the On-Demand Service Application. You also understand that you may opt out of receiving text messages from HomeTraq at any time, either by texting the word "STOP" to 89203 using the mobile device that is receiving the messages, or by contacting HomeTraq. If you do not choose to opt out, HomeTraq may contact you as outlined in its HomeTraq's Privacy Statement.
- REFERRALS AND PROMOTIONAL CODES. HomeTraq may, in its sole discretion, create referral and/or promotional codes ("Promo Codes") that may be redeemed for discounts on future Real Estate Service or Real Estate Related Service ordered or requested through the On-Demand Service Application, subject to any additional terms that HomeTraq establishes. You agree that Promo Codes: (1) must be used for the intended audience and purpose, and in a lawful manner; (2) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by HomeTraq; (3) may be disabled by HomeTraq at any time for any reason without liability to HomeTraq; (4) may only be used pursuant to the specific terms that HomeTraq establishes for such Promo Code; (5) are not valid for cash; and (6) may expire prior to your use. HomeTraq reserves the right to withhold or deduct credits or other features or benefits obtained through the use of the referral system or Promo Codes by you or any other user in the event that HomeTraq determines or believes that the use of the referral system or use or redemption of the Promo Code was in error, fraudulent, illegal, or otherwise in violation of HomeTraq's Terms.
- NETWORK ACCESS AND DEVICES. You are responsible for obtaining the data network access necessary to use the On-Demand Service Application. Your mobile network's data and messaging rates and fees may apply if you access or use the On-Demand Service Application from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the On-Demand Service Application and any updates thereto. HomeTraq does not guarantee that the On-Demand Service Application, or any portion thereof, will function on any particular hardware or devices. In addition, the On-Demand Service Application may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
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PAYMENTS. You understand that use of the On-Demand Service Application may result in
charges to you for the Real Estate Services and Real Estate Related Services you receive ("Charges").
HomeTraq will receive and/or enable your payment of the applicable Charges for Real Estate Services and
Real Estate Related Service obtained through your use of the On-Demand Service Application. Charges will
be inclusive of applicable taxes where required by law.
- PAYMENT METHOD. All Charges and payments will be enabled by HomeTraq using the preferred payment method designated in your Account, after which you will receive a receipt by email. If your primary payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that HomeTraq may use a secondary payment method in your Account, if available. Charges paid by you are final and non-refundable, unless otherwise determined by HomeTraq.
- ADJUSTMENT OF CHARGES. As between you and HomeTraq, HomeTraq reserves the right to establish, remove and/or revise Charges for any or all Real Estate Service or Real Estate Related Services obtained through the use of the On-Demand Service Application at any time in HomeTraq's sole discretion. HomeTraq will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Account regardless of your awareness of such Charges or the amounts thereof. HomeTraq may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar Real Estate Services or Real Estate Related Services obtained through the use of the On-Demand Service Application, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the On-Demand Service Application or the Charges applied to you.
- CANCELLATION CHARGES. You may elect to cancel your request for Real Estate Services or Real Estate Related Services at any time prior to the commencement of such Real Estate Service or Real Estate Services, in which case you may be charged a cancellation fee on a Third Party Service Provider's behalf.
- AGENT RATINGS. After you have received the Real Estate Services or Real Estate Related Services obtained through the On-Demand Service Application, you will have the opportunity to rate your experience and leave additional feedback.
- USE OF CHARGES. HomeTraq may use the proceeds of any Charges for any purpose, subject to any payment obligations it has agreed to with any Third Party Service Providers or other third parties. With respect to Third Party Service Providers, Charges you incur will be owed directly to Third Party Service Providers, and HomeTraq will collect payment of those Charges from you, on the Third Party Provider's behalf as their limited payment collection agent, and payment of the Charges shall be considered the same as payment made directly by you to the Third Party Provider.
- USER'S REPRESENTATIONS AND WARRANTIES. You represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you are eligible to register and use the On-Demand Service Application and have the right, power, and ability to enter into and perform under these General Terms; (c) any information you provide in connection with the On-Demand Service Application accurately and truthfully represents your personal identity; (d) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to you; (e) you will not use the On-Demand Service Application, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the On-Demand Service Application; (f) your use of the On-Demand Service Application will be in compliance with these Terms and applicable Additional Terms; and (g) you have not entered into any exclusive representation agreement with any real estate brokerage.
- INDEMNITY. You will indemnify, defend, and hold HomeTraq and its affiliates, employees, agents and representatives harmless from and against any and all claims, losses, damages, and expenses (including without limitation reasonable attorneys' fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in these Terms or any Additional Terms; (b) your wrongful or improper use of the On-Demand Service Application; (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (d) your violation of any federal or state law, rule or regulation; and (e) any other party's access and/or use of the On-Demand Service Application with your unique name, password or other appropriate security code.
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DISCLAIMER OF REPRESENTATIONS AND WARRANTIES. THE ON-DEMAND SERVICE APPLICATION ARE PROVIDED
"AS IS" AND "AS AVAILABLE." HOMETRAQ DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR
STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, HOMETRAQ MAKES NO REPRESENTATION,
WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE
ON-DEMAND SERVICE APPLICATION OR ANY SERVICES OR PRODUCTS REQUESTED THROUGH THE USE OF THE ON-DEMAND SERVICE
APPLICATION, OR THAT THE ON-DEMAND SERVICE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE. HOMETRAQ DOES
NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY SERVICE PROVIDERS. YOU AGREE THAT
THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE ON-DEMAND SERVICE APPLICATION, AND ANY SERVICE OR GOOD
REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU.
HOMETRAQ DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY REAL ESTATE SERVICE OR REAL ESTATE RELATED SERVICE OFFERED OR PROVIDED BY ANY THIRD PARTY SERVICE PROVIDER. HOMETRAQ DOES NOT HAVE CONTROL OVER REAL ESTATE SERVICES OR REAL ESTATE RELATED SERVICES PROVIDED BY THE THIRD PARTY SERVICE PROVIDERS ORDERED, REQUESTED AND PAID USING THE ON-DEMAND SERVICE APPLICATION. HOMETRAQ ASSUMES NO RESPONSIBILITY FOR AND SHALL NOT BE LIABLE FOR THE PERFORMANCE OF THE REAL ESTATE SERVICES AND REAL ESTATE RELATED SERVICES BY THIRD PARTY SERVICE PROVIDERS ORDERED, REQUESTED AND PAID USING THE ON-DEMAND SERVICE APPLICATION. -
LIMITATION OF LIABILITY. HOMETRAQ SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL,
EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY
DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE ON-DEMAND SERVICE
APPLICATION, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF HOMETRAQ,
EVEN IF HOMETRAQ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HOMETRAQ SHALL NOT BE LIABLE FOR ANY
DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE ON-DEMAND SERVICE APPLICATION
OR YOUR INABILITY TO ACCESS OR USE THE ON-DEMAND SERVICE APPLICATION; OR (ii) ANY TRANSACTION OR RELATIONSHIP
BETWEEN YOU AND ANY THIRD PARTY SERVICE PROVIDER.
THE ON-DEMAND SERVICE APPLICATION MAY BE USED BY YOU TO REQUEST AND SCHEDULE REAL ESTATE SERVICES AND REAL ESTATE RELATED SERVICES WITH THIRD PARTY SERVICE PROVIDERS. YOU ACKNOWLEDGE AND AGREE THAT HOMETRAQ HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY REAL ESTATE SERVICES OR REAL ESTATE RELATED SERVICES PROVIDED TO YOU BY THIRD PARTY SERVICE PROVIDERS.
UNDER NO CIRCUMSTANCES WILL HOMETRAQ BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE ON-DEMAND SERVICE APPLICATION OR YOUR HOMETRAQ ACCOUNT, OR THE INFORMATION CONTAINED THEREIN, INCLUDING BREACH OR THEFT OF CREDIT CARD INFORMATION.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF HOMETRAQ, LLC IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE ON-DEMAND SERVICE APPLICATION DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY, OR (B) $500.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF HOMETRAQ, LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR HAS ACTED IN A NEGLIGENT MANNER. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. -
ARBITRATION PROVISION(S).
- PROHIBITION ON CLASS ACTIONS. By agreeing to the Terms, you agree that you are required to resolve any dispute or claim that you may have against HomeTraq on an individual basis in arbitration. This will preclude you from bringing any class, collective, or representative action against HomeTraq, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against HomeTraq by someone else.
- BINDING ARBITRATION. You and HomeTraq agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the On-Demand Service Application at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and HomeTraq, and not in a court of law.
- WAIVER OF JURY TRIAL. You acknowledge and agree that you and HomeTraq are each waiving the right to a trial by jury.
- ARBITRATION RULES. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the AAA's Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by these Terms.
- COVENANT NOT TO SUE. You acknowledge and agree that the arbitrator ("Arbitrator"), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this arbitration provision, including any claim that all or any part of these arbitration provisions are void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
- GOVERNING LAW. The interpretation and enforcement of the arbitration provisions herein shall be governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA") the AAA Rules. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under the arbitration provisions herein, then that issue shall be resolved under the laws of the state of Missouri.
- LOCATION AND PROCEDURE. Unless you and HomeTraq otherwise agree, the arbitration will be conducted in St. Louis County, Missouri. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and HomeTraq submit to the Arbitrator. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
- ARBITRATOR'S DECISION. The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. An Arbitrator's decision shall be final and binding on all parties. An Arbitrator's decision and judgment thereon shall have no precedential or collateral estoppel effect. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. HomeTraq will not seek, and hereby waives all rights HomeTraq may have under applicable law to recover, attorneys' fees and expenses if HomeTraq prevails in arbitration.
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OTHER PROVISIONS.
- CHOICE OF LAW. These Terms are governed by and construed in accordance with the laws of the State of Missouri, without giving effect to any conflict of law principles.
- NOTICE. HomeTraq may give notice by means of a general notice on the On-Demand Service Application, electronic mail to your email address in your Account, telephone or text message to any phone number provided in connection with your account, or by written communication sent by first class mail or pre-paid post to any address connected with your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email or telephone).
- ASSIGNMENT. You may not assign these Terms without HomeTraq's prior written approval. HomeTraq may assign these Terms without your consent to: (1) a subsidiary or affiliate; (2) an acquirer of HomeTraq's equity, business or assets; or (3) a successor by merger. Any purported assignment in violation of this section shall be void.
- NO JOINT VENTURE OR AGENCY RELATIONSHIP. No joint venture, partnership, employment, or agency relationship exists between you, HomeTraq or any Third Party Service Provider as a result of the Terms or the use of the On-Demand Service Application.
- SEPARABILITY. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law.
- WAIVER. HomeTraq's failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by HomeTraq in writing.
