BUILDING INFORMATION MANAGEMENT SYSTEMS CORPORATION
Last Updated: January 25, 2018
Terms of Service
These Terms of Service (the “Terms of Service”) describe the terms pursuant to which BUILDING INFORMATION MANAGEMENT SYSTEMS CORPORATION (“BIMS”, “Party”, “we”, or “us”) offers you (“User(s)” or “you”) access to services made accessible by us including, but not limited to, those certain BIMS Link Inspect Pro Services (“LIP”) provided at or using the domain www.linkinspectpro.com and BIMS interconnected and related systems which provide a Central Property Management System, or central hub of information for owners of real property, personal property, fixtures, or such other similar assets (the “Asset Owners”), and the various parties with whom such Asset Owners interact (collectively, the “Site”); the other tools and/or applications made available by BIMS including, but not limited to, BIMS Property Organizer (“PO”), BIMS Link Service Pro (“LSP”), BIMS Link Manage Pro (“LMP”) and various other desktop and software applications related to the Site (including “PO”, “LSP” and “LMP”, the “Applications”); various Asset Owner data that may be uploaded by an Asset Owner to the Site including but not limited to various asset, property, or chattel data, ownership and service files, inspection history, management data, service history, asset and liability information related to a specific property, information related to any service engagement and/or service providers retained by an Asset Owner, and other documentation, images, text, social media content, metadata, and other material available through the Site or the Application or uploaded by a User or Asset Owner to the Site or Application (the “Content”); and functionality for accessing our social media platform, posting messages and/or reviewing or posting commentary related thereto (“Social Media Files”) to the Site or another device (all of the foregoing, including but not limited to the Site, the Applications, the Content, and the Social Media Files collectively referred to as the “Service”). These Terms of Service apply when a User accesses, visits, or uses any portion of the Service, or accesses any of the Content, including but not limited to those services available through BIMS Link Inspect Pro.
BIMS Link Inspect Pro
Link Inspect Pro was developed to help inspection companies manage their inspections and relationships with their clients. The team behind LIP has over thirty (30) years of experience performing and managing inspections of residential, commercial, and industrial properties for condition, environmental, and compliance. Using this knowledge and experience, the team created a platform for any inspection company to start with a Lead, take it through Contract and seamlessly manage the tasks related to Scheduling, Performing the Inspection, and Finalizing the Report. LIP also has tools in its application for scheduling, lead generation and advertising opportunities for both potential and existing clients. Users can start with a preloaded Inspection Workflow or create their own unique template. By utilizing the many customization options available, a User can easily perform any type of inspection, perform the inspection offline, have multiple inspectors work simultaneously, markup or caption the pictures as they are taken, and ultimately ensure that each inspector has all the tools they will need to get a quality job done efficiently and from multiple devices. BIMS goal in creating Link Inspect Pro is to simplify the inspection process so an inspection company can focus on growing and delivering a quality work product. Furthermore, BIMS Link Inspect Pro includes “99.99% uptime” and daily offsite backups, with a 256-bit Advanced Encryption to allow BIMS User data to continuously be available and safe, while aiming to provide the User with immediate access to important information at any time.
IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, THEN YOU SHOULD NOT USE THE SITE, YOU SHOULD DELETE THE APPLICATIONS FROM YOUR DEVICES, AND YOU SHOULD NOT ACCESS OR USE ANY PORTION OF THE SERVICE.
1. About the Service; Eligibility. The Service allows you to manage your inspection reports and relationships with your clients while allowing such reports, where appropriate, to connect with a unique Central Property Management System that stores and shares information and various data related to real property, personal property, fixtures, or such other similar assets owned by your clients and/or you and to create two-way, multiple party, and/or limited or general access to such information and data dependent upon authorization levels which data and information shall include but not be limited to property, fixture, chattel, or such similar asset(s) analysis, inspection data, reports, property management and service information, service data, service requests, and related conversations and interaction on a large scale by way of its unique multi-user platform. This Service is not intended for Users who are under the age of eighteen (18) years old. If a User is not at least eighteen (18) years old please do not access, visit, or use the Service without the supervision of your parent or guardian. If a User is between the ages of thirteen (13) and eighteen (18), a User may access the Service with the permission of User parent or guardian.
2. Acceptance of the Terms of Service. You accept these Terms of Service and agree to be bound by these Terms of Service when you access, visit or use the Service or create a BIMS Account (as defined below). Please read these Terms of Service carefully because they govern a User’s access to and use of the Service and set forth legally binding terms applicable to User use of the Service.
Notice Regarding Dispute Resolution:
These Terms of Service contain provisions that govern how claims a User and BIMS may have against each other are resolved below (see the Section entitled Limitation of Liability, the Section entitled Choice of Law and Forum and the Section entitled Arbitration Agreement and Waiver of Class Action Remedies). These aforementioned Section(s) also contain an Agreement to Arbitrate, which will, with limited exception, require a User to submit claims a User may have against us to binding and final arbitration, unless a User opts-out of the Agreement to Arbitrate in accordance with the Agreement to Arbitration Section. Unless a User opts-out: (A) User will only be permitted to pursue claims against BIMS on an individual basis, not as part of any class or representative action or proceeding and (B) User will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
3. Amendments. BIMS may amend or modify these Terms of Service at any time, and such amendments or modifications will be effective immediately upon being posted on or to the Site. You may also be required to accept the amended or modified Terms of Service upon logging in to a User’s BIMS Account in order to continue using the Service. Alternatively, we may post any material changes to these Terms of Service on the Site with a notice advising of the changes in advance of the effective date of the changes. If a User does not agree to the new terms,User may terminate a User’s BIMS Account within the applicable thirty (30) day period and User will not be bound by the new terms. Otherwise, the new terms will take effect after thirty (30) days. Further, each time you use the Site, you should review the current Agreement. You can determine when this Agreement was last revised by referring to the “LAST UPDATED” legend at the top of this Agreement. Lastly, but importantly, your continued use of the Site will indicate your acceptance of the current Agreement
4. BIMS Accounts and Registration. To access the full functionality of the Service, a User must create an account with which User Registration Data (as defined below), User Content (as defined below), or other information which will be associated with the User account (a “BIMS Account”). This access to BIMS Service is obtained by entering valid login credentials, or by entering a valid e-mail address and other information determined by BIMS. By creating a BIMS Account a User represents that User is: (i) over the age of eighteen (18), using the Service under the direct supervision of User’s parent or guardian, or is using the Service with the permission of a User’s parent or guardian if User is between the ages of thirteen (13) and eighteen (18); (ii) of legal age to form a binding contract; and (iii) not barred from using the Service under the laws of any jurisdiction from which User may access the Service.
A. Creating an Account. By creating a BIMS Account, User agrees to: (i) provide true, accurate, current, and complete information about User, such as User’s name and e-mail address, and other biographical information, as prompted by the Service’s registration form (the “Registration Data”); (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete; (iii) provide, if applicable, a valid payment method for paying any fees associated with the Service; (iv) use only the BIMS Account User created to access the Service or any User Content via the Service; (v) not allow User BIMS Account to be used by anyone else to access the Service or any of User Content; and (vi) not use the name of another person with the intent to impersonate that person or in a way that otherwise causes confusion as to the origin of User account. If User provides any information that is untrue, inaccurate, not current or incomplete, or that impersonates another person, or if BIMS has reasonable grounds to suspect that the information User provides is untrue, inaccurate, not current or incomplete, or impersonates another person, BIMS may suspend or terminate a User’s BIMS Account and refuse to allow User to use the Service at any time. BIMS may associate User Content uploaded to, or otherwise made available by User or accessed by User via the Service, with the User’s BIMS Account. You hereby consent to the use of User’s activities on the Service by BIMS to optimize the availability and presentation of Content and/or User Content to User or to other User(s) of the Service.
B. Termination of Your BIMS Account. We may terminate a User’s BIMS Account, or impose limits on or restrict access to parts or all of the Service at any time, without notice or liability. In the event that a User’s BIMS Account is terminated, we will cease charging User any fees that may be applicable.
C. Payment and Refund Policy. Subscriptions may be offered on an annual or monthly basis as indicated on the Site. The fee that we will charge you for your initial Subscription will be the price posted on the Site on the date that you register for the Service. BIMS reserves the right to change prices for Subscriptions at any time, and does not provide price protection or refunds in the event of promotions or price decreases.We will charge your account (credit card, debit card, etc.) for your first Subscription fee on the date that we process your order for your Subscription (or if you sign-up for a Subscription that includes a free-trial period, we will charge your account for your first Subscription fee upon the expiration date of the applicable free-trial period). Once your account is charged the first Subscription fee (or if you sign-up for a Subscription that includes a free-trial period, once we have processed your order for your Subscription), you will receive a confirmation email notifying you of your ability to access those Subscription-only portions of the Site. We will charge your account (credit card, debit card, or other form of payment) for all other products and services at the time of order. If you are on a monthly payment subscription and elect to cancel your service, you will receive no refund for the month in which you canceled the service. There are no refunds for previous months that you were billed for the service. If you are on an annual prepaid subscription and elect to cancel your service, there is no full refund and no pro-rated refund amount based on the number of days left in your annual service from the day we receive your cancellation request. There are no refunds for previous years that you were billed for the service. All other payments for products or services are non-refundable.
IMPORTANT NOTICE: BIMS WILL AUTOMATICALLY RENEW YOUR SUBSCRIPTION MONTHLY OR ANNUALLY ON THE SAME DATE EACH FOLLOWING MONTH FOR MONTHLY SUBSCRIPTIONS OR ON THE ANNIVERSARY DATE FOR ANNUAL SUBSCRIPTIONS OF THE DATE THAT BIMS FIRST CHARGES YOUR ACCOUNT (CREDIT OR DEBIT CARD, ETC.) FOR THE FIRST SUBSCRIPTION FEE AND, AS AUTHORIZED BY YOU DURING THE SUBSCRIPTION SIGN-UP PROCESS, BIMS WILL CHARGE YOUR ACCOUNT WITH THE APPLICABLE MONTHLY OR YEARLY SUBSCRIPTION FEE AND ANY SALES OR SIMILAR TAXES THAT MAY BE IMPOSED ON YOUR SUBSCRIPTION FEE PAYMENT (UNLESS YOU CANCEL PRIOR TO THE APPLICABLE RENEWAL DATE). EACH SUBSCRIPTION RENEWAL PERIOD IS FOR ONE MONTH OR ONE YEAR, DEPENDING ON THE TYPE OF SUBSCRIPTION ORDERED.
YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME BY CONTACTING BIMS THROUGH AN ESTABLISHED SUPPORT LINE, OR CONTACTING BIMS THROUGH INFO@BIMSCORP.COM. BIMS REQUIRES A REASONABLE AMOUNT OF TIME TO PROCESS YOUR SUBSCRIPTION CANCELLATION REQUEST. IF YOU CANCEL YOUR SUBSCRIPTION, YOU WILL ENJOY YOUR SUBSCRIPTION BENEFITS UNTIL THE EXPIRATION OF THE THEN-CURRENT YEARLY OR MONTHLY SUBSCRIPTION TERM FOR WHICH YOU HAVE PAID, AND YOUR SUBSCRIPTION BENEFITS WILL EXPIRE AT THE END OF THE THEN-CURRENT MONTHLY OR YEARLY SUBSCRIPTION TERM, AS APPLICABLE.
FREE TRIAL PERIODS: YOU MAY BE OFFERED A FREE-TRIAL PERIOD. PLEASE NOTE THAT IF YOU DO NOT TERMINATE YOUR ACCOUNT PRIOR TO THE CONCLUSION OF THE FREE TRIAL PERIOD, YOUR ACCOUNT WILL BE AUTOMATICALLY CONVERTED TO A PAYING SUBSCRIPTION ACCOUNT AT THE END OF THE FREE TRIAL PERIOD. IF YOU TERMINATE YOUR ACCOUNT PRIOR TO THE CONCLUSION OF THE FREE TRIAL PERIOD YOUR ACCOUNT WILL BE AUTOMATICALLY TERMINATED AND ALL INFORMATION WE HAVE RECEIVED DURING THE TRIAL PERIOD WILL BE UNRECOVERABLE.
You will be liable for paying any and all applicable sales and use taxes for the purchase of your Subscription based on the mailing address that you provide when you register your account, and you authorize BIMS to charge your credit or debit card for any such applicable taxes.
A. Responsibility for User Content. If User has a BIMS Account,a User may be able to upload, save, store, post, vote, display, add, edit, e-mail, transmit, create or share various property or chattel data, documents, various property or chattel service provider data, commentary or topics of discussion,or other information or data of any kind whatsoever, or otherwise make available content through the Service (“User Content”). All User Content uploaded, entered, or posted by a User will be associated with your BIMS Account. You, and not BIMS, will be solely responsible for all User Content associated with a User’s BIMS Account, and other User(s) of the Service, and not BIMS, are similarly responsible for the User Content associated with their respective BIMS Accounts. By posting User Content on the Service, the User agree to assume full responsibility for the applicable User Content and represents that: (i) User is the sole owner of all User Content that User makes available through the Service or that the User has all rights, licenses, consents and/or releases necessary to make User Content available through the Service and to grant to BIMS the rights to User Content described in these Terms of Service, (ii) the User Content does not and will not infringe the rights of any third parties, including any intellectual property rights, publicity rights or rights of privacy, and (iii) all of User Content and other information that User provides to us is truthful and accurate. BIMS has the right, but not the obligation, to pre-screen, refuse, or remove any User Content that violates these Terms of Service or that it otherwise deems objectionable. Should User BIMS Account or User Content be removed from the Service, BIMS reserves the right to retain User Content for backup, archival, advertising, or audit purposes. This Site may allow you to transfer such User Content to another user or to any person that has purchased your property or that you wish to share with. You represent and warrant that you have full right, power and authority to post and transfer the User Content and that doing so will not violate the rights or interests of any third party. BIMS is not responsible for any loss, damage, mutilation, alteration, theft, deletion or modification of any User Content.
B. BIMS Rights in User Content. BIMS does not claim Ownership of User Content. However, the User grants BIMS a perpetual, worldwide, royalty-free, non-exclusive, sub-licensable, transferable and irrevocable right and license to use, distribute, publish, reproduce, copy, modify, adapt, publicly perform and publicly display User Content and to incorporate User Content into any form, medium or technology, and to exercise any and all copyright, trademark, publicity, and database rights the User has in User Content in any media known now or in the future in connection with the Service, all without compensation to the User. This license includes, without limitation, the right for us to use, feature, display, or highlight any User Content that the User posts to the Service from the Service or other third party information and websites including, but not limited to, any Social Media Service. You release BIMS from and against any and all claims of any kind which the User may have against BIMS in connection with such use, including, but not limited to, those based on copyright, rights of publicity, or privacy. You understand that the technical processing and transmission of data associated with the Service, including User Content, may require: (i) transmissions over various networks; and (ii) changes to User Content to conform and adapt to technical requirements of connecting networks or devices.
C. Prohibited User Content. While using the Service, the User agrees that the User will not upload, post, e-mail, transmit, or otherwise make available any User Content that:
- is unlawful, harmful, threatening, abusive, harassing, tortious, infringing, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or is racially, ethnically or otherwise objectionable;
- creates a risk of harm, loss, or damage to any person or property or a risk of physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to yourself, or to any other person, or to any animal;
- violates, or encourages any conduct that violates laws or regulations or contains any information or content that is illegal; or
- infringes any third party’s intellectual property rights, privacy rights, publicity rights, or other personal or proprietary rights or contains any information or content that User do not have a right to use or exploit under any law or under contractual or fiduciary relationships.
6. Prohibited User Conduct. While using the Service, the User agrees not to engage in any of the following prohibited activities:
- use, display, mirror, or frame the Service, any individual element within the Service, the BIMS name, trademarks, logos or other proprietary information, or the layouts and designs of any portion of the Service, without our express written consent;
- access the Service by any means other than through interfaces provided by BIMS and as otherwise expressly authorized under these Terms of Service;
- access, tamper with, or use non-public areas of the Service, our computer systems, or the technical delivery systems of our providers;
- avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by BIMS or any of our providers or any other third party (including another User) to protect the Service;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any User Content transmitted through the Service;
- attempt to access or search the Service or scrape or download Content or User Content from the Service, or otherwise use, upload content to, or create new links, reposts, or referrals in the Service through the use of any engine, software, tool, agent, device or mechanism (including automated scripts, spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by BIMS or other generally available third party web browsers;
- send any unsolicited or unauthorized spam, advertising messages, promotional materials, email, junk mail, chain letters or other form of solicitation;
- use any meta tags or other hidden text or metadata utilizing the Service or a BIMS trademark, logo, or URL without BIMS express written consent;
- attempt to decipher, decompile, disassemble or reverse engineer any of the Applications or other software used to provide the Service;
- interfere with, or attempt to interfere with, the access of any User, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Service;
- reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose any portion of the Service (including User BIMS Account) or User access to or use of the Service;
- collect or store any personally identifiable information from other members of the Service without their express permission;
- stalk or otherwise harass another person or entity;
- impersonate or misrepresent User affiliation with any person or entity;
- violate any applicable law or regulation;
- without limiting any other provision of these Terms of Service, allow any other person or entity to use User BIMS Account so that such other person or entity may access any User Content or transfer Social Media Files on User device to any other device; or
- encourage or enable any other individual to do any of the activities prohibited in these Terms of Service.
7. Ownership of the Service and Content; Restrictions. You agree that BIMS and its licensors or partners own all rights, title and interest in the Service, that BIMS has a license to the Content, and that BIMS owns all intellectual property rights in and related thereto. The BIMS name, logo and symbols and related names are trademarks and service marks of BIMS (the “BIMS Marks”). You agree not to display or otherwise use any BIMS Marks without BIMS prior written consent. Furthermore, any and all Content included on the Site, such as text, graphics, logos, images, audio clips, video, data, software and other material, is owned or licensed property of BIMS or its software and content suppliers and is protected by copyright, trademark, patent or other proprietary rights. The collection, arrangement, and assembly of all Content on the Site is the exclusive property of BIMS and protected by U.S. and international copyright and other laws. BIMS trademarks are owned and property of BIMS and any unauthorized use is strictly prohibited.
8. Use of the Content. The Service may enable the User to obtain, use, view, and/or read (as the case may be) Content that may be obtained by the User in digital form, and the User shall do so solely for the use of the User. The Content may be owned by BIMS or by third parties. However, in all circumstances, the User understands and acknowledges that the User’s rights with respect to Content will be limited by copyright law. You agree that the User will not attempt to modify any software or Content obtained through the Service for any reason whatsoever, including for the purpose of disguising or changing any indications of the Ownership or source of the Content.
9. No Reverse Engineering. You agree that the User will not, for any reason whatsoever, reverse engineer, decompile, disassemble, or otherwise tamper with any security components, usage rules or other protection measures applicable to the Service or Content.
10. No Copyright Infringement. You agree not to make any use of the Content or the User Content that would infringe the copyright therein.
11. Removal of Content. BIMS and/or the Owners of the Content may, from time to time, remove Content from the Service without notice.
12. Sharing through Social Media Services. The Service may include functionality that allows the User to access and post content to Social Media Services regarding User activities on the Service. If the User chooses to use this functionality, BIMS may: (i) have access to certain information that the User makes available through the applicable Social Media Service and that the applicable Social Media Service has made available to BIMS; or (ii) post status messages, notes, photos, videos and other materials to the applicable Social Media Service on the User’s behalf. By connecting User BIMS Account with User account on a Social Media Service, the User grants us permission to access and use the information that the User makes available through the applicable Social Media Service and that the applicable Social Media Service has made available to BIMS, in accordance with the privacy or other settings that are applicable to User Social Media Service account. For more information on how the User can manage the information provided to BIMS by the applicable Social Media Service, please review the privacy settings applicable to the User Social Media Service account. Social Media Services are not partners or representatives of BIMS and BIMS is not responsible for the acts or omissions of any Social Media Service in connection with the User account with the applicable Social Media Service.
16. Linked Materials and Third-Party Materials. The Services include links to third-party products, services and Web sites, as well as materials provided by third parties. BIMS does not endorse, and takes no responsibility for such products, services, Web sites, and materials. You understand that BIMS has no obligation to, and generally does not, approve or monitor materials provided by third parties through the Services. Your dealings with any third party arising in connection with the Services are solely between you and such third party, and BIMS takes no responsibility for any damages or costs of any type arising out of or in any way connected with your dealings with these third parties.
17. User Feedback. BIMS welcomes and encourages User feedback, but please do not submit any proprietary or confidential information, suggestions or materials via email, the Service or any other method. By submitting opinions, suggestions, feedback, and/or proposals through the Service, or through any other communication with BIMS, the User acknowledges and agrees that: (i) the suggestions or feedback User provides will not contain confidential or proprietary information; (ii) BIMS is not under any obligation of confidentiality, express or implied, with respect to the suggestions and feedback User provides; (iii) BIMS shall be entitled to use or disclose (or choose not to use or disclose) the suggestions and feedback the User provides for any purpose, in any way, in any media worldwide; (iv) BIMS may have similar ideas to the suggestions and feedback the User provides already under consideration or in development; (v) the suggestions and feedback the User provides will automatically become the property of BIMS without any obligation of BIMS to the User and the User hereby assigns all of the User’s rights in the suggestions and feedback to BIMS; (vi) User is not entitled to any compensation or reimbursement of any kind from BIMS under any circumstances, and (vii) User will not submit any materials that the User does not have the right to make available under any law or contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements). You expressly agree that the User will solely bear any liability related to the User’s submission of these materials through the Service or to BIMS.
18. Links to Other Websites. The Service may contain links to third party websites, resources or data, and other you of the Service may post links to third party websites, resources or data. You acknowledge and agree that BIMS is not responsible or liable for the availability of these websites or resources, or for any content, advertising, products, services or other materials on or available through these websites or resources, including payment or delivery of such goods or services from these websites. You also acknowledge that the User is solely responsible for and assumes all risk arising from the use of any of these websites, resources or data. Links to third party websites on the Service are not intended as endorsements or referrals by BIMS of any products, services or information contained on the applicable websites. These Terms of Service do not apply to third party websites, including the content of and the User’s activity on those websites. You should review all applicable third-party websites’ terms of service, privacy policies and all other website documents, and inform yourself of the regulations, policies and practices of all applicable third-party websites.
19. Mobile Applications. BIMS may make available Mobile Applications to access the Site via a mobile device. To use the Mobile Application you must have a mobile device that is compatible with the mobile service. BIMS does not warrant that the Mobile Application will be compatible with your mobile device. BIMS hereby grants to you a non-exclusive, non-transferable, revocable license to use an object code copy of the Mobile Application for one registered account on one mobile device owned or leased solely by the User. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Application, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Application to any third-party or use the Mobile Application to provide time sharing or similar services for any third-party; (iii) make any copies of the Mobile Application; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Application, features that prevent or restrict use or copying of any content accessible through the Mobile Application, or features that enforce limitations on use of the Mobile Application; or (v) delete the copyright and other proprietary rights notices on the Mobile Application. You acknowledge that BIMS may from time to time issue upgraded versions of the Mobile Application, and may automatically electronically upgrade the version of the Mobile Application that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that this Agreement will apply to all such upgrades. The foregoing license grant is not a sale of the Mobile Application or any copy thereof, and BIMS and its third-party licensors or suppliers retain all right, title, and interest in and to the Mobile Application (and any copy of the Mobile Application). Standard carrier data charges may apply to your use of the Mobile Application.
20. iOS App. The following additional terms and conditions apply with respect to any Mobile Application that BIMS provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”): (i) You acknowledge that this Agreement is between you and BIMS only, and not with Apple, Inc. (“Apple”); (ii) Your use of BIMS iOS App must comply with Apple’s then-current App Store Terms of Service; (iii) BIMS, and not Apple, is solely responsible for our iOS App and the Services and content available thereon; (iv) You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS App; (v) To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to our iOS App; (vi) You agree that BIMS, and not Apple, is responsible for addressing any claims by you or any third-party relating to our iOS App or your possession and/or use of our 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, and all such claims are governed solely by this Agreement and any law applicable to us as provider of the iOS App; (vii) You agree that BIMS, and not Apple, shall be responsible, to the extent required by this Agreement, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to our iOS App or your possession and use of our iOS App; (viii) 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; (ix) You agree to comply with all applicable third-party terms of agreement when using our iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App); (x) The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to this Agreement as they relate to your license of BIMS iOS App; and (xi) Upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as they relate to your license of the iOS App as a third-party beneficiary thereof.
21. Android. The following additional terms and conditions apply with respect to any Mobile Application that BIMS provides to you designed for use on an Android-powered mobile device (an “Android App”):(i) You acknowledge that this Agreement is between you and BIMS only, and not with Google, Inc. (“Google”); (ii) Your use of BIMS Android App must comply with Google’s then-current Android Market Terms of Service; (iii) Google is only a provider of the Android Market where you obtained the Android App. BIMS, and not Google, are solely responsible for BIMS Android App and the Services and content available thereon. Google has no obligation or liability to you with respect to BIMS Android App or this Agreement; and (iv) You acknowledge and agree that Google is a third-party beneficiary to this Agreement as they relate to BIMS Android App.
24. Beta Account(s). If you register for a “Beta Account” or other pre-release version of our the Site and/or Service, and/or other materials on the Site (collectively, the “Beta Release”), you acknowledge and agree that the Beta Release may contain more or fewer features or different licensing terms than a subsequent commercial release version of the Site and/or Service offered through the Site. You acknowledge and agree that any “Beta Account” will automatically convert to a commercial release version upon the official launch date of the Site and/or Service to the public (“Public Launch Date”). If you do not desire to continue using the Site or its Service after the Public Launch Date, you may contact BIMS to delete your account in accordance with the terms and conditions then governing deletion of personal or other information. While BIMS generally intends to distribute commercial release versions of the Site and/or Service, the Company reserves the right not to release later commercial release versions of any Beta Release. Without limiting any disclaimer of warranty or other limitation stated herein, you agree that any Beta Release is not considered suitable for commercial use, and that it may contain errors affecting its proper operation. By accepting these terms, you acknowledge and agree that any use of a Beta Release may exhibit sporadic disruptions that have the potential to disrupt your use of the Site and/or Service in general, and that BIMS specifically disclaims any and all damages resulting from your use of any Beta Release or any Service that may be offered through the Site
25. Disclaimer of Warranties. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, BIMS AND ITS PARENTS, SUBSIDIARIES, PARTNERS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, LICENSORS, AND ALL OWNERS OF THE CONTENT (COLLECTIVELY, THE “BIMS PARTIES”) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE BIMS PARTIES DO NOT WARRANT THAT USE OF THE SERVICE OR THE CONTENT WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN THE SERVICE OF THE CONTENT WILL BE CORRECTED, THAT THE SERVICE OR CONTENT OR THE SERVERS THAT MAKE THE SERVICE AND THE CONTENT AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY DESCRIPTIONS OF THE SERVICE OR THE CONTENT ARE ACCURATE, RELIABLE, CURRENT OR COMPLETE.
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. IF YOU POST OR DOWNLOAD ANY CONTENT FROM THE SERVICE, YOU DO SO AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE POSTING OR DOWNLOAD OF ANY CONTENT THROUGH THE SERVICE. WE RESERVE THE RIGHT TO RESTRICT OR TERMINATE YOUR ACCESS TO THE SERVICE OR ANY FEATURE OR PART THEREOF AT ANY TIME. THE BIMS PARTIES ASSUME NO RESPONSIBILITY FOR THE DELETION, MIS-DELIVERY, OR FAILURE TO STORE OR TRANSFER ANY CONTENT, USER CONTENT, SOCIAL MEDIA FILES, OR PERSONALIZATION SETTINGS.
26. Limitation of Liability. YOU UNDERSTAND AND AGREE THAT THE BIMS PARTIES WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF A BIMS PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM YOUR USE OR ACCESS OF, OR INABILITY TO USE OR ACCESS THE SITE, THE SERVICE, THE CONTENT, OR THE USER CONTENT.
28. Suspension of Access. Please report problems and policy violations to us by sending us an email at email@example.com. We reserve the right, but have no obligation, to remove any Content or User Content from the Service at any time in our discretion In addition, without limiting other remedies, we may, in our sole discretion, limit, suspend, or terminate the Service and BIMS Accounts, prohibit access to the Service, the User Content, or the Content, and take technical and legal steps to keep you from using the Service, the User Content, or the Content, if we think that they are creating problems or possible legal liabilities, infringing the intellectual property rights of third parties, or acting inconsistently with the letter or spirit of our policies (for example, and without limitation, circumventing temporary or permanent suspensions or harassing our employees or other you).
29. Indemnity. You agree to indemnify and hold the BIMS Parties harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of: (A) User use of the Service, the User Content, or the Content; (B) User violation of these Terms of Service; or (C) User violation of any law or User violation or infringement of any rights of another party.
30. Choice of Law and Forum. The laws of the State of New York apply to these Terms of Service and to User relationship with the BIMS Parties, without regard to conflict of law principles, and the parties irrevocably consent to bring any action to enforce these Terms of Service in the federal or state courts located in the County of Suffolk, New York. You consent to the exclusive jurisdiction of the federal or state courts located in Suffolk, New York.
31. Arbitration Agreement and Waiver of Class Remedies.
A. Arbitration. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration. All claims arising out of or relating to these Terms of Service (including its formation, performance and breach) and User use of the Service shall be finally settled by binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer related disputes of the AAA, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms of Service, including, but not limited to, any claim that all or any part of these Terms of Service is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
B. Class Action Waiver. The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis.If any court or arbitrator determines that the class action waiver set forth in this Section 23B is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
C. Exception- Litigation of Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
D. Thirty Day Right to Opt Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in this Section by sending written notice of User decision to opt-out to the following address: Building Information Management Systems Corporation, 22 Oak Street, Bay Shore, New York 11706. The notice must be sent within thirty (30) days of registering to use the Service, otherwise User shall be bound to arbitrate disputes in accordance with the terms set forth above. If User opts-out of these arbitration provisions, we also will not be bound by them. In addition, if User elects to opt-out of these arbitration provisions, we may terminate Users use of the Service.
32. Notices. Except as explicitly stated otherwise, legal notices shall be served on BIMS registered agent (in the case of BIMS) or, in User case, to the email address associated with UserBIMS Account. Notice to User shall be deemed given twenty-four (24) hours after the email is sent.
33. Assignability. You may not assign or delegate any right or obligation User have under these Terms of Service, whether by operation of law or otherwise, without the prior written consent of BIMS. BIMS may assign or delegate any right or obligation under these Terms of Service, whether by operation of law or otherwise, without User consent.
35. Headings. Headings are for reference purposes only and do not limit the scope or extent of such section.
36. Entire Agreement. These Terms of Service (including incorporated policies and rules) set forth the entire understanding and agreement between us with respect to the subject matter hereof.
37. No Oral Modifications. Employees of the BIMS Parties are not authorized to modify the terms of these Terms of Service, either verbally or in writing. If any employee of the BIMS Parties offers to modify these Terms of Service, he or she is not acting as an agent for the BIMS Parties or speaking on our behalf. You may not rely, and should not act in reliance on, any statement or communication from an employee of the BIMS Parties or anyone else purporting to act on our behalf.
38. Independent Contractor. No agency, partnership, joint venture, employee-employer, or franchisor-franchisee relationship is intended or created by these Terms of Service.
39. Export Control. The Service may be subject to U.S. export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. You warrant that User are (1) not located in Cuba, Iran, North Korea, Sudan, or Syria, and (2) are not a denied party as specified in the regulations listed above.
You agree to comply with all applicable export and re-export control laws and regulations, including the EAR, trade and economic sanctions maintained by OFAC, and the ITAR. Specifically, User agree that User shall not – directly or indirectly – sell, export, re-export, transfer, divert, or otherwise dispose of any products, software, services, or technology (including products derived from or based on such technology) received from BIMS under these Terms of Service to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. This export control clause shall survive termination or cancellation of these Terms of Service.
40. Contact Information. If User has any questions about these Terms of Service or User BIMS Account, User may contact us by email at firstname.lastname@example.org or by postal mail at Building Information Management Systems Corporation, 22 Oak Street, Bay Shore, New York 11706.
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