SITE DESIGNER TERMS
Welcome to Site Designer, brought to you by Houzz Inc.! Site Designer (“Site Designer” or “Product”) is a product which leverages your content from your professional profile on the Houzz platform to create your own website (“Site Designer Website”). The Houzz platform means www.Houzz.com or the Houzz website corresponding to the relevant country on which you created a professional profile or choose to advertise, if applicable and all of the related websites, mobile apps, products and services offered by Houzz, including our plug-ins and embedded content made available on other sites (collectively, the “Houzz Platform”).
These Terms (the “Terms” or the “Agreement”) set forth the binding legal agreement between you and Houzz Inc. (“Houzz”, “we” or “us”). This Agreement governs your use of Site Designer.
This Agreement provides important information to you, including your agreement to grant rights to your content, our limitation of liability to you, your agreement to resolve any disputes by individual arbitration and to waive the right to participate in a class action (described in Section 9 below) and, if you choose to provide us with your phone number, your agreement to receive calls and text messages from us in accordance with applicable law. By agreeing to these Terms, you agree to resolve all disputes through binding individual arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and that you waive your right to participate in class actions, class arbitrations, or any type of representative actions.
1. Using Site Designer
- Who can use it. You must be a professional services provider who has created a professional profile on the Houzz Platform. You must also be at least the age of majority in the state where you live to use Site Designer. Use of Site Designer by anyone under 16 years of age is strictly prohibited!
- Changes to Site Designer. The Houzz Platform, the Product and content therein are subject to change at Houzz's discretion. The Houzz Platform and Product are dynamic in nature and Houzz may, in its discretion, change certain aspects of the Product. Houzz also may provide you with the Product for a limited promotional period.
- Third Party Integrations. Certain aspects of the Product may integrate with third party applications or services ("Third Party Services"). Houzz does not operate, control, approve nor endorse any of the Third Party Services, including their availability or accuracy. Your use of Third-Party Services is subject to the terms and policies established by third parties governing their use. Houzz is not responsible for any Third Party Services.
- 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.
- Your Content. Site Designer may automatically populate your Site Designer Website with content from your professional profile on the Houzz Platform and also enables you to add additional content. All content and materials that you display or generate on your Site Designer Website (including, without limitation, all content and materials made available or submitted by you to Houzz or through the Houzz Platform for use in connection with your Site Designer Website) will be referred to collectively as “Customer Content”. You agree to follow the Houzz Professional Profile Policy. You will provide to Houzz all Customer Content necessary for Houzz to provide the Product to you in accordance with this Agreement.
i. You agree that Customer Content should complement and enhance the Houzz Platform experience for the Houzz Platform users generally. Accordingly, Houzz will have the right to provide feedback to you for this purpose, as well as the right to refuse to accept any Customer Content or remove from the Houzz Platform or your Site Designer Website any Customer Content that does not in its judgment complement and enhance the Houzz Platform user experience.
ii. In the event of Houzz's refusal to accept any Customer Content provided by you as set forth in this Section 2, you promptly will substitute other Customer Content reasonably acceptable to Houzz.
iii. Notwithstanding any feedback, acceptance or refusal of Customer Content, you shall remain responsible for all Customer Content.
- License and Permission to Use Customer Content. You own and retain all right, title and interest to Customer Content, subject to the following license granted to Houzz. You hereby grant Houzz and its affiliates, licensees and sublicensees a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, fully paid-up license and right to use, reproduce, process, distribute, transmit, modify, publish, adapt, create derivative works of, publicly display and publicly perform Customer Content (or any portion thereof) in any format, media or distribution method (whether now known or hereafter created) on your Site Designer Website and the Houzz Platform in any manner Houzz deems appropriate or necessary (including for the purpose of providing the Product and to promote the Houzz Platform, Houzz or the Product). Such permission will be perpetual and may not be revoked for any reason, to the maximum extent permitted by law. Further, to the extent permitted under applicable law, you waive and release and covenant not to assert any moral rights that you may have in Customer Content.
- Your Responsibilities for Customer Content. You represent and warrant to us that you have the ownership rights, or you have obtained all necessary licenses or permissions from any necessary parties, to use Customer Content in accordance with this Agreement. This includes obtaining the right to grant us the rights to the use of Customer Content in accordance with this Agreement. You are in the best position to judge whether Customer Content is in violation of intellectual property or personal rights of any third-party. You accept full responsibility for avoiding infringement of the intellectual property or personal rights of others in connection with Customer Content. You are responsible for ensuring that Customer Content complies with:
i. Houzz's Acceptable Use Policy;
ii. Copyright and Trademark Policy; or
iii. any applicable law or regulation.
You agree to pay all royalties, fees and any other monies owed to any person by reason of the Customer Content.
3. Our Content and Materials.
- Definition of 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 marks, the Houzz logo, and Houzz buttons, badges, and widgets, but excluding the Customer Content), is the property of Houzz Inc., subsidiaries and affiliates or its licensors (“Our Content and Materials”). 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.
- Our License to You. Subject to these Terms, including the restrictions below, we grant you a limited, non-exclusive license to use and access Our Content and Materials. 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.
- Restrictions. Except as expressly provided 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.
- User Disputes. You agree that you are solely responsible for your agreements or interactions with any User, and we will have no liability or responsibility in connection with such agreements or interactions. We reserve the right, but have no obligation, to become involved in any way with disputes between you and any User.
- Termination by Houzz. We may terminate this Agreement at any time, without any notice or liability to you including, without limitation, in the event of your material breach of this Agreement.
- Termination by You. You may terminate your use of Site Designer at any time by taking down your Site Designer Website either by contacting your Customer Success Manager or if available, via the self-service option within your Houzz professional profile.
- Effect of Termination. In the event of any termination, you will immediately cease all access and use of the Product, and Houzz will immediately cease providing the Product to you. Sections 1(d), 1(e), 4(a), 4(c), 4(d), 2(c), 3(a) and 5(c) and 6-10 (inclusive) will survive termination of this Agreement. If you have transferred your non-Houzz website domain to Houzz or requested Houzz to purchase a non-Houzz website domain ("Non-Houzz URL") and you would like Houzz to transfer the Non-Houzz URL to you on termination of this Agreement, please send a written request to your Customer Success Manager or as provided under Section 8. Within 30 days after such request, Houzz will initiate transfer of the Non-Houzz URL with the third-party domain provider, provided that: i) you have communicated to Houzz all the information reasonably required by Houzz to complete such transfer and ii) you have no amounts past due to Houzz or its affiliates.
6. Limitation of Liability; Disclaimer
PLEASE READ THIS SECTION CAREFULLY SINCE IT LIMITS THE LIABILITY OF THE 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.
- Limitation of Liability. YOU AGREE THAT UNDER THE MAXIMUM EXTENT PERMITTED BY LAW, THE HOUZZ ENTITIES WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY. WITHOUT LIMITING THE FOREGOING, YOU AGREE THAT THE 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 POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE) 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. YOUR SOLE REMEDY WITH RESPECT TO DISSATISFACTION WITH SITE DESIGNER IS TO STOP USING SITE DESIGNER. THE 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 THE HOUZZ ENTITIES IN CONNECTION WITH SITE DESIGNER IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY.
You agree to fully indemnify, defend and hold harmless the Houzz Entities from and against any and all all third-party claims, actions and proceedings (“Claims”) arising from or relating to: i) the Customer 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 and to indemnify the Houzz Entities for all liabilities, losses, expenses, damages and costs (including, without limitation, reasonable attorneys’ fees) resulting from such Claims. We will notify you of any Claim. Your counsel defending such Claim will be subject to Houzz's prior written approval, not to be unreasonably withheld. Houzz reserves the right to participate fully in and assume joint control of the defense of any Claim. Settlement of any Claim will be subject to Houzz's prior written approval. Houzz's acceptance or approval of any Customer Content will not affect your obligations of defense and indemnification.
- Notices. Notices to you and Houzz will be provided as follows:
◦ If to Houzz, to: both email@example.com and firstname.lastname@example.org
◦ If to you, to: the email address associated with your account.
Notices will be deemed given (a) if to you, when emailed, and (b) if to us, on receipt by us.
- Consent to Communications. You agree to receive promotional text messages, calls and pre-recorded messages, any of which may be generated by automatic telephone dialing systems. You are not required to agree to receive these communications as a condition of using the Product. However, as part of the Product, you agree that Houzz and its affiliates may communicate with you for operational purposes via text messages, calls and pre-recorded messages and for operational and promotional purposes via emails and push notifications. Standard text message charges applied by your telephone carrier may apply to SMS we send. If you wish to stop receiving promotional emails or promotional text messages, we provide the following methods for you to opt-out or unsubscribe: (a) follow the instructions we provide in the email or initial text message for that category of promotional emails or text messages or (b) opt-out or unsubscribe using your settings.
9. Dispute Resolution.
If you have a dispute with Houzz, you agree to contact us through https://support.houzz.com.au to attempt to resolve the issue informally first. If we are not able to resolve the dispute informally, then this section will govern any legal dispute that relates to the Houzz Platform or involves our Services.
- Binding Arbitration. You and Houzz agree that any dispute, claim or controversy arising out of or relating to this Agreement or to your use of the Houzz Platform (collectively "Disputes") will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights. This means that you and Houzz both agree to waive the right to a trial by jury. Notwithstanding the foregoing, you may bring a claim against Houzz in "small claims" court, instead of by arbitration, but only if the claim is eligible under the rules of the small claims court and is brought in an individual, non-class, and non-representative basis, and only for so long as it remains in the small claims court and in an individual, non-class, and non-representative basis.
- Class Action Waiver. You and Houzz agree that any proceedings to resolve Disputes will be conducted on an individual basis and not in a class, consolidated, or representative action. This means that you and Houzz both agree to waive the right to participate as a plaintiff as a class member in any class action proceeding. Further, unless you and Houzz agree otherwise in writing, the arbitrator in any Dispute may not consolidate more than one person's claims and may not preside over any form of class action proceeding.
- Arbitration Administration and Rules. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at http://www.adr.org or by calling the AAA at 1-800-778-7879).
- Arbitration Process. A party who desires to initiate the arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA's roster of arbitrators with relevant experience. If the parties are unable to agree upon an arbitrator within 7 days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with AAA Rules.
- Arbitration Location and Procedure. Unless you and Houzz agree otherwise, the seat of the arbitration shall be in San Francisco, California. If your claim does not exceed USD$10,000, then the arbitration will be conducted solely on the basis of documents you and Houzz submit to the arbitrator, unless you request a hearing and the arbitrator then determines that a hearing is necessary. If your claim exceeds USD$10,000, your right to a hearing will be determined by AAA Rules. Subject to 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. Hearings may be conducted by telephone or video conference, if requested and agreed to by the parties.
- Arbitrator's Decision and Governing Law. The arbitrator shall apply California law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized by law. The arbitrator will render an award within the timeframe specified in the AAA Rules. Judgment on the arbitration may be entered in any court having jurisdiction thereof. Any award of damages by an arbitrator must be consistent with the "Limitation of Liability; Disclaimer" section above. The arbitrator may award declaratory or injunctive relief in favor of the claimant only to the extent necessary to provide relief warranted by the claimant's individual claim.
- Fees. Each party's responsibility to pay the arbitration filing, administrative and arbitrator fees will depend on the circumstances of the arbitration and are set forth in the AAA Rules.
10. General Terms
- Governing Law and Jurisdiction. This Agreement will be interpreted in accordance with the laws of the State of California and the United States of America, without regard to their conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a federal or state court located in Santa Clara County, California for any actions for which the arbitration provision, as set forth in Section 9, does not apply.
- Export. Site Designer and the Houzz Platform 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.
- Assignment. This Agreement is not assignable in whole or in part by you without the prior written consent of Houzz. Houzz may delegate any or all of its obligations under this Agreement. Houzz may assign or transfer this Agreement to any of its affiliates or in connection with a sale of all or substantially all of its assets, restructuring, change of control, merger, acquisition of Houzz, its affiliates or any of their respective businesses. This Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
- Waiver. Waiver of rights resulting from breach of any provision hereof will not be deemed to constitute a waiver of rights resulting from any previous or succeeding breach of the same or any other provision. Houzz will not be deemed to waive any of its rights under this Agreement unless expressly waived in a signed writing by Houzz.
- Headings. Any heading, caption, or section title contained is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.
- 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.
- Press Releases; Use of Houzz Marks. Without Houzz's prior written consent, you will not (i) issue any press releases or public statements concerning Houzz or the Product, including the terms of this Agreement or (ii) use, display or modify Houzz's trademarks.
- Contact. Feel free to contact us at https://support.houzz.com.au with any questions about these Terms.
Last modified as of May 5, 2020