YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING ON THE “I AGREE” OR “I ACCEPT” BUTTON, REGISTERING FOR AN ACCOUNT, DOWNLOADING OF THE APPLICATION OR ANY APPLICATION UPGRADES, USING THE APPLICATION ON YOUR MOBILE DEVICE, OR ACCESSING OR USING THE SERVICE, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE OR APPLICATION. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICE. If you accept or agree to these Terms of Service on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms of Service and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
We may make changes to these Terms of Service from time to time, and we will give you not less than thirty (30) days advance notice of any such changes and an opportunity to opt-out. If you continue to use the Service following such thirty (30) days notice, you will have agreed to such changes and will be bound by them. If you opt-out of such changes, our legal agreement will continue to be bound by the last version of this Agreement that you accepted, subject to our mutual rights to discontinue our contractual relationship.
ARBITRATION NOTICE. EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND BUILDOPS WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
- BuildOps Account
In order to use the Services, you must register for and maintain an account with BuildOps. When registering, you must provide accurate and complete information and promptly update this information. If you provide any information that is inaccurate or incomplete, or we have reason to believe that the information is inaccurate or incomplete, we may suspend or terminate your account and your use of the Service. Only authorized users may use your account to use the Service and conduct other activities with us. You are responsible for all activities that occur through your account. To protect your account from unauthorized use, keep your user identification and password secure and those of your authorized users. Please notify us immediately of any unauthorized use of your account or any other breach of security. If there is unauthorized use by anyone who obtained access to the Service directly or indirectly through you, you will take all steps reasonably necessary to terminate the unauthorized use. You will cooperate and assist with any actions taken by BuildOps to prevent or terminate unauthorized use of the Service.
Subject to the terms and conditions of these Terms of Service, BuildOps grants you a limited, worldwide, non-exclusive, non-transferable, non-sublicensable right during the term of this Agreement to access and use the Service solely in connection with your internal business purposes.
You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than authorized users in furtherance of your internal business purposes, (b) modify, adapt, hack, or otherwise attempt to gain unauthorized access to the Service or related systems or networks; (c) use the Service in any unlawful manner, (d) use the Service to send unsolicited or unauthorized junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (e) use the Service to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (f) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (g) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Service; (h) use the Service to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (i) use the Service to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); (j) circumvent or disable any security or other technological features or measures of any portion of the Service, (k) remove, alter, or obscure any proprietary notices (including copyright notices) on any portion of the Service, or (l) try to use, or use the Service in violation of these Terms.
If you are current with payment of Service fees, BuildOps will provide you with its standard technical support services relating to the Service.
- Fees and Payment
By establishing a BuildOps Account, you agree to the pricing, payment and billing policies set forth (a) herein, (b) on the Site or Application, and/or (c) if applicable, in a separately executed or accepted purchase order. The payment terms of the Service subscription and/or service selections made by you are set forth on the Site and in your account details. You agree to pay the fees for the Service subscription and/or service selections made by you at the beginning of each subscription term or upon the renewal of such subscription. If you elect to upgrade your Service subscription during the subscription term, any incremental fees associated with such upgrade will be prorated, charged to your account and due and payable upon implementation of such upgrade. You authorize BuildOps (either directly or through its third-party payment processor) to charge the credit card identified by you (which you represent and warrant that you are authorized to use) or to process an ACH payment from the account(s) identified by you for all applicable fees for your subscription. All fees and applicable taxes, if any, are payable in United States dollars. You are solely responsible for the payment of, and shall pay when due, all applicable sales and use taxes and similar fees now in force, enacted or imposed in the future on the delivery of the Service and/or any related transactions. If BuildOps does not receive payment from your credit card provider or by means of our ACH transfer or otherwise as agreed, you agree to pay all amounts due upon demand, in US dollars, and BuildOps may suspend your access to the Service until such payment is received. All sales are final and BuildOps will not issue refunds except as expressly provided in these Terms of Service. You will promptly reimburse BuildOps for any costs incurred in connection with collection of past-due amounts, including attorneys’ fees, and BuildOps may, as a result of late payment, among other remedies available to it, discontinue its provision of the Service to you in accordance with these Terms of Service.
- Term and Termination
The term of this Agreement commences upon your registration for a Service subscription and remains in effect for the term of your subscription. Subscriptions are month-to-month unless otherwise agreed. The term of your subscription, including the obligation to pay the applicable Service subscription fees, will automatically renew for additional successive terms of the same duration unless terminated as specified in this Section. You may terminate this Agreement at any time, without cause, by providing BuildOps with a fourteen (14) day prior written notice of such termination. For the purposes of providing notice of non-renewal as described in this paragraph, notice via email to BuildOps at firstname.lastname@example.org will be deemed sufficient. Upon termination, your access to the Service and any information stored by the Service will also terminate. BuildOps may terminate this Agreement at any time upon 30 days’ prior written notice for its convenience and will refund to you a pro-rata portion of any unused, prepaid fees.
We may immediately, without notice, suspend or terminate your access to the Service and terminate this Agreement for any of the following reasons: (a) you breach of any provision of these Terms of Service, including the restrictions set forth in Section 3 above, (b) we receive notice or we otherwise determine, in our sole discretion, that you may be using the Service for an illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the rights of any third party or (c) your failure to pay fees due to BuildOps.
If this Agreement is terminated for any reason: (i) you will pay to BuildOps any fees or other amounts that have accrued prior to the effective date of the termination; (ii) any and all liabilities accrued prior to the effective date of the termination will survive; and (iii) the following sections will survive: Sections 5, 6, 8 through 14, and 18 through 22. Following termination and upon your request and subject to any specific restrictions applicable to you or your data, BuildOps will make reasonable efforts to export and provide to you in electronic format the information you have uploaded to the Service (service fees may apply), but BuildOps is not obligated to retain that information following any termination and makes no representation to the integrity, completeness or timeliness of any data so exported.
- Access to the Service; Modifications to the Service
A high-speed Internet connection is required for proper transmission of the Service. You are responsible for procuring and maintaining the network connections that connect Your network to the Service, including, but not limited to, “browser” software that supports protocols used by BuildOps, including Secure Socket Layer (SSL) protocol or other protocols accepted by BuildOps, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You, users or end-users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including your data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by BuildOps. We assume no responsibility for the reliability or performance of any connections as described in this section.
We reserve the right to modify or discontinue, temporarily or permanently, all or a part of the Service without notice. We will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service, except that if we permanently discontinue the Service we will provide you, as your sole and exclusive remedy, and our sole and exclusive liability, a pro-rated refund representing the unused (as of the date of termination) portion of any subscription fees that you have paid in advance.
Except for the rights to access the Service expressly granted to you pursuant to these Terms of Service, BuildOps shall own and retain all right, title, and interest in and to the Service, including all related intellectual property rights. The Service is protected by applicable intellectual property laws, including United States copyright law and international treaties. You agree that any information regarding the design, “look and feel”, specifications, components, functionality or operation and payment terms and pricing (if applicable) of the Service is considered the confidential and proprietary information of BuildOps.
If you provide feedback to us regarding the Site, Application or any component of the Service (“Feedback”), you authorize us to use that Feedback without restriction and without payment to you. Accordingly, you hereby grant to us perpetual and irrevocable license to use the Feedback in any manner and for any purpose.
Subject to BuildOps’ rights under Sections 10, 16, and 17, BuildOps will not disclose to any third party, without your consent, the information or material you upload to the Service. BuildOps may, however, disclose that information or material if required by law or if BuildOps reasonably determines that disclosure is necessary to prevent harm to BuildOps or any third party. Your consent to disclosure shall be deemed given in the event that you access BuildOps or your BuildOps data through a third party application, solely with respect to disclosure in connection with your use of such third party application. If BuildOps is required by law to disclose any of that information or material, BuildOps will make reasonable efforts to provide you prompt written notice of that requirement prior to disclosure. Further, if you register for the Service through a referral or other promotional partner or through an industry or trade group with whom we have a commercial relationship, we may disclose information about your account to that referral partner or industry group in connection with that commercial relationship. For the avoidance of doubt, however, BuildOps will not directly contact your customers or make personally identifying or contact data regarding your customers available to any third party without your consent. Such consent will be deemed given, however, in the event that you access the Service or your BuildOps data through a thirdparty application, solely with respect to disclosure in connection with your use of such third party application.
- Warranties; Disclaimer
BuildOps warrants that the Service will, during the term of your subscription, materially conform to any description of the Service published by BuildOps on the Site and/or the Application. As BuildOps’ sole and exclusive liability for breach of this limited warranty, and your sole and exclusive remedy, BuildOps will make reasonable efforts to correct the non-conformity.
You represents and warrant that: (a) you will not upload any information to the Service unless you have all permissions or licenses necessary to do so and to authorize BuildOps’ use of that information in accordance with this Agreement; and (b) your use of the Service will not subject BuildOps to any liability or cause BuildOps to violate any law, rule, or regulation or guideline.
SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU. EXCEPT AS EXPRESSLY SET FORTH IN THE IMMEDIATELY PRECEDING PARAGRAPH, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND BuildOps EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WE DO NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE SERVICE, AND YOU RELY ON THE SERVICE AT YOUR OWN RISK. ANY MATERIAL ACCESSED, DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR HARDWARE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY MATERIAL THROUGH THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BuildOps OR THROUGH OR FROM THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME STATES MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
- Limitation of Liability
BuildOps WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF BuildOps HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), RESULTING FROM YOUR USE OF THE SERVICE. UNDER NO CIRCUMSTANCES WILL BuildOps’ TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY YOU TO BUILDOPS FOR THE SERVICE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY BuildOps TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS SET FORTH IN THIS AGREEMENT WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
You agree to defend, indemnify, and hold BuildOps, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Service, or your violation of these Terms of Service, including without limitation any breach of any representations or warranties herein, any infringement by you of BuildOps’ intellectual property rights, and any claim by a third party that the information that you upload to the Service infringes such third party’s intellectual property rights.
- Force Majeure
BuildOps will not be liable to you for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to circumstances beyond BuildOps’ reasonable control.
You may not assign this Agreement or any right, duty, or obligation under this Agreement, without BuildOps’ prior written consent. If consent is given, this Agreement will bind your successors and assigns. Any attempt by you to transfer any right, duty, or obligation under this Agreement except as expressly provided in this Agreement is void. BuildOps may assign this Agreement or any right, duty, or obligation under this Agreement, at any time without your consent.
BuildOps may utilize one or more subcontractors or other third parties to perform its duties under this Agreement so long as BuildOps remains responsible for all of its obligations under this Agreement.
Except as otherwise expressly set forth in this Agreement, any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth below for BuildOps, and at the address set forth in your account for you and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
2118 Wilshire BLVD, Suite 975
Santa Monica, CA 90404]
- Dispute Resolution
(a) Generally. In the interest of resolving disputes between you and BuildOps in the most expedient and cost‑effective manner, and except as described in Section 19(b), you and BuildOps agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms of Service, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms of Service. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS OF SERVICE, YOU AND BuildOps ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
(b) Exceptions. Despite the provisions of Section 19(a) above, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
(c) Arbitrator. Any arbitration between you and BuildOps will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting BuildOps. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
(d) Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). BuildOps’ address for Notice is: BuildOps, Inc., 2118 Wilshire BLVD, Suite 975, Santa Monica, CA 90404. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or BuildOps may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or BuildOps must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, BuildOps will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by BuildOps in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
(e) Fees. If you commence arbitration in accordance with these Terms, BuildOps will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse BuildOps for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
(f) No Class Actions. YOU AND BuildOps AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and BuildOps agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
(g) Modifications to this Arbitration Provision. If BuildOps makes any future change to this arbitration provision, other than a change to BuildOps’ address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to BuildOps address for Notice of Arbitration, in which case this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
(h) Enforceability. If Section 19(f) is found to be unenforceable or if the entirety of this Section 19 is found to be unenforceable, then the entirety of this Section 19 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 19(e) will govern any action arising out of or related to these Terms.
The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
If any part of this Agreement is found by a court of competent jurisdiction to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Service under this Agreement is found to be illegal, unenforceable, or invalid, your right to use the Service will immediately terminate.
Terms Of Service Entire Agreement
This Agreement is the final and complete expression of the agreement between these parties regarding your use of the Service. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. No employee, agent, or other representative of BuildOps has any authority to bind BuildOps with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. BuildOps will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by you in any receipt, acceptance, confirmation, correspondence, or otherwise, unless BuildOps specifically agrees to such provision in writing and signed by an authorized agent of BuildOps.