Retargeting and Builder Blast™ Terms of Service

Last updated: August 15, 2023

Definitions

Capitalized terms used but not otherwise defined in these Retargeting and Builder Blast Terms and Conditions (the “Terms”) have the meanings set forth below:

“Applicable Governing Law” means: (i) for Customers residing in Canada, laws of the Province of British Columbia and the federal laws of Canada applicable therein; and (ii) for Customers residing in the United States or elsewhere, laws of the State of New York.

“Applicable Laws” means all applicable local, municipal, state, provincial, territorial, national, and international laws, rules, regulations, and guidelines.

“Blast™” means Livabl’s Builder Blast™ marketing email campaign.

“Content” means any ad, photo, video, message, document, description, data, rating, review, comment, or other information.

“Customer”means the customer set forth on the Insertion Order.

“Customer Content” means any Content that Customer provides to Livabl or uploads through the Services, including the Marketing Materials.

“Exclusive Jurisdiction” means: (i) for Customers residing in Canada, the courts located in the Province of British Columbia; and (ii) for Customers residing in the United States and elsewhere, the state and federal courts located in New York City.

“Feedback” means any input and suggestions regarding the Services.

“Insertion Order” means the insertion order for the Services between Livabl and Customer.

“Livabl” means: (i) for Customers residing in Canada, Zonda Home Canada Inc. dba “Livabl”; and (ii) for Customers residing in the United States and elsewhere, Metrostudy Inc. dba “Livabl.”

“Livabl IP” means the Services, Livabl Marks, and any and all intellectual property related to the foregoing. For the avoidance of doubt, Livabl IP does not include Customer Content.

“Livabl Parties” means Our agents, parent and subsidiary companies, affiliates, partners, licensors (excluding Customer), or third-party service providers and their respective directors, officers, employees, and agents.

“Marketing Materials” means any and all photographs, artwork, creative elements, property descriptions and information (including, without limitation, square footage and pricing information), editorial information, copy, templates, logos, designs, and all other information, materials or other works of authorship owned by Customer and provided to Livabl for use in connection with the Services.

“Marks” means any trademarks, service marks, and other indicia of source.

“Privacy Policy” means: (i) if Customer is based in Canada, that certain Zonda Home Canada, Inc. Privacy Policy available at https://www.zondahome.com/legal/privacy-policy/canada-en/ (English) and https://www.zondahome.com/legal/privacy-policy/canada-fr/ (French); and (ii) if Customer is based in the United States or elsewhere, that certain Privacy Policy available at https://zondahome.com/legal/privacy-policy/.

“Services” means any products and services specified in the Insertion Order, including without limitation retargeting, Blasts™, and creative services in connection therewith.

“Site” means, collectively, the Livabl.com website or any related applications, as well as any publicly available versions appearing on third-party sites or offered through any distribution partner or other listing syndication.

Binding Agreement and Privacy Policy

The Terms together with the Insertion Order (collectively, this “Agreement”) are a legally binding contract between Customer and Livabl.

Notwithstanding any provision in the Insertion Order or anything else, if Customer is an advertising, marketing, or other firm or agency entering into this Agreement in relation to or for one of its underlying clients (the “Underlying Client”), then Customer represents, warrants, and covenants that: (i) such Underlying Client has read and understands this Agreement, including, without limitation, the Insertion Order; (ii) such Underlying Client has authorized Customer to enter into this Agreement, including, without limitation, the Insertion Order; (iii) such Underlying Client is in agreement with and has accepted this Agreement, including, without limitation, the Insertion Order; and (iv) such Underlying Client has agreed, for the benefit of Livabl, that such Underlying Client (A) will adhere to this Agreement as if it were Customer and to the fullest extent this Agreement applies to Customer or the Underlying Client, and (B) is responsible for any breach of this Agreement to the same extent as Customer (provided that this clause (iv) does not limit any liability or responsibility of Customer under this Agreement, including, without limitation, the Insertion Order). Livabl reserves the right to notify the Underlying Client regarding any overdue and unpaid invoices. For the avoidance of doubt, the term “Customer” as used herein shall refer to both the advertising, marketing, or other firm or agency entering into this Agreement and the Underlying Client where the context so requires.

Please review the Privacy Policy (for residents of Canada, https://www.zondahome.com/legal/privacy-policy/canada-en/ (English) and https://www.zondahome.com/legal/privacy-policy/canada-fr/ (French); and for residents of the United States and elsewhere, (https://zondahome.com/legal/privacy-policy/), which describes Livabl’s privacy policies and practices in detail with respect to the Services. As Livabl may amend the Privacy Policy from time to time, Livabl advises Customer to revisit the Privacy Policy on a frequent basis for changes. Customer hereby consents to Livabl’s use of Customer’s and Customer’s users’ personal information in accordance with this Agreement and for the limited purposes described in the Privacy Policy. By agreeing to this Agreement, Customer acknowledges and agrees that certain information about Customer and its users is subject to the Privacy Policy. “Customer’s users” include any employee, contractor, agent, or representative using the Services on Customer’s behalf. Customer is solely responsible for all usage of the Services by Customer and by Customer’s users. Customer is solely responsible for all Customer Content.

Retargeting

Under Livabl’s retargeting Service, advertisements are geo-targeted to an audience who has expressed interest in new homes on the Site. Unless otherwise specified in the Insertion Order, targeted advertising campaigns are placed in over 500 online advertising networks with the advertisements linking to Customer’s website with a customized UTM code that can be tracked through Customer’s own analytics. Advertisements can be targeted to North American locations of Customer’s choosing.

Builder Blast™

Livabl’s Blast™ targets prospective home buyers who want to follow similar home development projects as Customer’s projects. The frequency of the Blast™ is set forth on the Order and the scope of each Blast™ is subject to Livabl’s reasonable discretion based on the targeted audience. Open and click rate statistics are available approximately seven (7) days after the Blast™ is sent and will be provided upon request made from Customer.

Other Services

Other products and services may be specified in the Insertion Order, including creative services.

Changes to the Terms

Livabl reserves the right to modify the Terms at any time. Livabl will provide Customer with thirty (30) days’ prior written notice of any such modification, and Customer will be deemed to have accepted such revised Terms unless Customer sends written notice to Livabl that Customer objects to such modification within such 30-day period. If Customer does send written notice of objection, the parties will meet and confer in good faith regarding a mutually acceptable modification as reasonably required for Livabl to maintain consistent terms with its customers. In the event Customer and Livabl cannot come to an agreement on the material portions of these new terms, Customer may cancel the agreement with 30 days advanced notice.

Changes to the Services

Livabl is constantly changing and improving the Services. Livabl may deploy changes, updates, or enhancements to the Services at any time. Livabl may also add or remove functionalities or features, or Livabl may suspend or stop certain Services altogether. Livabl shall in no way be held liable for any consequence which results from Livabl’s decision to modify or discontinue providing any Service, provided that if Livabl ceases providing any specific paid Service, the fee with respect to such Service shall no longer be owed by Customer following any such cessation. Any changes to the Services may not be consistent across all platforms or devices. If any changes require Customer to obtain a new, additional, or different device or other equipment, hardware, software, and/or telephone, mobile, wireless, Internet and/or other services, Customer is solely responsible for any additional expense.

Proprietary Nature of the Services

All Content provided by Livabl in connection with the Services is protected by copyright and other intellectual property laws. Such Content is owned by Livabl and/or its licensors and suppliers. This includes all know-how, technology, and other intellectual property or proprietary information developed during the provision of the Services. Customer may not copy, reproduce, sell, license, publish, distribute, modify, display, perform, combine, create a derivative work from, repost, or otherwise use any Content (other than Customer Content) or portion thereof in any other way or for any other purpose without the prior written consent of Livabl in each instance.

If Customer chooses to provide any Feedback, then Customer hereby grants Livabl an unrestricted, perpetual, irrevocable, non-exclusive, fully paid, royalty-free right to use the Feedback in any manner and for any purpose, including to improve the Site or the Services or to create other products and services.

Customer Content

Customer understands that the completion and launch of certain Marketing Services may depend on the timely provision by Customer of Marketing Materials. Customer will, at its expense, submit the Marketing Materials relevant to the Insertion Order, in accordance with Livabl’s then-existing policies. Customer also will, at its expense, obtain and provide Livabl in a timely manner with such other Content and third-party and internal consents and approvals (including in respect of media assets and other Content to be used in respect of the Services), and other cooperation and support as is, and in the forms and formats, reasonably requested or required by Livabl in connection with the provision of any of the Services.

By submitting Customer Content to Livabl or in connection with the Services, Customer represents, warrants, and agrees that: (i) Customer is the sole author and owner of the intellectual property rights thereto; (ii) Customer has all necessary authority, rights, and permissions to submit Customer Content; (iii) all “moral rights” that Customer may have in such Content have been voluntarily waived by Customer; (iv) Customer Content is not false, inaccurate, incomplete, or misleading; (v) use of Customer Content does not violate this Agreement or any Applicable Law and will not cause injury to any person or entity; (vi) Customer Content does not infringe, violate, or misuse any third party's intellectual property, including any copyright, patent, trademark, trade secret, or other proprietary rights, rights of publicity, or privacy rights; and (vii) such Customer Content will not cause injury to any person or contain any computer viruses, worms, malware, or other potentially damaging computer programs or files.

Customer hereby grants to Livabl a worldwide, royalty-free, perpetual, irrevocable, nonexclusive, fully transferable, fully sublicensable right and license to copy, modify, display, distribute, perform, create derivative works from, store, and otherwise use and exploit Customer Content in any form, media, software, or technology of any kind now existing or developed in the future for the purpose of providing the Services. Customer further grants to Livabl a royalty-free right and license to use Customer’s name, image, and likeness in connection with the reproduction or distribution of the Marketing Materials hereunder.

Fees and Payment

Except as otherwise expressly set forth below in the Terms or on the face of the Insertion Order, the payment terms regarding any Insertion Order are due upon receipt of the invoice. A 1.5% per month finance charge (or, if less, the maximum amount chargeable under applicable law) may be assessed, in Livabl’s discretion, on any invoice more than 30 days in arrears. In addition, Customer will reimburse Livabl for the cost of any and all collection and legal services utilized by Livabl to collect any amount due hereunder.

Customer acknowledges that the pricing under this Agreement is the confidential information of Livabl, and Customer agrees to maintain such information in strict confidence (except that Customer may disclose such information to its employees and contractors and the Underlying Client (as such term is defined below) on a need-to-know basis under confidentiality provisions at least as restrictive as those herein) and to use such information only in furtherance of this Agreement.

All amounts paid by or on behalf of Customer in relation to this Agreement are non-refundable. The Order is non-cancellable by Customer, and thus Customer is fully responsible to Livabl for any and all Services ordered thereunder.

All fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Livabl's income.

If Customer believes that Livabl has invoiced Customer incorrectly, Customer must contact Livabl no later than 30 days after the date of the first invoice that Customer is disputing. If Customer does not contact Livabl within such 30-day period, then the original amount owed will be deemed final and binding, and Customer will be required to pay such amount without adjustment or modification. Any billing inquiries should be directed to billing@livabl.com.

Data Privacy, Cookies, Consents, and the Like

Customer and the Underlying Client will comply with all laws and regulations applicable Customer or the Underlying Client or such person’s performance in relation to this Agreement. In furtherance and not limitation of the preceding sentence, Customer and the Underlying Client will comply with all applicable privacy and data protection laws, rules and regulations (including, without limitation, Canada's Anti-Spam Legislation (also known as CASL), Canada’s Personal Information Protection and Electronic Documents Act (also known as PIPEDA), the U.S. CAN-SPAM Act of 2003, and any other laws, rules and regulations applicable to the protection of personally identifiable information, privacy, credit information and sensitive data) and with all applicable industry self-regulatory obligations, such as the NAI, eDAA, and Digital Advertising Alliance (“DAA”) Code located at http://www.aboutads.info/. Customer and the Underlying Client will have sole responsibility to provide (and will provide) any required disclosures to all applicable visitors, end users and recipients and to obtain (and will obtain) any necessary consents from such visitors, end users and recipients, in each case (i) regarding the Services provided and to be provided by Livabl hereunder, and (ii) necessary or appropriate for collection, storage (e.g., via HTTP cookies) and processing of such visitors’, end users’ and recipients’ respective personally identifiable information/personal data in relation to such Services. Customer and the Underlying Client will maintain and make available on each applicable website a statement of the privacy practices of the operator of that website. Each such privacy statement shall clearly and conspicuously disclose that Customer, the Underlying Client and any other third party (e.g., Livabl) may: (a) collect, use, and disclose information for marketing purposes, including but not limited to interest based advertising, (b) use pixels, cookies and other tracking technologies, including, without limitation, non-cookie based technologies, (c) use information collected via such website to send marketing messages to users even when not logged into the website; and (d) collect information from forms on the website prior to a website visitor hitting a submit button. Each privacy statement required by this section must also include a link to the DAA (or similar industry) opt-out link located at http://optout.aboutads.info/#!/.

Disclaimer of Warranties

CUSTOMER ACKNOWLEDGES AND AGREES THAT, UNLESS AND EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THE INSERTION ORDER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES AND LIVABL CONTENT ARE PROVIDED “AS IS”, AND LIVABL EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION: (A) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT (WHETHER OR NOT LIVABL KNOWS, HAS REASON TO KNOW, OR HAS BEEN ADVISED OF ANY SUCH PURPOSE); (B) ANY WARRANTY REGARDING RESULTS OBTAINABLE OR TO BE OBTAINED AS A RESULT OF PROVISION OR USE OF ANY OF THE SERVICES AND LIVABL CONTENT PROVIDED IN RELATION TO THIS AGREEMENT; AND (C) ANY WARRANTY OF UNINTERRUPTED, TIMELY, OR ERROR-FREE OPERATION OF ANY PRODUCT OR MATERIAL OR PROVISION OF ANY SERVICE.

Indemnification

Customer (and the Underlying Client, jointly and severally with Customer) will indemnify and hold harmless Livabl, its members, officers, employees, agents and affiliates, from and against any and all liabilities, losses and damages resulting from or relating to any allegation, claim, suit, action, cause of action, demand, investigation, judgment or order that arises from or relates to any Customer Content or any breach of any of Customer’s or the Underlying Client’s representations, warranties, and covenants in this Agreement.

Liability Limitations

NOTWITHSTANDING ANYTHING ELSE, NEITHER LIVABL NOR ANY OF ITS VENDORS AND LICENSORS SHALL BE LIABLE WITH RESPECT TO ANY PRODUCT, SERVICE, MATERIAL OR OTHER SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY THEORY OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, FOR: (I) ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR OTHER INDIRECT DAMAGES OF ANY CHARACTER, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFITS, REPLACEMENT COSTS OR LOST BUSINESS, EVEN IF THE LIABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (II) DAMAGES IN THE AGGREGATE GREATER THAN THE FEES PAID BY CUSTOMER TO LIVABL UNDER THIS AGREEMENT. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY; THE FOREGOING LIMITATIONS ARE ESSENTIAL TO THIS AGREEMENT, WITHOUT WHICH LIMITATIONS LIVABL WOULD NOT AGREE TO THIS AGREEMENT.

Miscellaneous

This Agreement (which consists of the Terms and the Insertion Order) constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior and contemporaneous agreements, negotiations, representations and warranties, understandings and communications, whether written or oral, between the parties hereto regarding such subject matter. In furtherance of the foregoing, this Agreement, including, without limitation, the Terms and the Insertion Order, prevails over any terms or conditions contained in any other document whenever issued by Customer pertaining to the subject matter of this Agreement.

By submitting the Insertion Order, Customer accepts that the Insertion Order is subject to the Terms. In the event of any ambiguity, inconsistency or conflict between the provisions of the Insertion Order and the provisions of the Terms, except as otherwise provided in the Terms, the provisions of the Insertion Order shall control and govern with respect to such ambiguity, inconsistency or conflict.

In relation to this Agreement or any of its subject matter, Livabl shall not be liable for any delay in performing or failure to perform to the extent that such delay or failure is a direct result of any cause beyond Livabl’s reasonable control. Causes beyond Livabl’s reasonable control may include, but not be limited to, acts of God (such as fire, storm, earthquake, hurricanes, tornados and the like), electrical outages, labor disputes, wars, hostilities, revolutions, riots, civil commotion, national emergency, unavailability of supplies, plagues, epidemics, pandemics, outbreaks of infectious disease or any other public health crisis (including related quarantines and employee restrictions), force of nature or explosion or any law, proclamation, regulation, ordinance or other act or order of any court, government or governmental agency.

All gender references used in this Agreement will include all genders, and the singular will include the plural and the plural will include the singular whenever and as often as may be appropriate. The words “include” and “including,” and other words of similar import when used herein will not be deemed to be terms of limitation but rather will be deemed to be followed in each case by the words “without limitation.” The words “herein,” “hereto,” “hereof” and “hereunder” and other words of similar import in this Agreement will be deemed in each case to refer to this Agreement as a whole and not to any particular article, section or other subdivision of this Agreement. Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement. No provision of this Agreement shall be construed against a party by reason of the fact that such party or its legal counsel drafted that provision, notwithstanding any rule of law or any legal decision to the contrary.

This Agreement shall be governed by and construed in accordance with the Applicable Governing Law without regard to the conflicts of law provisions thereof or of any other jurisdiction. The parties hereby submit to the jurisdiction of the federal and state courts in the Exclusive Jurisdiction and agree that said courts have the sole and exclusive jurisdiction over any and all disputes, claims, actions, controversies and causes of action involving any of such parties that arise out of or relate to this Agreement. The prevailing party in any action to enforce this Agreement shall be entitled to reimbursement (from the other party) of such prevailing party’s costs and fees (including, without limitation, reasonable attorneys’ fees and expert witness fees) incurred in connection with such action. In the event that any of the provisions of this Agreement are held by a court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. No amendment, modification or waiver of this Agreement (or any part hereof) will be binding upon any particular party hereto unless made in writing and signed by a duly authorized representative of such party, and no failure or delay in enforcing any right will be deemed a waiver. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their successors and assigns, provided, however that Customer may not assign or delegate this Agreement, in whole or in part, without the prior written consent of Livabl. Nothing in this Agreement creates, or will be deemed to create, third-party beneficiaries of or under this Agreement. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which taken together shall constitute one and the same instrument. A party’s facsimile, electronically scanned or electronic signature to this Agreement shall be deemed an original for purposes of evidencing such party’s execution of this Agreement.

The Terms have been drawn up in the English language at the express request of the parties. La présente convention a été rédigée en anglais à la demande expresse des parties.