Original version February 8, 2015
The terms of this User Agreement (“Terms of Service”, “Terms”, or “Agreement”) govern our relationship and constitute a legal agreement between you and BuildEye, a Belgian corporation (hereinafter “BuildEye”, “us”, “we”, “our”, or any other variation thereof), regarding your use of BuildEye software application and related services.
As used in this Agreement, the term “Service(s)” includes all services, applications or websites (namely www.build-eye.com), including the content, pages or processes within each such services, or websites involved in the offering of the BuildEye application and website (collectively, the “Service”). As used in these Terms of Service, the words “you” and “your” refer to you, the user of BuildEye’s application and website, as the party agreeing to these Terms of Service.
I. ACCEPTANCE OF TERMS
We may amend this Agreement from time to time by posting a revised version on our website at www.build-eye.com, within the Service, or by sending you an electronic communication to your primary contact information. The revised version will be effective at the time it is posted unless a delayed effective date is expressly stated in the revision. Continued use of the Service after posting of an amended Agreement will constitute your agreement to such amendments. Further, we may, from time to time, revise or update the Service and/or related applications or material, which may render all such prior versions obsolete. Consequently, we reserve the right to terminate this Agreement as to all such prior versions of the Service, and/or related applications and material and limit access to only the Service’s more recent revisions and updates. We also reserve the right to terminate the Service in its entirety. If you do not accept an amendment made to this Agreement, your sole and exclusive remedy is to not use the Service.
Third Party Service Providers. Information provided by our users through the Service may contain content and links to third party websites that are not owned or controlled by BuildEye. We have no control over, and assume no responsibility for, the content, privacy policies, or practices of any third party websites that are not articulated within these Terms. In addition, BuildEye will not and cannot censor or edit the content of any third-party site. By using the Service, you expressly acknowledge and agree that BuildEye shall not be responsible for any damages, claims or other liability arising from or related to your use of any third-party website.
Electronic Communication. By using this Service, you authorize us to send or provide by electronic communication, including by e-mail address, phone number, or SMS text messaging, any notice, communication, amendment or replacement to the Agreement, or any disclosure required to be provided orally or in writing to you. You agree to receive any communication sent by us to the primary contact information you provided to us and you will not attempt to avoid receiving any such communication. You are deemed to have received any electronic communication provided to you when they are made available to you. Depending on your activities when using the Service, you may be required to agree to additional terms and conditions as indicated on the applicable website or via the particular Service. Additionally, you agree to indemnify, defend and hold us harmless from and against any and all claims, losses, liability, cost and expenses (including reasonable attorneys’ fees) arising from your provision of a phone number, e-mail address, or other delivery method or address that is not your own, as well as your violation of applicable federal, state or local law, regulation or ordinance. Your obligation under this paragraph shall survive termination of the Agreement.
We reserve the right to close your Account if you withdraw your consent to receive electronic communications. “Account” means a registered user profile account that enables you to access and use the Service. You may opt out of receiving marketing messages from us by clicking on the link to unsubscribe; however you may not opt out of receiving transactional messages such as your payment confirmation and notices. You may stop receiving text messages from us at any time by replying “STOP” to any text message you receive from us. For additional assistance, please contact BuildEye customer service regarding your use of the Service at email@example.com.
Change of Address. You agree to tell us immediately if your postal address, phone number or email address changes. If you do not notify us about an address change, information regarding your Account may be given to the wrong person. Any notice we send to you shall be deemed delivered three (3) business days after mailing it to the last postal address you provided for your Account.
Notices to BuildEye. Except as otherwise stated herein, notice to us must be sent by postal mail to our corporate headquarters to the attention of our legal department, which is currently: BuildEye, Attention: Legal Department, Jennekensstraat 47, 3150 Haacht, Belgium.
Equipment Used to Access the Service. The Service is available to individuals who own or have access to compatible equipment. You are responsible for providing the Equipment. For the purpose of this Agreement, “Equipment” shall mean any hardware, software or networks associated with delivering you the Service, including, but not limited to, your mobile device or computer.
The Service may not work with all Equipment. If you use the Service, you are solely responsible for any and all charges, including fees that your wireless service provider or other third party charges for text messaging and data services. We are not responsible for the Equipment you use in accessing and using the Service.
The Service is available through your Equipment when your Equipment can successfully access the Internet. The Service is subject to transmission limitation or interruption for any of several reasons, including, without limitation, the malfunction of Equipment, periodic updating, maintenance or repair of the Service or the financial services networks maintained by third parties, or other actions that we, in our sole discretion, may elect to take. We do not guarantee that the Service (or any portion thereof) will be available at all times and/or in all areas. By using the Service, you acknowledge and agree that we are not responsible for performance degradation, interruption or delays due to conditions attributable to the Equipment you use to access the Service.
II. ACCESS TO THE SERVICE
In order to access and use the features of the Service, you acknowledge and agree that you will have to provide BuildEye with the required and/or requested information. If you provide your phone number, you expressly acknowledge and agree that BuildEye may periodically access your contact list and/or address book on your mobile device to find and keep track of mobile phone numbers of other users of the Service. By accessing the Service, you hereby give your express consent to BuildEye to access your contact list and/or address book for mobile phone numbers.
Your Account. You may register to use the Service by creating an Account by using your email address as your username and creating a password. Creating an Account allows you to access and use the features offered by the Service. You will be asked to enter your information including, but not limited to your email address, name, address, and telephone number.
Authorized Users. As stated earlier, once you agree to these Terms and create an Account, you are registered as an authorized user of the Service. You are solely responsible for the activity that occurs under your Account; and will be liable for all activities, transactions, and fees arising from your use of the Service and any use of your Account.
Unauthorized Use. In order to avoid unauthorized use of your Account, you agree not to provide access to your Account or share your password and username to any third party. If you permit another person to use or initiate activities and transactions using your Account, you will be responsible for any activity or transactions made and any fees incurred by such person. You will be liable for these transactions and fees even if the person that you permitted to use your Account exceeds the scope of the authority that you gave (such as if you authorized the person to make one payment for a specified amount, but the person disregarded your instructions and made a payment for a higher amount). Further, you acknowledge and agree that you will not hold us responsible for, and will indemnify us from, any liability arising from the actions or inactions of any third party in connection with the permissions you grant. You acknowledge and agree that any use of your Account and the Services shall be deemed to be your actions and that we may rely upon such actions. You are solely responsible for protecting the security of your Account and the Services.
You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” etc. or “load testers” that accesses the Service in a manner that sends more request messages to the BuildEye servers in a given period of time than a human can reasonably produce in the same period by using the BuildEye application, and you are forbidden from replicating the content unless specifically allowed. You may not reverse-engineer our system or our protocols. You may not explore, harm, penetrate or test the Services. You must secure our permission before you measure, test or otherwise monitor any network equipment, servers or assets hosted on our domain. You agree not to collect any personally identifiable information, including phone number, from the Service, nor to use the communication systems provided by the Service for any commercial solicitation or spam purposes. You agree not to spam, or solicit for commercial purposes, any users of the Service.
III. TRANSACTION RECORDS, & INFORMATION SECURITY
Confidentiality and Disclosure of Information. For information about our data protection practices, please read our privacy notice, located here, which is hereby incorporated into this Agreement. This policy explains how we treat your personal information when you access the Service and use the payment services. The policy may be updated from time to time at our discretion. Changes will be effective upon posting to the website.
We may disclose information to third parties about your Account, and transactions: (i) where it is necessary for completing transactions; (ii) as necessary in connection with offering the Service, (iii) in connection with the investigation of any claim related to your Account or the payment you send;(iv) in order to verify your identity; (v) in order to comply with government agency or court orders; (vi) if you give us your written permission; or (v) in accordance with our privacy notice, which can be found on our website here.
Our privacy notice includes more detailed information about our sharing practices and your right to opt-out of certain information sharing.
Accuracy of Records. Accurate records and account information enable us to provide the Service to you. You must provide true, accurate, current, and complete information about your accounts maintained at third party websites, and you may not misrepresent any Account information. In order for the Service to function effectively, you must also keep your Account information up to date and accurate. If you do not do this, the accuracy and effectiveness of the Service provided to you will be affected. You represent that you are a legal owner of, and that you are authorized to provide us with all Account information and other information necessary to facilitate your use of the Services.
Password Security and Keeping Your Email and Address Current. You are responsible for maintaining adequate security and control of any and all IDs, passwords, personal identification numbers (PINs), or any other codes that you use to access the Account and Services. You are responsible for keeping your mailing address and email address up to date in your Account profile.
Fraud Abuse. Notify us immediately if you believe your password or mobile device has been lost or stolen, or if you believe that a payment has been made without your permission. Also, if your bank or funding source statement shows payments that you did not make, including those made by card, code or other means, notify us immediately. By using the Service, you agree to immediately notify us if you suspect or discover fraudulent or abusive activity. If you so notify us, or we otherwise suspect fraudulent or abusive activity, you agree to cooperate with us in any fraud investigation and to use any fraud prevention measures we prescribe. Your failure to cooperate or to use such measures will result in your liability for all fraudulent usage or abusive activity associated with your use of the Service. In order to prevent financial loss to you or to us, we may contact your payment method issuer, law enforcement, or affected third parties (including other users) and share details of any payments you are associated with, if we believe doing so may prevent financial loss or a violation of law.
IV. RESTRICTED ACTIVITIES, ACCOUNT SUSPENSION & CLOSURE
Restricted/Prohibited Activities. In connection with your use of our Service, your Account, or in the course of your interactions with us, other users, or third parties affiliated with the Service you represent and agree you will not:
a. Breach this Agreement or any other agreement or policy that you have agreed to with us;
b. Violate any applicable law, including but not limited to any law, statute, ordinance, or regulation (for example, those governing financial services, consumer protections, unfair competition, anti-discrimination or false advertising);
c. Infringe our or any of our affiliates or partners’ copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy;
d. Act in a manner that is defamatory, offensive, trade libelous, threatening or harassing;
e. Provide false, inaccurate or misleading information;
f. Send or receive what we reasonably believe to be potentially fraudulent or illegal funds;
g. Refuse to cooperate in an investigation or provide confirmation of your identity or any information we request to validate your identity;
h. Attempt to “double dip” during the course of a dispute by receiving or attempting to receive funds from us and/or payment method provider, or any other third party involved in the same transaction;
i. Control an Account that is related to another Account that has engaged in any of these Restricted Activities;
j. Conduct yourself or use the Services in a manner that results in or may result in complaints, disputes, claims, reversals, chargebacks, fees, fines, penalties and other liability to us, other users, third parties or you;
k. Engage in or furtherance of debt collection activities;
l. Access the Services from a country that is not permitted by us;
m. Using any unacceptable payment method to send or receive a payment;
n. Abuse or manipulation of any promotional code provided for use within the Service.
o. Take any action that imposes an unreasonable or disproportionately large load on our infrastructure; facilitate any viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or Information; use an anonymizing proxy; use any robot, spider, other automatic device, or manual process to monitor or copy our website without our prior written permission; or use any device, software or routine to bypass our robot exclusion headers, or interfere or attempt to interfere with our website or the Services; or
p. Take any action that may cause us to lose any of the services from our internet service providers, payment processors, or other suppliers.
If you breach these restrictions or permit others to do so or conduct (or attempt to conduct) any transactions that we believe are not permitted by this Agreement (such as one of the activities set forth above) or applicable law, we may, at our sole discretion and without waiving any of our rights, freeze, close, cancel, suspend, or limit your use of your Account, the Service, and/or your access to the Service.
Closing Your Account. You may close or delete your Account at anytime within the Service. Upon Account closure, we will attempt to complete any pending transactions, unless otherwise legally prohibited. When you close your Account you will no longer be able to access or use the Service using that Account and you will not receive a refund of any service fees or balances. Additionally, by closing your Account, either by you or us, you will not be cancelling any payments that have already been delivered or we have begun to process. Upon closure of your Account, you must immediately discontinue use of your Account. Closure of your Account will not affect your obligations under this Agreement.
Limitations on Closing Your Account. You may not close your Account to evade an investigation. If you attempt to close your Account while we are conducting an investigation, we may hold your funds for up to 90 Days to protect us, our affiliates, or a third party against the risk of reversals, chargebacks, claims, fees, fines, penalties and other liability. You will remain liable for all obligations related to your Account even after the Account is closed. After the closure of your Account, the transaction history will be available by calling customer service for 60 days from the date of closure.
V. MISCELLANEOUS TERMS
Termination. This Agreement is in effect each time you use the Service and shall govern your use of the Service. We may terminate or suspend your use of the Service at any time without cause or prior notice. Termination of this Agreement shall not affect your liability or obligations incurred or arising prior to the termination. Following termination of this Agreement, we will only retain and use your Content in accordance with these Terms, specifically the BuildEye Privacy Notice. We do not guarantee that we will be able to return any of your Content back to you and we may permanently delete your Content without notice to you at any time after termination.
BuildEye’s Intellectual Property Rights. BuildEye, the BuildEye logo, text scripts, graphics, and interactive features are service/trademarks of BuildEye, Inc. All other featured logos are service/trademarks of their respective owners.
You acknowledge and agree that contents of the Service, including its “look and feel” (e.g., text, graphics, images, logos and button icons), photographs, editorial content, notices, software (including html-based computer programs) and other material used by us for the Service, are proprietary to us and our licensors and protected under both United States and other applicable copyright, trademark and other laws. As such, you will not gain any ownership or other right, title or interest in or to them by reason of this Agreement or otherwise.
License Grant. You are granted a revocable non-exclusive, limited license or right to access the Service for use as prescribed herein. You agree not to use the Service for any other purpose, including, prohibited commercial purposes, such as co-branding, linking, or reselling any portion of the Service without our prior written consent. This license grant includes the software and all updates, upgrades, new versions and replacement software for your personal use only. You may not charge, resell, lease or otherwise transfer your rights in the software to a third party. You must comply with the implementation and use requirements contained in all our documentation accompanying the Services. If you do not comply with our implementation and use requirements you will be liable for all resulting damages suffered by you, us and third parties. You agree not to alter, reproduce, duplicate, adapt, distribute, display, publish, reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code which is derived from the software. You acknowledge that all rights, title and interest to the Services are owned by us.
No Warranties. THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION OF WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. BUILDEYE, OUR PARENT, THE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURES, EMPLOYEES AND SUPPLIERS OF BUILDEYE SPECIFICALLY DISCLAIM ANY EXPRESSED OR IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT REGARDING THE SERVICES, THE SERVICE, THE PLATFORM, ACCOUNTS, PAYMENT TRANSFERS, ANY FEATURE THEREOF, OR ANY SUBJECT MATTER COVERED BY THE SUBSTANCE OF THIS AGREEMENT. BUILDEYE DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED, AND BUILDEYE DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED. WE WILL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, BUT NOT LIMITED TO, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF TRANSACTIONS OR USE OF THE SERVICE OR THE SERVICE. BUILDEYE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT THE CONTENT THAT MAY BE AVAILABLE THROUGH THE SERVICES IS FREE OF BUGS, DEFECTS, OR ERRORS, OR INFECTION FROM ANY VIRUSES OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, SURREPTITIOUSLY INTERCEPT, OR EXPROPRIATE ANY SYSTEM, DATA, OR PERSONAL INFORMATION. YOU SPECIFICALLY ACKNOWLEDGE THAT BUILDEYE SHALL NOT BE LIABLE FOR USER SUBMISSIONS, POSTS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
Limitation of Liability. IN NO EVENT SHALL WE, OUR PARENT, THE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURES, EMPLOYEES AND SUPPLIERS, DIRECT OR INDIRECT SUBSIDIARIES, AFFILIATES, AGENTS, EMPLOYEES OR REPRESENTATIVES BE LIABLE FOR ANY DAMAGE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE FOR ANY BREACH OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF BUSINESS OR GOODWILL, LOSS OF USE EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE OR ANY CLAIM BY ANY THIRD PARTY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, BUILDEYE’S LIABILITY TO YOU FOR ANY CAUSE WHATEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE PROCESSING FEES YOU HAVE PAID US REGARDING YOUR USE OF THE SERVICE AND SERVICES WE PROVIDE.
WE SHALL NOT BE LIABLE IF WE ARE UNABLE TO PROVIDE THE SERVICE (OR ANY PART THEREOF) OR PERFORM ANY OF OUR OBLIGATIONS CONTAINED IN THIS AGREEMENT DUE TO, DIRECTLY OR INDIRECTLY, THE FAILURE OF ANY EQUIPMENT OR ANY INDUSTRIAL DISPUTE, WAR, FLOOD, EXPLOSION, ACT OF GOD OR ANY OTHER EVENT BEYOND OUR CONTROL. NOTHING IN THIS AGREEMENT SHALL OPERATE SO AS TO EXCLUDE OR LIMIT OUR LIABILITY FOR ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.
Indemnity. You agree to defend, indemnify and hold harmless BuildEye, its respective financial institutions, merchants and their respective affiliates, advertising and promotion agencies and their service providers and all of their respective officers, directors, employees and agents (collectively, the “BuildEye Parties”) from any loss, liability, claim, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of the Service in violation of this Agreement or applicable law and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth herein.
Remedies Available to You. Your sole and exclusive remedy for any failure or non-performance of a Service, including any associated software or other materials supplied in connection with a Service, shall be for us to use commercially reasonable efforts to repair affected applicable Service. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or this Agreement must be filed within one year after such claim or cause of action arose or be forever barred.
Dispute Resolution. Any claim between you and us arising out of, or connected with this Agreement or the Service shall be resolved exclusively within the courts residing in Brussels, Belgium, and you waive any jurisdictional venue or inconvenient forum objections to such courts. Any claim between you and a third-party services provider shall be handled in accordance with the dispute resolution provisions of your agreement with them.
Contact Customer Service First. If a dispute arises between you and us, our goal is to learn about and address your concerns. Accordingly, if any dispute arises between you and us regarding the Services please report the dispute to customer service prior to escalating your Claim.
Arbitration. Any Claim shall be resolved by arbitration before a panel of three arbitrators who will be appointed and who will decide in accordance with the CEPANI rules of arbitration, then pertaining (available at www.cepani.be), except where those rules conflict with this provision, in which case this provision controls. The arbitration shall be conducted in the English language, in Brussels, Belgium. THE ARBITRATORS SHALL NOT AWARD EITHER PARTY PUNITIVE, EXEMPLARY, MULTIPLIED OR CONSEQUENTIAL DAMAGES, OR ATTORNEYS’ FEES OR COSTS. The Parties hereby agree and acknowledge that any award may be enforced by any court of competent jurisdiction.
No Waiver. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. You agree that if we do not exercise or enforce any legal right or remedy which is contained in the Agreement (or which BuildEye has the benefit of under any applicable law), this will not be taken to be a formal waiver of our rights and that those rights or remedies will still be available to us.
Assumption of Rights. If we pay out a claim, reversal or chargeback that you file against a recipient of your payment, you agree that BuildEye assumes your rights against the recipient and third parties related to the payment, and may pursue those rights directly or on your behalf, in BuildEye’s discretion.
Release of BuildEye. If you have a dispute with one or more users, you release us (and our parent, officers, directors, agents, joint ventures, employees and suppliers) from any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with such disputes. To the extent permitted by applicable law, you waive and release us from all defenses, rights, and claims you have or may have against us arising from or relating to this Agreement.
No Third Party Beneficiary Rights. You are not a direct part or third party beneficiary to any agreement with any payment processing partner or third party vendor used by BuildEye to provide the Services.
Attorneys’ Fees and Costs. Except as may be provided in this Agreement, you agree to pay all costs incurred by us or our successors or assigns in collecting unpaid indebtedness or in enforcing this Agreement, including attorneys’ fees and costs, as well as those costs, expenses and attorneys’ fees incurred in appellate, bankruptcy, and post-judgment proceedings, except to the extent such costs, fees, or expenses are prohibited by applicable law.
Void Where Prohibited. Not all services described in this Agreement are available to all persons or in all jurisdictions. We reserve the right in our sole discretion, to limit, restrict or prohibit the provision of any such services to any person or in any location. Any offer of a service in this Agreement shall be deemed void where prohibited.
Non-Assignability. You may not assign or transfer this Agreement or any of your rights, obligations, duties, responsibilities, or liabilities under this Agreement without our prior written consent, and any attempt to the contrary without our prior written consent shall be null and void. This Agreement shall be binding on you and your respective executors, administrators, and permitted assigns. We may assign all or portions of our rights and obligations under this Agreement without your approval to any entity which acquires all or substantially all of our assets or to any Affiliate or successor.
Severability. If any provision of this Agreement is determined to be invalid or unenforceable under any applicable law, the validity or enforceability of any other provision of this Agreement shall not be affected, and, in lieu of such invalid or unenforceable provision, there shall be added automatically, as part of this Agreement, a provision as similar in terms as may be valid and enforceable, if possible.
Survival. Any provision in this Agreement that provides for rights or remedies which by their nature should continue after termination of this Agreement will survive termination of this Agreement.
Complete Agreement. This Agreement, along with any applicable policies and agreements on terms and conditions may be found at www.build-eye.com, sets forth the entire understanding between you and us with respect to the Services.
Translated Agreement. Any translation of this Agreement is provided solely for your convenience and is not intended to modify the terms of this Agreement. In the event of a conflict between the English version of this Agreement and a version in a language other than English, the English version shall apply.