This agreement (“Agreement” or “Terms of Service”) is a binding agreement between Build Appeal, Inc (“Build Appeal”) and you, the Owner. These Terms of Service shall govern any Agreement or other document entered into between you and Build Appeal (each, an “Agreement”). As used in these Terms of Service, “Build Appeal” or “we” or “us” refers to Build Appeal, Inc, and “you” or “your” or “Owner” refers to you, the Owner. References to this “Agreement” include any Agreements issued hereunder.
Date of Last Revision: July 6, 2022
1.1 Overview
Build Appeal provides an online platform where homeowners may work with a Designer or Customer Service Representative to design, select and purchase material for their home renovation. Furthermore, Owner understands that Build Appeal uses a network of subcontractors at pre-negotiated prices, but does not guarantee or perform the work as discussed directly.
1.2 Construction Services
Build Appeal will use its extensive network of vetted partners to match Owners with a contractor that fits the needs related to the Scope of Work and that is qualified, and/or licensed as necessary. Build Appeal does not provide construction services, nor guarantee the validity of information submitted by subcontractors. Build Appeal will provide liaison services as well as project management overview to ensure that the project is completed in a timely manner and that all milestones are met.
1.3 Services
The Scope of Work as found in your Client Portal will serve as the full outline of the Services the Owner has purchased from Build Appeal.
2.1 Payment
Owner agrees to pay the fees set out in the Agreement for the Services on the Progress Payment Plan or Draw schedule as defined. Build Appeal will release progress payments to the contractor at agreed upon milestones set forth in the Subcontractor Agreement. As part of the payment process to the Subcontractor, a Lien Release will be procured by Build Appeal and submitted to the client for their records. The Design-Builder shall be compensated in a series of progress payments and a Final Payment, for Work completed in accordance with the Agreement, and for which proper milestones for payment have been met. The amount of each progress payment shall be outlined in the attached Draw Schedule.
Prices quoted to the Owner by Build Appeal are only valid for 10 calendar days from the date of the Agreement. If any agreed upon Services are not able to commence within 30 days of the Agreement at no fault of the Company, Build Appeal reserves the right to make price adjustments for inflation or labor/material increased costs.
2.2 Payment Default
Client will be notified of payment due per draw schedule during specified milestones during their Agreement term. The client will have 72 hours (3 days) to make payment after invoice is submitted for payment due. If the client fails to make a payment or fails to fulfill any other term of the obligation in the timeframe alotted, Owner will be considered to be default relative to the terms of this Agreement. Client will then receive a notice of default, the Company will file an immediate Mechanic's Lien and all work on property will cease until the payment default is cured.
3.1 Term
The Company, it's Affiliates, or Subcontractors shall commence work under this Agreement within 30 days of design approval or within 30 days of Owner's initial deposit receipt. The Company shall be deemed to have substantially commenced work when equipment is moved onto, or materials delivered to the jobsite. If The Company fails to substantially commence work within 30 days from the approximate date of commencement, Owner may provide The Company with a Notice To Perform and The Company will be required to issue a response within 72 hours. Delays of start due to acts of God, unforeseen circumstances or client delays will not be considered as part of the 30 day window.
This agreement will remain in effect until all items in the Scope of Work have been satisfied, completed and signed off upon.
**Term estimate is contingent upon material availability, weather conditions, shipping delays, client approvals, any requested/required change orders, existing condition discovery, etc. Project management will strive to keep a live schedule for the client to review through the process.
3.2 Work Stoppage
Company shall have the right to stop work and keep the job idle if payments are not made to Company when due. If the work is stopped, for any reason, for a period of 60 days, then Company may, at Company's option, on five days written notice, demand and receive payment for all work executed and materials ordered or supplied and any other loss sustained, including Company's normal overhead plus a profit of 10 percent of the Agreement price. Thereafter, Company is relieved from any further liability. If work stops for any reason, Owner shall provide for protection of all material on the premises and shall be responsible for any damage, warpage, racking, or loss of that material.
3.3 Severability
Any part, provision, representation or warranty of this Agreement which is prohibited or which is held to be void or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof. Any part, provision, representation or warranty of this Agreement which is prohibited or unenforceable or is held to be void or unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction, to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, the parties hereto waive any provision of law which prohibits or renders void or unenforceable any provision hereof. If the invalidity of any part, provision, representation or warranty of this Agreement shall deprive any party of the economic benefit intended to be conferred by this Agreement, the parties shall negotiate, in good-faith, to develop a structure the economic effect of which is as close as possible to the economic effect of this Agreement without regard to such invalidity.
Extra Work and Change Orders become part of the Agreement once the order is prepared in writing and signed by the parties prior to the commencement of any work covered by the new change order. The order must describe the scope of the extra work or change, the cost to be added or subtracted from the Agreement, and the effect the order will have on the schedule of progress payments.
Any subsequent amendment, modification, or Agreement, which alters this Agreement, and which is signed or initialed by Company and Owner, shall be deemed a part of this Agreement and shall be controlling in case of conflict with any other provision in Agreement. If the Agreement includes provisions for contingencies, Company will use the contingency budget as an allowance for Owner approved change orders. If the contingency provision is exceeded, change orders will be billed in addition to Agreement.
Company shall start and diligently pursue work through to completion, but shall not be responsible for delays caused by any of the following: failure of the issuance of all necessary building permits within a reasonable length of time; funding of loans; disbursement of funds into funding control or escrow; acts of neglect or omission by Owner or Owner's employees or agents; acts of God; stormy or inclement weather; strikes, lockouts, boycotts, or other labor union activities; extra work ordered by Owner; acts of public enemy; riots or civil commotion; inability to secure material through regular recognized channels; imposition of Government priority or allocation of materials; Owner's failure to make payments when due; delays caused by inspection or changes ordered by the inspectors of authorized governmental bodies; acts of independent Companies; holidays; or any other circumstances beyond Company's control.
All sales are final. No returns will be accepted unless material received is defective.
Any order that is considered to be custom will be subject to client approval prior to ordering. Manufacturers do not accept returns on bespoke items, unless otherwise specificied on the product. Any custom order will be paid for in-full in advance and will not be eligible for return, exchange or refund.
Use of Natural Materials in the course of a design project is common. Some examples of Natural Materials include, but are not limited to; Wood Flooring, Marble, Granite, and Stone. The nature of using Natural Materials is that they will not be expected to be consistent or exact in their appearance. Extreme variations are both common and expected. Natural Materials are not eligible for return, refund or exchange.
6.1 General Obligations
Owner agrees to certain obligations under this Agreement. Owner agrees to respond with feedback to any and all items submitted for approval within 72 hours of receipt. Owner agrees to cooperate with Build Appeal on any and all terms of this agreement and for any requests for information to help the design/build process maintain a smooth cadence. Owner agrees to allow reasonable access to the property for photos, measurements, renderings, job walks, etc. Owner understands that any delay will adjust the future projections of project timelines and quotes.
6.2 Access to Work
Owner shall grant free access to work areas for workers and vehicles and shall provide areas for storage of materials and debris. Owner agrees to keep driveways clear and available for movement and parking of trucks during scheduled working hours. Owner shall be responsible for securing all entrances to the jobsite in a manner adequate to prevent persons other than Owner, Company, and any authorized workers or material suppliers from gaining access to that site. Company shall be responsible, at the end of every workday, for storing all equipment and materials in the facilities provided by Owner. Company shall not be liable for damage to driveways, walks, lawns, shrubs, or other vegetation by movement of trucks, workers, equipment, materials, or debris.
Company shall keep Owner advised as to the hours during which work is scheduled to be performed at the jobsite. If Owner denies access to any worker or supplier of materials during scheduled working hours, then Owner will be deemed in breach of this Agreement and subject to liability for any damages caused by the breach.
6.3 Review & Acceptance
Owner acknowledges and agrees that once an item is signed off upon, it will be considered to be a requested deliverable, and as such, is no longer subject to any requests for changes, amendments or modifications. Client may ask for additional accommodations by Build Appeal if necessary for clarity or understanding on plans, specifications, design verbiage, etc. Client must request accommodations prior to the feedback deadlines provided in order to receive no penalty for delays.
Owner understands and agrees that Build Appeal shall not be providing any Construction Services in connection with this Agreement or the Project. Owner may choose to select a Contractor through the Build Appeal Platform at Build Appeal's pre-negotiated rates; however, Build Appeal will not be involved in the management or performance of the Construction Services and any agreement relating to the Construction Services will be between the Owner and the Contractor directly. Owner HEREBY RELEASES Build Appeal FROM ANY CLAIMS, DEMANDS, OR LIABILITIES ARISING FROM OR RELATING TO THE CONSTRUCTION AGREEMENT BETWEEN Owner AND THE CONTRACTOR OR OTHERWISE RELATING TO THE CONSTRUCTION SERVICES. Owner acknowledges and agrees that any timelines provided in the Agreement are estimates only and are subject to the Construction Agreement entered into between Owner and the Contractor. Owner further acknowledges and agrees that the scope of work set out in the Agreement is based on the information known at the time of entering into this Agreement. Owner acknowledges, understands, and agrees that conditions or circumstances may exist that are unknown to Build Appeal at the time of entering into this Agreement (including, but not limited to, the existence of mold, asbestos, latent site conditions, concealed plumbing, dry rot, knob and tube wiring replacement, changes to or relocation of pipes due to conflict with recessed fixtures, plumbing upgrades to meet code, large obstructions (such as a concrete block or otherwise) that need to be removed to achieve a new layout, walls, floors, or ceilings out of level, rerouting plumbing pipes/vents for layout changes, or furring out of walls to accommodate plumbing lines or recessed accessories). Owner acknowledges and agrees that, to the extent any unforeseen conditions are discovered at the Project Site that impact the Project cost, expected timeline, or any other aspect of the Project, Owner will work together with the Contractor to revise the scope of work in the Agreement as appropriate through a Change Order.
8.1 Waiver of Consequential Damages
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
8.2 Liability Cap
IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE BY Owner TO BUILD APPEAL PURSUANT TO THE APPLICABLE AGREEMENT IN THE 6 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
8.3 No Liability for Third Party Expenses
Owner ACKNOWLEDGES AND AGREES THAT BUILD APPEAL SHALL NOT BE LIABLE FOR ANY THIRD-PARTY FEES OR EXPENSES THAT Owner MAY INCUR AS A RESULT OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO, LODGING, HOUSING, OR ACCOMMODATION COSTS, PERMITTING FEES, OR ANY OTHER THIRD-PARTY FEES AND EXPENSES, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN AN AGREEMENT. OWNER AGREES THAT ANY TIMELINES PROVIDED BY BUILD APPEAL ARE ESTIMATES ONLY AND MAY BE ADJUSTED BASED ON PROJECT REQUIREMENTS, AS DETERMINED BY BUILD APPEAL IN ITS REASONABLE DISCRETION. Owner ACKNOWLEDGES AND AGREES THAT BUILD APPEAL SHALL NOT LIABLE FOR ANY LOSS OR DAMAGE RESULTING FROM A DELAY IN DELIVERY OF THE SERVICES OR ANY DELIVERABLE UNDER AN AGREEMENT.
All intellectual property rights created in connection with the Services shall be owned by Build Appeal. The Build Appeal , Inc name and logos are trademarks and service marks of Build Appeal (collectively the “Build Appeal Trademarks”). Other company, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Build Appeal. Nothing in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Build Appeal Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Build Appeal Trademarks will inure to Build Appeal's exclusive benefit.
Throughout the design process, it may be essential for the Company to share proprietary information, including trade secrets, industry knowledge, portions of it's process, proprietary information, images or other confidential material. Owner agrees not to share this information outside the Company or affliates of.
Owner acknowledges that the Company may hire professional photographers to capture photos of your home before, during and after the work is completed. You acknowledge and agree that these photos may be used for marketing and advertising purposes and if you do not want these photos to be taken or used, you must submit the request in writing.
Any controversy that develops between Company and Owner with regard to matters arising out of, or relating to, this Agreement, and that the parties do not promptly resolve, shall be decided by arbitration administered by and in accordance with the Arbitration Rules of the American Arbitration Association unless the parties agree otherwise in writing. This Paragraph shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered on it in any court of competent jurisdiction.
Force Majeure is otherwise defined as a “Superior Force” or “Act of God”. If for any reason a force majeure event occurs that delays the performance of Build Appeal, Owner will not hold Build Appeal responsible. Live scheduling updates will be provided as is possible, and Build Appeal will do its best to make any reasonable adjustments or accommodations to the schedule to continue the timelines as agreed. Parties are aware that certain events are beyond the control of the Company and as such will be accommodated. If any force majeure event delays a project for more than 45 calendar days, contract will be subject to termination and client may submit in writing a request for contract cancellation.
Owner and Build Appeal waive all rights against each other and against all other subcontractors for loss or damage to the extent reimbursed by any property or equipment insurance applicable to the work, except such rights as they may have to the proceeds of such insurance. If any applicable policies of insurance require an endorsement or consent of the insurance company to provide for continued coverage where there is a waiver of subrogation, the Owners of such policies will cause them to be so endorsed or obtain such consent.
15.1 Independent Contractors
The parties are independent contractors, and nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between them. Neither party shall be authorized to contract for or bind the other party in any manner whatsoever.
15.2 Notice
Any notice required or permitted under this Agreement may be given by ordinary or electronic mail at the addresses specified in this Agreement. If either party changes his or her address, that party shall provide written notice of the change to the other party. Notice shall be considered received one day after it is deposited in the mail with postage prepaid.
15.3 Entire Agreement; All Other Agreements Superseded
The Parties acknowledge and agree that the this document and all documents incorporated by reference constitute the Parties’ entire agreement. No other agreements, oral or written, regarding the work performed under this Agreement exist or will take precedent between the parties. This Agreement is governed by the laws of the State of California and all Parties acknowledge that they consent to the limitations of said laws.
15.4 Order of Precedence
In the event of any conflict between the terms and provisions of these Terms of Services and those of any Agreement, Change Order, or other document issued hereunder, then these Terms of Service shall control unless expressly set forth otherwise in a document signed by both parties.
15.5 Assignment
Neither Owner or Build Appeal my assign or transfer this agreement, or any part thereof, without express written consent by their other Party. Assignment approval may be conditional based on worthiness of assignee or other criteria. This Agreement shall transfer, if applicable, in full, to include all additional documentation and counterparts.
15.6 No Third-Party Beneficiaries
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
15.7 Amendment and Modification; Waiver
This Agreement is subject to following amendments and/or modifications. All amendments to this Agreement must be signed by all Parties and reference to the original Agreement will be made. Amendments and modifications can include change orders and Assignments as necessary.
15.8 Governing Law
This Agreement shall be governed by and construed in accordance with the internal laws of the state in which the Project is located without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any other jurisdiction. Each party irrevocably waives any right to trial by jury. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
15.9 Equitable Relief; Cumulative Remedies
Each party acknowledges that a breach of Section 9 (Intellectual Property Rights; Ownership) or Section 10 (Confidentiality) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation. In the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief. Except as expressly set forth in this Agreement, the right and remedies under this Agreement are cumulative and in addition to any other rights or remedies available at law or in equity or otherwise.
15.10 Counterparts
This Agreement may have multiple parts, including but not limited to, exhibits, amendments, disclosures, etc. Parties acknowledge and understand that the Agreement is encompassing of all parts and counterparts.