Open toolbar TERMS OF USE Updated December 20, 2019 PLEASE READ CAREFULLY BEFORE CONTINUING TO ACCESS, BROWSE OR USE THIS WEBSITE Welcome to http://www.mbkhomes.com/ (the “Website”) operated by MBK Homes LLC and its family of companies which are owned by MBK Homes LLC (collectively, “MBK,” “us” or “we”). Use of the Website is voluntary. Please carefully read this Terms of Use (the “Terms of Use”), which contains the terms and conditions for its use (“Terms”) before using the Website. By accessing, browsing and using the Website or providing any information to MBK via the Website, you indicate that you agree that the Terms apply to your use of the Website and your acceptance of the Terms contained in this agreement. The use of the Website is subject to the additional terms, disclaimers, caveats, and notices that may appear elsewhere on the Website. You accept these Terms by accessing or using this Website in any manner, even if you do not create an account at this Website. To respect the privacy of children and to comply with the Children’s Online Privacy Protection Act, we do not knowingly provide products or services to children under the age of 18. This Website is a general audience site that is not designed nor intended to collect personal information from children. You represent and warrant that you are at least 18 years of age and of legal competence to enter into this agreement. If you are using this Website on behalf of your employer, you represent and warrant that you are authorized to accept these Terms on behalf of your employer. THE SECTION OF THIS TERMS OF USE ENTITLED “BINDING ARBITRATION” CONTAINS A BINDING CLASS ACTION WAIVER. THIS SECTION AFFECTS YOUR RIGHTS ABOUT HOW TO RESOLVE DISPUTES THAT YOU MAY HAVE WITH US. READ IT CAREFULLY. Acceptance of Terms This Terms of Use is a legally binding agreement between you, any third party to whom you provide or allow access to the Website or who otherwise benefits from your use of the Website (collectively sometimes referred to herein as “you” or “your”), and MBK. By accessing and using the Website, you acknowledge that you have read, understood and agree to be bound by the Terms which form an agreement that is effective as if you had signed it. If at any time you do not agree to the Terms, then you are not authorized to access, browse or use the Website and you must discontinue use of the Website immediately. MBK may amend the Terms from time to time without notice to you, other than posting the amended Terms to the Website and changing the version number and date of the Terms of Use which is noted just below the first line of text that is the title of the Terms of Use. If you do not agree to the then-current Terms, you must immediately discontinue use of the Website. In addition, use of particular services or information on the Website may be subject to additional terms and conditions that will be available in connection with such services and information. Unless otherwise agreed to in writing between you and MBK, the Terms, as may be further amended, shall govern your use of the Website. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, PLEASE DO NOT USE THIS WEBSITE. Privacy Policy Information that you provide to MBK via the Website is subject to our Privacy Policy. For more information, please read our full Privacy Policy. Disclaimer of Warranties The content provided on the Website is intended for informational purposes only and is not intended to constitute an offer or solicitation. MBK assumes no responsibility or liability for any actions taken as a result of using the Website, or for errors or omissions in the content of the Website. YOU EXPRESSLY UNDERSTAND AND AGREE THAT: YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK. THE WEBSITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. MBK EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OF TITLE, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AS TO THE INFORMATION, MATERIALS, CONTENT, DATA, PRODUCTS OR SERVICES ON THE WEBSITE OR THE UNINTERRUPTED ACCESS PROVIDED TO OR IN CONNECTION WITH THE WEBSITE. ALTHOUGH MBK ATTEMPTS TO PROVIDE YOU WITH ACCURATE INFORMATION, THE WEBSITE IS INTENDED TO BE FOR INFORMATIONAL PURPOSES ONLY. PRODUCT AND OTHER INFORMATION, INCLUDING PRICING, AVAILABILITY, AND OTHER INFORMATION MADE AVAILABLE ON THE WEBSITE ARE SUBJECT TO CHANGE AT ANY TIME WITHOUT NOTICE TO YOU AND MAY NOT BE ACCURATE, COMPLETE, CURRENT OR RELIABLE. MBK MAKES NO REPRESENTATION OR WARRANTY THAT (1) THE WEBSITE WILL MEET YOUR EXPECTATIONS, (2) THE WEBSITE CONTAINS ACCURATE, COMPLETE, CURRENT, ADEQUATE, USEFUL, CORRECT, TIMELY OR RELIABLE INFORMATION, (3) MBK WILL UPDATE THE INFORMATION ON THE WEBSITE, (4) THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE (5) ANY ERRORS OR DEFECTS IN THE WEBSITE WILL BE CORRECTED, OR (6) THAT THE WEBSITE IS SECURE, FREE FROM BUGS, VIRUSES, ERRORS, HARMFUL COMPONENTS OR OTHER ISSUES OR LIMITATIONS. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY IN WHOLE OR IN PART TO YOU. IN THAT EVENT, EXCEPT AS PROHIBITED BY LAW, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO 60 DAYS FROM THE DATE YOU FIRST ACCESS THE WEBSITE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE IS DONE AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. THIS DISCLAIMER OF WARRANTIES AND LIABILITIES APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OR PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF OR USE OF RECORDS OR SERVICES, WHETHER FOR BREACH OF CONTRACT, TORTUOUS BEHAVIOR, NEGLIGENCE OR UNDER ANY OTHER CAUSE OF ACTION. Limitation of Liability TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AGREE THAT MBK SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA, BUSINESS INTERRUPTION OR OTHER INTANGIBLE LOSSES (EVEN IF MBK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (1) THE USE OR THE INABILITY TO USE THE WEBSITE; (2) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM THE USE OR INABILITY TO USE THE WEBSITE; OR (3) ANY OTHER MATTER RELATING TO THE WEBSITE, AND WITHOUT REGARD TO WHETHER SUCH DAMAGES, OR CLAIMS OF DAMAGES ARISE BASED IN CONTRACT, TORT OR OTHERWISE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THE LIMITATIONS OF DAMAGES AND LIABILITY PROVIDED HEREIN ARE MATERIAL ELEMENTS OF THIS TERMS OF USE. YOU ACKNOWLEDGE AND AGREE THAT MBK WOULD NOT BE ABLE TO PROVIDE THE WEBSITE WITHOUT SUCH LIMITATIONS. If you are a California resident, you agree to waive California Civil Code Section 1542, and any similar provision in any other jurisdiction (if you are a resident of such other jurisdiction), which states: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” Product Information, Specifications, Pricing, Renderings MBK’s product and other information posted to the Website are subject to change at any time and may not be accurate, complete, current or reliable. You should not assume that MBK has updated the information, materials or other content on the Website. No information or content provided on the Website shall be construed to be an offer or solicitation for sale. Any photographs or renderings of people in these materials do not depict racial preference. MBK’s Proprietary Rights, Limited Licenses, Trademarks and Trade Secrets You acknowledge and agree that any content used in connection with the Website, including any software accessible through the Website, contains MBK’s proprietary and confidential information that is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. “MBK”, “MBK Real Estate Companies”, “MBK Homes”, “MBK Senior Living” and all other MBK’s product and service names and design logos are trademarks and/or service marks of MBK and/or its affiliates (the “MBK Marks”). As between you and MBK, MBK shall own all right, title and interest in and to the MBK Marks. Subject to the Terms, MBK grants you a personal, non-transferable, non-commercial and non-exclusive right and license to use the Website. You are not permitted to (and may not allow any third party to) copy, modify, adapt, translate, lease, rent, loan, distribute, create a derivative work of, reverse engineer, disassemble, decompile, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Website. You agree not to modify any software on the Website in any manner or form or to use modified versions of the software. Without MBK’s prior permission, you agree not to display or use the MBK Marks in any manner. MBK reserves all patent, copyright, trade secret, trade name, trademark, service mark, license and other proprietary rights related to the Website, its software and services and you shall not infringe upon or violate such rights. The license provided herein shall automatically terminate on the date MBK decides to remove or terminate the Website. In addition, your license shall terminate immediately if you breach any of the Terms. MBK is entitled to enforce its rights under this Terms of Use by an action for damages or by specific performance, injunctive or other equitable relief. This Terms of Use does not limit any rights that MBK may have under trade secret, copyright, patent or other laws. Termination MBK, in its sole discretion, may terminate your license to use the Website for any reason without prior notice to you. You acknowledge and agree that MBK may immediately bar your further access to the Website. MBK will not be liable to you or any third party for any termination of your access and/or use of the Website. Links The Website may provide links to other World Wide Web sites or resources. MBK has no control over or responsibility for such websites and resources. You agree that MBK is not responsible for the availability of such external websites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, terms and conditions, or other materials on or available from such websites or resources. However, we encourage you to read any applicable terms and conditions or privacy policies at such websites. MBK provides these links to you only as a convenience and providing such links does not constitute an endorsement by MBK of such websites or the content, products, advertising, or other materials presented on such websites, including any changes or updates thereto. Fair Housing and Equal Opportunity MBK is pledged to the letter and spirit of the U.S. policy for the achievement of equal housing opportunity. All real estate information provided herein is subject to the Federal Fair Housing Act, which makes it illegal to advertise “any preference, limitation, or discrimination because of race, color, religion, sex, handicap, familial status, or national origin, or intention to make any such preference, limitation or discrimination.” Your state or local jurisdiction may impose additional requirements. We encourage and support affirmative advertising and marketing programs in which there are no barriers to obtaining housing because of race, color, religion, gender, disability, familial status, or national origin. Intellectual Property Claims If you believe that your copyright has been infringed in any way by this Website, promptly provide in writing the following information to our Digital Millennium Copyright Act (17 U.S.C. §512) Designated Agent: i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; ii) Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single on-line site are covered by a single notification, a representative list of such works at that site; iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit MBK to locate the material; iv) Information reasonably sufficient to permit MBK to contact you, such as an address, telephone number and e-mail address; v) A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; vi) A statement that the information in the notice is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. The Designated Agent for this Website is: MBK HOMES Attn: Compliance Officer 4 Park Plaza, Suite 1700 Irvine, CA, 92614 If you believe that your other intellectual property or publicity rights have been infringed in any way by this Website, please provide a detailed description of the alleged infringement for further investigation via e-mail to Privacy@mbk.com. MBK’s actions in receiving, investigating, or responding to your e-mail shall not constitute MBK’s agreement or verification of your claim(s) nor any admission of liability therefor. MBK makes no commitment, covenant, promise, warranty, representation, or guarantee that it will receive, review, investigate, or respond to your claim within any particular time. Notices Notices to you may be delivered by email, by U.S. mail, or by general notice on the Website. The Website may also provide notices of changes to the Terms or other matters by posting notices or links to notices to you on the Website. MBK is not responsible for keeping your email address, mailing address and/or phone number up to date and accurate. Indemnification You agree to defend, indemnify, and hold MBK, its officers, directors, employees, agents, licensors, and suppliers, harmless from and against any claims, actions or demands, liabilities and settlements including without limitation, reasonable legal and related fees and expenses, resulting from, or alleged to result from, Your violation of these Terms or your use of this Website. MBK reserves the right to assume exclusive control of its defense in any matter subject to your indemnification, which shall not excuse your obligation to indemnify MBK. You shall not settle any dispute subject to your indemnification under these Terms without written consent from MBK. Records Except to the extent required by applicable law and as set forth in the Privacy Policy, MBK has no obligation to store, maintain or provide to you any information that you provide to MBK. General Information The Terms and the Privacy Policy constitute the entire agreement between you and MBK and govern your use of the Website, superseding any prior proposal, representation, agreement, negotiation, offer, counteroffer, acceptance, understanding, or any contrary terms between you and MBK. You also may be subject to additional terms and conditions that are applicable to certain services on the Website. The Terms and the Privacy Policy do not alter the terms and conditions of any other written or online agreement between you and MBK. The failure of MBK to exercise or enforce any right or provision of the Terms or this Terms of Use shall not constitute a waiver of such right or provision. If any provision of this Terms of Use shall be found by a court of competent jurisdiction or otherwise deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Terms of Use and shall not affect the validity of the remaining Terms. You may not assign the Terms or any of your rights or obligations under the Terms without MBK’s express written consent. The Terms inure to the benefit of MBK’s successors, assigns and licensees. The section titles in this Terms of Use are for convenience only and have no legal or contractual effect. MBK shall be not held liable for any delay or failure in performance of any part of this Terms of Use from any cause beyond our control and without our fault or negligence, such as acts of God, acts of civil or military authority, current laws and regulations and changes thereto, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, other major environmental disturbances, unusually severe weather conditions, acts of hackers and other illegal activities of third parties, inability to secure products or services of other persons or transportation facilities, acts or omissions of transportation or telecommunications common carriers, or acts, omissions, overloading, or slow-downs over the internet or any third party internet service providers. Except to the extent required by applicable law, you agree that any claim or cause of action arising out of or related to the use of the Website or the terms and conditions contained in this Terms of Use must be filed within one year after such claim or cause of action arose or the claim or cause of action shall be forever barred. Governing Law and Venue for Resolving Disputes This Terms of Use shall be governed by, and will be construed under, the laws of the State of California, U.S.A., without regard to choice of law principles. Those who choose to access the Website from locations outside of the United States do so on their own initiative, and are responsible for compliance with local laws if and to the extent local laws are applicable, including without limitation, all applicable laws, rules and regulations regarding the transmission of data exported from the United States or the country in which you reside (if different from the United States). You further agree that any disputes or claims that you may have against us will be exclusively resolved by a court located in Orange County, California, USA. You irrevocably consent to the venue and jurisdiction of such courts. BY AGREEING TO THESE TERMS YOU ARE: (1) WAIVING CLAIMS THAT YOU MIGHT OTHERWISE HAVE AGAINST MBK BASED ON THE LAWS OF OTHER JURISDICTIONS, INCLUDING YOUR OWN; (2) IRREVOCABLY CONSENTING TO THE EXCLUSIVE JURISDICTION OF, AND VENUE IN, STATE AND FEDERAL COURTS IN THE STATE OF CALIFORNIA OVER ANY DISPUTES OR CLAIMS YOU HAVE WITH US; AND (3) SUBMITTING YOURSELF TO THE PERSONAL JURISDICTION OF COURTS LOCATED IN ORANGE COUNTY, CALIFORNIA FOR THE PURPOSE OF RESOLVING ANY SUCH DISPUTES OR CLAIMS. Binding Arbitration Arbitration Procedures. You and MBK agree that, except as provided in Paragraph 4 below, all disputes, controversies and claims related to this Terms of Use, the Terms or your use of this Website (each a “Claim”), will be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party will be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this Terms of Use. In the event of a conflict between the terms set forth in this Binding Arbitration Section and the JAMS Rules, the terms in this Binding Arbitration Section will control and prevail. Except as otherwise set forth in Paragraph 4 below, you may seek any non-injunctive remedies available to you under state or local laws in an arbitration action. As part of the arbitration, both you and we will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration will be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this Terms of Use, (i) you and MBK may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision will be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law. BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND MBK WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration will be conducted in Orange County, California, unless the parties agree to video, phone and/or internet connection appearances. You and MBK agree that any arbitration will be limited to the Claim between MBK and you individually. YOU AND MBK AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION WILL BE JOINED WITH ANY OTHER ARBITRATION. Exceptions to Arbitration. You and MBK agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claim seeking to enforce or protect, or concerning the validity of, any of your or MBK’s intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration with the other party’s consent. Arbitration Fees. The party seeking the Claim is responsible for the initial fees to JAMS. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules. You and MBK agree that if any portion this Section is found illegal or unenforceable, except any portion of Paragraph 4, that portion will be severed and the remainder of the Paragraph will be given full force and effect. If Paragraph 4 is found to be illegal or unenforceable, then neither you nor MBK will elect to arbitrate any Claim falling within that portion of this Section found to be illegal or unenforceable and such Claim will be exclusively decided by a court of competent jurisdiction within the Orange County, CA and you and MBK agree to submit to the personal jurisdiction of that court. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS TERMS OF USE OR YOUR USE OF THE SERVICE OR THE TRANSACTIONS CONTEMPLATED HEREBY. Changes to Terms of Use As MBK’s business changes from time to time, this Terms of Use is expected to change. MBK reserves the right to amend this Terms of Use at any time as provided herein. You should check the Website frequently to see the current Terms of Use in effect and any changes that may have been made to it. Your use of the Website is subject to this Terms of Use and Privacy Policy in effect at the most recent time of use. The provisions contained herein supersede all previous notices or statements regarding the Terms or use of the Website. Questions Regarding The Website If you have any questions or comments about the Website or this Terms of Use, please contact us at Privacy@mbk.com or you can write to us at 4 Park Plaza, Suite 1700, Irvine, CA, 92614. 763.012 / 8550663.1 Emergency Service? 24-hour Emergency Answering Service: (800) 434-0944 You may contact MBK Customer Care in any of the following ways: Regular Mail: MBK Homes Attn: Customer Care 15231 Laguna Canyon Rd, Ste 250 Irvine, CA 92618 Phone: (800) 434-0944 Email: warranty@mbk-homes.com Our Warranty Department is open Monday-Friday from 8:00 AM to 5:00 PM. Copyright © by MBK Homes. All Rights Reserved. TERMS OF USE | PRIVACY POLICY Contractor’s Lic #844533. Real estate sales and marketing by TNHC Realty and Construction Inc., a California Broker Lic#01870227.