Version 2.0 Last revised: May 1, 2020
Version 2.0 Last revised: May 1, 2020
The website located at https://aduhabitat.com/ (the “Site”) is a copyrighted work belonging to Natomas Labs, Inc. d/b/a Habitat (“Habitat”, “us”, “our”, and “we”). Certain features of the Site may be subject to additional guidelines, terms, or rules, which will be posted on the Site in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into these Terms.
THESE TERMS REQUIRE THE USE OF ARBITRATION (SECTION 5.2) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1. ACCESS TO THE SITE
We provide the Site as an online network and service to provide homeowners (“Homeowners”) with resources on manufactured homes (as defined by California Health & Safety Code § 18007), to be sold as accessory dwelling units, junior accessory dwelling units or any similar structure, whether attached or detached from a primary dwelling (collectively, “ADUs”), and to provide information to Homeowners who are interested in working with Habitat in installing ADUs on their property (“Property”). The Site enables Homeowners to schedule a free, zero commitment phone call or a home visit to assess and discuss opportunities for ADU development. In the event a Homeowner decides to work with Habitat in the purchase of an ADU, such purchase will be governed by additional terms and conditions to be set forth in a written agreement between the Homeowner and Habitat.
Subject to these Terms, Habitat grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Site solely for your own personal, noncommercial use.
1.3 Our Role.
a) Dealer. Habitat is a dealer (“Dealer”) of ADUs as the same is defined by California Health & Safety Code §18002.6. HABITAT IS NOT A REAL ESTATE BROKER, REAL ESTATE SALESPERSON, INSURER, OR REAL ESTATE AGENT. We are not the owner, operator, or provider of any Property, nor do we manage and/or control Properties on behalf of Homeowners. Habitat does not act as a broker, agent or property manager, nor does Habitat, under any circumstance, for compensation or valuable consideration, sell or offer to sell, buy or offer to buy, lease or offer to lease, rent or offer, to rent, or manage or offer to manage any Property. Habitat is solely involved in the purchase of ADUs from a wholesaler of manufactured homes (“Manufacturer”), and the later resale of such ADUs to Homeowners, on behalf of Habitat and in no event or at no time on behalf of the Manufacturer.
b) Contractor’s License. HABITAT IS NOT A LICENSED CONTRACTOR AND DOES NOT CONDUCT ITS BUSINESS USING A CONTRACTOR’S LICENSE (“LICENSE”) PER CALIFORNIA BUSINESS & PROFESSIONS CODE §7026.2(C). All installations of ADUs sold by Habitat will be performed by a separate and licensed contractor (a “Contractor”). Habitat shall not be bonded or insured under the requirements of California’s Contractor’s License Law. Instead, all Contractors engaged to perform any ADU installation will be bonded and insured as required by law. Contractors will be separately engaged by homeowners for the installation of ADUs purchased from Habitat and for other activities requiring a License, and such Contractors are not employees of Habitat. These Terms hereby constitute written certification, pursuant to Cal Bus & Prof Code 7026.2(c), that all installation of ADUs will be performed by a separate Contractor and not by Habitat.
c) Insurance. Homeowners must obtain and maintain appropriate insurance for their Property, including the ADU. Please make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not your insurance policy will cover the actions or inactions of renters or guests to your Property or ADU and injuries to such renters or guests. Habitat is not responsible for damages or claims to Property caused after the purchase of an ADU which is caused by guests or renters to the Property or ADU.
HOMEOWNERS SHOULD UNDERSTAND HOW THE LAWS WORK IN THE JURISDICTION OF THEIR PROPERTY. SOME JURISDICTIONS MAY REQUIRE REGISTRATION AND CERTAIN LICENSING AND PERMITS AND/OR PAYMENT OF FEES, TAXES, OR ASSESSMENTS. OTHER JURISDICTIONS MAY PROHIBIT THE USE OF THE ADU AS A DWELLING, FOR RENTALS (INCLUDING SHORT TERM RENTALS), OR OTHER INTENDED USES, ENTIRELY. HOMEOWNERS ARE SOLELY RESPONSIBLE FOR ALL SUCH COMPLIANCE. PLEASE NOTE THAT HABITAT assumes no responsibility for any compliance with any agreements with or duties to third parties, applicable laws, rules and regulations. WHILE WE WILL PROVIDE LIMITED INFORMATION AT A SITE VISIT OR DURING A PHONE CALL, HOMEOWNERS ARE RESPONSIBLE FOR REVIEWING LOCAL LAWS, AND IF APPROPRIATE, CONSULTING WITH COUNSEL.
1.5 Certain Restrictions.
The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site, whether in whole or in part, or any content displayed on the Site; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site; (c) you shall not access the Site in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Site may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Site shall be subject to these Terms. All copyright and other proprietary notices on the Site (or on any content displayed on the Site) must be retained on all copies thereof.
Habitat reserves the right, at any time, to modify, suspend, or discontinue the Site (in whole or in part) with or without notice to you. You agree that Habitat will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Site or any part thereof.
1.7 No Support or Maintenance.
You acknowledge and agree that Habitat will have no obligation to provide you with any support or maintenance in connection with the Site.
You acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Site and its content are owned by Habitat or Habitat’s suppliers. Neither these Terms (nor your access to the Site) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 1.2. Habitat and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.
If you provide Habitat with any feedback or suggestions regarding the Site (“Feedback”), you hereby assign to Habitat all rights in such Feedback and agree that Habitat shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Habitat will treat any Feedback you provide to Habitat as non-confidential and non-proprietary. You agree that you will not submit to Habitat any information or ideas that you consider to be confidential or proprietary.
2. THIRD-PARTY LINKS, APPLICATIONS & ADS; OTHER USERS
2.1 Third-Party Links, Applications & Ads.
The Site may contain links to third-party websites and services, applications and/or display advertisements for third parties (collectively, “Third-Party Links, Applications & Ads”). Such Third-Party Links, Applications & Ads are not under the control of Habitat, and Habitat is not responsible for any Third-Party Links, Applications & Ads. Habitat provides access to these Third-Party Links, Applications & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links, Applications & Ads. You use all Third-Party Links, Applications & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links, Applications & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Ads.
You hereby release and forever discharge the Habitat (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Site (including any interactions with, or act or omission of, other Site users or any Third-Party Links, Applications & Ads). If you are a California resident, you hereby waive California Civil Code 1542 in connection with the foregoing, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
THE SITE IS, AND ANY PURCHASED ADUS WILL BE, PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND HABITAT (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONDITION OR FUNCTIONALITY OF THE SITE OR AN ADU (AS APPLICABLE), THE SUITABILITY OF THE SITE OR AN ADU (AS APPLICABLE) FOR HOMEOWNERS’ PURPOSES OR ANY PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. UNLESS OTHERWISE EXPRESSLY AGREED BY HABITAT IN WRITING, THE ONLY WARRANTY FOR ADUS SOLD TO HOMEOWNERS WILL BE THE MANUFACTURER’S WARRANTY. WE ARE A DEALER ONLY, NOT THE MANUFACTURER. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
4. LIMITATION ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL HABITAT (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SITE, EVEN IF HABITAT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR A HOMEOWNER’S VIOLATION OF ANY APPLICABLE LAWS, RULES OR REGULATIONS (INCLUDING, WITHOUT LIMITATION, ANY PERMIT, LICENSE OR REGISTRATION REQUIREMENTS, OR FAILURE TO PAY TAXES), OR THE USE, CONDITION OR RENTAL OF AN ADU BY A HOMEOWNER, OR ANY CLAIMS AGAINST A CONTRACTOR. ACCESS TO, AND USE OF, THE SITE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. PLEASE NOTE THAT THE PURCHASE AND SALE OF ADUS BY HABITAT WILL BE SUBJECT TO ADDITIONAL TERMS AND CONDITIONS, WHICH WILL BE SET FORTH IN A SEPARATE WRITTEN AGREEMENT.
5.2 Dispute Resolution. PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
(a) Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and Habitat and our employees, agents, successors, or assigns, regarding or relating to the Site or these Terms shall exclusively be settled through binding and confidential arbitration.
(b) Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”) or JAMS. As modified by these Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s or JAMS’s rules for commercial arbitration and, if the arbitrator deems them applicable, the procedures for consumer-related disputes.
(c) You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
(d) You and we must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR US MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF, (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (4) we also reserve the right in our sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitrator’s award shall be final and may be enforced in any court of competent jurisdiction; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays 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 then in such instance, the fees and costs awarded shall be determined by the applicable law.
(e) Notwithstanding the foregoing, either you or we may bring an individual action in small claims court. Further, claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in San Francisco, California. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in San Francisco, California in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within San Francisco, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
(f) With the exception of subparts (1) and (2) in Section 5.2(d) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Agreement, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subparts (1) and (2) in Section 5.2(d) (prohibiting arbitration on a class or collective basis) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor we shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in San Francisco, California.
(g) Notwithstanding any provision in this Agreement to the contrary, if we seek to terminate the Dispute Resolution section as included in these Terms, any such termination shall not be effective until 30 days after the version of these Terms not containing the agreement to arbitrate is posted to the Site, and shall not be effective as to any claim of which you provided Habitat with written notice prior to the date of termination.
(h) For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org. For more information on JAMS, it’s Rules and Procedures, and how to file an arbitration claim, you may call JAMS at 800-352-5267 or visit the JAMS website at http://www.jamsadr.com.
(i) Any and all controversies, disputes, demands, counts, claims, or causes of action between you and Habitat and our employees, agents, successors, or assigns, regarding or relating to these Terms or the Site shall exclusively be governed by the internal laws of the State of California, without regard to its choice of law rules and without regard to conflicts of laws principles except that the arbitration provision shall be governed by the Federal Arbitration Act. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms.
The Site may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Habitat, or any products utilizing such data, in violation of the United States export laws or regulations.
Habitat is located at the address in Section 5.8. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
5.5 Electronic Communications.
The communications between you and Habitat use electronic means, whether you use the Site or send us emails, or whether Habitat posts notices on the Site or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Habitat in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Habitat provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
5.6 Entire Terms.
These Terms constitute the entire agreement between you and us regarding the use of the Site. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Habitat is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Habitat’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Habitat may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
5.7 Copyright/Trademark Information.
All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
5.8 Contact Information:
Natomas Labs, Inc.
Address: 1 Letterman Drive, Building C, Suite 3-500