Last Updated: July 22, 2022
These Terms of Service ("Terms") apply to your access to and use of the websites located at https://www.customhome.ai/ (the "Customhome AI Site") and https://bimquote.com/ (the "BIMQuote Site")(and any successor websites), mobile applications and other products and services (collectively, our"Services") provided by Builder Services Platform, LLC, d/b/a BIMQuote and, as applicable,its corporate affiliates, and their respective partners, agents, representatives, and employees (collectively, "BIMQuote" or "we").You may be using our Services in the capacity of an Owner, GC,Supplier, or Subcontractor (each as defined below) and there may be certain terms in these Terms that apply to you in such capacity only.Unless otherwise expressly provided in these Terms, "you" refers to Owners, GCs, Suppliers, and Subcontractors, without regard to the capacity in which any of the foregoing is using our Services.
PLEASE READ THESE TERMS CAREFULLY, INCLUDING THE MANDATORY ARBITRATION PROVISION IN SECTION 19, WHICH REQUIRES THAT DISPUTES BE RESOLVED BY FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS, NOT A CLASS-WIDE OR CONSOLIDATED BASIS. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, YOU MAY OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN SECTION 19.
BY ACCESSING OR USING OUR SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO THESE TERMS IN THEIR ENTIRETY, DO NOT USE OUR SERVICES.
1 Our Services
General. Our Services enablehome or dwelling owners, owner-builders,and general contractorsinterested in certain construction-related services (such ownersand owner-builders are referred to in these Terms as"Owners," and such general contractors as "GCs")to, among other things,procure goods from material suppliers ("Suppliers") and/or services from subcontractorsor other service providers ("Subcontractors"). The goods provided by Suppliers via our Services are referred to in these Terms as the "Supplier Products" and the services provided by Subcontractors via our Services are referred to in these Terms as the "Subcontractor Services."Our Services are a neutral marketplace that enables communication and transactions between, (i) on the one hand,Owners and/or GCsseeking to procure Supplier Products and/or Subcontractor Services and (ii) on the other hand, Suppliers seeking to sell Supplier Products and/or Subcontractors seeking to provide Subcontractor Services. Suppliers alone are responsible for their Supplier Products and Subcontractors alone are responsible for their Subcontractor Services. We have no control over and do not guarantee (A) the existence, quality, safety, suitability, or legality of any Supplier Products or Subcontractor Services, (B) the truth or accuracy of any Supplier Products or Subcontractor Services descriptions, ratings, reviews, or any User Content (as defined below), or (C) the performance or conduct of any Owner, GC, Supplier,Subcontractor, or third party. BIMQuote does not endorse any Owner, GC, Supplier, Subcontractor, Supplier Products, or Subcontractor Services. Any description of any Owner, GC, Supplier, Subcontractor, Supplier Products, or Subcontractor Services, or any User Content posted by an Owner, GC, Supplier,or Subcontractor,is not an endorsement, certification or guarantee by BIMQuote about any such Owner, GC, Supplier, Subcontractor, Supplier Products, or Subcontractor Services.
Supply or Services Agreements. When an Owner or GC procures Supplier Products or Subcontractor Services, that Owner or GC is entering into a contract directly with the Supplier (a "Supply Agreement") or the Subcontractor(a "Subcontractor Agreement"), not BIMQuote, and BIMQuote is not and does not become a party to, or other participant in, any Supply Agreement or Subcontractor Agreement or other contractual relationship between Owners and/or GCs, on the one hand, and Suppliers and/or Subcontractors on the other. BIMQuote is not acting as an agent in any capacity for you. You, and not BIMQuote, are solely responsible for (i) evaluating and determining the suitability of another party and its products and/or services, (ii) assessing whether to enter into a Supply Agreement or Subcontractor Agreement and for verifying any information about the other party thereto, and (iii) negotiating, agreeing to, and executing the terms and conditions of the Supply Agreement or Subcontractor Agreement and monitoring the performance thereunder. Without limiting the foregoing, and as further set forth in Section 17, BIMQuote assumes no liability or responsibility for damages associated with the Supplier Products or Subcontractor Services or resulting from any Supply Agreement or Subcontractor Agreement or any other transactions between Owners and/or GCs, on the one hand, and Suppliers and/or Subcontractors on the other. With respect to any Supply Agreement or Subcontractor Agreement, Owners and/or GCs, on the one hand, and Suppliers and/or Subcontractors on the other may include any terms that they deem appropriate, provided that those agreements do not conflict with, expand, or otherwise affectBIMQuote's rights and obligations under these Terms. As between you and BIMQuote, in the event a term or condition of a Supply Agreement or Subcontractor Agreement conflicts with a term or condition of these Terms, the term or condition of these Terms will control to the extent of the conflict.
Sample Templates. You may use BIMQuote's online templates for certain Supplier Products or Subcontractor Services made available within the BIMQuote Siteor any successor location ("Sample Templates"), in whole or in part.You are solely responsible for deciding whether to use any Sample Templatesand BIMQuote assumes no liability or responsibility for the consequences of using any Sample Templates. Sample Templates are provided only for convenience and as an exemplar, and may not be appropriate for all jurisdictions, particular Supplier Products or Subcontractor Services, or other transactions between the Owner and/or GC, on the one hand, and the Supplier and/or Subcontractor on the other. Sample Templates are not intended to and do not (i) constitute legal advice, (ii) create an attorney-client relationship, or (iii) constitute advertising or a solicitation of any type. You acknowledge and agree that you should seek legal advice from a licensed attorney for your particular needs. To the extent you use a Sample Template for the procurement and provision of Supplier Products and/or Subcontractor Services, you acknowledge that such Sample Template will be deemed a Supply Agreement (if with a Supplier) or Subcontractor Agreement (if with a Subcontractor), as such termsare used in these Terms.
You must be at least 18 years of age to use our Services. If you are under 18 years of age (or the age of legal majority where you live), you may use our Services only under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of such user in relation to our Services. If you use our Services on behalf of another person or entity, (a) all references to "you" throughout these Terms will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person's or entity's behalf, and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us.
3 Accounts and Account Security
You may need to register for an account to access some or all of our Services. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account. You may not permit others to use your account. You are responsible for all activities that occur in connection with your account.
4 Terms Specific to Owners and GCs.
The following terms in this Section 4 apply only to Owners and GCs.
Uploading Plans; Models.
- Plans. You may create a set of architectural plans and related documentation ("Plans") using the Customhome AI Site (a "Customhome AI Plan") or select a project on the BIMQuote Site and upload pre-existing Plans to the BIMQuote Site (a "Preexisting Plan"). After you create a Customhome AI Plan, we will transfer such Customhome AI Plan to the BIMQuote Site.
- Models.Regardless of whether you create a Customhome AI Plan or upload a Preexisting Plan, we will create a model based on such Plan (a "Model"). Upon your payment of the Modeling Fee (as defined below), we grant you a non-exclusive, non-transferable, non-sublicensable license to use that Model solely (A) for purposes of completing the construction project to which your Plan applies (your "Project")and (B) in the jurisdiction in which you (or anyone using the Model on your behalf as necessary to complete your Project) maintain all licenses, permits, and authorizations (including, without limitation, professional licenses) to perform the Project. As further described in Section 15, all Models are provided "as is" without any representations or warranties, whether express or implied.
- Requesting Estimates. Subject to meeting any requirements set by BIMQuote, the Supplier, and/or the Subcontractor,you can request anestimate from Suppliers for Supplier Products and/or Subcontractors for Subcontractor Services by following the process set forth on our Services (a "Request for Estimate" or "RFE"). Your RFE may include pricing, timelines, delivery dates, and other applicable information in your discretion or as set forth on our template RFEs. When you receive an estimatefrom a Supplier or Subcontractor in response to your RFE (an "Estimate"), you may accept or reject such Estimate.The Supplier or Subcontractor may place conditions, restrictions, or other limitations on your ability to accept or reject Estimates, such as response timeframes, deposits, or other terms. You will comply with all such terms. The Supplier or Subcontractor may, in its discretion, elect not to honor your approval of their Estimate if you fail to comply with such terms.
- Accepting Estimates. When you accept an Estimate, you are agreeing to purchase the Supplier Products and/or procure the Subcontractor Services that are described in such Estimate, subject to entry into the applicable Supply Agreement and/or Subcontractor Agreement. You may not withdraw that acceptance unless all other parties set forth in the Estimate agree to such withdrawal and subject to your satisfaction of any terms and/or conditions such parties impose on your withdrawal.
- Modeling Fee. We will charge you a fee for creation of yourModel (a "Modeling Fee"). You agree to pay the Modeling Fee when charged.
- Services Fees. If you procure Subcontractor Services, you agree to pay the applicable fees charged in the Subcontractor Agreement or via the BIMQuote Site in accordance with the methods and payment terms set forth therein (the "Services Fees"). Except as set forth in Section 4(d)(ii) below, we are not responsible for collecting, remitting, or otherwise handling payments between you and any Subcontractor. Failure to pay the Services Fees may result in the Subcontractor suspending or terminating the Subcontractor Services, and/or exercising any other rights or remedies available to such Subcontractor at law or in equity, and neither BIMQuote nor any other BIMQuote Parties (as defined below) will be responsible or liable therefor.
- Product Fees. If you order Supplier Products, you agree to pay the applicable fees charged via the BIMQuote Site for such Supplier Products (the "Product Fees") in accordance with the payment terms disclosed to you on the BIMQuote Site (which may, depending on the Supplier from which the Supplier Products are ordered, require payment of Product Fees before shipment of such Supplier Products). Failure to pay the Product Fees may result in the Supplier not delivering the Supplier Products, and/or exercising any other rights or remedies available to such Supplier at law or in equity, and neither BIMQuote nor any other BIMQuote Parties will be responsible or liable therefor. You acknowledge that BIMQuote may receive rebates or other price discounts from the applicable Supplier for Supplier Products when you purchase them. You further acknowledge that you are not entitled to any rebates or other price discounts for the applicable Supplier.
Collection of Amounts Payable.
- Modeling Fee and Product Fees.BIMQuote will collect the Modeling Fee after BIMQuote creates the Model and, subject to Section 4(d)(ii) below, will collect all Product Fees in accordance with the payment terms disclosed to you on the BIMQuote Site. Subject to Section 4(d)(ii) below, when you pay for these fees, you will be required to provide us with valid, up-to-date credit card, debit card, or other payment information and to maintain that payment information (or an acceptable alternative payment method) on file with your account so long as you use our Services. You authorize us to store your credit card or other payment method and us or our third-party payment processor (the "Payment Processor")to charge your credit card or other payment method for fees you incur on our Services as they become due and payable, and to charge any alternative payment method BIMQuote has on record for you in the event your primary payment method is expired, invalid, or otherwise not able to be charged. You are responsible for maintaining up-to-date payment information. If we or the Payment Processor cannot charge you for any fees when due because your payment information is no longer valid, or if we do not receive your payment when due, then you understand that BIMQuote will not be responsible for any failure to provide our Services and the Supplier will not be responsible for supplying the Supplier Products associated with those fees. The Modeling Fee and Product Fees are non-cancelable and non-refundable.
- Builders Capital Draws. You may have a loan or funded accountwith or serviced by Construction Loan Services II, LLC, d/b/a Builders Capital ("Builders Capital"), which is an affiliate of Builder Services Platform, LLC, d/b/a BIMQuote (such loan or funded account, a"Builders Capital Loan").Notwithstanding Sections 4(c)(ii) or 4(d)(i) above, if you order Supplier Products from certain Suppliers, or procure certain Subcontractor Services from certain Subcontractors, you may be permitted to use funds from your Builders Capital Loan to pay for such Supplier Productsor Subcontractor Services using a "direct pay" feature on our Services. If you use this feature on our Services, you irrevocably authorize and direct BIMQuote and Builders Capital to withdraw the funds from your Builders Capital Loan as necessary to pay the applicable Supplier for the applicable Supplier Products or the applicable Subcontractor for the applicable Subcontractor Services (the "Builders Capital Draws").Once authorized by you, all Builders Capital Draws are non-cancelable, non-revocable, and non-refundable. The terms and conditions for repayment of any Builders Capital Draws are set forth in, and subject to, the agreement between you and Builders Capital governing your Builders Capital Loan.
- Late Payments. If we are unable to collect any amounts you owe under these Terms, we may, without limiting our other rights or remedies, (i) temporarily or permanently close your account and/or revoke your access to our Services (with or without notice to you), (ii) engage in collection efforts to recover such amounts from you and/or (iii) charge you interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest permitted by applicable law, plus attorneys' fees and the costs of collection.
- Representations and Warranties. If you are a GC, then you represent and warrant that you maintain, and will continue to maintain as long as you use our Services, (i) all governmental approvals, licenses, permits and other authorizations necessary for you to operate as a general contractor in your state(s) of operation and (ii) insurance policies with reputable insurers in the coverages and amounts required by applicable law (and in no event less than the coverages and amounts necessary to secure your obligations and potential liabilities under these Terms). Additionally, and without limiting the foregoing, we may on a case-by-case basis require you to obtain certain levels of insurance, add certain parties as additional insureds on your insurance policies and/or require additional terms or conditions with respect to your insurance policies. If we so require any of the foregoing, you will comply with such requirements.
5 Supplier- and Subcontractor-Specific Terms
The following terms in this Section 5 apply only to Suppliers and Subcontractors.
- Listings. When listing or otherwise disclosing your Supplier Products or Subcontractor Services on our Services, you must (i) provide complete and accurate information about such Supplier Products or Subcontractor Services, (ii) disclose any restrictions and requirements that apply, and (iii) provide any other pertinent information required by BIMQuote. You are responsible for keeping information about your Supplier Products and Subcontractor Services up-to-date at all times. When you submit an Estimate in response to a Request for Estimate from an Owner or a GC, you agree to supply your Supplier Products or provide your Subcontractor Services as described to such Owner or GC (including, without limitation, with respect to the quality, timeliness, and other characteristics of the deliverables promised to the Owner or GC).
- Pricing. You are solely responsible for setting a price for your Supplier Products or Subcontractor Services and honoring the price established. Any terms and conditions included in your Supply Agreement or Subcontractor Agreement or otherwise made available by you to the Owner or GC must not conflict with these Terms.Except for taxes on BIMQuote'sincome and gross receipts or where BIMQuote is otherwise required to collect taxes, you are solely responsible for paying any applicable taxes that arise as a result of your use of our Services. Except as set forth in Section 5(c) below, we are not responsible for collecting, remitting, or otherwise handling payments between you and any Owner or GC.
- Collection of Amounts Payable. If the Product Fees are payable to BIMQuote via the BIMQuote Site (as opposed to being paid to you directly) or the Owner or GC authorizes a Builders Capital Draw, we will collectthe Product Fees from the Owneror GC, or the Builders Capital Draw will be withdrawn, after the Owner or GC has placed the order for Supplier Products or Subcontractor Services. We will initiate payment to your account after we receive the Product Fees or the Owner or GC authorizes the Builders Capital Draw. You understand that our obligation to pay you is subject to, and conditional upon, our successful receipt of the associated payment from the Owneror GC, or the successful withdrawal of the Builders Capital Draw, associated with the order. BIMQuote is not responsible or liable for remitting any payments from any Owner or GCthat are unable to be collected or withdrawn for any reason, including, without limitation, inaccurate or outdated Owner or GC payment information or insufficient funds in the Builders Capital Loan for the Builders Capital Draw, nor is BIMQuote responsible or liable for collecting any Product Fees paid directly to you by the Owner or GC. You irrevocably authorize and instruct BIMQuote or the Payment Processor to serve as a limited agent for the purpose of holding, receiving, and disbursing funds on your behalf and you agree to be bound by any applicable terms and conditions required by the Payment Processor. The authorizations set forth in this Section 5(c) will remain in effect until your account is closed or terminated.
Representations and Warranties.
- General. You represent and warrant that you maintain, and will continue to maintain as long as you use our Services, (A) all governmental approvals, licenses, permits and other authorizations necessary for you to, as applicable, (1) operate as a Supplier and supply the Supplier Products or (2)operate as a Subcontractor and perform the Subcontractor Services and (B) insurance policies with reputable insurers in the coverages and amounts required by applicable law (and in no event less than the coverages and amounts required to secure your obligations and potential liabilities under these Terms).Additionally, and without limiting the foregoing, we may on a case-by-case basis require you to obtain certain levels of insurance, add certain parties as additional insureds on your insurance policies and/or require additional terms or conditions with respect to your insurance policies. If we so require any of the foregoing, you will comply with such requirements.
- Suppliers. If you are a Supplier, you also represent and warrant that, upon delivery of your Supplier Products to the Owner or GC, all such Supplier Products will (A) be shipped and packed in compliance with, and otherwise comply with, the applicable order (including, without limitation, delivery timeframes) and all applicable laws, rules, and regulations, (B) not infringe any copyright, patent, trademark, trade secret or any other intellectual property right of any third party or otherwise result in any tort, breach of contract, injury, damage or harm of any kind to any person, entity, or property, (C) be new and unused, (D) be provided with good and marketable title, free and clear of any and all liens and other encumbrances, (E) be designed, developed and manufactured in a professional, workmanlike manner in compliance with all standards and rules that may be reasonably established by the Owner or GC, be free from defects in design, material, and workmanship, and function properly and reliably when used for their intended purposes, and (F) be free of any hazardous, toxic, or unsafe materials, chemicals, or substances.
- Subcontractors. If you are a Subcontractor, you also represent and warrant that you will perform the Subcontractor Services in a timely and good and workmanlike manner, consistent with the highest standards of performance applicable in your industry.
- Separate Agreements.We may have entered into one or more other written agreements with you with respect to your provision of goods or services via our Services, or other use of our Services (a "Separate Agreement"). To the extent we have entered into a Separate Agreement with you, and a term or condition of that Separate Agreement conflicts with a term or condition of these Terms, the term or condition of the Separate Agreement will controlto the extent of the conflictas long as such Separate Agreement has been expressly approved and authorized by BIMQuote.
6 Cancellations and Disputes
- Cancellations.You may not cancel orders for Supplier Products once placed. If you seek to cancel Subcontractor Services that are subject to a confirmed Estimate, such cancelations will be governed by the terms of the applicable Subcontractor Agreement; provided, that authorized Builders Capital Draws applicable to such Subcontractor Services are non-cancelable, non-revocable, and non-refundable.
- Disputes. You are solely responsible for your interactions with other parties via our Services, and BIMQuote is not a party to any disputes that may arise between you and another party via our Services, nor does BIMQuote have any obligation to mediate or facilitate any resolution. However, BIMQuote reserves the right to monitor and mediate disputes if it believes, in its sole discretion, that it is necessary or desirable to do so. If BIMQuote chooses to exercise this right, then you agree to cooperate with and assist BIMQuote in good faith, and to provide BIMQuote with such information and take such actions as may be reasonably requested by BIMQuote, in connection with any disputes or other complaints or claims made by a party relating to provision or receipt of the Supplier Products or Subcontractor Services. You will, upon BIMQuote'sreasonable request and at no cost to you, participate in mediation or a similar resolution process with another party, which process will be conducted by BIMQuoteor a third party selected by BIMQuote or its insurer, with respect to losses for which a party is requesting payment from BIMQuote. You are entitled to terminate your participation in the mediation or similar resolution process at any time. Your right to take legal action before a court of law remains unaffected.
7 User Content
- Definition. Our Services may allow you and other users to create, post, store and share content, including messages, text, photos, videos, software and other materials(collectively, "User Content").Except for the license you grant below, as between you and BIMQuote, you retain all rights in and to your User Content, excluding any portion of our Services included in your User Content.
- License. You grantBIMQuote a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fullypaid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you. When you post or otherwise share User Content on or through our Services, you understand that your User Content and any associated information (such as your username or profile photo) may be visible to others.
- Restrictions. You may not create, post, store or share any User Content that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that your User Content, and our use of such content as permitted by these Terms, will not violate any rights of or cause injury to any person or entity. Although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason with or without notice.
8 Prohibited Conduct and Content
Prohibited Conduct. You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, and you are solely responsible for your conduct while using our Services. You will not:
- Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
- Use or attempt to use another user’s account without authorization from that user andBIMQuote;
- Impersonate or post on behalf of any person or entity or otherwise misrepresent your affiliation with a person or entity;
- Sell, resell or commercially provide our Services;
- Copy, reproduce, distribute, publicly perform or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;
- Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based uponour Services;
- Use our Services other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
- Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
- Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Services;
- Develop or use any applications that interact with our Services without our prior written consent;
- Send, distribute or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;
- Bypass or ignore instructions contained in our robots.txt file; or
- Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
- Prohibited Content. You may also post or otherwise share only User Content that is nonconfidential and that you have all necessary rights to disclose. You may not create, post, store or share any User Content that:
- Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
- Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
- May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
- Impersonates, or misrepresents your affiliation with, any person or entity;
- Contains any unsolicited promotions, political campaigning, advertising or solicitations;
- Contains any private or personal information of a third party without such third party’s consent;
- Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
- In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Services, or may exposeBIMQuote or others to any harm or liability of any type.
- Enforcement. Enforcement of this Section8is solely atBIMQuote'sdiscretion, and failure to enforce this Section 8 in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 8does not create any private right of action on the part of any third party or any reasonable expectation that our Services will not contain any content that is prohibited by such rules.
- Parental Control Protections. Please note that parental control protections (such as computer hardware, software or filtering services) may be commercially available to assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections should be available at: https://en.wikipedia.org/wiki/Comparison_of_content-control_software_and_providers (last checked on July22, 2022).
9 Ownership; Limited License
Our Services, includingall Models and the other text, graphics, images, photographs, videos, illustrations and other content contained in our Services, are owned byBIMQuoteor our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to our Services are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services (excludingall Models, which are only licensed to you in Section 4(a)(ii) once you have paid the Modeling Fee(s)). Any use of our Services (including all Models) other than as specifically authorized in these Terms, without our prior written permission, is strictly prohibited, will terminate the licenses granted in these Terms and violate our intellectual property rights.
BIMQuote, Customhome.ai, Customhome AI andour logos, our product or service names, our slogans and the look and feel of our Services are trademarks of BIMQuote and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on our Services are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.
You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about BIMQuote or our Services(collectively, "Feedback"). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, includingto develop, copy, publish, or improve the Feedback in BIMQuote's sole discretion. You understand that BIMQuote may treat Feedback as nonconfidential.
12 Repeat Infringer Policy;Copyright Complaints
In accordance with the Digital Millennium Copyright Act and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may follow the process set forth at https://builders-capital.com/dmca/.
Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable toBIMQuotefor certain costs and damages.
13 Third-Party Content
We may provide information about or links to third-party products or services, or we may allow third parties to make their content or information available on or through our Services (collectively, "Third-Party Content"). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. BIMQuote does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content,and your access to and use of such Third-Party Content is at your own risk.
- Obligation. To the fullest extent permitted by applicable law, you will indemnify, hold harmless and, at BIMQuote's option, defend BIMQuote, Builders Capital,and our respective officers, directors, agents, partners and employees (individually and collectively, the "BIMQuoteParties") from and against any losses, liabilities, claims, demands, damages, expenses or costs ("Claims")arising out of or related to (a) your access to or use of our Services; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); (e) your products or services provided in connection with our Services (including, without limitation and as applied to Suppliers, the Supplier Products and as applied to Subcontractors, the Subcontractor Services); or (f) your conduct in connection with our Services.Without limiting the foregoing, if you are a Supplier, you assume sole and exclusive legal responsibility for the Supplier Products and if you are a Subcontractor, you assume sole and exclusive legal responsibility for the Subcontractor Services.
- Third-Party Claims. BIMQuote may retainsole control of the defense and settlement, at BIMQuote's option, of any third-party Claims, in which case you will cooperate with BIMQuote in defending such third-party Claim. If BIMQuote permits you to defend a third-party Claim, BIMQuote has the right to approve the counsel you select to defend such third-party Claim. Regardless of whether BIMQuote permits you to defend such third-party Claim, you will pay all fees, costs and expenses associated with defending such third-party Claim(includingattorneys' fees).
YOUR USE OF OUR SERVICES IS AT YOUR SOLE RISK. EXCEPT AS OTHERWISE PROVIDED IN A WRITING BY US, OUR SERVICES, ANY MODELS, AND ANY OTHER CONTENT ON OUR SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, BIMQUOTE DOES NOT REPRESENT OR WARRANT THAT OUR SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF OUR SERVICES.
BIMQuote makes no warranties or representations about the accuracy or completeness of the content of the Services and of the content of any sites linked to the Services; BIMQuote assumes no liability or responsibility for any (i) errors, mistakes, or inaccuracies of such content, (ii) any unauthorized access to or use of our servers and/or any and all information stored therein, (iii) any interruption or cessation of transmission to or from the Services, (iv) any bugs, viruses or any other similar software which may be transmitted to or through the Services by any third party, and/or (v) any errors or omissions in any content or for any loss or damage of any kind incurred as a result of the use of any content posted, emailed, transmitted or otherwise made available via the Service.
WITHOUT LIMITING THE FOREGOING, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT (A) BIMQUOTE IS NOT, AND DOES NOT HOLD ITSELF OUT TO BE, AN ARCHITECT, CONTRACTOR, ENGINEER, OR BUILDERNOR IS BIMQUOTE LICENSED AS SUCH, (B) BIMQUOTE IS NOT PRACTICING ARCHITECTURE, CONTRACTING OR ENGINEERING SERVICES, OR BUILDING SERVICES WHEN PROVIDING OUR SERVICES, AND (C) BIMQUOTE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO BIMQUOTE'S OR OUR SERVICES' COMPLIANCE WITH APPLICABLE LAWS, RULES, OR REGULATIONS (INCLUDING, WITHOUT LIMITATION, THOSE APPLICABLE TO ARCHITECTS, CONTRACTORS, ENGINEERS, OR BUILDERS).
16 Limitation of Liability
- Waiver of Consequential Damages. To the fullest extent permitted by applicable law,BIMQuoteand the other BIMQuoteParties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive, or special damages or lost profits, even ifBIMQuote or the other BIMQuote Parties have been advised of the possibility of such damages.
- Liability Cap. The total liability of BIMQuote and the other BIMQuote Parties for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the greater of $100 or the amount paidby you to use our Services.
- Applicable Law. The limitations set forth in this Section 16will not limit or exclude liability for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU RELEASEBIMQUOTE, BUILDERS CAPITAL AND THE OTHER BIMQUOTEPARTIES FROM RESPONSIBILITY, LIABILITY, CLAIMS, DEMANDS AND/OR DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN (INCLUDING, WITHOUT LIMITATION, CLAIMS OF NEGLIGENCE), ARISING OUT OF OR RELATED TO YOUR USE OF OUR SERVICES, INCLUDING, WITHOUT LIMITATION, ARISING OUT OF ANY MODELS, SUPPLIER PRODUCTS, SUPPLY AGREEMENTS, SUBCONTRACTOR SERVICES, SUBCONTRACTOR AGREEMENTS, BUILDERS CAPITAL DRAWS, DISPUTES BETWEEN USERS, AND THE ACTS AND OMISSIONS OF THIRD PARTIES (INCLUDING, WITHOUT LIMITATION, OWNERS, GCS, SUPPLIERS AND/OR SUBCONTRACTORS, AS APPLICABLE).
IF YOU ARE A CONSUMER WHO RESIDES IN CALIFORNIA, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE § 1542, WHICH PROVIDES: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY."
18 Transfer and Processing Data
In order for us to provide our Services, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.
19 Dispute Resolution; Binding Arbitration
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with BIMQuote and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration provision. In addition, arbitration precludes you from suing in court or having a jury trial.
- No Representative Actions.You and BIMQuote agree that any dispute arising out of or related to these Terms or our Services is personal to you and BIMQuote and that any disputewill be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.
- Arbitration of Disputes.Except for small claims disputes in which you or BIMQuote seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or BIMQuote seeks injunctive or other equitable relief for the alleged infringement or misappropriation of intellectual property rights, you and BIMQuotewaive your rights to a jury trial and to have any other dispute arising out of or related to these Terms or our Services, including claims related to privacy and data security(collectively, "Disputes"), resolved in court. Instead, for any Dispute that you have against BIMQuoteyou agree to first contact BIMQuote and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) toBIMQuoteby email at firstname.lastname@example.org by certified mail addressed to BIMQuote, Attn: Legal, 1019 39th Ave SE, Suite 220,Puyallup, WA 98374 . The Notice must (i) include your name, residence address, email address, and telephone number; (ii) describe the nature and basis of the Dispute; and (iii) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and BIMQuote cannot reach an agreement to resolve the Dispute within thirty (30) days after such Notice is received, then either party may submit the Dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All Disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in Pierce County, Washington unless you are a consumer, in which case you may elect to hold the arbitration in your county of residence.For purposes of this Section 19, a "consumer" means a person using our Services for personal, family or household purposes. You and BIMQuote agree that Disputes will be held in accordance with the JAMS Streamlined Arbitration Rules and Procedures ("JAMS Rules"). The most recent version of the JAMS Rulesare available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
- Governance and Arbitrator Authority. You and BIMQuote agree that these Terms affect interstate commerce and that the enforceability of this Section 19 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the "FAA"), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
- Discovery and Confidentiality. The arbitration will allow for the discovery or exchange of non-privileged information relevant to the Dispute. The arbitrator, BIMQuote, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, includinginformation gathered, prepared and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
- Fees. You and BIMQuote agree that for any arbitration you initiate, you will pay the filing fee(up to a maximum of $250 if you are a consumer), and BIMQuotewill pay the remaining JAMS fees and costs. For any arbitration initiated by BIMQuote, BIMQuote will pay all JAMS fees and costs. You and BIMQuote agree that the state or federal courts of the State of Washington and the United States having jurisdiction over Pierce County, Washington have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
- Time Limitations on Filing Disputes.Any Dispute must be filed within one year after the relevant claim arose; otherwise, the Dispute is permanently barred, which means that you and BIMQuotewill not have the right to assert the claim.
- Opt Out.You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 19 by emailing email@example.com.In order to be effective, the opt-out notice must include your full name, address and phone number, and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 20.
- Severability. If any portion of this Section 19 is found to be unenforceable or unlawful for any reason, (i) the unenforceable or unlawful provision shall be severed from these Terms; (ii) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 19 or the parties' ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 19; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 19 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 19 will be enforceable.
20 Governing Law and Venue
Any dispute arising from these Terms and your use of our Services will be governed by and construed and enforced in accordance with the laws of the State of Washington, except to the extent preempted by U.S. federal law or if the law of another State is required by law to govern these Terms or the use of our Services, without regard to conflict of law rules or principles (whether of the State of Washington or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Unless otherwise required by law, any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of the State of Washington and the United States, respectively, having jurisdiction over Pierce County, Washington.
21 Modifying and Terminating our Services
We reserve the right to modify our Services or to suspend or stop providing all or portions of our Services at any time. You also have the right to stop using our Services at any time. We are not responsible for any loss or harm related to your inability to access or use our Services.
We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Services or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services.
If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
24 Additional Terms Applicable to Mobile Devices
The following terms apply if you install, access or use our Services on any device that contains the iOS mobile operating system (the "iOS App") developed by Apple Inc. ("Apple").
- Acknowledgement. You acknowledge that these Terms are concluded solely between us, and not with Apple, and BIMQuote, not Apple, is solely responsible for the iOS App and the content thereof. You further acknowledge that the usage rules for the iOS App are subject to any additional restrictions set forth in the Usage Rules for the Apple iOS App Store Terms of Service as of the date you download the App, and in the event of any conflict, the Usage Rules in the App Store will govern if they are more restrictive. You acknowledge and agree that you have had the opportunity to review the Usage Rules.
- Scope of License. The license granted to you is limited to a non-transferable license to use the iOS App on any iPhone, iPod touch or iPad that you own or control as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.
- Maintenance and Support. You and BIMQuoteacknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iOS App.
- Warranty. You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the iOS App. In the event of any failure of the iOS App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the iOS App by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iOS App. The parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of BIMQuote. However, you understand and agree that in accordance with these Terms, BIMQuote has disclaimed all warranties of any kind with respect to the iOS App, and therefore, there are no warranties applicable to the iOS App.
- Product Claims. You and BIMQuote acknowledge that as between Apple and BIMQuote, BIMQuote, not Apple, is responsible for addressing any claims relating to the iOS App or your possession and/or use of the iOS App, including, but not limited to (a) product liability claims, (b) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation.
- Intellectual Property Rights. The parties acknowledge that, in the event of any third-party claim that the iOS App or your possession and use of the iOS App infringe that third party's intellectual property rights, BIMQuote, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under these Terms.
- Legal Compliance. You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
Developer Name and Address. Any questions, complaints or claims with respect to the iOS App should be directed to:
Builder Services Platform LLC 1019 39th Ave SE, Suite 220,Puyallup, WA 98374
- Third-Party Terms of Agreement. You agree to comply with any applicable third-party terms when using our Services.
- Third-Party Beneficiary. The parties acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof).
The following terms apply if you install, access or use our Services on any device that contains the Android mobile operating system (the "Android App") developed by Google, Inc. ("Google"):
- You acknowledge that these Terms are between you and us only, and not with Google.
- Your use of the Android App must comply with Google's then-current Android Market Terms of Service.
- Google is only a provider of the Android Market where you obtained the Android App. We, and not Google, are solely responsible for the Android App and our Services and the User Content available thereon. Google has no obligation or liability to you with respect to theAndroid App or these Terms.
- You acknowledge and agree that Google is a third-party beneficiary to these Terms as they relate to the Android App.
The failure of BIMQuote to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. These Terms (and any Separate Agreement(s) between you and BIMQuote) reflect the entire agreement between the parties relating to the subject matter hereof and supersede all prior agreements, representations, statements and understandings of the parties. The section titles in these Terms are for convenience only and have no legal or contractual effect. Use of the word "including" will be interpreted to mean "including without limitation." Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. You agree that communications and transactions between us may be conducted electronically.These Terms may not be transferred, assigned or delegated by you, by operation of law or otherwise, without our prior written consent, and any attempted transfer, assignment or delegation without such consent will be void and without effect. We may freely transfer, assign or delegate these Terms or our Services, in whole or in part, without your prior written consent.