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Terms and Conditions of Use and Sale of Plans – 295 REALTY LLC

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Terms and Conditions of Use and Sale of Plans – 295 REALTY LLC

These Terms and Conditions (“Terms”) represent an agreement between You (“User”) and 295 Realty LLC (“295”) and govern your use of website and any products or services herein and therein, including, but not limited to, any blueprints, designs, and/or architectural plans (“Plans”) made available for purchase via the website.

The website, including any products or services therein, are referred to collectively as the “Site” in these Terms.

By using the Site, whether for purposes of viewing or ordering Plans or for any other purpose without limitation, you acknowledge that you have read and understood, and agreed to be bound by and comply with these Terms.

User specifically acknowledges that these Terms may change from time to time without notice.  User further acknowledges and agrees that it is their obligation to be aware of any changes made to the Site and/or Terms and that User is bound by any and all changes or amendments without limitation.

Use of Website
Allowed Users
The Site is only intended to be used by adults. You must be at least eighteen (18) years old and competent to enter into a contract to order or use any Plans, or other products and services provided, or otherwise use the Site.

Prohibited Acts
When using the Site, User agrees to not:

  1. violate any applicable present or future laws, rules, orders, ordinances, regulations, statutes, requirements, codes or executive orders of any governmental or judicial authorities (“Applicable Laws”);
  2. Submit, provide or upload any text, images, video, or other materials that are unlawful, harmful, fraudulent, threatening, harassing, discriminatory, libelous, defamatory, vulgar, obscene or otherwise objectionable or that may invade another’s right of privacy or publicity or infringe any Intellectual Property Rights (as defined below) or other proprietary rights of any third party;
  3. Submit any personal information, including names or email addresses, pertaining to other individuals;
  4. Impersonate any person or entity, falsely state or otherwise misrepresent your affiliation with a person or entity, or include intentional inaccuracies in User’s information;
  5. Violate or attempt to violate the security of the Site; or
  6. Take any information from the Site by automated means or otherwise without authorization.

Use and Details of Plans
Overview
All of 295’s Plans were created by architects or designers (collectively, “Designer”). All of the Plans have either been purchased or have been assigned and/or licensed to, but are not owned by, 295. When User purchases Plans from 295, in accordance with these Terms, 295 agrees to sub assignments and/or a sublicense Plan(s) to User. By purchasing Plans, User agrees the Plans are only to be used for their specific need any may not, under any circumstances, be redistributed to third parties to be used for any reason. User may not resell, gift, or otherwise transfer any Plans or Purchased Plans obtained from 295.

Ordering Costs
You may order some Plans by paying money (“Purchased Plans”). In all cases, you will be responsible for any applicable sales or similar taxes and shipping and handling costs, if specified.  All orders to 295 are final, and no refunds will be granted for any reason. Unless otherwise specified, all monetary amounts referenced on the Site refer to U.S. dollars.

License and Limitation of Use
When 295 provides User with the Plans, User is thereby granted, subject to these Terms a limited, non-exclusive license (“License”) to use the Plans as a reference tool to build the home or building depicted in the Plans (the “Project”) one time and one time only; and to modify and reproduce the Plans solely to the extent required for purposes of satisfying your specific needs in completing the Project. 295 does not represent, and specifically disclaims, that its Plans meet the requirements of any state or local building codes, ordinances or regulations. User acknowledges and agrees that User is required to confer with international, national (Federal), State, County, City, and/or other local authorities to ensure compliance with any state or local building codes, ordinances or regulations. The Plans available on the Site
shall only be used as planning and/or reference guides and shall not be considered by User or any third party to be in compliance with any state or local building codes, ordinances or regulations, without limitation. In addition to any other requirements set forth in these Terms, User agrees to comply with the following restrictions, requirements and conditions to which the License is subject:

  1. User may not assign, sublicense or transfer the License.
  2. User may not re-use the Plans (e.g., for building any additional home(s)), without the prior written consent of 295, which consent shall require payment of a re-use fee and may be subject to additional conditions, as specified by 295.
  3. User shall not, and shall not authorize or permit anyone else to, sell, redistribute or publish the Plans, or otherwise disclose the Plans to anyone other than contractors, consultants, lenders or governmental agencies on a “need to know” basis as reasonably required for the purpose of building a single home or structure subject to the License.
  4. User may not create derivative works based on the Plans other than such modifications as may be required for User’s own use in building a single home or structure in accordance herewith.
  5. User agrees that User will have the Plans reviewed and approved by a local professional designer or engineer before the start of any construction.
  6. User agrees that User will maintain, and will cause your builder and other contractors involved in the Project to maintain, sufficient liability and other insurance coverages with insurance companies licensed in the applicable locations, as required to cover all of User’s obligations under these Terms and Applicable Laws.

Builder Responsibilities
User acknowledges and agrees that: (i) the following items are User’s builder’s and User’s responsibilities; (ii) User will use User’s best efforts to cause User’s builder to fulfill such responsibilities; and (iii) 295 and its Designers shall have no responsibility or liability with respect to such items:

  1. User’s builder is responsible for assuring that all work is in accordance with the latest edition of all applicable national, state, and local building codes, construction industry standards and other Applicable Laws.
  2. User’s builder is responsible for obtaining the required permits and inspections from local governmental agencies.
  3. User’s builder is responsible for checking the Plans prior to construction to verify all dimensions, specifications and details for overall accuracy appropriate to the local conditions.
  4. User’s builder is responsible for working with User on decisions for the final selection of materials such as masonry, floor joists, lumber, structural members, construction panels, roofing, etc., all of which can create variations in dimension and details. For example, if standard lumber joists are used in place of engineered floor joists, the floor-to-floor dimension would vary from the Plans and require revised stair dimension and framing.
  5. User’s builder is responsible for providing standard construction details and practices which will result in a structurally sound and weatherproof finished product.
  6. User’s builder is responsible for all construction means, methods, sequencing, techniques, and safety on the job site of construction workers and third parties.
  7. User’s builder is responsible for assuring that all materials, equipment and components are new and of good quality.
  8. User’s builder is responsible for assuring that all manufactured articles, material, and equipment are applied, installed, connected, erected, used, cleaned, adjusted, operated and conditioned as directed by the manufacturers. User’s builder must follow all instruction to sustain and preserve all expressed or implied warranties and guarantees. It is the responsibility of the builder to assure that all materials, equipment and components are new and of good quality.

General Terms

Intellectual Property Ownership and Copyright Notice
295 and/or its Designers or other licensors own all Intellectual Property Rights inherent in or appurtenant to: the Site, including any Plans or customized versions thereof; any and all other graphics, photographs, video, images, artwork, text, software and other technology comprising or available via the Site; and the contents, design, layout, functions and appearance of the Site.  Without limitation of the foregoing, the Plans are protected by United States Copyright Laws under Federal Copyright Act, Title XVII of the U.S. Code and Chapter 37 of the Code of Federal
Regulations; and any use of the information contained therein beyond the one-time use authorized under the License, or any reproduction, publication, sale or distribution of any part of the Plans without the prior written consent of 295, constitutes a violation of Federal Laws, and may make you subject to prosecution and the prescribed penalties to the full extent as provided thereunder.

User’s reproduction of these Plans, either in whole or in part, including any form of copying and/or preparation of derivative works thereof, for any reason without prior written permission, is strictly prohibited. The purchase of Plans in no way transfers any copyright or other ownership interest in it to User except for a limited license to use Plans for the construction of one dwelling or structure. The purchase of additional sets of Plans at a reduced price from the original set or as part of a multiple set package does not convey to User a license to construct more than one
dwelling or structure. Similarly, the purchase of reproducible sets carries the same copyright protection. To use any Plans more than once, and to avoid any copyright /license infringement, it is necessary to 295 to receive a release and license for any extended usage. Whereas a purchaser of PDFs, CAD and Reproducibles is granted a license to make copies, it should be noted that as copyrighted material, making photocopies from blueprints is illegal.

Copyright and licensing of home plans for construction exist to protect all parties. It respects and supports the intellectual property of the original architect or designer. Copyright law has been reinforced over the past few years. Willful infringement could cause settlements for statutory damages up to $150,000 plus attorney fees, damages and loss of profits.

User may represent and warrant to 295 that User owns all Intellectual Property Rights in User’s Information. By submitting User’s Information, User automatically grants 295 a non-exclusive, royalty-free, worldwide, perpetual, irrevocable right and license to use User’s Information in connection with the Site and otherwise in ways consistent with the privacy policy. As used in these Terms, “Intellectual Property Rights” means, collectively, all rights with respect to trademarks, service marks, trade dress, logos, copyrights, rights of authorship; all applications, registrations, derivative works and renewals relating to the preceding items; all database rights, moral rights, inventions, rights of inventorship, rights of publicity and privacy, trade secrets, know-how, rights under unfair competition and unfair trade practices laws; and all other worldwide intellectual and industrial property rights related thereto.

Defense, Indemnity, Waiver/Discharge, Release and Hold Harmless

User agrees to defend, indemnify, release, forever hold harmless 295 and its affiliates, and their respective Designers or other licensors, and the officers, directors, owners, agents, representatives, contractors, employees and assigns of the foregoing (collectively, the “Indemnified Parties”), without limitation, and hold them harmless from and against any and all losses, demands, causes of action, damages, liability and costs and expenses, including reasonable attorneys’ fees, incurred or sustained by any of the Indemnified Parties in connection with (i) the use, construction, conversion, modification, misinterpretation, misuse, or reuse by User or others of the Plans or any other drawings, data or other materials furnished by 295 or any Designers; (ii) any negligence or other acts or omissions by User or any of User’s employees, consultants, advisors, agents, representatives, contractors, subcontractors or any other individual or entity; and (iii) any breach by User of any of the provisions of these Term. 295 reserves the right, at its own expense, to assume, or permit a Designer to assume, the exclusive defense and control of any matter subject to indemnification by User, and User waives and discharges Indemnified Parties of same. Users acknowledges and agrees this indemnity clause is reasonable and is not intended, nor shall be interpreted, as a penalty for any liability resulting from the use or modification of the Plans by the User, or any of User’s employees, consultants, advisors, agents, representatives, contractors, subcontractors, or any other individual or entity.

DISCLAIMER
USER ASSUMES ALL RESPONSIBILITY AND RISK FOR USER’S USE OF THE SITE, INCLUDING ANY PLANS AND/OR EXECUTION OR BUILDING OF ANY HOME OR STRUCTURE DEPICTED IN THE PLANS. THE SITE, INCLUDING ANY PLANS, IS PROVIDED “AS IS” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE, NONINFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITATION OF THE FOREGOING, USER AGREES THAT IT IS USER’S RESPONSIBILITY TO ENSURE, PRIOR TO USE OF ANY PLANS, THAT SUCH PLANS ARE ACCURATE, SUITABLE FOR USER’S PURPOSES AND COMPLIANT WITH ALL APPLICABLE LAWS, INCLUDING, BUT NOT LIMITED TO, ANY STATE OR LOCAL BUILDING CODES, STATUTES, ORDINANCES AND/OR REGULATIONS, WITHOUT LIMITATION.

Additional Caveats, Disclaimers and Requirements of Use
The Plans are intended to indicate design intent, basic construction detailing and as a reference tool for Users. The Plans are not and should not be considered or interpreted by User or any of its party on its behalf to be a completed product. It is User’s responsibility to ensure that the Plans are safe and accurate and User has obtained the proper professional assistance to provide standard construction details and practices, which will result in a structurally sound and weatherproof finished product. Any use of the Plans, and/or modifications of the Plans, by User, builders or others on User’s behalf, is done at User’s own risk and shall not, in any way, be attributable to 295 or its Designers.

The Plans do not include any finalized plumbing, heating or air conditioning drawings due to the wide variety of local codes and climatic conditions. We recommend that User has a local electrical engineer, mechanical engineer or builder provide these drawings as may be required for permits and construction.

Any foundation plan and associated details included in the Plans are intended to serve as a basic guide and reference tool for a typical foundation system. This typical foundation system is not site- or location-specific. User hereby acknowledges our recommendation that User should have a local designer or licensed engineer review the Plans and provide a site-specific foundation design if found necessary.

The Plans provide ideas and concepts and are not intended to be complete in any or all respects and details. Variations in standard sizes (e.g., of windows and doors), and brands, thicknesses, types and uses of different materials can change details. Varying local codes, ordinances, regulations, foundation requirements, and the layout of electrical, mechanical, and plumbing systems may also require changes of details.

The Designers used by 295 are resourceful and reliable. However, User should anticipate that some changes and adjustments in any Project will be required to correct possible errors and omissions in the Plans. Such changes are not indicative of, and should not be construed as, negligence on the part of the Designer or 295.
Names of materials and manufacturers shown on the Plans do not represent an endorsement or recommendation by 295 or Designer. Final selections of materials are the responsibility of you and/or your builder, including proper installation of materials, nailing, gluing, caulking, insulating, flashing, roofing, weatherproofing and many other small items and details not necessarily indicated on the Plans; and 295 and Designer have no control or responsibility with respect to such matters.

The Plans do not have an architectural or engineering signature, seal and/or stamp. User agrees to consult the international, national, state, county, municipal and/or local building official who can inform User if a review of the Plans by a licensed designer or engineer is required prior to submission of the Plans for a building permit. Because of the great differences in geography and climate in different areas, each state, county, and municipality has its own building codes, zoning requirements, ordinances, and/or building regulations. The Plans may, and likely will, need to be modified to comply with local requirements. In addition, User may, and likely will, need to obtain permits or inspections from local governments before and in the course of construction.  User’s right to use the Plans is conditioned on User’s agreement with 295, and User affirms that User shall: (i) consult a locally licensed designer or engineer of User’s choice prior to beginning construction, and (ii) strictly comply with all local building codes, zoning requirements, and other applicable laws, regulations, ordinances, and requirements.

Plans purchased for homes to be built in certain jurisdictions, such as the State of Nevada, must be redrawn by a locally registered professional; and User agrees that, if applicable, User will consult a local building official or legal counsel with respect to such requirements.

Due to the large number of Plans and price options for those Plans offered by 295, data entry and other errors inevitably may occur in the text and pricing shown on this Site. 295 reserves the right to correct such errors as they are discovered, and no order and pricing with respect to that order shall be final until confirmed by 295.

Some photographs that appear on the Site of houses that have been built may be based on modifications made to the Plans associated with photograph, and, in such case, those modifications are not incorporated into the Plans.

LIMITATIONS OF LIABILITY
IN NO EVENT SHALL 295 OR ITS AFFILIATES OR ANY DESIGNERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH USER’S USE OF, DELAY IN USING, OR INABILITY TO USE THE SITE OR ANY PLANS AND/OR OTHER PRODUCTS OR SERVICES, INCLUDING ANY PLANS. 295 AND ITS DESIGNERS’ LIABILITY FOR ANY DIRECT DAMAGES SHALL BE LIMITED TO (A) THE AMOUNT, IF ANY, USER HAS PAID TO 295 IN CONNECTION WITH THE MATTER GIVING RISE TO SUCH LIABILITY, OR (B) IF USER HAS NOT MADE ANY PAYMENT, THE AMOUNT OF $100. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES AND THUS CERTAIN LIMITATIONS ABOVE MAY NOT APPLY TO USER. IF THIS LIMITATION OF LIABILITY OR THE EXCLUSION OF WARRANTY SET FORTH ABOVE IS HELD INAPPLICABLE OR UNENFORCEABLE FOR ANY REASON, 295’S MAXIMUM LIABILITY FOR ANY TYPE OF DAMAGES SHALL BE LIMITED TO $100.

Amendment to Terms
295 may modify these Terms at any time and from time to time by posting changes on the Site, and these changes shall immediately become effective and binding with respect to User without 295 providing notice on the Site that these Terms have changed. The changes will apply with respect to User’s use of the Site, including any ordering or use of Plans, after such change.  However, any imposition or change of payment obligations, if any, will only apply if and when User expressly agrees. If at any time User finds these Terms unacceptable and does not agree with them, User shall thereafter have no right to use or access the Site.

Digital Millennium Copyright Act
If you believe that the Site contains content that infringes on your copyright, please forward the following information by email to jeff@295andsons.us or by postal mail to 295 and Sons, LLC at 1620 Gilleron Road, Fort Wayne, IN 46825, specifically including.

  1. Your address, telephone number, and email address;
  2. A description of the copyrighted work that you claim has been infringed;
  3. Description of where the alleged infringing material is located;
  4. A statement by you that you have a good faith belief that the disputed use is not
    authorized by you, the copyright owner, its agent, or the law;
  5. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
  6. A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

Termination
295 maintains the right, without limitation of 295’s other rights and remedies at law, in equity or hereunder, to terminate these Terms, the License and/or User’s right to use the Site, at 295’s discretion, if User does not comply with any of the provisions of these Terms. Unless sooner terminated, the License shall terminate upon User’s completion, abandonment, or in the situation of delayed work, substantial completion of the Project.

Miscellaneous

  1. No joint venture, partnership, employment or agency
    relationship exists between User and 295 or any Designers as a result of these Terms or User’s use of the Site, including any Plans.
  2. Effective Date: These Terms shall be effective upon the date the User uses the Site or makes any purchase or order for any Plans or other products or services.
  3. User’s Representation of Authority: User accepting these Terms on behalf of any other party represents and warrants that he or she has been duly authorized by that party to accept the Terms and thereby bind the party to the Terms and Conditions herein.
  4. Entire Agreement: These Terms represent the entire agreement between User and 295 with respect to the subject matter hereof, and supersede any and all prior understandings, statements or representations, whether electronic, oral or written, regarding such subject matter.
  5. Severability/Survivability: These Terms shall be deemed severable. In the event that any provision is determined to be unenforceable or invalid, such provision shall nonetheless be enforced to the fullest extent permitted by Applicable Laws, and such determination shall not affect the validity and enforceability of any other remaining provisions.
  6. Right to Enforce: These Terms are for the benefit of 295 and the Designers, and their officers, directors, employees, affiliates, agents, licensors, suppliers, and any other individual or entity acting on behalf of 295 and the Designers. Each of these individuals or entities has the right to assert and enforce these Terms to their fullest extent directly against User on their own behalf. Nothing in these Terms shall be construed to create, impose, or give rise to any duty owed by 295 or its affiliates or any Designer to any contractor, subcontractor, construction manager, suppliers, or other person or entity (other than User, to the extent provided herein), or to any surety of or employees of any of the listed parties, or give any rights in or benefits under these Terms to such persons or
    entities.
  7. Headings: The headings in these Terms are for convenience only and are not to be considered in construing the meaning of any Terms.
  8. Waiver: No waiver of any obligation or right of either party will be effective unless in writing, executed by the party against whom it is being enforced.
  9. Choice of Law/Remedies: These terms will be governed by the laws of the United States of America and the state of Indiana, without regard to conflict of laws rules. The parties hereby consent to have any action or dispute between them resolved exclusively within the jurisdiction of the state or federal courts located in the State of Indiana, County of Allen. In addition to money damages, 295 shall be entitled to seek equitable relief where appropriate for any breach by User of any of these Terms.
  10. Notice: All notice to 295 shall be provided by email to billing@295living.com and by postal mail to 295 and Sons, LLC at 1620 Gilleron Road, Fort Wayne, IN 46825. All notice to the User shall be sent to the most recent email address 295 has on file for User.
  11. Attorney’s Fees: If any action at law or in equity is necessary to enforce or
    interpret the Terms provided herein, User agrees to pay the attorney’s fees, costs, and expenses of 295 as they are incurred within 30 days of receipt of invoice for same for any matter related to this Agreement, use of Site, Plans, purchase/sale of Plans, or the like through any stage of any dispute or litigation, including any pre-suit negotiation through court of final resort.
  12. Assignability: 295 may assign these Terms at its discretion. User may not assign these Terms or any of User’s rights hereunder, nor delegate any of User’s obligations hereunder without the express permission of 295, advanced and in writing. These Terms are binding on the parties hereto and their respective successors and permitted assigns.
  13. User agrees to pay the price of the Plan plus any shipping, handling, or sales taxes or fees. All sales of all Plans are final and User is not entitle to any refund of any kind.
  14. Plans shall be delivered in paper form or made available for download once payment for same has cleared.