These Terms and Conditions (this “Agreement”) are entered into by and between Ariabuild, Inc., a California corporation (“Ariabuild” or “we”) and you (“you” or “your”). You and Ariabuild may also be referred to individually as a “Party” and, collectively, as the “Parties.”
IT IS ESSENTIAL THAT YOU READ THESE TERMS OF SERVICE
AS THEY DESCRIBE AND, IN SOME CASES, LIMIT YOUR RIGHTS.
YOUR USE OF THIS SITE AND ENGAGEMENT OF ARIABUILD TO PROVIDE SERVICES INDICATES YOUR ACCEPTANCE OF THIS AGREEMENT.
Ariabuild owns and operates the website “Ariabuild.com” and such other related online websites and applications as Ariabuild may create and with which it may partner (collectively, the “Site”).
The Site describes the construction capabilities and experience of Ariabuild as well as the construction services Ariabuild can provide to its clients (the “Ariabuild Services”). The Site also offers to provide free quotes to prospective clients. Each person who uses this Site shall be referred to as a ”User.”
Ariabuild Services may include takeoff, cost estimates and/or CPM schedules based on information provided by each client and other third-parties. Ariabuild Services are subject to and conditioned on these terms and conditions as well as any additional terms and conditions specified in the respective quotation or agreement, if any.
1. Agreement to be Bound
You agree to be bound by this Agreement by your use of the Site and engagement of Ariabuild to provide Ariabuild Services. If you do not agree with or do not wish to be bound by any provision hereof, cease using this Site immediately.
This Agreement pertains to the Site and Ariabuild Services. Any agreement for Ariabuild Services may include additional terms and conditions. If there are any conflicts as between this Agreement and any terms and conditions contained in or associated with any quotations or agreement for Ariabuild Services, the latter shall control. Nothing herein shall obligate you to engage us or us to provide you the Ariabuild Services as a result of your requesting through the Site and our providing a free quote.
In addition to the definitions provided throughout the Agreement, the following terms have the following meanings when used herein:
“Personal Information” means your name, email, telephone and contents of any message, question or request you send to us through the Site.
“User Resources” means any articles, videos, publications, User Resources, websites, apps, digital or downloadable brochures relating to the Ariabuild Services, websites, manuals, videos, documentation, emails and other supporting materials related to the Site that Ariabuild may, in its sole discretion, provide to you or that you can access under this Agreement. User Resources are considered part of the Site.
3. Services and Fees
3.1 Site. The Site is available for your unlimited use without cost or registration.
3.2 Ariabuild Services.
(a) Ariabuild takeoff, cost estimates, CPM schedules and project management services are compiled based on information provided by you, other parties associated with you (such as architects, engineers and contractors) and unrelated third-parties and sources (such as publicly available information). If and to the extent Ariabuild requires additional information or clarification from you or the parties working for or at your direction, Ariabuild shall not be responsible for any delays in completing any stage or the project which delays are caused by the failure to receive prompt replies to Ariabuild’s request(s) for additional information and/or clarification.
(b) Upon completion of an engagement and delivery of the results (“Work Product”) to you, you will have One (1) week (the “Review Week”) to review and accept the Work Product as satisfaction of the job for which we were engaged. If, during the Review Week, you have any questions or believe there are any inaccuracies in the Work Product (collectively, “Issues”), you can bring those Issues to our attention and we will address them or, if there is an inaccuracy, correct it.
(c) You can accept the Work Product as being completed at any time during the Review Week. If you neither accept the Work Product nor communicate any questions or inaccuracies to us during the Review Week, you will be deemed to have accepted the Work Product as being complete.
(d) If you communicate any questions or inaccuracies in the Work Product during the Review Week, we will use our best efforts to respond to such questions and resolve any perceived inaccuracy and, upon receiving our response, you will have an additional One (1) week during which we will address any questions and during which week you can accept the Work Product as being complete; but, in such case, the Work Product will be deemed to have been accepted and completed not later than One (1) week after the delivery of a response to your questions and/or report of a perceived inaccuracy.
3.3 Fees. Any contract amount less than Ten Thousand Dollars ($10,000) shall be paid only by direct deposit (checks will not be accepted). Any delay in receipt of the initial or subsequent progress payments will delay work progress and, possibly, completion. Payments not made on time shall incur interest from the due date until the date received by Ariabuild at the rate of One and One Half Percent (1.5%) per month or the maximum rate allowable by law, whichever is less.
4. Your Use of the Site.
4.1 Your Responsibilities. You will (a) be responsible for your compliance with this Agreement, and (b) use the Site only in accordance with these terms and conditions, as well as all applicable laws and regulations, including, without limitation, applicable export control laws and regulations of the United States and other jurisdictions (as provided in more detail below).
4.2 Restrictions. You will not (a) sell, resell, license, sublicense, distribute, rent, or lease the Site or the User Resources, or include the Site or the User Resources in a service bureau or outsourcing offering, (b) use the Site to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (c) use the Site to store or transmit malicious code, (d) interfere with or disrupt the integrity or performance of the Site or any third-party data contained therein, (e) attempt to gain unauthorized access to the Site, the User Resources or any related systems or networks, (f) copy the Site or the User Resources or any part, feature, function, or user interface thereof and misrepresent, modify or hide the source and/or ownership of the foregoing, (g) frame or mirror any part of the Site or the User Resources other than as permitted, or (h) access, record or copy the Site or the User Resources in order to build a competitive product or service.
Ariabuild shall implement and maintain appropriate measures in accordance with generally accepted industry standards to (i) protect against any anticipated threats or hazards to the security or integrity of the Personal Information; and (ii) protect against unauthorized access to the Personal Information.
6. Your Representations and Warranties
You represent and warrant the following:
(a) You are eighteen (18) years of age or older.
(b) You are accessing the User Resources with no intent to broadcast, republish, misrepresent, edit, copy, display or in any way use the User Resources for any purpose other than your personal use.
(c) You have the authority to enter into an agreement for Ariabuild Services.
For the purposes of this Agreement, “Confidential Information” means any business or technical information that either Party discloses to the other Party, in writing, orally or by any other means, that should reasonably have been understood by the receiving Party due to “confidential” and similar markings, the circumstances of disclosure, or the nature of the information itself, to be proprietary and confidential to the other Party, including, without limitation, computer programs, code, algorithms, data, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, and product development plans, names and expertise of employees and consultants, and customer lists. Neither Party will use the other Party’s Confidential Information, except as permitted under this Agreement. Each Party agrees to maintain in confidence and protect the other Party’s Confidential Information using at least the same degree of care as such Party uses for its own information of a similar nature, but in all events at least a reasonable degree of care. Each Party agrees to take all reasonable precautions to prevent any unauthorized disclosure of the other’s Confidential Information, including, without limitation, disclosing Confidential Information only to such Party’s employees, independent contractors, consultants and legal and financial advisors (collectively, “Representatives”) (a) with a need to know such information, (b) who are parties to appropriate agreements sufficient to comply with this Section and (c) who are informed of the nondisclosure obligations imposed by this Section. Each Party will be responsible for all acts and omissions of its Representatives. The foregoing obligations will not restrict either Party from disclosing Confidential Information of the other Party pursuant to the order or requirement of a court, administrative agency or other governmental body, provided that the Party required to make such a disclosure gives reasonable notice to the other Party to enable them to contest such order or requirement. The restrictions set forth in this Section will not apply with respect to any Confidential Information that: (i) was or becomes publicly known through no fault of the receiving Party; (ii) was rightfully known or becomes rightfully known to the receiving Party without confidential or proprietary restriction from a source other than the disclosing Party who has a right to disclose it; (iii) is approved by the disclosing Party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing Party; or (iv) the receiving Party independently develops without access to or use of the other Party’s Confidential Information.
Your Confidential Information expressly includes the Personal Information. We follow generally accepted best practices to safeguard the Personal Information. We conduct background checks on and have confidentiality agreements with all personnel who have or may have access to the Personal Information, including but not limited to those in technical support.
In addition to Ariabuild’s Confidential Information, Ariabuild owns or licenses all rights, title and interest in and to the Site, the User Resources as well as any trademarks, copyrights, trade secrets and inventions, whether or not any of the foregoing are registered, and any ideas, suggestions, proposals, research or test results obtained through, from or as a result of your use of the Site and/or feedback provided by you regarding the Site (collectively, “Ariabuild Assets”). Your rights to the Site are limited to the rights expressly granted to you in this Agreement. Ariabuild reserves all rights not expressly granted in this Agreement. You agree that you shall not attempt to claim, register or protect any interest in or to the Ariabuild Assets.
9.1 Ariabuild’s Indemnification Obligation. Ariabuild will defend or settle, at its option and expense, any third-party claim brought against you to the extent that it is based on an allegation that your use of the Site as permitted under this Agreement infringes a patent, copyright, or trademark or misappropriates a trade secret of any third-party (each, a “Claim”), and, subject to Section 12, Ariabuild will pay all damages and costs (including reasonable legal fees) finally awarded by a court of final appeal attributable to such a Claim, provided that you notify Ariabuild in writing of any such Claim as soon as reasonably practicable and allows Ariabuild to control, and reasonably cooperates with Ariabuild in the defense of, any such Claim and related settlement negotiations.
9.2 Exclusions. ou understand that Ariabuild has no obligation to indemnify you for any Claim that is based on (i) modification of the Site by any party other than Ariabuild; (ii) your use of the Site (including the User Resources) other than as authorized by this Agreement or in violation of your representations and warranties; (iii) your failure to stop using the Site or the User Resources after receiving written notice to do so from Ariabuild in order to avoid further infringement or misappropriation (subparts (i)-(iii) are referred to collectively as “Indemnity Exclusions”).
9.3 Right to Ameliorate Damages. If your use of the Site is, or in Ariabuild’s reasonable opinion is likely to be, subject to a Claim under Section 9.1, Ariabuild may, at its sole option and at no charge to you (and in addition to Ariabuild’s indemnity obligation to you in Section 9.1) (i) procure for you the right to continue using the Site; (ii) replace or modify the Site so that it is non-infringing and substantially equivalent in function to the original Site; or (iii) if options (i) and (ii) above are not commercially practicable in Ariabuild’s sole determination, Ariabuild can terminate this Agreement and all licenses granted hereunder (in which event, you will immediately stop using the Site).
9.4 Your Indemnification Obligation. Except to the extent that Ariabuild is obliged to indemnify you in Section 9.1 above, you will defend, indemnify and hold Ariabuild harmless from and against any claims that may arise out of or be related to or connected with your use or misuse of the Site or the User Resources. For purposes of this section, any reference to Ariabuild shall include Ariabuild’s Affiliates, shareholders, directors, officers, employees, agents and contractors.
9.5 Sole Remedy. This Section sets forth your sole and exclusive remedies, with respect to claims of infringement or misappropriation of third-party intellectual property rights.
ARIABUILD PROVIDES THE SITE AND THE ARIABUILD SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE EXTENT PERMITTED BY LAW, ARIABUILD DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND THOSE ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE.
11. Assumption of Risk and Waiver
You expressly and unconditionally assume any risks and waive any and all claims against Ariabuild, regardless the bases upon which such claim(s) may be made, that may be based on, arise in connection with or be related to any of the following acts, circumstances or conditions, and regardless of the source or the cause of the issue (including but not limited to failures of third-party sites or applications with which the Site interacts):
(a) the Site or the User Resources are partially or totally inoperative or inaccessible;
(b) use of the Site or the User Resources;
(c) viruses or other malicious software are transferred to your computer or other device by using the Site;
(d) bugs, errors or inaccuracies in the Site;
(e) errors or inaccuracies in the Work Product after One (1) week after delivery of the Work Product by Ariabuild or acceptance of the Work Product by you, whichever occurs first;
(f) third-party content, actions or inactions on or with respect to the Site; or
(g) deletion, corruption or destruction of any of the Personal Information.
No waiver by Ariabuild of any breach by you of any condition or provision of this Agreement shall be deemed a waiver of any similar or dissimilar provision or condition at the same or any prior or subsequent time, nor shall the failure of or delay by Ariabuild in exercising any right, power, or privilege under this Agreement operate as a waiver to preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege.
For purposes of this section, any reference to Ariabuild shall include Ariabuild’s Affiliates, joint venture associates and the owners, directors, officers, employees, agents, contractors and vendors of each.
12. Limitation of Liability
To the extent permitted by law, in no event shall Ariabuild have any liability to you for any indirect, special, incidental, punitive, or consequential damages (including for loss of profit, revenue, or data) arising out of or in connection with the Site, this Agreement or the Ariabuild Services, however caused, and under whatever cause of action or theory of liability brought (including under any contract, negligence, indemnification or other tort theory of liability) even if advised of the possibility of such damages. To the extent permitted by applicable law, Ariabuild’s total cumulative liability to you or any third-party arising out of or in connection with the Site, this Agreement or the Ariabuild Services, from all causes of action and all theories of liability, will be limited to and will not exceed One Hundred Dollars ($100.00). The Parties agree that this Section represents a reasonable allocation of risk.
13. Governing Law and Venue
This Agreement will be governed by and interpreted in accordance with the laws of the State of California, USA, without giving effect to any principles of conflict of laws. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Alameda County, California, USA, and the Parties irrevocably consent to personal jurisdiction and venue therein. If any Party incurs costs or expenses including but not limited to reasonable attorneys’ fees in connection with an action relating to the terms of and performance under this Agreement, the prevailing Party in such an action shall be entitled to recover its costs and reasonable attorneys’ fees incurred.
You agree that you may bring a claim against Ariabuild only in your capacity as an individual User, not as the member of or participant in any group or class.
EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT IT MAY HAVE TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION, OR IN ANY LEGAL PROCEEDING, DIRECTLY OR INDIRECTLY BASED UPON, RELATING TO OR ARISING OUT OF THIS AGREEMENT, USE OF THE SITE, USE OF THE USER RESOURCES OR PARTICIPATION IN ANY OF THE ACTIVITIES OR USE OF ANY OF THE PRODUCTS INCLUDED OR DEPICTED IN THE SITE (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. EACH PARTY HERETO CONSENTS TO SERVICE OF PROCESS BY CERTIFIED MAIL AT ITS ADDRESS LISTED HEREIN.
14.1 Independent Contractors. Ariabuild is and will be deemed to be an independent contractor with respect to you in regard to the subject matter of this Agreement, and nothing contained in this Agreement will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary or other similar relationship between Ariabuild and you.
14.2 Assignment. You may not assign any of your rights or obligations hereunder, whether by operation of law or otherwise. Ariabuild may assign this Agreement, in part or whole, inclusive of the Personal Information and personal account information without your consent to an Affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets or equity. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
14.3 Amendment. Ariabuild may amend this Agreement at any time, in its sole and absolute discretion. Your continued use of the Site after the effective date of any such modification shall be conclusive evidence of your consent to be bound by such modification. Provision by you of your personal information in connection with an inquiry or quote does not obligate us to emil you as to changes in this Agreement. It is your responsibility to review this Agreement for changes.
14.4 Force Majeure. Neither Party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations, if any) due to causes beyond its reasonable control, including, without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, pandemics, communication line failure, governmental orders (including but not limited to quarantines and business closures) and power failures.
15.5 Notices. Any notices or other communications required or permitted hereunder shall be sufficiently given if in writing and delivered in person or sent by registered or certified mail (return receipt requested) or nationally recognized overnight delivery service, postage pre-paid addressed as follows, or to such other address as Ariabuild provide by amending this Agreement:
1101 Marina Village Parkway
Alameda, California 94501
Provision by you of your Personal Information in connection with an inquiry or quote does not obligate us to email you or notify you as to any matter.
Notices, demands or requests which you are required or desire to give Ariabuild shall be deemed to have been properly given for all purposes if (A) hand-delivered to Ariabuild’s notice address, (B) mailed by express, registered or certified mail of the United States Postal Service, return receipt requested, postage prepaid, or (C) delivered to a nationally recognized overnight courier service for next business day delivery, to Ariabuild. Each such notice, demand or request shall be deemed to have been received upon the earlier of (i) actual receipt or refusal by Ariabuild if hand-delivered in accordance with clause (A) above, or (ii) three (3) business days after deposit thereof at any main or branch United States post office, if sent in accordance with clause (B) above, or the next business day after deposit thereof with the courier, if sent pursuant to clause (B) or (C) above. For a notice to be valid, an email copy to Ariabuild shall accompany each of the foregoing modes of noticing Ariabuild. An email notice, by itself, shall suffice as notice at such time as the sender receives a receipt acknowledgment or the recipient replies, directly or indirectly, to such notice.
14.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
14.7 Section Headings. Section headings are included for ease of reference only and have no binding effect.
14.8 Interpretation. You acknowledge and agree that you had sufficient time and opportunity to have this Agreement reviewed by your legal counsel. If this Agreement is ever construed, whether by a court or arbitrator, such court or arbitrator will not construe this Agreement, or any provision hereof, against any Party as the drafter. This Agreement is written in English and, notwithstanding the translation or translatability into other languages, the English language version of this Agreement shall be controlling.
14.9 Headings The headings used herein are for convenience only and shall not be deemed to define, limit or construe the contents of any provision of this Agreement. The meanings given to terms defined herein will be equally applicable to both the singular and plural forms of such terms. Whenever the context may require, any pronoun includes the corresponding masculine, feminine and neuter forms.
14.10 Blocked Persons. Each Party represents and warrants to the other that it is not a person or entity listed on Appendix A to Title 31, Chapter V of the Code of Federal Regulations (aka “Suspected Terrorist List”) (a “Blocked Person”). Each Party acknowledges that the reason for such certificate is that Executive Order 13224 and the regulations promulgated pursuant thereto provide that any transfer of property or interest in property with a Blocked Person is null and void and the Party entering such transaction with a Blocked Person could be subject to monetary penalties or imprisonment in accordance with 31 CFR 594.701.
14.11 Entire Agreement. This Agreement constitutes the entire agreement and understanding of the Parties with respect to the subject matter of this Agreement, and supersedes any and all prior understandings and agreements, whether oral or written, between the Parties with respect to the subject matter of this Agreement.
14.12 Survival. Those provisions of this Agreement that by their terms or sense are intended to survive termination or expiration of this Agreement will survive and remain in full force and effect, including, without limitation, Sections 2, 4.2 and 6-14.