a. “Website” or “Websites” mean “FLIPT” and/or “BuildersCloud” websites used to upload and view Content in connection with the Service
b. “Content” means all PDFs, image files, profile data, project information, photographs, text, and any other information or materials uploaded by or on behalf of you to the Websites or Applications in connection with your use of the Service.
c. “Service” means the server-based functionality that converts your Content into one or more image or proprietary formats that facilitate rapid and efficient viewing on the Website or Application.
d. “Application” means “BuildersCloud” and/or “FLIPT” software applications.
2. LICENSE TO USE
Subject to your compliance with the terms and conditions of this Agreement, BuildersCloud grants to you a non-exclusive, non-transferable, revocable right to access and use the Service upon registration. You can register by visiting the Websites and clicking on the “sign up” button, or by downloading the Application and clicking the “sign up” button. During registration, you will provide an email address and create a password (“Credentials”). These are your Credentials for accessing the Service. You agree that BuildersCloud may use your Credentials to authenticate you on the Application or Websites. You are responsible for all uses of the Application or Websites using your Credentials, including use by others to whom you have given your Credentials. You, not BuildersCloud, shall be responsible for maintaining and protecting your Credentials and your Content. If your contact information, or other information relating to your account changes, you must notify BuildersCloud promptly and keep your information current. You are solely responsible for any activity using your account, whether or not you authorized that activity. You should immediately notify BuildersCloud of any unauthorized use of your account or if your email or password has been hacked or stolen. If you discover that someone is using your password or account without your consent, or you discover any other breach of security, you agree to notify BuildersCloud immediately at firstname.lastname@example.org. BuildersCloud reserves the right to suspend or discontinue all or part of the Service at any time without prior notice.
Subject to the terms and conditions of this Agreement, BuildersCloud grants to you a non-exclusive, non-transferable, revocable license to install and use the Application solely to use the Service on any tablet, smartphone or other device (“Device”) that you own or control. You shall not modify, port, adapt or translate the Application software. You shall not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Application software.
You acknowledge that BuildersCloud owns all right, title, and interest in the Service, the Application, the Websites any other BuildersCloud software, and all graphics, logos, service marks, and trade names, including third-party names, product names, and brand names related to the Service. Except as expressly stated herein, this Agreement does not grant you any intellectual property rights in the Service, the Websites or the Applications and all rights not expressly granted are reserved by BuildersCloud.
a. Your Content.
b. Your Representations and Warranties Regarding Content.
You represent and warrant that (a) you are the owner, licensor, or authorized user of all Content; and (b) you will not upload, record, publish, post, link to, or otherwise transmit or distribute Content that: (i) advocates, promotes, incites, instructs, informs, assists or otherwise encourages violence or any illegal activities; (ii) infringes or violates the copyright, patent, trademark, service mark, trade name, trade secret, or other intellectual property rights of any third party or BuildersCloud, or any rights of publicity or privacy of any party; (iii) attempts to mislead others about your identity or the origin of a message or other communication, or impersonates or otherwise misrepresents your affiliation with any other person or entity, or is otherwise materially false, misleading, or inaccurate; (iv) promotes, solicits or comprises inappropriate, harassing, abusive, profane, hateful, defamatory, libelous, threatening, obscene, indecent, vulgar, pornographic or otherwise objectionable or unlawful content or activity; (v) is harmful to minors; (vi) contains any viruses, Trojan horses, worms, time bombs, or any other similar software, data, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, personal information, or property of another; or (vii) violates any law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, or false advertising);
c. BuildersCloud Access to Content.
You acknowledge that the Services are automated (e.g., Content is uploaded and submitted using software tools) and that BuildersCloud personnel may access any Content to perform the Services, including but not limited to the following: (a) during a Service interruption, as necessary to restore the applicable Content; (b) to troubleshoot any issue with the Service or to help improve the Service; or (c) as deemed necessary or advisable by BuildersCloud to ensure compliance with this Agreement or to conform to legal requirements or comply with legal process.
d. Sharing Content.
The Service provides features that allow you to share Content with others or to make it public. There are many things that users may do with that Content (including copying it, modifying it, re-sharing it). BuildersCloud has no responsibility for such activity. You should consider carefully what you choose to share or make public.
4. DISCLAIMER OF WARRANTIES.
a. You acknowledge that the Service and the Application rely on techniques that convert Content into image and proprietary formats in order to attempt to render images more quickly and efficiently than do other formats. While BuildersCloud strives to ensure that its conversion techniques do not alter any part of the Content, it does not guarantee that no alteration will ever occur or that what is displayed in the Application or on its Websites will at all times be a real-time exact rendering of the Content given the effect of short time delays associated with BuildersCloud’s conversion techniques. BuildersCloud is not responsible for the accuracy, completeness, appropriateness, or legality of the Content, files, user posts, or any other information you may be able to access using the Service. Ultimately it is your responsibility to check that your Content as displayed on the Websites or Applications is an accurate rendering of your Content as originally uploaded.
b. THE SERVICE AND THE APPLICATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, “WITH ALL FAULTS” AND WITHOUT WARRANTY OF ANY KIND. BUILDERSCLOUD SHALL NOT BE RESPONSIBLE FOR ANY HARM TO YOUR COMPUTER SYSTEM, LOSS OR CORRUPTION OF DATA OR CONTENT, OR OTHER HARM THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE WEBSITES OR APPLICATIONS.
c. TO THE FULL EXTENT PERMITTED BY LAW, BUILDERSCLOUD, ITS AFFILIATES, CONTRACTORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, LICENSORS, AND ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICE, THE APPLICATION, OR THE WEBSITES DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEM INTEGRATION OR COMPATIBILITY, WORKMANLIKE EFFORT, LACK OF NEGLIGENCE, QUIET ENJOYMENT, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, BUILDERSCLOUD DOES NOT WARRANT OR REPRESENT THAT THE SERVICE WILL BE CONTINUOUS, SECURE, RELIABLE, ACCESSIBLE, UNINTERRUPTED OR ERROR-FREE, OR THAT BUILDERSCLOUD’S SERVERS, WEBSITES OR APPLICATIONS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT BUILDERSCLOUD’S SECURITY PROCEDURES AND MECHANISMS WILL PREVENT THE LOSS OR ALTERATION OF OR IMPROPER ACCESS TO PERSONAL INFORMATION BY THIRD PARTIES.
d. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. This warranty gives you specific legal rights and you may also have other legal rights that vary from state to state.
5. LIMITATION OF LIABILITY.
a. BUILDERSCLOUD SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY DIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE THE SERVICE OR ACCESS CONTENT, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTIONS, OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE OR THE APPLICATION OR Websites AND BASED ON ANY THEORY OF LIABILITY INCLUDING STATUTE, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF BUILDERSCLOUD OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF AN REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
b. BUILDERSCLOUD’S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THREE TIMES THE AMOUNT YOU PAID FOR THE SERVICE, IF ANY. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SERVICE OR AN APPLICATION MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.
c. Your use of the Websites and the Application may entail third-party costs (such as phone and data connection charges or data plan costs). BuildersCloud disclaims any and all liability for such charges and costs.
d. The limitations on liability in this Section are intended to apply to the warranties and disclaimers above and all other aspects of this Agreement. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you and you may also have other legal rights that vary from state to state.
6. USE RESTRICTIONS
a. Prohibited Conduct.
In connection with your access or use of the Service, you agree to comply with the following use restrictions. You agree not to misuse the BuildersCloud Services. For example, you must not, and must not attempt to, use the Websites or Application to do the following things:
· (a) probe, scan, or test the vulnerability of any system or network;
· (b) breach or otherwise circumvent any security or authentication measures;
· (c) access, tamper with, or use non-public areas of the Websites or Applications, shared areas of the Websites or Applications you have not been invited to, or BuildersCloud (or our service providers’) computer systems;
· (d) interfere with or disrupt any user, host, or network, for example by sending a virus, overloading, flooding, spamming, or mailbombing any part of the Websites or Applications;
· (e) plant malware or otherwise use the Websites or Application to distribute malware;
· (f) access or search the Websites or Applications by any means other than our publicly supported interfaces (for example, “scraping”);
· (g) send unsolicited communications, promotions or advertisements, or spam;
· (h) send altered, deceptive or false source-identifying information, including “spoofing” or “phishing”;
· (i) publish anything that is fraudulent, misleading, or infringes another’s rights;
· (j) promote or advertise products or services other than your own without appropriate authorization;
· (k) impersonate or misrepresent your affiliation with any person or entity;
· (l) publish or share materials that are unlawfully pornographic or indecent, or that advocate bigotry, religious, racial or ethnic hatred; or
· (m) violate the law in any way, or to violate the privacy of others, or to defame others.
b. Content Monitoring.
BuildersCloud may review Content for compliance with community guidelines but you acknowledge that BuildersCloud has no obligation to monitor any information on the Websites or Applications. BuildersCloud does not generally monitor user activity occurring in connection with the Service and while BuildersCloud disclaims any responsibility to do so, it reserves the right to (i) screen, by mechanical means or otherwise, for objectionable information transmitted or shared by user on individualized portions of the Websites or Applications, (ii) monitor the Content and, if considered objectionable in BuildersCloud’s sole discretion, to remove Content and/or remove any portion of the Websites or Applications personalized by you, from the Websites or Applications at any time without notice. If BuildersCloud becomes aware of any possible violations by you of Sections 3(b) (Your Representations and Warranties Regarding Content), 6(a) (Prohibited Conduct), or any other provision of this Agreement, BuildersCloud reserves the right to investigate such violations, and BuildersCloud may, at its sole discretion, terminate your use of the Service or change, alter or remove Content, in whole or in part, without prior notice to you.
You agree to indemnify and hold BuildersCloud harmless from and against any and all liabilities, costs and expenses, including reasonable attorneys’ fees, related to or arising from Content or your use of the Service, including any use that violates this Agreement.
b. Collection and Storage of Your Personal Information.
By using the Service, you agree and acknowledge that personal information collected about you through the Websites or Applications or in any way in connection with the Service may be transferred across national boundaries for storage or process to any of the countries around the world. This includes the location or the universally unique identifier of any Device you use to access the Application and their phone number(s).
c. Communications from BuildersCloud.
BuildersCloud may send to you service-related emails regarding the functionality or delivery of the Service.
8. COPYRIGHT INFRINGEMENT
BuildersCloud respects the intellectual property rights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) (the “DMCA”), BuildersCloud will respond expeditiously to claims of copyright infringement committed using the Websites and/or the Application if such claims are reported to BuildersCloud’s Designated Copyright Agent identified in the sample notice below. BuildersCloud has applied and is pending confirmation of an Interim Designation Agent with the United States Copyright Office.
The Interim Designated Agent is assigned to receive all notification under the DMCA. The Interim Designated Agent can be contacted using the following sample notice.
DMCA Notice of Alleged Infringement (“Notice”)
· Identify the copyrighted work that you claim has been infringed, or if multiple copyrighted works are covered by this Notice, you may provide a representative list of the copyrighted works that you claim have been infringed.
· Identify the material or link you claim is infringing (or the subject of infringing activity) and to which access is to be disabled, including at a minimum, if applicable, the URL of the link shown on the Websites or the exact location where such material may be found.
· Provide your company affiliation (if applicable), mailing address, telephone number, and, if available, email address.
· Include both of the following statements in the body of the Notice:
“I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
“I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of, the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
· Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to BuildersCloud’s Designated Copyright Agent:
WeWork: 500 Yale Ave N Suite# 170, Seattle, WA 98109
All provisions of this Agreement, other than Section 2, will survive any termination or suspension of this Agreement.
10. GOVERNING LAW.
By accessing and using the Service, you and BuildersCloud agree that all matters relating to this Agreement and your access to, or use of, the Service shall be governed by and construed in accordance with the substantive laws in force in the State of Washington without regard for its conflicts of law principles. All claims arising out of or relating to the terms of this Agreement or the Service or Websites or Applications must be litigated exclusively in the federal or state courts of King County, Washington.
11. INTERNATIONAL USE.
The Application and Service, including the information on the Websites and the Applications, are designed for users in North America. We make no representations that the Service is applicable to, or appropriate for, or available to users in locations outside of North America. Accessing the Websites or the Applications from territories where the content is illegal is prohibited. If you choose to access the Websites or the Applications from a location outside of the United States, you do so at your own initiative, and are solely responsible for compliance with local laws and all liability therefore. You agree to indemnify BuildersCloud from any violation by you of this provision. The export and re-export of the Application software may be controlled by the United States Export Administration Regulations. The software may not be used in Cuba; Iran; North Korea; Sudan; or Syria or any country that is subject to an embargo by the United States. If you are a resident or national of, or a business located in, any of those countries, you may not download or use the Application or Websites. In addition, the Application software may not be distributed to persons on the Table of Denial Orders; the Entity List; or the List of Specially Designated Nationals.
12. CONNECTION TO THE INTERNET.
You are solely responsible for your familiarity and compliance with any laws that may prohibit you from participating in or using any part of the Service. If any provision of this Agreement is held to be invalid or unenforceable, then such provision shall be construed, as nearly as possible, to reflect the intentions of the parties, and all other provisions will remain in full force and effect. BuildersCloud’s failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by BuildersCloud in writing.