Last Revised May 15, 2015
1.1. This license agreement (“Agreement”) governs your use of the McCormack Baron Salazar (“MBS”) web site, located at www.mccormackbaron.com, and related MBS websites or services (collectively the “Services"). Through this Agreement, MBS grants you a limited license to use the Services subject to this Agreement. This Agreement forms a legally binding agreement between you and MBS.
1.2. MBS means McCormack Baron Salazar, Inc., a Delaware corporation with a principal place of business at 720 Olive Street, Suite 2500, St. Louis, Missouri 63101.
2. Acceptance of Terms
2.1. You must agree to this Agreement before you use the Services. Your use of the Services is conditioned upon your acceptance of the terms set forth below. If you do not agree to the terms set forth in this Agreement, you may not use the Services.
2.2. By undertaking any of the following actions, you agree to be bound by the terms of this Agreement:
a) clicking that you accept or agree to these terms when presented with the option to do so; or
b) using the Services.
3. Your Use of MBS Services
3.1. Subject to your remaining in compliance with the provisions of this Agreement, MBS hereby grants to you a limited, worldwide, royalty-free, non-exclusive, non-transferable, non-sublicensable license solely to access and use the Services.
3.2. Use of the Services by children under the age of 13 is prohibited. By using the Services, you warrant that you are 13 years of age or older.
4. Privacy and Collection of Information
5. Our Proprietary Rights
5.1. MBS retains all rights, title, and interest to the Services and any updates that may be provided to you under this Agreement. MBS reserves all rights not expressly granted to you.
5.2. By submitting feedback, communications or other content to us or the Services, you give MBS and its affiliates a perpetual, irrevocable, worldwide and royalty-free license to use, host, store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display, and distribute such content. This license continues indefinitely beyond any termination of this Agreement for any reason by any party.
6. Equal Housing Opportunity
6.1. MBS is pledged to the letter and spirit of U.S. policy for the achievement of equal housing opportunity throughout the nation. MBS encourages and supports an affirmative advertising and marketing program in which there are no barriers to obtaining housing because of race, color, religion, sex, handicap, familial status or national origin and all lots and homes advertised by MBS are available on an equal opportunity basis. In addition, MBS is committed to its compliance with the laws and regulations of other jurisdictions that may add prohibitions against discrimination based on age, parental status, sexual orientation, political ideology, financial status, and the like.
7. Equal Opportunity Provider
7.1. In accordance with federal law and the U.S. Department of the Treasury policy, this institution is prohibited from discriminating on the basis of race, color, national origin, sex, age or disability. To file a complaint of discrimination, write to Department of the Treasury, Office of Civil Rights and Diversity, 1500 Pennsylvania Ave. NW, Washington D.C., 20220 or call (202) 622-1160
8. Maps and Development Plans for MBS Communities
8.1. Maps and drawings on this Website are not to scale and represent an artist's depiction of the current proposed development concepts for that particular project. Use of certain recreational amenities or participation in certain activities may be subject to additional fees and availability. No guarantee is made that the facilities and features depicted within a certain MBS community will be constructed, or that if constructed, the number, type, size and location will be as depicted. MBS does not own or control the land outside the boundaries of any MBS community and does not guarantee the current or future use thereof.
9.1. You and any business or third party subject to this Agreement through your use shall indemnify, defend and hold harmless MBS and its officers, agents and employees from and against any claims, demands or causes of action (a) alleging infringement of any third party intellectual property rights based on (i) your use of the Services or submission of content via the Services, (ii) your use of any other software or hardware that is used in conjunction with the Services, (iii) the unauthorized use of the Services, or (iv) use of the Services not in conformance with the specifications or the requirements of this Agreement, (b) based on the unauthorized use of the Services by you, or (c) based on or resulting from a breach of any provision of this Agreement by you.
10. Disclaimer of Warranties and Limitation of Liability
10.1. Other than as specifically set forth herein, the Services is provided “AS IS” and “WITH ALL FAULTS” and without warranty of any kind. You agree that the use of the Services is at your risk.
10.2. MBS MAKES NO WARRANTY OF ANY KIND TO YOU OR ANY THIRD PARTY, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES, OPERATION OF THE SERVICES, OR OUTPUT OF OR RESULTS OBTAINED FROM THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OPERABILITY, COMPLIANCE WITH APPLICABLE LAW OR NON-INFRINGEMENT AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED BY MBS AND WAIVED BY YOU.
10.3. LIMITATION OF LIABILITY. OTHER THAN AS SPECIFICALLY SET FORTH HEREIN, IN NO EVENT SHALL MBS, ITS AGENTS OR EMPLOYEES, HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR THE COST OF SUBSTITUTE GOODS OR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, LOSS OF DATA, LOSS OF USE, LOSS OF BUSINESS OPPORTUNITY OR CLAIMS OF THIRD PARTIES) ARISING IN ANY MANNER IN CONNECTION HEREWITH, OR OUT OF THIS AGREEMENT, THE PERFORMANCE OR BREACH HEREOF OR THE SUBJECT MATTER HEREOF, HOWEVER CAUSED, WHETHER BY NEGLIGENCE OR OTHERWISE, REGARDLESS OF THE FORM OF ACTION, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT PRODUCT LIABILITY, INFRINGEMENT, GOVERNMENT AGENCY FINES OR ENFORCEMENT ACTIONS OR OTHERWISE, AND WHETHER OR NOT MBS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
11. Modification and Termination of the Services
11.1. MBS may, in its sole discretion, discontinue offering the Services or terminate or suspend your access to the Services at any time.
11.2. MBS reserves the right to change or modify any of the terms and conditions contained in this Agreement at any time, in its sole discretion, by posting changes at http://www.mccormackbaron.com/legal (or another URL that MBS may provide from time to time). You are advised to regularly review the policy. You accept modifications of this Agreement through online acceptance of the terms or through your continued use of any part of the Services following the posting of any such changes or modifications.
12. General Provisions
12.1. Should any provision of this Agreement be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, that provision shall be deemed amended to achieve as nearly as possible the same economic effect as the original provision, and the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.
12.2. The failure of either party to enforce any term or condition of this Agreement shall not constitute a waiver of either party’s right to enforce each and every term and condition of this Agreement. No breach under this Agreement shall be deemed waived or excused by either party unless such waiver or consent is in writing signed by the party granting such waiver or consent. The waiver by or consent of a party to a breach of any provision of this Agreement shall not operate or be construed as a waiver of or consent to any other or subsequent breach by such other party.
12.3. The parties agree that this Agreement states the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements and representations of the parties, oral or written. This Agreement may only be amended in a writing signed by duly authorized representatives of both parties. This Agreement shall be binding upon and inure to the benefit of the parties’ authorized successors, legal representatives, and authorized assigns.
12.4. All notices, demands, requests, consents or other communications required or permitted by this Agreement (“Notices”) shall be in writing and sent to the parties at their current known addresses, or to such other address as either party may specify in writing. Notices shall be deemed duly served on or delivered (1) when delivered personally, (2) when sent to the other party by certified mail, return receipt requested, (3) when delivered by hand or sent by recognized overnight courier (with acknowledgement received by the courier), or (4) sent by facsimile, electronically confirmed and followed up immediately by standard United States mail.
12.5. This Agreement shall be governed by and construed in accordance with the laws of the State of Missouri without reference to its principles of conflicts or choice of law. The parties hereby opt out of the Uniform Computer Information Transaction Act to the fullest extent permitted by law.
12.6. YOU AGREE THAT THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THESE TERMS OR YOUR USE OF, PURCHASE OF, OR SUBSCRIPTION TO THE SERVICES SHALL BE FINAL AND BINDING ARBITRATION.
12.7. Arbitration proceedings shall be administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules in St. Louis, Missouri, except that, to the extent that either party has in any manner infringed upon or violated or threatened to infringe upon or violate the other party's patent, copyright, trademark or trade secret rights, such other party may seek injunctive or other appropriate relief in any state or federal court in the city of St. Louis, Missouri and you consent to exclusive jurisdiction and venue in such courts. If costs related to such arbitration are determined to be excessive in a consumer dispute, MBS will be responsible for paying all arbitration fees and arbitrator compensation in excess of what is deemed reasonable. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction.
12.9. IN THE CASE THAT A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, THE PARTIES WAIVE ANY RIGHT TO A JURY TRIAL, INCLUDING BUT NOT LIMITED TO, ANY PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY CONFIDENTIAL INFORMATION, INTELLECTUAL PROPERTY RIGHTS, OR SELF HOSTED SERVICES THAT ARE THE SUBJECT OF THIS AGREEMENT.
12.10. Any and all disputes proceeding in court under this Agreement shall only be resolved by courts located in the city of St. Louis, Missouri and the parties hereto consent to venue therein, the exclusive personal jurisdiction thereof, and to the sufficiency of service of process by certified or registered mail in connection with any dispute arising out of or in connection with this Agreement.
12.11. The provisions this agreement, including but not limited to sections 3, 4, 5, 6, 7, 8, 9, 10 and 11, shall survive any termination or expiration of this Agreement.