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Last Updated: March 6, 2006

PLEASE READ THIS TERMS OF USE AGREEMENT CAREFULLY BEFORE USING THIS SITE. 
SmartProperty Systems (“Company,” “we,” “us”) provides this web site and all site-related services (collectively, the “Site”) subject to your compliance with the terms and conditions set forth in this agreement (the “Agreement”).  This Agreement governs the relationship between Company and you, the Site visitor and/or member (including your employer and any affiliates and its or their employees, contractors and agents, collectively “you”) with respect to your use of the Site.  It is important that you read carefully and understand the terms and conditions of this Agreement.  By using the Site, you agree to be bound by this Agreement.  If you do not agree to these terms and conditions, please do not use the Site. 

We reserve the right at any time to:

  • Change the terms and conditions of this Agreement;
  • Change the Site, including eliminating or discontinuing any content on or feature of the Site; or
  • Change any fees or charges for use of the Site.

Any changes we make will be effective automatically seven (7) days after posting such changes on the Site.  Your continued use of the Site following such changes will be deemed acceptance of such changes.  Be sure to return to this page periodically to ensure familiarity with the most current version of this Agreement.  Upon our request, you agree to sign a non-electronic version of this Agreement.

  1. Materials.  The information and materials provided through the Site, including any data, text, graphics, images, audio and video clips, logos, icons, software and links (collectively, the “Materials”), are intended to be used by Common Interest Developments (CIDs) to track assets through the use of reserve budgets and preparing Assessment and Reserve Summary Disclosures.  Unless otherwise specified on the Site, you may download Materials displayed on the Site, and may use the downloaded Materials, solely for your internal business needs.  You may print a single copy of any textual Material available for downloading on the Site, and may execute a single copy of any software available for downloading on the Site (“Software”).  You must retain all copyright and other proprietary notices on downloaded and copied Materials, and any such downloads or copies are subject to the terms and conditions of this Agreement.  Further, the Materials remain the property of Company or its licensors or suppliers.  Use or downloading of the Software and other Materials is conditioned on acceptance of the terms and conditions of any license agreements relating to such Software or other Materials, including agreements of third parties.  By acquiring or using the Materials, you agree to such terms and conditions.  You may not download, copy or use any of the Materials except as expressly authorized by this Agreement and, in any event, you may not distribute, modify, transmit or publicly display the Materials without the written consent of Company or, if so indicated in writing by Company, its licensors or suppliers.

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  2. Registration.  Some areas of the Site may require you to be or become a SmartProperty Systems member.  When and if you register to become a member, you agree to (a) provide accurate, current and complete information about yourself as prompted by our registration form [and accompanying user agreement] (including your email address) and (b) maintain and update your information (including your email address) to keep it accurate, current and complete.  You acknowledge that, if any information provided by you is untrue, inaccurate, not current or incomplete, we reserve the right to terminate this Agreement and your use of the Site.

    As part of the registration process, you will be asked to select a username and password.  We may refuse to grant you a username that impersonates someone else, is or may be illegal, is or may be protected by trademark or other proprietary rights law, is vulgar or otherwise offensive, or may cause confusion, as determined by us in our sole discretion.  You will be responsible for the confidentiality and use of your username and password and agree not to transfer or resell your use of or access to the Site to any third party.  If you have reason to believe that your account with us is no longer secure, you must promptly change your password by visiting http://www.SmartProperty.com/ and immediately notify us of the problem by emailing us at info@smartproperty.com. You are entirely responsible for maintaining the confidentiality of your USERNAME and password and for any and all activities (INCLUDING PURCHASES, AS APPLICABLE) that ARE CONDUCTED through your account.

  3. Code of Conduct.  While using the Site, Materials and/or Software, you agree not to:

    • Restrict or inhibit any other visitor or member from using the Site, including, without limitation, by means of “hacking” or defacing any portion of the Site;
    • Use the Site, Materials or Software for any unlawful purpose;
    • Express or imply that any statements you make are endorsed by us, without our prior written consent;
    • Transmit (a) any content or information that is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, or infringes our or any third party’s intellectual property or other rights; (b) any material, non-public information about companies without the authorization to do so; (c) any trade secret of any third party; or (d) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or other unsolicited commercial communication (except as otherwise expressly permitted by us),
    • Engage in spamming or flooding;
    • Transmit any software or other materials that contain any viruses, worms, trojan horses, defects, date bombs, time bombs or other items of a destructive nature;
    • Modify, adapt, sub-license, translate, sell, reverse engineer, decompile or disassemble any portion of the Site or Software;
    • Remove any copyright, trademark or other proprietary rights notices contained in the Site, Materials or Software;
    • “Frame” or “mirror” any part of the Site without our prior written authorization;
    • Link to any page of or content on the Site other than the URL located at http://www.SmartProperty.com/;
    • Use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Site or its contents; or
    • Harvest or collect information about Site visitors or members without their express consent.

    While using the Site, Materials and/or Software, you agree to comply with all applicable laws, rules and regulations.

  4. Making purchases.  If you wish to purchase services described on the Site, you may be asked by Company to supply certain information applicable to your purchase, including, without limitation, credit card and other information.  You understand that any such information will be treated by Company in the manner described in our Privacy Policy.  You agree that all information that you provide to Company or such third party provider will be accurate, current and complete.  You agree to pay all charges incurred by you or any users of your account and credit card (or other applicable payment mechanism) at the price(s) in effect when such charges are incurred.  You will also be responsible for paying any applicable taxes relating to your purchases.

    Verification of information applicable to a purchase may be required prior to Company’s acceptance of any order.  Price and availability of any product or service are subject to change without notice.  Current rates for any service available through the Site may be obtained by calling our Member Services Department at 888-HOA-6007.

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  5. Information Provided by Company.  Although Company strives to provide Materials that are both useful and accurate, laws, regulations, data and other information change frequently and are subject to varying interpretations.  In addition, the facts and circumstances of every situation differ.  Accordingly, although Company endeavors to use reasonable care in assembling the Materials, the Materials may not be up-to-date, accurate or complete.  Please contact Company at 888-HOA-6007 or info@smartproperty.com to determine whether you have the most recent version of the Materials made generally available by Company, although even the most recent version available from Company may not be up-to-date, accurate or complete. 

    In addition, portions of the Materials have been contributed to the Site by various industry specialists and service providers.  The inclusion of such information does not indicate any approval or endorsement of such providers, and Company expressly disclaims any liability with respect to the foregoing. 

    Company hopes and believes that the Materials will be helpful as background reference, but they should not be construed as legal, accounting or other professional advice on any subject matter.  Company has endeavored to comply with legal and ethical requirements known to the Company personnel who compiled this Site, but Company is not engaged in rendering legal, accounting or other professional services, and availability or use of the Materials is not intended to create, and does not create, any attorney-client, accounting-client or other professional services relationship.  Use of the Materials is not an adequate substitute for obtaining legal, accounting or other professional advice from a licensed provider in your jurisdiction.  You agree you will not act or refrain from acting based on any of the Materials without first seeking the services of a competent professional.

  6. Submissions and Postings.  Please note that, because we and our designees host message boards and other forums found on the Site (collectively, the “Forums”) and, therefore, redistribute materials you give to us, we require certain rights in those materials  Accordingly, by sending or transmitting to us creative suggestions, ideas, notes, concepts, information or other materials (collectively, “Submissions”), or by posting such Submissions to any area of the Site, you grant us and our designees a worldwide, non-exclusive, sublicenseable (through multiple tiers), assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale and import such Submissions in any media now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the Submissions.  None of the Submissions will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and we will not be liable for any use or disclosure of any Submissions.

  7. Forums.  Our Forums are designed to help connect HOA’s and the people that share experiences in managing reserve budgets.   Information on our Forums is provided by our staff and other contributors, some of whom use anonymous screen names and are people not otherwise connected with Company.  You acknowledge that a large volume of information is available in our Forums and that people participating in such Forums occasionally post messages or make statements, whether intentionally or unintentionally, that are inaccurate, misleading or deceptive.  We neither endorse nor are responsible for such messages or statements, or for any opinion, advice, information or other utterance made or displayed on the Site or Forums by third parties, whether such third parties are visitors to the Site, members of the Company community or others.  The opinions expressed in the Forums reflect solely the opinion(s) of the participants and may not reflect the opinion(s) of Company.  We are not responsible for any errors or omissions in articles or postings, for hyperlinks embedded in messages or for any results obtained from the use of such information.  Under no circumstances will we be liable for any loss or damage caused by your reliance on such information obtained through the Site.

    We have no obligation to monitor the Site or the Forums, or any Submissions or other materials that you or other third parties transmit or post on the Site or the Forums.  You acknowledge and agree that we have the right (but not the obligation) to monitor the Site and the Forums and the materials you transmit or post; to alter or remove any such materials (including, without limitation, any posting to a Forum); to disclose such materials and the circumstances surrounding their transmission to any third party in order to operate the Site properly; to protect ourselves, our sponsors and our members and visitors; and to comply with legal obligations or governmental requests.

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  8. Links.  The Site contains links to other Internet web sites which may or may not be owned or operated by Company.  Company has not reviewed all of the web sites that are linked to the Site, and Company has no control over such sites.  Unless otherwise explicitly stated, Company is not responsible for the content of such web sites, any updates or changes to such sites, or the privacy or other practices of such sites, and the fact that Company offers such links does not indicate any approval or endorsement of any material contained on any linked site.  Company is providing these links to you only as a convenience.  Accordingly, we strongly encourage you to become familiar with the terms of use and practices of any linked site.  Further, it is up to you to take precautions to ensure that whatever links you select or software you download (whether from the Site or other sites) is free of such items as viruses, worms, trojan horses, defects, date bombs, time bombs and other items of a destructive nature.

  9. Claims of Copyright Infringement.  The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law.  If you believe in good faith that materials hosted by Company infringe your copyright (for example, materials posted by Company on one of our Forums), you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked.  The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the Site are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Company to locate the material on the Site; (d) the name, address, telephone number and email address (if available) of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.  If you believe in good faith that a notice of copyright infringement has been wrongly filed by Company against you, the DMCA permits you to send Company a counter-notice.  Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright/ for details.  Notices and counter-notices with respect to the Site should be sent to Damian Esparza, 2207 Garnet Ave., Suite H, San Diego, CA 92109.  We suggest that you consult your legal advisor before filing a notice or counter-notice.  Also, be aware that there can be penalties for false claims under the DMCA.

  10. Ownership and Restrictions on Use.  The Site is owned and operated by Company in conjunction with others pursuant to contractual arrangements, and the Materials (and any intellectual property and other rights relating thereto) are and will remain the property of Company and its licensors and suppliers.  The Materials and the selection, compilation, collection, arrangement and assembly thereof are protected by U.S. and international copyright, trademark and other laws, and you acknowledge that these rights are valid and enforceable.  You may not copy, reproduce, republish, upload, post, transmit or distribute Materials or other content or information available on or through the Site in any way without our prior written permission.  The Materials may be used solely to the extent necessary for your authorized use of the Site, as provided in this Agreement or as expressly authorized in writing by Company or, if so indicated in writing by Company, its licensors or suppliers.  Modification of the Materials or use of the Materials for any other purpose is a violation of our copyright and other proprietary rights, and is strictly prohibited.  You acknowledge that you do not acquire any ownership rights by using the Site or the Materials. 

    If you download Software from the Site, such Software is licensed on a limited basis to you by us or the owner of such Software.  Title to the Software is not transferred to you.  You own the medium on which the Software is recorded, but we retain all right, title and interest in and to the Software, and all intellectual property rights therein.  You may not re-sell, decompile, reverse engineer, disassemble or otherwise reduce the Software to a human-perceivable form, or transfer the Software to any third party.

    The trademarks, logos, and service marks displayed on the Site (collectively the “Trademarks”) are the registered and unregistered trademarks of Company, Company’s licensors and suppliers, and others.  The Trademarks owned by Company, whether registered or unregistered, may not be used in connection with any product or service that is not Company’s, in any manner that is likely to cause confusion with customers, or in any manner that disparages Company.  Nothing contained on the Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark without the express written permission of Company, Company’s licensors or suppliers, or the third party owner of any such Trademark.  Misuse of any Trademarks is prohibited, and Company will aggressively enforce its intellectual property rights in such Trademarks, including via civil and criminal proceedings.

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  11. Jurisdictional Issues.  The Site is solely directed to individuals residing in the United States.  We make no representation that Materials available on or through the Site are appropriate or available for use in other locations.  Those who choose to access the Site from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent local laws are applicable.  The Software is further subject to United States export controls.  No Software may be downloaded or otherwise exported or re-exported (a) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.  By downloading or using any Software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.

    We reserve the right to limit the availability of the Site and/or the provision of any service, program, film or other product described thereon to any person, geographic area or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any such service, program, film or other product that we provide.

  12. Termination.  This Agreement shall remain effective until terminated in accordance with its terms.  Either party may terminate this Agreement immediately upon notice to the other party.  In addition, we reserve the right to immediately terminate this Agreement, and/or your access to and use of the Site or any portion thereof, at any time and for any reason, with or without cause.  Upon termination of this Agreement by either party, your right to use the Site shall immediately cease, and you shall destroy all Materials obtained from the Site and all copies thereof, whether made under the terms of this Agreement or otherwise.

  13. Disclaimers.  THE SITE, THE MATERIALS ON THE SITE, ANY SERVICE OBTAINED THROUGH THE SITE AND THE SOFTWARE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED.  TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.  Applicable law may not allow the exclusion of implied warranties, so the above exclusions may not apply to you.  COMPANY AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS DO NOT WARRANT THAT YOUR USE OF THE SITE OR THE SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE, THE SERVER(S) ON WHICH THE SITE IS HOSTED OR SOFTWARE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.  YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL TELEPHONE, COMPUTER HARDWARE AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE SITE, AND ALL CHARGES RELATED THERETO.  YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE AND THE SOFTWARE AND YOUR RELIANCE THEREON.  NO OPINION, ADVICE OR STATEMENT OF COMPANY OR ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, AGENTS, MEMBERS OR VISITORS, WHETHER MADE ON THE SITE, IN THE SOFTWARE OR OTHERWISE, SHALL CREATE ANY WARRANTY.  YOUR USE OF THE SITE AND ANY MATERIALS PROVIDED THROUGH THE SITE ARE ENTIRELY AT YOUR OWN RISK.

    A possibility exists that the Site, Materials or Forums could include inaccuracies or errors, or information or materials that violate these Terms of Use (specifically, the Code of Conduct above).  Additionally, a possibility exists that unauthorized alterations could be made by third parties to the Site, Materials or Forums.  Although we attempt to ensure the integrity of the Site, we make no guarantees as to the Site’s completeness or correctness.  In the event that a situation arises in which the Site’s completeness or correctness is in question, please contact us at info@smartproperty.com with, if possible, a description of the material to be checked and the location (URL) where such material can be found on the Site, as well as information sufficient to enable us to contact you.  We will try to address your concerns as soon as reasonably practicable.  For copyright infringement claims, see the section on “Claims of Copyright Infringement,” above.

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  14. Limitation of Liability.  NEITHER COMPANY NOR ANY OF OUR AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS OR SPONSORS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS OR OTHER REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA OR LOST PROFITS), UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE SITE AND/OR MATERIALS CONTAINED ON THE SITE, THE SOFTWARE, ANY LINKED SITE OR ANY PRODUCT OR SERVICE PURCHASED THROUGH THE SITE.  YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE, MATERIALS, SOFTWARE OR ANY LINKED SITE IS TO STOP USING THE SITE, MATERIALS, SOFTWARE OR LINKED SITE, AS APPLICABLE.  THE SOLE AND EXCLUSIVE MAXIMUM LIABILITY TO COMPANY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, SHALL BE THE TOTAL AMOUNT PAID BY YOU, IF ANY, TO ACCESS THE SITE.  Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

  15. Indemnification.  You agree to indemnify, defend and hold Company, our affiliates, licensors, suppliers, advertisers and sponsors, and our and their directors, officers, employees, consultants, agents and other representatives, harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees) and other expenses that arise directly or indirectly out of or from (a) your breach of this Agreement, including any violation of the Code of Conduct, above; (b) any allegation that any Submissions or other materials you submit to us or transmit to the Site infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; and/or (c) your activities in connection with the Site.

  16. Questions.  The Site is provided by SmartProperty Systems.  If you have any questions, comments or complaints regarding this Agreement or the Site, feel free to contact us at 2207 Garnet Ave., Suite H, San Diego, CA 92109 and 888-HOA-6007 or info@smartproperty.com. 

  17. Notice for California Users.  Under California Civil Code Section 1789.3, California Site users are entitled to the following specific consumer rights notice:  The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California  95814, or by telephone at (916) 445-1254 or (800) 952-5210.

  18. Miscellaneous.  This Agreement is governed by and construed in accordance with the laws of the State of California, United States of America, without regards to its principles of conflicts of law.  You agree to submit to the exclusive jurisdiction of any State or Federal court located in the County of San Diego, California, United States of America, and waive any jurisdictional, venue or inconvenient forum objections to such courts.  If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.  This is the entire Agreement between us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral Agreements between us with respect to such subject matter. This Agreement is not assignable, transferable or sublicenseable by you except with Company’s prior written consent.  No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.  Any heading, caption or section title contained in this Agreement is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.

    Please read the Company Privacy Policy.
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