Home Bay Website and Service, Terms and Conditions
Effective Date: February 5, 2021
Last Updated: February 5, 2021
DISCLAIMER TO HOMEOWNERS AND BUYERS BY USING THIS SERVICE, YOU UNDERSTAND AND AGREE THAT THE COMPANY IS NOT REPRESENTING YOU AS A REAL ESTATE AGENT OR BROKER OR PROPERTY MANAGER. ALSO BY USING THIS SERVICE, YOU MAY COME INTO CONTACT WITH OR USE THE SERVICES OF VARIOUS REAL ESTATE AGENTS OR BROKERS, VENDORS, ADVERTISERS OR OTHER THIRD PARTIES. THE COMPANY IS AN INDEPENDENT WEB-BASED PROVIDER OF REAL ESTATE RELATED DIRECTORY SERVICES AND CONTENT AND DOES NOT CONTROL OR SUPERVISE ANY SUCH AFFILIATES, AGENTS, BROKERS, VENDORS, ADVERTISERS OR OTHER THIRD PARTIES, AND THE COMPANY IS NOT RESPONSIBLE FOR THEIR ACTIONS.
This legal agreement (herein “Agreement”) between you (herein “you” or “Seller”) and Clever Real Estate, Inc. should be read carefully before using www.HomeBay.com (herein the “Website”) and other/or mobile application (collectively the “Service”).
Clever Real Estate, Inc. (hereinafter “Clever”, “us”, “we”, or “our”) is a Delaware corporation with a business office located at 6358 Delmar Blvd suite 300. St. Louis MO 63130 and a licensed real estate brokerage in MO, License # 2017042277. HomeBay.com is a web domain owned by Clever and hosted by a third-party service provider.
Your access to and use of the Website and/or Service, in whatever form, is conditioned on your acceptance of and compliance with this Agreement. This Agreement applies to all visitors, users and others who access or use the Website and/or Service. If you don’t agree with the terms and conditions of this Website and/or Service, then we ask you please to leave this Website and refrain from using the Service. However, if you do use this Website and/or Service, then that usage shall operate as an acceptance of and informed consent to the Agreement, evidencing your intent to be bound by the Terms and Conditions herewith.
You agree not to enter or use the Website and/or Service for any purpose that is not expressly permitted by these Terms and Conditions, or is otherwise unlawful. You further agree to comply with all applicable laws, statutes, ordinances, regulations, contracts and licenses regarding your use of the service including, without limitation, those applicable to the Internet, e-mail, privacy, copyrights, trademarks and data.
If you provide any information to us, you agree to provide only true, accurate, current and complete information. If you provide information to us about any third party, including, but not limited to, personally identifiable information, you represent and warrant that you are specifically authorized to provide such information to us so that we may use, process and transfer such personally identifiable information, and you assume all responsibility for dissemination and use of the information provided.
Clever, the Website, and the Service are all operated in compliance with all applicable federal and state housing laws.
Terms for Sellers and Buyers of Real Estate
When you submit information to this Website and/or Service, you agree and authorize Clever to share this information with one of the professional real estate agents or brokers associated with Clever to make a match. You also agree and consent to being contact by Clever’s real estate professionals either by e-mail, telephone, mail or any other reasonable means of communication, including autodialed phone calls, text messages, and prerecorded messages from Clever and its partners, on any landline or cell phone number provided to Clever, even if such number is on a Do Not Call list and even if charges are incurred for the call or text. You understand that consent to receiving such communications is not a condition of using Clever’s Service and that you can call 1-833-2-CLEVER should you choose not to receive such communications.
You are obligated to provide information that is accurate and complete so that Clever can provide you with a real estate agent that is suited for the potential transaction and Clever reserves the right to terminate anyone from the Service who provides false, inaccurate or misleading information.
CLEVER IS MERELY A REFERRAL SERVICE. All terms and conditions between a home seller or buyer and a real estate professional are governed by a separate legal agreement that does not involve Clever and is solely between the home owners or buyers and the real estate professional(s). Clever does not endorse, validate, or recommend any legal agreements between home owners and buyers and real estate professionals. Please consult your own attorney for this type of work.
Even though your participation in this referral service (hereinafter “the Offering”) may be terminated by you or Clever at any time with written notice and is totally voluntary, any referrals that Clever may have with a real estate professional prior to termination are still effective.
You agree and acknowledge that Clever may modify the terms and conditions of this Website, Service, and/or Offering at any time. Clever will notify you in advance of any significant changes to our Website, Service, and/or Offering, providing you with the option to discontinue the Website, Service, and Offering. Your continued use of the Website, Service, and/or Offering after the period listed in the notice indicates agreement and acceptance of any new terms and conditions imposed prior to your usage.
For quality assurance, you agree that Clever may make a digital recording of any telephone calls with Clever or one of Clever’s real estate professionals for the sole purpose of providing quality assurance.
Moreover, Clever’s policy is to respond to claims of intellectual property infringement. Clever, under the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) (“DMCA”) and other applicable intellectual property laws and will promptly investigate notices of alleged infringement and will take appropriate action.
Under the DMCA, notifications of claimed copyright infringement should be sent to the designated agent of Clever’s service provider.
This Website and/or Service may contain third party advertisements and links to third party sites. Clever does not make any representation as to the accuracy or suitability of any of the information contained in those advertisements or sites and does not accept any responsibility or liability or the conduct or content of those advertisements and sites and the offerings made by the third parties. Third party advertisements or links to other sites where goods or services are advertised are not endorsements or recommendations by Clever of the third party sites, goods, or services. Clever takes no responsibility for the content of the ads, promises made, or the quality/reliability of the products or services offered in all advertisements.
Clever intends that the information contained on our Website and/or Service be accurate and reliable; however, errors sometimes occur. In addition, we may make changes and improvements to the information provided at any time. Accordingly, we do not guarantee the accuracy of any information available on the Website and/or Service, and are not responsible for any errors, omissions, or misrepresentations and any information should be independently verified.
Marketing statements or assertions made by Clever on this Website and/or Service related to the amount of savings a homeowner might obtain through use of our Website, Service, and Offering are premised upon mathematical assumptions and hypotheticals that may not be applicable to every situation. Any such statements or assertions made on this Website and/or Service regarding the “savings” or “average savings” of a homeowner are based upon Clever’s own internal analysis of home sales and commission data, may not be universally accurate, and are only intended to illustrate the financial distinction between use of the “discount” real estate agent model versus use of the traditional real estate agent model (as explained on our Website). Homeowners and Buyers should inquire with their real estate brokers or agents about the potential savings they could receive by using our services.
Payment of any CashBack, rebate, or incentive for use of the Clever platform is contingent upon Clever’s receipt of a Service Fee related to the same use of its platform. If Clever fails to collect a Service Fee, it shall have no obligation to pay any CashBack, rebate, or similar incentive. In the event Clever collects a Service Fee that is less than the money owed under any CashBack, rebate, or other similar incentive program, Clever shall have the right to reduce the CashBack, rebate, or incentive to an amount equal to or less than its Service Fee
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
These Terms and Conditions and all matters arising out of or in connection with such Terms and Conditions, Website, Service, or Offering shall be governed by and interpreted according to the laws of the State of Missouri (without applying the state’s conflict-of-law principles).
Any dispute arising out of or connected with this Website, Service, Offering and/or these Terms and Conditions not resolved amicably between you and Clever shall be resolved exclusively by binding arbitration as follows. You agree to give up your right to go to court to sue or seek relief from us.
Arbitration shall take place in the City of St. Louis, Missouri, and shall be administered under the procedures established by the American Arbitration Association or as may otherwise be agreed upon by the parties.
The party asserting the dispute (the “Petitioner”) shall indicate an intent to commence arbitration hereunder by giving written notice of such intent to the other party (the “Respondent”).
If the Petitioner and Respondent are unable to resolve the dispute within 15 days following the receipt by the Respondent of the above notice, arbitration shall commence upon the delivery by the Petitioner to the Respondent of a petition complying with the Arbitration Rules of the American Arbitration Association (the “Rules”) and setting forth at a minimum (i) the acts or omissions complained of, (ii) the section(s) of the terms and conditions breached or otherwise involved, and (iii) the relief sought. The Respondent shall respond to such petition in conformity with such Rules and a counterclaim shall be permitted if timely filed and served.
The arbitration shall be conducted by a single arbitrator in conformance with such Rules except that (i) the Petitioner and Respondent may provide any instructions to the arbitrator(s) which deviate from such Rules as the Petitioner and Respondent may mutually agree, and (ii) unless the Petitioner and Respondent mutually agree otherwise, they shall have the right to conduct discovery in any manner and to the extent authorized by the Federal Rules of Civil Procedure as interpreted by the Federal courts in the Eastern District of Missouri.
If the Petitioner and Respondent are able to agree upon a single arbitrator within 10 days following commencement of the arbitration, such individual shall serve as the arbitrator. If the parties cannot mutually agree upon the selection of an arbitrator within 10 days following commencement of the arbitration, the arbitrator shall be selected in accordance with the rules of the then effective Commercial Arbitration Rules of the American Arbitration Association.
With respect to any award in arbitration, the arbitrator: shall issue an award in writing which (A) sets forth findings of fact, (B) resolves each specific claim, (C) attaches a reasoned opinion, and (D) is signed by the arbitrator; may compel specific performance by the Petitioner or the Respondent of his or its respective obligations under the terms and conditions or award injunctive relief to restrain any breach of the terms and conditions by a Petitioner or Respondent, in each instance without the necessity of the Petitioner (A) alleging or proving damages as a result of the breach, or (B) posting any bond; provided, however, seeking or obtaining equitable relief shall not preclude a party to the arbitration from also seeking or obtaining an award for money damages in the arbitration; and shall equitably allocate between the Petitioner and Respondent all (A) administrative fees and expenses of the arbitrator(s) and the arbitration, and (B) fees (including reasonable legal fees) and expenses incurred by the prevailing party in the arbitration.
Judgment upon an award in arbitration may be entered in any court of competent jurisdiction in the United States.
Class Action Waiver / Venue
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
You agree that you will resolve any disputes or claim with Clever on an individual basis, and that any claims arising out of or in connection with the Website, Service, Offering and/or Terms and Conditions will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. You further agree not to participate in any consolidated, class or representative proceeding brought by any third party arising out of or in connection with the Website, Service, Offering, and/or Terms and Conditions.
If any court or arbitrator determines that the preceding waiver is void or unenforceable or that arbitration can proceed on a class basis, then the dispute or claim will not be subject to arbitration.
For any dispute or claim that is not subject to arbitration, you consent to exclusive jurisdiction and venue in the federal courts sitting in the Eastern District of Missouri, unless no federal subject matter jurisdiction exists, in which case you consent to exclusive jurisdiction and venue in the state courts sitting in St. Louis County, Missouri. You hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which you may now or hereafter have to the laying of venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.
Modifications to the Website, Service, and Terms and Conditions
We are entitled to terminate or modify all or part of any of the Website or Service at any time, without notice to you. We encourage you to check the Website regularly to ensure you are aware of the current Terms and Conditions. We may modify these Terms and Conditions at any time by updating this posting. If we do so, we’ll also update the effective date at the top of this page.
You agree not to engage in the following prohibited activities: (a) engaging in activities or submitting materials that could be harmful to minors; (b) submitting materials that are patently offensive to the online community, such as content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (c) engaging in activity or submitting materials that harasses or advocates harassment of another person; (d) engaging in activity, or submitting materials, or promoting information that is false, misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; and (e) engaging in activity that involves the transmission of “junk mail” or unsolicited mass mailing or “spam” or harvesting or otherwise collecting personally identifiable information about Website and/or Service users, including names, phone numbers, addresses, email addresses, without their consent; (f) submitting materials that contain viruses, Trojan horses, worms, or any other similar forms of malware; (g) submitting materials that displays pornographic or sexually explicit material of any kind; (h) submitting materials that provide instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses; submitting materials that contain restricted or password only access pages, or hidden pages or images; (i) engaging in activities or submitting materials that solicit passwords or personally identifiable information for unlawful purposes from other users; (j) engaging in unauthorized commercial activities and/or sales without our prior written consent such as advertising, solicitations, contests, sweepstakes, barter, and pyramid schemes; (k) using any robot, spider, cancelbot, other automatic device, or manual process to monitor, copy, or “scrape” web pages or the content contained in the Website and/or Service or for any other unauthorized purpose without our prior written consent; (l) decompiling, reverse engineering, or disassembling the software or attempting to do so; or using any device, software, or routine to interfere or attempt to interfere with the proper working of the Website and/or Service; (m) taking any action that imposes an unreasonable or disproportionately large load on the Website and/or Service or our hardware and software infrastructure or that of any of our licensors or suppliers, (n) use any of its trademarks as metatags on other websites; (o) use the service in any manner that is illegal or impairs the operation of the service or its availability or usage by others; (p) display any part of the service in frames (or any content via in-line links); and/or (q) decompiling, reverse engineering, or disassembling the software or attempting to do so.
Indemnification. You hereby agree to indemnify and hold harmless Clever and its affiliates, officers, members, directors, employees, shareholders, information providers, suppliers and licensees (collectively, “Indemnified Parties”) from and against any and all liability and costs, including, without limitation, reasonable attorney’s fees, incurred by any Indemnified Party in connection with any claim arising out of (a) any claim that any claim that you misappropriated, infringed or otherwise violated any privacy or trademark, copyright, or other intellectual property right of any third party and/or (b) any breach, or alleged breach, of any of the Terms and Conditions of this Website and/or Service by you.
Disclaimer of Warranties. You expressly acknowledge and agree that your use of the Website, Service, and/or Offering is at your sole risk. This is provided on an “AS IS”, “WITH ALL FAULTS”, and “AS AVAILABLE” basis. Clever makes no representations or warranties relating to the Website, Service, and/or Offering including, without limitation, representations or warranties that (a) the Website, Service, and or Offering shall meet your requirements, (b) the operation of the Website, Service, and/or Offering will be uninterrupted or error free, (c) the Website, Service, and/or Offering will be secure; or (d) any defects in the Website, Service, and/or Offering will be corrected. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ACTUALLY HEREBY DISCLAIMS ANY AND ALL WARRANTIES AND/OR REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, REASONABLE CARE, AND/OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT ACTUALLY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), IN EACH INSTANCE WITH RESPECT TO THE SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ACTUALLY FURTHER DISCLAIMS ANY AND ALL WARRANTIES, AND/OR REPRESENTATIONS OF QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. IN NO EVENT SHALL CLEVER BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THE TERMS AND CONDITIONS OF THIS WEBSITE, SERVICE, AND/OR OFFERING, WHETHER FOR BREACH OF CONTRACT, IN TORT OR OTHERWISE, EVEN IF ACTUALLY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH DAMAGES ARE A REASONABLY FORESEEABLE CONSEQUENCE OF A BREACH OF THIS AGREEMENT OR A TORT THAT FALLS WITHIN THE SCOPE OF THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Clever’s total liability to you for any damages arising out of or in any way connected with the Terms of Service or the Service, whether for breach of contract, in tort or otherwise, exceed ten dollars ($10).
You have no obligation to work with Clever through the Website, Service, and/or Offering to buy or sell a home and you can terminate your account at any time.
When you create an account with us, you must provide us information that is accurate, complete, and current at all times. Failure to do so constitutes a breach of the agreement, which may result in immediate termination of your account.
You are responsible for safeguarding the password that you use to access the Website and/or Service and for any activities or actions under your password, whether your password is with Website and/or Service or a third-party service.
You agree not to disclose your password to any third party. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account.
Any information you obtain from the Website, Service, and/or Offering is intended for your personal, non-commercial use. You will not copy, redistribute, or retransmit any of the information provided except in connection with your personal home search.
We may terminate or suspend access to our Website and/or Service immediately, without prior notice or liability, for any reason whatsoever, including without limitation if you breach the Agreement.
All provisions of the Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
We may terminate or suspend your account immediately, without prior notice or liability, for any reason whatsoever, including without limitation if you breach the Agreement.
Upon termination, your right to use the Website and/or Service will immediately cease. If you wish to terminate your account, you may simply discontinue using the Website and/or Service.
You agree to indemnify and hold harmless Clever from and against any and all loss, expenses, damages, and costs, including without limitation reasonable attorney’s fees, resulting, whether directly or indirectly, from your violation of the agreement. You also agree to indemnify and hold harmless Clever from and against any and all claims brought by third parties arising out of your use of the Website, Service, and/or Offering and any content you make available via the Website, Service, and/or Offering by any means, including without limitation through a posting, a link, reference to content, or otherwise.
Clever has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites or services. You further acknowledge and agree that Clever 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 use of or reliance on any such content, goods or services available on or through any such websites or services.
By submitting a form to Clever you consent to have Clever or one of its partners to contact you via autodialed phone calls and text messages, and prerecorded messages, on the landline or cell number provided even if you are on any Do Not Call list and even if you are charged for the call or text. Your consent is not a condition of receiving access to the Website, Service, and/or Offering. You can call 1-833-2-CLEVER for services if you do not consent.
If any provision of this agreement is unlawful, void or unenforceable, then the unlawful, void or unenforceable provision shall be modified in accordance with the applicable law as nearly as possible to reflect the original intention of the applicable provision, and the remaining sections of the Terms and Conditions shall remain in full force and effect.
Any feedback, comments, requests for technical support, and other communications should be directed to customer service at 1-833-2-CLEVER. Hours of operation are from 9:00 am to 5:00 pm, Central Time, Monday through Friday, excluding holidays.
CLEVER CONTACT INFORMATION
Email: [email protected]