END USER LICENSE AGREEMENT


YOU WILL BE GRANTED ACCESS TO THE BUILDERS UPDATE WEB SITE (THE "SITE") AND USE THE DATABASE INCLUDED THEREON (THE "DATABASE") AFTER YOU FIRST REVIEW AND ACCEPT THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT ("AGREEMENT"). AFTER REVIEWING THE TERMS AND CONDITIONS BELOW, PLEASE ACKNOWLEDGE YOUR AGREEMENT BY CLICKING ON "I AGREE TO THE TERMS AND CONDITIONS OF USE," OR YOU MAY DECLINE THIS AGREEMENT BY NOT CLICKING THE CHECKBOX AT THE BOTTOM OF THE REGISTRATION. YOU CANNOT OBTAIN ACCESS TO THE SITE UNLESS YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT BY CLICKING ON "I AGREE".


BUILDER'S UPDATE, L.L.C. LIMITED USE AGREEMENT. Builders Update L.L.C (hereinafter 'BU') and Registered Users (Hereinafter 'User') agree to the following terms and conditions:
1) ALL USERS:

  1. User Duties. While BU seeks to ensure that all of the information concerning new homes and new home communities, as well as other data on the site is current and accurate, we do not assume any liability for inaccuracies. It is the User's responsibility to independently verify information on the site.

  2. Company's Rights.  User hereby acknowledges that the Database is the proprietary property of BU, that the names and marks and logos (collectively, the "Marks"), are the trademarks and/or service marks of BU or its affiliates, and that any tradedress, trademarks, service marks or designs related to the Database and/or the Marks are the intellectual property of BU and are protected by United States copyright laws, trademark laws, trade secret laws, international treaties, and applicable laws of the states and jurisdictions where they are used. This Agreement does not grant to you any ownership rights in the Database, the Marks or in any other intellectual property of BU. All rights, title and interests in and to the Database, the Marks and any other intellectual property of the BU shall remain with BU. User acknowledges that the Site's graphical user interface and the Database and its functionality, structure and organization, and the code format of the Database are the valuable confidential trade secrets of BU.

  3. LIMITED WARRANTY. THE DATABASE WILL PERFORM IN ACCORDANCE WITH THE SPECIFICATIONS SET FORTH ON THE SITE. EXCEPT AS EXPRESSLY SET FORTH IN THE SPECIFICATIONS, THE DATABASE IS PROVIDED "AS-IS" AND "WITH ALL FAULTS" AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BU DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE DATABASE, INCLUDING WITHOUT LIMITATION ITS FITNESS FOR A PARTICULAR PURPOSE, ITS QUALITY, ITS MERCHANTABILITY, ITS PERFORMANCE, ITS NONINFRINGEMENT OF THIRD PARTY RIGHTS, OR THE RESULTS OBTAINED BY USING THE DATABASE. BU DOES NOT WARRANT THAT THE DATABASE IS FREE FROM BUGS, VIRUSES, ERRORS, OR OTHER PROGRAM LIMITATIONS AND ALL DATA BEING SUPPLIED BY THIRD PARTIES SUCH THAT LICENSOR CANNOT GUARANTEE THE ACCURACY OF THE DATA. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT BY CLICKING ON "I AGREE" AT THE BOTTOM OF THIS FILE.

  4. LIMITATION OF LIABILITY. IN NO EVENT WILL BU NOR ITS DATA PROVIDER BE LIABLE TO YOU FOR ANY CLAIM BY ANY THIRD PARTY OR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOST PROFITS OR LOST SAVINGS, EVEN IF A REPRESENTATIVE OF BU OR DATA PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some states or jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, so the above limitations may not apply to you. YOUR USE OF THIS WEBSITE IS ENTIRELY AT YOUR OWN RISK.

  5. Indemnity. User shall indemnify, defend and hold harmless BU, the Data Provider and their respective affiliates, officers, directors, employees and agents (each, an "Indemnified Party") from and against any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties, reasonable attorneys' fees, costs of investigation and any legal or other expenses or costs (each, a "Liability" ) incurred or suffered by any Indemnified Party arising out of, in connection with or resulting from the access or use by you of the Database (or any portion thereof) or the Site, unless any such Liability is caused by the gross negligence or willful misconduct of BU or Data Provider in which case the indemnification obligations here under shall not apply.

  6. Privacy Policy. User privacy is important to us, and BU keeps all data compiled by or supplied by Builders strictly within the Builders Update Database functionality. We do not sell or allow data to be used for any purpose other than as indicated in our current Privacy Policy statement that can be viewed on the site.

  7. Confidentiality. User may only disclose the Database (or any portion thereof) to persons or entities in furtherance of your professional real estate activities arising in the ordinary course of business. Otherwise, user may not disclose to any third party the Database or any aspect of the Database, including without limitation a description of the Database or the functions and/or features thereof.

  8. Governing Law. This Agreement shall be construed and governed by the internal laws of the State of Texas, U.S.A., excluding the application of its choice-of-law principles, with personal jurisdiction and venue of Travis County, TX.

  9. Severability. If any term or provision of this Agreement shall, to any extent, be determined to be invalid, illegal or unenforceable under present or future laws effective during the term of this Agreement, then and, in that event: (a) the performance of the offending term or provision (but only to the extent its application is invalid, illegal or unenforceable) shall be excused as if it had never been incorporated into this Agreement, and, in lieu of such excused provision, there shall be added a provision as similar in terms and amount to such excused provision as may be possible and still be legal, valid and enforceable, and (b) the remaining part of this Agreement (including the application of the offending term or provision to persons or circumstances other than those as to which it is held invalid, illegal or unenforceable) shall not be affected thereby and shall continue in full force and effect to the fullest extent provided by law.

  10. Costs of Litigation. If any action is brought by BU or its Data Provider against user or by user against either of them regarding the subject matter of this Agreement, the prevailing party shall be entitled to recover, in addition to other relief granted, reasonable attorneys' fees and expenses of litigation.

  11. No Waiver. Neither the failure nor the delay of BU in exercising, enforcing or taking action against user with respect to any of BU’s rights or powers shall operate as a waiver of such powers or rights. No single or partial exercise by BU of any of its powers or rights will preclude BU from exercising such powers and rights in the future or from exercising other powers and rights.

  12. Section Headings. The headings of Sections in this Agreement are provided for convenience only and will not affect the construction of the Sections. TopTOP

2) AGENT USERS:

  1. Agent Terms of Use. User's use of Builders Update’s (BU) website is strictly limited to viewing the builder's available properties for sale to include amenities/features/benefits of their properties, subdivisions and directory information and distributing to their clients the information supplied in the manner in which they determine.

  2. Agent License Grant. The Licensor (”BU”), hereby grants to the Licensee, (you, the “User”) and you hereby accept, a limited, revocable, non-exclusive license to use the Site and the Database solely for purposes directly related to your professional real estate activities arising in the ordinary course of business, subject to and in accordance with the terms and conditions hereof. Any other use of the Site or the Database is strictly prohibited. You may not permit any other user to access the Site.

  3. Agent Restrictions. BU requires Agent Users to hold an active real estate license per their state requirements to access the agent portal. User may not assign, sublicense, transfer, pledge, lease, rent, sell, distribute or share the Database (or any portion thereof) or your rights under this Agreement. User may not make copies of the Database, even for back-up or archival purposes. User may not create derivative works based on the Database. User may not modify, adapt, translate, reverse engineer, decompile, disassemble, translate or otherwise attempt to discover the source code of the Database. User may not upload, publish, distribute or otherwise transmit the Database by any means, including without limitation electronic transmission. User may not disclose the Database or components or elements thereof except as expressly permitted through functions already built into the database itself.

  4. Use of Builder Contact Forms. Builders Update has provided and encourages agents to contact builders with questions regarding a specific listing. It is a violation to use this system to self-promote, advertise, send any type of SPAM or otherwise unprofessional or inappropriate messages. Builders Update reserves the right to verify all communications to insure whether they are appropriate or violate these terms. We have a zero tolerance policy regarding violation of these terms and will immediately suspend the agent user account and send written notification of violation and suspension.

  5. New Home Spotlight Terms of Use. By creating a New Home Spotlight, Agent agrees to the proper usage of the URL which requires either a direct text link or placement of a banner/tile on Agent’s website using their unique URL given to them. BuildersUpdate.com does not support and prohibits the use of frames for New Home Spotlight functionality.

  6. Agent Charges and Terms of Payment. There is NO charge to a licensed real estate agent or a home buyer to use the site to search for inventory and information at any time.

  7. Representing a Builder as an Agent. An Agent User has the right to function as a Builder's representative and input properties for a builder if asked to do so by a Builder. The Agent User must register as a builder in order to input properties and will agree to the terms/conditions of use as part of the registration process.

  8. Termination. Agents and Homebuyers may terminate or be terminated from this agreement without notice with or without cause. TopTOP

3) BUILDER USERS:

  1. Builder Terms of Use. User's use of BU’s website is limited to viewing, updating and managing your Builder listings along with viewing Agent activity and communicating with Agents via the Site’s existing functionality. Builder agrees to co-operate with Agents by offering a commission rate and display such rate on each property page.

  2. Builder License Grant. The Licensor (”BU”), hereby grants to the Licensee, (you, the “User”) and you hereby accept, a limited, revocable, non-exclusive license to use the Site and the Database for the purposes outlined in 3a (above).

  3. Builder Restrictions. User may not assign, sublicense, transfer, pledge, lease, rent, sell, distribute or share the Database (or any portion thereof) or your rights under this Agreement. User may not make copies of the Database, even for back-up or archival purposes. User may not create derivative works based on the Database. User may not modify, adapt, translate, reverse engineer, decompile, disassemble, translate or otherwise attempt to discover the source code of the Database. User may not upload, publish, distribute or otherwise transmit the Database by any means, including without limitation electronic transmission. User may not disclose the Database or components or elements thereof except as expressly permitted through functions already built into the database itself.

  4. Builder Charges and Terms of Payment. There is NO charge to a builder to display its new homes and basic content. However, there is an optional charge to Builders that receive Premier services including but not limited to enhanced listings, reporting on agent activity and agent information past any FREE trial period extended to them, if offered. Builder Users will be informed by email at least seven (7) days before any trial period ends. Builder users will then either 1) continue on as a Premier User per the terms of their signed Agreement (in this case no action is required) or 2) notify BU of its intention to cancel Premier services in writing and continue on as a Basic services User. Volume Premier Builder rates are billed on an annual or monthly basis. Custom Builders rates are paid electronically and billed either quarterly or annually.

    For Volume Builders electing annual billing after the free trial period has ended, all charges for Premier new home communities in the database will be billed by BU per the quantities and rates in the signed Agreement. However, should the number of communities exceed the amount in the signed Agreement by more than one (1) community for two consecutive months, Builder agrees to be billed for the additional communities for the balance of the Agreement’s term. If this occurs, billing may be adjusted based on the number of increased communities marketed per the rate schedule provided with the Volume Builder Agreement. Communities in the database will be assessed by BU on the first day of the month that communities are active in the database after the free trial period has ended. Refund requests on annual plan pricing must be made and acknowledged in writing.

    Volume Builders electing monthly billing will be billed based on the actual number of communities active in the database on the first day of each month. Billing may be adjusted based on the number of communities marketed per the rate schedule provided with the Volume Builder Agreement on a monthly basis. There are no refunds nor any proration of monthly fees submitted for paid services. A minimum amount billed of $250 in necessary in order to be eligible for quarterly or monthly billing.

    Payment may be made by automated credit card processing online or postal mail by check within twenty (20) days of electronic bill notification; otherwise BU has the right to suspend Builder Users’ Premier services. BU will send an electronic renewal notice thirty (30) days prior to an annual renewal period for Premier services if BU intends to implement a rate increase. The Agreement shall auto-renew under existing agreement rates if there is no rate increase, or Builder may cancel the Agreement with 30-days notice to BU. See “Termination” for additional details.

  5. Representing a Builder as an Agent. An Agent User has the right to function as a Builder's representative and input properties for a builder if asked to do so by a Builder. The Agent User must register as a builder in order to input properties and will agree to the terms/conditions of use as part of the registration process.

  6. Builder Lead Distribution Authorization. Builder authorizes BU to distribute leads to those email addresses provided to BU by builder in BU’s online management tools, in XML feeds or via electronic communications.

  7. Data Authorization. By accepting the Terms and Conditions, I hereby authorize Builders Update, LLC to gather new home listing content electronically or from our homebuilding website and publish it online and/or in print for use by real estate professionals and consumers. The content will include (but is not limited to) pricing, community details, lot availability, contact information, images, locations, descriptions, etc. I further authorize Builders Update to collect incentives and special offers directly from us or from third parties that market these offers on our behalf. I understand that Builders Update will make commercially reasonable attempts to keep the content accurate and up-to-date by time-stamping every property detail page and by supplementing secondary detail information when available and accurate on properties if information can be discerned from other information gathered, or otherwise left unknown.

  8. Termination. Builders with basic (unpaid) services may terminate this Agreement, at any time, with or without cause. Builders with premier services may terminate this Agreement, at any time, with or without cause upon thirty (30) days prior written notice (made electronically by the Builders’ primary account holder to BuilderSupport@BuildersUpdate.com). Upon termination of this Agreement, Builders agree to immediately cease and desist from altering or updating the site or using the Database, and pay promptly (within 30 days) all open invoices for services performed. TopTOP

4) HOMEBUYER USERS:

  1. Homebuyer Terms of Use. User's use of Builders Update’s (BU) website is strictly limited to viewing the builder's available properties for sale to include amenities/features/benefits of their properties, subdivisions and communicating with real estate Agents.

  2. Homebuyer License Grant. The Licensor (”BU”), hereby grants to the Licensee, (you, the “User”) and you hereby accept, a limited, revocable, non-exclusive license to use the Site and the Database solely for purposes directly related to your search for a new home, subject to and in accordance with the terms and conditions hereof. Any other use of the Site or the Database is strictly prohibited. You may not permit any other user to access the Site.

  3. Homebuyer Restrictions. User may not assign, sublicense, transfer, pledge, lease, rent, sell, distribute or share the Database (or any portion thereof) or your rights under this Agreement. User may not make copies of the Database, even for back-up or archival purposes. User may not create derivative works based on the Database. User may not modify, adapt, translate, reverse engineer, decompile, disassemble, translate or otherwise attempt to discover the source code of the Database. User may not upload, publish, distribute or otherwise transmit the Database by any means, including without limitation electronic transmission. User may not disclose the Database or components or elements thereof except as expressly permitted through functions already built into the database itself.

  4. Homebuyer Charges and Terms of Payment. There is NO charge to a homebuyer to use the site to search for inventory and information at any time.

  5. Termination. Homebuyers may terminate or be terminated from this agreement without notice with or without cause. TopTOP