These terms and conditions of use (“Terms of Use”) govern your use of our online interfaces and properties (e.g., websites) owned and controlled by Avid Ratings, Inc. (“Avid”), including the avidratings.com, gosurvey.com, avidreports.com, and client.avidratings.com websites (collectively, the “Site”). Your compliance with these Terms of Use is a condition to your use of the Site. If you do not agree to be bound by these Terms of Use, promptly exit this Site. Our Site and services allows you, among other activities, to communicate with us, access customer reviews of products and services related to home ownership, take virtual tours of model homes, review and revise your user preferences, interact with other customers interested in things relating to home ownership, and sign up for promotional offers and other services from us or our trusted partners.  Accordingly, please also consult our Privacy Policy for a description of our privacy practices and policies when you provide personal information in connection with our Site and services.

In some instances, both these Terms of Use and separate guidelines, rules, or terms of use or sale setting forth additional or different terms or conditions will apply to your use of the Site (in each such instance, and collectively “Additional Terms”).  To the extent there is a conflict between these Terms and any applicable Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.  [MC1]

Binding Arbitration.[MC2]   These Terms of Use provide that all disputes between you and Avid that in any way relate to these Terms of Use or your use of the Site will be resolved by BINDING ARBITRATION. ACCORDINGLY, YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT (INCLUDING IN A CLASS ACTION PROCEEDING) to assert or defend your rights under these Terms of Use (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the Section below entitled Dispute Resolution; Arbitration Agreement for the details regarding your agreement to arbitrate any disputes with Avid.

1. Ownership of the Site

All pages within this Site and any material made available for download are the property of Avid, or its licensors or suppliers, as applicable. The Site is protected by United States and international copyright and trademark laws. The contents of the Site, including without limitation all data, files, documents, text, photographs, images, audio, and video, and any materials accessed through or made available for use or download through this Site (“Content”) may not be copied, distributed, modified, reproduced, published or used, in whole or in part, except for purposes authorized by these Terms of Use or otherwise approved in writing by Avid. You may not frame or utilize framing techniques to enclose, or deep link to, any name, trademarks, service marks, logo, Content or other proprietary information (including images, text, page layout, or form) of Avid without our express written consent.

We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Site, so long as: (a) the links only incorporate text, and do not use any Avid trademarks; (b) the links and the content on your website do not suggest any affiliation with Avid or cause any other confusion; and (c) the links and the content on your website do not portray Avid or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to Avid.  Avid reserves the right to suspend or prohibit linking to the Site for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.

2. Site Access, Security and Restrictions; Passwords

You are prohibited from violating or attempting to violate the security of the Site, including, without limitation, (a) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; or (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (c) accessing or using the Site or any portion thereof without authorization, in violation of these Terms of Use or in violation of applicable law.

You may not use any scraper, crawler, spider, robot or other automated means of any kind to access or copy data on the Site, deep-link to any feature or content on the Site, bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Site.

Violations of system or network security may result in civil or criminal liability. Avid will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of this Site or any activity being conducted on this Site.

In the event access to the Site or a portion thereof is limited requiring a user ID and password (“Protected Areas”), you agree to access Protected Areas using only your user ID and password as provided to you by Avid. You agree to protect the confidentiality of your user ID and password, and not to share or disclose your user ID or password to any third party. You agree that you are fully responsible for all activity occurring under your user ID. Your access to the Site may be cancelled or restricted by Avid at any time with or without cause.

You agree to, and you hereby, defend, indemnify, and hold Avid and its subsidiaries and each of their respective employees, directors, members, managers, shareholders, agents, mandataries, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, the “Avid Parties”) harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees and judicial and extra-judicial fees and disbursements) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Avid Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your use of the Site and our services and your activities in connection with the Site and our services; (ii) your breach or alleged breach of these Terms of Use or any Additional Terms; (iii) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Site and our services or your activities in connection with the Site and our services; (iv) information or material transmitted through the Site and our services, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (v) any misrepresentation made by you; and (vi) Avid Parties’ use of the information that you submit to us (all of the foregoing, “Claims and Losses”).  You will cooperate as fully required by Avid Parties in the defense of any Claim and Losses.  Notwithstanding the foregoing, Avid Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses.  Avid Parties reserve the right to assume the exclusive defense and control of any Claims and Losses.  You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Avid Party.

3. Accuracy and Integrity of Information

Although Avid attempts to ensure the integrity and accuracy of the Site, it makes no representations, warranties or guarantees whatsoever as to the correctness or accuracy of the Site and Content thereon. It is possible that the Site could include typographical errors, inaccuracies or other errors, and that unauthorized additions, deletions and alterations could be made to the Site by third parties. In the event that an inaccuracy arises, please inform Avid so that it can be corrected. Avid reserves the right to unilaterally correct any inaccuracies on the Site without notice. Information contained on the Site may be changed or updated without notice. Additionally, Avid shall have no responsibility or liability for information or Content posted to the Site from any non-Avid affiliated third party.

4. Export Policy and Restrictions

You acknowledge that the services and Content on the Site, which may include technology and software, are subject to the customs and export control laws and regulations of the United States of America and may also be subject to the customs and export laws and regulations of the country in which the services or Content are being accessed. By purchasing, downloading or using technology or software from the Site, you agree to abide by the applicable laws, rules and regulations – including, but not limited to the Export Administration Act and the Arms Export Control Act – and you represent and warrant that you will not transfer, by electronic transmission or otherwise, the software or technology to a foreign national or a foreign destination in violation of any applicable law. By using any services, you agree that you will not use any services with, or provide such any such services to any person, who is forbidden from receiving the services under the Export Administration Regulations or any economic sanctions maintained by the U.S. Department of Treasury, U.S. antiboycott regulations, or U.S. economic sanctions, including the export and antiboycott restrictions found in the Export Administration Regulations or the sanctions regulations administered by the U.S. Office of Foreign Assets Control or any similar laws of your jurisdiction. You shall indemnify and hold harmless Avid from all claims, demands, damages, costs, fines, penalties, attorneys’ fees and all other expenses arising from your failure to comply with this provision or applicable export control, antiboycott, or economic sanctions laws and regulations.

5. Links to Other Sites

Avid makes no representations whatsoever about any other website that you may access through this Site. When you access a non-Avid website, please understand that it is independent from Avid, and that Avid has no control over the content on that website. In addition, a link to a non-Avid website does not mean that Avid endorses or accepts any responsibility for the content, or the use, of the linked website. It is up to you to take precautions to ensure that whatever you select for your use or download is free of such items as viruses, worms, Trojan horses, and other items of a destructive nature. If you decide to access any of the third party websites linked to this Site, you do this entirely at your own risk.

6. User Generated Content, Reviews, Feedback and other Postings to the Site

If you submit, upload or post any comments, ideas, suggestions, information, files, videos, images or other materials to us or our Site (“User Generated Content”), you agree not to provide any User Generated Content that (1) is defamatory, abusive, libelous, unlawful, obscene, threatening, harassing, fraudulent, pornographic, or harmful, or that could encourage criminal or unethical behavior, (2) violates or infringes the privacy, copyright, trademark, trade dress, trade secrets or intellectual property rights of any person or entity, or (3) contains or transmits a virus or any other harmful component. You agree not to contact other Site users through unsolicited e-mail, telephone calls, mailings or any other method of communication. You represent and warrant to Avid that you have the legal right and authorization to provide all User Generated Content to Avid for the purposes and Avid’s use as set forth herein. Avid shall have a royalty-free, irrevocable, transferable right and license to use the User Generated Content in whatever manner Avid desires, including without limitation, to copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from or sell or distribute such User Generated Content or incorporate such User Generated Content into any form, medium or technology throughout the world. Avid is and shall be under no obligation (1) to maintain any User Generated Content in confidence; (2) to pay to you any compensation for any User Generated Content; or (3) to respond to any User Generated Content. You hereby acknowledge and agree that you have received good and valuable consideration in exchange for the rights granted by you hereunder in and to any User Generated Content that you post, which consideration includes, without limitation, the ability to access and participate in the activities on the Site.

Avid does not regularly review posted User Generated Content, but does reserve the right (but not the obligation) to monitor and edit or remove any User Generated Content submitted to the Site. You grant Avid the right to use the name that you submit in connection with any User Generated Content. You agree not to use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of any User Generated Content. You are and shall remain solely responsible for the content of any User Generated Content you make and/or submit. Avid and its affiliates take no responsibility and assume no liability for any User Generated Content submitted by you or any third party.

You agree to defend, indemnify and hold Avid harmless from and against all third party claims, damages and expenses (including reasonable attorneys’ fees and judicial and extra-judicial fees and disbursements) against or incurred by Avid arising out of any User Generated Content you post or allow to be posted to the Site.

7. Claims of Copyright Infringement

We disclaim any responsibility or liability for copyrighted materials posted on our Site.  If you believe that your work has been copied in a manner that constitutes copyright infringement, please follow the procedures set forth below.

Avid respects the intellectual property rights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act (“DMCA”), we will respond promptly to notices of alleged infringement that are reported to Avid’s Designated Copyright Agent, identified below.

Notices of Alleged Infringement for Content Made Available on the Site

If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through our Site by sending us a notice (“Notice”) complying with the following requirements.

1. Identify the copyrighted works that you claim have been infringed.

2. Identify the material or link you claim is infringing (or the subject of infringing activity) and that access to which is to be disabled, including at a minimum, if applicable, the URL of the link shown on the Site where such material may be found.

3. Provide your mailing address, telephone number, and, if available, email address.

4. Include both of the following statements in the body of the Notice:

“I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”

“I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”

5. Provide your full legal name and your electronic or physical signature.

Deliver this Notice, with all items completed, to our Copyright Agent:

_______________________

_______________________

_______________________

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Disclaimer of Warranties

AVID DOES NOT WARRANT THAT ACCESS TO OR USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SITE WILL BE CORRECTED. THIS SITE, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN IT OR ANY SITE-RELATED SERVICE, IS PROVIDED “AS IS,” WITH ALL FAULTS, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF INFORMATION, QUALITY, QUIET ENJOYMENT, AND TITLE/NON-INFRINGEMENT. AVID DOES NOT WARRANT THE ACCURACY, COMPLETENESS OR TIMELINESS OF THE INFORMATION OBTAINED THROUGH THE SITE.

YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THIS SITE, SITE-RELATED SERVICES, AND LINKED WEBSITES. AVID DOES NOT WARRANT THAT FILES AVAILABLE FOR DOWNLOAD WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER DESTRUCTIVE PROGRAMMING. YOU ARE RESPONSIBLE FOR IMPLEMENTING PROCEDURES SUFFICIENT TO SATISFY YOUR NEEDS FOR DATA BACK UP AND SECURITY.

WARRANTIES RELATING TO ANY PRODUCTS OR SERVICES OFFERED BY AVID ARE SUBJECT TO SEPARATE WARRANTY TERMS AND CONDITIONS, IF ANY, PROVIDED WITH OR IN CONNECTION WITH THE APPLICABLE PRODUCTS OR SERVICES.

8. Limitation of Liability Regarding Use of Site

AVID AND ANY THIRD PARTIES MENTIONED ON THIS SITE ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, BUSINESS INTERRUPTION OR LOST OPPORTUNITY) ARISING OUT OF OR RELATING IN ANY WAY TO THE SITE, SITE-RELATED SERVICES, CONTENT OR INFORMATION CONTAINED WITHIN THE SITE, OR ANY LINKED WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY AND RECOURSE FOR DISSATISFACTION WITH THE SITE, SITE-RELATED SERVICES, OR LINKED WEBSITES IS TO STOP USING THE SITE OR THOSE SERVICES. TO THE EXTENT ANY ASPECTS OF THE FOREGOING LIMITATIONS OF LIABILITY ARE NOT ENFORCEABLE, THE MAXIMUM AGGREGATE LIABILITY OF AVID TO YOU WITH RESPECT TO YOUR USE OF THIS SITE IS $500 (FIVE HUNDRED DOLLARS).

9. Dispute Resolution; Arbitration Agreement.

If any controversy, allegation, or claim arises out of or relates to the Site, the Content, these Terms, or any Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of Avid’s actual or alleged intellectual property rights (an “Excluded Dispute”), which includes those actions set forth in this Section 10, then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it.  Our notice to you will be sent to you based on the most recent contact information that you provide us.  But if no such contact information exists or if such information is not current, then the foregoing obligations are not applicable.  Your notice to us must be sent to: Avid Ratings, Inc., 918 Deming Way, Suite 201, Madison WI 53717.  For a period of sixty (60) days from the date of receipt of notice from the other party, Avid and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Avid to resolve the Dispute or Excluded Dispute on terms with respect to which you and Avid in each of our sole discretion, are not comfortable.

If we cannot resolve a Dispute through the process above, you and Avid agree that any Dispute, claim or controversy arising out of or relating in any way to these Terms of Use or your use of the Site, including products and services ordered or purchased through the Site, shall be determined by binding arbitration instead of in courts of general jurisdiction. Arbitration uses a neutral arbitrator instead of a judge or jury, and is subject to very limited review by courts. Arbitration allows for more limited discovery than in court, however, we agree to cooperate with each other to agree to reasonable discovery in light of the issues involved and amount of the claim. Arbitrators can award the same damages and relief that a court can award, but in so doing, the arbitrator shall apply substantive law regarding damages as if the matter had been brought in court, including without limitation, the law on punitive damages as applied by the United States Supreme Court. You agree that, by agreeing to these Terms of Use, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Avid are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms of Use and any other contractual relationship between you and Avid.

Disputes will be resolved solely by binding arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”), in accordance with the then-current streamlined Arbitration Rules and Procedures (“Rules”), or by any other arbitration administration service that you and an officer or legal representative of Avid consent to in writing.  All Disputes shall be determined by one arbitrator; however, if Disputes involve claims exceeding One Million Dollars, upon the request of Avid, the Disputes shall be decided by three arbitrators. All arbitration hearings shall commence within ninety (90) days of the demand for arbitration and close within ninety (90) days of commencement and the award of the arbitrators shall be issued within thirty (30) days of the close of the hearing.  However, the arbitrators, upon a showing of good cause, may extend the commencement of the hearing for up to an additional sixty (60) days.  If an in-person arbitration hearing is required, then it will be conducted in the competent jurisdiction in Wisconsin closest to Madison, Wisconsin.  You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable Rules; but if applicable Rules or laws require Avid to pay a greater portion or all of such fees and costs in order for this Section to be enforceable, then Avid will have the right to elect to pay the fees and costs and proceed to arbitration or refrain from so doing.  The arbitrator will apply and be bound by these Terms and any Additional Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim.  Issues relating to the enforceability of the arbitration and class action waiver provisions contained herein are for the court to decide.

YOU AND AVID AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Avid agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.[MC4]

The foregoing provisions of this Section 10 will not apply to any legal action taken by either party to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Site, any Content, or Avid’s intellectual property rights (including such Avid may claim that may be in dispute), Avid’s operations, or Avid’s products or services.

If this Agreement to Arbitrate provision is found to be unenforceable, then (a) the entirety of this arbitration provision shall be null and void, but the remaining provisions of these Terms of Use shall remain in full force and effect; and (b) exclusive jurisdiction and venue for any claims will be in state, provincial or federal courts located in and for Madison, Wisconsin. Any Excluded Dispute shall be submitted exclusively to the courts of competent jurisdiction in Madison, Wisconsin.[MC5]

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 10 WITHIN ONE (1) YEAR [MC6] AFTER THE DISPUTE ARISES — OR IT WILL BE FOREVER BARRED.  Commencing means, as applicable: (a) by delivery of written notice as set forth above; (b) filing for arbitration with JAMS as set forth above; or (c) filing an action in state, provincial or federal court.  The parties expressly waive any contrary statute of limitations or time bars, both legal and equitable, to the Disputes.[MC7]

10.    Revisions; General

Avid reserves the right, in its sole discretion, to terminate your access to all or part of this Site, with or without cause, and with or without notice. In the event that any of the Terms of Use are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these Terms of Use shall otherwise remain in full force and effect. These Terms of Use constitute the entire agreement between Avid and you pertaining to the subject matter hereof. In its sole discretion, Avid may from time-to-time revise these Terms of Use by updating this posting. You should, therefore, periodically visit this page to review the current Terms of Use, so you are aware of any such revisions to which you are bound. Your continued use of the Site after revisions to these Terms of Use shall constitute your agreement to the revised Terms of Use. These Terms of Use are binding on you and us and our respective heirs, legatees, representatives, successors and assigns and, as indicated herein, are for the benefit of Avid, its affiliates, as well as their respective content and service providers and the directors, officers, employees, mandataries and agents of each of the foregoing.