These terms of service are entered into by and between you and Builders Patch, Inc., a Delaware corporation (“Company”, “we” or “us”). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, these “Terms of Service” or “Terms”), govern your access to and use of the Builders Patch application, including any content, functionality, features, and services offered on or through the application (“Builders Patch”), as well as the Builders Patch website, www.builderspatch.com, all subdomains thereof, and social media accounts, pages, and other online platforms we operate related to Builders Patch (collectively, the “Site”), whether as a guest or a registered user. References herein to “Builders Patch” shall also mean to include the Site, as the context requires. References herein to “you”, “your”, or “yours” shall refer to you.
THESE TERMS INCLUDE: (1) AN ARBITRATION PROVISION; (2) A WAIVER OF RIGHTS TO BRING A CLASS ACTION AGAINST US; (3) A WAIVER OF TRIAL BY JURY; AND (4) A RELEASE BY YOU OF ALL CLAIMS FOR DAMAGE AGAINST US THAT MAY ARISE OUT OF YOUR USE OF BUILDERS PATCH. EXCEPT IF YOU OPT-OUT OR IN CASE OF CERTAIN LIMITED EXCEPTIONS, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION.
We may revise and update these Terms of Service from time to time in our sole discretion. When we do update these Terms, we will also revise the “Last Updated” date at the top of these Terms. All changes are effective immediately when we post them. However, any changes to the dispute resolution provisions set forth in Governing Law and Jurisdiction and Arbitration will not apply to any disputes for which the parties have actual notice prior to the date the change is posted on our website at www.builderspatch.com.
Your continued use of Builders Patch following the posting of revised Terms of Service means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you. We may send you a courtesy email if we have an email address on file for you notifying you of changes to the Terms of Service.
Builders Patch is a web-based Software-as-a-Service application that allows registered users to monitor and track the many aspects of a real estate development projects, to manage, underwrite, and obtain analytics on such projects, and to facilitate asset underwriting.
While the Site is accessible to Users (defined below) and visitors alike, the Builders Patch SaaS application and/or some of its content, features, functionality, and/or services, including services subject to payment, may be accessed and used only by registered users who register a user account (“Account”), enter into a SaaS services agreement (“SaaS Services Agreement”) with Company, and comply with the terms of such SaaS agreement and the terms herein (each, a “User”).
If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is specific to you and agree not to provide any other third party with access to Builders Patch or portions of it using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared device so that others are not able to view or record your password or other personal information.
We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Service. Further, we also reserve the right to suspend, restrict, or otherwise limit Users’ and/or visitors’ access to or use of Builders Patch at any time, for any period, or at all, in our sole discretion, with or without reason or cause, and without notice.
You are responsible for (i) making all arrangements necessary for you to have access to Builders Patch; and (ii) ensuring that all persons who access Builders Patch through your internet connection o Device(s) are aware of these Terms of Service and comply with them.
Fees and prices for using Builders Patch, as well as refund policies, shall be provided by Company through its Site or other written documentation such as the SaaS Services Agreement. Payments will be processed through a third-party vendor, and the processing of such payments, refunds, accuracy of payment methods and related matters are also subject to the policies of such vendors. Payments to Builders Patch are non-refundable, unless explicitly provided otherwise in writing.
All payment information (such as a debit or credit card information) that you provide to Company must be accurate, active, and complete. By using Builders Patch, you authorizes us to charge your account for monies owed by you to Company in accordance with these Terms. You hereby represent and warrant that your use of the payment information is legal, that you have the right to use such payment information as a way to pay for your use of Builders Patch. If upon the termination of these Terms toward you, you owe monies related to your use of Builders Patch, then you agree to pay such monies, and you agree for us to take all necessary and reasonable steps to that effect.
Subject to these Terms, the Company grants you a limited, non-exclusive, non-sublicenseable, and nontransferable license to: (a) register with, use, and access Builders Patch and/or the Site only in connection with the purpose for which the same are provided on a computer, tablet, smartphone, mobile device, or any electronic device owned or otherwise controlled by you (“Device”) strictly in accordance with these Terms; and (b) access, stream, download, and use on such Device the content, features, functionality, and services made available in or otherwise accessible through Builders Patch, strictly in accordance with these Terms.
You shall not: (a) copy Builders Patch, except as expressly permitted by this license; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of Builders Patch; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of Builders Patch or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from Builders Patch, including any copy thereof; (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available Builders Patch, or any content, features, functionality, or services of Builders Patch, to any third party for any reason, including by making Builders Patch available on a network where it is capable of being accessed by more than one device at any time, except as expressly authorized by these Terms; (f) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting Builders Patch; or (g) use Builders Patch in, or in association with, the design, construction, maintenance, or operation of any hazardous, emergency, life-threatening, high-risk, and/or high-stake environments or systems, including, without limitation, any power generation systems; aircraft navigation or communication systems, air traffic control systems, or any other transport management systems; safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire, or other safety response systems; and military or aerospace applications, weapons systems, or environments.
Notwithstanding anything to the contrary herein, Users may provide third parties directly involved in a particular real estate development project (such as underwriters, general contractors, developers, property managers, investment firms, law firms, design teams) with access to the online platform pertaining to said project. The use and access to Builders Patch of such third parties shall be subject to these Terms.
You acknowledge and agree that Builders Patch is provided under license, and not sold, to you. You do not acquire any ownership interest in Builders Patch under these Terms, or any other rights thereto other than to use Builders Patch in accordance with the license granted, and subject to all terms, conditions, and restrictions, under these Terms. Company and its licensors and vendors reserve and shall retain their entire right, title, and interest in and to Builders Patch, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in these Terms.
We may from time to time in our sole discretion, with or without reason or cause, and without notice, withdraw or amend Builders Patch, develop, provide, and implement updates for Builders Patch, and/or otherwise make changes to all or parts of Builders Patch which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain content, features, functionality, and services. You agree that we have no obligation to provide any Updates or to continue to provide or enable any particular content, features, functionality, or services.
We may or may not backup any or all content, features, functionalities, services, or aspects of Builders Patch, including your settings; however, we take no responsibility for any such material that is lost, damaged, or deleted, and you hereby acknowledge and agree that we are in no way liable for any damage that this action or omission may cause you. We will not be liable if for any reason all or any part of Builders Patch is unavailable at any time, for any period, or at all.
You agree that all Updates will be deemed part of Builders Patch and be subject to all terms and conditions of these Terms.
Builders Patch, the Site, and its and their entire contents, features, functionality, and services (including but not limited to any and all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof, Accounts, titles, computer code, themes, objects, avatars, avatar names, stories, dialogue, catch phrases, locations, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, any related documentation, “applets” incorporated into Builders Patch and/or the Site, and the server software) are owned by Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
You agree that you have no rights or title in or to any content that appears in Builders Patch and/or the Site, and any other attributes associated with your access and use of Builders Patch or stored on Builders Patch’s server, other than as explicitly provided hereunder. As provided above, all such content, features, functionality, and services shall be owned by the Company, its licensors, or other providers of such material.
You agree to fully and exclusively assign to us upon creation, with full and exclusive ownership rights, any intellectual property or other tangible or intangible rights, interest, or title that you have or may have toward such content. You further agree to waive any and all causes of action against us that you may have in regards to any right, interest, or title that cannot be assigned to us in accordance with these Terms.
These Terms permit you to access and use Builders Patch and the Site for the purposes for which they are provided only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on Builders Patch, except as follows: (i) your Device may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials; and (ii) you may store files that are automatically cached by your Device for display enhancement purposes.
You must not: (i) modify copies of any materials from Builders Patch; (ii) use any illustrations, photographs, video or audio sequences or any graphics separately from the accompanying text; and (iii) delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from this site.
If you print, copy, modify, download or otherwise use or provide any other person with access to any part of Builders Patch in breach of these Terms, your right to use Builders Patch may be ceased immediately and you must, at our option, return or destroy any copies of the materials you have made. Except as explicitly provided herein, no right, title or interest in or to Builders Patch or any content on Builders Patch is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of Builders Patch not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark and other laws.
Company name, the names and icons of Builders Patch, Company and Builders Patch logo and all related names, logos, product and service names, designs and slogans are trademarks of Company or its affiliates or licensors. You must not use such marks without the prior written permission of Company. All other names, logos, product and service names, designs and slogans on Builders Patch are the trademarks of their respective owners.
You may use Builders Patch and the Site only for lawful purposes and in accordance with these Terms. You agree not to use Builders Patch or the Site: (a) in any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries); (b) for the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise; (c) to transmit, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation; (d) to impersonate or attempt to impersonate Company, a Company employee, another user or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing); or (e) to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of Builders Patch or the Site, or which, as determined by us, may harm Company or Users or visitors of Builders Patch or the Site or expose them to liability.
Additionally, you agree not to: (f) use Builders Patch in any manner that could disable, overburden, damage, or impair Builders Patch or interfere with any other party's use of Builders Patch, including their ability to engage in real time activities through Builders Patch; (g) use any robot, spider or other automatic device, process or means to access Builders Patch for any purpose, including monitoring or copying any of the material on Builders Patch; (h) use any manual process to monitor or copy any of the material on Builders Patch or for any other unauthorized purpose without our prior written consent; (i) use any device, software or routine that interferes with the proper working of Builders Patch; (j) introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful; (k) attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of Builders Patch, the server on which Builders Patch is stored, or any server, computer, Device, or database connected to Builders Patch; (l) attack Builders Patch via a denial-of-service attack or a distributed denial-of-service attack; or (m) otherwise attempt to interfere with the proper working of Builders Patch.
We also do not recognize and cannot be forced to recognize the transfer of Accounts. You may not purchase, sell, gift, or trade any Account, or offer to purchase, sell, gift, or trade any Account, and any such attempt shall be void. We cannot assume responsibility for any such transaction.
We have the right to: (a) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (b) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of Builders Patch; and (c) terminate, remove, or suspend your access, including your Account, to all or part of Builders Patch for any or no reason, including without limitation, any violation of these Terms.
You acknowledge that our exercising of these rights may cause harm or damages to you, and you hereby acknowledge and agree that Company shall not be liable for any such harm or damages.
If you breach any of the terms of these Terms, all licenses granted by us, including permission to use Builders Patch, will terminate automatically. Additionally, we may suspend, disable, or delete your Account, your access to or use of Builders Patch, or any part of the foregoing with or without notice, for any or no reason. If we delete your Account for any suspected breach of these Terms by you, you are prohibited from re-registering on Builders Patch under a different name. You hereby acknowledge and agree that Company shall not be liable for any harm or damages such actions or omissions may cause. All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of this Agreement by Company or you. Termination will not limit any of our other rights or remedies at law or in equity. Additional clauses on termination may be provided by the SaaS Services Agreement.
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone registering with, accessing, or using Builders Patch and/or the Site. YOU WAIVE AND HOLD HARMLESS COMPANY AND ITS AFFILIATES, LICENSEES AND VENDORS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
We assume no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
We respect the intellectual property rights of others and expect our users to do the same. Content found to be infringing on the intellectual property rights of others will be removed in accordance Digital Millenium Copyright Act of 1998. If you believe copyright is being unlawfully infringed upon by a User(s) or visitor(s) on or through Builders Patch and/or the Site, and if you have the authority to act (e.g., you are a copyright owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright), then please report the alleged copyright infringements taking place on or through Builders Patch and/or the Site by completing the following notice in accordance with 17 U.S.C. § 512(c) and delivering it to our Designated Copyright Agent. Upon receipt of the notice as described below, we will take whatever action we deem appropriate in our sole discretion, including removal of the infringing material from Builders Patch and/or the Site.
The notification must include the following information: (i) identify the copyrighted work(s) that you claim has been infringed; (ii) identify the infringing material which you request us to removed; (iii) provide your mailing address, telephone number, and e-mail address; (iv) include a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; (v) include a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner; and (vi) provide your full legal name and your physical or electronic signature.
Builders Patch, Inc.’s Copyright Agent to receive such notifications is:
Pursuant to 17 U.S.C. §512(f), the complaining party is subject to liability for any costs, attorney’s fees, and damages incurred by us in connection with the notification if the notification contains any misrepresentation of material fact.
The information presented on or through Builders Patch and/or the Site is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor of Builders Patch and/or the Site, or by anyone who may be informed of any of its contents.
Builders Patch and/or the Site may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials provided by other users and third parties) or provide links (each, a “Link”) to third-party websites, sites, resources, or services, including through third-party advertising as well as links contained in advertisements, including banner advertisements and sponsored links, as well as links to websites or applications (collectively, including Links, the “Third-Party Materials”). You acknowledge and agree that Company is not responsible for any Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof, or any statements or opinions expressed therein. We have no control over the contents of Third-Party Materials and assume no responsibility or liability for them or for any loss or damage that may arise from your use of them. Third-Party Materials are provided solely as a convenience to you, and if you decide to access any of the Third-Party Materials on Builders Patch and/or the Site, you do so entirely at your own risk and subject to the terms and conditions of use for such Third-Party Materials.
The owner of Builders Patch is based in the state of Delaware in the United States. We provide Builders Patch for access and use only by persons located in the United States. We make no claims that Builders Patch or any of its content, features, functionality, or services is accessible or appropriate outside of the United States, and you acknowledge that you may not be able to access all or some of Builders Patch outside of the United States. Access to Builders Patch may not be legal by certain persons or in certain countries. If you access Builders Patch from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
You understand that we cannot and do not guarantee or warrant that Builders Patch and any material, content, functionality, service, or feature thereof will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DENIAL-OF-SERVICE ATTACK, DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR DEVICE, DEVICE PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF BUILDERS PATCH OR ANY SERVICES OBTAINED THROUGH BUILDERS PATCH OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY LINKS, APPLICATION OR WEBSITE (EACH, A “PAGE”) LINKED TO IT.
YOUR USE OF BUILDERS PATCH IS AT YOUR OWN RISK. BUILDERS PATCH IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE OWNERS, SHAREHOLDERS, PARTNERS, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, VENDORS, AGENTS, REPRESENTATIVES, LICENSORS, SUCCESSORS, AND ASSIGNS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO BUILDERS PATCH, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND WITH RESPECT TO THE COMPLETENESS, SECURITY, TIMELINESS, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF BUILDERS PATCH OR THAT IT IS ACCURATE, RELIABLE, WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, DEVICES, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE VIRUS- OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED, OR THAT BUILDERS PATCH OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES, ERRORS, OR OTHER HARMFUL COMPONENTS OR THAT BUILDERS PATCH WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. FURTHER, COMPANY DOES NOT WARRANT AGAINST ANY HARM TO YOUR COMPUTER SYSTEM AND/OR DEVICE, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM YOUR ACCESS TO OR USE OF BUILDERS PATCH OR THE DELETION OF, OR THE FAILURE TO STORE OR TO TRANSMIT, ANY CONTENT OR OTHER COMMUNICATIONS MAINTAINED BY COMPANY. FURTHER, COMPANY DOES NOT WARRANT THE QUALITY, SAFETY, SUITABILITY, RELIABILITY, OR AVAILABILITY OF ANY PRODUCTS, GOODS, AND/OR SERVICES OBTAINED BY YOU FROM THIRD PARTIES THROUGH BUILDERS PATCH. YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND/OR USE OF BUILDERS PATCH, AND ANY THIRD PARTY PRODUCTS, GOODS, AND/OR SERVICES, REMAINS SOLELY WITH YOU.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE OWNERS, SHAREHOLDERS, PARTNERS, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, VENDORS, AGENTS, REPRESENTATIVES, LICENSORS, SUCCESSORS, AND ASSIGNS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, BUILDERS PATCH, ANY PAGES LINKED TO BUILDERS PATCH, ANY CONTENT ON BUILDERS PATCH OR SUCH OTHER PAGES OR ANY SERVICES OR ITEMS OBTAINED THROUGH BUILDERS PATCH OR SUCH OTHER PAGES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, PROPERTY DAMAGE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE, ARISING FROM OR RELATED TO: (I) THESE TERMS; (II) THE USE OR INABILITY TO USE BUILDERS PATCH; (III) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON BUILDERS PATCH, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (IV) ANY CONTENT OBTAINED FROM BUILDERS PATCH; (V) THE UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR CONTENT; OR (VI) ANY PRODUCTS, GOODS AND/OR SERVICES YOU RECEIVE FROM THIRD PARTIES; IN EACH CASE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY IN CASE OF ANY GRIEVANCE, ACTION, OR COMPLAINT IN REGARDS TO BUILDERS PATCH OR BREACH BY US OF THESE TERMS IS TO DISCONTINUE YOUR USE OF BUILDERS PATCH. NOTWITHSTANDING ANYTHING CONTRARY IN THESE TERMS, OUR (AND OUR AFFILIATES’) LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS (UNDER ANY LEGAL THEORY, CAUSE, OR GROUND, WHETHER IN CONTRACT, TORT, OR OTHERWISE), WILL AT ALL TIMES BE LIMITED TO THE AGGREGATE AMOUNT COMPANY HAS ACTUALLY RECEIVED FROM YOU DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH GIVES RIGHT TO YOUR DAMAGE, OR FIFTY US DOLLARS ($50), WHICHEVER IS GREATER; NOTWITHSTANDING THE FOREGOING, COMPANY MAY, AT ITS OPTION, INSTEAD DECIDE TO RE-PERFORM THE SERVICES WHICH ARE PERFORMED THROUGH BUILDERS PATCH. THIS LIMIT SHALL REMAIN IN EFFECT EVEN IF THERE IS MORE THAN ONE CLAIM.
THE LIMITATIONS OF THIS SECTION SHALL APPLY WHETHER OR NOT COMPANY HAS BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
BY USING OR ACCESSING BUILDERS PATCH, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
By agreeing to these Terms and using Builders Patch, you agree to defend, indemnify and hold harmless Company, its affiliates, licensors and vendors, and its and their respective officers, directors, shareholders, partners, owners, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including attorneys’ fees and costs) arising out of or relating to: (i) your violation of these Terms or your use of or access to Builders Patch, any use of Builders Patch’s or the Site’s content, services, and products other than as expressly authorized in these Terms or your use of any information obtained from Builders Patch; (ii) your violation or breach of any term of these Terms or any applicable law or regulation; (iii) your violation of any rights of any third party, including any claim that your actions caused damage to a third party; or (iv) your negligence or willful misconduct.
Builders Patch may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release Builders Patch to, or make Builders Patch accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation or is otherwise in violation of the restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making Builders Patch available outside the US.
As defined in FAR section 2.101, Builders Patch and the software and documentation thereof are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by these Terms and will be prohibited except to the extent expressly permitted by these Terms.
All matters relating to Builders Patch and these Terms and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction). You and Company agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of these Terms.
Binding Arbitration. Any dispute or claim arising in any way from your use of Builders Patch, except for disputes relating to the infringement of our intellectual property rights or the access or use of Builders Patch in violation of these Terms, will be resolved by binding arbitration, rather than in court, but you may assert claims in small claims court if your claims qualify.
No Judge or Jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Terms as a court would.
Arbitrator and Rules. The arbitration will be conducted before a neutral single arbitrator, whose decision will be final and binding, and the arbitral proceedings shall be governed by the AAA Commercial Arbitration Rules. If you are a consumer visitor that is not a User, the AAA Consumer Arbitration Rules shall apply instead. These rules can be found on the AAA website at www.adr.org.
Starting an Arbitration. To begin an arbitration proceeding, you must send us a notice of dispute, in writing, setting forth your name, address and contact information, the facts of the dispute and relief requested. You must send your notice of legal dispute to us at the following address: email@example.com. Company will send any notice of dispute to you at the contact information we have for you.
Format of Proceedings. The arbitration shall be conducted, at the option of the party seeking relief, by telephone, online, or based solely on written submissions.
Fees. If you are a non-individual visitor or User, Arbitration fees and expenses shall be resolves in accordance with the AAA Commercial Arbitration Rules. The party prevailing in a dispute shall be entitled to reasonable attorneys’ fees and costs. If you are an individual visitor and you initiate arbitration, your arbitration fees will be limited to the filing fee set forth in the AAA’s Consumer Arbitration Rules, and unless the arbitrator finds the arbitration was frivolous or brought for an improper purpose, Company will pay all other AAA and arbitrator’s fees and expenses.
Individual Basis and Waiver of Trial by Jury. To the fullest extent permitted by applicable law, you and Company each agree that any dispute resolution proceeding will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, you acknowledge and agree that any controversy that may arise under these Terms is likely to involve complicated and difficult issues and, therefore, you and we irrevocably and unconditionally waive any right you or we may have to a trial by jury in respect of any legal action arising out of or relating to these Terms. As a result, PROCEEDINGS TO RESOLVE OR LITIGATE A DISPUTE IN ANY FORUM WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS.
Enforcement. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The United Nations Conventions on Contracts for the International Sale of Goods shall have no applicability.
Invalidity. If a court of competent jurisdiction finds the foregoing arbitration provisions invalid or inapplicable, or otherwise in the case of a dispute not subject to arbitration, you and Company each agree to the exclusive jurisdiction of the Federal and State courts located in the County of Westchester, State of New York, and you and Company each agree to submit to the exercise of personal jurisdiction of such courts for the purposes of litigating any applicable dispute or claim.
Opting Out. If you do not want to arbitrate disputes with Company and you are an individual, you may opt out of this arbitration agreement by sending an email to firstname.lastname@example.org within thirty (30) days of the first of the date you access or use Builders Patch
Costs and Attorneys’ Fees. In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys’ fees
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR BUILDERS PATCH MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
No waiver by Company of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Company to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.
If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect; provided that the ability of either party to obtain substantially the bargained-for performance of the other will not have thereby been impaired.
You agree that a breach of these Terms will cause irreparable injury to Company for which monetary damages would not be an adequate remedy and Company shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security, or proof of damages.
We may give notice to you by means of a general notice on Builders Patch, electronic mail, or by written communication sent by first class mail or pre-paid post. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by electronic mail). You may give notice to us (such notice shall be deemed given when received by us) at any time by sending an email to email@example.com. Please specify the reason for the email in the subject line so it can be forwarded to the proper department.
These Terms will inure to the benefit of and will be binding upon each party’s successors and assigns. These Terms and the licenses granted hereunder may be assigned by Company without your consent but may not be assigned by you without the prior express written consent of Company, which may be withheld at the Company’s sole and absolute discretion. Any attempt by you to assign these Terms without the written consent of Company shall be null and void.
Nothing contained in these Terms will be deemed to constitute either party as the agent or representative of the other party or both parties as joint venturers or partners for any purpose.
The headings and captions contained herein will not be considered to be part of the Terms but are for convenience only.
Builders Patch is operated by Builders Patch, Inc. All notices of copyright infringement claims should be sent to the copyright agent designated in our Copyright Policy in the manner and by the means set forth therein. All other feedback, comments, requests for technical support and other communications relating to Builders Patch should be directed to: firstname.lastname@example.org.