TERMS OF USE AGREEMENT

 

Welcome to BuildOUT California!  This page explains the terms by which you may use our online and other services and products (“Service”).  By accessing or using the Service, you signify that you have read, understood, and agree to be bound by this Terms of Use Agreement (“Agreement”) and to the collection and use of your information as set forth in the BuildOUT California (“BOC”) Privacy Policy, whether or not you are a registered associate of BuildOUT California. This Agreement applies to all visitors, users, and others who access or use the Service (“Users”).

 

PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION.

 

1. Use of the Service

 

A. Eligibility

 

You may use the Service after you select and provide payment for an approved Associate Level.  All submissions for inclusion in a particular Associate Level are subject to review.  You may be directed to another Associate Level, depending upon your circumstances. The Service is not available to any Users previously removed from the Service by us.

 

B. Service Rules

 

You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the BOC servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.

 

 

C.  License to Use the Service

 

Subject to the terms and conditions of this Agreement, we hereby grant you a non-exclusive, limited, non-transferable, freely revocable license to use the Service for your personal or company use only and as permitted by the features of the Service.  BOC reserves all rights not expressly granted herein in the Service and the BOC Content (as defined below). BOC may terminate this license at any time for any reason or no reason.

 

D. Accounts

 

Accounts that you are able to establish with the Service give you access to the services associated with the selected and approved Associate Level, as may be establish and changed from time to time and in BOC’s sole discretion.

 

You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify us immediately of any breach of security or unauthorized use of your account. BOC will not be liable for any losses caused by any unauthorized use of your account.

 

2. Service Availability and Our Right to Terminate

 

We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement. You are responsible for all the mobile data usage resulting from the use of Service. Consult your mobile operator concerning your plan, data rate charges and limits. You are solely responsible for your interactions with other Users.  BOC shall have no liability for your interactions with other Users, or for any User’s action or inaction.

 

3. User Content

 

Some areas of the Service allow Users to post content such as profile information, images, comments, questions, messages and other content or information (any such content a User submits, posts, displays, creates, or affirmatively chooses to make available on the Service is “User Content”). User Content does not include information collected from or about your phone or device. We claim no ownership rights over User Content created or submitted by you. The User Content you create remains yours; however, by sharing User Content through the Service, you agree to the User Content License Grant below, and to allow others to view, edit, and/or share your User Content in accordance with your settings and this Agreement. Company has the right (but not the obligation) in our sole discretion to remove any User Content that is shared via the Service.

 

You agree not to post or transmit User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; (viii) contains any information or content that you know is not correct and current; (ix) violates any school or other applicable policy, including those related to cheating or ethics; (x) interferes with other Users of the Service including, without limitation, disrupting the normal flow of dialogue in an interactive area of the Service and deleting or revising any content posted by another person or entity; (xi) except where expressly permitted, post or transmit charity requests, petitions for signatures, franchise arrangements, distributorship arrangements, sales representative agency arrangements or other business opportunities (including offers of employment or contracting arrangements), club memberships, chain letters or letters relating to pyramid schemes, any advertising or promotional materials or any other solicitation of other Users to use goods or services except in those areas (e.g., a classified bulletin board) that are designated for such purpose. You agree that any employment or other relationship you form or attempt to form with an employer, employee, or contractor whom you contact through areas of the Service that may be designated for that purpose is between you and that employer, employee, or contractor alone, and not with us. You may not copy or use personal identifying or business contact information about other Users without their permission. You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy. Company reserves the right, but is not obligated, to reject and/or remove any User Content that Company believes, in our sole discretion, violates these provisions.

 

For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.

 

In connection with your User Content, you affirm, represent and warrant the following:

 

A. You have the consent of each and every identifiable natural person in the User Content to use such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use.

 

B. Your User Content and Company’s use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights. Company takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts or sends over the Service. You shall be solely responsible for your User Content and the consequences of posting or publishing it, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Company shall not be liable for any damages you allege to incur as a result of User Content.

 

4. User Content License Grant

 

By posting any User Content on the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Company a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and for our commercial, marketing, advertising, and other purposes.

 

5.  Our Communications With You

 

A. Email Communications.

 

By providing BOC your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive promotional email messages, you may opt out by unsubscribing from such email communications from BOC. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.

 

6. Our Proprietary Rights

 

The Service and all materials, services, and information therein or transferred thereby, including, without limitation, information, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, content, reports, analyses and data that is otherwise generated, collected or transmitted through the Service (the “BOC Content”), and all Intellectual Property Rights related thereto, are the exclusive property of BOC and our licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any BOC Content. Use of the BOC Content for any purpose not expressly permitted by this Agreement is strictly prohibited.

 

You may choose to, or we may invite you to, submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place BOC under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, BOC does not waive any rights to use similar or related ideas previously known to BOC, or developed by our employees, Directors, or Founders, or obtained from sources other than you.

 

7. Additional Policies and Information About the Service and Service Features

 

This section contains additional policies and information about the Service and Service features.

 

A. Billing Policies.

 

If you elect to become an Associate of BOC, you agree to the pricing and payment terms and that we may update them from time to time. BOC may add new features for additional fees and charges, or amend fees and charges for existing services, at any time in our sole discretion. 

 

B. Pricing and Payment Terms

 

i. Associate fees are payable in advance.

 

All Associate fees are payable in advance. BOC is not responsible for any charges or expenses you incur resulting from charges billed by BOC in accordance with this Agreement (e.g., overdrawn accounts, exceeding credit card limit, etc.). By providing a credit card number or other payment method with advance authorization features (e.g., some PayPal accounts, or in-app payments such as from third parties like Apple or Google), you authorize BOC to charge the payment method for all charges due BOC until your account is paid in full. 

 

ii. Payment methods.

 

BOC accepts credit and debit cards issued through VISA, MasterCard, American Express, and Discover. In the event that BOC is unable to charge the card you have provided (e.g., expired credit card), BOC will send you a notice to update your card information. You will have a fourteen (14)-day grace period to update your billing information. If the account is not updated within the fourteen (14)-day grace period, BOC will terminate your Associate status.

 

iii. Pricing Changes

 

Prices for Associate Levels may change from time to time, in BOC’s sole discretion. Your continued use of the Associate Services after price changes become effective constitutes your agreement to pay the changed amount. If you do not agree to the new prices, please follow the instructions in the “Closing Your Account” section below. You (and not BOC) are responsible for any charges or fees payable to third parties in connection with the Service, such as ambulances and other emergency responders.

 

C. No Refunds.

 

You may cancel your Associate account at any time; however, there are no refunds.  Upon cancelling your Associate account, it will remain valid through the end of the payment year.

 

8. Closing Your Account

 

You may cancel your Associate account at any time. To cancel, please send an email to XXX, with the subject line “CANCEL ACCOUNT” and include your name and the email address you registered with.  In general, your Associate account will be canceled within five (5) business days of your cancelation request.

 

9. No Professional Advice

 

If the Service provides professional information (e.g., accounting or legal), such information is for informational purposes only and should not be construed as professional advice. No action should be taken based upon any information contained in the Service. You should seek independent professional advice from a person who is licensed and/or qualified in the applicable area.

 

10. Third-Party Links

 

The Service may contain links to third-party websites, advertisers, services, special offers, or other events or activities that are not owned or controlled by BOC.  BOC does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access a third party website from the Service, you do so at your own risk, and you understand that this Agreement and BOC’s Privacy Policy do not apply to your use of such sites. You expressly relieve BOC from any and all liability arising from your use of any third-party website, service, or content.

 

11. Indemnity

 

You agree to defend, indemnify and hold harmless BOC and our subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties herein; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) any other party’s access and use of the Service with your unique username, password or other appropriate security code.

 

12. No Warranty

 

THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PRIVACY, SECURITY, ACCURACY, TIMELINESS, QUALITY, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BOC OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, BOC, OUR SUBSIDIARIES, AFFILIATES, AND LICENSORS DO NOT WARRANT THAT: (I) THE SERVICE OR RESULTS THAT ARE OBTAINED FROM USE OF THE SERVICE (E.G., DATA, INFORMATION, LOCATION, CRASH DETECTION OR REPORTING, EMERGENCY ASSISTANCE, ETC.)WILL BE ACCURATE, RELIABLE, ERROR-FREE OR CORRECT; (II) THE SERVICE OR RESULTS THAT ARE OBTAINED FROM USE OF THE SERVICE WILL MEET YOUR REQUIREMENTS; (III) THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, TIMELY, UNINTERRUPTED OR SECURE; (IV) ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR (V) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.

 

Some states do not allow for the disclaimer of certain warranties, so the disclaimers above may not apply to you.

 

13. Limitation of Liability

 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BOC, OUR AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL BOC BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BOC ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, OMISSIONS, MISTAKES, OR INACCURACIES FROM THE SERVICE OR RESULTS THAT ARE OBTAINED FROM USE OF THE SERVICE (E.G., DATA, INFORMATION); (II) PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; (VII) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY; AND/OR (VIII) ANY ACTION OR INACTION OF THIRD PARTIES. IN NO EVENT SHALL BOC, OUR AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU OR ANY USER FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO BOC HEREUNDER IN THE SIX MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED DOLLARS (US $100.00), WHICHEVER IS GREATER.

 

THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF BOC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

 

SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

 

All legal actions arising with respect to the Service shall be barred unless written notice thereof is received by BOC within one year from the date of the event giving rise to such legal action.

 

The Service is controlled and operated from facilities in the United States. BOC makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.

 

 

14. Governing Law and Miscellaneous Provisions

 

A. Governing Law.

 

You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over BOC, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. You agree to submit to the personal jurisdiction of the federal and state courts located in San Francisco County, California for any actions for which we retain 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 our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights.

 

B. Entire Agreement/Severability.

 

This Agreement, together with any amendments and any additional agreements you may enter into with BOC in connection with the Service, shall constitute the entire agreement between you and BOC concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.

 

C. No Waiver.

 

No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and BOC’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.

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