Welcome to Site Designer, brought to you by Houzz Inc.! Site Designer is a product that gives you tools to build your own website (“Personalized Site”), which leverages your content from your professional profile on the Houzz platform at http://www.houzz.co.nz (“Houzz Platform”).
Please make sure to read it, because your use of Site Designer is consent to these terms. If you do not agree to any of these terms, you should not launch a site using the Product and you should immediately discontinue using the Product.
1. Using Site Designer
a. Who may use Houzz. You must be a provider of professional products or services who has created a professional profile on the Houzz Platform. As a professional we expect that you are at least the age of majority in the state where you live to use Houzz. Use of Site Designer by anyone under 13 years of age is strictly prohibited!
c. Changes to Site Designer. We are always trying to improve your experience on Site Designer. We may need to add or change features and may do so without notice to you. For changes to these terms, we will provide notice to you as described in the Section 9(a) (Changes to These Terms).
d. Good Conduct Pledge. We hope you will take care to keep your interaction with others a positive experience for all. You agree to be compliant with applicable laws and regulations, respectful of third-party legal or personal rights and well-being, and protective of customer contact information (collectively, “Good Conduct Pledge”). The Good Conduct Pledge applies both to your use of Site Designer and your interactions with third-parties who you encounter while using Site Designer.
e. Customer Communications and Protection of their Contact Information. Using Site Designer enables you to receive email communications from actual or potential customers (“Customers”) who contact you via your Personalized Site. You agree to use Customer contact information (e.g., email addresses, phone numbers) solely for your own business purposes, consistent with the reason a Customer has chosen to contact you. In no event will you rent or sell that contact information to third-parties for marketing or other purposes. This is part of your Good Conduct Pledge.
f. Termination. You may terminate your use of Site Designer at any time by taking down your Personalized Site within the “Site Options” setting. We may permanently or temporarily suspend your use of Site Designer or the service at any time for any reason, without any notice or liability to you. We may terminate if you violate the Good Conduct Pledge or for any other reason. Upon termination of your use of the service, you will still be bound by the following provisions of this agreement, which will survive termination: 1(d)(Good Conduct Pledge), 1(e) (Customer Communications and Protection of their Contact Information), 1(g)(Feedback), 2(c)(Your Responsibilities for Your Content), 3(a)(Our Content and Materials) and 5-9 (inclusive). Upon termination by us, we will no longer host your Personalized Site, or otherwise make it available to the public.
g. Feedback. We welcome your feedback and suggestions about how to improve Site Designer. Feel free to submit feedback at https://support.houzz.com.au/. By submitting feedback, you agree to grant us the right, at our discretion, to use, disclose and otherwise exploit the feedback, in whole or part, without any restriction or compensation to you.
2. Your Content
a. Definition of Your Content. Site Designer enables you to populate your Personalized Site with content from your professional profile on the Houzz Platform and other material that you may add. All material that you display or generate on your Personalized Site will be referred to collectively as “Your Content.”
b. License and Permission to Use Your Content. You agree to grant us a non-exclusive, royalty-free, transferable, sublicensable (including the right to sublicense through multiple tiers), worldwide license to use, display, reproduce, repost, modify, rearrange, distribute, and create derivative works of Your Content, or any portion of it, in any format, on your Personalized Site and for the promotion of Site Designer or the Houzz Platform in any medium or distribution method (whether now known or later developed). As between you and us, you retain ownership of Your Content.
c. Your Responsibilities for Your Content and Activities. It is your responsibility to avoid infringing the intellectual property and personal rights of others in connection with Your Content. You are in best position to judge whether you are in violation of intellectual property or personal rights of any third-party. You accept full responsibility for actions that violate the intellectual property or personal rights of others in connection with Your Content or your activities using Site Designer. You agree to pay all royalties, fees and any other monies owed to any person by reason of any of Your Content. We are not obligated, but reserve the right, to remove or suspend, in whole or part, Your Content if it violates your Good Conduct Pledge or for any other reason.
3. Our Content and Materials
a. Our Content and Materials. All intellectual property in or related to Site Designer or the Houzz Platform (specifically including, but not limited to our software, the Houzz mark, the Houzz logo, and Houzz buttons, badges, and widgets, and Customer contact information, but excluding Your Content or any third-party websites or third-party content linked to or posted within Site Designer ), is the property of Houzz Inc., subsidiaries and affiliates (“Our Content and Materials”). Except as expressly provide in these terms, you agree not to use, modify, reproduce, distribute, sell, license, reverse engineer, decompile, or otherwise exploit Our Content and Materials without our express written permission.
b. Our License to You. Subject to these terms, including the Good Conduct Pledge, we grant you a limited, non-exclusive license to use and access Our Content and Materials and Site Designer. We may terminate this license at any time for any reason. Except for the rights and license granted in these terms, we reserve all other rights and grant no other rights or licenses, implied or otherwise.
5. Disclaimers and Limitation of Liability
PLEASE READ THIS SECTION CAREFULLY SINCE IT LIMITS THE LIABILITY OF HOUZZ ENTITIES TO YOU. “HOUZZ ENTITIES” MEANS HOUZZ INC., AND ANY SUBSIDIARIES, AFFILIATES, RELATED COMPANIES, SUPPLIERS, LICENSORS AND PARTNERS, AND THE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES OF EACH OF THEM. EACH PROVISION BELOW APPLIES TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW:
a. WE ARE PROVIDING YOU SITE DESIGNER, ALONG WITH OUR CONTENT AND MATERIALS AND THE OPPORTUNITY TO CONNECT WITH OTHERS, ON AN “AS IS” AND “AS AVALABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, HOUZZ ENTITIES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, TITLE, ACCURACY AND COMPLETENESS, UNINTERRUPRTED OR ERROR-FREE SERVICE, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR TRADE USEAGE.
c. YOU AGREE THAT UNDER THE MAXIMUM EXTENT PERMITTED BY LAW, HOUZZ ENTITIES WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY. WITHOUT LIMITING THE FOREGOING, YOU AGREE THAT HOUZZ ENTITIES SPECIFICALLY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES, LOSS OF PROFITS, BUSINESS INTERRUPTION, REPUTATIONAL HARM, OR LOSS OF DATA (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORSEEABLE) ARISING OUT OF IN ANY WAY CONNECTED WITH YOUR OR A THIRD-PARTY’S USE OF, OR INABILITY TO USE, SITE DESIGNER OR YOUR PERSONALIZED SITE.
d. YOUR SOLE REMEDY WITH RESPECT TO DISSASTIFICATION WITH SITE DESIGNER IS TO STOP USING SITE DESIGNER.
e. HOUZZ ENTITIES' MAXIMUM AGGREGATE LIABILITY TO YOU FOR LOSSES OR DAMAGES THAT YOU SUFFER IN CONNECTION WITH SITE DESIGNER OR THIS AGREEMENT IS LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO HOUZZ ENTITIES IN CONNECTION WITH SITE DESIGNER IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY.
You agree to indemnify and defend Houzz Entities from all third-party claims and costs (including reasonable attorneys’ fees) arising out of or related to: i) Your Content, ii) your conduct or interactions with others in connection with your use of Site Designer, or iii) or your breach of any part of this agreement (specifically including but not limited to Sections 1(d), 1(e), and 2(c)) . We will promptly notify you of any such claim, and will provide you (at your expense) with reasonable assistance in defending the claim. You will allow us to participate in the defense, and will not settle any such claim without our prior written consent. We reserve the right, at our own expense, to assume the exclusive defense of any matter otherwise subject to indemnification by you. In that event, you will have no further obligation to defend us in that matter.
7. Arbitration and Class Action Waiver
The arbitration process can be a faster, simpler, less formal, and less expensive route than filing a lawsuit and going to court. In arbitration you are still entitled to a fair hearing, but your rights will be determined by a neutral arbitrator (and not a judge or jury). Arbitrator decisions are as enforceable as any court order, and are subject only to very limited review by a court. You acknowledge that you and we are giving up the right to sue in court and to have a trial before a judge or jury.
You and we agree to try in good faith for 30 days to informally resolve any dispute before starting arbitration. A party who intends to seek arbitration must first send the other a written notice that describes the nature and basis of the dispute as well as the relief sought. If you want to send such a notice to us, send it by U.S. Mail to Houzz Inc., Attn.: Legal Department, 285 Hamilton Avenue, 4th Floor, Palo Alto, CA 94301. If we want to send such a notice to you, we will send it to the email address associated with your account. If you and we do not reach an agreement to resolve the dispute within 30 days after the date the notice was sent, then either of us may start arbitration as described below.
The American Arbitration Association (AAA) will administer the arbitration, and the arbitration will be governed by the AAA’s Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes, as modified by these terms. Those rules and information about how to start arbitration are available at www.adr.org or by calling 1-800-778-7879. The arbitrator is bound by these terms. The arbitration will be conducted through the submission of documents, by phone, or in person in the county where you live or at another mutually agreed location.
The arbitrator’s award will be final and specifically enforceable under applicable law, and judgment may be entered upon it in any court with jurisdiction. The arbitration costs, including arbitrator compensation, will be shared between you and us according to the AAA’s Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes.
You and we each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. By agreeing to these terms, you are waiving the right to participate in a class action. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this waiver is found to be illegal or unenforceable, then you and we agree that this entire section will be unenforceable, that any dispute will be resolved exclusively in a state or federal court located in Santa Clara County, California, and that we both submit to the personal jurisdiction of such courts. If a claim proceeds in court rather than through arbitration, we each waive any right to a jury trial.
This section does not: (i) prevent either of us from litigating any dispute in small claims court; (ii) apply to disputes arising out of or related to infringement or other misuse of our intellectual property rights (and for any of those disputes, either you or we may file suit in any court with jurisdiction); or (iii) prevent either of us from bringing a dispute to the attention of any federal, state, or local government agencies.
If you do not want to be bound by this binding arbitration provision and class action waiver, you must notify us within 30 days of the date that you first accept or receive these terms by sending a written notification via U.S. Mail to: Houzz Inc., Attn: Legal Department, 285 Hamilton Avenue, 4th Floor, Palo Alto, CA 94301, that includes your actual name and Houzz user name, address, and a clear statement that you do not wish to resolve disputes with us through arbitration.
8. Governing Law and Jurisdiction; Notice for California Users
a. Governing Law and Jurisdiction. You agree that Houzz is operated in the United States and will be deemed to be solely based in California and a passive service for purposes of jurisdictional analysis. For any claims for which arbitration is inapplicable, you agree that such claims will be brought in federal or state court in Santa Clara County, California and governed by laws of the state of California, without regard to any conflict of law provisions.
b. Notice for California Users. Under California Civil Code Section 1789.3, California website users are entitled to the following specific consumer rights notice: Site Designer is provided by Houzz, Inc., 285 Hamilton Avenue, 4th Floor, Palo Alto, CA 94301. If you have a question or complaint regarding the Service, please contact Houzz at https://support.houzz.com.au/ or by writing to our mailing address. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
9. General Terms
b. Assignment. You may not assign or transfer this agreement (or any of your rights or obligations under this agreement) without our prior written consent; any attempted assignment or transfer without complying with the foregoing will be void. We may freely assign or transfer this agreement. This agreement inures to the benefit of and is binding upon the parties and their respective legal representatives, successors, and assigns.
c. Electronic Communications. You consent to receive communications from us by email in accordance with this agreement and applicable law. You acknowledge and agree that all agreements, notices, disclosures and other communications that we provide to you electronically will satisfy any legal requirement that such communications be in writing.
e. Entire Agreement/ Severability. Except for the Houzz Platform TOU [http://www.houzz.co.nz/termsOfUse], this agreement supersedes all prior terms, agreements, discussions and writing and constitutes the entire agreement between you and us regarding Site Designer. In the event of a conflict between Houzz Platform TOU and these terms, these terms control and supersede. If any provision in this agreement is found to be unenforceable, then (except as expressly provided otherwise in Section 8) that provision will not affect the enforceability of the remaining provisions of the agreement, which will remain in full force and effect.
f. Government End Users. Any Houzz software and related documentation are “Commercial Items,” as that term is deﬁned at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202 (as applicable). Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4 (as applicable), the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. government end users: (i) only as Commercial Items; and (ii) with only those rights as are granted to all other end users pursuant to this agreement.
g. Interpretation. In construing or interpreting the terms of this agreement: (i) the headings in this agreement are for convenience only, and are not to be considered, and (ii) no presumption is to operate in either party’s favor as a result of its counsel’s role in drafting this agreement.
h. Notices. All notices permitted or required under this agreement, unless specified otherwise in this agreement, must be sent in writing as follows in order to be valid: (i) if to you, by us via email to the address associated with your account, and (ii) if to us, by you via postal mail to Houzz Inc., Attn: Legal Department, 285 Hamilton Avenue, 4th Floor, Palo Alto, CA 94301. Notices will be deemed given (a) if to you, when emailed, and (b) if to us, on receipt by us.
i. Relationship. This agreement does not confer any third-party beneficiary rights and does not create a joint venture, agency, partnership, or other form of joint enterprise between you and us. Except as expressly provided herein, neither party has the right, power, or authority to create any obligation or duty, express or implied, on behalf of the other.
j. Waiver. No wavier of any terms will deemed a further or continuing waiver or such term or any other term. Our failure to assert a right or provision under this agreement will not constitute a waiver of such right or provision.
k. Further Assurances. You agree to execute a hard copy of this agreement and any other documents, and take any actions at our expense that we may request to confirm and effect the intent of this agreement and any of your rights or obligations under this agreement.
l. Export. Site Designer is controlled and operated from our United States offices in California. Houzz software is further subject to United States export controls. No software for Houzz may be downloaded or otherwise exported or re-exported in violation of any applicable laws or regulations. You represent that you are not (1) 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 (2) listed on any U.S. government list of prohibited or restricted parties.
m. Contact. Feel free to contact us at https://support.houzz.com.au/ with any questions about these terms.
Last modified as of February 9, 2016