Terms and Conditions
Last Modified: July 2015
Thank you for using this site! In order to maximize your
enjoyment of the site and the enjoyment of your fellow users, we ask
that you follow a few
rules. This site is designed for tenants and management of your
residential complex as well as the complex owners (the “Building”).
For the sake of
clarity, Building Management used herein refers to the
management and owners of your building.
In order to use the site, you must agree to comply with these
terms and all applicable Building rules and regulations and applicable
local, state and
In addition, by using the site you agree not to:
• impersonate any person or entity, or falsely state or
otherwise misrepresent yourself, or your affiliation with any person or
• solicit, harvest or collect personal information from any other user;
• intimidate, harass, or “stalk” another; or
• use the site for any illegal or fraudulent purpose.
If you post any content to the site, you agree not to place
hyperlinks to, upload, post, transmit, share, store or otherwise make
• any content that victimizes, harasses, degrades, or
intimidates an individual or group of individuals on the basis of
religion, gender, sexual
orientation, race, ethnicity, age, or disability;
• any unsolicited or unauthorized advertising,
solicitations, promotional materials, “junk mail,” “spam,” “chain
letters,” “pyramid schemes,” or
any other form of solicitation;
• any private information of any third party, including,
without limitation, addresses, phone numbers, email addresses, Social
and credit card numbers;
• any content that infringes any patent, trademark, trade
secret, copyright or other proprietary rights of any party;
• any content that contains nudity, violence, or offensive subject matter or contains a link to an adult website;
• any material that contains software viruses or any other
computer code, files or programs designed to interrupt, destroy or limit
functionality of any computer software or hardware or
• any content that would constitute, encourage or provide
instructions for a criminal offense, violate the rights of any party
limitation rights of privacy and publicity), or that would
otherwise create liability or violate any local, state, national or
• any content that you do not have a right to transmit
under any law or under contractual or fiduciary relationships (such as
proprietary and confidential information learned or disclosed as
part of employment relationships or under nondisclosure agreements); or
• any content that, in our sole judgment, is objectionable
or which restricts or inhibits any other person from using or enjoying
the site, or
which may expose your Building, Building Management or
MyBuilding or its users or members to any harm or liability of
Lastly, you agree not to:
• Interfere with or disrupt the operation of the site or the servers or networks used to make the site available;
• Restrict or inhibit any other person from using the site
(including without limitation by hacking or defacing any portion of the
• Modify, adapt, translate, reverse engineer, decompile or disassemble any portion of the site;
• Remove any copyright, trademark or other proprietary
rights notice from the site or materials originating from the site;
• Frame or mirror any part of the site without our express prior written consent;
• Create a database by systematically downloading and storing site content; or
• Resell or attempt to resell any aspect of the site, whether for profit or otherwise.
In order to use the services offered on the site you must
register. During the registration process, you will specify a username,
your email address
and a password. You are solely responsible in all respects for
all use of and for protecting the confidentiality of your credentials.
You agree to
notify us immediately of any unauthorized use of your
credentials and any other suspected breach of security regarding the
site. We and Building
Management are not liable for any loss or damage arising from
the unauthorized use of your credentials.
All content on the site, including but not limited to designs,
text, graphics, pictures, video, information, software, music, sound and
and their selection and arrangement, are the proprietary
property of MyBuilding, its users or its licensors with all rights
reserved. You are
granted a limited license to access and use the site and solely
for your personal use. Any use of the site or the site content other
specifically authorized herein, without the prior written
permission of MyBuilding, is strictly prohibited and will terminate
the license granted
As a registered user, you may submit content to the site while
using the services offered by the site. You are solely responsible for
any content that
you upload, publish, display, or link to (hereinafter, “post”)
on or through the site, or transmit to or share with other users (“User
and Building Management have no ability to control User Content
posted on the site, but we reserve the right to modify or remove, at our
any User Content posted by you to the site. By posting User
Content to any part of the site and/or in any hyperlink you represent
and warrant that you
have obtained the necessary rights to post such User Content and
such posting does not infringe any third party’s rights.
Third Party Content and Services.
Other users or third parties may make services or goods
available through the site. You understand that MyBuilding and
Building Management do not
verify the qualifications of such users or third parties, nor do
we evaluate or control in any ongoing manner exchanges between you and
parties. MyBuilding and Building Management cannot and do
not assume responsibility for the accuracy, completeness, safety,
timeliness, legality or applicability of anything said, written,
posted, displayed or otherwise made available by any other user.
You understand that you may be exposed to content that you find
offensive to you, and that you use the site at your own risk.
Please use caution and common sense when interacting with other
users. By interacting with other users or third parties, you agree to
accept the risks
associated with such dealings and that MyBuilding and your
Building Management (along with our and their respective officers,
subsidiaries, joint ventures and employees) are not responsible
for any and all acts or omissions of users on the site.
If you violate any of the terms in this Agreement,
MyBuilding may suspend or terminate your use of the site. YOU AGREE
THAT MYBUILDING AND
BUILDING MANAGEMENT SHALL NOT BE LIABLE TO YOU OR ANY THIRD
PARTY FOR REMOVING YOUR USER CONTENT OR SUSPENDING OR TERMINATING YOUR
ACCESS TO THE SITE
(OR ANY PORTION THEREOF). If your participation in or access to
the site is discontinued at any time, MyBuilding may continue to
use your User
Content as set forth in these Terms.
We care about the privacy of our users. Use of the site is
reference. By using the site or the Service, you are consenting
to have your personal data transferred to and processed in the United
The site is protected to the maximum extent permitted by
copyright laws and international treaties. Any reproduction,
modification, creation of
derivative works from or redistribution of the site or the
collective work is prohibited without the express written consent of
All contents on the site (except User Content and Building
Management content) are Copyright © 2012 MyBuilding LLC or our
partners. All rights
reserved. MyBuilding and the MyBuilding logo are
trademarks of MyBuilding. All other trademarks are property of
companies. All trademarks and registered trademarks are
protected by US and international trademark laws.
Modifications to or Discontinuation of Site.
MyBuilding reserves the right to modify or terminate the
site with or without cause at any time and effective immediately.
not be liable to you or any third party for termination. Should
you object to any terms and conditions of the Agreement or any
modifications thereto or become dissatisfied with the site in
any way, your only recourse is to immediately discontinue use of the
termination of the site, your right to use the site immediately
ceases. You shall have no right and MyBuilding will have no
MyBuilding and Building Management are not responsible or
liable in any manner for any User Content or Third Party Content linked
to or posted on
or through the site or any hyperlink. MyBuilding does not
monitor, control or have knowledge of any User Content transmitted
through the site and
is not responsible for what users contribute to the site or any
hyperlink and is not responsible for any offensive, inappropriate,
obscene, unlawful or
otherwise objectionable content you may encounter as a result of
the services offered by the site or in connection with any hyperlink,
User Content, or
Third Party Content. MyBuilding and Building Company are
not responsible for the conduct, whether online or offline, of any user
of the site.
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 thereof, or
any affiliation therewith, by MyBuilding.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
• THE SITE AND ALL CONTENT ARE PROVIDED “AS IS,” WITH NO WARRANTIES WHATSOEVER.
• USE OF THE SITE IS AT YOUR SOLE RISK. ANY MATERIAL
AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE
IS AT YOUR OWN
DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY
DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE
DOWNLOAD OF SUCH
MATERIAL AND/OR DATA.
Limitation of Liability.
UNDER NO CIRCUMSTANCES SHALL MYBUILDING OR BUILDING
MANAGEMENT BE LIABLE TO YOU ON ACCOUNT OF (i) ANY USER CONTENT, (ii)
YOUR USE OR MISUSE OF OR
RELIANCE ON THE SITE, OR (iii) THE INTERRUPTION, SUSPENSION, OR
TERMINATION OF THE SITE (INCLUDING SUCH DAMAGES INCURRED BY THIRD
LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF
DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND
ARISING FROM ANY CLAIM RELATING TO THIS AGREEMENT OR THE SUBJECT
MATTER HEREOF WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT
NEGLIGENCE), OR OTHERWISE, (EVEN IF MYBUILDING OR ITS
LICENSORS OR BUILDING MANAGEMENT HAVE BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES). IN NO
EVENT SHALL THE LIABILITY OF MYBUILDING AND BUILDING
MANAGEMENT OR THEIR RESPECTIVE OFFICERS, DIRECTORS, AND EMPLOYEES EXCEED
$100. SUCH LIMITATION
OF LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT
PERMITTED BY LAW.
You agree to indemnify and hold MyBuilding, its subsidiaries
and affiliates, Building Management, and each of their directors,
contractors, partners and employees, harmless from and against
any loss, liability, claim, demand, damages, costs and expenses,
attorney’s fees, arising out of or in connection with any User
Content, any Third Party Content you link to, post or share on or
through the site, your
use of the site, your conduct in connection with the site or
with other users of the site, or any violation of this Agreement or of
any law or the
rights of any third party.
the parties with respect to the subject matter hereof and supersede and
replace all prior
or contemporaneous understandings or agreements, written or
oral, regarding such subject matter.
Any questions regarding these Terms and Conditions should be directed to: firstname.lastname@example.org
• The section titles in this Agreement are for convenience only and have no legal or contractual effect.
Waiver and Severability of Terms
• The failure of MyBuilding to exercise or enforce any
right or provision of this Agreement shall not constitute a waiver of
such right or
provision. Any waiver of any provision of this Agreement will
be effective only if in writing and signed by MyBuilding. If any
provision of this
Agreement is found by a court of competent jurisdiction to be
invalid, the parties nevertheless agree that the court should endeavor
to give effect to
the parties’ intentions as reflected in the provision, and the
other provisions of this Agreement remain in full force and effect.
Statute of Limitations
• You and MyBuilding agree that any cause of action arising
out of or related to this service must commence within one (1) year
after the cause of
action arose; otherwise, such cause of action is permanently
barred. Some jurisdictions may prohibit the shortening of the time
period in which a
cause of action must be brought. In all such jurisdictions, the
applicable time period shall be the minimum allowed by law.
Choice of Law and Forum
• This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington, excluding its
conflict of law provisions.
You and MyBuilding agree to submit to the exclusive
jurisdiction of the courts of the State of New York.
• We reserve the right to modify these terms from time to time,
for any reason, without notice and such modifications will be made
available on our
site. Use of our site constitutes (1) acknowledgement by you of
our modifications, and (2) an agreement by you to abide and be bound by
and their modifications.
If you are a copyright owner or an agent thereof and believe
that any User Content or other content infringes upon your copyrights,
you may submit a
notification pursuant to the Digital Millennium Copyright Act
(“DMCA”) by providing our copyright agent with the following information
in writing (see
17 U.S.C. 512(c)(3) for further detail):
• A physical or electronic signature of a person
authorized to act on behalf of the owner of an exclusive right that is
• Identification of the copyrighted work claimed to have been infringed;
• Identification of the material that is claimed to be
infringing or to be the subject of infringing activity and that is to be
removed or access
to which is to be disabled and information reasonably sufficient
to permit us to locate the material;
• Information reasonably sufficient to permit us to
contact you, such as an address, telephone number, and, if available, an
• A statement that you have a good faith belief that use
of the material in the manner complained of is not authorized by the
its agent, or the law; and
• A statement that the information in the notification is
accurate, and under penalty of perjury, that you are authorized to act
on behalf of the
owner of an exclusive right that is allegedly infringed.
Our designated Copyright Agent to receive notifications of claimed infringement is:
130 West 25th Street, Suite 4C
New York, NY 100001
By email at email@example.com
For clarity, only DMCA notices should go to the Copyright Agent;
any other feedback, comments, requests for technical support, and other
should be directed to MyBuilding at
firstname.lastname@example.org. You acknowledge that if you fail to comply
with all of the requirements of this
section, your DMCA notice may not be valid.
If you believe that content or a submission of yours that was
removed (or to which access was disabled) is not infringing, or that you
authorization from the copyright owner, the copyright owner’s
agent, or pursuant to the law, to post and use such content or
submission, you may send a
counter-notice containing the following information to the
• Your physical or electronic signature;
• Identification of the content that has been removed or
to which access has been disabled and the location at which the content
it was removed or disabled;
• A statement that you have a good faith belief that the
content was removed or disabled as a result of a mistake or a
misidentification of the
• Your name, address, telephone number, and email address,
a statement that you consent to the jurisdiction of the federal court
in New York County,
New York, and a statement that you will accept service of
process from the person who provided notification of the alleged
If a counter-notice is received by the Copyright Agent, we may
send a copy of the counter-notice to the original complaining party
person that the removed content may be replaced or no longer
disabled in 10 business days.
Unless the copyright owner files an action seeking a court order
against the content provider, member or user, the removed content may
be replaced, or
access to it restored, in 10 to 14 business days or more after
receipt of the counter-notice, at our sole discretion.
For Staff/Manager users:
READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY. THIS IS A LEGALLY BINDING AGREEMENT BETWEEN MYBUILDING INC. (“MYBUILDING”, “US”, “WE”) AND THE CUSTOMER (“CUSTOMER”). WE ARE WILLING TO LICENSE USE OF THE ONLINE SERVICES (AS DEFINED BELOW) FOR BUILDING MANAGEMENT AND COMMUNITY (THE “ONLINE SYSTEM”) AND DOCUMENTATION ONLY UPON THE CONDITION THAT CUSTOMER ACCEPTS ALL OF THE TERMS CONTAINED IN THIS AGREEMENT (THE "AGREEMENT"). THE ORDER FORM IS INCORPORATED HEREIN BY THIS REFERENCE. IF CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT, PLEASE CLICK THE “I ACCEPT” BUTTON AT THE END OF THIS LICENSE AGREEMENT. IF CUSTOMER DOES NOT AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT, PLEASE CLICK THE “I DO NOT ACCEPT” BUTTON AT THE END OF THIS LICENSE AGREEMENT.
These Service Terms & Conditions (“Service Terms”) are agreed to be MyBuilding Inc. and the Customer using the Online Services. By using the Online Services and Online System, Customer agrees to abide by these Service Terms.
MyBuilding reserves the right to modify these Service Terms from time to time. If we modify these Service Terms, we will indicate that we have done so on our homepage. Continued use of the Online Services and Online System constitutes Customer’s acceptance of any modified Service Terms.
1.1. “Affiliate” – any legal entity that owns, is owned by, or is commonly owned with a party, where “own” means having more than 50% ownership or the right to direct the management of the entity.
1.2. “Agreement” – these Service Terms together with all Service Order Forms executed by the parties.
1.3. “Customer Content” – any proprietary materials provided by Customer for incorporation by MyBuilding into the Online System or other product or services to be provided by MyBuilding, including without limitation, Property photographs, information relating to each End User and each Property, MyBuilding copies of by-laws, house rules and regulations and the Property declaration.
1.4. “Effective Date” – the date a Service Order Form is executed by Customer.
1.5. “End User(s)” – Customer employees, persons engaged in property management activities for a Property, and lessees, subtenants, and occupants of units in a Property, in each case who access or use the Online Services or Online System; and any other persons permitted to use the Online Services of Online System with MyBuilding’s prior written consent.
1.6. “Ongoing Services” – those content maintenance and support services to be performed by MyBuilding for Customer in relation to the Online System.
1.7. “Online Service” – a service based on a website owned and operated by MyBuilding for Customer in relation to the Online System.
1.7. “Online System” – the MyBuilding Online System for Building Management and Community online forum for the exchange of information by End Users through use of the Online Service, including information relating to vendor services offered by third party vendors, Customers and MyBuilding.
1.7 “Property” or “Properties” – the building location(s) designated by Customer.
1.8. “Service Order Forms” – any order document generated by MyBuilding and executed by Customer and MyBuilding that incorporates by reference these Service Terms, including without limitation any Authorization Forms, Service Authorization Forms, and/or Service Order Forms.
1.9 “Services” – those Set up Services and Ongoing Services to be performed by MyBuilding for Customer as described in Section.
1.10. “Set Up Services” – those design, development, customization, deployment, and training services to be performed by MyBuilding for Customer in relation to the Online System.
2. Term; Payments
2.1. Effective Date; Termination. This Agreement shall become effective on the Effective Date and shall continue for the period specified in the Service Order Form or, if not so specified, for automatically recurring monthly terms until terminated (the “Term”). Either party may terminate this Agreement at any time upon thirty (30) days’ written notice. If Customer terminated, no prepaid fees will be refunded.
2.2. Payment Terms. MyBuilding shall invoice Customer in advance for the Online System as specified in Customer’s Subscription Order Form(s), or if not so specified then quarterly in advance. All amounts set forth no the invoice shall be due within thirty (30) days after Customer’s receipt of the invoice. Customer is responsible for paying all local, state, federal or foreign taxes, levies or duties of any nature.
2.3. Late Payments. If Customer fails to pay any fees within thirty (30) days after the date due, MyBuilding may levy late charges of the lesser of one percent (1%) per month or the maximum allowable under applicable law. In addition, failure of Customer to fully pay any undisputed fees within forty-five (45) days after the applicable due date shall be deemed a material breach of this Agreement, justifying suspension of Customer’s access to the Online System. Any such suspension does not relieve Customer from paying past due fees plus interest. In the event of collection enforcement, Customer shall be liable for any costs associated with such collection, including legal costs, attorneys’ fees, court costs and collection agency fees.
2.4. Termination for Cause. Either party may terminate this Agreement immediately in the event that: (a) the other party materially breaches any of its representations, warranties or obligations under this Agreement, and such breach is not cured within thirty (30) days after receipt of notice specifying the breach; or (b) the other party (i) institutes bankruptcy or similar proceedings, or files for a stay of proceedings or similar relief, (ii) has bankruptcy or similar proceedings instituted against it, and such proceedings are not stayed or dismissed within thirty (30) days; (iii) makes an assignment of property or assets for the benefit of its creditors, or (iv) becomes insolvent, or has a liquidator, receiver, manager or administrative receiver appointed. Upon any such termination of this Agreement under this Section, Customer shall pay all unpaid and outstanding fees through the effective date of termination. If Customer terminated for cause this Section 2.4, MyBuilding will refund a prorated portion of any fees paid in advance.
3. Licenses; Ownership; Availability; Third-Party Services
3.1. Limited License. In consideration of Customer’s performance of the obligations under this Agreement, including Customer’s payment obligations, MyBuilding grants Customer a limited, non-transferable, non-exclusive, revocable right, for the Term, for Customer and End Users to access and use the Online System as part of the provision of the Online Service to which Customer has subscribed.
3.2. License Restrictions. Customer may not reverse engineer, decompile, or disassemble the Online Services, Online System or any part thereof, or copy any concepts, ideas or techniques demonstrated by the use thereof, or attempt to do any of the foregoing. Customer will have no right to sell, lease, or sublicense, or otherwise make the Online Services, Online System available to any third party other than End Users without the express written consent of MyBuilding.
3.3. Use by Affiliates. Is Customer wishes to permit its Affiliates to use the Online System, and MyBuilding approves such use, Customer and such Affiliate shall execute MyBuilding’s Service Order Form. Customer shall remain solely liable for such Affiliates’ acts, omissions and usage of the Online System.
3.4. Ownership. MyBuilding reserves all rights, title and interest in and to the Online Services, Online System and any deliverable provided to Customer pursuant to this Agreement (the “MyBuilding Proprietary Materials”). Customer acknowledges that the MyBuilding Proprietary Materials, all enhancements, corrections and modifications thereto, all intellectual property rights protecting or pertaining to any aspect thereof, and all goodwill associated therewith, are and shall remain the sole and exclusive property of MyBuilding and, where applicable, MyBuilding’s licensors. This Agreement does not convey title or ownership to Customer or any other third party, but instead gives Customer only the limited rights set forth in the Section 3.
3.5. Availability. Subject to the terms and conditions of this Agreement, MyBuilding shall use its commercially reasonable efforts to make the Online System available for use by End Users twenty-four (24) hours a day, seven (7) days a week throughout the Term. Customer acknowledges that from time to time the Online System may be inaccessible or inoperable for various reasons, including periodic maintenance procedures or upgrades by MyBuilding or third party service providers (“Scheduled Downtime”); malfunctions and errors; and causes beyond the control of MyBuilding or which are not reasonably foreseeable by MyBuilding, including the interruption of failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures (collectively “Downtime”). My Building shall use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the Online System in connection with either Downtime or Scheduled Downtime. In the event that the Online System had an uptime availability of 95% or less, then upon written request by Customer, MyBuilding will refund a percentage of Customer’s monthly fee equal to the Downtime percentage (e.g., if the uptime availability in a month is 90%, Customer will be entitled to receive a 10% refund on the following month’s payment). Such refund will be Customer’s sole remedy for a breach of this Section 3.5.
3.6. Advertising. Customer understands that MyBuilding may include on the Online System and in emails generated through the Online System advertising and promotion materials of MyBuilding and third parties. Such advertising and promotional materials shall not contain any profane or offensive materials.
3.7. Third Party Services. Customer acknowledges that the Online System contains information about third parties or links to other web sites belonging to third parties (“Third Party Services”). Third Party Services are not investigated, monitored or checked for accuracy, appropriateness, or completeness by MyBuilding, and MyBuilding is not responsible for the delivery, provision or any other activities related to the Third Party Services.
4. Modification of Online Services or Online System
MyBuilding reserves the right to modify or terminate any or all portions of the Online Services of Online System with or without cause at any time and effective immediately (provided that MyBuilding will not change the Online Services of Online System in a way that materially diminishes its functionality or performance). Should Customer object to any modifications to the Online Services or Online System or become dissatisfied with the Online Services or Online System in any way, Customer’s only recourse is to terminate its use of the Online Services or Online System.
5. Customer Obligations
5.1. Content Ownership. Customer grants MyBuilding , at no cost to MyBuilding, a perpetual, irrevocable, royalty-free, worldwide, non-exclusive right and license, to modify, use, or create derivate works of the Customer Content, as necessary to perform the Services, and to use and display the same on and in connection with the Online Services for use with the Online System and as otherwise provided herein. All rights , title and interest in and to any Customer Content is and will remain with Customer and its licensors, and except as expressly provided herein, MyBuilding shall have no rights, title, or interest in or to the Customer Content. MyBuilding may access, use, extract, aggregate, compile, reproduce, modify, adapt, create derivative works from, sublicense, distribute, display, store, transmit to a MyBuilding Affiliate, or incorporate in other works in any form, media, or technology now known or later developed the Customer Content for the (i) support and provision of any product or service purchased by or provided to Customer under this Agreement or any other agreement between Customer and MyBuilding or its Affiliates (a “MyBuilding Party”) and all other uses necessary for a MyBuilding Party; (iii) internal statistical analysis regarding Customer Content in summary and benchmark reports. “Aggregated Form” means that Customer Content shall be combined with other data in such a manner that Customer and End User cannot reasonably be identified.
5.2. Usage Restrictions. Customer will not (and shall ensure that End Users employed by Customer will not use the Online System.
• in a manner that is illegal under or otherwise violates any local, state, national or international law or would constitute, encourage or provide instructions for a criminal offense (including, without limitation, the CAN-SPAM Act); • to violate the rights of any party (including without limitation rights of privacy and publicity); • to post content that is obscene, lewd, lascivious, violent, or otherwise objectionable; • in a manner that victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability; • to display material that exploits children, or otherwise exploits children under 18 years of age; • in a manner that is unsolicited or unauthorized, including advertising, solicitations, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation; • to display private information of a third party, including, without limitation, address, phone mumbers, email addresses, Social Security numbers and credit card numbers; •in a way that, in our sole judgment, is objectionable or which restricts or inhibits any other person from using or enjoying the Online System, or which may expose MyBuilding or its users to any harm or liability of any type.
MyBuilding does not control and is not responsible for what users contribute to the Online System and is not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content that may be distributed through the Online System. MyBuilding is not responsible for the conduct, whether online or offline, of any user of the Online System.
5.3. Retention of Customer Content. Customer acknowledges and agrees that MyBuilding has no obligation to retain Customer Content after the expiration or termination of the Term, and that such Customer Content may be irretrievably deleted after such expiration or termination.
6. Warranties and Disclaimers
6.1. MyBuilding Warranties. MyBuilding warrants that during the term, the Online System will operate substantially in accordance with the provisions of Section 3.5. If, during the Term, Customer notifies MyBuilding of any material non-conformity with respect to the Online System Mybuilding’s sole obligation under such warranty and Customer’s sole remedy shall be for MyBuilding to use commercially reasonable efforts to remedy such non-conformity.
6.2. Disclaimer. EXCEPT AS SET FORTH IN SECTION 6.1, THE ONLINE SERVICES, ONLINE SYSTEM, AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF THE ONLINE SERVICES, ONLINE SYSTEM, AND SERVICES ARE AT ITS OWN RISK . MYBUILDING DOES NOT WARRANT THAT THE ONLINE SERVICES, ONLINE SYSTEM, AND SERVICES PROVIDED HEREUNDER WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. MYBUILDING DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM THE ONLINE SERVICES OR OTHER PORTIONS OF THE INTERNET. SUCH FLOW IS DEPENDENT UPON THE PERFORMANCE OF INTERNET SERVIES PROVIDED OR CONTROLLED BY THIRD PARTIES AND CUSTOMER ACKNOWLEDGES AND AGREES THAT INTERNET SERVICES ARE BEYOND THE CONTROL OF MYBUILDING.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT AND THE EXHIBITS ATTACHED HERETO, THERE ARE NO WARRANTIES, EXPRESS OF IMPLIED, BY OPERATION OF LAW OR OTHERWISE.MYBUILDING DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE.
6.3. No Warranties for Third Party Services or Equipment. MyBuilding does not guarantee the quality of services rendered by vendors listed on the Online System. MyBuilding may provide certain third party equipment to Customer as part of the Online System. Such equipment is provided “AS IS”, with no warranties from MyBuilding. MyBuilding will not be liable to Customer or any End User, building personnel or other third party for any losses, damaged, costs or expenses arising out of or related to such third party services or equipment.
7.1. Customer Indemnity.
7.1.1. Customer agrees to indemnify and hold MyBuilding, its Affiliates and vendors, and their respective officers, directors, members, employees, representatives and agents (the “Indemnified Parties”) harmless from and against any claim, loss, damage, liability, cost and expense (including reasonable attorney’s fees) (“Claims”) incurred by an Indemnified Party asserted against any of them by third parties, including End Users, which arises out of or is connected with (a) Customer’s use of the Online Services and/or Online System and/or (b) Customer Content provided for use in connection with the Online System.
7.1.2. The indemnification obligations of Customer hereunder are dependent upon MyBuilding giving Customer prompt written notice of such claim.
7.2. MyBuilding Indemnity
7.2.1. MyBuilding agrees to defend and indemnify Customer against any third party claim that Customer’s use of the Online Services, Online System, or Services in accordance with this Agreement (but excluding any Customer Content) directly violates, infringes, or misappropriates any United States patent issued as of the date of the corresponding Service Order Form, or any copyright or trademark (an “Infringement Claim”). Without prejudice to such indemnity obiligations, MyBuilding may, at its sole discretion, and option: (a) obtain the right of continued use of such service or the Online Services, Online System, or Service being the subject matter of the Infringement Claim; (b) replace or modify same to avoif such Infringement Claim; or (c) terminate this Agreement by notifying Customer in writing and refunding to Customer any prepaid fees.
7.2.2. MyBuilding will not defend or indemnify Customer is any Infringement Claim (a) is asserted by an Affiliate of Customer, (b) results from use of the Online Services or Online System in combination with any non-MyBuilding service or product to the extent that such Infringement Claim would not have been caused but for such combination, or (c) is based in whole or in part upon any Customer Content, to the extent that such Infringement Claim would not have been brought but for such Customer Content.
7.2.3. The indemnification obligations of MyBuilding hereunder are dependent upon Customer: (a) giving MyBuilding prompt written notice of such Infringement Claim, (b) permitting MyBuilding to defend or settle the Infringement Claim, (c) not at any time admitting liability in respect of the whole or any part of the Infringement Claim or agreeing to settle or dispose of the Infringement Claim, and (b) providing all reasonable assistance to MyBuilding in defending or settling the Infringement Claim.
7.2.4. This Section 7.2 states the entire liability of MyBuilding and Customer’s sole and exclusive remedies for any Infringement Claim.
8. Confidential Information
“Confidential Information” means non-public, confidential or proprietary information created or acquired by a party, including products, product designs, product data, product source code, trade secrets, pricing and discounts, supplier lists, network structure and addresses, IP addresses and other computer and network related information, any other data whether written, verbal or visual, connected to or related to the business and affairs of a party or any of its affiliated, and the form and substance of this Agreement; provided, however, the Confidential Information does not include information that (i) is or becomes generally available to the public other than as a result of disclosure by the recipient or anyone to whom the recipient transmits the information, (ii) becomes available to the recipient on a non-confidential basis from a source other than the disclosing party who, to the recipient’s knowledge, is not bound by a confidentiality agreement with the disclosing party, (iii) was rightfully known to the recipient or in its possession prior to the date of disclosure by the disclosing party, or (iv) is independently developed by the recipient without benefit of or reference to the Confidential Information. No party will publish, disclose, copy, disseminate or in any manner utilize Confidential Information of the other party in its business or otherwise, for any purpose other than as contemplated herein unless compelled to do so by subpoena or compliance with other applicable law, prompt prior notice of which will be given to the other party. However, a party may disclose the other party’s Confidential Information to any of its affiliates, provided the disclosing party shall remain liable for such affiliate’s use of the Confidential Information. Each party shall use commercially reasonable efforts to protect and prevent disclosure of another party’s Confidential Information. Upon request, the recipient of Confidential Information will return all copies, written, photographic or otherwise duplicated to the owner and will not in any manner use, convey, disclose or disseminate such Confidential Information for any purpose whatsoever, except as otherwise provided herein or required by applicable law.
9. Force Majeure
MyBuilding shall be executed from performance hereunder for the period of time and to the extent that MyBuilding is prevented from performing Services or providing the Online System, in whole or in part, as a result of delays caused by Customer, an act of God, war, civil disturbance, court order, labor dispute, third party non-performance or other cause beyond MyBuilding’s reasonable control, including failures or fluctuations in electrical power, heat, light, air conditioning or telecommunications equipment and such non-performance due to the force majeure event alone shall not be a default or a ground for termination.
10. Limitation of Liability
THE ENTIRE LIABILITY OF MYBUILDING AND CUSTOMER’S EXCLUSIVE REMEDY FOR DAMAGES FROM ANY CAUSE RELATING TO OR ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT IN TORT, WILL NOT EXCEED THE FEES ACTUALLY RECEIVED BY MYBUILDING FROM CUSTOMER IN THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE.
UNDER NO CIRCUMSTANCES SHALL MYBUILDING BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LOST PROFITS, OR LOST DATA ARISING FROM ANY CLAIM RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF MYBUILDING OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE).
THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages so some of the above limitations may not apply to Customer.
THE PARTIES ACKNOWLEDGE THAT MYBUILDING HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
All notices required by this Agreement to be given to Customer shall be sent to the address provided when Customer registers for the Online System.
All notices to be given to MyBuilding will be sent to;
130 West 25th Street, Suite 4C
New York, NY 10001
All notices required under this Agreement will be sent by certified or registered mail, confirmed facsimile or e-mail with confirmed read receipt. MyBuilding may send out general notices to all customers via e-mail or other electronic communication.
12. Dispute Resolution
In the event of any dispute or controversy between the parties hereto of any kind or nature, upon the written request of either party, each of the parties will appoint a designated officer whose task it will be to meet for the purpose of resolving such dispute or controversy or to negotiate for an adjustment to such provision of this Agreement. Such officers will discuss the dispute or controversy and negotiate in good faith in an effort to resolve the dispute or controversy or renegotiate the applicable section or provision without the necessity of any formal proceeding relating thereto. No formal proceedings for the judicial resolution of such dispute or controversy may be commenced until either or both of the designated officers conclude in good faith that amicable resolution through continued negotiation of the matter in issue is not likely to occur.
13. End User Privacy
14. Other Provisions
14.1. Survival. The following Sections shall survive any expiration or termination of this Agreement: 1 (Definitions), 2.2 (Payment Terms), 3.4 (Ownership), 5.1 Content Ownership), 5.3 (Retention of Customer Content), 6 (Warranties and Disclaimers), 7 (Indemnification), 8 (Confidential Information), 10 (Limitation of Liability), 11 (Notices), 12 (Dispute Resolution), and 14 (Other Provisions).
14.2. No Waiver. Any failure or delay by either party in exercising any right or remedy will not constitute a waiver.
14.3. Governing Law. This Agreement will be governed by the laws of the State of New York, without giving effect to its conflict of laws principles.
14.4. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior proposals and agreements, both written and oral and all other written and oral communications between the parties.
14.5. Assignment. MyBuilding may subcontract any services described in this Agreement to third parties selected by MyBuilding provided that MyBuilding remains liable as stated in this Agreement. Neither party may assign or transfer its rights or obligations under this Agreement without prior written consent of the other party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement (i) to an affiliate or subsidiary of such party, (ii) to an entity resulting from the consolidation or merger of such party with or into another entity, or (iii) to any entity which acquires a majority of such party’s issued and outstanding capital stock or substantially all of such party’s assets. Any assignment or transfer prohibited by this provision will be void.
14.6. Severability. Each paragraph and provision of this Agreement is severable and, if one or more paragraphs or provisions are declared invalid, the remaining provisions of this Agreement will remain in full force and effect.
14.7. Authorization. Each party hereto separately represents and warrants to the other party hereto that it has full corporate power and authority to enter into this Agreement and that the execution and delivery of this Agreement and the carrying out of the transactions contemplated by it have been duly and validly authorized by all necessary corporate action and do not violate any provision of its charter, certificate of incorporation or by laws.
14.8. Independent Parties. MyBuilding, in furnishing the Online Services, Online System and Services to Customer, is acting only as an independent contractor. Except where this Agreement expressly provides otherwise, MyBuilding does not undertake by this Agreement of otherwise to perform any obligation of Customer, whether regulatory or contractual, or to assume any responsibility for Customer’s business or operations.
14.9. Acknowledgement by Customer. By using the Online Services or Online System, Customer acknowledged that it has read and understands this Agreement and is not entering into this Agreement on the basis of any representations not expressly set forth herein.
15. International Access & Exports Controls
You may not access, download, use or export the MyBuilding Online System or Services, or the Content provided on or through the System or Services, in violation of U.S. export laws or regulations, or in violation of any other applicable laws or regulations. You agree to comply with all export laws, restrictions and regulations of any United States or applicable agency or authority, and to not directly or indirectly provide or otherwise make available any services and products of Instamanager in violation of any such restrictions, laws or regulations. As applicable, you shall obtain and bear all expenses related to any necessary licenses, authorizations, and/or exemptions with respect to your own house use of the MyBuilding Online System or Service outside the U.S. neither the Services nor System of MyBuilding nor the underlying information or technology may be downloaded or otherwise provided or made available, either directly or indirectly, into any country subject to U.S. trade sanctions, (Supplement No. 1 to Part 740, Export Administration Regulations, Country Group E:1), to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions. By agreeing to these Terms & Conditions, you agree to the foregoing and represent and warrant that you are not located in, under the control of, or national or resident of any such country or on any such list.