Terms and Conditions
Legal Terms & Conditions
Terms and Conditions
BuildWiz, Inc.
Last Updated May, 2022
Welcome to BuildWiz! These Terms and Conditions, the Privacy
Policy posted at: (the “Privacy Policy”), and all other terms and policies posted on build-wiz.com(the “Site”)
(collectively, the “Terms of Use”)
govern your access to and use of the Site and any other applications, content,
products, and services (each a “Service” and collectively, the “Services”) made available by BuildWiz, Inc. or its
representatives, affiliates, officers, and directors (collectively, “BuildWiz” or “we” (and all of its derivations)).
Please read these Terms of Use carefully as they constitute a legal agreement
between you and BuildWiz. BY ACCESSING OR USING THE SERVICES, YOU AGREE TO ALL
OF THESE TERMS OF USE AND ALL OTHER RULES, POLICIES, AND PROCEDURES RELATING TO
THE SERVICES AND YOUR USE THEREOF THAT BUILDWIZ MAY PROVIDE YOU FROM TIME TO
TIME. IF YOU DO NOT AGREE TO THESE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE
SERVICES.
The Site may be used only by customers, construction service
providers and BuildWiz employees. The Site is only intended for use in
the United States.
“You” (and all of its
derivations) means you individually and any person acting as your agent, under
your authority, or with your permission and, if you are accepting these Terms
of Use on behalf of a company or other legal entity, that legal entity. If you
are accessing the Services on behalf of an entity, you hereby agree to these
Terms of Use on your behalf and on behalf of such entity. You represent and
warrant that you are: (a) at least 18 years of age (or the minimum age in your
jurisdiction for entering into a binding contract); (b) capable of entering
into a legally binding agreement and (c) either (i) a legal construction
service provider that has been granted all licenses as required to perform any
services you intend to offer on through the Services by the jurisdiction in
which you intend to provide service, (ii) a customer who owns the subject
property or represents the owner, and possesses the legal authority to create a
binding legal obligation with respect to such property; or (iii) an employee of
BuildWiz.
PLEASE READ: THESE TERMS OF USE CONTAIN A MANDATORY
ARBITRATION AGREEMENT REQUIRING ANY DISPUTE BETWEEN YOU AND BUILDWIZ, SUBJECT
TO LIMITED EXCEPTIONS, TO BE RESOLVED BY FINAL AND BINDING ARBITRATION ON AN
INDIVIDUAL BASIS AND REQUIRING YOU TO FOREGO JURY TRIALS, CLASS OR COLLECTIVE
ACTIONS OR PROCEEDINGS, AND ALL OTHER TYPES OF COURT PROCEEDINGS OF ANY KIND.
UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT FOLLOWING THE OPT-OUT PROCEDURES
IN THE “BINDING ARBITRATION & CLASS ACTION WAIVER” SECTION BELOW, YOU WILL
BE BOUND BY THIS ARBITRATION AGREEMENT. BY AGREEING TO THESE TERMS OF USE, YOU
ACKNOWLEDGE THAT YOU UNDERSTAND AND EXPRESSLY AGREE TO THE MANDATORY
ARBITRATION AGREEMENT.
BINDING
ARBITRATION & CLASS ACTION WAIVER (“ARBITRATION AGREEMENT”)
BuildWiz is committed to customer satisfaction, so in the event of
dispute, claim, or controversy arising out of or relating to any part of these
Terms of Use, or the existence, breach, termination, enforcement,
interpretation, or validity thereof (collectively, “Disputes”), please contact us at complaint@build-wiz.com, and we will try to resolve your concerns through
informal negotiation within 60 days from the date of the notice of Dispute is
received. If we are unsuccessful after 60 days, you may pursue claims as
explained in this section.
Notice of Dispute: If any party intends to seek arbitration, the party seeking
arbitration must first notify the other party of the Dispute in writing.
Notice should be sent to complaint@build-wiz.com. The notice must include your name, address, and
contact information, the facts giving rise to the dispute, and the relief
requested.
Mandatory Binding Arbitration: By agreeing to these Terms of Use, You agree that any Dispute
shall be finally settled by binding individual arbitration in accordance with
the rules and procedures of the American Arbitration Association (“AAA”), and not in a court of
law in any jurisdiction, and not in a class, representative, or consolidated
action or proceeding, as further set forth below. You and BuildWiz agree that
one (1) arbitrator, and not any federal, state, or local court or agency, shall
have exclusive authority to resolve any disputes relating to the interpretation,
applicability, enforceability, or formation of this Arbitration Agreement,
including any claim that all or any part of this Arbitration Agreement is void
or voidable. The arbitrator shall also be responsible for determining all
threshold arbitrability issues, including issues relating to whether these
Terms are unconscionable or illusory and any defense to arbitration, including
waiver, delay, laches, or estoppel. Judgment of the award rendered by the
arbitrator may be confirmed, reduced to judgment, and entered in any court of
competent jurisdiction as necessary to protect BuildWiz’s rights or its
property or those of its agents, suppliers, and subcontractors.
Class Action Waiver: You acknowledge and agree that you and BuildWiz are each waiving
the right to a trial by jury or to participate as a plaintiff or class member
in any purported class action or representative proceeding. Unless both you and
BuildWiz agree in writing, any arbitration will be conducted only on an
individual basis and not in a class, collective, consolidated, or
representative proceeding. If any court or arbitrator determines that the class
action waiver set forth in this Section is void or unenforceable for any reason
or that an arbitration can proceed on a class basis, then the entirety of the
Arbitration Agreement set forth in this Section will be deemed null and void
and you and BuildWiz will be deemed to have not agreed to arbitrate disputes on
a class basis. Notwithstanding your and BuildWiz’s agreement to resolve all Disputes
through arbitration, you and BuildWiz each retain the right to bring an
individual action in small claims court and the right to seek injunctive or
other equitable relief in a court of competent jurisdiction to prevent the
actual or threatened infringement, misappropriation, or violation of a party’s
copyrights, trademarks, trade secrets, patents, or other intellectual property
rights.
Rules, Procedures, and Governing Law: The arbitration will be administered by the AAA under its Consumer
Arbitration Rules and any supplementary rules then in effect (the “AAA Rules”), except as modified by
these Terms. The AAA Rules are available at www.adr.org or by calling the AAA
at 1-800-778-7879. The rules of the arbitral forum will govern all aspects of
this arbitration, except to the extent those rules conflict with these Terms.
Notwithstanding any choice of law or other provision in the Terms, you and
BuildWiz agree and acknowledge that this Arbitration Agreement evidences a
transaction involving interstate commerce and that the Federal Arbitration Act,
9 U.S.C. § 1 et seq. (“FAA”) will govern its
interpretation and enforcement and proceedings pursuant thereto. It is the
intent of you and BuildWiz that the FAA and AAA Rules shall preempt all state
laws to the fullest extent permitted by law. If the FAA and AAA Rules are found
to not apply to any issue that arises under this Arbitration Agreement or the
enforcement thereof, that issue will be resolved under the laws of the State of
California, without regard to its conflict of laws provisions.
A party who desires to initiate an arbitration must submit a
written Demand for Arbitration to the AAA and give notice to the other party as
specified in the AAA Rules. The AAA provides a form Demand for Arbitration at
www.adr.org. You can contact AAA for more information on how to commence an
arbitration proceeding at www.adr.org or 1-800-778-7879.
For claims under $10,000, you may choose to have the arbitration
conducted by telephone, based on written submissions, or in person in the
county where you live or at another mutually agreed location. If your claim is
at or above $10,000, your right to a hearing will be determined by the AAA
Rules. Payment of all filing, administration, and arbitrator fees will be
governed by the AAA's applicable rules. We will reimburse those fees for claims
totaling less than $10,000, unless the arbitrator finds your Dispute frivolous.
Changes to Arbitration Agreement: Notwithstanding the provisions of this Section, if BuildWiz
changes any of the terms of this Section after the date you first accepted the
Terms of Use (or accepted any subsequent changes to the Terms of Use), you may
reject any such change by providing BuildWiz written notice of such rejection
within thirty (30) days after the date such change became effective, as
indicated in the “Last Updated” date above. This written notice must be
provided either by email at complaint@build-wiz.com or by mail to our registered agent for service of
process, c/o [●]. In order to be effective, the notice must include your full
name, address, and signature, and clearly indicate your intent to reject
changes to this Arbitration Agreement. By rejecting changes, you are agreeing
that you will arbitrate any Dispute between you and BuildWiz in accordance with
the provisions of this Arbitration Agreement as of the date you first agreed to
the Terms (or to any subsequent changes to the Terms).
Opt-out procedure: You can choose to reject this Arbitration Agreement by
sending us a written opt-out notice (“Opt-Out Notice”) within thirty (30) days following the date you first
agree to these Terms by email tocomplaint@build-wiz.com or by mail at BuildWiz, Inc., c/o
Legal Department, 6218 Firefly Dr, San
Jose, CA 95120. If mailed, the Opt-Out
Notice must be post-marked no later than thirty (30) days following the date
you first agree to these Terms of Use. To be effective, your Opt-Out Notice
must contain your name, address, and signature. If you opt out of the
Arbitration Agreement, all other parts of these Terms of Use will continue to apply
to you. Opting out of this Arbitration Agreement has no effect on any previous,
other, or future arbitration agreements that you may have with us.
DISPUTES
OVER SERVICES
Both Customers and
Service Providers (the “Parties”
and each individually, a “Party”) may start a dispute (“Contract Dispute”) over the obligations set forth in their individual
Services Contract (defined below). Contract Disputes should be resolved
pursuant to the terms of the individual Services Contract and the terms set
forth herein. In the event of a conflict between the Services Contract
between the Parties and the terms set forth herein, these Terms and Conditions
shall control.
Before the disputes
process described in this section is commenced, in an attempt to avoid the
costs of dispute resolution, the Parties agree to give each other a full and
fair opportunity to address and resolve the issues informally through in-person
or video-conference negotiation. Both Parties recognize that an informal
negotiation is a material pre-condition to the formal dispute process outlined
herein, and that the failure to participate in an informal negotiation would be
a material breach of the Services Contract and these Terms and Conditions.
If an informal
resolution cannot be reached, either Party is free to initiate the formal
dispute resolution process (“Complaint Process”). The Contract Dispute Complaint Process begins
once either Party lodges a complaint via email addressed to both BuildWiz and
the other Party and advises the other Party a complaint has been sent through
the chat function within the Services. After a complaint is received,
BuildWiz may ask the initiating Party to provide an explanation of the Contract
Dispute together with all documents that may apply to the Contract Dispute (“Evidence”), including any
business terms, quote, images or video relative to the Contract Dispute, any
correspondence or other documentation relative to the Services, and a
description of the specific relief sought, including whatever amount of money
is demanded and the means by which the initiating Party calculated the claimed
damages. Within 5 business days, the Party responding to the complaint
may provide BuildWiz with its own Evidence, including correspondence or other
documentation relative to the Services, which they believe is important to the
issues raised in the complaint. At the conclusion of the 5 business day
period, the Parties will be notified that the Contract Dispute has been
submitted and the status of the Contract Dispute will be visible on the Site.
The date on which such Contract Dispute is logged is called the “Dispute Date”. Depending on the
nature, complexity, and size of the Contract Dispute, BuildWiz may review the
Evidence submitted by both Parties and offer a non-binding resolution. If
a non-binding resolution is offered, the Parties will have 5 business days to
accept or reject the resolution. The Parties will only be notified that
each side accepted the non-binding terms for resolution of the Contract Dispute
in the event both Parties agree to the non-binding terms. If such
non-binding resolution is accepted by both Parties, the terms of the resolution
become final and will be affected by either modified or additional Services, or
the release of funds, as the case may be. Once a resolution is reached,
the Parties agree to mutually waive any and all claims related to the issue or
issues that were identified in the complaint. If the Parties do not agree
with the non-binding resolution within 5 business days, or BuildWiz elects not
to review the complaint, the Complaint Process ends.
After the Complaint
Process has ended, an arbitration period will begin. The Parties agree to
submit the dispute to the AAA, which shall apply the AAA Construction Industry
Arbitration Rules and the procedures set forth in the Federal Arbitration
Act. The arbitration proceeding will be decided by California law.
Arbitration must be commenced within 30 days of the end of the Complaint
Process. To the fullest extent possible, the Service Provider shall
require any sub-contractor or material supplier to agree to AAA arbitration
pursuant to these rules, and agrees to join any subcontractor or material
supplier that is involved with the issues in Contract Dispute. If
BuildWiz receives notice that either party has not appeared or participated in
the arbitration after the 30 day period expires, BuildWiz may terminate or
cancel the Services Contract and refund whoever BuildWiz feels was wronged,
less any fees or costs incurred by BuildWiz.
The Parties agree that
any arbitration fees shall be shared equally with all participants.
Subject to the final award or written decision, arbitration fees and prevailing
party costs may be recoverable by the prevailing party. Any award in such
arbitration will be final and binding upon the parties and judgment thereon may
be entered in any court of competent jurisdiction. AAA will provide
BuildWiz with a copy of the final award or decision and BuildWiz will comply
with AAA’s final award or decision by releasing any remaining disputed funds to
the prevailing party within 30 days following the date of the award or
decision.
BuildWiz
reserves the right (but are under no legal obligation) to commence the
arbitration on behalf of the parties, or to interplead the funds with a
Superior Court located in the county where the Project is located. In
either case, both parties authorize BuildWiz to use the disputed funds to pay
any fees to initiate the arbitration or to commence an interpleader action such
that BuildWiz is not out of pocket for costs associated with the Contract
Dispute.
To the fullest extent
possible, the Parties agree to continue to abide by the Services Contract by
furnishing Services and remitting payment for milestones achieved while the
Contract Dispute process runs its course. Of course, at any time the
Parties may resolve the Contract Dispute by mutual agreement.
Other than those
rights and circumstances expressly set forth above, the disputed funds shall
only be released by BuildWiz in the following events:
·
A joint instruction
signed by the Parties agreeing to release the disputed funds;
·
An arbitration order,
final award, of decision with instructions to release the funds to the
prevailing party; or
·
A final decision or
judgment entered by a court of law in the event the funds are interplead.
By using the Services,
you agree to release BuildWiz from any and all claims, demands and damages
(actual and consequential) of every kind and nature, known and unknown, arising
out of or in any way connected with such Contract Disputes. In entering into this
release you expressly waive any protections (whether statutory or otherwise, by
way of non-limiting example, California Civil Code § 1542) that would otherwise
limit the coverage of this release to include only those claims which you may
know or suspect to exist in your favor at the time of agreeing to this release.
THE
PARTIES ACKNOWLEDGE AND AGREE THAT THE DISPUTE RESOLUTION PROCEDURES SET FORTH
HEREIN DO NOT INTERFERE WITH, OVERRIDE, SUPPLANT, DIMINISH, OR MODIFY IN ANY
WAY THE MECHANICS LIEN RIGHTS PROVIDED UNDER ARTICLE XIV, SECTION 3 OF THE
CALIFORNIA CONSTITUTION. FOR GENERAL INFORMATION ABOUT MECHANICS LIEN
RIGHTS IN CALIFORNIA, THE PARTIES MAY REVIEW THE INFORMATION PROVIDED HERE
https://www.cslb.ca.gov/consumers/legal_issues_for_consumers/mechanics_lien/.
ACCESS
AND USE OF THE SERVICE
Services Description: The Service is designed to provide homebuilding project booking,
contracting, hold account, communication and project management tools between
those who have homebuilding projects (“Customers”) and construction service providers who provide bids
and construction services (“Service Providers”). Customers will submit complete and accurate
information about their homebuilding project (the “Project”) through a form
available through the Service. The questionnaire will ask for basic information
about the Project like the desired start date, zip code of the subject property
and photographs of the Project site. For Projects that consist of new
construction, BuildWiz will then generate a list of all the jobs required for
completion of the building Project (each, a “Job”). BuildWiz will post each Job through the Service.
Service Providers may submit bids (each, a “Bid”) for Jobs to the Customer through the Service. Every
Bid must include a detailed scope of work, materials included, materials not
included (where applicable), milestones with applicable payments, and other
customary key metrics associated with the Job type. The Bid may also include an
expiration period (if a Service Provider does not provide an expiration period
in the Bid, such Bid will expire four (4) weeks after submission). Bids
may be removed at any time by the Service Provider prior to acceptance by the
Customer, and any Bid removed in such manner may no longer be accepted by the
Customer. The Customer may compare Bids and select a Service
Provider for each Job. Following selection of a Bid, Customer and Service
Provider will enter into a binding, legal contract governing the Job, including
milestones, inspections, building permits, licensing, insurance, payment and
quality terms, and other standard construction contract provisions.
Your Registration Obligations: In order to use the Services through the Site, you must register
for an account (“Account”).
When registering for an Account, you must: (a) provide true, accurate, and
complete information; and (b) establish a username and a password. You
must maintain and promptly update such information so that it is current at all
times. You are responsible for keeping your Account password confidential and
secured and for all activities that occur through your Account, whether or not
you have authorized them. You will immediately notify us of any unauthorized
use of your password or Account or any other breach of security. We will not be
responsible for any loss or damage arising from your failure to comply with
your responsibilities and obligations under these Terms of Use or from any
activities that occur through your Account.
Additional Representations and Acknowledgement. By using the Services as a Customer, you represent that
you own the subject property or are an agent of the subject property owner and
are authorized to act on the owner’s behalf, including the authorization to
hire Service Providers to perform construction work on the subject property and
to obligate the property owner to pay the Service Providers for their
work. By using the Services as a Customer, you represent, covenant and
agree that you will not directly or indirectly contact or communicate with a
Service Provider identified on the Services outside of the Services to solicit
their bid or any other services.
By using the Services as a Service Provider, you represent,
covenant and agree that: (i) you are a business entity in good standing under
the laws of your jurisdiction of organization and agree to maintain such good
standing throughout the performance of each Job; (ii) you are authorized to
obligate the Service Provider to provide the services described in the Bid;
(iii) you will not offer services that are not directly requested by a Customer
and will only offer the type of service requested in a Project post; (iv) you
will only offer services that you are licensed to perform in the jurisdiction
of each specific Job; (v) the terms of each Bid you submit are binding; and
(vi) you will not directly or indirectly contact or communicate with a Customer
identified on the Services outside of the Services to solicit business or use
the Services to offer services that are not directly requested by the Customer
in the Project post. You further agree that you are not an employee of
BuildWiz, and no employer-employee relationship has been or will be created
solely by creating an Account, bidding on a Job, or entering into a payment
relationship involving BuildWiz and any third party. You agree to perform all
work related to Jobs originating on the Service in your capacity as an
independent contractor, and in no event will you be deemed an employee of
either BuildWiz or the Customer.
YOU ACKNOWLEDGE THAT YOUR ABILITY TO REQUEST, AND IF APPLICABLE,
OBTAIN CONSTRUCTION SERVICES AND/OR MATERIALS FROM THIRD-PARTY PROVIDERS IN
CONNECTION WITH THE USE OF THE BUILDWIZ MARKETPLACE PLATFORM AND SERVICES DOES
NOT ESTABLISH BUILDWIZ AS A PROVIDER OF CONSTRUCTION SERVICES OR MATERIALS.
USE OF THE BUILDWIZ SERVICES IS ONLY OPEN TO REGISTERED USERS OF
THE BUILDWIZ SERVICES AND NOT TO THE GENERAL PUBLIC.
YOU ACKNOWLEDGE THAT INDEPENDENT THIRD-PARTY PROVIDERS, INCLUDING
SERVICE PROVIDERS, ARE NOT ACTUAL AGENTS, APPARENT AGENTS, OSTENSIBLE AGENTS,
OR EMPLOYEES OF BUILDWIZ IN ANY WAY.
YOU ALSO ACKNOWLEDGE THAT ANY SAFETY-RELATED EFFORT, FEATURE,
PROCESS, POLICY, STANDARD OR OTHER EFFORT UNDERTAKEN BY BUILDWIZ IN THE
INTEREST OF PUBLIC SAFETY (WHETHER REQUIRED BY APPLICABLE REGULATIONS OR NOT)
IS NOT AN INDICIA OF AN EMPLOYMENT, ACTUAL AGENCY, APPARENT AGENCY, OR
OSTENSIBLE AGENCY RELATIONSHIP WITH AN INDEPENDENT THIRD-PARTY SERVICE PROVIDER.
MODIFICATIONS
TO TERMS OF USE
We reserve the right, at our sole discretion, to change, modify or
otherwise alter these Terms of Use at any time by posting a notice on the Site
or by other means of electronic communication. Unless otherwise indicated, such
changes will become effective immediately. It is your responsibility to review these
Terms of Use periodically for changes. Your continued use of the Services
following the posting or other provision of any updated Terms of Use will
constitute your acceptance of such updated Terms of Use and those updated Terms
of Use will apply to your continued use of the Services going forward. Your use
of the Services is subject to the Terms of Use in effect at the time of your
use.
PRIVACY
The Privacy Policy posted at [●] explains how we collect, store,
share, or otherwise use any personal information you provide through the
Services (“Personal Data”).
Our use of Personal Data will be in accordance with the Privacy Policy and you
hereby grant BuildWiz the right to use your Personal Data consistent with these
Terms of Use, including the Privacy Policy.
SERVICE
PROVIDER MATERIALS
Service Providers may agree to provide construction materials for
a Project through the Site (“Materials”). The Service Provider will be the “Seller of Record”
for those Materials. You acknowledge that orders of Materials for which Service
Provider is the Seller of Record will be fulfilled by that Service Provider and
not by BuildWiz. The Service Provider (and not BuildWiz) will be responsible
for accepting or rejecting your order for Materials and for processing,
shipping, returns, and customer service related to your order. Materials may
only be rejected or returned to the Service Provider in accordance with that Service
Provider’s policy. For additional information about any Materials, including
shipping information, warranty and return policy, customer service information,
and all other information applicable to Materials, please contact the Service
Provider.
PAYMENT
Payment
processing services are provided by Balance Payments, Inc. (“Balance”) and are subject to the
Balance End User Terms, which includes the
Balance Terms of Use (collectively, the “Balance Services Agreement”). By agreeing to these terms or continuing to use the
Services you agree to be bound by the Balance Services Agreement, as the same
may be modified by Balance from time to time. This includes the use of any
information you provide to Balance in accordance with their privacy policy
which can be found at https://www.getbalance.com/legal/privacy-policy. As
a condition of BuildWiz enabling payment processing services through Balance,
you agree to provide BuildWiz accurate and complete information about you and
your business, and you authorize BuildWiz to share it and transaction
information related to your use of the payment processing services provided by
Balance.
CONTENT
BuildWiz may, in BuildWiz’s sole discretion, permit you from time
to time to submit, upload, publish or otherwise make available through the
Services certain content related to the Project (“Content”). Content may
include property address information, photographs, construction service
descriptions, timelines, pricing and materials listings, and other textual,
audio and/or visual content and information related to the Project. Any Content
provided by you remains your property. However, by providing Content to
BuildWiz, you hereby grant BuildWiz a worldwide, perpetual, irrevocable,
transferable, royalty-free license, with the right to sublicense, to use, copy,
modify, create derivative works of, distribute, publicly display, publicly
perform, and otherwise exploit the Content in any manner to the extent required
to perform, promote and improve the Services.
You represent and warrant that: (i) you either are the sole and
exclusive owner of all Content or you have all rights, licenses, consents and
releases necessary to grant BuildWiz the license to the Content as set forth
above; and (ii) neither the Content, nor your submission, uploading, publishing
or otherwise making available of such Content, nor BuildWiz’s use of the
Content as permitted herein will infringe, misappropriate or violate a
third-party's intellectual property or proprietary rights, or rights of
publicity or privacy, or result in the violation of any applicable law or
regulation.
Reliance on any information provided by a Service Provider or
otherwise appearing on the Services is solely at your own risk.
MODIFICATIONS
TO THE SERVICES
BuildWiz reserves the right to modify or discontinue, temporarily
or permanently, the Service (or any part thereof) with or without notice.
Changes we make to the Services may require you to update your Account
information or the devices or systems through which you access the Services in
order to continue using the Services. You agree that BuildWiz will not be
liable to you or to any third party for any modification, suspension, or
discontinuance of the Service.
YOUR
CONDUCT
You are responsible for all of your activity related to the
Services and may not use the Services for any purpose other than as set forth
in these Terms of Use. Any conduct by you that, in our sole discretion,
restricts or inhibits any other user from using or enjoying the Services will
not be permitted. Without limitation of the foregoing, you will not (and will
not permit any third party to): (a) use the Services for any purpose other than
to enter into a legitimate engagement for you or for another person for whom
you are legally authorized to act; (b) if you are using the Services to act on
behalf of another person or entity, fail to inform such other persons about the
Terms of Use that apply to the engagement you created on their behalf,
including all rules and restrictions applicable thereto; (c) take any action
(including providing information in Project requests or Bids) that you know is
false, misleading, untruthful, or inaccurate; (c) use the Services in
connection with any fraudulent or illegal conduct, transaction, or business;
(d) “spam” others or “phish” for others’ personal information; (e) post contact
information such as a business or personal email address, phone number,
business or personal address or other contact information, (f) use the Services
in a manner that is unlawful, abusive, harassing, defamatory, libelous,
profane, threatening, invasive of a person’s privacy, violative of any third
party proprietary rights, tortious, or is otherwise inappropriate; (f) use the
Services to transmit software viruses or any other computer codes, files, or
programs that are designed or intended to disrupt, damage, limit, obtain
unauthorized access to, or interfere with the proper function of the Services,
including the Site and any other software, hardware, or telecommunications
equipment; (g) take any action that imposes or may impose (as determined by
BuildWiz in its sole discretion) an unreasonable or disproportionately large
load on BuildWiz’s (or its third party providers’) infrastructure; (h) interfere
or attempt to interfere with the proper working of the Services; (i) bypass,
circumvent, or attempt to bypass or circumvent any measures BuildWiz may use to
prevent or restrict access to the Services, including the Site and other
accounts, computer systems, and networks connected thereto; (j) frame or mirror
any portion of the Services or incorporate any portion of the Services into any
product or service; (k) use meta tags or any other “hidden text” using any
BuildWiz Trademark (defined below); (l) decipher, decompile, disassemble,
reverse engineer or otherwise attempt to derive any source code or underlying
ideas or algorithms of the Site or make or attempt to make any modification to
the Services, except to the limited extent applicable laws specifically
prohibit such restriction; (m) modify, translate, or otherwise create
derivative works of the Services; (n) sell, resell, copy, rent, lease, loan,
distribute, or charge any party for access to the Services; (o) use or launch
any automated system, including “robots,” “spiders,” or “offline readers,” to
access the Services; or (p) act as an intermediary, aggregator, or service
bureau yourself or on behalf of any third party.
We may elect, but have no obligation, to electronically monitor
the Services and may disclose any content, records, or electronic communication
of any kind: (i) to satisfy any law, regulation, or government request; (ii) if
such disclosure is necessary or appropriate to operate the Services; or (iii)
to protect our rights or property or the rights of others.
We retain the right at our sole discretion to deny access to
anyone to this Site and the Services, at any time and for any reason,
including, but not limited to, for violation of these Terms of Use.
FEEDBACK
We welcome your feedback about the Site. However, you acknowledge
and agree that any comments, ideas, notes, suggestions or other feedback (“Feedback”) you provide is our
exclusive property, and we may use all such communications in any manner,
including reproducing, disclosing, and publishing such communications, all
without compensation to you. You hereby assign to BuildWiz all of your right,
title, and interest in your Feedback, including all intellectual property
rights therein.
TERMINATION
AND SUSPENSION
We reserve the right to delete or change any username or password
at any time and for any reason. We may suspend or terminate your Account or
your use of the Services at any time, for any reason or for no reason at all.
You may terminate these Terms of Use at any time by discontinuing your use of
the Services. You may delete your Account, either directly or through a request
made to info@build-wiz.con, but you will no longer be able to post Projects or
Bids through the Site. Upon any termination of these Terms of Use by
either you or us, the following sections will survive: “Binding Arbitration
& Class Action Waiver”, “Privacy”, “Service Provider Materials ”,
“Content”, “Your Conduct”, “Feedback”, “Disclaimer of Warranties”, “Limitation
of Liability”, “Indemnity”, “Notices and Questions”, and “Miscellaneous”,
together with all other provisions that by their plain meaning are intended to
survive.
DISCLAIMER
OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES
IS AT YOUR SOLE RISK AND THAT OTHER THAN AS EXPRESSLY SET FORTH HEREIN, THE
SERVICES, THE CONTENT AND ALL MATERIALS ARE PROVIDED ON AN ”AS IS“ AND “AS
AVAILABLE” BASIS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, AND TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, BUILDWIZ EXPRESSLY DISCLAIMS ALL WARRANTIES
OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING: (a) THE IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND
NON-INFRINGEMENT; (b) THAT THE SERVICES WILL BE AVAILABLE ON AN UNINTERRUPTED,
TIMELY, SECURE, OR ERROR-FREE BASIS; OR (c) AS TO THE ACCURACY, RELIABILITY, OR
CURRENCY OF ANY CONTENT OR OTHER INFORMATION PROVIDED THROUGH THE SERVICES. NO
ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BUILDWIZ
OR THOUGH THE SERVICES SHALL CREATE ANY WARRANTY. IT IS YOUR SOLE
RESPONSIBILITY TO DETERMINE WHETHER THE SERVICES ARE SUITABLE AND ADEQUATE FOR
YOUR NEEDS. BUILDWIZ DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME
RESPONSIBILITY FOR ANY MATERIALS OR SERVICES ADVERTISED OR OFFERED BY A THIRD
PARTY THROUGH OR IN CONNECTION WITH THE SITE OR ANY HYPERLINKED WEBSITE OR
SERVICES.
LIMITATION OF LIABILITY
BUILDWIZ HAS NO RESPONSIBILITY OR LIABILITY FOR ANY SERVICE
PROVIDER, THE CONSTRUCTION SERVICES AND MATERIALS THEY OFFER, THE CONDITION OF
ANY CONSTRUCTION SITE, OR ANY OF THEIR REPRESENTATIONS (INCLUDING
REPRESENTATIONS MADE IN THE SERVICES CONTRACT) WITH RESPECT TO SUCH
CONSTRUCTION SERVICES OR MATERIALS. BUILDWIZ ALSO HAS NO RESPONSIBILITY OR
LIABILITY FOR ANY CUSTOMER, THE INFORMATION THEY PROVIDE AND THE
REPRESENTATIONS MADE IN THE SERVICES CONTRACT. ANY WARRANTY MADE BY BUILDWIZ TO
THE CUSTOMER WILL NOT EXEMPT THE SERVICE PROVIDER FROM ANY LIABILITY THAT
ARISES IN THE COURSE OF PERFORMANCE OF CONSTRUCTION SERVICES UNDER THE SERVICES
CONTRACT.
YOU UNDERSTAND AND AGREE THAT, EXCEPT AS EXPRESSLY SET FORTH
OTHERWISE HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO
CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL BUILDWIZ OR ITS AFFILIATES OR
SUPPLIERS, OR ANY OF ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES,
AGENTS, OR REPRESENTATIVES BE LIABLE UNDER ANY THEORY OF LAW FOR ANY DIRECT,
INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, DAMAGES FOR LOSS OR
INACCURACY OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES,
BUSINESS INTERRUPTION, OR LOSS OF PROFIT, ARISING OUT OF THE USE OR THE
INABILITY TO USE THE SERVICES, ANY TRANSACTION CONDUCTED THROUGH THE SERVICES,
ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, OR DELAY, ANY THEFT, ANY
UNAUTHORIZED ACCESS TO OR ALTERATION OF DATA, OR OTHER TANGIBLE OR INTANGIBLE
LOSS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING THE FOREGOING, BUILDWIZ’S TOTAL LIABILITY FOR ALL DAMAGES,
LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE),
OR OTHERWISE, WILL NOT, UNDER ANY CIRCUMSTANCES, EXCEED ONE HUNDRED DOLLARS
($100). BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
LIABILITY FOR DAMAGES, SOME OF THE WARRANTY DISCLAIMERS AND LIMITATIONS SET
FORTH IN THESE TERMS OF USE MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS,
BUILDWIZ’S LIABILITY IS LIMITED TO, AND THE SCOPE AND DURATION OF THE
WARRANTIES SET FORTH IN THESE TERMS OF USE SHALL BE, THE MINIMUM PERMITTED BY
APPLICABLE LAW.
THE LIMITATIONS AND DISCLAIMERS IN THESE TERMS OF USE DO NOT
PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE
EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
INDEMNITY
You hereby indemnify and hold harmless BuildWiz and its affiliates,
suppliers, business partners, and licensors, and its and their respective
employees, contractors, and agents from any and all claims, losses, damages,
costs, and expenses, including reasonable attorney’s fees, arising from or
related to your use or misuse of the Services or breach of these Terms of Use.
You will cooperate fully as reasonably required in the defense of any such
claim.
INTELLECTUAL PROPERTY
As between you and BuildWiz, BuildWiz owns and retains all right,
title, and interest, including all intellectual property rights, in and to the
Services and all names, trademarks, service marks, logos, and other indicia of
BuildWiz or BuildWiz’s licensors or third party partners used in connection
with the Site or any Product (“BuildWiz Trademarks”). Subject to your compliance with these Terms of Use,
BuildWiz grants you a limited, revocable, non-exclusive, non-transferable
license to access and use the Site solely in accordance with these Terms of
Use. You have no right to use any BuildWiz Trademark in any manner without the
advance written permission of BuildWiz. BuildWiz reserves all rights not
expressly granted to you in these Terms of Use.
INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS – DMCA NOTICE
It is our policy to respond expeditiously to claims of
intellectual property infringement. We will promptly process and investigate
notices of alleged infringement and will take appropriate actions under the
Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws. If
you are a copyright owner or agent thereof and believe that content posted on
the Site infringes upon your copyright, please submit a notice which includes
the following information to the address set forth below:
a. Identify specifically the copyrighted work(s) believed to have been infringed (for example, "My
copyrighted work is the picture that appears at [list location where material
is located].")
b. Identify the content that is claimed to infringe upon the copyrighted work. You must provide
information reasonably sufficient to enable us to locate the item on the Site.
You should provide clear screenshots of the allegedly infringing materials for
identification purposes only. The information provided should be as detailed as
possible;
c. Provide information sufficient to permit us to contact the copyright owner directly: name, street
address, telephone number, and email;
d. If available, provide information sufficient to permit us to notify the alleged infringer (email
address preferred);
e. Include the following statement:
“I have a good faith belief that use of the material in the manner complained
of is not authorized by the copyright owner, its agent, or the law”;
f. Include the following
statement: “I swear, under penalty of perjury, that the information in the notification
is accurate and that I am the copyright owner or am authorized to act on behalf
of the owner of an exclusive right that is allegedly infringed”; and
g. Include the electronic
or physical signature of the copyright owner or the person authorized to act on
behalf of the copyright owner.
Send to: Registered Copyright Agent
BuildWiz
6218 Firefly Dr
San Jose
CA 95120
Email address: info@build-wiz.com
NOTICES AND QUESTIONS
Except as explicitly stated otherwise in these Terms of Use, (a)
any notices provided by us may be made by an updated posting on the Service or
by mail or email to the most recent address or email address associated with
your Account; and (b) all notices under these Terms of Use must be in writing
and will be deemed to have been duly given: (i) when received, if personally
delivered or sent by certified or registered mail, return receipt requested;
(ii) when receipt is electronically confirmed, if transmitted by e-mail; or
(iii) the day after it is sent, if sent for next day delivery by recognized
overnight delivery service. You hereby agree that all agreements, notices,
disclosures, and other communications that we provide to you electronically
satisfy any legal requirement that such communications be in writing.
You may contact BuildWiz at: BuildWiz Customer Service
Email Address: info@build-wiz.com
Mailing Address: BuildWiz - Customer Service
6218 Firefly Dr
San Jose
CA 95120
Please note that e-mail communications will not necessarily be
secure; accordingly, you should not include credit card information or other
sensitive information in any email to us. California residents may reach the
Complaint Assistance Unit of the Division of Consumer Services of the
California Department of Consumer Affairs by mail at 1625 North Market Blvd.,
Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210.
MISCELLANEOUS
Severability, Non-waiver, Entire Agreement: If any provision of these Terms of Use, or any portion thereof,
is found to be illegal, unenforceable, or invalid, that provision or portion
will be replaced by a valid, legal, and enforceable provision that comes
closest to the parties’ intent underlying the invalid, illegal, or
unenforceable provision. Headings are for reference purposes only and in no way
define, limit, construe, or describe the scope or extent of such section. For
purposes of these Terms of Use: (a) the words “include,” “includes”, and
“including” will be deemed to be followed by the words “without limitation”;
(b) the words “such as”, “for example”, “e.g.”, and any derivatives of those
words will mean by way of example and the items that follow these words will
not be deemed an exhaustive list; (c) the word “or” is used in the inclusive
sense of “and/or” and the terms “or,” “any,” and “either” are not exclusive;
(d) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to
these Terms of Use as a whole; and (e) the singular includes the plural and the
plural includes the singular. No ambiguity will be construed against any party
based on a claim that the party drafted the language. No failure by any party
to take any action or assert any right hereunder will be deemed to be a waiver
of such right and will not prevent such party from enforcing such right in the
future. The waiver by a party of any of its rights or a breach in a particular
instance will not be construed as a waiver of such rights or breach or of the
same or different rights or breach in subsequent instances. These Terms of Use
set forth the entire understanding and agreement between you and BuildWiz with
respect to the subject matter contained herein and supersede any other
agreement, proposals, and communications, written or oral, between BuildWiz and
you with respect to the subject matter hereof. BuildWiz will not be liable for
any failure to perform its obligations hereunder where such failure results
from any cause beyond its reasonable control.
No Joint Venture, No Derogation of Rights: No joint venture, partnership, employment, or agency relationship
is created between you and BuildWiz as a result of these Terms of Use or your
use of the Services and neither party has any authority of any kind to bind the
other in any respect. Our performance of these Terms of Use is subject to
existing laws and legal process, and nothing contained herein is in derogation
of our right to comply with governmental, court, and law enforcement requests
or requirements relating to your use of the Services or information provided to
or gathered by us with respect to such use.
Assignment:
You may not assign your rights or obligations hereunder without BuildWiz’s
express prior written consent. We may assign, transfer, or delegate any of our
rights and obligations hereunder without your consent. Any assignment or
transfer or purported assignment or transfer in violation of this Section is
null and void. These Terms of Use shall be binding upon the permitted
heirs, successors, and assigns of the parties hereto.
Governing Law & Forum Choice: Your access and use of the Services and these Terms of Use shall
be governed by and construed in accordance with the laws of California without
reference to its conflicts of laws provisions. Except as set forth in Section 1 above, any Dispute
directly or indirectly arising out of, in connection with, or related to the
Services or these Terms of Use shall be brought and heard in the state or
federal courts in Santa Clara
© 2022 BUILDWIZ, INC. All rights reserved.