Last Revised: April 1, 2019
The website www.planomatic.com and mobile versions of the same (the “Website”) are operated by IPLAN, LLC d/b/a PlanOmatic, its parents, subsidiaries, affiliates, and third-party vendors, contractors or agents (collectively “PlanOmatic or “we” or “our” or “us”). The products and services offered by PlanOmatic, including without limitation, services offered through the Website and/or any software, code or applications related to the Website and the Photography Services as defined in the Standard Licensing Terms, shall be collectively referred to herein as the “Services.” By using the Services, in addition to and without limitation of any other electronic signatures you may provide, you agree to become a party to and legally bound by these Terms and Conditions, our Privacy Policy, our MSA and/or Standard Licensing Terms if applicable, and any invoices and supplemental notices or communications that we may send you (collectively referred to herein as the “Agreement”). IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MUST IMMEDIATELY STOP USING THE SERVICES. This Agreement constitutes a binding agreement between you and PlanOmatic. You must, if signing on behalf of another person or entity, be authorized by that person/entity to bind it/him/her to this Agreement, and you hereby agree that you are binding both that person/entity and yourself to this Agreement, and that both that person/entity and yourself shall be jointly and severally liable to PlanOmatic for any breach of this Agreement. In the event of conflict between the Agreement and a Master Services Agreement executed by and between you and PlanOmatic (a “MSA”), the terms of the MSA shall control.
In order to access some or all of the Services, we may require that you create an account (the “Account”) by registering directly with us. You agree to provide accurate and complete information when creating your Account, to update your information if and when changes occur, and that all communications, content, and information provided by you through the Account shall be accurate and complete. If you create an Account, you shall have sole responsibility for the Account and anyone using your login information to access your Account. You are responsible for preventing unauthorized use. Your Account may not be sold or transferred to another person. If anything fraudulent or otherwise illegal is done with your Account, we reserve the right to hold you liable for any and all damages we may suffer, either directly or as a result of action against us by a third party. We may terminate your Account at any time in the event of your breach of the Agreement, to be determined at PlanOmatic’s sole discretion. We also reserve the right to terminate our offering of the Services for any reason (or no reason).
As an express condition of using any of the Services, you represent and agree that you:
- have read and understand the Agreement;
- are 18 years of age or older;
- are a resident of the United States of America (USA) and are accessing the Services from the USA or, if you are not a resident of the USA and/or are accessing the Services from outside of the USA, you agree to waive any rights you may have under laws outside of the USA, including data privacy rights;
- are legally capable of entering into binding contracts;
- are not prohibited by law from using our Services and have not previously been
banned, terminated or otherwise denied access to our Services by us;
- are not acting on behalf of a person whose access to our Services has been
previously terminated or otherwise denied by us; and
- will comply with the Agreement.
PlanOmatic is granting you a limited license to access and to use the Services. The Website and all software and other technology used by PlanOmatic in providing the Services are private property owned by PlanOmatic. We may limit or deny your access and use of the Services, and may seek other remedies, at any time in our sole discretion, including without limitation if you engage in any illegal or improper conduct as judged by us in our sole discretion. The following actions (including all attempted actions) are prohibited and constitute a violation of this Agreement:
- Submitting false or inaccurate information;
- Committing illegal acts, including, without limitation, fraud with your account;
- Falsely disparaging or speaking badly about PlanOmatic, the Services, or any of
the businesses, entities or individuals related to the Services;
- Using the Services to harass or threaten another user using the Services;
- Using the Services to interfere with their functionality or solicit customers or
businesses in any way that might harm or interfere with the business interests of
PlanOmatic;
- Breaching security protocols and measures related to the Services or using the
Services to copy, store, host, transmit, send, use, publish or distribute any material that consists of or is linked to any spyware, computer virus, or other malicious computer software or to collect any personally identifiable information of the users of the Services, like names and email addresses, without such user’s written consent; and
- Attempting to use, copy, duplicate, aggregate, reverse engineer, steal or otherwise appropriate in an unauthorized way PlanOmatic’s or its licensors’ intellectual property and/or their logos, taglines, trademarks, service marks, copyrights and patents or the intellectual property, information or data of any third party.
Your privacy is an important concern of ours and we have created a Privacy Policy to explain how we protect your privacy. Please review the Privacy Policy posted on the Website at: https://www.planomatic.com. The Privacy Policy is incorporated herein by reference.
PlanOmatic may allow business owners to offer specials, services, products, promotions, and other items to customers by posting and/or displaying advertisements on our Services. The entity posting an advertisement is solely responsible for all goods and services it provides to the user and for any and all injuries, damages, claims, liabilities and costs it may cause the user to suffer, directly or indirectly, in full or in part. The advertisements are not created by or affiliated with PlanOmatic and PlanOmatic does not endorse any product or service advertised. PlanOmatic makes no representations or warranties regarding the accuracy, legality or genuineness of any advertisement. You hereby irrevocably waive all rights related to, and release PlanOmatic and its subsidiaries, affiliates, partners, owners, officers, managers, employees and agents from any liabilities arising from or related to any act or omission in connection with your use of any advertised product or service.
PlanOmatic retains all right, title and interest in and to the Services (including past, present and future versions) and all technology employed to manage and deliver the Services, including PlanOmatic’s proprietary online platform and all software, databases, algorithms, interactive floor plans, Photographic Content (which includes photographs and virtual staging of real property, and any other images or depictions created by PlanOmatic as part of the Services), 3D walkthroughs, and any other intellectual property, data or information related thereto, including enhancements, upgrades, and modifications, and all inventions, discoveries, or improvements, including patents, patent applications, and certificates of invention; trade secrets, know-how, or similar rights; the protection of works of authorship or expression, including copyright; trademarks, service marks, logos, trade dress and content that is included in, on or that is otherwise a part of the Services, but excluding User Content (defined below) belonging to you or other users (collectively the “PlanOmatic IP”). You acknowledge and agree that you neither own nor acquire any rights in and to the PlanOmatic IP not expressly granted by this Agreement and that your use of the Services is pursuant to this scope of licensed use. Any invention created by exploitation of the PlanOmatic IP shall automatically transfer to PlanOmatic and you shall execute any and all legal documents necessary to perfect such transfer.
PlanOmatic hereby grants to you a revocable, limited, non-exclusive, non-transferable, non-sublicensable license to access and use the PlanOmatic IP solely in connection with delivery of the Services to you in accordance with this Agreement (subject to payment of all invoices issued to you by PlanOmatic) and the policies and requirements specified by PlanOmatic from time to time. PlanOmatic shall have the right to maintain, improve, or otherwise modify the Services at its sole discretion and PlanOmatic is not responsible for any content posted, uploaded, submitted, or otherwise supplied by you or any other user (the “User Content”). Your use of the Services and PlanOmatic IP is subject to any and all conditions imposed by PlanOmatic and the foregoing license may be terminated at any time at PlanOmatic’s sole discretion.
As part of the Services, PlanOmatic or its subcontractors, employees, affiliates, partners, or suppliers may create certain professional photographic content of certain real property (each, a “Property”), including photographs and virtual staging (the “Photographic Content”). PlanOmatic owns and retains all right, title and interest in and to works created or produced hereunder by PlanOmatic, its subcontractors, employees, affiliates, partners, and suppliers, including all Photographic Content. Unless otherwise specifically agreed to in writing by the Parties, PlanOmatic hereby grants to User a worldwide, perpetual, irrevocable, non-exclusive, non-sublicensable, fully-paid, and non-assessable license to reproduce, distribute, copy, and display (in hard copy or electronic form and in any medium now existing or hereafter created) the Photographic Content provided by PlanOmatic to User under this Agreement for use in the sales or marketing of any of User’s, or User’s clients’, properties to which the works relate. User may copy Photographic Content in connection with the use of User’s license hereunder, but any such copies must continue to display PlanOmatic’s mark, logo and name, and may not be altered, changed, modified or amended from the work originally provided by PlanOmatic to User. No other rights or uses are permitted without the prior written consent of PlanOmatic. User is under no circumstance permitted to sell or collect payment of any kind for the use or display of Photographic Content. User is not permitted to assign the rights granted to User by PlanOmatic to any third parties without the prior express written consent of PlanOmatic.
The trademarks and service marks, including without limitation PLANOMATIC™, that are located on the Website or within the Services, are marks of PlanOmatic and shall not be deemed to be in the public domain but rather the exclusive property of PlanOmatic. You are not permitted to use, copy, sell, display or distribute the Services, any portion thereof, or any of our trademarks, service marks, copyrights or other intellectual property without our express permission. You are also not permitted to post or otherwise make available on the Services any material protected by trademark, copyright or other proprietary right without the express consent of the owner. The Services may include trademarks, copyrights and/or other proprietary rights of third parties. You acknowledge that the Services have been neither endorsed nor sponsored by, and are not affiliated with, any such third parties. You agree that the terms of this Agreement apply to any and all third-party intellectual property on the Services as well. By using the Services you agree that you will not challenge ownership or intellectual property rights with respect to the marks or any copyright or other intellectual property of PlanOmatic.
Your use of certain web sites and/or web pages within the Website also may be subject to additional specific terms as set forth therein (for example, terms that typically govern particular features or offers).
The Services may contain links to websites or applications maintained by third parties. These links are provided solely as a convenience to you and not because we endorse, recommend, encourage, use, or have an opinion about the contents on such websites or applications. PlanOmatic expressly disclaims any representations regarding the content or accuracy of materials on such websites or applications or the privacy practices thereof, nor is PlanOmatic liable for any failure of products or services offered or advertised at those sites. Such third-party sites may have a privacy policy different from that of PlanOmatic and the third- party website may provide less security than the Website. Any decision you make to access websites or applications maintained by other parties is done at your own risk.
You represent and warrant that you have the authority to authorize performance of the Services by PlanOmatic and you will pay all invoices issued by PlanOmatic in connection with the Services pursuant to their terms, which are incorporated herein by reference.
The Services may offer you the opportunity to make communications or post, upload, submit or otherwise supply User Content, which may include communications, comments, pictures, photographs, ratings, reviews, ideas, suggestions, questions, and improvements. You agree not to supply any User Content to PlanOmatic or through the Services that is illegal, intentionally false or misleading, or injurious to us or anyone else, or which infringes on the intellectual property rights of any third party or otherwise violates the Agreement. You may not imply that any User Content is in any way sponsored or endorsed by PlanOmatic or that PlanOmatic guarantees the accuracy of any User Content. We reserve the right without prior notice to remove or edit any User Content, including without limitation as a result of our determination, at our sole discretion, that such User Content is in violation of the Agreement. However, we have no obligation to do so, we do not regularly review User Content and we do not warrant that all User Content on the Services complies with the Agreement. You represent and warrant that you own or otherwise control and/or have authorization to post, upload, submit, or otherwise supply your User Content, that your User Content is accurate, that use of your User Content does not violate this Agreement. Whenever posting, uploading, submitting or otherwise supplying User Content, you agree that you are granting us a non-exclusive, universal, perpetual, irrevocable, sublicensable, commercial and non-commercial right to use, distribute, sell, publish, and otherwise make use of such User Content. You warrant to us that you have the right to grant us these rights to the User Content. You will indemnify, defend and hold us harmless from all claims resulting from your User Content or any breach of the warranties herein. PlanOmatic takes no responsibility and assumes no liability for any User Content posted, uploaded, submitted, or otherwise supplied by you or any third party.
PlanOmatic complies with the requirements of the Digital Millennium Copyright Act (“DMCA”). PlanOmatic may terminate your Account and this Agreement with you or any other user of the Services who infringes on the copyrights of another. If you have any concerns or believe that any content on the Website or through the Services in any way constitutes copyright infringement, please contact the agent designated below, who has been designated to respond to reports alleging copyright infringement. Provide the DMCA Agent with the following information in writing (either via paper mail or electronic mail):
- A physical or electronic signature of the copyright holder or a person authorized to act on his or her behalf;
- A description of the copyrighted work claimed to have been infringed;
- A description of the material that is claimed to be infringing or to be the subject of infringing activity, and its location on the Services;
- Your address, telephone number, and, if available, an email address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in your notice is accurate, and under penalty of perjury, and that you are authorized to act on behalf of the owner of the allegedly infringed copyright.
Contact Information of PlanOmatic’s DMCA Agent: info@planomatic.com.
PlanOmatic may at any time terminate this Agreement with you pursuant to its terms. The reasons may include your breach of this Agreement or PlanOmatic being required by law to terminate this Agreement. We may also immediately terminate or suspend any user accounts or passwords in the event of any conduct that we deem, in our sole discretion, to be illegal, improper, unacceptable or in any way a breach of this Agreement. In the event of termination or suspension, you agree immediately to cease access to the Website and any of our Services.
If you want to terminate this Agreement with PlanOmatic, you may do so by: (A) notifying us at: info@planomatic.com, or (B) closing your Accounts for all of the Services that you use. The Disclaimer of Warranty, Limitation of Liability, Indemnification and Release, Choice of Law and Venue, and Miscellaneous sections of the Agreement shall survive termination.
We reserve the right at all times in our sole discretion to discontinue or modify any part of this Agreement, and to improve, modify, discontinue or remove any functionality, information or content appearing on the Services, as we deem necessary or desirable. If we make changes that materially affect your use of the Services we will notify you by sending you an email to the email address that is registered with your Account and/or by posting notice of the change on the Website. Any changes to this Agreement will be effective upon the earlier of our sending an email notice to you or our posting of notice of the changes to our Services. These changes will be effective immediately for new users of our Services. Your use of the Services after we update these Terms and Conditions will constitute acceptance of the modified Terms and Conditions. We suggest that you revisit the Terms and Conditions on occasion to ensure that you stay informed of any notifications of changes to the Services.
Planomatic uses third party independent contractors to provide portions of our Services. You expressly acknowledge and agree that some or all of the Services may be provided through a third party independent contractor.
PLANOMATIC EXPRESSLY DISCLAIMS AND MAKES NO WARRANTIES ABOUT THE WEBSITE OR THE SERVICES. YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. WE MAKE NO EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND ABOUT THE WEBSITE, SERVICES, OR ANY THIRD-PARTY PRODUCTS OR SERVICES MADE AVAILABLE TO YOU BY US, UNLESS SPECIFIED IN WRITING.
PLANOMATIC HEREBY EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, THAT THE SERVICES:
- ARE MERCHANTABLE;
- ARE FIT FOR A PARTICULAR PURPOSE OR NEED;
- ARE NON-INFRINGING;
- CONTAIN ACCURATE, GENUINE, COMPLETE, UP TO DATE, OR
RELIABLE INFORMATION, INCLUDING WITHOUT LIMITATION, ADVERTISEMENTS, FLOOR PLANS, GEOGRAPHICAL LOCATIONS, MEASUREMENTS, ROOM DIMENSIONS AND OTHER DATA PROVIDED THROUGH THE SERVICES;
- PROVIDE TIMELY, SECURE AND UNINTERRUPTED RESULTS AND SERVICES;
- PROVIDE QUALITY, ERROR FREE OR ANYTHING OTHER THAN “AS IS” RESULTS AND SERVICES; OR
- WILL HAVE COMMUNICATIONS SENT TO YOU THAT ARE FREE FROM VIRUSES OR OTHER HARMFUL ELEMENTS.
OTHER THAN AS EXPRESSLY STATED IN THE PRIVACY POLICY, PLANOMATIC MAKES NO WARRANTIES AS TO PRIVACY OR SECURITY.
NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, GIVEN BY A PLANOMATIC AGENT OR REPRESENTATIVE SHALL CREATE A WARRANTY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PLANOMATIC OR ANY OF ITS OWNERS, MANAGERS, OFFICERS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS OR AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSSES OR DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, OR OTHER LEGAL THEORY, OR FOR ANY LOSS OF REVENUE, PROFITS, DATA, PROPERTY, BUSINESS, OR OTHER FINANCIAL LOSSES ARISING OUT OF OR RELATED TO THE SERVICES OR THE INFORMATION CONTAINED THEREIN OR THIS AGREEMENT. THESE EXCLUSIONS APPLY TO, BUT ARE NOT LIMITED TO, ANY CLAIMS, EVEN IF WE KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF POTENTIAL DAMAGES TO YOU.
UNDER NO CIRCUMSTANCES MAY PLANOMATIC’S LIABILITY EXCEED THE AMOUNT PLANOMATIC HAS ACTUALLY BEEN PAID BY YOU FOR THE SERVICES IN THE LAST THIRTY (30) DAYS PRIOR TO THE CLAIM AT ISSUE. IF YOU HAVE NOT PAID FOR THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY AGAINST PLANOMATIC FOR ANY DISPUTE YOU HAVE WITH US SHALL BE TO DISCONTINUE YOUR USE OF THE SERVICES (INCLUDING THE WEBSITE AND PRODUCTS RELATED THERETO).
You agree to defend, indemnify and hold harmless PlanOmatic and its owners, managers, officers, employees, successors, assigns, representatives, attorneys, agents, partners, licensors, third-party vendors from and against all claims, damages, losses and expenses, including attorneys’ fees, arising out of or related to your use of the Services, your User Content, any property damage or claim of trespass as a result of PlanOmatic providing the Services (but excluding any damage caused by our intentional acts), your violation of any of this Agreement, your violation of any third-party right or your willful misconduct or negligence. This indemnification obligation shall survive the termination of this Agreement and your use of the Services.
You are solely responsible for your interactions with other users of the Services. To the extent permitted under applicable laws, you hereby release PlanOmatic from any and all claims or liability related to any content, service, product, or media referenced on or through the Services, any communication with or action or inaction by a user, including a user’s failure to comply with applicable law and/or this Agreement.
Any disputes arising out of or related to this Agreement and/or any use by you of the Website and Services shall be governed by and interpreted according to the laws of the State of Colorado, without regard to conflicts of laws principles. You hereby irrevocably consent and submit to the exclusive jurisdiction of the courts of the State of Colorado, City of Denver, and any federal court sitting within the State of Colorado for the purpose of adjudicating any dispute or claim arising in connection with this Agreement or the breach, validity or enforceability of any provision of this Agreement and to the personal jurisdiction of such courts over you.
This Agreement embodies the entire agreement between you and PlanOmatic relating to your use of the Services. We may occasionally change the terms of this Agreement, and any such modifications will become effective once they are posted to the Website. It is your sole responsibility to check the Website from time to time to view any such changes. Your use of the Website and/or Services after any modifications will indicate that you accept and agree to the modified Agreement. No amendment or modification of this Agreement (except as set forth in this paragraph) shall be valid or binding unless expressly approved by PlanOmatic in writing and signed by an authorized officer of PlanOmatic. You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion. The section headings used herein are for convenience only and shall be of no legal force or effect.
Failure of any party to this Agreement to require performance by another of any provision expressed herein shall in no way affect that party’s right to thereafter enforce such provision; nor shall the waiver by any party of any breach of any provision expressed herein be taken or held to be a waiver of any succeeding or other breach of such provision or as a waiver of the provision itself or of any other provision. If any provision of this Agreement is declared void or unenforceable by a court of competent jurisdiction, such provision shall be deemed severed from the remaining portion of this Agreement, which shall otherwise remain in full force and effect. Correspondence should be directed to: info@planomatic.com.
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