Privacy & Legal

NetCreations LLC terms of use

Last Modified: July 3, 2024

 

  1. ACCEPTANCE OF THESE TERMS OF USE

 

These Terms of Use, together with any documents expressly incorporated by reference (collectively, this “Agreement”), form a binding legal agreement between NetCreations LLC (“Net Creations,” “we,” “us,” or “our”) and you that governs your access to and use of our website at www.trybuild.com and any content, functionality or services available through our website (collectively, the “Website”), as well as mobile apps we offer through the Apple Store and Google Play (collectively, the “Applications” and together with the Website, the “Services”), as a visitor or registered user or otherwise.

 

Please carefully read these Terms of Use and any documents referenced herein before you use any of the Services.  By using, accessing or installing the Services, or by clicking to accept or agree to these Terms of Use when the option is made available to you, you accept and agree to be bound and abide by these Terms of Use and any documents expressly incorporated herein, including, without limitation, our Privacy Policy, available at www.trybuild.com/privacy-policy, incorporated herein by reference.

 

Further, by using, accessing or installing the Services, or by clicking to accept or agree to these Terms of Use when the option is made available to you, you acknowledge that you have read and understand the Agreement agreeing to this Agreement, and you represent that you (i) are eighteen (18) years of age or older; (ii) have not previously been suspended, removed or deactivated from the Services; (iii) are a legal resident of the United States.

 

IMPORTANT NOTICE: This Agreement contains an arbitration provision and a waiver of class action rights as set forth in Section 21 below – subject to the opportunity of the user to opt out of arbitration as set forth therein. By agreeing to arbitration, each party waives its rights to have any dispute heard in court by a judge or jury. By agreeing to waive class action rights, each party agrees to assert claims against the other only in an individual capacity and not as plaintiff or class member in any purported class or representative proceeding.

 

This Agreement is effective as of the time you accept the Agreement or first download, install, access, or use the Services, whichever is earlier.

 

For certain Services, separately provided guidelines, rules or terms and conditions may apply in addition to this Agreement (collectively, “Additional Terms”). Such Additional Terms are incorporated into this Agreement by this reference. To the extent there is a conflict between this Agreement and any Additional Terms, this Agreement shall control unless the Additional Terms expressly provide otherwise.

 

IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES, INCLUDING THE WEBSITE,  APPLICATIONS OR ANY OF THE FEATURES CONTAINED THEREIN.

 

 

 

  1. OVERVIEW OF SERVICES

 

The Services collectively referred to in this Agreement include:

 

Website. The Website includes any webpage under the domain www.trybuild.com, and any content, functionality or services offered by NetCreations LLC on our website.

 

Build Technology. Build Technology is a free mobile application that allows you to access your Bangor Savings Bank, NA checking account and to participate in rewards programs connected thereto.  You may also access debit card information and other banking services. Build Technology users will be required to enter into a Net Creations-Bangor Savings Bank Joint Account Agreement, which also governs the use of Build Technology services.

 

  1. ELIGIBILITY

 

The Services, including our Website, Applications and any features or functionality available therein, are intended solely for users who are 18 years of age or older, and reside in the United States. By creating an online account on the Website or Applications, or by accessing their features, you represent and warrant that you have the right, authority, and capacity to enter into this Agreement and that you meet all eligibility requirements.

 

  1. ACCESS VIA MOBILE DEVICES AND MINIMUM DEVICE REQUIREMENTS

 

You may be able to access and browse our Website and our Mobile Apps via its interactive features through a compatible mobile device. In order to do so, you must have a wireless subscription with a participating carrier or have other network access. For our mobile apps, your mobile device must also meet certain minimum device requirements. These requirements can be found on the Apple or Google Play store when you download the mobile apps. You are solely responsible for all service fees and charges from your carrier or network provider, as well as any necessary equipment or software requirements, associated with accessing our website and any of its interactive features through your mobile device.

 

By downloading or using the Application, these terms will automatically apply to you – you should make sure therefore that you read them carefully before using the Application. You are not allowed to copy, or modify the Application, any part of the Application, or our trademarks in any way. You are not allowed to attempt to extract the source code of the Application, and you also shouldn’t try to translate the Application into other languages, or make derivative versions. The Application itself, and all the trade marks, copyright, database rights and other intellectual property rights related to it, still belong to NetCreations LLC.

 

We are committed to ensuring that the app is as useful and efficient as possible. For that reason, we reserve the right to make changes to the Application or to charge for its services, at any time and for any reason. We will never charge you for the Application or its services without making it very clear to you exactly what you are paying for.

 

The Application stores and processes personal data that you have provided to us, in order to provide our Service. It is your responsibility to keep your phone and access to the Application secure. We therefore recommend that you do not jailbreak or root your phone, which is the process of removing software restrictions and limitations imposed by the official operating system of your device. It could make your phone vulnerable to malware/viruses/malicious programs, compromise your phone’s security features and it could mean that the Application won’t work properly or at all.

 

You should be aware that there are certain things that NetCreations LLC will not take responsibility for. Certain functions of the Application will require the Application to have an active internet connection. The connection can be Wi-Fi, or provided by your mobile network provider, but NetCreations LLC cannot take responsibility for the Application not working at full functionality if you don’t have access to Wi-Fi, and you don’t have any of your data allowance left.

 

If you are using the Application outside of an area with Wi-Fi, the terms of your agreement with your mobile network provider will still apply. You may be charged by your mobile provider for the cost of data, or other third party charges, for the duration of the connection while accessing the Application. In using the Application, you re-accepting responsibility for any such charges, including roaming data charges if you use the Application outside of your home territory (i.e. region or country) without turning off data roaming. If you are not the bill payer for the device on which you are using the Application, please be aware that we assume that you have received permission from the bill payer for using the Application.

 

NetCreations LLC cannot always take responsibility for the way you use the app i.e. You need to make sure that your device stays charged – if it runs out of battery and you can’t turn it on to avail the Service, NetCreations LLC cannot accept responsibility.

 

With respect to NetCreation LLC’s responsibility for your use of the Application, when you are using the Application, it is important to bear in mind that although we endeavor to ensure that it is updated and correct at all times, we do rely on third parties to provide information to us so that we can make it available to you. NetCreations LLC accepts no liability for any loss, direct or indirect, you experience as a result of relying wholly on this functionality of the Application.

 

At some point, we may wish to update the Application. The Application is currently available on Android & iOS – the requirements for both systems (and for any additional systems we decide to extend the availability of the app to) may change, and you will need to download the updates if you want to keep using the Application. NetCreations LLC does not promise that it will always update the Application so that it is relevant to you and/or works with the Android & iOS version that you have installed on your device. However, you promise to always accept updates to the Application when offered to you, We may also wish to stop providing the Application, and may terminate use of it at any time without giving notice of termination to you. Unless we tell you otherwise, upon any termination, (a) the rights and licenses granted to you in these terms will end; (b) you must stop using the Application, and (if needed) delete it from your device.

 

TEXT MESSAGES & VERIFICATIONS

 

In order to use NetCreations LLC’s services, you must provide and verify your email and cellular phone number (or other text message address) to us, and you must expressly consent to receive text messages or emails relating to the Services at that number or address. By providing us with a telephone number for a cellular phone or other wireless device, you agree to receive autodialed and pre-recorded, non-marketing, service-related text messages from or on behalf of NetCreations LLC at the phone number provided. You further consent to receiving autodialed and pre-recorded text messages from or on behalf of NetCreations LLC at the number provided for marketing or promotional purposes. You understand that consent to marketing-related messages is not a condition of using the Services. To stop receiving marketing-related messages, you may reply STOP to any marketing-related text message you receive from NetCreations LLC. After you text “STOP” to us, we will send you a text to confirm that you have been unsubscribed. After this, you will no longer receive text messages from us. 

 

You are responsible for any messaging or data fees you may be charged by your wireless carrier for receiving SMS notifications.

 

PUSH NOTIFICATIONS

 

By agreeing to this Agreement, you agree to receive push notifications from us. You can opt out of receiving push notifications through your device settings. Please note that opting out of receiving push notifications may impact your use of the Services.

 

  1. NETCREATIONS LLC IS NOT A REGISTERED INVESTMENT ADVISOR; NETCREATIONS LLC DOES NOT PROVIDE LEGAL OR TAX ADVICE

 

NetCreations LLC is NOT a registered investment adviser. We are not providing investment advisory services to you through the content we provide on our website or in the use of our online tool.

 

NetCreations LLC’s Services and content provided via the Services do not constitute specific tax or legal advice, and may not be relied on for purposes of legal compliance. NetCreations LLC does not give tax or legal advice. You are encouraged to seek advice about your specific circumstances from your own tax or legal professional.

 

  1. GRANT OF LICENSE AND LICENSE RESTRICTIONS

 

(a) License Grant. For users of the NetCreations LLC Applications, subject to the terms of this Agreement, NetCreations LLC grants you a limited, non-exclusive, nontransferable license to download, install and use the NetCreations LLC Applications for your personal, non-commercial use on a device owned or otherwise controlled by you, in accordance with the terms of this Agreement and any documentation provided for such NetCreations LLC Application.

 

(b) License Restrictions. You shall not:

 

(i) copy the NetCreations LLC Applications, except as expressly permitted by this Agreement;

 

(ii) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the NetCreations LLC Applications;

 

(iiii) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the NetCreations LLC Application or any part thereof;

 

(iv) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the NetCreations LLC Application, including any copy thereof; or

 

(v) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the NETCREATIONS LLC Applications, or any features or functionality of the Applications, to any third party for any reason, including by making the Applications available on a network where it is capable of being accessed by more than one device at any time; or

 

(c) Reservation of Rights. You acknowledge and agree that the NetCreations LLC Applications are provided under license, and not sold, to you. You do not acquire any ownership interest in the Applications under this Agreement, or any other rights thereto other than to use the Applications in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. As between you and Net Creations, LLC, Net Creations, LLC reserves and shall retain its entire right, title, and interest in and to the Applications, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.

 

  1. UPDATES AND CHANGES TO THE SERVICES

 

From time to time and in our sole discretion, NetCreations LLC may develop and provide updates to the Applications (“Updates”). Updates may include upgrades, fixes, patches, error corrections or new features. Updates may also modify or delete in their entirety certain features and functionality. You agree that NetCreations LLC has no obligation to provide updates, or to continue to enable or offer any features or functionality.

 

Based on your device settings, your device may automatically check for, download and install available Updates, or you may receive notice or be prompted to install Updates. You agree that you shall promptly download and install all Updates. You acknowledge and agree that the Applications or portions of the Applications may not operate properly if you fail to properly download and install Updates.

 

From time to time and in our sole discretion, NetCreations LLC may update the content on the Website, but the content of the Website are not necessarily complete or up-to-date. Any of the contents or other material on the Website may be out of date at any given time, and we are under no obligation to update such material.

 

NETCREATIONS LLC reserves the right, at any time and in its sole discretion, to modify, augment, limit, suspend, discontinue or terminate the Services or any portions, parts or features thereof, without advance notice. All modifications and additions to the Services shall be governed by this Agreement, unless otherwise expressly stated by NetCreations LLC in writing.

 

  1. ACCESSING THE SERVICES

 

(a) Access to the Services. You are responsible for making all arrangements necessary for you to access the Services, including, without limitation, use of a compatible mobile device and any mobile network or internet access fees. We reserve the right to withdraw or amend the Services, and any features or material we provide therein, in our sole discretion and without notice. We will not be liable if for any reason all or any part of the Services is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Services, or all of the Services to users, including registered users.

 

(b) NetCreations LLC Accounts. In order to use certain Services, you must create an account (an “Account”) with NetCreations LLC. You agree that the information you provide to NetCreations LLC upon registration and at all other times will be true, accurate, current, and complete, and that you will keep this information accurate and up-to-date at all times.

 

Further, we may need to verify your identity in order to enable your use of certain Services. You hereby authorize NetCreations LLC, directly or through third parties, to make any inquiries we consider necessary to verify your identity or Account information, including, for example, asking you for further information or documentation about your identity, or requiring you to take steps to confirm ownership of your email address, wireless/cellular telephone number or financial instruments, and verifying your information against third party databases or through other sources.

 

Users who attempt to associate an excessive number of mobile devices with a single Account may be deemed to have violated this Agreement or to have abused the Services, and may be subject to Account suspension or closure, or any other remedy that is available to NetCreations LLC.

 

(c) Account Security. If you choose, or are provided with, a user name, password, access credentials or other security information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Services using your user name, password, access credentials or other security information. You acknowledge and agree that you shall be solely responsible for any activities or actions taken under your Account, whether or not authorized by you. You agree that you will use reasonable efforts and measures to maintain the confidentiality and security of your user name, password, access credentials or other security information, and to notify us immediately if you become aware of or reasonably suspect any unauthorized access to or use of your user name or password, or any other breach of security relating to the Services. NetCreations LLC shall have no liability for any loss or damage to you or any other person that results from your failure to comply with these requirements.

 

(d) Right to Disable Access. We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time, in our sole discretion for any or no reason, including without limitation if, in our opinion, you have violated any provision of these Terms of Use.

 

(e) Correction of Errors. You agree to cooperate with NetCreations LLC in correcting any errors that may occur as part of the Services. For example, if you receive funds or a credit in an amount greater than what you are entitled to receive under the Services and these Terms of Use, then you agree to immediately return and pay such excess amount to us. You agree that we and our agents may reverse, withdraw or cancel any debit, transaction or item that provided you with funds in error. You agree that an error occurred if we or our agents send any funds to you after we receive evidence indicating that you defrauded us or provided us or our agents with false information. You agree that we may initiate a new ACH debit to your bank account in an amount equal to such overpayment plus the amount of expenses we incurred in recovering such overpayment.

 

(f) User Representations. Notwithstanding anything herein to the contrary, you represent and warrant that: (i) your browser is equipped with at least 256-bit security encryption; (ii) you are capable of printing, storing, or otherwise saving a copy of this electronic authorization for your records; (iii) the ACH transactions you hereby authorize comply with applicable law; and (iv) your email address on record with us is yours and that email address is accurate and up-to-date.

 

  1. COLLECTION AND USE OF INFORMATION

 

You may be required to provide certain information about yourself as a condition to downloading, installing, or using the Services or certain of its features or functionality. You acknowledge that when you download, install, or use the Services, we may use automatic means (including, for example, cookies and web beacons) to collect information about your device and about your use of the Services.

 

All information we collect through or in connection with the Services is subject to our Privacy Policy, available at https://www.trybuild.com/legal. By downloading, installing, using, and providing information to or through the Services, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

 

  1. OFFERS FOR FINANCIAL PRODUCTS

 

We may use information about you to generate offers for financial products and services from our marketing partners that may be of interest to you and provide you the opportunity to pursue those offers. It is always your choice whether or not to apply for an offered product or service and we will never submit an application for a financial product or service on your behalf without your express consent. We may receive compensation from our marketing partners for promoting their products and services through our Services.

 

NetCreations LLC does not endorse, warrant or guarantee any third party products or services available through the Services. NetCreations LLC does not guarantee that the rates, product terms, rewards, or other service terms offered by any particular advertiser or other third party on the Services are actually the terms that may be offered to you if you pursue the offer, or that they are the best terms or lowest rates available in the market. If you elect to use or purchase products or services from third parties, you are subject to their terms and conditions and privacy policy.

 

  1. NO RELIANCE ON INFORMATION PRESENTED

 

Information presented on or through the Website or our Services is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.

 

The Services may include content provided by third parties, including materials provided by other users, bloggers, and third-party licensors, syndicators, aggregators, or reporting services. All statements or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by NetCreations LLC, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of NetCreations LLC. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

 

  1. THIRD-PARTY SITES AND CONTENT

 

The NetCreations LLC Website may link or refer to third-party entities or third-party websites, which we do not own or operate. We do not control and are not responsible for these third parties, their content, or any financial or other products, services, or tools available through them. Any dealings Customer has with any third-party projects, services, tools or other content are solely between you and the relevant third party, and such dealings are subject to the relevant terms and privacy policies of such third party. NetCreations LLC will not be, directly or indirectly, responsible or liable for, any damages, harm, liabilities, losses or expenses in any way arising from or relating to any such third-party products, services, tools or other content, or your use thereof.

 

The operators of third-party websites may collect information about you through the use of cookies or other web technologies. We have no control over the privacy and security practices of those third parties. You should review the privacy policies and terms of use of any linked websites you may visit.

 

  1. INTELLECTUAL PROPERTY

 

(a) NetCreations LLC Intellectual Property. The Services, including, without limitation, the Website, all contents, features and functionality of the Website, the Build Technology Application and other Services, are owned by NetCreations LLC, its licensors, or other providers of such materials, and such materials are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. These Terms of Use permit you to use the Website.

 

(b) Use of the NetCreations LLC Website. These Terms of Use permit you to use the Website for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on the Website, except as follows:

 

(i) Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.

 

(ii) You may store files that are automatically cached by your Web browser for display enhancement purposes.

 

(iii) If we provide social media features with certain content, you may take such actions as are enabled by such features.

 

You must not modify copies of any materials from the Website, or delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Website.

 

(c) Trademarks. NetCreations LLC’s name, logo, and all related names, logos, product and service names, designs and slogans are trademarks of NetCreations LLC or its affiliates, partners or licensors. You must not use such marks without the prior written permission of NetCreations LLC. All other names, logos, product and service names, designs and slogans that may be included within the Services are the trademarks of their respective owners.

 

(d) Feedback. We welcome feedback, comments and suggestions for improvements to the Services (collectively, “Feedback”). If you submit Feedback to us, you hereby grant NetCreations LLC a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any lawful purpose.

 

(e) Copyright Infringement. All notices of copyright infringement by user content within the Services should be sent to NetCreations LLC’s designated agent, in accordance with the instructions provided in Section 27 below.

 

  1. PROHIBITED USES OF THE NETCREATIONS LLC SERVICES

 

(a) Use of the Services. You may use the Services solely for lawful purposes in accordance with this Agreement. You may not use the Services:

 

(i) In any way that violates any applicable federal, state, local, or international law or regulation.

 

(ii) For the purpose of exploiting, harming, or attempting to exploit or harm minors or other persons in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.

 

(iii) To send, knowingly receive, upload, download, use, or re-use any material that does not comply with the Content Standards set out in these Terms of Use.

 

(iv) To transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.

 

(v) To impersonate or attempt to impersonate NetCreations LLC, a NetCreations LLC employee or other personnel, another user, or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing).

 

(vi) To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website, or which, as determined by us, may harm the Company or users of the Website, or expose them to liability.

 

Additionally, you agree that you shall not:

 

(vii) Use the Services in any manner that could disable, overburden, damage, or impair the Services or interfere with any other party’s use of the Services.

 

(viii) Use any robot, spider, or other automatic device, process, or means to access the Website or other Services for any purpose, including monitoring or copying any of the material on the Services.

 

(ix) Use any manual process to monitor or copy any of the material available via the Services, or for any other purpose not expressly authorized in these Terms of Use, without our prior written consent.

 

(x) Use any device, software, or routine that interferes with the proper working of the Services.

 

(xi) Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.

 

(xii) Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Services, or any server, computer, or database connected or related to the Services.

 

(xiii) Attack the Services via a denial-of-service attack, a distributed denial-of-service attack or by other technological means.

 

(xiv) Otherwise attempt to interfere with the proper working of the Services.

 

  1. CHANGES TO THESE TERMS OF USE

 

NetCreations LLC  may, from time to time, modify this Agreement. Please check this Agreement periodically for changes. Your continued use of the Services after the changes become effective constitutes your binding acceptance of such changes. In the event that a change to this Agreement materially modifies your rights or obligations, we will notify you of the change by reasonable means, such as by sending you an email to the address we have on file for you, presenting a pop-up window when you visit the Website, or providing notification through the Services in another way. We may also require you to accept the modified Agreement in order to continue to use the Services. Immaterial modifications are effective upon publication, and material changes will be effective upon the earlier of (a) your continued use of the Services with actual knowledge of the modification, or (b) thirty (30) days following the change. For the avoidance of doubt, disputes arising hereunder will be resolved in accordance with this Agreement in effect that the time the dispute arose. You can determine when this Agreement was last revised by referring to the “LAST UPDATED” legend at the top of the then-current version of this Agreement.

 

  1. FEES AND FEES SCHEDULE

 

All fee amounts will be withdrawn from your NetCreations LLC Account and will be assessed as long as there is a remaining balance in your NetCreations LLC Account, except where prohibited by law. Any time your remaining balance is less than the fee amount being assessed, the balance of your NetCreations LLC Account will be applied to the fee amount resulting in a zero balance on your NetCreations LLC Account. To see a full schedule of our fees, please visit https://www.trybuild.com/legal.

 

  1. TERM AND TERMINATION

 

(a) This Agreement is effective as of the time you accept the Agreement or first download, install, access, or use the Services, whichever is earlier.

 

(b) Closing Your Online Account. You may terminate this Agreement at any time by permanently closing your NetCreations LLC Account, deleting the Mobile Applications in their entirety from your devices, and no longer visiting the NetCreations LLC Website, whereupon (and without notice from NetCreations LLC) any rights granted to you herein will automatically terminate; provided, however, that any provisions of this Agreement that survive termination by their nature or as set forth herein will continue in effect. You can close your account by contacting us at our customer support number or by selecting “close account” in the mobile application.

 

(c) Termination or Suspension by NetCreations LLC. NetCreations LLC may terminate this Agreement at any time with or without notice if it ceases to offer or support the Services, which NetCreations LLC may do at any time in its sole discretion. Without limiting other remedies, NetCreations LLC may immediately terminate or suspend your access to or use of the Services and remove, subject to any regulatory retention requirements, any material from the Services or our servers, in the event that you breach this Agreement, or if we determine in our sole discretion that such action is reasonable in order to comply with legal requirements or to protect the rights or interests of NetCreations LLC or any third party, or otherwise in accordance with this Agreement. We will have no liability whatsoever on account of any change to the Services or any suspension or revocation of your access to or use of the Services.

 

(d) Effect of Termination. Upon termination, all licenses and other rights granted to you under this Agreement will immediately cease, and you acknowledge and agree that we will have no further obligation to provide or allow access to your Account or the Services. NetCreations LLC is not liable to you or any third party for termination of the Services or termination of your use of the Services. UPON ANY TERMINATION OR SUSPENSION, ANY INFORMATION THAT YOU HAVE SUBMITTED, UPLOADED OR OTHERWISE MADE AVAILABLE ON, TO OR THROUGH THE NETCREATIONS LLC SERVICES OR THAT WHICH IS RELATED TO YOUR ACCOUNT MAY NO LONGER BE ACCESSED BY YOU. Furthermore, except as may be required by applicable law or as provided in our Privacy Policy, NetCreations LLC will have no obligation to store or maintain (or delete or destroy) any information stored in our database or to forward any information to you or any third party.

 

  1. DISCLAIMERS

 

TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NETCREATIONS LLC HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND REGARDING THE SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, QUIET ENJOYMENT, NON-INFRINGEMENT, FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. WITHOUT LIMITING THE FOREGOING, NETCREATIONS LLC PROVIDES NO WARRANTY AND MAKES NO REPRESENTATION OF ANY KIND THAT: (a) THE INFORMATION PROVIDED IN, OR THAT MAY BE OBTAINED FROM USE OF, THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE CORRECT, ACCURATE, UP-TO-DATE, OR RELIABLE; (b) THE SERVICES BE UNINTERRUPTED OR ERROR-FREE; (c) THE SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL CODE; (d) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS; OR (e) ANY ERRORS IN THE TECHNOLOGY WILL BE CORRECTED. YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE OR OTHER DEVICE, OR LOSS OF DATA. YOU HEREBY ACKNOWLEDGE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 WHICH PROVIDES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”

 

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER. AS SUCH, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

 

  1. LIMITATION OF LIABILITY

 

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL NETCREATIONS LLC, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR OTHER PERSONNEL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE SUCH PARTIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, WHERE SUCH DAMAGES RESULT FROM: (a) YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE SERVICES, (b) ANY PURCHASE OF A THIRD PARTY PRODUCT OR SERVICE BASED ON INFORMATION CONTAINED IN THE NETCREATIONS LLC SERVICES, (c) ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OF THE SERVICES OR THIRD PARTIES, OR (d) ANY THIRD-PARTY CONTENT AVAILABLE OR ACCESSIBLE VIA THE SERVICES. THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.

 

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

 

EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 22 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

 

  1. INDEMNIFICATION

 

You hereby agree to indemnify and hold harmless NetCreations LLC and its officers, directors, employees, agents, affiliates, successors, assigns and other personnel from and against any and all losses, damages, liabilities, claims, actions, judgments, settlements, interest, awards, fines costs or and expenses of any kind, including reasonable attorneys’ fees, arising out of or in any way attributable to your use or misuse of the Services or your breach of this Agreement, including but not limited to any data or content that you submit to or make available via the Services.

 

  1. GOVERNING LAW AND DISPUTE RESOLUTION

 

PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.

 

(a) Governing Law. You and NetCreations LLC agree that this Agreement and the resolution of any disputes arising out of or relating to this Agreement or the use of the Services (collectively, “Disputes”) shall be governed by the laws of the State of Delaware, without regard to its choice or conflicts of laws provisions or rules.

 

(b) Informal Dispute Resolution. Where possible, we want to address any concerns or issues without needing a formal legal case. Before filing any claim against NetCreations LLC, you agree to try to resolve the Dispute informally by contacting support@trybuild.com. We will try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or NetCreations LLC may bring a formal proceeding.

 

(c) Arbitration. Any and all Disputes (regardless of basis or theory) shall be resolved by arbitration (except as expressly set forth herein)involving one arbitrator and administered by the American Arbitration Association (“AAA”) or its successor in accordance with its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes, or other applicable rules as determined by the arbitrator. Arbitration proceedings shall be conducted in Wilmington, DE in the English language, and, at the request of either party, result in a written statement of the facts and legal reasoning supporting the decision of the arbitrator(s). The arbitrator may award any individual relief or individual remedies that are permitted by applicable law. Judgement on an award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award.

 

(d) Costs of Arbitration. The AAA rules will govern payment of all arbitration fees. If the value of your claim does not exceed $10,000, NetCreations LLC  will pay for the reasonable filing, administrative, and arbitrator fees associated with the arbitration, unless the arbitrator finds that either the substance of your claim or the relief sought was frivolous or brought for an improper purpose. Each party shall pay its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law.

 

(e) Opt-Out of Agreement to Arbitrate. You may decline this agreement to arbitrate by contacting support@trybuild.com within 30 days of first accepting this Agreement. Your communication must state that you decline this arbitration agreement, and it must include your first and last name.

 

(f) Exceptions to Arbitration. Either you or NetCreations LLC may assert claims, if they qualify, in small claims court in Wilmington, DE, or any United States county where you live or work. Either party may bring a lawsuit in any court of competent jurisdiction, solely for injunctive relief to stop unauthorized use or abuse of the Services, or infringement of intellectual property rights, without first engaging in arbitration or the informal dispute-resolution process described above.

 

(g) Waiver of Class and Collective Actions. To the fullest extent permitted by applicable law, you and NetCreations LLC agree that (i) ANY DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, THAT ONE PARTY MAY HAVE WITH THE OTHER PARTY, MAY ONLY BE RESOLVED ON AN INDIVIDUAL BASIS, AND SHALL BE NOT BE ASSERTED AS A CLASS ACTION OR COLLECTIVE ACTION, WHETHER IN ARBITRATION, COURT OR ANY OTHER FORUM; AND (ii) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING AND MAY NOT AWARD CLASS-WIDE RELIEF. Disputes shall not be joined or consolidated with any other proceeding that involves any claim or controversy of any other party.

 

(h) Choice of Forum. In the event that the agreement to arbitrate is found not to apply to any Dispute, you and NetCreations LLC agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of New Castle County, DE. Both you and NetCreations LLC consent to venue and personal jurisdiction there. Each party agrees to waive and hereby waives its right to a jury trial.

 

(i) Limitation of Time to File Claims. Regardless of any statute or law to the contrary, each party agrees that any claim or cause of action arising out of or related to this Agreement or the Services must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.

 

  1. GENERAL PROVISIONS

 

(a) Entire Agreement. This Agreement, consisting of these Terms of Use together with the Privacy Policy and any other documents expressly incorporated by reference herein, constitute the entire and exclusive understanding and agreement between you and NETCREATIONS LLC regarding your use of and access to the Services.

 

(b) Amendment. Except as expressly permitted herein, this Agreement may only be amended by a written agreement signed by authorized representatives of the parties.

 

(c) Assignment. You may not assign or transfer this Agreement or your rights hereunder, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement or any of our rights or obligations under this Agreement at any time without notice.

 

(d) Waiver and Severability. The failure of a party to require performance of any provision by the other party shall not affect the right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. In the event that any part of this Agreement is held to be invalid or unenforceable, the unenforceable part shall be given

 

(e) Headings. The headings in this Agreement are for convenience only and have no legal or contractual effect.

 

  1. CONTACT, COMMENTS AND QUESTIONS

 

The Services are offered and operated by NetCreations LLC. If you have any feedback, comments, questions or other communications regarding the Services or these Terms of Use, please contact us at support@trybuild.com.

 

  1. NOTICE OF COPYRIGHT INFRINGEMENT

 

NetCreations LLC respects the intellectual property rights of others and expects you to do the same. Accordingly, we will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or through the Services infringe your copyright, you may request removal of those materials (or access to them) from the Services by submitting written notification to our Copyright Agent (designated below).

 

In accordance with the Digital Millennium Copyright Act of 1998 (“DMCA”), the text of which may be accessed on the website of the U.S. Copyright Office, at https://www.copyright.gov/legislation/pl105-304.pdf, with additional information available at https://www.copyright.gov/legislation/dmca.pdf, a complaint of copyright infringement must be submitted in writing and include substantially the following:

 

your full legal name, telephone number, and email address;

 

physical or electronic signature;

 

identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Services, a representative list of such works;

 

identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material;

 

a statement by that you have a good faith belief that the disputed use has not been authorized by the copyright owner, its agent, or the law;

 

a statement by you made under penalty of perjury, that the information in your notice is accurate, that you are the copyright owner or authorized to act on the copyright owner’s behalf; and

 

your electronic or physical signature or the electronic or physical signature of the person authorized to act on your behalf.

 

Please send your DMCA Notice to support@trybuild.com.

 

If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective. Please be aware that if you knowingly materially misrepresent that material or activity on the Services is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.