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NOTICE OF ARBITRATION AGREEMENT:
THIS AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER. IT REQUIRES THAT DISPUTES BE RESOLVED BY ARBITRATION, RATHER THAN CLASS ACTION LAWSUITS OR JURY TRIALS (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT). PLEASE SEE SECTION 10 FOR MORE INFORMATION.
Please review these terms and conditions of use (the "Terms and Conditions" or “Terms”) carefully before using "HomesBathrooms.com (the “Site”) and the various content, features, and services offered on and in connection with the Site (the “Services”) ). The Site and Brand are owned and operated by Instal US, LLC (“We”, “Us”, “Our”, or “Ours”) and, by accessing and using the site and the Services, you accept and agree to these Terms and Conditions. If you do not agree to these Terms and Conditions, you may not access or otherwise use the Site and the Services. You may only use the Site if you are domiciled in the United States and you are 18 years old or older.
1.1 The Site provides content and referrals related to home improvement and repair products, services, and professionals. The service provided by the Site is for general educational, informational, and research purposes only and is not an endorsement, recommendation, or guarantee of any service, product, or professional. No advice or information, whether oral or written, obtained by you from HomesBathrooms.com or through or from the service shall create any warranty of any kind.
1.2 HomesBathrooms.com is not involved in any transactions between you and a third party service provider who receive referrals as a result of information provided by you on the Site ("Contractor(s)"). In using HomesBathrooms.com's contractor matching service, you acknowledge that we are not acting as your general contractor, agent, or advisor. Therefore, it is a your sole responsibility to make whatever investigation a User deems necessary to select a Contractor and to negotiate the terms for any work performed. You may want to consult with appropriate expert advisors to assist in your home improvements, including a lawyer regarding contracts, permits, and other necessary job documentation and an insurance professional regarding the Contractor's and your own insurance coverage requirements.
1.3 We do not recommend or endorse any specific Contractor or service provider. HomesBathrooms.com has no control over the quality or legality of any services provided by the Contractors to the Users or the quality or suitability of a given Contractor for a given User. We receive a fee from Contractors listed in the Service. Your transactions with any Contractor are governed by a contract between you and Contractor. You agree that should you engage any Contractor, we are not responsible or liable, indirectly or directly, for any damage or loss caused or alleged to be caused by or in connection with such engagement. Contractor is responsible for complying with the applicable laws, including but not limited to federal and state Telephone Consumer Protection Act laws and data privacy laws, when dealing with you.
1.4 The materials provided by the Site are for convenience and information only. HomesBathrooms.com may post advertisements, paid content and other sponsored information on this Site or in email communications. The acceptance by HomesBathrooms.com of advertising is not intended as and does not in any manner constitute a recommendation, endorsement, or approval of third parties featured in such sponsored advertisement or information by HomesBathrooms.com. HomesBathrooms.com shall not be liable for any loss or damage of any sort incurred as a result of any dealings with any advertiser or as the result of the presence of such advertisers on the Site.
We may provide links or otherwise direct you to third party or Contractors’ websites. We do not control or operate any such third party or Contractors’ websites. Any information you provide to those third party or Contractor while on their websites is subject to the respective terms of those websites. It is your responsibility to review such third party or Contractors’ online terms, including any relevant privacy policies. You agree that we will not be responsible or liable for, and does not endorse any content, advertising, goods or services provided on or through these external websites or for your use or inability to use such websites. We do not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give to any third party or Contractors. You use these third party or Contractors’ websites at your own risk.
Although we do value your feedback on our Sites and Services, please be specific in your comments regarding our services and do not submit creative ideas, suggestions or materials. If, despite our request, you send us creative suggestions, ideas, drawings, concepts or other information, such Submissions will be our property. In addition, none of the User Submissions will be subject to any obligations of confidentiality and we will not be liable for any future use or disclosure of such Submissions.
“User Submissions” means all content submitted, posted, uploaded, published, or transmitted on or through the Site by any you, including but not limited to profile information, descriptions, postings, reviews, requests, messages, and payments made through the Platform, but excluding us Content and Feedback.
4.1 Your use of the Site and Services does not grant to you ownership of any content, code, data or materials you may access on the Site. Any commercial use or exploitation of the Site or Services is strictly prohibited. Subject to the terms herein, we grant you a nonexclusive, nontransferable, non-sublicensable, and revocable license to access and use the Site and Services for your personal use. You may not otherwise copy, reproduce, distribute, sell, modify or otherwise exploit the Site or Services or any of their content for any purpose except for your personal use in accordance with the Terms, Without our express written consent.
4.2 Third-party marks referenced on the Site are the property of their respective owners and are being used on the Site to refer to the third-party mark owners and their relevant products and services. Such usage does not imply endorsement of any such third-party mark owners.
5.1 You warrant and agree that, while using the Site, you shall not upload, post or transmit to or distribute or otherwise publish through the Site any materials that: (a) are protected by copyright, or other proprietary or intellectual property right, without first obtaining permission from the proprietary or intellectual property rights holder; (b) are untruthful, unlawful, threatening, harassing, profane, tortious, defamatory, vulgar, obscene, libelous, deceptive, fraudulent, contain explicit or graphic descriptions or accounts of sexual acts (including but not limited to sexual language of a violent or threatening nature directed at another individual or group of individuals), invasive of another’s privacy or hateful, (c) restrict or inhibit any other user from using and enjoying the Site, (d) constitute or encourage conduct that would constitute a criminal offense or give rise to civil liability, € contain a virus or other harmful component, advertising of any kind, or false or misleading indications of origin or statements of fact.
5.2 You also warrant and agree that you shall not: (a) impersonate any person or entity or misrepresent your affiliation with any other person or entity; (b) upload, post, publish, transmit, copy, reproduce, frame, distribute or in any way exploit any information or other material obtained through the Site for commercial purposes; (c) modify, translate into any language or computer language, or create derivative works from, any part of this Site; (d) reverse engineer any part of the Site; (e) sell, offer for sale, transfer, or license any portion of the Site in any form to any third parties; (f) engage in spamming, flooding, harvesting of e-mail addresses or other personal information, spidering, "screen scraping," "database scraping," or any other prohibited or inappropriate activity via the Site or Brand; (g) attempt to gain unauthorized access to other computer systems through the Site Or Brand, or (h) use or access the Site in any way that, in our sole discretion, adversely affects the performance or function of the Site or any other computer systems or networks used by us or the Site, or infringes on our copyright or any copyright of our Contractors; or (f) violate these Terms and any applicable local, state, national or international laws, rules and regulations
5.3. The Site and the Services should not be used by children under the age of 18. The Site is directed at adults and by accessing the Site, you are affirming that you are 18 years of age or older.
We reserve the right to modify, update, suspend or discontinue the Site and Services, in whole or in part, at our sole discretion for any reason or no reason, at any time and with or without notice. We shall not be liable to you or any third party for any such modification, update, suspension or discontinuance. From time to time, we may revise the Terms and Conditions effective upon posting the modified Terms and Conditions, with or without additional notice to you. Your continued access to and use of the Site and the Services constitutes your acceptance of such modified Terms and Conditions. It is your responsibility to check the Site regularly for modifications to the Terms.
THE SITEAND SERVICES ARE PROVIDED "AS IS," "AS AVAILABLE", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT ARE SPECIFICALLY DISCLAIMED WE DO NOT WARRANT THAT THE SITE OR THE SERVICESWILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. IF YOU ARE DISSATISFIED WITH THE SITE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITE. YOU SHOULD NOT RELY ON THE SITE TO MAINTAIN ANY USER SUBMISSION.
8.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL INSTALL US, LLC AND ITS AFFILIATESOR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, OR CONTENT OR SERVICE PROVIDERS (COLLECTIVELY, THE "PROTECTED ENTITIES") BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, (A) THE USE OF, OR THE INABILITY TO USE, THE SITE OR THE SERVICES, (B) THE SITE OR THE SERVICES, INLCUDING BUT NOT LIMITED TO THE CONTENT POSTED ON THE SITE, (C) ANY BREACH OF THESE TERMS BY US OR OUR FAILURE TO PROVIDE THE SERVICES, (D) THE COST OF ANY SERVICES PURCHASED AS A RESULT OF THE USER OF THE SERVICES, (E) DISCLOSURE OF, UNAUTHORIZED ACCESS TO YOUR INFORMATION OR CONTENT, , (F) ANY THIRD PARTY’S STATEMENTS OR CONDUCT, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, EVEN IF SUCH PROTECTED ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 IN NO EVENT WILL THE PROTECTED ENTITIES BE HELD LIABLE FOR ANY DAMAGE TO EQUIPMENT, HARDWARE OR OTHER PROPERTY OF YOURS OR PERSONAL INJURY THAT ARISES IN CONNECTION WITH USE OF THE SITES AND SERVICES.
8.3 IN NO EVENT WILL THE TOTAL, AGGREGATE LIABILITY OF THE PROTECTED ENTITIES, ARISING FROM OR RELATING TO THE TERMS, THE SITE AND THE SERVICES EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO US BY YOU HEREUNDER, OR ONE HUNDRED U.S. DOLLARS IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OR EXCLUSION OF LIABILITY, SO THE FOREGOING LIMITATION MAY NOT APPLY TO YOU. IN JURISDICTIONS THAT DO ALLOW LIMITATIONS OF LIABILITY, THE LIMITATION DESCRIBED ABOVE WILL APPLY FULLY TO RESIDENTS OF THOSE JURISDICTIONS.
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD harmless the Protected Entities FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, LOSSES, DEMANDS AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES AND COURT COSTS ARISING OUT OF, BASED ON OR IN CONNECTION WITH YOUR ACCESS AND/OR USE OF THE SITE AND SERVICES, VIOLATION OF THESE TERMS BY YOU, THE CONTENT OR OTHER INFORMATION SUBMITTED OR TRANSMITTED BY YOUR, ANY INTENTIONAL OR WILLFUL VIOLATION OF ANY RIGHTS OF ANOTHER OR HARM YOU HAVE CAUSED TO ANOTHER.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
10.1 Both parties agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.
This Section is intended to be interpreted broadly and governs any and all disputes between both parties, including but not limited to claims arising out of or relating to any aspect of the relationship between parties, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before this Agreement or any prior agreement (including, but not limited to, claims related to advertising); and claims that may arise after the termination of this Agreement. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
10.2 By agreeing to these Terms, you agree to resolve any and all disputes with us as follows:
a. Initial Dispute Resolution: To expedite resolution and reduce the cost of any dispute, controversy or claim, past, present, or future, between you and us, including without limitation any dispute or claim related to or arising out of this Agreement ("Dispute"), both parties may attempt to negotiate any Dispute informally (the "Informal Negotiations") before initiating any arbitration or court proceeding. Such Informal Negotiations will commence upon written notice. Your address for any notices under this Section is your physical address that you have provided to us. Our address for such notices is:
Instal US, LLC
1216 Broadway
New York, NY, 10001
United States
b. Binding Arbitration: If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time Informal Negotiated are initiated under the Initial Dispute Resolution provision above, both parties agree to resolve any and all Disputes (except those Disputes expressly excluded below) through final and binding arbitration ("Arbitration Agreement"). The arbitration will be commenced and conducted before a single arbitrator under the Commercial Arbitration Rules (the "AAA Rules") of the American Arbitration Association ("AAA") and, where appropriate, the AAA's Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available at the AAA website (www.adr.org). Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). If you are unable to pay such costs, we will pay all arbitration fees and expenses. Each party will pay the fees for his/her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law. The arbitrator will make a decision in writing. Additionally, the arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including but not limited to any claim that all or any part of these Terms or Privacy Policy is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. However, the preceding sentence shall not apply to the "Class Action Waiver" described in Subsection (4) below. The arbitrator will be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator's award will be written and will 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 arbitration 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.
If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing. For individuals residing outside the United States, arbitration will be initiated in the state of New York, United States. Both parties further agree to submit to the personal jurisdiction of any federal or state court in New York County, New York in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
10.3 A party who wishes to arbitrate a Dispute covered by this Arbitration Agreement must initiate an arbitration proceeding no later than the expiration of the statute of limitations that applicable law prescribes for the claim asserted. The arbitrator shall apply the statute of limitations that would have applied if the Dispute had been brought in court. The arbitrator may award any remedy to which a party is entitled under applicable law, but remedies shall be limited to those that would be available to a party in their individual capacity, and no remedies that otherwise would be available to an individual under applicable law will be forfeited. The arbitrator is without authority to apply any different substantive law. The parties have the right to conduct adequate civil discovery and present witnesses and evidence as needed to present their cases and defenses, and any dispute in this regard shall be decided by the arbitrator.
10.4 To fullest extent permitted by applicable law, both parties further agree that the arbitration will 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. BOTH PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above will be deemed null and void in their entirety and the parties will be deemed to have not agreed to arbitrate disputes.
10.5 Both parties agree that the following Disputes are excluded from this Arbitration Agreement: (1) any Dispute seeking to enforce or protect, or concerning the validity of, any of your or our intellectual property rights; (2) individual claims in small claims court; (3) any claim that an applicable federal statute expressly states cannot be arbitrated; and (4) any claim for injunctive relief.
10.6 30-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 above by sending (from the email address you use on your account) written notice of your decision to opt out to [email protected] with the subject line, "ARBITRATION AND CLASS ACTION WAIVER OPT-OUT." The notice must be sent within thirty (30) days of the later of the Effective Date of these Terms or your first use of the Platform; otherwise, you will be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt out of these arbitration provisions, we will not be bound by them, either.
10.7 Changes to This Section: we will provide thirty (30) days' notice of any changes affecting the substance of this Arbitration and Class Action Waiver section by posting on our Terms, sending you a message, or otherwise notifying you when you are logged into your account. Amendments will become effective thirty (30) days after they are posted on our Terms.
Changes to this section will otherwise apply prospectively only to claims arising after the 30th day. If a court or arbitrator decides that this subsection on "Changes to This Section" is not enforceable or valid, then this subsection will be severed from the section entitled “Arbitration and Class Action Waiver,” and the court or arbitrator will apply the first Arbitration and Class Action Waiver section in existence after you began using the Platform.
10.8 Survival: This Arbitration and Class Action Waiver section will survive any termination of your Account or the Platform.
You agree that all matters relating to your access to or use of the Site and Services, including all disputes, will be governed by the laws of the State of New York without regard to its conflicts of laws provisions. You agree to the personal jurisdiction by and venue in the state and federal courts in New York County, New York, and waive any objection to such jurisdiction or venue.
12.1 We may terminate your privilege to use or access the Sites and Services immediately and without notice for any reason whatsoever. Upon such termination, you must immediately cease accessing or using the Sites and Services. Furthermore, you acknowledge that in addition to and not in substitution for any other rights and remedies available to us, we reserve the right to take action -- technical, legal or otherwise -- to block, nullify or deny your ability to access the Sites and Services.
12.2 All provisions of these Terms which by their nature should survive termination shall survive the termination of your access to the Sites and Services, including, without limitation, provision regarding intellectual property, warranty disclaimers, indemnity, and limitations of liability.
These Terms constitute the entire agreement between you and us with regard to your use of the Site and Services, and any and all other written or oral agreements or understandings previously existing between you and us with respect to such use are hereby superseded and cancelled. Our failure to exercise or enforce any right or provision of the Terms and Conditions shall not constitute a waiver of such right or provision. If any provision of the Terms and Conditions is found by a court of competent jurisdiction to be invalid, the parties agree that that provision shall be limited or eliminated to the minimum extent necessary so as to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms and Conditions remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action by you arising out of or related to use of the Site or the Terms and Conditions must be filed by you within one (1) year after such claim or cause of action arose or be forever barred. If we are required to bring any action or suit to enforce your obligations hereunder or to pursue any remedies we may have for your violation of the Terms and Conditions, we shall be entitled to recover from you, in addition to any other rights and remedies we may have, all reasonable expenses and attorneys' fees for such suit and/or enforcement. You may not assign the Terms and Conditions or delegate any right hereunder without our prior written consent.