IMPORTANT: IF YOU RESIDE IN THE UNITED STATES, PLEASE NOTE THAT SECTION VIII OF THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION CLAUSE AND CLASS ACTION WAIVER, WHICH WILL REQUIRE YOU TO RESOLVE ANY DISPUTE WITH US ON AN INDIVIDUAL BASIS AND, EXCEPT IN LIMITED CIRCUMSTANCES, THROUGH FINAL AND BINDING ARBITRATION. BY UTLIZING THE SOFTWARE SERVICES, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE FOLLOWING TERMSAND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION. PLEASE READ THESE TERMS CAREFULLY.
Thank you for your interest in Site Armor Inc.'s a/k/a Contractors Cloud's software services (herein referred to as “Software Services”). Please review the following terms and conditions concerning your use of the Software Services which govern their use.
By accessing, downloading, or otherwise utilizing materials from the Software Services, you agree to follow and be bound by these terms and conditions (the “Terms”) in addition to any other agreement you may have with Contractors Cloud. Contractors Cloud reserves the right to change the Terms at any time and in its sole discretion with or without notice. In case of any violation of the Terms, Contractors Cloud reserves the right to seek all remedies available to it in law and in equity. Upon accessing, downloading, or otherwise utilizing Software Services, you are agreeing to be bound by these Terms.
You acknowledge that all materials provided by or in connection with the Software Services, including but not limited to information, documents, products, logos, graphics, sounds, images, software, and services, are provided and exclusively owned by either by Contractors Cloud or its third-party authors, developers and vendors. The underlying intellectual property rights are owned by Contractors Cloud and/or its third-party providers and may be licensed to you for your use subject to these Terms and any other applicable agreement between the parties.
Contractors Cloud reserves the right, in its sole discretion and at any time, to terminate your access to the Software Services and/or any of its services without liability to you or any third party. In addition, access to the Software Services may be monitored by Contractors Cloud. Upon termination of your agreement to access the Software Services or violation of these Terms, you agree to immediately destroy any downloaded or printed materials relating to or arising from or relating to your use of the Software Services.
The Software Services may contain links to websites controlled or operated by parties other than Contractors Cloud. Contractors Cloud is not responsible for and does not endorse or accept any responsibility for the contents or use of these third-party websites. Contractors Cloud is providing these links to you only as a convenience or as advertisement, and the inclusion of any link does not imply endorsement by Contractors Cloud of the linked website. You should refer to the policies posted by other Web sites regarding privacy and other topics before you use them. It is your responsibility to take precautions to ensure that whatever you select for your use is free of viruses or other items of a destructive nature.
LICENSE GRANT. The Software Services are Copyright (C) by Site Armor, Inc. a/k/a Contractor's Cloud. All rights are reserved. This is a legal agreement between the recipient of the Software Services license, (sometimes referred to as “you” or “Recipient”), and Site Armor, Inc. a/k/a Contractor's Cloud (sometimes referred to as “Author”).
The Author hereby grants to the Recipient the rights to use the Software Services subject to these Terms and any other applicable agreements between the parties. This grant is subject to the Recipient's compliance therewith.
OWNERSHIP. The Software Services are owned and copyrighted by Site Armor, Inc. a/k/a Contractor's Cloud. The Recipient license confers no title or ownership in the Software Services and should not be construed as a sale of any right in the Software Services.
COPYRIGHT. The Software Services are protected by international treaty provisions. Recipient acknowledges that no title to the intellectual property in the Software Services is transferred to the Recipient. Recipient further acknowledge that title and full ownership rights to the Software Services will remain the exclusive property of Author. Recipient will not acquire any rights to the Software Services except as expressly set forth in this license. Recipient agrees that any copies of the Software Services will contain the same proprietary notices which appear on and in the Software Services. The Recipient may not remove or alter any copyright notices contained within the Software Services.
LIMITATION OF LIABILITY. AUTHOR PROVIDES THE Software Services “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE,” AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH Recipient. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Author AND ITS SUPPLIERS MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED. Author, ITS LICENSEES, AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY AND IMPLIED, INCLUDING (A) WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, ACCURACY, TITLE, QUIET ENJOYMENT, NO ENCUMBRANCES, NO LIENS AND NON-INFRINGEMENT, (B) WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE, AND (C) WARRANTIES OR CONDITIONS OF UNINTERRUPTED OR ERROR-FREE ACCESS OR USE. EXCEPT FOR INDEMNIFICATION AMOUNTS PAYABLE TO THIRD PARTIES HEREUNDER AND Recipient’S BREACHES OF THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW: (y) NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING LOSS OF PROFITS, REVENUE, INTEREST, GOODWILL, LOSS OR CORRUPTION OF DATA OR FOR ANY LOSS OR INTERRUPTION TO RECIPIENT’S BUSINESS) WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY; AND (z) EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER IS LIMITED TO AMOUNTS PAID OR PAYABLE TO AUTHOR BY RECIPIENT FOR THE AD GIVING RISE TO THE CLAIM. Except for payment obligations, neither party is liable for failure or delay resulting from a condition beyond the reasonable control of the party, including but not limited to acts of God, government, terrorism, natural disaster, labor conditions, and power failures.
Indemnification. Recipient shall indemnify and defend Author and Author's authorized licensees, suppliers, agents, affiliates, and licensors from any claim or liability arising out of: (i) Recipient's use of the Software Services, (ii) Recipient’s violation of federal, state, local or any other laws or regulations; and (iii) Recipient's breach of these Terms, its agreement with Author, or any other applicable terms and conditions. Recipient agrees it is solely responsible for ensuring its own compliance with all applicable federal, state, and local laws and regulations, and that its use of the Software Services is compliant therewith.
Consent to Receive Communications. Recipient agrees that Author, or a third party acting on its behalf, may email, call and/or send text messages to the email address and telephone number(s) provided by Recipient, including calls and text messages using an automatic telephone dialing system and/or an artificial or prerecorded voice (“Other Messages”). Recipient further agrees that such emails, calls and/or text messages may constitute advertising or telemarketing, e.g. Author may email, call, or text with information about new service offerings available to Recipient. Recipient understands that agreeing to receive Other Messages that constitute advertising or telemarketing is not a condition to purchase.
PROHIBITED USE. Recipient shall not distribute, copy, or otherwise utilize the Software Services in a manner inconsistent with these Terms or in any way that would violate Contractor's Cloud's and/or its third-party providers' rights to the underlying intellectual property.
DISPUTE RESOLUTION. The parties agree to address all disputes arising under these Terms as follows:
- Binding Arbitration. If you reside in the United States, you and Author agree to resolve any claims relating to these this Agreement or the Terms (collectively, “Disputes”) through final and binding arbitration, except as otherwise specifically provided herein.
- Waiver of Class Action. You acknowledge and agree that you and Author are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding. Further, unless both you and Author otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of this Agreement.
- Arbitration Rules and Governing Law. This agreement to arbitrate evidences a transaction in interstate commerce, and thus the Federal Arbitration Act (the “FAA”) governs the interpretation and enforcement of this provision. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1–800–778–7879.) If the FAA and AAA Rules are found not to apply to any Dispute hereunder, or the enforcement thereof, then that issue shall be resolved under the laws of the State of Minnesota without giving effect to its conflict of laws provisions.
- Notice; Informal Dispute Resolution. A party who intends to seek arbitration must first send written notice to the other party by certified mail. Your notice must include (a) your name, postal address, telephone number, email address, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Author's notice to you will be sent electronically to the email address Author has on file associated with your Author account, and will include (a) Author's name, postal address, telephone number and an email address at which Author can be contacted with respect to the Dispute, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that Author is seeking. If you and Author cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Author may, as appropriate and in accordance with this Agreement, commence an arbitration proceeding.
- Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a formal Demand for Arbitration.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the State of Minnesota and will be selected by the parties from the AAA's roster of commercial dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
- Arbitration Location and Procedure. Unless you and Author agree otherwise, the arbitration will be conducted in Hennepin County, Minnesota and the state and federal courts located in Hennepin County, Minnesota shall have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. If the Dispute does not exceed $10,000, you or Author may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Author subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or Author may attend by telephone, unless the arbitrator requires otherwise. If the Dispute exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Subject to the 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.
- Arbitrator's Decision. The arbitrator will render an award within the time frame 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 award may be entered in any court having jurisdiction thereof. The arbitrator's award damages must be consistent with the terms of the “Liability Limitation; Exclusive Remedy” section as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. The prevailing party shall be entitled to an award of reasonable attorney fees.
- Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
- Changes. If Author changes this “Dispute Resolution” section after the date you last accepted this Agreement or these Terms (or accepted any subsequent changes to this Agreement), you may reject any such change by sending Author written notice (including by email) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Author's email to you notifying you of such change. By rejecting any change, you are agreeing that you will resolve any Dispute between you and Author in accordance with the provisions of this “Dispute Resolution” section as of the date you last accepted this Agreement (or accepted any subsequent changes to this Agreement).
- Exceptions to Agreement to Arbitrate. Either party may bring a lawsuit solely for 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 without first engaging in arbitration or the informal dispute-resolution process described above. If the agreement to arbitrate is found not to apply to you or your claim, you agree to the exclusive jurisdiction of the state and federal courts in Hennepin County, Minnesota to resolve your claim.
SEVERABILITY. In the event of invalidity of any provision of these Terms, the parties agree that such invalidity shall not affect the validity of the remaining portions of these Terms.
TERMINATION. This License will terminate automatically, without notice from the Author, if the Recipient fails to comply with the Terms or any other applicable agreement between the parties. Upon termination, the Recipient shall immediately discontinue use of the Software Services and destroy all copies of the Software Services.
MISCELLANEOUS. Except as preempted by the FAA, these Terms are governed by the laws of the State of Minnesota, without giving effect to its conflict of laws provisions. Other than those issues governed by the arbitration clause herein, the parties agree to submit to exclusive jurisdiction and venue in the state and federal courts sitting in Hennepin County, Minnesota for any actions for which the parties retain the right to seek injunctive or other equitable relief. In any dispute arising under the parties' agreements or these Terms, if Author is deemed the prevailing party, it will be entitled to recover its attorneys’ fees and expenses. These terms and any agreement between the parties constitutes the entire and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any other agreements, terms and conditions applicable to the subject matter hereof. Recipient may not assign any of its rights hereunder and any such attempt is void. Author and Recipient are independent contractors, not legal partners or agents.