Ivy Terms of Use

 

Effective on July 1, 2019

 

Through www.ivy.co and related services, sites, and apps that are offered under these Terms of Use (collectively, the “Ivy Platform”), we provide interior designers, architects, builders and other professionals (“Pros”) with tools to better manage their day-to-day business and workflow with their clients (“Clients”) and third-party vendors (“Vendors”).  The Ivy Platform is also designed to improve the design experience for Clients, by allowing them to review project-related documents from Pros and to pay Pros.  The Ivy Platform includes our plug-ins, for example, the Product Clipper browser extension.  We announced that the Ivy Platform joined the Houzz family in February 2018. Houzz Inc. is referred to in these Terms of Use as “we,” “us,” and “our.”  

 

Please review these Terms of Use carefully. If you agree to pay for or use the Ivy Platform products or services as a Pro, a Client or a Vendor, these Terms of Use will apply to you and set forth the legal agreement between you and us, including your agreement to receive promotional text messages and calls through automatic telephone dialing systems, your grant of rights to your content, our limitation of liability to you and your agreement to resolve any disputes by individual arbitration and to waive the right to participate in a class action.

 

1. Contract

a. Legal Agreement.  These Terms of Use are legally binding terms governing your use of the Ivy Platform. We encourage you to read them carefully and not to use the Ivy Platform if you do not wish to be legally bound by these Terms of Use.

b. Modifications.  We reserve the right to modify these Terms of Use at any time. If we make material changes, we will provide you notice through the Ivy Platform, or by other means, to provide you the opportunity to review the changes before they become effective. Your continued use of the Ivy Platform after we publish or send a notice about the changes to these Terms of Use means that you are agreeing to the changes.

c. Additional Terms.  In addition, when using certain services on the Ivy Platform, you will be subject to any additional terms applicable to such services that are made available on the Ivy Platform, including our Privacy Policy. All such terms are hereby incorporated by reference into these  Terms of Use.

 

2.  Ivy Platform

a. Eligibility.  You are allowed to use the Ivy Platform if you are at least 16 years of age or if older, the minimum age lawfully allowed to use the Ivy Platform without parental consent.

b. Accounts.  If you create an account on the Ivy Platform, you are responsible for keeping your password confidential and secure, and you agree to provide us with truthful and correct information about you as prompted and to keep this information updated (including contact information). You must notify us immediately of any breach of security or unauthorized use of your account. Accounts are not transferable.  We reserve the right to close an account for any reason we deem reasonable. We reserve the right to terminate accounts that are inactive for an extended period of time.

c. Transactions. The Ivy Platform may allow contracts and proposals to be made available for review and signature (including e-signature) and payments to be accepted or made. We are not responsible for any contracts or proposals made available through the Ivy Platform. We have no control over and do not guarantee the existence, quality, safety or legality of any goods or services advertised by Pros or Vendors; the truth or accuracy of any advertisements; the ability of Pros or Vendors to sell or provide goods or services; the ability of any user to pay for any goods or services; or the completion of any transaction on the Ivy Platform. We do not warrant or guarantee that any goods or services offered through the Ivy Platform will meet your requirements. As a Pro or Vendor, you are responsible for any contracts or proposals made available through the Platform, performing such contracts, delivering to Clients any items or materials purchased on their behalf, and paying for all purchases made on behalf of your clients and customers.

d. Communications.  By agreeing to these Terms of Use, you agree to receive certain communications from us and our affiliates, including emails related to transactions. You are not required to agree to receive promotional texts, calls, pre-recorded messages, emails or push notifications as a condition of using the Ivy Platform. If you elect to submit your phone number to us, you agree to receive communications from us and our affiliates, including via text messages, calls, pre-recorded messages, emails and push notifications, any of which may be generated by automatic telephone dialing systems.  These communications include, for example, operational communications concerning your account or use of the Ivy Platform, updates concerning new and existing features on the Ivy Platform, communications concerning promotions run by us or third parties, and news relating to the Ivy Platform and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send.  If you wish to stop receiving promotional text messages, please follow the instructions we provide.

e. Ivy Platform Modifications.  We reserve the right to modify or discontinue the Ivy Platform (or any aspect of the Ivy Platform), temporarily or permanently, with or without notice. You agree that we will not be liable to you or to any third party for any modification, suspension or discontinuance of the Ivy Platform. We also may provide you certain features as part of your Ivy Platform for a limited promotional period.

f. Ivy Platform Limitations.  You acknowledge that we may establish general practices and limits concerning use of the Ivy Platform, including the maximum period of time that data or other content will be retained by the Ivy Platform and the maximum storage space that will be allotted to you.  Each pricing plan is subject to a maximum number of “activated” projects as further described here.

g. User Disputes.  We are not a party to any agreement between our users, including Pros, Clients or Vendors. As a Pro, Client or Vendor, you release us from any liability for any agreements or interactions with any other Pros, Clients or Vendors. You agree that you are solely responsible for your interactions with any other user in connection with the Ivy Platform, and we will have no liability or responsibility with respect thereto. We reserve the right, but have no obligation, to become involved in any way with disputes between you and any other user of the Ivy Platform. In entering into this release you expressly waive any protections, statutory or otherwise, that would limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release. The release in the preceding sentence includes California Civil Code Section 1542, which provides as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

h.  Personal Data.  

(i) You have provided appropriate notice and have obtained all consents and rights necessary for us to process any personal data you may provide to the Ivy Platform (“Submitted Personal Data”) in accordance with these Terms of Use and our Privacy Policy (including to transfer the Submitted Personal Data to third parties and third party services that you select), and to transfer the Submitted Personal Data outside of the country of residence of the individual to which the Submitted Personal Data relates, if applicable, pursuant to our Privacy Policy.  We may use Submitted Personal Data as provided under our Privacy Policy, including to provide you the Ivy Platform, to improve the Ivy Platform and to provide the Ivy Platform and Submitted Personal Data to the Clients, Pros and Vendors that you select to receive the Submitted Personal Data. 

(ii) To the extent that you receive personal data through the Ivy Platform (“Platform Personal Data”), you may process the Platform Personal Data only for the intended purpose for which it was provided or to the extent that you have obtained consent as required under applicable law from the person to which the Platform Personal Data relates. You shall protect the confidentiality of Platform Personal Data and use appropriate security safeguards to protect Platform Personal Data against unauthorized or unlawful processing and against accidental loss, destruction, alteration, disclosure or access. You may share such Platform Personal Data only to the extent authorized by the person to which such Platform Personal Data relates or to your subcontractors, provided that you are responsible for ensuring the subcontractors’ compliance with this provision. Without limiting the foregoing, you shall not sell Platform Personal Data. 

(iii) You must ensure that your use of personal data is at all times compliant with all applicable laws (including with respect to the period with which you retain personal data) and that you honor requests by individuals exercising their rights under applicable law (e.g. with respect to data deletion or data access). If you receive any privacy inquiry or complaint from an individual, regulator or other party related to the Ivy Platform, Submitted Personal Data or Platform Personal Data, you will promptly inform us of such complaint and will cooperate reasonably and in good faith to respond to such inquiry or complaint.

 

3. Payments

a. Pro and Vendor Fees and Costs.

(i) Amount of Fees: As a Pro or Vendor, you will be required to pay for certain aspects of the Ivy Platform. Current fees related to our plans can be found here and fees related to our payment processing can be found here.  

Plan pricing may be based on the number of “activated” projects during the term of that plan. A project in your account on the Ivy Platform is considered “activated” upon the first to occur of any of the following events:  (A) a new invoice is created, (B) a payment is received on the project (whether or not through the Ivy Platform), (C) a retainer request document is downloaded or emailed to a Client, (D) or a proposal document is downloaded or emailed to a Client or (E) an associated room board is downloaded or emailed. If you exceed the number of activated projects for your pricing tier, your account will be changed to the plan at the next higher pricing tier and, starting with your next billing period, you will be charged the fees for the next higher pricing tier. The agreed upon fees for each pricing tier may be accessed through your account page in the Ivy Platform.   

(ii) Payments Generally:  You agree to pay us the applicable fees when they are due. You agree to pay the fees associated with the initial plan you select and any subsequent changes (whether manual or automatic), including any automatically recurring fees, usage-based fees, transaction fees deducted automatically from payments made to you through the Ivy Platform, one-time fees that you may incur, and surcharges for using a payment card. Fees or surcharges for using a payment card will be identified in the Agreement. We may set off amounts payable by us to you against amounts payable by you to us. 

(iii) Automatic Payments and Renewal:  If you subscribe to a plan for the Ivy Platform, you will be charged (using the payment method associated with your account) the applicable fee at the beginning of each term (either 12-months for the annual plan or 1 month for the monthly plan). Plans will automatically renew at the end of each term at the pricing tier in place at the time of renewal. If you do not want your plan to renew, you must contact us at least 30 days before the end of the term if you have an annual plan and before the end of the term if you have a monthly plan. Otherwise, your plan will renew, and you are still responsible for paying for your plan for each renewal term. In all cases, you are responsible for paying for the full current term of your plan. Houzz has the right to store and update you payment method and to automatically charge your payment method for the applicable Ivy Platform plan.

(iv)  Payments from Clients:  To the extent that you receive payment from Clients through the Ivy Platform, payments will be disbursed to you according to the schedules listed here. Please note that all payments made through the Ivy Platform are facilitated through a third-party payment processor. We do not take custody of your funds, nor can we access such funds.

(iv)  Price Changes:  We reserve the right to change our prices. If we change or update prices, we will provide notice of the change on the Ivy Platform or by email, at Ivy’s option, at least 30 days before the change takes effect. To the extent you continue to use the Ivy Platform after the price change becomes effective, such use constitutes your agreement to pay the prices as amended. We may choose to temporarily change our fees for promotional events or new services; these changes are effective when we announce the promotional event or new service and end the earlier of the date identified or 30 days after the initial announcement.

b. Payments by Clients. As a Client, you may pay Pros or Vendors for goods or services through the Ivy Platform by authorizing us and our third-party payment processor to charge the method of payment associated with your account. You agree to pay the entire amount that you approve, including any taxes or fees. If such amounts are reversed and deducted from our accounts, you agree to remit the amounts to us and, if you fail to do so, you authorize us and our third-party payment processor to collect the amounts from you, using any legal manner without prejudice to any other right or remedy we may be entitled to under these Terms or by law.

c. Payment Method.  To the extent the Ivy Platform or any aspect thereof is made available for any fee, or you are paying or receiving payment for goods or services via the Ivy Platform, you will be required to provide us information regarding your credit card or other payment method or bank account. You represent and warrant to us that (i) such information is true; (ii) you are authorized to use the payment method; (iii) you are authorized to provide such payment information to us; (iv) such action does not violate the terms and conditions applicable to your use of such payment method or applicable law; and (v) you authorize us, our affiliates and our third-party payment processor to charge your payment method for the amount displayed through the Ivy Platform. You will promptly update your Account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. We do not have access to information about your payment method, other than your name and contact information as required for customer service, but our payment processor may store and update your payment method, and we may continue billing your payment method (e.g. credit card) even after it has expired or been updated, to avoid interruptions in your use of the Ivy Platform and for other transactions you authorize through the Ivy Platform.

d. Payment Disputes.  If you dispute any charges by us, you must let us know within thirty (30) days after the date that we charge you. If you dispute any charges by another user, you must contact the user directly. If you, as Pro, Client or Vendor, are involved in a credit card dispute involving a payment made through or in connection with the Ivy Platform, such as a chargeback, you agree to provide us and our third-party payment processor with all information relevant to the dispute. If any funds are withdrawn from our accounts as a result of the dispute or chargeback, you agree to reimburse us within 48-hours of the date the dispute was initiated. We may obtain reimbursement of any amounts owed to us by instructing our payment processor to deduct such amounts from your account, deducting from future payments owed to you, reversing any credits to your account balance, charging your credit card, or through any other lawful means, including by using third-party collections services. You authorize us to use any or all of the foregoing methods to seek reimbursement. It is our business practice to identify and investigate disputed transactions and transactions with high levels of repayment risk, and we reserve the right to withhold disbursements until we complete our investigations of disputed or high-risk transactions. As a Pro or Vendor, if you agree to refund any fees to another party, you are responsible and will pay us (and we may retain) any transaction costs associated with such refund. If we are unable to collect any fees from you, we may limit your ability to use the Ivy Platform, and we may collect fees owed using any legal manner without prejudice to any other right or remedy we may be entitled to under these Terms of Use or by law.  All amounts paid are not refundable unless otherwise expressly provided by us. In the event that we bring any action or suit to collect any fees owed under these Terms of Use, we will be entitled to recover costs, including reasonable attorneys’ fees, incurred in such collection. Any amounts past due will be subject to a late fee of the lesser of 1.5% per month or the maximum amount permitted by law.

d. Taxes. All consideration to be paid or provided made under or in connection with this Agreement is exclusive of taxes, duties and levies, including state sales taxes, VAT or GST (collectively, “Taxes”). You are responsible for paying all Taxes, excluding only taxes based on Houzz’s net income. If we have the legal obligation to pay or collect Taxes for which you are responsible under these Terms of Use, the appropriate amount shall be invoiced to and paid by you unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.

 

4. Intellectual Property Rights

a. Content. You may submit or transmit content (including data, text, information, screen names, graphics, photos, profiles, audio and other media, links) through the Ivy Platform (“Your Content”), for example, as part of registration, the listing process (which may include items, item descriptions, messaging text, newsletters, photographs, audio, video and descriptions), the messaging service, any public message area (including forums or feedback) or any email feature. The Ivy Platform allows messaging and sharing of information in many ways. Your Content that you share or post may be seen by other users. You are solely responsible for Your Content.

b. Rights Granted by You. As between you and us, you own Your Content, and you grant to us and our affiliates, without compensation or further consent or notice to you or others, a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide, sublicensable license: (a) to use, reproduce, process, adapt, publicly perform, publicly display, modify, prepare derivative works, publish, transmit and distribute Your Content, or any portion thereof; (b) to use your trademark and logo; and (c) if you identify yourself by name or provide a picture or audio or video recording of yourself, to reproduce, print, publish and disseminate your name, voice and likeness; in each case, in any format, media or distribution method (whether now known or hereafter created), including in promotional campaigns, marketing materials and to identify you as a customer. Further, to the extent permitted under applicable law, you waive and release and covenant not to assert any moral rights that you may have in Your Content. For clarity, we will not make your Proposals, Invoices, To-Do Lists, Schedules, Change Orders, Time and Expense Tracking, Roomboards and Tear Sheets publicly available. By submitting suggestions or other feedback to us, you agree that we and our affiliates can (but are not required to) use and share such feedback for any purpose without compensation to you.

c. Ivy Platform.  We reserve all intellectual property rights in the Ivy Platform. Using the Ivy Platform does not give you any ownership in the Ivy Platform or the content or information made available through the Ivy Platform. Trademarks and logos used in connection with the Ivy Platform are the trademarks of their respective owners. The Ivy name and logos and other Ivy trademarks, service marks, graphics and logos used for the Ivy Platform are our trademarks.

 

5. Conditions of Use

a. Compliance with Laws.  You agree to comply with all applicable domestic, local, state and international laws, statutes, ordinances and regulations regarding your use of our Ivy Platform and your listings, purchases, solicitation of offers, sale of items and Your Content, if and to the extent applicable.

b.  Prohibited Conduct.   Any use of the Ivy Platform or the content other than as specifically authorized on the Ivy Platform (including these Terms of Use) is prohibited. The following are examples of content and use that is prohibited on the Ivy Platform.  You agree not to:

  • upload any content that (i) you do not have a right to upload under any law or under contractual or fiduciary relationships; (ii) poses or creates a privacy or security risk to any person; (iii) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; or in our sole judgment, is objectionable or which restricts or inhibits any other person from using or enjoying the Ivy Platform, or which may expose us or our users to any harm or liability of any type;
  • solicit, harass, stalk, impersonate or abuse another user of the Ivy Platform;
  • be false, misleading, untruthful, inaccurate, defamatory, trade libelous, threatening, harassing, harmful, abusive or vulgar; promote violence, racial hatred terrorism or illegal acts;
  • be fraudulent or involved in the sale of illegal, counterfeit, stolen items or items which violate these Terms of Use in any way;
  • infringe any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity;
  • be obscene or transmit pornography;
  • transmit software viruses, worms, trojan horses, time bombs, trap doors or any other computer code, files or programs or repetitive requests for information designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or to diminish the quality of, interfere with the performance of, or impair the functionality of the Ivy Platform;
  • interfere with or disrupt the Ivy Platform or servers or networks connected to the Ivy Platform, or disobey any requirements, procedures, policies or regulations of networks connected to the Ivy Platform; impersonate any person or entity, or falsely state or otherwise misrepresent your credentials or your affiliation with a person or entity;
  • solicit personal information from anyone under the age of 18;
  • create liability for us or cause us to lose (in whole or in part) the services of our ISPs or other suppliers;
  • lead us to violate any applicable law, statute, ordinance or regulation, or these Terms of Use;
  • modify, adapt or hack the Ivy Platform or modify another website so as to falsely imply that it is associated with the Ivy Platform;
  • unless otherwise expressly authorized by us or in the Ivy Platform, display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer, frame, scrape, rent, lease, loan, reverse engineer or otherwise attempt to discover the source code of any portion of the Ivy Platform, use of the Ivy Platform, or access to the Ivy Platform (including Content in the Ivy Platform);
  • engage in or use any data mining, robots, scraping or similar data gathering or extraction methods;
  • implement any measures to circumvent restrictions to or within the Ivy Platform (e.g., by masking or blocking your IP address or using a proxy IP address).

c. Violations.  We reserve the right to investigate and take appropriate legal action against anyone who, in our sole discretion, violates this provision, including removing the offending content from the Ivy Platform, suspending or terminating the account of such violators and reporting you to law enforcement authorities.  We have the right (but not the obligation) in our sole discretion to refuse or remove any content that is available via the Ivy Platform.

 

6. Other Content, Sites and Apps.

By using the Ivy Platform, you may encounter content or information that might be inaccurate, incomplete, delayed, misleading, illegal, offensive or otherwise harmful. We generally do not review content provided by our users or others. You agree that we are not responsible for others’ (including users’) content or information. We cannot always prevent misuse of the Ivy Platform, and you agree that we are not responsible for any such misuse.

You are responsible for deciding if you want to access or use third party apps or sites that link from the Ivy Platform. Third party apps and sites have their own legal terms and privacy policies, and you may be giving others permission to use your information in ways we would not. Except as may be required by applicable law, we are not responsible for these other sites and apps – use these at your own risk.

Payment processing services on the Ivy Platform are provided by Stripe and are subject to the Stripe Connected Account Agreement (available at: https://stripe.com/us/connect-account/legal), which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to these Terms of Use or continuing to use an account, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of our enabling payment processing services through Stripe, you agree to provide us with accurate and complete information about you and your business, and you authorize us to share it and transaction information related to your use of the payment processing services provided by Stripe.

 

7.  Copyright Infringement Policy.

We are committed to protecting the rights of copyright rights holders and seek to comply with all applicable laws and regulations regarding the protection of intellectual property.

If you are a copyright owner or an agent thereof and believe that any user submission or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our agent identified below with the following information in writing (see 17 U.S.C. § 512(c)(3) for further detail):

  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  • Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works within the Ivy Platform are covered by a single notification, a representative list of such works that appear within the Ivy Platform;
  • Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;
  • Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email;
  • 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 the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

We will process any notices of alleged copyright infringement and will take appropriate actions under the DMCA. Upon receipt of notices complying with the DMCA, we will act expeditiously to remove or disable access to any material claimed to be infringing or claimed to be the subject of infringing activity and will act expeditiously to remove or disable access to any reference or link to material or activity that is claimed to be infringing.

We may notify the owner or administrator of the affected content so that he or she can make a counter-notification pursuant to his or her rights under the DMCA. If you receive such a notice, you may provide counter-notification in writing to our agent identified below that includes the information below. To be effective, the counter-notification must be a written communication that includes the following:

  • Your physical or electronic signature;
  • Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
  • A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
  • Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a Federal District Court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which we may be found, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.

Notices of claimed infringement and counter-notifications should be directed to our agent by mailing all required documentation to: 

copyright@houzz.com 

DMCA Complaints 

Houzz Inc. 

285 Hamilton Avenue

4th Floor

Palo Alto, CA 94301 

Fax: (650) 433-4249

 

8. Indemnification

You agree to indemnify, defend and hold us, our affiliates, shareholders, officers, directors, employees, agents, representatives and those that we work with to provide the Ivy Platform (collectively, the “Ivy Entities”) harmless from and against any and all claims, loss, damage, tax, liability and expense, including but not limited to legal costs made by any third party due to or arising out of your breach of these Terms of Use, the Privacy Policy or any other policy documents and community guidelines as may be posted on the Ivy Platform from time to time, or your violation of any law or the right of a third party.

 

9. Disclaimer of Warranties

THE IVY ENTITIES PROVIDE THE IVY PLATFORM “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. THE IVY ENTITIES DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

THE IVY ENTITIES DO NOT BUY OR SELL OR REPRESENT ANY PRO OR ITEMS ON THE IVY PLATFORM AND DISCLAIMS ANY LIABILITY FOR THE SALE OR ATTEMPTED SALE OF ITEMS ON AND VIA THE IVY PLATFORM. THE IVY ENTITIES DO NOT WARRANT THAT THE IVY PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE IVY PLATFORM WILL MEET YOUR REQUIREMENTS OR THAT ANY DEFECTS IN THE IVY PLATFORM WILL BE CORRECTED. THERE MAY BE DELAYS, OMISSIONS AND INTERRUPTIONS IN THE AVAILABILITY OF THE IVY PLATFORM.

 

10. Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE IVY ENTITIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFIT INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF AN IVY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE IVY PLATFORM; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE IVY PLATFORM; (III) UNAUTHORIZED ACCESS TO, ALTERATION OF, OR LOSS OF YOUR CONTENT OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE IVY PLATFORM; OR (V) ANY OTHER MATTER RELATING TO THE IVY PLATFORM. IN NO EVENT WILL THE IVY ENTITIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID US IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE IVY PLATFORM OR WITH THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE IVY PLATFORM.

 

11. Disputes and Governing Law

a. Governing Law.  These Terms of Use shall be construed and interpreted in accordance with the laws of the State of California, without regard to its conflict of law rules, and the laws of the United States of America.

b. Disputes.  In the event a dispute arises between you and Ivy, please email support@ivy.co. You agree that any cause of action arising out of or related to the Ivy Platform or these Terms of Use must begin within 12 months after the cause of action arose. Otherwise, the action is barred.

c. Waiver of Class Action.  You acknowledge and agree that you and Ivy each are waiving the right to a trial by jury or to participate as a plaintiff as a class member in any class action proceeding.

d. Arbitration. You and we agree that any dispute, claim or controversy arising out of or relating to these Terms of Use or to your use of the Ivy Platform (collectively “Disputes”) will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. Further, unless you and we agree otherwise in writing, the arbitrator may not consolidate more than one person’s claims and may not preside over any form class action proceeding. If this specific paragraph is held unenforceable, then the provisions below of this “Dispute Resolution” Section 9 will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” Section 9 will survive any termination of these Terms of Use.

e. Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution’ section. (The AAA Rules are available at http://www.adr.org or by calling the AAA at 1-800-778-7879). The Federal Arbitration act will govern the interpretation of this section

f. Arbitration Process. A party who desires to initiate the arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within 7 days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with AAA Rules.

g. Arbitration Location and Procedure. Unless you and we agree otherwise, the arbitration will be conducted in San Francisco, California. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and we submit to the arbitrator, unless you request a hearing and the arbitrator then determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by AAA Rules. Subject to AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. For claims that exceed $10,000 and involve a hearing, you may elect for the hearing be conducted by telephone.

h. Arbitrator’s Decision. The arbitrator will render an award within the timeframe specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration may be entered in any court having jurisdiction thereof. Any award of damages by an arbitrator must be consistent with the “Disclaimers and Limitations of Liability” section above. The arbitrator may award declaratory or injunctive relief in favor of the claimant only to the extent necessary to provide relief warranted by the claimant’s individual claim.

i. Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be as set forth in the AAA Rules.

 

12. Termination

a.  Termination by Houzz. If you materially breach these Terms of Use, we may terminate these Terms of Use by providing written notice to you. In such case, we have no obligation to refund any amounts to you, and you immediately shall pay any additional amounts due to us as of the effective date of termination. These Terms of Use also may be terminated by us for any other reason by providing you 30 days prior written notice, and if you have an Ivy subscription in such case, we will promptly refund you any prepaid amounts, on a pro rata basis, for any Ivy Platform services not delivered.

b.  Termination by Customer. You may terminate these Terms of Use (a) by electing not to renew your Ivy subscription in accordance with Section 3(a)(iii), or (b) upon 60 days notice to Houzz in the event of our material breach of these Terms of Use, provided that we have not cured such material breach within such 60 day period. 

c.  Termination Generally. In addition, unless you have an Ivy subscription, either you or we may terminate these Terms of Use at any time with notice to the other. On the effective date of termination, you lose all right to access or use the Ivy Platform. You are responsible for making a copy of or otherwise retaining any of your data that you stored or created on the Ivy Platform prior to the effective date of termination.  The following shall survive any termination of these Terms of Use:

  • This Section 12
  • Sections 3, 4 and 8 through 11 of these Terms of Use regarding payments, intellectual property rights, indemnification, disclaimer of warranties, limitation of liability, disputes and governing law;
  • Any amounts owed by either party prior to termination remain owed after termination.

You agree that we will not be liable to you or any third party for any termination of your access to the Ivy Platform. Neither your election to terminate your account nor any termination by us for your material breach will entitle you to a refund of any payment or void your responsibility to pay for the full term of any paid plan that you agreed to purchase.

 

13. General

These Terms of Use constitute the entire agreement between you and us and govern your use of the Ivy Platform, superseding any prior agreements between you and Ivy with respect to the Ivy Platform. You may not assign these Terms of Use without our prior written consent, but we may assign or transfer these Terms of Use or delegate its responsibilities under these Terms of Use, in whole or in part, without restriction. If a court with authority over these Terms of Use finds any part of it not enforceable, you and us agree that the court should modify the terms to make that part enforceable while still achieving its intent. If the court cannot do that, you and us agree to ask the court to remove that unenforceable part and still enforce the rest of these Terms of Use. To the extent allowed by law, the English language version of these Terms of Use is binding and other translations are for convenience only.  These Terms of Use (including additional terms that may be provided by us when you engage with the Ivy Platform) is the only agreement between us regarding the Ivy Platform and supersedes all prior agreements for the Ivy Platform. If we don’t act to enforce a breach of these Terms of Use, that does not mean that we have waived our right to enforce these Terms of Use. There are no third party beneficiaries to these Terms of Use.

 

14. Notice for California Users

Under California Civil Code Section 1789.3, users of the Ivy Platform from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at Houzz Inc., 650-326-3000, 285 Hamilton Avenue, Palo Alto, CA 94301.

 

15.Questions? Concerns? Suggestions?

Please contact us at support@ivy.co to report any violations of these Terms of Use or to pose any questions regarding this Terms of Use or the Ivy Platform.