Terms and Conditions

By accepting these Terms & Conditions you grant Builder and Utour certain rights, waive and release certain rights, consent to certain uses of the information you submit and to receive texts, calls and emails and agree to individually arbitrate disputes and waive the rights to bring class actions and to a jury trial. Read them carefully before proceeding to schedule a tour and do not schedule a tour if you do not agree.  You consent to Builder’s data practices as set forth in its Privacy Policy and UTour’s Privacy Policy.

Desert Wind Homes as Builder (“Builder”), has one or more completed homes in inventory and/or model homes  (“Home(s)”) for sale to potential homebuyers. As part of the buying process, using the UTour system of UTour Home Tours, LLC, a Maryland limited liability company (“UTour”), under the terms of this Agreement, you will be allowed to visit the Home(s) without being escorted by a representative of Builder. Builder will only permit your unescorted access to the Home(s) if you agree to the terms listed below in this Agreement. By using the UTour system and entering into this Agreement, you represent, acknowledge, and agree that you are at least eighteen (18) years of age. If you are not at least eighteen (18) years old, you may not use the UTour system or access any Home of the Builder at any time or in any manner, unless accompanied by an adult, and you may not submit any information to the Builder or to UTour. You will be permitted to gain access to the Home(s) by accepting these terms and conditions and by providing the information required by this Agreement, including photo identification and/or credit card information. Upon receipt of your acceptance of this Agreement by the Builder and UTour, and your submission and the verification of the information and materials required herein, Builder will provide you with an access code to use to gain access to the Home(s). By your acceptance of this Agreement and submission of the required information, you will be permitted to gain access to the Home(s), only for the purposes of your viewing of the Home(s) in contemplation of purchasing a home from the Builder. Accordingly, you agree to the following terms and conditions, and to such other terms, provisions, and conditions as the Builder and/or UTour may impose, either on the UTour page of the Builder’s website, the UTour homes portal or by one or more notices on site on the Home(s):

1. 
   Upon your agreement to the terms, provisions and conditions of this Agreement, and your submission of the required information and the verification thereof, you will be given non-exclusive permission to access the Home(s) of the Builder on one or more selected sites or in one or more selected subdivisions, solely for the purposes of the orderly and lawful viewing and walkthrough of the Home(s) in contemplation of your purchase of a home from the Builder. This permission to access the Home(s) is given solely to you and is not transferable or assignable to any other party under any circumstances. This permission constitutes a “revocable license” to access the Home(s), meaning that you have “permission” to access the Home(s), which permission may be revoked by the Builder or by UTour at any time. Please remember that, in accessing and viewing the Home(s), you are the Builder’s guest, and, at all times, you should conduct yourself in a safe, lawful, courteous, and respectful manner, and in the same way in which you would request that others treat your property. This permission to access the Home(s) is given to you, your immediate family members and to one guest of your choosing. You shall not provide the access code to any other person. You, your immediate family members and your one guest (collectively, your “Guests”) shall be allowed access to the Home(s) for a one-hour period during an allocated time period. If your time period runs out and/or you would like to view the Home(s) again, you should reregister to obtain another access code pursuant to the terms of this Agreement. You will be considered a trespasser for any access into the Home(s) exceeding one hour or for any unauthorized re-entry. Builder shall be entitled to exercise all legal and equitable remedies for any such unauthorized visit.
2. Your use of the UTour system under this Agreement shall be at your sole risk, and you assume the full risk of loss or injury resulting from your entries into one or more of the Home(s). Also, you will be liable for any loss, damage, or theft (“Loss”) that occurs during your visit(s) to the Home(s). You agree that Builder and/or UTour may charge your credit or debit card to cover any Loss that Builder incurs resulting from your visit to the Home(s). Further, you hereby agree to defend, indemnify, and hold harmless the Builder and UTour and their respective subsidiaries and affiliates, and its respective directors, officers, employees, owners, operators, partners, members, managers, shareholders, agents, consultants, and representatives, from and against any claims, actions, causes of action and/or liabilities arising from or in any way related to a Loss or to your use of the UTour system and your entries into the Home(s).
3. You assume all risks and all liability for yourself and your Guests that may occur as a result of your visit(s) to the Home(s). Builder and UTour assume no liability or responsibility for any damages or injuries suffered by you or your Guests while visiting the Home(s), including damages or injuries relating to exposure to any bacteria, virus, or disease, including COVID-19. You, for yourself and your Guests, release Builder and UTour of and from any and all present and future claims, damages, actions, liabilities and causes of action, that arise out of or in any way related to any injury or property damage (including, but not limited to, personal injury and injury relating to exposure to any bacteria, virus or disease, including COVID-19) to you or your Guests while visiting the Home(s) and/or the neighborhood, subdivision or site in which the Home(s) is/are located, or for any charges to your credit card authorized by this Agreement (“Customer Claims”). To the maximum extent allowed by law, you, for yourself and your Guests, hereby release and waive (and are hereby estopped to assert) any and all claims to the contrary. You further agree to indemnify and hold harmless Builder and UTour from any and all claims, losses, damages and/or costs (including, without limitation, attorney’s fees, and court costs) incurred by Builder and/or UTour as a result of any Customer Claims made or attempted to be made by you and/or your Guests. All defenses to the aforesaid obligation by you and your Guests are hereby waived.
4. You understand and acknowledge that security cameras have been placed throughout the Home(s) and you, for yourself and your Guests, consent to being recorded during the visit(s). These recordings will be the sole property of the Builder and UTour and may be used by the Builder and UTour for their respective business purposes as they, or either of them, may determine in their sole discretion. Without limitation to the foregoing, you and your Guests shall have no rights or expectations of privacy with respect to these recordings and understand that the Builder and UTour may disclose the same to third parties, including, but not limited to, law enforcement authorities in the event of any actual or suspected malfeasance or misfeasance occurring during your visit(s) to the Home(s).
5. You understand and acknowledge that all voice interactions with Amazon Echo, or other similar devices, may be recorded and may be retained and analyzed by Builder and UTour to help personalize and improve services. Again, these recordings are the sole property of the Builder and UTour and may be used for their respective business purposes as they, or either of them, shall determine. 
6. In the event of any emergency call 911. If you need any non-emergency assistance during your visit(s) to the Home(s), you should immediately contact the Builder in accordance with the information posted at the Home(s). The Builder and UTour assume no risk or responsibility for the actions of third parties in connection with your visit(s) to the Home(s). Without limitation to the foregoing, you understand that your visit(s) to the Home(s) is/are not supervised and may not be monitored in real-time (although the Builder and UTour reserve the right to monitor the same in real-time) by the Builder and/or UTour, their respective agents, employees, or contractors.
7. By providing the information required for you to participate in the UTour system, you agree to the use and disclosure of such information by the Builder and UTour as contemplated and/or intended by this Agreement, including, but not limited to, the use and/or disclosure of such information to verify your identity and to use and process your credit card. You hereby agree to pay to Builder and UTour and irrevocably authorize a charge to your credit or debit card in the event of any loss, damage, injury, or liability suffered by the Builder or UTour as described in this Agreement. Without limitation to the foregoing, you understand that the Builder and UTour use third-party companies and/or contractors and/or third-party systems and/or services, to verify your identity and/or verify and process your credit card. You understand that any photos you upload during the identity verification process will be disclosed to a third-party vendor for the purpose of comparison and analysis to verify your identity. During this process, the characteristics of your facial geometry will be used to authenticate your identity, which involves the collection and use of scans and/or records of face geometry, a form of biometric identifier under certain applicable laws (“Facial Data”). As such, one or more third-party vendors may collect, use, and/or process your Facial Data for purposes of verifying your identity and facilizing your ability to self-tour homes. Your biometric identifiers and/or biometric information will be permanently destroyed after five (5) days and purged from all finished scan records. Also, in the event of any legal proceedings brought or initiated and/or prosecuted in connection with this Agreement, you authorize the full use and release of your information as provided in this Agreement. Further, in the event of any need or reasonably perceived need to disclose your information to governmental agencies and/or law enforcement authorities in connection with the activities contemplated by this Agreement, the same are fully authorized irrevocably by you. Without limitation to the above, you hereby grant to the Builder and UTour a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license (including the right to sublicense through multiple tiers (including to subprocessors) to use, reproduce, process, adapt, publicly perform, publicly display, modify, prepare derivative works, publish, transmit and distribute your submissions of information, or any portion thereof, in any form, medium or distribution method now known or hereafter existing, known or developed, and authorize others to use such submissions in connection with the use of the UTour system and for both the Builder’s and UTour’s business purposes. The Builder and UTour may modify or adapt such submissions in order to transmit, display or distribute them over computer networks and in various media and/or make changes to the submissions as necessary to conform and adapt them to any requirements or limitations of any networks, devices, services, or media. The submissions will be used by the Builder and UTour in accordance with their respective privacy policies and notices which are available at their respective websites (the “Privacy Policies”) and you accept the data practices set forth in those Privacy Policies. Generally, your submissions will be used to allow you to access the UTour system, including to provide you with access to the Home and take a self-guided tour of the property; it will be used for the internal business purposes of the Builder and UTour, such as ensuring the security of a Home before, during, and after your access thereto and contacting you regarding the sale of a Home; and will be used by UTour for its internal business purposes including improving the functionality of the UTour system. The Builder and UTour reserve the right to delete your submissions at any time without notice to you. You acknowledge and agree that certain third parties may be used to process your submissions, and such third parties shall use and process your submissions in accordance with their own terms and conditions. The Builder and UTour expressly disclaim any and all liability for any acts or omissions of such third parties.
8. If you violate any of the provisions of this Agreement, or cause any damage, liability, claim, or loss to the Builder our UTour, or to Builder’s property, you will be in default under this Agreement. If you default under this Agreement, you will be responsible to the Builder and UTour for all costs, expenses, liabilities and/or losses arising therefrom, or in any way related thereto, including, but not limited to, reasonable attorney’s fees incurred by the Builder and/or UTour. The Builder and UTour shall have all rights and remedies, at law, or in equity, in the event of your default and/or in the event of any other malfeasance or misfeasance by you or your Guests. You, the Builder, and UTour, mutually agree that any claim, controversy and/or dispute, of any kind or nature, arising under, or in any way related to this Agreement, and/or the activities contemplated by this Agreement, shall be resolved by binding arbitration, on an individual basis (i.e., no class actions) in accordance with the rules of the American Arbitration Association for abbreviated proceedings before a single arbitrator. Each party shall pay their own costs of arbitration; however, the arbitrator shall have the right to award reimbursement of costs to the prevailing party, including, but not limited to, reasonable attorney’s fees. The award of the arbitrator shall be specifically enforceable in accordance with the rules and/or laws of the jurisdiction in which the Home(s) is/are located. This Agreement shall be governed in accordance with the laws of the state in which the Home(s) is/are located, without regard to the principals of conflicts of laws. In any court proceedings, the parties expressly waive their right to trial by jury and to class-wide relief. Exclusive jurisdiction and venue for any legal proceedings shall be in the state and county where the Home(s) is/are located.
9. This Agreement shall be binding upon and shall inure to the benefit of, the Builder, UTour, and you, and the respective heirs, personal representatives, successors and permitted assigns of you, the Builder, and UTour. You understand that you are not permitted to assign your rights or interests in this Agreement, your permission to view the Home(s) and/or your code given pursuant to this Agreement to view the Home(s). The Builder and UTour shall have the right at any time to assign their respective interests in this Agreement to their respective affiliates and/or any successor to the Builder or UTour.
10. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof, and may not be altered or amended, except in writing, signed by the parties. Without limitation to the foregoing, the Builder and UTour are not responsible for or bound to any statements, representations and/or other communications which are not expressly set forth in this Agreement.
11. The information required from you by this Agreement is set forth in the application form which accompanies this Agreement. You should fully and truthfully complete the application form and download/provide any document, instrument, material and/or other items which is required to accompany the application form.
12. By your signature to this Agreement, either electronically or in person, and/or your consent provided to this Agreement, either electronically or in person, you hereby agree to be bound by all terms, provisions, and conditions of this Agreement. All of the terms, provisions and conditions of this Agreement shall survive your visit(s) to the Home(s) and shall remain binding and enforceable on you, the Builder, and UTour, in accordance with the terms hereof.
13. By your signature to this Agreement, either electronically or in person, and/or your consent provided to this Agreement, either electronically or in person, you hereby consent and provide a written release to the use of your face geometry from your photograph(s) for identity verification purposes. 
14. By your signature to this Agreement, either electronically or in person, and/or your consent provided to this Agreement, either electronically or in person, you hereby agree and consent to receive autodialed text artificial voice and/or prerecorded call messages, including using artificial intelligence and bot technology, from and on behalf of the Builder or UTour and their respective affiliates relating to your self-guided home tour to the phone number you provided. You also agree that receiving text messages is not required or a condition of any purchase and that message and data rates may apply. You further agree and consent to receive email(s) from the Builder and UTour and their respective affiliates relating to your self-guided home tour at the email address you provided and that receiving email messages is not required or a condition of any purchase.
15. This is a legally binding document. If not understood, please seek appropriate legal counsel. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or licensee.
16. The Builder and UTour, make no express, implied, or statutory representations, warranties, or guarantees in connection with the use of the UTour system, or the quality, suitability, truth, accuracy or completion of any information or material contained or presented on the UTour system website, including, without limitation, resubmission of any materials by any party. Unless otherwise expressly stated, to the maximum extent permitted by applicable law, the UTour system, and any information or material contained or presented on the UTour system site, is provided to you on an “AS IS,” “AS AVAILABLE” and “WHERE IS” basis, with no warranty or representation by the Builder or UTour, no express or implied warranty of merchantability, fitness for a particular purpose, and with no warranty, express or implied of noninfringement of third-party rights.
17. The inventory and/or model homes that you tour may or may not be an accurate representation of the actual home that may be available for you to purchase. The UTour system is provided for informational and marketing purposes only, and you acknowledge and agree that each home differs slightly, and that any unit you may purchase or offer to purchase may appear different than the inventory and/or model homes that you tour.
18. If you send, transmit, or provide any communications, comments, questions, suggestions, or related materials to the Builder or UTour, in any form (collectively “Feedback”), suggesting or recommending changes to the UTour system or the UTour site, including, without limitation, new features or functionality related thereto, all such Feedback is, and will be treated as, nonconfidential and nonproprietary. Except as prohibited by applicable law, you hereby assign all right, title, and interest in, and UTour is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques or intellectual property or proprietary rights contained in the Feedback, for any purpose whatsoever. If such an assignment of Feedback is prohibited by law, you hereby grant UTour an exclusive, transferable, worldwide, royalty fee fully paid-up license (including the right to sublicense) to use and exploit all Feedback as UTour may determine in its sole discretion. Notwithstanding the foregoing, you understand that the Builder and UTour are not obligated to use, display, reproduce, distribute, or otherwise acknowledge any Feedback.
19. Notwithstanding anything to the contrary set forth in this Agreement, foreign laws do not apply to this Agreement. The United Nations Treaty on Contracts for the International Sale of Good and any laws based on the Uniform Computer Information Transaction Act (UCITA) shall not apply to this Agreement.
20. By providing your name and contact information and clicking the submission button, you consent and agree to receive informational and/or marketing communications from the Builder and/or UTour, or made on their respective behalf, including emails and calls or text messages using an automatic telephone dialing system or an artificial or prerecorded voice and/or artificial intelligence or bot technology, and to the recording or transcription of those communications. Your consent herein also applies to, and shall override, any future registration on national or state Do Not Call lists. Text “STOP” to unsubscribe from each text subscription you have started.  Setting up a new appointment and accepting texts will begin a new subscription.  For mobile phones, standard text message and data charges may apply. Your consent is not a condition to purchase; no purchase necessary. Consult the Privacy Policies for details on what personal information the Builder and/or UTour collect and for what purposes, and your privacy rights and how to exercise them, or contact UTour at support@utourhomes.com or call 800-621-0592.